LOAN AGREEMENT
LOAN AGREEMENT
By
WESTERN ALLIANCE BANK,
an Arizona corporation and
LF3 PINEVILLE 2, LLC, a Delaware limited liability company and LF3 PINEVLLE 2 TRS, LLC, a Delaware limited liability company
August 25, 2022
LOAN AGREEMENT
THIS LOAN AGREEMENT (as it may be amended, restated, supplemented, extended or renewed from time to time, this “Agreement”) is made as of August 25, 2022, between WESTERN ALLIANCE BANK, an Arizona corporation (“Lender”), and LF3 PINEVILLE 2, LLC, a Delaware limited liability company and LF3 PINEVILLE 2 TRS, LLC, a Delaware limited liability company (individually and collectively, jointly and severally, the “Borrower”).
FOR VALUABLE CONSIDERATION, the parties agree as follows:
ARTICLE 1 AGREEMENT TO LEND
$2,381,000 (the “DLOC Commitment Amount”) (the Term Loan and DLOC are individually and collectively referred to herein as the “Loan”), all on the terms and conditions in this Agreement and the other Loan Documents. Notwithstanding anything to the contrary, Lender shall not be obligated to advance Loan funds in an amount greater than the Maximum Loan Amount, as determined by Lender. Xxxxxxxx agrees to borrow and repay the Loan, with interest, in accordance with the Note, this Agreement, and the other Loan Documents. Notwithstanding that this Agreement provides for multiple loan facilities and advances, the Loan shall constitute one general obligation of Borrower.
ARTICLE 2 LOAN TERMS
such Reference Date. The DLOC Monthly Payment amount so calculated will be in effect commencing with the first Payment Day following such Reference Date and for the next 11 DLOC Monthly Payments or through the Maturity Date, if the Maturity Date occurs during such period, with the DLOC Monthly Payment amount to be recalculated on each Reference Date. That portion of the DLOC Monthly Payment which exceeds the accrued and unpaid interest on the DLOC shall be applied to principal. If a particular DLOC Monthly Payment is insufficient to pay all of the accrued and unpaid interest on the DLOC as of the due date for such DLOC Monthly Payment, then that portion of the accrued and unpaid interest in excess of the portion actually paid shall thereupon be added to the unpaid principal balance of the DLOC and shall thereafter accrue interest at the Variable Rate. “Reference Date” means the first day of the month during which the DLOC Term Out Date occurs and each anniversary of such date
| 2.3 | Collateral. The Loan will be secured by the Collateral described in the “Collateral Table” attached as |
Exhibit 2.3, as well as all other Collateral described in the Loan Documents.
| 2.6 | Closing Fees. Borrower will pay the following fees to Lender on the Closing Date: |
| 2.8 | General Payment Provisions. |
agrees to execute and deliver to Lender such authorizations and agreements as Lender may require to establish such ACH arrangements) unless Xxxxxx gives prior written consent, in its sole discretion, for Payments to be made by wire transfer. Any Payment made by wire transfer and not received by Lender prior to 12:00 noon (local Phoenix, Arizona, time) may, in Xxxxxx’s sole discretion, be deemed to have been received on the immediately succeeding Business Day and any applicable interest or fee shall continue to accrue. All Payments, including Payments made by ACH debit, shall be in U.S. dollars and shall be made from a business deposit account in Borrower’s name at a U.S. bank. All Payments shall be made without deduction of present and future Taxes (such amounts to be paid by Borrower) and without any other abatement, reduction, setoff, defense, counterclaim, deferment or recoupment.
| (b) | Application of Payments Generally. Except as otherwise provided in subsection (c) below: |
(i) all Payments of principal and interest required to be made shall be applied first to accrued and unpaid interest and then to principal; (ii) Payments by or on behalf of Borrower for fees, costs, and other expenses payable pursuant to any Loan Document, including Payments with respect to Transaction Costs, Closing fees and expenses, and other amounts payable by a Credit Party pursuant to any provision of the Loan Documents, shall be applied to the applicable fee, cost or other expense; and (iii) if Lender receives any other Payment, including Collateral proceeds and principal prepayments, Lender shall apply such Payment in such order, manner, and amounts as is specifically provided in the applicable Loan Document pursuant to which such Payment is made, or, in the absence of such a provision, in such order, manner, and amounts as Lender, in its sole discretion, may determine.
| 2.9 | Interest Rate; Payments. |
| (a) | [Reserved]. |
| 2.10 | Payments. |
| 2.11 | Prepayments. |
(A) payments of Insurance Proceeds or Condemnation Proceeds that are applied to principal on the Loan; and
(B) other mandatory prepayments, if any, required pursuant to any of the Loan Documents and that are applied to principal on this Loan; and (C) any Special Prepayment); and (iv) the prepayment must be accompanied by payment to Lender of the following: (A) any and all costs, fees, and other expenses, including late fees, then due and payable with respect to the Obligations; (B) interest on the prepaid principal through the Permitted Prepayment Date; and (C) a Prepayment Fee in the amount described below, unless the Loan Documents specifically state that, with respect to a particular prepayment, no Prepayment Fee is due. Any other provision of the Loan Documents to the contrary notwithstanding, if the Loan is accelerated by Lender in exercise of Lender’s rights or if the Loan is automatically accelerated pursuant to Section 6.1(f) of this Agreement, then, in addition to any other amounts that Borrower may owe Lender, Borrower is also obligated to pay the Prepayment Fee, calculated based on the principal amount outstanding as of the date of acceleration. PREPAYMENTS ARE ONLY ALLOWED ON PERMITTED PREPAYMENT DATES AND INTEREST ON THE PREPAYMENT AMOUNT MUST BE PAID TO THE PERMITTED PREPAYMENT DATE. IF XXXXXX AGREES TO ACCEPT A PREPAYMENT ON A DATE OTHER THAN A PERMITTED PREPAYMENT DATE, THERE WILL BE NO REDUCTION IN THE AMOUNT OF INTEREST REQUIRED TO BE PAID AS PROVIDED ABOVE. ACCORDINGLY, AS A FURTHER CONDITION TO THE PREPAYMENT AND IN ADDITION TO ALL OTHER AMOUNTS PAYABLE IN RESPECT OF SUCH PREPAYMENT, BORROWER WILL PAY TO LENDER THE AMOUNT OF INTEREST THAT WOULD HAVE ACCRUED ON THE LOAN, BUT FOR THE PREPAYMENT, FROM THE DATE OF PREPAYMENT TO THE NEXT PERMITTED PREPAYMENT DATE.
with the sale of the Site to a third party that is not an Affiliate of Borrower, then the Prepayment Fee will not be required.
| 2.12 | Certain Definitions. As used in this Agreement, the following terms are defined as follows: |
| (a) | “Amortization Period” means a period of 300 months that commences on Term Out Date. |
| (d) | “DLOC Term Out Date” means the last day of the DLOC Draw Period. |
| (e) | “Fixed Rate” is a per annum rate equal to 6.20%. |
| (f) | “Floor Rate” is 4.50%. |
such alternate base rate and spread (collectively, “Benchmark Replacement”) as Lender determines in its sole discretion to be most comparable to the then-current interest rate. If the Benchmark Replacement as determined pursuant to this section would be less than the Floor Rate, the Benchmark Replacement will be deemed to equal the Floor Rate for the purposes of this Agreement and the other Loan Documents.
| (m) | “Spread” is 3.00%. |
| (o) | “Term Out Date” means February 25, 2024. |
If, in connection with the DLOC, the Federal Reserve Board does not report a Treasury Rate with a term equal to the applicable Origination Term or the Prepayment Term, then the Treasury Rate to be used in computing the Origination Reference Rate or the Prepayment Reference Rate, as the case may be, will equal the interpolated yield of (A) the Treasury Rate for the term, in months, that is less than, but closest to, the Origination Term or the Prepayment Term, as the case may be, and (B) the Treasury Rate for the term, in months, that is more than, but closest to, the Origination Term or the Prepayment Term, as the case may be.
| 2.14 | Increased Costs. |
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
Xxxxxxxx acknowledges and agrees that the representations and warranties in this Article are a material consideration to Lender; that Lender is relying on their correctness and completeness in entering into this Agreement and making the Loan; and that these representations and warranties are true and accurate as of the date hereof, will be true and accurate as of the Closing, as if made at Closing, and will survive the Closing, regardless of any investigation or inspection by Xxxxxx. Accordingly, Xxxxxxxx represents, warrants, and certifies to and covenants with Xxxxxx that:
organizational chart attached as Exhibit 3.1, relating to Borrower and certain of its Affiliates, is true, complete and correct on and as of the date hereof. No Person other than those Persons shown on Exhibit 3.1 have any ownership interest in, or right of Control, directly or indirectly, in Borrower.
U.S. Bankruptcy Reform Act of 1978, 11 U.S.C. §101, et seq. (the “Bankruptcy Code”) or obtained a discharge of its debts under the Bankruptcy Code; and (c) no Person that is a principal officer, executive, member, manager or equity owner of a Credit Party held a similar position in an entity that, during the time such Person held such position or within one year after leaving such position, filed (or had filed against it) a petition under the Bankruptcy Code or that obtained a discharge of its debts under the Bankruptcy Code.
P.L. 107-56,, and all rules and regulations issued pursuant to such laws, including those relating to “know your customer”, anti-money laundering, and anti-terrorism. No AML Party is or will become a Person (a) included by OFAC on the list of Specially Designated Nationals and Blocked Persons (the “SDN List”) or who is otherwise the
target of U.S. economic sanctions laws, such that, in either case, a U.S. Person cannot engage in business transactions with such Person; or (b) that is Controlled by, or acting, directly or indirectly, for or on behalf of, any Person on the SDN List or a foreign government that is the target of U.S. economic sanctions prohibitions, such that entry into or performance under any Loan Document would violate Applicable Law.
with the giving of notice or the lapse of time or both, would constitute a default under the Management Agreement. The Management Agreement (a) is fully subordinate to the Loan and Loan Documents, including to all Lender’s Liens; and (b) does not contain any rights of first refusal or other options in favor of Manager to acquire any Collateral or other property of Borrower.
ARTICLE 4 AFFIRMATIVE COVENANTS
Until such time as all Obligations are fully paid and performed:
| 4.4 | Insurance. |
(i) property insurance (Special Form) for 100% of full replacement value; (ii) business income insurance;
| (iii) | builder’s risk insurance, for any period during which construction shall take place on the Site; |
| 4.5 | Casualty. |
agrees to provide Lender such clerical and other assistance as Xxxxxx may reasonably request; in furtherance of (a) and (b), access shall not materially interfere with the operation of the Site.
(b) any other action, event or condition of any nature which could reasonably be expected to have a Material Adverse Effect, or which, with notice or lapse of time or both, would constitute an event of default or a default under any other instrument or agreement to which it is a party or by or to which it or any of its assets may be bound or subject; and (c) the occurrence of any Default and the action Borrower proposes to take with respect thereto. Borrower will promptly notify Lender of any material communications, notices, or matters relating to any investigation or inquiry conducted by any Governmental Authority and pertaining to any Credit Party, LF III, or Adviser, provided, however, that there shall be no such notice requirement for disclosure in the normal course to a self-regulatory organization, regulatory body or other Governmental Authority or examiner thereof that does not specifically target the Credit Party or the information within this Agreement.
| 4.15 | Financial Reporting. Borrower shall comply with the financial reporting requirements set forth on |
Exhibit 4.15.
| 4.18 | Impounds. |
are sufficient Imposition Deposits, Lender shall pay such amounts as may be due out of the Imposition Deposits. If at any time and for any reason the Imposition Deposits are or will be insufficient to pay such amounts, Lender shall notify Borrower and Borrower shall immediately deposit with Lender an amount equal to such deficiency. In no event will Lender be deemed a trustee of the Imposition Deposits or be obligated to pay any amounts in excess of the amount of the Imposition Deposits. Lender may commingle the Imposition Deposits with its own funds, and Borrower shall not be entitled to interest thereon. Notwithstanding any impounding for Real Property Impositions, Xxxxxxxx has the primary and continuing obligation to pay all Real Property Impositions, and Xxxxxx’s exercise of the right to impound shall not constitute a waiver of any Default or a release of Borrower from any such obligation.
| 4.21 | Cross-Collateralization with Related Loan. |
Debt Yield for the Borrower with respect to the Site (and only the Site) is greater than or equal to 12.5% as of the end of four consecutive Fiscal Quarters (as measured on a trailing twelve month basis) ending immediately prior to the Release Date; and (c) the Related Loan is repaid in full and Borrower makes a principal prepayment of the Loan in the amount of 5% of the outstanding principal of the Related Loan immediately prior to the repayment of Related Loan, then Xxxxxx agrees to release and terminate its Lien on the Related Property that secures the Borrower’s Obligations under this Agreement and any guaranty of such Obligations by Related Borrower. Borrower must give Lender no less than 30 days’ prior written notice of Xxxxxxxx’s request for such release before Lender is required to release. Nothing in this Section will require Lender to (i) release any Lien on the Related Property securing obligations under any Related Loan Agreement; or (ii) release any Lien on the Site securing any obligations of (1) Borrower under this Agreement or (2) Related Borrower under the Related Loan Agreement (or any guaranty of such obligations by Borrower). Any release pursuant to this Section will be at the sole cost and expense of Borrower. As used herein “Release Date” means the date that Related Borrower conveys the Related Property to a Person that is not an Affiliate of Borrower.
ARTICLE 5 NEGATIVE COVENANTS
Until such time as all Obligations are fully paid and performed:
Franchise Agreement or any interest therein to any Person other than Lender. Borrower will send Lender a copy of all Franchise Agreement amendments promptly following execution thereof by all parties thereto.
(ii) so long as no Default has occurred and is continuing, sales or other dispositions of obsolete equipment consistent with past practices, so long as such items are replaced by items of equal or greater value and utility; (b) sell, mortgage, pledge, assign, transfer, or otherwise encumber or dispose of its interest in this Agreement or the other Loan Documents; (c) engage in or allow a change of Control of any Credit Party to occur, including a change resulting from (i) direct or indirect transfers of beneficial ownership of, or the right and power to vote, stock or partnership, membership or other ownership interests, whether in one or a series of transactions; or (ii) creation or issuance of new or additional equity interests; (d) pledge, assign, or otherwise encumber or dispose of any interest in any Credit Party as collateral for any obligation of a Credit Party or any other Person; or (e) enter into any agreement to do, or which would or could result in, any of the foregoing.
U.S.C. Section 5318. Each Credit Party shall, at all times, comply with all AML Requirements. No Credit Party will use any proceeds of the Loan directly or indirectly for any payments to any government official or employee, political party, political party official, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S. Foreign Corrupt Practices Act of 1977. Within five days of written request, Borrower shall provide Lender with such documentation as Lender may request from time to time, to verify compliance with the terms and conditions of this Section, including with respect to sources of funds for Payments made or to be made by any Credit Party.
ARTICLE 6 DEFAULTS AND REMEDIES
| 6.1 | Defaults. The following constitute events of default (each, an “Event of Default”): |
| (f) | Bankruptcy, Insolvency, and Xxxxxxx Other Proceedings. Occurrence of any of the following: |
| (i) | Insolvency; Business Cessation. Any Credit Party (A) ceases to be Solvent; |
(B) generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (C) voluntarily ceases to conduct its business in the ordinary course; or (D) takes any action to effectuate or authorize any of the foregoing;
reorganization, arrangement, adjustment, protection, relief, composition of it or its debts or any similar order; or (C) seeking entry of an order for relief or appointment of a custodian, receiver, trustee, conservator, liquidating agent, liquidator, or other official with similar powers, for it or for any substantial part of its property; and in the case of any such proceeding or other action instituted against (but not by or with the consent of) such Credit Party, either (i) such proceeding or action shall remain undismissed or unstayed for a period of 60 days or more; or (ii) any action sought in such proceedings shall occur;
(B) vacated, stayed, bonded, paid or discharged within a period of 45 days from the date of such judgment; or
(ii) payment of such money judgment would not have a Material Adverse Effect.
(iii) any other event or circumstance designated elsewhere in this Agreement or the other Loan Documents as an Event of Default shall occur.
(i) Crimes and Forfeitures. Any officer, director, manager, or owner of a Credit Party shall be (1) charged with, indicted for, or convicted of a crime (other than misdemeanor traffic violations) a punishment for which could include the forfeiture of any assets of such Credit Party or of any equity interest in such Credit Party, the loss of eligibility for any permit, imprisonment, or a material fine or other material monetary payment or penalty, or (2) subjected to civil penalty (whether monetary or equitable) with respect to securities laws, rules or regulations, a punishment for which could have a Material Adverse Effect.
$2,000,000 (in the aggregate), or (2) any officer, director, manager, or any Persons managing or controlling Guarantor, LF III, Adviser or any Borrower as of the date hereof are not permitted to remain in such office or position, or to exercise such control, in each case as a result of, or in connection with, any settlement with, or investigation, legal proceeding, or administrative proceeding brought by, the Securities and Exchange Commission or other Governmental Authority.
ARTICLE 7 LENDER TRANSFERS
ARTICLE 8 GENERAL PROVISIONS
delivery; (y) one Business Day after delivery to an overnight delivery service, if Notice is given by overnight delivery service; and (z) two Business Days following deposit in the U.S. mail, if Notice is given by U.S. mail.
AND ENFORCEMENT; provided, however, that with respect to any married individual signing this Agreement or any other Loan Document who is not a resident of the State of Arizona, this Section shall not be a contractual choice of the community property laws of the State of Arizona.
Credit Party shall contest the validity or enforceability of any Loan Document, on the basis that such Loan Document, or one or more signatures hereto or thereto was the subject of an E-Transmission; provided, however, that nothing herein shall limit a party’s right to contest whether this Agreement or such other Loan Document has been altered after E-Transmission or whether the E-Transmission was delivered to an appropriate representative of Lender. “E-Transmission” means the communication of any document, including signature pages, by e-mail or any system used to receive or transmit faxes electronically.
| 8.26 | Co-Borrower Provisions. |
or otherwise secondarily liable for the Obligations. Each Borrower represents and warrants to and covenants with Lender that (i) Borrowers are engaged in operations that require financing on a joint basis and, accordingly, each Borrower will materially benefit, directly or indirectly, from the Loan; (ii) the Loan has been offered to Borrowers on a joint basis and would not be available to Borrowers on an individual basis on the terms and conditions stated in this Agreement; and (iii) the benefits received by each Borrower are reasonably equivalent to the obligations undertaken by each Borrower.
| 8.29 | Attachments. The following items are attached to and are an integral part of this Agreement: |
Exhibit 2.2(B)Form of DLOC Draw Request Exhibit 2.2(C)DLOC Draw Conditions Exhibit 2.3: Collateral Table
Exhibit 2.4:Closing Conditions Exhibit 3.1:Organizational Chart Exhibit 3.5:Litigation
Exhibit 3.14:Franchise Agreement Information Exhibit 3.15:Management Agreement Information Exhibit 4.15:Financial Reporting Requirements Exhibit 4.15(g): Form of Compliance Certificate Exhibit 4.16:Financial Covenants
Exhibit 8.1:Schedule of Defined Terms
[SIGNATURE PAGES FOLLOW]
29
EXECUTED effective as of the date first set forth above.
BORROWER:
LF3 PINEVILLE 2, LLC, a Delaware limited liability company
By: | Lodging Fund REIT III OP, LP, a Delaware limited partnership, its Sole Member |
By: Lodging Fund REIT III, Inc,. a Maryland
Corporation, its General partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Its: Chief Financial Officer
Principal Place of Business and Address for Notices: 0000 00xx Xx. X., Xxxxx 000
Fargo, ND 58103
LF3 PINEVILLE 2 TRS, LLC, a Delaware limited liability company
By: | Lodging Fund REIT III TRS, Inc., a Delaware corporation, its Sole Member |
By: Lodging Fund REIT III OP, LP, a Delaware limited partnership, its Sole Shareholder
By: Lodging Fund REIT III, Inc,. a Maryland
Corporation, its General partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Its: Chief Financial Officer
Principal Place of Business and Address for Notices: 0000 00xx Xx. X., Xxxxx 000
Fargo, ND 58103
Signature Page to Loan Agreement
LENDER:
WESTERN ALLIANCE BANK,
An Arizona Corporation
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Its: Vice President
Address for Notices:
Xxx Xxxx Xxxxxxxxxx Xxxxxx
14th Floor Phoenix, AZ 85004
Attention: Hotel Franchise Finance
4892-8948-6891
Signature Page to Loan Agreement
EXHIBIT 2.2(B) TO
LOAN AGREEMENT FORM OF DLOC DRAW REQUEST
DLOC DRAW REQUEST
WESTERN ALLIANCE BANK
Xxx Xxxx Xxxxxxxxxx Xxxxxx 14th Floor
Phoenix, Arizona 85004
Attention: Hospitality Franchise Finance
Re: Loan Agreement (the “Agreement”) dated August 25, 2022, between LF3 PINEVILLE 2 LLC, a Delaware limited liability company, and LF3 PINEVILLE 2 TRS, LLC a Delaware limited liability company (“Borrower”), and WESTERN ALLIANCE BANK (“Lender”). Capitalized terms used in this DLOC Draw Request (the “Draw Request”) and not defined herein have the meanings given thereto in the Agreement.
DISBURSEMENT SCHEDULE | |
Payee and Wire Transfer Instructions | Amount |
Payee Name: Account Name: Account Number: ABA #: Bank Name: Street Address: City, State, and Zip Code: Additional Comments or Instructions: | $ |
Payee Name: Account Name: Account Number: ABA #: Bank Name: Street Address: City, State, and Zip Code: Additional Comments or Instructions: | $ |
| 2. | Requested Draw Date. , 20 . Xxxxxxxx acknowledges that it may take up to |
five Business Days after all conditions to funding have been fully satisfied or otherwise waived by Lender to fund the Requested Draw and, consequently, the funding may not occur on the Requested Draw Date.
| (c) | Authorization and Execution. The individual executing this Draw Request is duly authorized to |
do so.
| (d) | Purpose. The Requested Draw will be used as follows: . |
Dated: , 20 .
[SIGNATURE PAGE FOLLOWS]
LF3 PINEVILLE 2, LLC, a Delaware limited liability company
By:Lodging Fund REIT III OP, LP, a Delaware limited partnership, its Sole Member
By:Lodging Fund REIT III, Inc., a Maryland corporation, its General Partner
By: Name: Xxxxxx X. Xxxxxxxxxx
Its:Chief Financial Officer
LF3 PINEVILLE 2 TRS, LLC, a Delaware limited liability company
By: | Lodging Fund REIT III TRS, Inc., a Delaware corporation, its Sole Member |
By: Lodging Fund REIT III OP, LP, a Delaware limited partnership, its Sole Shareholder
By: Lodging Fund REIT III, Inc., a Maryland corporation, its General Partner
By: Name: Xxxxxx X. Xxxxxxxxxx
Its:Chief Financial Officer
3
DLOC DRAW CONDITIONS: Prior to funding a DLOC Draw, each of the following conditions precedent (the “DLOC Draw Conditions”) shall have been satisfied, at Borrower’s sole cost and expense, all as determined by Xxxxxx in its sole discretion, unless, Lender, in its sole discretion, waives any such DLOC Draw Condition:
(b) Borrower shall have paid that portion of total Development Project costs that are not being financed by Xxxxxx. Upon request of Xxxxxx, Borrower shall provide to Lender evidence reasonably acceptable to Lender that such amounts have been paid by Borrower.
applications (including copies of all backup information required to be provided by the contractor) from the applicable general contractor.
5
At Closing, the Collateral will include a first priority blanket lien on and security interest in all of Borrower’s tangible and intangible personal property, wherever located, including all such property located at or used in connection with the Sites identified below. The Collateral will also include first priority Mortgages on each Site identified below.
Permitted Concept | Street Address | City | State | ZIP |
Hilton Garden Inn | 000 Xxxx Xxxxxx | Xxxxxxxxx | XX | 00000 |
Xxxxxx’s obligation to close the Loan is subject to Xxxxxx’s satisfaction with or waiver of, in Xxxxxx’s sole discretion, the following conditions, including required deliverables, each at Borrower’s expense:
| (a) | This Agreement; |
| (b) | The Note; |
| (c) | The Guaranty; |
| (d) | A Mortgage and an environmental indemnity agreement for the Site; |
| (f) | A Borrower authorization; and |
| 9. | Operating Account. Borrower shall open an operating account for the Site with Lender. |
| 10. | Other Conditions. All other conditions to Xxxxxx’s obligations to close the Loan have been |
satisfied.
2
Borrower Organizational Chart: Credit Party Ownership at Close
LF3 Pineville 2, LLC
Sole Member of LF3 Pineville 2, LLC
is
Lodging Fund REIT III OP, LP (100%)
Lodging Fund REIT III, Inc. **
is
General Partner (72.1%)
Common Limited Partners
are individual investors
(5.1%)
Series B Limited Partner
is
Legendary Capital REIT III, LLC (5%)
Series T Limited Partners
are individual investors
Series Go Limited Partners are
individual investors (17.8%)
None
EXHIBIT 3.14
FRANCHISE AGREEMENT INFORMATION
Named Franchisee | Named Franchisor | Franchise Agreement Effective Date | Franchise Agreement Expiration Date |
LF3 Pineville 2 TRS, LLC | Hilton Franchise Holding LLC | August 25, 2022 | August 31, 2037 |
EXHIBIT 3.15
MANAGEMENT AGREEMENT INFORMATION
Property Address | Management Company | Owner | Management Agreement Effective Date | Management Agreement Expiration Date |
000 Xxxx Xxxxxx Xxxxxxxxx, XX 00000 | HP Hotel Management, Inc. | LF3 Pineville 2 TRS, LLC | August 25, 2022 | August 25, 2028, with automatic 3 year extensions |
EXHIBIT 4.15 FINANCIAL REPORTING
Borrower will comply with the requirements of this Exhibit 4.15.
Financial Statement Requirements. All Financial Statements, other than Financial Statements for Credit Parties that are individuals or trusts, shall be prepared in accordance with GAAP on a consistent basis from period to period. The Financial Statements need not be audited, but Borrower shall deliver to Lender copies of any audited Financial Statements which may be prepared, as soon as they are available. “Financial Statements” means, for Borrower and each Credit Party that is an entity, the following dated as of the end of the fiscal period then ended:
| (a) | consolidated and consolidating balance sheet |
| (b) | consolidated and consolidating income statement |
| (c) | consolidated and consolidating statement of retained earnings (if available) |
| (d) | statement of cash flows (if available), |
| (e) | and all related schedules for the foregoing. |
Provided, however, quarterly Financial Statements will not require statements of retained earnings, cash flows or shareholder equity unless requested by Lender. In those cases where a Credit Party is an individual or a trust, Financial Statements shall also include statements of assets and liabilities, statements of trust property (if the Credit Party is a trust), tax returns, and such other information as Lender may reasonably request.
| (c) | The Xxxxx Travel Research Reports for the Site for such Fiscal Quarter then ended; |
| (d) | Copies of the most recent Franchisor quality assurance reports issued to Borrower; and |
| (c) | Copies of the most recent Franchisor quality assurance reports issued to Borrower; and |
EXHIBIT 4.15(g) COMPLIANCE CERTIFICATE FORM
Xxx Xxxx Xxxxxxxxxx Xxxxxx 14th Floor
Phoenix, AZ 85004
Re: Loan Agreement (the “Agreement”) dated August 25, 2022, between LF3 PINEVILLE, LLC, a Delaware limited liability company and LF3 PINEVILLE 2 TRS, LLC, a Delaware limited liability company (collectively, the “Borrower”) and Western Alliance Bank (“Lender”). Capitalized terms used in this Compliance Certificate and not defined herein have the meanings given to those terms in the Agreement.
The undersigned certifies the following to Lender, as of the date of this Compliance Certificate:
| 2. | Financial Covenants. |
DEFAULT | CURE ACTIONS |
| |
;
| (c) | Changed its address or otherwise relocated, except as follows: . |
| 5. | All Real Property Impositions that are due and owing have been paid. |
| 7. | The Site passed its latest quality assurance report by Franchisor, except with respect to the |
following items: . The date of such report is:
.
| 8. | The current Franchisor for the Site is . |
| 9. | The current Manager for the Site is . |
, 20 , and the score is:
Dated: , 20 .
, a
Printed Name: Title:
| 1. | Debt Service Coverage Ratio. |
The Related Borrower Group Debt Service Coverage Ratio (if Section 1(a) is applicable), or the Debt Service Coverage Ratio (if Section 1(b) is applicable), at the applicable level required with respect to the last day of a particular Fiscal Quarter, may be referred to herein as the “Applicable DSCR Requirement.”
| 2. | Debt Yield. |
The Related Borrower Group Debt Yield (if Section 2(a) is applicable), or the Debt Yield (if Section 2(b) is applicable), at the applicable level required with respect to the last day of a particular Fiscal Quarter, may be referred to herein as the “Applicable DY Requirement.”
In the event that the Related Borrower Group or Borrower, as applicable, is not in compliance with the Applicable DY Requirement or the Applicable DSCR Requirement as of the last day of two consecutive Fiscal Quarters, within 5 Business Days of demand from Lender, Borrower shall take one of the following courses of action (each, a “Curative Action”): (i) make a principal prepayment on the Loan or (ii) either deposit cash collateral in a Lender- controlled deposit account held at Lender or provide to Lender an evergreen standby letter of credit payable to Lender as additional security for the Loan (which letter of credit shall be in form, substance and from a financial institution satisfactory to Lender in Xxxxxx’s sole discretion). In the case of clause (i), such payment must be in an amount sufficient to reduce the outstanding balance of the Loan and Related Loan to be in compliance with the Applicable DY Requirement or the Applicable DSCR Requirement requirements as of the most recent testing date. In the case of clause (ii), such deposit or letter of credit must be in an amount sufficient, if such amount is factored into the calculation of (A) the Related Borrower Group Debt Service Coverage Ratio (if Section 1(a) is applicable), or the Debt Service Coverage Ratio (if Section 1(b) is applicable) and (B) the Related Borrower Group Debt Yield (if Section 2(a) is applicable), or the Debt Yield (if Section 2(b) is applicable) as if it were a prepayment of the Loan and Related Loan, to cause the Related Borrower Group or Borrower, as applicable to be in compliance with the Applicable DY Requirement and the Applicable DSCR Requirement as of the most recent testing date. Provided no Default is continuing, any deposit of funds or letter of credit made under clause (ii) shall be released to Borrower promptly following such time as the Borrower or Related Borrower Group (as applicable) is fully and completely in compliance with the Applicable DY Requirement and the Applicable DSCR Requirement as determined by Lender as measured as of the last day of two consecutive Fiscal Quarters following such deposit being made, without including any amounts attributable to deposit in the calculation; provided, however, if (a) an Event of Default occurs, or (b) the Borrower or Related Borrower Group (as applicable) is not in compliance with the required the Applicable DY Requirement and/or the Applicable DSCR Requirement for four consecutive Fiscal Quarters (without including any amounts attributable to deposit in the calculation), then Lender, in its sole discretion may apply such deposited funds against the Obligations, and shall not be required to return such funds to Borrower. Any prepayment under this Section shall include any applicable prepayment fees.
The following terms mean as provided below:
“Debt Service Amount” means the amount of principal and/or interest payments due with respect to the Loan.
“Debt Service Coverage Ratio” means, as calculated for the 12 month period of time ending on the last day of the Fiscal Quarter for which the Debt Service Coverage Ratio is being calculated, the ratio of Net Operating Income to the Debt Service Amount, each as determined in accordance with GAAP and calculated according to the Uniform System of Accounts for Hotels.
“Debt Yield” means, as calculated for the 12 month period of time ending on the last day of the Fiscal Quarter for which the Debt Yield is being calculated, Net Operating Income divided by the outstanding principal amount of the Loan as of the Determination Date.
“Determination Date” means the last day of the fiscal period for which the Debt Service Coverage Ratio, Debt Yield, Related Borrower Group Debt Service Coverage Ratio, or Related Borrower Group Debt Yield is being calculated.
“Net Operating Income” means, with respect to the 12 month period ending as of the applicable Determination Date, the sum of the following for the Borrower with respect to the Site as determined by Xxxxxx (“A”):
net income (or loss)
+interest expense
+income taxes
+depreciation
+amortization
+actual management fees, including both base and incentive management fees
+actual replacement reserves
+non-recurring miscellaneous expense (as allowed/required by Xxxxxx) Less
The sum of the following for the Borrower with respect to the Site as determined by Xxxxxx (“B”):
The greater of (i) 3% of total revenues as an assumed management fee or (ii) actual management fees (including both base and incentive management fees)
+The greater of (i) 4% of total revenues as an assumed reserve for replacement or (ii) actual replacement reserve
+non-recurring miscellaneous income (as allowed/required by Xxxxxx). For purposes of clarity, Net Operating Income is “A” minus “B”
“Related Borrower Group Debt Service Amount” means, with respect to the applicable period of time ending as of the applicable Determination Date, the sum amount of principal and/or interest payments due with respect to the Loan and Related Loan.
“Related Borrower Group Debt Service Coverage Ratio” means, as calculated for the 12 month period of time ending on the last day of the Fiscal Quarter for which the Related Borrower Group Debt Service Coverage Ratio is being calculated, the ratio of Related Borrower Group Net Operating Income to the Related Borrower Group Debt Service Amount, each as determined in accordance with GAAP and calculated according to the Uniform System of Accounts for Hotels.
“Related Borrower Group Debt Yield” means, as calculated for the 12 month period of time ending on the last day of the Fiscal Quarter for which the Related Borrower Group Debt Yield is being calculated, Related Borrower Group Net Operating Income divided by the outstanding principal amount of the Loan and Related Loan as of the last day of the applicable Fiscal.
“Related Borrower Group Net Operating Income” means, with respect to the 12 month period (or other applicable period of time) ending as of the applicable Determination Date, the sum of the following for the Related Borrower Group (on a consolidated basis) with respect to the Site and the Related Property as determined by Xxxxxx (“A”):
net income (or loss)
+interest expense
+income taxes
+depreciation
+amortization
+actual management fees, including both base and incentive management fees
+actual replacement reserves
+non-recurring miscellaneous and/or capital expense (as allowed/required by Lender) Less
The sum of the following for the Related Borrower Group (on a consolidated basis) with respect to the Site and Related Property as determined by Xxxxxx (“B”):
The greater of (i) 3% of total revenues as an assumed management fee or (ii) actual management fees (including both base and incentive management fees)
+ The greater of actual replacement reserve or (i) for the first 12 month period following the Closing Date, 2% of total revenues as an assumed reserve for replacement; (ii) for the second 12 month period following the Closing Date, 3% of total revenues as an assumed reserve for replacement; and (iii) at all times thereafter, 4% total revenues as an assumed reserve for replacement
+ non-recurring miscellaneous income (as allowed/required by Xxxxxx).
For purposes of clarity, Related Borrower Group Net Operating Income is “A” minus “B”
SCHEDULE 8.1(a) TO
Defined Term | Location in Agreement |
“ACH” | Section 2.8(a) |
“AML Party” | Section 3.9 |
“AML Requirements” | Section 3.9 |
“Amortization Period” | Section 2.12(a) |
“Authorized Person” | Section 8.20 |
“Bankruptcy Code” | Section 3.7 |
“Casualty” | Section 4.5 |
“Closing” | Section 2.4 |
“Closing Conditions | Section 2.4 |
“Closing Date” | Section 2.4 |
“Closing Deadline” | Section 2.4 |
“Closing Draw Request” | Section 2.5 |
“Credit Party Information” | Section 8.19 |
“ERISA” | Section 3.20 |
“Evaluation Information” | Section 3.17 |
“Event of Default” | Section 6.1 |
“Financial Covenants” | Section 4.16 |
“Imposition Deposits” | Section 4.18(b) |
“Impound Commencement Date” | Section 4.18(a) |
“Impound Notice” | Section 4.18(a) |
“Indemnified Matters” | Section 8.6 |
“Insurance Proceeds” | Section 4.5(c) |
“Lender Transfer” | Section 7.1 |
“Monthly Payment” | Section 2.10(a) |
“Net Insurance Proceeds” | Section 4.5(c) |
“Notices” | Section 8.10 |
“Origination Reference Rate” | Section 2.12(h) |
“Origination Term” | Section 2.12(i) |
“Partial Assignment” | Section 7.1 |
“Permitted Prepayment Date” | Section 2.11(a) |
“PIP” | Section 3.14 |
“Prepayment Fee” | Section 2.11(b) |
“Prepayment Reference Rate” | Section 2.12(j) |
“Prepayment Term” | Section 2.12(k) |
“Prohibited Transaction” | Section 5.8 |
“Real Property Impositions” | Section 4.18(b) |
“Remaining Payments” | Section 2.12(l) |
Defined Term | Location in Agreement |
“Restoration” | Section 4.5(b) |
“SDN List” | Section 3.9 |
“Special Prepayment” | Section 2.11(d) |
“Swap Rate” | Section 2.12(n) |
“Tax Affiliate” | Section 3.16 |
“Tax Returns” | Section 3.16 |
“Term Out Date” | Section 2.12(o) |
“Transaction Costs” | Section 2.7 |
“Transferred Interests” | Section 7.1 |
EXHIBIT 8.1(b) SCHEDULE OF DEFINED TERMS
| 1. | Defined Terms. The following terms have the meanings set forth below: |
“Adviser” means Legendary Capital REIT III, LLC, a Delaware limited liability company.
“Affiliate” means, with respect to a Person, each officer, director, manager, general partner, or joint- venturer of such Person and any other Person that directly or indirectly Controls, is Controlled by, or is under common Control with, such Person.
“Applicable Law” means, as to a Person, any law (statutory or common), ordinance, rule, regulation, order, policy, other legal requirement or determination of an arbitrator or Government Authority, in each case applicable to or binding on such Person or any of its assets or to which such Person or any of its assets is subject.
“Beneficial Ownership Certification” means the beneficial ownership certification provided by Borrower or its Affiliate to Lender prior to the Closing Date regarding the ownership of Borrower.
“Business Day” means any day of the year that is not a Saturday, Sunday or a day on which banks are required or authorized to close in Phoenix, Arizona.
“Capital Lease” means any lease or similar arrangement that is classed as a capital lease pursuant to GAAP. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the
adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Government Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Government Authority; provided that notwithstanding anything herein to the contrary, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Collateral” means all real and personal property, tangible and intangible, as to which Xxxxxx is granted a Lien pursuant to any Loan Document, and any other property, real or personal, tangible or intangible, now existing or hereafter acquired, that may at any time be or
become subject to a Lien in favor of Xxxxxx, with references to “Collateral” to include all or any portion of or interest in any of the Collateral.
“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument, or other undertaking (other than a Loan Document) to which such Person is a party or by which it or any of its property is bound or subject, including the Franchise Agreement and the Management Agreement.
“Control” and “Controlled” means possession of either (a) the power to vote, or the beneficial ownership of, 20% or more of any class of voting securities (or other ownership interests) of such Person; or (b) the power to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“Credit Party” means Borrower, each Guarantor and each other Person (other than Lender) that is or may become a party to this Agreement or any other Loan Document.
“Debt Yield” means as defined Exhibit 4.16.
“Default” means any Event of Default (as defined in Article 6) or any event or circumstance that, with the passage of time or the giving of notice or both, would (if not cured or otherwise remedied during such time) become an Event of Default.
“Default Rate” means, with respect to the Loan, a per annum rate equal to 5% added to the interest rate that is otherwise applicable to such Loan from time to time. If the Default Rate is applied to any amounts other than the Loan (such as protective advances), it will equal a per annum rate equal to 5% added to the highest interest rate that is otherwise applicable to the Term Loan or DLOC (whichever is greater) from time to time.
“Debt Service Coverage Ratio” means as defined in Exhibit 4.16.
“Fiscal Quarter” and “Fiscal Year” means, respectively, the quarterly accounting periods and the annual accounting periods of Borrower consistent with the Borrower’s accounting and reporting practices in effect on the Closing Date.
“Franchise Agreement” means the franchise agreement, license agreement, or similar agreement relating to a particular Site, granted by the franchisor or licensor named in such agreement (“Franchisor”), together with all amendments, assignments, restatements, extensions, supplements, and exhibits thereto, that grants to Borrower the right to develop and operate such Site as the Permitted Concept.
“GAAP” means generally accepted accounting principles in the United States, as in effect from time to time, set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, in the statements and pronouncements of the Financial Accounting Standards Board and in such other statements by such other entity as may be in general use by significant segments of the accounting profession that are applicable to the circumstances as of the date of determination.
“Government Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
“Guarantor” means Lodging Fund REIT III Op, LP, a Delaware limited partnership.
“Guaranty” means each Guaranty of even date herewith by one or more Guarantors, pursuant to which such Guarantor guarantees payment and/or performance of certain Borrower Obligations.
“Indebtedness” means, without duplication, all of the following, whether or not matured: (a) indebtedness for borrowed money, including the outstanding balances of any revolving lines of credit; (b) obligations evidenced by bonds, debentures, notes, or similar instruments; (c) reimbursement and other obligations with respect to letters of credit and acceptances; (d) obligations representing the deferred purchase price of property or services; (e) obligations created or arising under any conditional sale or other title retention agreement; (f) obligations with respect to Capital Leases; and (g) any other obligation for borrowed money or other financial accommodation (direct or contingent), whether evidenced by a note, instrument, guaranty or other writing and whether contingent, unliquidated or disputed.
“Lender Party” means each of Lender and its Affiliates.
“LF III” means Lodging Fund REIT III, Inc., a Maryland corporation.
“Liabilities” means all claims, actions, suits, judgments, damages, losses, liabilities, obligations, fines, penalties, sanctions, costs, fees, Taxes, commissions, charges, disbursements and expenses, in each case of any kind or nature, including fees, charges and disbursements of financial, legal and other advisors and consultants (including those incurred in connection with responding to subpoenas or other discovery requests, third party or otherwise) and including interest accrued thereon or as a result thereof, whether joint or several, and whether or not indirect, contingent, consequential, actual, punitive, treble or otherwise.
“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), security interest, including purchase money security interests, and any other preference, priority or preferential arrangement of any kind or nature whatsoever, including any conditional sale contract or other title retention agreement, the interest of a lessor under a Capital Lease and any synthetic or other financing lease having substantially the same economic effect as any of the foregoing.
“Loan Documents” means, collectively, this Agreement; the Note; the Guaranty; the Mortgage; and each security agreement, management agreement subordination, environmental indemnity agreement, Closing Draw Request, cross-default and/or cross-collateral agreement, and each other document or instrument now or hereafter executed and delivered by any Credit Party in connection with the Loan or any of the foregoing, with references in the Loan Documents to a particular Loan Document to mean such Loan Document, as it may be amended, restated, supplemented, extended or renewed from time to time. Each Exhibit, Schedule, Table, or Appendix attached to a Loan Document is an integral part of such Loan Document, the same as if set forth in full in the body thereof.
“Management Agreement” means the management or similar agreement with the manager named in such agreement (“Manager”), together with all amendments, assignments, restatements, extensions, supplements, and exhibits thereto and relating to a particular Site, granting Manager the right to manage and operate such Site as the Permitted Concept.
“Material Adverse Effect” means any fact, event, circumstance or other effect (including changes in market conditions), whether foreseeable or unforeseeable, that alone or in combination with other facts, events, circumstances, or effects occurring or existing concurrently with such fact, event, circumstance, or effect results in or causes, or could reasonably be expected to result in or cause, a material adverse change in any of (a) the condition (financial or otherwise), business, performance, operations or assets of any Credit Party; (b) the ability of any Credit Party to perform its obligations under any Loan Document; (c) the validity or enforceability of any Loan Document or the rights and remedies of Lender under any Loan Document; or (d) the Collateral, Lender’s Liens in the Collateral, or the priority of such Liens.
“Maturity Date” means August 25, 2027. “Maximum Loan Amount” means $9,401,000.
“Mortgage” means each mortgage, deed of trust, or similar document granting a Lien to Lender, now or hereafter encumbering any of the Collateral, with references in the Loan Documents to “Mortgage” being to each such Mortgage.
“Net Operating Income” means calculation shown in Exhibit 4.16.
“Note” means the promissory note(s) by Borrower to Lender evidencing the Loan.
“Obligations” means all amounts, obligations, liabilities, covenants and duties of every type and description (including for the payment of money), owing by any Credit Party to Lender, or any other Person required to be indemnified, that arises out of, under, or in connection with any Loan Document, whether or not for the payment of money, whether arising by reason of an extension of credit, loan, guaranty, indemnification or in any other manner, whether direct or indirect (including those acquired by assignment), absolute or contingent, due or to become due, liquidated or not, now existing or hereafter arising, however acquired, and whether or not evidenced by any instrument.
“Operating Lease Expenses” means all rent paid in cash, including any percentage rent (but excluding from “rent” any Taxes, insurance, common area maintenance, or other similar charges even if denominated as “rent”), incurred by Borrower with respect to any and all operating leases or subleases during the period of determination, all determined in accordance with GAAP.
“Payment Day” means the first day of each calendar month.
“Permitted Concept” means the concept set forth for a particular Site in the Collateral Table or such other concept as may be approved by Lender in its sole discretion for a particular Site.
“Permitted Exceptions” means (a) recorded easements, covenants, conditions, restrictions, encumbrances, and other matters of record affecting the Collateral and approved by Lender in its sole discretion; (b) the Lien for current real property taxes and assessments, not yet due and payable, with respect to any real property Collateral; and (c) Liens in favor of a Lender Party.
“Person” means any individual, partnership, corporation, business trust, public benefit corporation, joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Government Authority.
“Related Borrower” means, individually and collectively, LF3 Charlotte, LLC, a Delaware limited liability company, and LF3 Charlotte 2 TRS, LLC, a Delaware limited liability company.
“Related Borrower Group” means, collectively, (a) the Borrower, and (b) the Related Borrower.
“Related Loan” means the term loan and development line of credit by Xxxxxx to Related Borrower made pursuant to the Related Loan Agreement.
“Related Loan Agreement” means the Loan Agreement of even date herewith, by Xxxxxx and Related Borrower governing the Related Loan.
“Related Property” means the hotel property located at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
28269.
“Site” means (a) each site listed in the Collateral Table and (b) each other business property that now or hereafter constitutes Collateral or at which any Collateral is located or that is otherwise designated or deemed a Site pursuant to any Loan Document, in each case including the buildings and improvements thereon and rights and privileges appurtenant thereto. All references in the Loan Documents to “Site” shall mean each such Site.
“Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the value of the assets of such Person (both at fair value and present fair saleable value) is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person; (b) such Person is able to pay all liabilities of such Person as such liabilities mature; and (c) such Person does not have unreasonably small capital. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of Arizona, unless relating to real property or fixtures covered by the Mortgage, then the Uniform Commercial Code as in effect from time to time in the State of Texas.
| 2. | Interpretative Rules. Unless otherwise expressly provided or the context may otherwise require: |
(a) the words “hereof”, “herein”, “hereunder” and words of similar import, when used in a Loan Document, shall refer to such Loan Document as a whole and not to any particular provision hereof or thereof; (b) in the computation of time periods from a specified date to a later specified date, the term “from” means “from and including” and the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including” and the term “including” means “including without limitation”; (c) the term “incur” means incur, create, make, issue, assume or otherwise become directly or indirectly liable in respect of or responsible for, in each case whether directly or indirectly, and the terms “incurrence” and “incurred” and similar derivatives shall have correlative meanings; (d) the term “sole” means “sole and absolute”; (e) Article, Section, subsection, clause, Appendix, Exhibit, Schedule, and Table references in a Loan Document are to such items in or attached to such Loan Document; (f) references to a Loan Document include all exhibits, schedules, and appendices thereto and, unless Xxxxxx’s consent is required therefor but was not obtained, any amendment, restatement, or supplement thereto;
(g) references to any statute, law, ordinance, regulation or rule are to such statute, law, ordinance, regulation or rule, as modified from time to time and to any successor to any such statute, law, ordinance, regulation or rule, in each case as in effect at the time any such reference is operative; (h) Article, Section, subsection, Appendix, Exhibit, Schedule and Table titles and other divisions contained in any Loan Document are without substantive meaning or content of any kind and are not a part of the agreement between the parties; (i) the meaning of any term defined (including by reference) in any Loan Document shall be equally applicable to both the singular and plural forms of such term; and (j) references to days, months, and years are to calendar days, months, or years, unless otherwise defined.
