LOAN AGREEMENT
Exhibit 10.5
Execution Version
This LOAN AGREEMENT, dated as of January 12, 2017 (as amended, supplemented or otherwise modified, this “Agreement”) is made between American Realty Capital Hospitality Trust, Inc., a Maryland corporation (the “Borrower”) and Summit Hotel OP, LP (the “Lender”).
WHEREAS, the Borrower and the Lender have entered into that certain Loan Agreement, dated as of February 11, 2016 (as amended, supplemented or otherwise modified from time to time, the “Existing Loan Agreement”), pursuant to which the Lender extended a loan to the Borrower in an aggregate original principal amount of $27,500,000; and
WHEREAS, Lender has agreed to extend an additional loan to the Borrower in the original principal amount of $3,000,000 subject to the terms of this Agreement (the “Loan”).
THEREFORE, the parties hereto agree as set forth herein.
1. Use of Proceeds. The proceeds of the Loan made by the Lender on the date hereof will be deemed applied as consideration for the entry into that certain letter agreement, dated as of January 12, 2017, between American Realty Capital Hospitality Portfolio SMT ALT, LLC, Summit Hotel OP, LP and each of the Sellers identified therein (the “Summit II PSA Amendment”, amending that certain Real Estate Purchase and Sale Agreement, dated as of June 2, 2015, by and among American Realty Capital Hospitality Portfolio SMT, LLC, as Original Purchaser, the Sellers party thereto and Summit Hotel OP, LP, in its capacity as Seller Representative for the Sellers (as amended, supplemented or otherwise modified, the “Summit II Purchase Agreement”)).
2. Repayment of Principal. The entire principal amount of the Loan, and any accrued and unpaid interest, shall be due and payable on July 31, 2017 (the “Maturity Date”). The Borrower shall repay the principal amount of the Loan in installments of $1,000,000 on the last day of each of May, June and July 2017 (the “Amortization Payments”). The Loan may be prepaid in whole or in part at any time, without payment of any penalty or premium. Notwithstanding any provision to the contrary in this Agreement, upon the Closing Date, as defined in the Summit II Purchase Agreement (as amended, supplemented or otherwise modified, the “Summit II PSA Closing Date”), the Loan shall be deemed paid in full and the Borrower shall have no further obligations with respect thereto, except for unpaid interest accrued and payable in cash under Section 3(a)(i), Section 3(a)(ii), Section 3(b)(i) and Section 3(b)(ii) prior to the Summit II PSA Closing Date, which shall be due and payable on the Summit II PSA Closing Date. If the closing of the acquisition contemplated by the Summit II Purchase Agreement does not occur under the revised terms of the Summit II PSA Amendment, then the full amount of the Loan shall become due and payable on the Maturity Date.
3. Interest on Unpaid Principal Balance. Interest payments shall be made as set forth in this Section 3 and interest shall accrue on the unpaid principal amount of the Loan at a rate of:
(a) from the date of the Loan to February 11, 2017, thirteen percent (13.0%) per annum (the “Basic Interest Rate”) until the principal amount has been paid in full (or such earlier date upon which the entire principal amount of the Loan has been paid in full or deemed paid in full under Section 2), of which (i) a portion of the Basic Interest Rate equal to nine percent (9.0%) per annum shall be paid in cash on the last day of each calendar month commencing with January 31, 2017 (each such date, an “Interest Payment Date”) and (ii) the remaining portion of the Basic Interest Rate equal to four percent (4.0%) per annum, compounded monthly on each Interest Payment Date during such period, together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate, shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date, unless otherwise paid in cash on or prior to such date; provided that such amount described in Section 3(a)(ii) shall not be added to the principal amount of the Loan, but instead shall be payable in cash on the earlier of (x) the Summit II PSA Closing Date and (y) the termination of the Summit II Purchase Agreement as the result of a breach of the Summit II Purchase Agreement by American Realty Capital Hospitality Portfolio SMT ALT, LLC or its successor or permitted assignee; and
(b) from February 11, 2017 to the Maturity Date, fourteen percent (14.0%) per annum until the principal amount has been paid in full and the Loan has been fully satisfied on the Maturity Date (or such earlier date upon which the entire principal amount of the Loan and all interest thereon has been paid in full), of which (i) a portion of the Basic Interest Rate equal to nine percent (9.0%) per annum shall be paid in cash on each Interest Payment Date and (ii) a portion of the Basic Interest Rate equal to five percent (5.0%) per annum, compounded monthly on each Interest Payment Date during such period, together with any incremental amount of accrued interest to the extent interest accrues at the Default Interest Rate, shall be paid in kind and added to the principal amount of the Loan then outstanding on the Maturity Date, unless otherwise paid in cash on or prior to such date; provided that such amount described in Section 3(b)(ii) shall not be added to the principal amount of the Loan, but instead shall be payable in cash on the earlier of (x) the Summit II PSA Closing Date and (y) the Maturity Date.
Following any increase in the outstanding principal amount of the Loan as a result of a payment in kind under Section 3(a)(ii) and Section 3(b)(ii), the Loan will bear interest on such increased principal amount from and after the date of such payment in kind. Interest shall be computed on the basis of a 365-day (or 366-day, as applicable) year, counting the actual number of days elapsed. The Borrower and the Lender hereby agree to the interest and amortization payment schedule attached hereto as Annex A, subject to any periodic prepayments that may be paid hereunder by the Borrower.
4. Default Interest. Notwithstanding the above, upon the occurrence of an Event of Default under the Loan, the Loan shall immediately and automatically begin to bear interest at the applicable rate pursuant to Section 3 above, plus two percent (2.0%) (such rate, the “Default Interest Rate”), until such Event of Default is cured or waived in writing by Lender.
5. Payments. All payments of principal and interest on the Loan that are to be paid in cash shall be paid to Lender in immediately available funds, to such account as Lender may specify in writing. All payments made by the Borrower hereunder shall be applied first to all costs incurred by Lender which are to be reimbursed or otherwise paid by the Borrower pursuant to the terms hereof, second to interest accrued through the date of such payment, and then in satisfaction of outstanding principal. In each case unless otherwise directed by the Borrower, all principal payments shall be applied in direct order of amortization and maturity. If all or any portion of the principal and interest owed pursuant to the Loan is due and payable on a day that is not a Business Day, such time for payment shall be extended to the next succeeding Business Day. “Business Day” means a day on which banks are not required or authorized by law to close in New York City.
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6. Optional Note. The Lender may request that the Loan be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to the Lender a promissory note payable to the Lender and in customary form reasonably acceptable to the Lender. Thereafter, the portion of the Loan evidenced by such promissory note(s) and interest thereon shall at all times (including after assignment pursuant to Section 13) be represented by a promissory note in such form payable to the payee(s) named therein. Upon satisfaction in full of the outstanding principal amount of the Loan, interest thereon and any other amounts due hereunder, the Lender will promptly return the promissory note to the Borrower for cancellation.
7. Authority. The Borrower is a corporation duly organized and validly existing under the laws of the state of its formation. The Borrower is authorized to do business and is in good standing in all other states and jurisdictions where the ownership of property or the nature of the business transacted by it, makes such qualification necessary, except where the failure to be so authorized would not reasonably be expected to result in a material adverse effect on the business, assets or financial condition of the Borrower and its subsidiaries, taken as a whole (a “Material Adverse Effect”). The Borrower has all requisite power and authority to execute and deliver this Agreement and each document attached hereto as an exhibit, any promissory note or other document related hereto (collectively, the “Loan Documents”) and to perform its obligations under such Loan Documents and to own its property and carry on its business. The Loan Documents to which the Borrower is party on the date hereof have been duly authorized by all requisite corporate action on the part of the Borrower and duly executed and delivered by authorized officers of the Borrower. Each of the Loan Documents to which the Borrower is a party on the date hereof constitutes a valid obligation of the Borrower, legally binding upon and enforceable against the Borrower in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity.
8. Actions Pending. There is no action, suit, investigation or proceeding pending or, to the actual knowledge of the Borrower, threatened in writing against the Borrower, or any properties, assets or rights of the Borrower, by or before any court, arbitrator or administrative or governmental body that would reasonably be expected to result in a Material Adverse Effect if resulting in a decision not in favor of the Borrower.
9. Conflicts. Neither the execution nor delivery of this Agreement, nor performance of the Borrower’s obligations under this Agreement in accordance with its terms, will conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, or result in any violation of, or result in the creation of any lien upon any properties or assets of Borrower, the charters or by-laws or other organizational documents of Borrower or, except to the extent it would not reasonably be expected to result in a Material Adverse Effect, any award of any arbitrator or any agreement, instrument, order, judgment, decree, statute, law, rule or regulation to which the Borrower, or any properties or assets of Borrower is subject.
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10. Public Filings. Since the date of its most recently filed quarterly report on Form 10-Q, Borrower is not aware of any circumstance or event which has occurred that has not been previously disclosed in the Borrower’s public filings or otherwise disclosed to the Lender and that would be reasonably likely to result in a Material Adverse Effect or a material adverse effect on its ability to repay the loan evidenced by this Agreement.
11. Default and Acceleration. The occurrence of any of the following shall constitute an event of default under this Agreement (each an “Event of Default”):
(a) the Borrower fails to make any payment of principal when due and payable under this Agreement or fails to make any payment of interest within 5 Business Days of when such payment is due and payable under this Agreement;
(b) the Borrower otherwise defaults in the performance or compliance with the provisions of this Agreement and such default continues for thirty (30) days after the Borrower receives written notice of such default from Lender;
(c) Borrower’s failure to maintain its status as a real estate investment trust;
(d) if an Event of Default as defined in the Existing Loan Agreement occurs and remains continuing;
(e) any proceeding shall be instituted by or against the Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking liquidating, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently contested in good faith, such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or the court in such proceeding shall have entered a decree or order granting the relief sought in such proceeding (an “Insolvency Event of Default”); or
(f) the Borrower dissolves or is dissolved, or ceases business operations.
Upon an Event of Default, other than an Insolvency Event of Default, then the unpaid balance of the Loan shall, at the option of Lender, mature and then become immediately payable. The unpaid balance hereunder shall automatically mature and become immediately payable in the case of an Insolvency Event of Default. Any election to accelerate the outstanding balance of the Loan shall not preclude any other rights or remedies that Lender may have at law or equity, and the non-exercise of such right to accelerate the outstanding balance of the Loan, as set forth above, shall not constitute a waiver or the right to do so at any future time or for any other Event of Default.
12. Costs and Expenses. Borrower shall pay on demand all of the reasonable costs and expenses (including reasonable attorneys’ fees and disbursements of external counsel to Lender) which Lender incurs in connection with the preparation, negotiation and collection and enforcement of this Agreement.
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13. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not assign any of its rights hereunder without the written consent of the Lender, which may be withheld in Lender’s sole discretion. The Lender shall be permitted to assign any of its rights hereunder without the written consent of the Borrower; provided that the Lender shall not be permitted to make any such assignment to the Borrower’s competitors as listed in Annex B or any of their respective affiliates, except in connection with a merger, consolidation, or sale of all or substantially all the assets of the Lender with or to any such person.
14. Complete Agreement. This Agreement (together with any notes provided hereunder) embodies the complete agreement and understanding among the parties, and supersedes and preempts any prior understanding, agreements or representation by or among the parties, written or oral, which relate to the subject matter hereof.
15. Amendment; Waiver. The provisions of this Agreement (and any notes provide hereunder) may be amended, modified or waived only with the prior written consent of the Borrower and Lender, and no course of conduct or course of dealing or failure or delay by any party hereto in enforcing or exercising any of the provision of this Agreement shall affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
16. No Accord and Satisfaction. No marking of “paid in full” or similar language on any check or other form of payment shall be deemed to cause an accord and satisfaction of this Agreement if such payment is cashed or otherwise collected by Lender.
17. Governing Law. This Agreement and the Loan shall be governed and interpreted in accordance with the laws of the State of New York.
18. Submission to Jurisdiction. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York and any appellate court thereof, in any action or proceeding arising out of or relating to this Agreement and the Loan, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party hereto irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in any court referred to in this Section. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
19. Excess Interest. If interest payable under this Agreement is in excess of the maximum permitted by law, then the interest chargeable hereunder shall be reduced to the maximum amount permitted by law and any excess over the maximum amount permitted by law shall be credited to the principal amount of the Loan and applied to the same and not to the payment of interest.
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20. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
21. Notices. All notices, demands or requests made pursuant to, under or by virtue of this Agreement or the Loan must be in writing and shall be and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be (i) personally delivered, (ii) delivered by express mail, Federal Express or other comparable overnight courier service, (iii) telecopied, with telephone confirmation within one Business Day or (iv) mailed to the party to which the notice, demand or request is being made by certified or registered mail, postage prepaid, return receipt requested, as follows (unless another address has been previously specified in writing):
Notices to Borrower:
American Realty Capital Hospitality Trust, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Proskauer Rose LLP
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq. and Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000; (000) 000-0000
Notices to the Lender:
Summit Hotel OP, LP
c/o Summit Hotel Properties, Inc.
00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx X-000
Xxxxxx, XX 00000
Attn: Xxxxx Xxx, Senior Vice President, General Counsel & Chief Risk Officer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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with a copy to:
Xxxxx, Xxxxx & Xxxxxx, LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly executed as of the day and year first above written.
| Borrower: | ||
| AMERICAN REALTY CAPITAL HOSPITALITY TRUST, INC. | ||
| By: | /s/ Xxxx X. Xxxxxx | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Authorized Signatory | |
| lENDER: | |
| SUMMIT HOTEL OP, LP | |
| a Delaware limited partnership | |
| By: Summit Hotel GP, LLC, | |
| a Delaware limited liability company | |
| Its: General Partner | |
| By: Summit Hotel Properties, Inc., | |
| a Maryland corporation | |
| Its: sole member |
| By: | /s/ Xxxxx Xxx | |
| Name: | Xxxxx Xxx | |
| Title: | Executive Vice President & General Counsel |
Annex A
Debt Service Payment Schedule
Annex B
Competitor List
