LOAN MODIFICATION AGREEMENT
EXHIBIT 10.21
This LOAN MODIFICATION AGREEMENT (the “Modification”) is entered into as of December ,
2008, by and between GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation (“Lender”), whose address is 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000-0000, and SUMMIT HOTEL PROPERTIES, LLC, a South Dakota limited liability company
(“Borrower”), whose address 0000 X. Xxxxxxxxx Xxx., Xxx. 0, Xxxxx Xxxxx, XX 00000.
PRELIMINARY STATEMENT
A. Pursuant to the loan documents described on Exhibit A (as previously amended and modified,
the “Loan Agreement”) between Lender and Borrower, Lender has extended loans to Borrower
(collectively, the “Loan”). The Loan is evidenced by one or more promissory notes (collectively,
the “Note”). The Loan Agreement, the Note and the other documents and instruments currently
evidencing and securing the Loan are referred to collectively as the “Current Loan Documents.” The
Current Loan Documents, as modified by this Modification, are referred to as the “Loan Documents”
and references in the Current Loan Documents and this Modification to the “Loan Documents,” or any
of them, shall be deemed to be a reference to such Loan Documents, as modified by this
Modification.
B. Borrower has requested that Lender modify the Loan and the Current Loan Documents as
provided in this Modification, and Lender is willing to so modify the Loan and the Current Loan
Documents, subject to the terms and conditions set forth in this Modification. This modification is
necessary and subject to the following:
| 1. | Summit did not meet the completion deadline set forth in Section 2 of the Disbursement Agreement dated August 15, 2007. | ||
| 2. | Summit did not meet the completion deadline set forth in the Disbursement Agreement due to water sprinkler damage which occurred on the Premises. | ||
| 3. | The expected completion date of the Premises is now December 18, 2008. | ||
| 4. | Final draws under the Disbursement Agreement will occur on or before February 27, 2009. | ||
| 5. | Summit will convert to permanent financing in accordance with the Amended and Restated Promissory Note no later than February 27, 2009. |
C. Capitalized terms used in this Modification and not otherwise defined in this Modification
shall have the meanings given to those terms in the Loan Agreement.
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower, Guarantors and Lender agree as follows:
1. Accuracy of Preliminary Statement; Effective Date. Borrower acknowledges the
accuracy of the Preliminary Statement and the parties agree that the Preliminary Statement is a
part of this Modification. Borrower also acknowledges and agrees that the information set forth on
Exhibit A is complete and correct. The modifications of the Loan Documents and the obligations of
Lender pursuant to this Modification will be effective on the date that Lender determines that the
conditions precedent set forth in this Modification have been satisfied in full (such date, the
“Effective Date”).
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Baton Rouge, Louisiana |
2. Modification of Current Loan Documents.
| (a) | DISBURSEMENT AGREEMENT |
| i. | The terms of the Disbursement Agreement contained in Section 1 entitled Certain Defined Terms is hereby modified as follows: |
| (1) | “Completion Date” means the date of the opening of the Premises as a Cambria Suites hotel. Such date shall be no later than December 18, 2008. |
| ii. | The terms of the Disbursement Agreement contained in Sub-Sections (a) of Section 2 entitled Construction of Improvements is hereby modified as follows: |
| (1) | Borrower shall (i) construct the Improvements or cause the Improvements to be constructed in good and workmanlike manner and substantially in accordance with the Contract Documents, (ii) commence construction no later than the thirtieth day after the date of this Agreement and (iii) once construction of the Improvements has commenced, pursue such construction diligently to completion and complete such construction no later than December 18, 2008. |
| (b) | INTERIM PROMISSORY NOTE |
| i. | The terms of the Interim Promissory Note shall be modified as follows: |
| (1) | “Maturity Date” means February 27, 2009; provided, however, the Maturity Date may be extended, at the sole discretion of the Lender, as applicable, in the Amended and Restated Note (as defined in the Interim Promissory Note) to be the first day of the month immediately following the month in which the tenth anniversary of the Final Disbursement occurs. |
3. Borrower Representations, Warranties and Covenants. As additional consideration to
and inducement for Lender to enter into this Modification, Borrower represents and warrants to and
covenants with Lender as follows:
(a) Representations and Warranties. Each and all representations and warranties of
Borrower in the Current Loan Documents are and will continue to be accurate, complete and correct.
The representations and warranties in this Modification are true, complete and correct as of the
date set forth above, will continue to be true, complete and correct as of the consummation of the
modifications contemplated by this Modification, and will survive such consummation.
(b) No Defaults. Borrower is not in default under any of the Loan Documents, nor has
any event or circumstance occurred that is continuing that, with the giving of notice or the
passage of time, or both, would be a default or an event of default by Borrower under any of the
Loan Documents.
(c) No Material Changes. There has been no material adverse change in the financial
condition of Borrower, Guarantors or any other person whose financial statement has been delivered
to Lender in connection with the Loan from the most recent financial statement received by Lender
from Borrower, Guarantors or such other persons.
(d) No Conflicts; No Consents Required. Neither execution nor delivery of this
Modification nor fulfillment of or compliance with the terms and provisions hereof will conflict
with, or result in a breach of the terms or conditions of, or constitute a default under, any
agreement or instrument to which
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Asset No: 8004-8031 | |
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Baton Rouge, Louisiana |
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Borrower is a party or by which Borrower may be bound. No consents, approvals or authorizations are
required for the execution and delivery of this Modification by Borrower or for Borrower’s
compliance with its terms and provisions.
(e) Claims and Defenses. Borrower has no claims, counterclaims, defenses, or set-offs
with respect to the Loan or the Loan Documents. Lender and its predecessors in interest have
performed all of their obligations under the Loan Documents, and Borrower has no defenses, offsets,
counterclaims, claims or demands of any nature which can be asserted against Lender or its
predecessors in interest for damages or to reduce or eliminate all or any part of the obligations
of Borrower under the Loan Documents.
(f) Validity. This Modification and the other Loan Documents are and will continue to
be the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance
with their terms.
(g) Valid Existence, Execution and Delivery, and Due Authorization. Borrower validly
exists under the laws of the State of its formation or organization and has the requisite power and
authority to execute and deliver this Modification and to perform the Loan Documents. The execution
and delivery of this Modification and the performance of the Loan Documents have been duly
authorized by all requisite action by or on behalf of Borrower. This Modification has been duly
executed and delivered on behalf of Borrower.
(h) Ratification of Current Loan Documents and Collateral. The Current Loan Documents,
as modified by this Modification, are ratified and affirmed by Borrower and shall remain in full
force and effect. Except to the extent, if any, specifically provided for in this Modification: (i)
the liens of Lender on and security interests in any and all real or personal property (tangible or
intangible) granted as security for the Loan shall continue in full force and effect and none of
such property is or shall be released from such liens and security interests; and (ii) this
Modification shall not constitute a waiver of any rights or remedies of Lender in respect of the
Loan Documents.
4. Release. Borrower fully, finally and forever releases and discharges Lender and
each Lender Party from any and all actions, causes of action, claims, debts, demands, liabilities,
obligations and suits, of whatever kind or nature, in law or equity, that Borrower has or in the
future may have, whether known or unknown (i) in respect of the Loan, this Modification, the other
Loan Documents or the actions or omissions of Lender in respect of the Loan or the Loan Documents
and (ii) arising from events occurring prior to the date of this Modification. BORROWER EXPRESSLY
WAIVES ANY PROVISION OF STATUTORY OR DECISIONAL LAW TO THE EFFECT THAT A GENERAL RELEASE DOES NOT
EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN SUCH PARTY’S FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY SUCH PARTY, MUST HAVE MATERIALLY AFFECTED
SUCH PARTY’S SETTLEMENT WITH THE RELEASED PARTIES, INCLUDING PROVISIONS SIMILAR TO SECTION 1542 OF
THE CALIFORNIA CIVIL CODE, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
5. Fees and Costs. Contemporaneously with the execution and delivery of this
Modification, Borrower will pay the following amounts to Lender, in addition to any other amounts
required to be paid to Lender pursuant to this Modification: all out of pocket expenses incurred by
Lender or any of its affiliates in connection with this Modification, including reasonable
attorneys’ fees.
6. Conditions Precedent. The obligations of Lender to consummate the transactions
contemplated by this Modification are subject to satisfaction of the following conditions
precedent, each in the sole and absolute discretion of Lender:
(a) Borrower Performance. Borrower has duly executed and delivered this Modification
and Borrower has paid all fees and other amounts and performed all obligations required under this
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Contract No: 32775 | |
10/20/08
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Asset No: 8004-8031 | |
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Baton Rouge, Louisiana |
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Modification to be paid and performed contemporaneously with the execution and delivery of this
Modification.
(b) Representations and Warranties. The representations and warranties of Borrower
contained in this Modification and any other document or instrument expressly contemplated by this
Modification shall be true and correct in all material respects.
(c) Existence and Authority. If requested by Lender, Borrower shall have provided
Lender with evidence that Borrower is in good standing under the laws of their state of formation
and in each state in which any collateral for the Loan is located and that the person or persons
executing this Modification on behalf of Borrower is duly authorized to do so.
(d) No Default. No event or circumstance shall have occurred that is continuing, that,
with the giving of notice or the passage of time, or both, would be a default or an event of
default under any of the Loan Documents.
(e) Lien Priority. Lender shall have received such UCC search results, title reports
and title insurance endorsements as Lender shall reasonably require evidencing the continuing first
priority of all of Lender’s liens in the collateral described in the Loan Documents.
(f) Insurance. Borrower shall have provided Lender with evidence satisfactory to
Lender that all insurance required by the Loan Documents is in full force and effect.
7. Entire Agreement; Change; Discharge; Termination or Waiver. The Current Loan
Documents, as modified by this Modification, contain the entire understanding and agreement of
Borrower and Lender in respect of the Loan and supersede all prior representations, warranties,
agreements and understandings. No provision of the Loan Documents may be changed, discharged,
supplemented, terminated or waived except in a writing signed by Lender and Borrower.
8. No Limitations. The description of the Loan Documents contained in this
Modification is for informational and convenience purposes only and shall not be deemed to limit,
imply or modify the terms or otherwise affect the Loan Documents.
9. Time of the Essence. Time is of the essence in this Modification.
10. Binding Effect. The Loan Documents, as modified by this Modification, shall be
binding upon, and inure to the benefit of, Borrower and Lender and their respective successors and
assigns.
11. Further Assurances. Borrower shall execute, acknowledge (as appropriate) and
deliver to Lender such additional agreements, documents and instruments as reasonably required by
Lender to carry out the intent of this Modification.
12. Counterpart Execution. This Modification may be executed in one or more
counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same document. Signature pages may be detached from the counterparts and attached to a
single copy of this Modification to physically form one document.
13. Limitation of Liability for Certain Damages. In no event shall any Lender Party be
liable to Borrower or any of its respective affiliates (collectively the “Credit Parties” and
individually a “Credit Party”) on any theory of liability for any special, indirect, consequential
or punitive damages (including any loss of profits, business or anticipated savings). BORROWER AND
EACH OTHER CREDIT PARTY HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON (AND BORROWER SHALL CAUSE
EACH OF THE OTHER CREDIT PARTIES TO SO WAIVE, RELEASE, AND AGREE NOT TO XXX UPON) ANY SUCH CLAIM
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR
NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
GEFF smartDocs Form 6001
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Contract No: 32775 | |
10/20/08
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Asset No: 8004-8031 | |
phx/463004.3
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Baton Rouge, Louisiana |
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14. Jurisdiction and Service of Process.
(a) Submission to Jurisdiction. Any legal action or proceeding with respect to any
Loan Document shall be brought exclusively in the courts of the State of Arizona located in
Maricopa County or of the United States for the District of Arizona, and Borrower and each other
Credit Party accept for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts; provided, however, that nothing in this Modification shall
limit or restrict the right of Lender to commence any proceeding in the federal or state courts
located in the state in which property securing the Loan is located to the extent Lender deems such
proceeding necessary or advisable to exercise remedies available under any Loan Document. Lender,
Borrower and each other Credit Party hereby irrevocably waive any objection, including any
objection to the laying of venue or based on the grounds of forum non conveniens, that any of them
may now or hereafter have to the bringing of any such action or proceeding in such jurisdictions.
(b) Service of Process. Borrower and each other Credit Party hereby irrevocably waive
personal service of any and all legal process, summons, notices and other documents and other
service of process of any kind and consents to such service in any suit, action or proceeding
brought in the United States of America with respect to or otherwise arising out of or in
connection with any Loan Document by any means permitted by applicable law, including by the
mailing thereof (by registered or certified mail, postage prepaid) to the address of Borrower
specified on the signature page hereto (and shall be effective when such mailing shall be
effective, as provided therein). Borrower and each other Credit Party agree 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. Nothing contained in this subsection
shall affect the right of Lender to serve process in any other manner permitted by applicable law.
(c) Non-Exclusive Jurisdiction. Nothing contained in this Section shall affect the
right of Lender to serve process in any other manner permitted by applicable Requirements of Law or
commence legal proceedings or otherwise proceed against any Borrower Party in any other
jurisdiction.
15. Disclosure Authorization. Borrower authorizes its respective banks, creditors
(including trade creditors), vendors, suppliers, customers, and each franchisor to disclose and
release to Lender any and all information any of them may request from time to time regarding (a)
any depository, loan or other credit account of Borrower; (b) the status of each franchise
agreement; (c) the affairs and financial condition of Borrower; and (d) Borrower’s respective
business operations. Borrower expressly authorizes Lender to perform background, credit, judgment,
lien and other checks, searches, inspections and investigations and to obtain personal and business
credit reports and asset reports with respect to Borrower and to answer questions about their
respective credit experience with Borrower. The information obtained by the Lender pursuant to this
paragraph, together with all other information which any of the Lender now possess or in the future
may acquire with respect to Borrower, the Collateral, or the business operations of Borrower, is
referred to as the “Borrower Information.”
16. Permitted Disclosures. Borrower authorizes Lender to disclose Borrower Information
as follows: (a) to each franchisor or licensor of Borrower, upon written request by such franchisor
or licensor; (b) to any proposed transferee, purchaser, assignee, servicer, participant, lender,
investor, ratings agency, or other Person with respect to any proposed sale, assignment, or other
transfer by Lender of any of its rights in the Loan Documents, including servicing rights, or sale
or other disposition of any of the Collateral; (c) to any of the other Lender Parties or any
insurance or title company in connection with the transactions contemplated by the Loan Documents,
including any action, suit, or proceeding arising out of, in connection with, or relating to, this
Modification and the other Loan Documents, the Loan, or any other transaction contemplated hereby,
including in connection with the exercise of Lender’s rights and remedies; (d) to the extent such
information is or becomes available to a Lender Party from sources not known by such Lender Party
to be subject to disclosure restrictions; (e) to the extent disclosure is required by applicable
law or other legal process or is requested or demanded by any governmental authority; and (f) as
may otherwise be authorized in writing by Borrower. Borrower agrees that the disclosures permitted
by this Section and any other disclosures of Borrower Information authorized pursuant to any of the
Loan Documents may be made even though any such disclosure may involve the transmission or other
communication of
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Borrower Information from the nation of residence or domicile of such Borrower or a Lender Party to
another country or jurisdiction, and Borrower waives the provisions of any data privacy law, rule,
or regulation of any applicable governmental authority that would otherwise apply to the
disclosures authorized in this Section.
(a) WAIVER OF JURY TRIAL. LENDER, BORROWER AND EACH OTHER CREDIT PARTY, TO THE EXTENT
PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT
OF, IN CONNECTION WITH OR RELATING TO, THIS MODIFICATION, THE OTHER LOAN DOCUMENTS AND ANY OTHER
TRANSACTION CONTEMPLATED HEREBY AND THEREBY. THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING
WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.
17. Governing Law. The laws of the State of Arizona (without giving effect to its
conflicts of laws principles) shall govern all matters arising out of, in connection with or
relating to this Modification and the other Loan Documents, including its validity, interpretation,
construction, performance and enforcement; provided, however, that with respect to any married
individual signing this Modification 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.
[SIGNATURE PAGE FOLLOWS]
GEFF smartDocs Form 6001
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Contract No: 32775 | |
10/20/08
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Asset No: 8004-8031 | |
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EXHIBIT A
THE LENDER AND THE LOAN
| Current | ||||||||||||||||||||
| Balance of | ||||||||||||||||||||
| Current | Accrued | |||||||||||||||||||
| Date of | Principal | Interest and | ||||||||||||||||||
| Interim | Balance, as | Fees, as of | ||||||||||||||||||
| Contract | Promissory | of November | November | |||||||||||||||||
| # | Lender | Note | 24, 2008 | 24, 2008 | ||||||||||||||||
| Loan | 32775 | GENERAL ELECTRIC CAPITAL CORPORATION |
8-15-2007 | $ | 9,485,350.64 | $ | 30,832.93 | |||||||||||||
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10/20/08
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Asset No: 8004-8031 | |
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Baton Rouge, Louisiana |
Executed and effective as of the date first set forth above.
| LENDER: GENERAL ELECTRIC CAPITAL CORPORATION a Delaware corporation |
||||
| By: | ||||
| Name: | ||||
| Its Authorized Signatory | ||||
| BORROWER: SUMMIT HOTEL PROPERTIES, LLC a South Dakota limited liability company |
||||
| By: | /s/ Xxx Xxxxxx | |||
| Name: | XXX XXXXXX | |||
| Title: | CFO | |||
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