Ex 10.274
Ex 10.274
THIS LOAN AGREEMENT (this “Loan Agreement”) is made and entered into as of April 18, 2023 by and between LF3 RIFC, LLC, a Delaware limited liability company (“Propco Borrower”), LF3 RIFC TRS, LLC, a Delaware limited liability company (“Opco Borrower”, and together with Propco Borrower, jointly and severally, and individually or collectively as may be required, the “Borrower”) and ACCESS POINT FINANCIAL, LLC, a Delaware limited liability company (“Lender”).
Borrower has applied to Lender for a loan in the principal amount of $11,200,000 (the “Loan”) to fund certain refinancing costs and renovation costs at a 113-room hotel owned by Propco Borrower generally known as “Residence Inn by Marriott Fort ▇▇▇▇▇▇▇” and located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (said real property and improvements, together with all easements and other rights appurtenant thereto, the “Property”). ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have entered into this Loan Agreement to establish the terms and conditions of the disbursement of the Loan and the rights and obligations of Borrower with respect to the Loan and the Property.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants, agreements, and warranties hereinafter set forth and of the sum of Ten Dollars ($10.00) in hand paid by each party hereto to the other, ▇▇▇▇▇▇▇▇ agrees with ▇▇▇▇▇▇, and represents and warrants to Lender, and ▇▇▇▇▇▇ agrees with ▇▇▇▇▇▇▇▇, as follows:
ARTICLE 1 DEFINED TERMS AND RULES OF CONSTRUCTION
“Account Collateral” shall mean: (i) the Accounts, and all cash, checks, drafts, certificates and instruments, if any, from time to time deposited or held in the Accounts from time to time; (ii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of the foregoing; and (iii) to the extent not covered by clauses (i) - (ii) above, all “proceeds” (as defined under the UCC) of any or all of the foregoing.
“Accounts” shall mean, collectively any escrow accounts and reserve accounts established by the Loan Documents, including, without limitation, the Loan Account, Escrow Accounts, the Clearing Account, and the Cash Management Account.
“Accounts Receivable” has the meaning given to such term in the UCC. “Advance” means a disbursement by ▇▇▇▇▇▇, whether by journal entry, deposit to
the Loan Account or any other account of Borrower, check to third party or otherwise, of any of the proceeds of the Loan, funds held in the Hotel Capital Expenditure Reserve Account, the proceeds of any Balancing Deposit or Operating Sufficiency Balancing Deposit, and any insurance proceeds.
“Advance Request” is defined in Section 2.7(c) hereof.
Ex 10.274
“Affiliate” means, as to any Person, any other Person (i) who directly or indirectly controls, is controlled by, or is under common control with such Person, (ii) who is a
Ex 10.274
director, officer, manager, partner, member, shareholder, employee, or employer of such Person, or (iii) who is a member of the immediate family of such Person.
“Affiliated Property Manager” means any Property Manager that is an Affiliate of Borrower.
“Annual Debt Service” means the aggregate amount of the monthly installments of principal and interest payable on the then-outstanding principal balance of the Loan over a period of twelve (12) months, as such amount is amortized over a period of twenty-five
(25) years at the greater of (a) 10.00% per annum, and (b) the Applicable Rate (as such term is defined under the Note). If at any time of calculation the monthly payments under the Loan Documents are interest only, then the calculation of Annual Debt Service and the Debt Service Coverage Ratio shall be performed using imputed monthly payments of principal and interest based on a 25-year amortization schedule.
“Anti-Terrorism Law” means any Legal Requirements related to money laundering or financing terrorism, including, without limitation, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the “USA PATRIOT Act”) of 2001 (Title III of Pub. L. 107-56), The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”), 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b), and 1951-1959), the Trading
With the Enemy Act (50 U.S.C. §§ 1 et seq., as amended), and Executive Order 13224 (effective September 24, 2001).
“Applicable Period” means, as of any given date, the preceding twelve (12) consecutive calendar month period ending not more than thirty (30) days prior to such date.
“Appraisal” means a current third party appraisal of the value of the Property, commissioned by ▇▇▇▇▇▇ and prepared at the expense of Borrower by a duly licensed and qualified appraiser selected by ▇▇▇▇▇▇, which complies with all applicable Legal Requirements and the requirements of Lender and its internal appraisal review group, and which has been approved by ▇▇▇▇▇▇’s internal appraisal review group.
“Approved Capital Expenditures” means costs and expenses incurred by Borrower in connection with the Hotel Project located on Borrower’s Property in accordance with the Hotel Project Budget or as may otherwise be approved in good faith by ▇▇▇▇▇▇ from time to time.
“Assignment” means the Assignment of Leases and Rents of even date herewith executed by Borrower for the benefit of Lender with respect to the Property, as from time to time amended, replaced, restated, supplemented, or consolidated pursuant to the applicable terms thereof.
“Balancing Deposit” means a payment made or arranged by a Loan Party to cure or avoid a Balancing Event.
Ex 10.274
“Balancing Event” means Lender shall have determined in its good faith discretion that any amounts then held in the Hotel Capital Expenditure Reserve Account, Excess Cash Account and Cash Management Account that are available to Borrower for the payment of all of (1) the work comprising the Hotel Project (including all Hard and Soft Costs related thereto) that has not been completed, plus (2) all Interest Costs and Carry Costs projected by Lender to be payable through the Maturity Date, is less than the amount actually necessary (as determined by ▇▇▇▇▇▇ in its good faith discretion) to pay for the cost
Ex 10.274
of all such work comprising the Hotel Project (including all Hard and Soft Costs related thereto) that has not been completed through the date thereof, and all such Interest Costs and Carry Costs.
“Borrower” is defined in the preamble of this Loan Agreement and shall include any successor borrower of the Loan or any other Obligations from time to time, subject to the provisions of this Loan Agreement restricting the assignment or rights and the delegation of obligations hereunder.
“Borrower Lease” means any existing and future lease, sublease, rental agreement, or other occupancy agreement, whether oral or written and whether or not of record, with ▇▇▇▇▇▇▇▇ as tenant.
“Business Day” means a day that is not a public holiday and on which banks in Atlanta, Georgia, are customarily open for business.
“Carry Costs” means each of the following: (a) Taxes, ground rents (if applicable), condominium common charges (if applicable) or other charges, (b) premiums for the insurance policies required by the Mortgage, (c) Operating Expenses incurred in connection with the customary operation of the Property, (d) fees payable pursuant to the Franchise Agreement, and (e) fees payable pursuant to the Management Agreement.
“Cash and Cash Equivalents” shall mean, in the aggregate, all unrestricted or unencumbered (A) cash and (B) any of the following: (x) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by an agency thereof and backed by the full faith and credit of the United States; (y) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof which, at the time of acquisition, has one of the two highest ratings obtainable from any two (2) of Standard & Poor’s Corporation, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Investors (or, if at any time no two of the foregoing shall be rating such obligations, then from such other nationally recognized rating services as may be reasonably acceptable to Lender); (z) domestic certificates of deposit or domestic time deposits or repurchase agreements issued by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than
$1,000,000,000.00, which commercial bank has a rating of at least either AA or such comparable rating from Standard & Poor’s Corporation or ▇▇▇▇▇’▇ Investors Service, Inc., respectively; (aa) any funds deposited or invested by such Person in accounts maintained with Lender and which are not held in escrow for, or pledged as security for, any obligations of any Person; (bb) money market funds having assets under management in excess of $2,000,000,000 and (cc) any unrestricted stock, shares, certificates, bonds, debentures, notes or other instrument which constitutes a “security” under the Security Act of 1933 which are freely tradable on any nationally recognized securities exchange and are not otherwise encumbered by such Person.
“Cash Management Account” is defined in Section 2.7(a) hereof.
“Cash Management Agreement” is defined in Section 2.7(a) hereof.
Ex 10.274
“Cash Management Bank” shall mean any financial institution accepted by Lender as the Cash Management Bank, and shall initially mean Signature Bank, a New York state chartered bank insured by the Federal Deposit Insurance Corporation.
Ex 10.274
“Cash Management Period” shall mean each period commencing on the occurrence of a Cash Management Trigger Event and continuing until the earlier of (a) the payment date under the Note next occurring following the related Cash Management Trigger Event Cure, or (b) until payment in full of all principal and interest on the Loan and all other amounts payable under the Loan Documents in accordance with the terms and provisions of the Loan Documents.
“Cash Management Trigger Event” shall mean the occurrence of: (a) an Event of Default; (b) any Default that would give rise to an Event of Default under Section 7.1(b) or (c) of this Agreement; (c) a Franchise Trigger Event; or (d) a DSCR Trigger Event.
“Cash Management Trigger Event Cure” shall mean (a) if the Cash Management Trigger Event is caused solely by the occurrence of a Franchise Trigger Event: (i) Franchisor has either waived or accepted Borrower’s cure of such default or event of default under the Franchise Agreement, or the Franchise Agreement has been reinstated or a new Franchise Agreement reasonably acceptable to Lender has been entered into, and (ii) Borrower has provided evidence thereof to Lender; and (b) if the Cash Management Trigger Event is caused solely by the occurrence of an Event of Default hereof, Lender has waived or accepted a cure of such Event of Default; and (c) if the Cash Management Trigger Event occurs solely by virtue of the DSCR Trigger Event, then the subject DSCR Trigger Event may be cured either by (A) the Property achieving and sustaining a Debt Service Coverage Ratio of not less than 1.10 for six (6) consecutive months, or (B) prepayment of a portion of the Loan on or prior to the day that is ten (10) Business Days after the earlier of (i) delivery by Borrower of the financial statement indicating the DSCR Trigger Event has occurred, and (ii) the date such financial statement was required to be delivered pursuant to Section 6.3, and such Loan prepayment will be included in the calculation of Debt Service Coverage Ratio solely for the purposes of determining compliance with the Debt Service Coverage Ratio test set forth above at the end of such fiscal quarter (a “DSCR Cure Payment”); provided, that (x) there shall be no more than three (3) DSCR Cure Payments made in the aggregate after the Closing Date, (y) no DSCR Cure Payment shall be made in consecutive fiscal quarters and (z) the amount of any DSCR Cure Payment will be no greater than the amount required to cause there to be no DSCR Trigger Event; and if, after giving effect to the foregoing recalculations and subject to the foregoing limitations, no DSCR Trigger Event shall have occurred, no Cash Management Trigger Event shall have been deemed to have occurred as of the relevant date of determination with the same effect as though there had been no DSCR Trigger Event. For the avoidance of doubt, no DSCR Cure Payments shall be subject to a Prepayment Fee (defined in the Note); provided, however, that, each Cash Management Trigger Event Cure shall be subject to the following additional conditions: (i) no other Event of Default shall have occurred and be continuing under this Agreement or any of the other Loan Documents, (ii) a Cash Management Trigger Event Cure arising from a Franchise Trigger Event or the occurrence of a Default or an Event of Default, then a Cash Management Trigger Event Cure shall occur no more than a total of (two) (2) times in the aggregate during the term of the Loan, and (iii) Borrower shall have paid all of Lender’s reasonable expenses incurred in connection with such Cash Management Trigger Event Cure including, reasonable attorney’s fees and expenses. Notwithstanding anything herein to the contrary, if the Franchise Trigger Event is the result of the Franchisor requiring a property improvement plan or significant brand standard upgrades, then the Cash
Ex 10.274
Management Trigger Event Cure shall be deemed satisfied when such property improvement plan and/or significant brand standard upgrades are complete and approved as such by Franchisor.
Ex 10.274
“Change” is defined in Section 8.6 hereof.
“Change Order” means any amendment, supplement or other modification in any respect to any Hotel Project Documents which increases the costs thereunder.
“Clearing Account” is defined in Section 2.7(a)(i) hereof.
“Clearing Account Agreement” is defined in Section 2.7(a)(i) hereof.
“Clearing Account Bank” shall mean any financial institution accepted by Lender as the Cash Management Bank, and shall initially mean Signature Bank, a New York state chartered bank insured by the Federal Deposit Insurance Corporation.
“Closing Date” means the date of this Loan Agreement.
“Collateral” means the Property, each Lease, the Rents, and all other real and personal property now or hereafter furnished by Borrower or any other Person as security for the Obligations, as described in the Mortgage, this Loan Agreement, or any other Loan Document, whether the collateral encumbered thereby currently exists or is hereafter acquired or created.
“Comfort Letter” means any comfort letter by and among Borrower, any Franchisor and Lender, or any replacements thereof in form acceptable to Lender in ▇▇▇▇▇▇’s sole discretion.
“Commitment Fee” means a fee in the amount of $112,000.00.
“Complete” or “Completion” (and the lower-case version thereof) means, with respect to any of the work constituting the Hotel Project, in each case, to the extent applicable to such Hotel Project, that (a) such work is substantially completed in accordance with the Lender-approved Plans and Specifications, the Hotel Project Documents, the Loan Documents, and all Legal Requirements, subject only to the completion of minor punch-list items that do not limit the use or occupancy of any portion of the Property for its intended purposes, (b) if required by Legal Requirements, a final certificate of occupancy (or similar documentation as is customary in the relevant jurisdiction) has been obtained evidencing that full use of the Property for its intended purposes has been authorized by all applicable Governmental Authorities, (c) the Franchise Agreement is in full force and effect, neither Borrower nor the Property are in default thereunder, all franchise fees, reservation fees, royalties and other sums due thereunder have been paid in full and the Property has been approved by the Franchisor to operate as a Residence Inn by Marriott-branded hotel (or such other Marriott brand as Lender may approve in its sole discretion), (d) the Property is open to the public for business, and (e) subject to the lien contest rights contained herein, if any, the Property is free of all mechanics’, materialmen’s, and other similar liens (or such liens have otherwise been bonded over to Lender’s reasonable satisfaction), and (f) Lender has received copies of all material warranties from suppliers covering materials, equipment and appliances included within the applicable component of the work. The terms “Completed” and “Completion” (and lower-case versions thereof) shall have the same meaning when used in the Loan Documents.
Ex 10.274
“Completion Deadline” means May 31, 2024.
Ex 10.274
“Construction Contract” means each Design Professional Agreement, if any, each General Contractor Agreement, if any, and each material Trade Contract, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Loan Agreement.
“Contingent Liabilities” mean and include, without limitation, liabilities that are required to be recorded or disclosed under GAAP, pending or threatened litigation, lawsuits, guaranty obligations, pending or threatened investigations, warranty claims, and such other existing potential liabilities that, if adversely adjudicated against the subject Person, would have a material Adverse Effect on said Person.
“Control”, whether such term is capitalized or not and whether used as a noun or a verb in any tense, means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; and the terms “Controlled by” and “under common Control with” have the meanings correlative to the foregoing.
“Credit Card Company Notice Letter” is defined in Section 2.7(b)(ii) hereof.
“Debt” means, with respect to any Person at any date and without duplication, the sum of the following calculated in accordance with GAAP:
Ex 10.274
For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Debt is expressly made non-recourse to such Person.
“Debt Service” means all of the (i) interest, and (ii) current portion of principal due under the Note, if any.
“Debt Service and Operating Deficits Reserve” is defined in Section 2.8(k)(ii)
hereof.
“Debt Service and Operating Deficits Reserve Account” is defined in Section
2.7(a)(ii)(C) hereof.
“Debt Service Coverage Ratio” means, as of the date of calculation, the quotient, expressed as a decimal, of (i) the Net Operating Income for the specified period or if no period is specified, for the Applicable Period, divided by (ii) Annual Debt Service.
“Default” means the occurrence of any event or circumstance that, but for only the giving of any notice by Lender or the passage of any cure period (or both) required under the terms of this Loan Agreement or any other Loan Document, would constitute an Event of Default.
Ex 10.274
“Default Rate” is defined in the Note.
“Design Professional” means any architect, engineer, and/or other design professionals engaged by (or on behalf of) Borrower with respect to the design and/or engineering of the Hotel Project.
“Design Professional Agreement” means any agreement between Borrower and any Design Professional, each as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Loan Agreement.
“Design Professional Consent” means a consent agreement in form and content reasonably acceptable to Lender executed by any applicable Design Professional with respect to the related Design Professional Agreement.
“Document Protocols” is defined in the introduction to Article 9 of this Agreement.
“Draw Schedule” means the schedule of draws on the Hotel Capital Expenditure Reserve Account as described on Schedule 3 attached hereto and made a part hereof (as the same may be modified from time to time with the consent of Lender).
“DSCR Trigger Event” means beginning in the thirteenth (13th) month after Completion of the Hotel Project, the Debt Service Coverage Ratio is less than 1.00 to 1.00 as calculated by Lender on a trailing twelve (12) month basis.
“Environmental Indemnity Agreement” means the Environmental and Access Laws Indemnity Agreement of even date herewith executed by ▇▇▇▇▇▇▇▇ and Guarantors for the benefit of Lender with respect to the Property, as from time to time amended, replaced, restated, supplemented, or consolidated pursuant to the applicable terms thereof.
“Environmental Laws” is defined in the Environmental Indemnity Agreement. “Entitlement Costs” means the actual costs and expenses incurred by ▇▇▇▇▇▇▇▇ in
connection with obtaining the Hotel Project Permits for the Hotel Project, which costs and
expenses are described in the Hotel Project Budget.
“Equipment Loan Agreement” shall mean that certain Equipment Loan and Security Agreement between Opco Borrower and Lender evidencing a loan for, among other things, the acquisition of furniture, fixtures and equipment for the Hotel Project in the amount of $1,875,000.
“Escrow Account Bank” shall mean any financial institution selected by ▇▇▇▇▇▇, and shall initially mean ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A.
“Escrow Accounts” is defined in Section 2.7(a)(ii) hereof. “Event of Default” is defined in Section 8.1 hereof. “Excess Cash” is defined in Section 2.7(d) hereof.
Ex 10.274
“Excluded Rate Management Obligations” means with respect to Borrower or any Guarantor, any Rate Management Obligation incurred after the date hereof, if, and to
Ex 10.274
the extent that, such Rate Management Obligation, all or a portion of the guaranty of such Guarantor of, or all or a portion of the grant under this Loan Agreement or any Loan Document by Borrower or any Guarantor of a security interest to secure such Rate Management Obligation, is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Borrower or such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such grant becomes effective with respect to such Rate Management Obligation.
““Exit Fee” means, with respect to any repayment or prepayment of principal of the Loan, an amount equal to $112,000.00.
“First Extended Maturity Date” means May 4, 2026.
“First Extension Minimum DSCR Extension Requirement” shall have the meaning as set forth in Section 2.4 hereof.
“First Extension Term” is defined in Section 2.4(b) hereof.
“Franchise Agreement” shall initially mean that certain Residence Inn by Marriott Franchise Agreement, dated August 4, 2022 between the Franchisor and Opco Borrower, as may be amended, restated or replaced from time to time in accordance with the terms of this Agreement.
“Franchise Trigger Event” means the date that is (i) twelve (12) months prior to the then-current expiration of a Franchise Agreement, (ii) the earlier expiration or termination of such Franchise Agreement, unless simultaneously replaced with a replacement Franchise Agreement acceptable to Lender in its sole discretion or (iii) the date that Borrower enters into any property improvement plan or is required to perform a property improvement plan or brand standards upgrade by the Franchisor (excluding any property-improvement plan or brand standards upgrade intended to be Completed in connection with the Hotel Project).
“Franchisor” means, initially, Marriott International, Inc., a Delaware corporation, or any replacement franchisor acceptable to Lender in its sole and absolute discretion which enters into a Franchise Agreement for a Marriott brand hotel or a substitute brand acceptable to Lender in its good faith discretion with respect to the Property in accordance with the terms hereof.
“GAAP” means generally accepted accounting principles in the United States of America as of the date of the applicable financial report, consistently applied.
“General Contractor” means any Person selected by Borrower to serve as a general contractor with a valid contractor’s license in the State where the Property is located and that has been approved by ▇▇▇▇▇▇ and is bondable.
“General Contractor Draw” is defined in Section 2.8(u).
“General Contractor Agreement” means any agreement between Borrower and a contractor for the completion of the subject portion of the Hotel Project in accordance with the Plans and Specifications, in form and content acceptable in Lender’s sole and absolute, as the same may be amended, restated,
Ex 10.274
replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Loan Agreement.
Ex 10.274
“General Contractor Consent” means a consent agreement in form and content acceptable to Lender executed by each General Contractor with respect to the Construction Contract between Borrower and the General Contractor.
“Governmental Authority” means any court, board, agency, commission, office, or authority of any nature whatsoever for any governmental or quasi-governmental unit (federal, state, county, district, municipal, city, or otherwise), whether now or hereafter in existence having jurisdiction over Borrower, any Guarantor or the Property.
“Guarantor” and “Guarantors” means separately and collectively all present or future endorsers, guarantors, and sureties of the Obligations or any portion thereof, separately and collectively, including any individual which owns 10% of more of the voting equity interests of Borrower. As of the Closing Date, the Guarantors are ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
“Guaranty” means, collectively, that certain Guaranty of Payment, Carry and Completion of even date herewith executed by Guarantors for the benefit of Lender and any other agreement or instrument at any time executed by any Guarantor for the benefit of Lender with respect to the Obligations (other than the Environmental Indemnity and Access Agreement), as from time to time amended, replaced, restated, supplemented, or consolidated pursuant to the applicable terms thereof.
“Hard Costs” means, collectively, all costs and expenses set forth in the Hotel Project Budget which are denominated therein as “hard costs.”
“Hotel Capital Expenditure Reserve Account” is defined in Section 2.7(a) hereof.
“Hotel Project” means the renovation and Completion of the Property pursuant to a property improvement plan from Franchisor in accordance as described on Schedule 1 attached hereto and made a part hereof (as the same may be modified from time to time with the consent of Lender, not to be unreasonably withheld, conditioned or delayed), all in accordance in all material respects with the applicable Plans and Specifications that have been submitted to and approved by Lender, the Hotel Project Budget, and all Legal Requirements.
“Hotel Project Budget” means the budget of costs and expenses to be incurred in connection with the Completion of the Hotel Project by Borrower (including, without limitation, Hard Costs, Soft Costs and any Entitlement Costs) in form and substance approved by Lender, as the same may be modified from time to time in accordance with this Loan Agreement and which shall include a minimum ten percent (10%) contingency line item.
“Hotel Project Documents” means, collectively, all Construction Contracts, the Plans and Specifications, the Hotel Project Budget, the Hotel Project Permits, the Hotel Project Schedule, as any of the foregoing may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Loan Agreement.
“Hotel Project Permits” means, collectively, all authorizations, consents and approvals, licenses and permits given or issued by Governmental
Ex 10.274
Authorities which are required for the completion of the Hotel Project in accordance with all Legal Requirements
Ex 10.274
and the Plans and Specifications (if applicable), and for the performance and observance of all obligations and agreements of Borrower contained herein or in the other Loan Documents relating to the completion of the Hotel Project, and the ownership, rental, operation, use, or occupancy of the Hotel Project, including, without limitation, building permits, environmental permits, the approval of owners’ associations, architectural control committee, or other similar Persons, business licenses, zoning approvals and variances, liquor licenses, food and beverage service licenses, and licenses to conduct business, and all such other permits, licenses, and rights, as the same may be amended, replaced, supplemented, assigned or otherwise modified from time to time in accordance with the terms of this Loan Agreement and applicable Legal Requirements.
“Hotel Project Schedule” means the schedules for the projected progress of the completion of the Hotel Project in form approved by ▇▇▇▇▇▇, as the same may be modified from time to time in accordance with the terms hereof.
“Impositions” is defined in Section 4.10 hereof.
“Improvements” means all buildings, structures, fixtures, and other improvements now existing or hereafter constructed or installed on the Property.
“Indemnified Parties” is defined in Section 8.1 hereof.
“Insolvency Protection Proceeding” is defined in Section 7.1(b) hereof.
“Insurance Premium Account” is defined in Section 2.7(a) hereof.
“Interest Costs” means all unpaid interest due and payable on the outstanding principal balance of the Loan.
“Interest Rate Protection Agreement” is defined in Section 4.19(a) hereof. “Initial Equity Contribution” is defined in Section 5.19 hereof.
“Investor” has the meaning given to such term in Section 8.4(b) hereof.
“Lease” means any existing and future lease, sublease, rental agreement, or other occupancy agreement, whether oral or written and whether or not of record, for the use or occupancy of any portion of the Property and the Room Leases for the hotel operated at the Property, together with all amendments thereto and renewals and extensions thereof, and all guaranties with respect thereto; provided, however the term “Lease” shall not include any Borrower Lease.
“Legal Requirements” means, as the case might be, any one or more of all present and future laws, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations, and requirements, even if unforeseen or extraordinary, of every duly constituted Governmental Authority (but excluding those which by their terms are not applicable to and do not impose any obligation on Borrower, any Guarantor or the Property), including, without limitation, the requirements and conditions of any Permits and all covenants, restrictions, and conditions now or hereafter of record that is reasonably likely to be applicable to Borrower or the Property or to the use, manner of use, occupancy, possession,
Ex 10.274
operation, maintenance, alteration, repair, or reconstruction of the Property, even if compliance therewith (i) necessitates structural changes or improvements
Ex 10.274
(including changes required to comply with Access Laws) or results in interference with the use or enjoyment of the Property, or (ii) requires Borrower to carry insurance other than as required by the provisions of this Loan Agreement, any other Loan Document, or any Lease.
“Lender” is defined in the preamble of this Loan Agreement and shall include any successor holder of the Loan from time to time.
“▇▇▇▇▇▇’s Consultant” means any construction consultant engaged by ▇▇▇▇▇▇ in its good faith discretion, at Borrowers’ expense, to assist ▇▇▇▇▇▇ in connection with all or any portion of the Hotel Project, including ▇▇▇▇▇▇’s upfront plan/cost review and later ongoing completion/construction progress and loan draw reviews.
“Liquid Assets” shall mean shall mean Cash and Cash Equivalents.
“Loan” means the aggregate of all loans and extensions of credit to be made by Lender to or for the benefit of Borrower pursuant to the terms and conditions of this Loan Agreement, not to exceed Eleven Million Two Hundred Thousand Dollars ($11,200,000.00.)
“Loan Account” means the depository account established by Borrower at the Escrow Account Bank into which the proceeds of each Advance are to be deposited (other than Advances for the payment of interest on the Loan and other sums payable to Lender).
“Loan Agreement” means this Loan Agreement, as from time to time amended, replaced, restated, supplemented, restated, or consolidated pursuant to the applicable provisions hereof.
“Loan Commitment” means ▇▇▇▇▇▇’s commitment to make Advances under the Loan pursuant to the terms and conditions of this Loan Agreement, which commitment shall not exceed Eleven Million Two Hundred Thousand Dollars ($11,200,000.00).
“Loan Documents” means collectively this Loan Agreement, the Note, the Mortgage, the Assignment, the Guaranty, the Environmental Indemnity Agreement, the Clearing Account Agreement, the Cash Management Agreement, each acknowledgment of an assignment of any Interest Rate Protection Agreement (but excluding each Interest Rate Protection Agreement), and any other document now or hereafter executed by Borrower, Guarantor, or any other Person that evidences, relates to, is executed in connection with, or secures the Loan.
“Loan Party” means Borrower and Guarantor, separately and collectively. “Losses” means all claims, suits, liabilities (including, without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs, fees and expenses, diminutions in value, fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in settlement, or punitive damages, of whatever
Ex 10.274
kind or nature (including, but not limited to attorney’s fees and other costs of defense).
“Major Subcontractor” means a subcontractor awarded a subcontract in excess of
$250,000.00 (it being understood that multiple subcontracts with the same subcontractor shall be aggregated for purposes of this definition).
Ex 10.274
“Material Adverse Effect” means, with respect to any circumstance, act, condition, or event of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, or circumstance or circumstances, whether or not related, a material adverse change in or a material adverse effect upon any of (i) the business, operations, property, or condition (financial or otherwise) of any Loan Party, (ii) the present or future ability of any Loan Party to perform the Obligations for which it is liable under the terms of any Loan Document, (iii) the validity, priority, perfection or enforceability of this Loan Agreement or any other Loan Document or the rights or remedies of Lender under any Loan Document, or (iv) the value of, or Lender’s ability to have recourse against, the Property or any other Collateral.
“Maturity Date” means the Original Maturity Date or, if the term of the Loan is extended through the First Extension Term as provided herein, the First Extended Maturity Date, and if the term of the Loan is extended through the Second Extension Term, the Second Extended Maturity Date.
“Mechanic’s Lien” means the lien of mechanics, materialmen, laborers, and any other Person who might claim a statutory or common law lien against the Hotel Project or any portion thereof under the laws of the state in which the Hotel Project is located.
“Mortgage” means the Deed of Trust, Assignment of Leases and Rents, Assignment of Contracts, Security Agreement, and Fixture Filing dated of even date herewith executed by Borrower for the benefit of Lender, as the same might hereafter be amended, extended, replaced, supplemented, restated, or consolidated pursuant to the applicable provisions thereof.
“Net Operating Income” means, as of any date of calculation, the amount by which the Operating Revenues exceeds the Operating Expenses, as adjusted by Lender in accordance with its then current underwriting guidelines, as determined (and calculated) by Lender in good faith using “stabilized” pro forma Operating Revenues.
“Net Worth” means, as of any date of calculation, (i) the fair market value of the total assets of such Person (excluding goodwill, patents, trademarks, trade names, organization expense, treasury stock, unamortized debt discount and expense, deferred research and development costs, deferred marketing expenses, and other like intangibles) determined in accordance with GAAP, minus (ii) the total liabilities of such Person (including, without limitation, such Person’s Contingent Liabilities which have been called or become due, accrued and deferred income taxes, and any reserves against assets) determined in accordance with GAAP; provided, however, in no event shall any Person’s Net Worth be calculated to include the value of the Property or the value of any retirement plan or account that is protected from creditors.
“Note” means each and every promissory note evidencing ▇▇▇▇▇▇▇▇’s promise to repay the Loan or any portion thereof, with interest thereon, as the same may hereafter be amended, extended, renewed, replaced, supplemented, restated, or consolidated pursuant to the applicable provisions thereof.
Ex 10.274
“Notice of Commencement” means a notice of project commencement in the form and in the manner specified under the applicable law of the Property’s location.
Ex 10.274
“Obligations” means the aggregate of all principal and interest owing from time to time under the Note, and all expenses, charges, and other amounts from time to time owing under the Note, this Loan Agreement, or the other Loan Documents, and all covenants, agreements, and other obligations from time to time owing to, or for the benefit of, Lender pursuant to the Note, this Loan Agreement, and the other Loan Documents, and obligations of Borrower from time to time under any Interest Rate Protection Agreements.
“Operating Account” is defined in Section 2.7(b) hereof.
“Opco Borrower” shall have the meaning set forth in the introductory paragraph
hereof.
“Operating Agreement” means the operating agreement or limited liability
company agreement of Borrower, as amended, restated or modified from time to time as permitted under the terms of this Agreement.
“Operating Expenses” means the actual expenses incurred by Borrower with respect to the operation of the Property during the Applicable Period, computed in accordance with GAAP, including without limitation, utilities, ordinary repairs and maintenance, insurance premiums, license fees, property taxes and assessments, advertising and marketing expenses, franchise fees, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments, payments under a Borrower Lease, and other similar costs, and subject in either case to the following adjustments and qualifications: (A) Operating Expenses shall include a property management base fee in an amount equal to the greater of: (1) the actual fees payable under the Property Management Agreement during the Applicable Period; or (2) three percent (3.0%) of effective gross income from the Property during the Applicable Period;
(B) Operating Expenses shall include an annual capital replacement reserve in an amount equal to the greater of (a) the amount required under the Franchise Agreement, and (b) four percent (4%) of Operating Revenues for the Applicable Period; and (C) Operating Expenses shall not include non-cash expenses, such as depreciation, and Debt Service.
“Operating Lease” shall mean that certain lease agreement, dated as of the date hereof, by and among the Propco Borrower, as landlord, and Opco Borrower, as tenant, as same may be amended, modified and supplemented from time to time in accordance with the applicable provisions of this Agreement.
“Operating Lease Subordination Agreement” shall mean that certain Subordination of Operating Lease Agreement, dated as of the date hereof, between Lender and Opco Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Operating Revenues” means all income for Borrower for the Applicable Period, computed in accordance with GAAP, derived from the ownership and operation of the Property from whatever source, including, but not limited to, the Rents, Accounts Receivable, utility charges, escalations, service fees or charges, license fees, parking fees, rent concessions or credits, and other
Ex 10.274
required pass-throughs, but excluding sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment, insurance proceeds (other than business interruption or other loss of income insurance), condemnation awards, Security Deposits, interest on credit accounts, utility and other similar deposits, interest on credit accounts, interest on the Reserve Funds, and any
Ex 10.274
disbursements to Borrower from the Reserve Funds). Gross income shall not be diminished as a result of the Mortgage or the creation of any intervening estate or interest in the Property or any part thereof.
“Operating Statement” means each operating statement, including income and expense statement and statement of cash flows, to be delivered by Borrower to Lender with respect to the Property and with respect to Borrower, which shall be prepared in accordance with GAAP consistently applied throughout the periods covered by such statement and shall fairly present the financial condition of Borrower and the Property as of the date thereof and the results of operations and changes in financial position of Borrower and the Property for the periods then ended. Each Operating Statement shall be prepared on an accrual basis or, in the alternative, Borrower shall provide Lender all data necessary to constitute the adjustments necessary to convert such Operating Statement to an accrual basis Operating Statement.
“Operating Sufficiency Balancing Deposit” is defined in Section 2.7(f).
“Operating Sufficiency Date” shall mean the date on which Lender projects that the Property will first achieve a sustainable Debt Service Coverage Ratio of 1.10:1.00 or greater, as such date may be adjusted by Lender in good faith from time to time.
“Original Maturity Date” means May 4, 2025.
“Other Charges” shall mean all payments under Borrower Leases (if any), maintenance charges, assessments, impositions other than Taxes, and any other charges, now or hereafter levied or assessed or imposed against the Property or any part thereof.
“Payment Date” means each date a payment of principal or interest is due on the Loan pursuant to the terms of the Note.
“Permit” means each license, permit, certificate, approval, authorization, or registration that, under Legal Requirements, is required to be obtained from any Governmental Authority or any other Person with respect to the ownership, rental, operation, use, or occupancy of the Property, including, without limitation, building permits, environmental permits, the approval of owners’ associations, architectural control committee, or other similar Persons, business licenses, zoning approvals and variances, liquor licenses, food and beverage service licenses, and licenses to conduct business, and all such other permits, licenses, and rights.
“Permitted Encumbrances” means collectively (i) liens at any time existing in favor of Lender, (ii) statutory liens incurred in the ordinary course of business for the purchase of labor, services, materials, equipment, or supplies, or with respect to workmen’s compensation, unemployment insurance, or other forms of governmental insurance or benefits, which are not delinquent or are paid or bonded and removed of record in a manner satisfactory to Lender, (iii) liens for real property taxes, assessments, or governmental charges or levies for the current year, the payment of which is not delinquent, (iv) any other matter affecting title to the Property that appears as an exception to coverage in the Title Insurance Policy, and (v) such other title and survey exceptions hereinafter entered into that are otherwise approved by ▇▇▇▇▇▇ in writing.
Ex 10.274
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, and any Governmental Authority.
Ex 10.274
“Plans and Specifications” means each of the plans and specifications for the completion of the Hotel Project (including, without limitation, a description of the materials, equipment and fixtures necessary for the completion of the Hotel Project), and any other plans and specifications for the completion of the Hotel Project prepared or to be prepared by (or on behalf of) Borrower, including any other architectural, structural, foundation and elevator plans and specifications prepared by a Design Professional and any other mechanical, electrical, plumbing and fire protection plans and specifications prepared by any Person retained or to be retained by Borrower, the applicable Design Professional or General Contractor, approved in writing by ▇▇▇▇▇▇ and the Lender’s Consultant (such approval not to be unreasonably withheld, conditioned or delayed), in each case, as the same may be amended by Change Orders applicable thereto that are permitted under this Loan Agreement. The term “Plans and Specifications” shall include any property improvement plan for the Property provided or required by the Franchisor.
“Project Costs” means the costs and expenses of labor, materials, equipment, fixture, and personal property used or to be used for construction or renovation of the Improvements in accordance with the Plans and Specifications and all other costs and expenses in connection with the development, construction, and stabilization of the Hotel Project.
“Project Shortfall” is defined in Section 2.8(l) hereof “Prohibited Person” is defined in Section 3.18 hereof. “Prohibited Transfer” is defined in Section 6.3(a) hereof.
“Propco Borrower” shall have the meaning set forth in the introductory paragraph
hereof.
“Property” is defined in the Recitals to this Agreement.
“Property Management Agreement” means any agreement entered into by Borrower with respect to the management, operation, leasing, or maintenance of the Property, as approved in writing by Lender pursuant to the applicable provisions of this Loan Agreement, including, as of the Closing date, that certain Management Agreement dated as of August 3, 2022 between the initial Property Manager and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
“Property Manager” means the Person initially selected by Borrower to manage the Property pursuant to the Property Management Agreement, and any replacement property manager of the Property hereafter approved in writing by Lender in accordance with the applicable provisions of the Loan Documents. The initial Property Manager shall be NHS LLC d/b/a National Hospitality Services, a North Dakota limited liability company.
“Rate Management Obligations” means any and all obligations of Borrower to Lender, any Affiliate of Lender or any other third party, whether absolute, contingent, or otherwise and howsoever and whenever (whether now or hereafter) created, arising, evidenced. or acquired (including all renewals, extensions, and modifications thereof and substitutions therefore), under or in connection with (i) any and all Interest Rate Protection Agreements, and (ii) any
Ex 10.274
and all cancellations, buy-backs, reversals, terminations, or assignments of any Interest Rate Protection Agreements; provided that Rate Management Obligations shall exclude any Excluded Rate Management Obligations.
Ex 10.274
“Rents” means rental payments and Accounts Receivable due under the Leases (including room rents under Room Leases, revenues, accounts and Accounts Receivable derived from the occupancy of any guestroom at the Property).
“Replacement Reserve Account” is defined in Section 2.7(a) hereof.
“Replacement Reserve Fund” is defined in Section 2.7(g) hereof.
“Replacement Reserve Monthly Deposit” is defined in Section 2.7(g) hereof.
“Reporting Failure” is defined in Section 5.3 hereof.
“Replacements” is defined in Section 2.7(g) hereof.
“Required Financial Item” is defined in Section 5.3 hereof.
“Required Repair Fund” is defined in Section 2.7(h) hereof.
“Required Repairs Account” is defined in Section 2.7(a) hereof. “Required Repairs” is defined in Section 2.7(h) hereof.
“Reserve Funds” means collectively, the Debt Service and Operating Deficits Reserve, the Tax and Insurance Escrow Fund, the Replacement Reserve Fund, the Hotel Capital Expenditure Reserve Account, the Repairs Repair Fund, the Excess Cash Account, and any other reserve or escrow account established with the Cash Management Bank or the Escrow Account Bank under the Loan Documents from time to time.
“Retainage” is defined in Section 2.7(e) hereof.
“Risk-Based Capital Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Loan Agreement, including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United States, including transition rules, and any amendments to such regulations adopted prior to the date of this Loan Agreement.
“Room Leases” means Leases constituting daily or other periodic hotel room rentals and rentals of meeting, conference or banquet space in Borrower’s ordinary course of business.
“Sanctions” means sanctions administered or enforced by the US Department of the Treasury’s Office of Foreign Assets Control (OFAC), US Department of State, United Nations Security Council, European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Second Extended Maturity Date” means May 4, 2027.
“Second Extension Minimum DSCR Extension Requirement” shall have the meaning as set forth in Section 2.4(c) hereof.
“Second Extension Term” is defined in Section 2.4(c) hereof.
Ex 10.274
“Securities” has the meaning given to such term in Section 8.4(a).
“Security Deposits” means any and all security deposits from any tenant or occupant of the Property collected or held by Borrower or any Property Manager, other than such deposits made in connection with Room Leases.
“Security Documents” refers collectively to the Mortgage, the Assignment, this Loan Agreement, the Guaranty, and any other present or future Loan Document that is intended to secure the payment and performance of the Obligations or any portion thereof.
“Servicer” is defined in Section 8.10 hereof.
“Servicing Agreement” is defined in Section 8.10 hereof.
“Soft Costs” means, collectively, all costs and expenses set forth in the Hotel Project Budget which are denominated therein as “soft costs.”
“Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding equity having ordinary voting power to elect a majority of the board of directors or other managers of such Person, corporation, partnership, limited liability company or other entity is at the time owned by (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective of whether, at the time, equity of any other class or classes of such Person, corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency).
“Tax Account” is defined in Section 2.7(a) hereof.
“Tax and Insurance Escrow Fund” is defined in Section 2.7(e) hereof.
“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against the Property or part thereof.
“Third Extended Maturity Date” means May 4, 2028.
“Third Extension Minimum DSCR Extension Requirement” shall have the meaning as set forth in Section 2.4(d) hereof.
“Third Extension Term” is defined in Section 2.4(d) hereof.
“Title Insurance Policy” means an ALTA mortgagee’s title insurance policy to be issued by the a title insurance company acceptable to Lender in the amount of the Loan showing fee simple title to the Property to be vested in Borrower and insuring the Mortgage as a first lien on the Property, subject only to exceptions permitted by ▇▇▇▇▇▇, and otherwise in form and substance acceptable to Lender.
“Trade Contract” means any agreement, contract or purchase order between Borrower or an Affiliate of Borrower or General Contractor, on the one hand, and any Trade Contractor, on the other hand, pursuant to which such Trade
Ex 10.274
Contractor agrees to provide labor, materials, equipment and/or services in connection with the completion of the Hotel
Ex 10.274
Project, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Loan Agreement.
“Trade Contractor” means any Person that is a contractor, subcontractor, sub- subcontractor, supplier or provider of labor, materials, equipment and/or services in connection with the completion of the Hotel Project.
“UCC” means the Uniform Commercial Code as from time to time in effect in the State of Georgia; provided, however, that, in the event that, by reason of mandatory provisions of any Legal Requirements, any of the attachment, perfection or priority of Lender’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of Georgia, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.
“Unavoidable Delay” means the occurrence of an event that is beyond the reasonable control of Borrower or Guarantors and is of the kind or nature that prevents or delays Borrower from commencing or pursuing the Hotel Project, including, without limitation, acts of God, war, riots, civil insurrections, hurricanes, tornados, floods, other weather events beyond normal conditions as determined by NOAA, earthquakes, epidemics or plagues, acts or campaigns of terrorism or sabotage, interruptions to financial markets or to domestic or international transportation, trade restrictions, delays caused by any Governmental Authority, shortages of materials, natural resources, or labor, labor strikes, governmental prohibitions or regulations including unforeseen and administrative delays in obtaining building permits, and other unforeseen events beyond the reasonable control of Borrower.
| 1.2 | Rules of Construction. When used in this Loan Agreement or any other Loan Document, |
(i) references to a Person are, unless the context otherwise requires, also to such Person’s heirs, executors, legal representatives, successors, and assigns, as applicable, (ii) the words “hereof”, “herein”, “hereunder”, and comparable terms refer to the entire Loan Document in which such terms are used and not to any particular article, section, or other subdivision thereof or attachment thereto, (iii) references to any gender include, unless the context otherwise requires, references to all genders, and references to the singular include, unless the context otherwise requires, references to the plural, and vice versa, (iv) the words “shall” and “will” have equal force and effect, (v) references in a Loan Document to “Article,” “Section,” “paragraph” or another subdivision or to an attachment are, unless the context otherwise requires, to an article, section, paragraph, or subdivision of or an attachment to such Loan Document, (vi) all accounting terms not otherwise defined therein have the meanings assigned to them in accordance with GAAP, (vii) the words “include”, “includes”, and “including” shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by such words or words of like import, and (viii) any reference herein to a merger, transfer, consolidation, amalgamation, assignment, sale or disposition, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, assignment, sale or disposition, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).
Ex 10.274
Ex 10.274
and is not intended to indicate that this Loan Agreement or such other Loan Document was executed and delivered on said date by any party hereto.
| 2.4 | Payment of Principal and Interest. |
Ex 10.274
Mortgage, which endorsement brings the effective date of the policy to the effective date of the extension of the Loan, with no new exceptions or exclusions to the coverage afforded by such policy; (vii) Borrower and Guarantor shall have executed and delivered to Lender such documentation as Lender might reasonably require to evidence the extension of the Loan through the First Extension Term and the reaffirmation of the obligations of Borrower and Guarantor under the Loan Documents (to the extent a party thereto), as so extended, and (viii) Borrower has either (A) extended the term of the Interest Rate Protection Agreement until the First Extended Maturity Date, or (B) provided Lender funds sufficient to allow Lender to enter into a new Interest Rate Protection Agreement which expires on the First Extended Maturity Date, and which extension or new agreement is on the same terms set forth in Section 5.18 hereof and has the effect of capping the Benchmark (as defined in the Note) at a rate of Three Percent (3%) per annum.
(12) month period before such notice was provided (the “Second Extension Minimum DSCR Extension Requirement”); provided, however, that if the Property’s Net Operating Income does not support the achievement of the Second Extension Minimum DSCR Extension Requirement at the time of giving such notice (based on the trailing twelve (12) month period), Borrower shall prepay a portion of the principal balance of the Loan on or before the thirtieth (30th) day preceding the First Extended Maturity Date so as to cause the Property’s Net Operating Income to support the achievement of the Second Extension Minimum DSCR Extension Requirement (and amounts so prepaid shall not be reborrowed); (iv) Borrower shall have paid (A) all accrued interest as of the last day of the First Extended Maturity Date, and (B) an extension fee in the amount of fifty (50) basis points (i.e. 0.50%) of the principal amount outstanding under the Loan, which extension fee shall be deemed fully earned as of the commencement of the Second Extension Term; (v) there shall have been no Material Adverse Effect to the financial strength of any Guarantor, (vi) if then requested by ▇▇▇▇▇▇, Borrower shall have delivered to Lender, at no cost or expense to Lender, an endorsement to or reissuance of the existing title insurance policy insuring the Mortgage, which endorsement brings the effective date of the policy to the effective date of the extension of the Loan, with no new exceptions or exclusions to the coverage afforded by such policy; (vii) Borrower and Guarantor shall have executed and delivered to Lender such documentation as Lender might reasonably require to evidence the extension of the Loan through the Second Extension Term and the reaffirmation of the obligations of Borrower and Guarantor under the Loan Documents (to the extent a party thereto), as so extended, and (viii) Borrower has either (A) extended the term of the Interest Rate Protection Agreement until the Second Extended Maturity Date or (B) provided Lender funds sufficient to allow Lender to enter into a new Interest Rate Protection Agreement which expires on the Second Extended Maturity Date, and which extension or new agreement is on the same terms set forth in Section 5.18 hereof and has the effect of capping the Benchmark (as defined in the Note) at a rate of Three Percent (3%) per annum.
Ex 10.274
Second Extended Maturity Date: (i) Borrower shall have delivered written notice to Lender of its election to extend the term of the Loan through the Third Extension Term not more than ninety (90) days and not less than thirty (30) days prior to the Second Extended Maturity Date; (ii) no Default or Event of Default shall have occurred and be continuing as of the Second Extended Maturity Date or as of the date of the extension notice; (iii) Lender shall have determined in its good faith judgment that the Property has achieved a Debt Service Coverage Ratio of at least 1.30:1.00, using a 25-year amortization and based on the Net Operating Income for the most recent trailing twelve (12)-month period before such notice was provided (the “Third Extension Minimum DSCR Extension Requirement”); provided, however, that if the Property’s Net Operating Income does not support the achievement of the Third Extension Minimum DSCR Extension Requirement at the time of giving such notice (based on the trailing twelve (12)-month period), Borrower may prepay a portion of the principal balance of the Loan on or before the Second Extended Maturity Date so as to cause the Property’s Net Operating Income to support the achievement of the Third Extension Minimum DSCR Extension Requirement (and amounts so prepaid shall not be reborrowed); (iv) Borrower shall have paid (A) all accrued interest as of the last day of the Second Extended Maturity Date, and (B) an extension fee in the amount of fifty (50) basis points (i.e. 0.50%) of the principal amount outstanding under the Loan, which extension fee shall be deemed fully earned as of the commencement of the Third Extension Term; (v) there shall have been no Material Adverse Effect to the financial strength of any Guarantor, (vi) if then requested by ▇▇▇▇▇▇, Borrower shall have delivered to Lender, at no cost or expense to Lender, an endorsement to or reissuance of the existing title insurance policy insuring the Mortgage, which endorsement brings the effective date of the policy to the effective date of the extension of the Loan, with no new exceptions or exclusions to the coverage afforded by such policy; (vii) at the time of Borrower’s notice, Borrower must demonstrate to Lender’s satisfaction that the Property is performing relative to its competitive set in the area where it is located, (viii) Borrower and Guarantor shall have executed and delivered to Lender such documentation as Lender might reasonably require to evidence the extension of the Loan through the Third Extension Term and the reaffirmation of the obligations of Borrower and Guarantor under the Loan Documents (to the extent a party thereto), as so extended, and
(viii) Borrower has either (A) extended the term of the Interest Rate Protection Agreement until the Third Extended Maturity Date or (B) entered into a new Interest Rate Protection Agreement which expires on the Third Extended Maturity Date, and which extension or new agreement is on the same terms set forth in Section 5.18 hereof and has the effect of capping the Benchmark (as defined in the Note) at a rate of Three Percent (3%) per annum.
| 2.6 | Prepayments.. |
| (a) | Voluntary Prepayments. Subject to the terms and conditions of the Note and any |
Ex 10.274
Interest Rate Protection Agreement, Borrower may prepay up to ten percent (10%) of the outstanding principal of the Loan as set forth in the Note, including the payments of fees as set forth in Section V of the Note. Any prepayment shall be credited to installments of principal payable on the Loan in the inverse order of their maturity. The Loan is not a revolving credit facility, so Borrower may not re-borrow any principal amounts prepaid hereunder.
| (b) | Mandatory Prepayments. |
| (vii) | Each prepayment pursuant to subsection (i) above shall be applied |
(A) first to amounts due and payable with respect to the Loan other than principal and interest (but including interest at the Default Rate), and then (B) to accrued and unpaid interest, and then (C) to the outstanding principal balance of the Loan. All prepayments pursuant to subsection (i) above shall be accompanied by payments of fees as set forth in Section V of the Note.
| 2.7 | Cash Management. |
| (a) | Establishment of Accounts. |
Ex 10.274
| (b) | Deposits into Clearing Account. |
(i) Borrower represents, warrants and covenants that: (A) Opco Borrower shall, or shall cause Property Manager to, deposit all Operating Revenue and forfeited Security Deposits into the Clearing Account, (B) Opco Borrower shall instruct the Franchisor to deposit all Accounts Receivable for the Property and all other amounts and sums payable to Opco Borrower pursuant to its Franchise Agreement into the Clearing Account, (C) Opco Borrower shall deliver a notice substantially in the form of Exhibit A (each a “Credit Card Company Notice Letter”) hereto to all credit card companies, credit card processors, and other revenue sources, including, without limitation, travel agencies, to pay all Accounts Receivable (including, without limitation, credit card payments) and all other amounts and sums payable to them directly into the Clearing Account, (D) other than the Accounts, and Opco Borrower’s operating account with First International Bank & Trust, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇., ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (ABA No. ▇▇▇▇▇▇▇▇▇; Account No. 2501662378)
(the “Operating Account”), there be no accounts maintained by Borrower or any other Person into which revenues from the ownership and operation of the Property is directly deposited from payors, provided however that Borrower may maintain an account at a bank local to the location of the Property into which Borrower will make cash deposits, provided however that such account will sweep daily into the Clearing Account and shall at no time have a balance in excess of $50,000, and (E) no party (other than Lender and Opco Borrower) has or shall have a security interest or claim in or to the Accounts and/or the Account Collateral. Until deposited into the Clearing Account, any Operating Revenue from the Property and forfeited Security Deposits held by Borrower shall be deemed to be Collateral and shall be held in trust by it for the benefit, and as the property, of Lender and shall not be commingled with any other funds or property of Borrower.
Ex 10.274
Opco Borrower shall send copies of all Credit Card Company Notice Letters required to be delivered to credit card companies under this paragraph to Lender within two (2) Business Days of mailing such Credit Card Company Notice Letters to such credit card companies.
Ex 10.274
| (c) | Accounts, Generally. |
Ex 10.274
Agreement, the Clearing Account Agreement, the Cash Management Agreement and the Escrow Agreement, and the Accounts established hereunder; and
| (e) | Tax Account, Insurance Premium Account and Tax and Insurance Deposits. |
The amounts deposited pursuant to the foregoing (i) and (ii) are referred to herein collectively, the “Tax and Insurance Deposits”).
| (iv) | All such Tax and Insurance Deposits: |
Ex 10.274
payments and without any obligation arising for the payment of any interest thereon;
Ex 10.274
Operating Deficits Reserve Account. After the date the Property opens to the public for business, Monthly payments of Debt Service and all Carry Costs will be funded from Operating Revenues; provided, however, that if the Operating Revenues are inadequate to pay the monthly installments of Debt Service and all Carry Costs, Borrower may request that Lender fund the shortfall from the Debt Service and Operating Deficits Reserve Account. Lender will approve or disapprove ▇▇▇▇▇▇▇▇’s request if no Default or Event of Default then exists. Advances from the Debt Service and Operating Deficits Reserve Account for the payment of Debt Service, Carry Costs and the payment of Rate Management Obligations shall be made only to the extent that positive cash flow from the Property is insufficient to pay such accrued Debt Service, Carry Costs and Rate Management Obligations, notwithstanding that the Debt Service and Operating Deficits Reserve has not been fully disbursed by Lender. Borrower acknowledges and agrees that ▇▇▇▇▇▇ shall have no obligation to disburse funds from the Debt Service and Operating Deficits Reserve Account if there is an existing Default or Event of Default. For clarification, the existence of the Debt Service and Operating Deficits Reserve Account shall not relieve Borrower from its obligation to make all payments under the Note as and when due and payable and, if Lender disapproves the use of the funds in the Debt Service and Operating Deficits Reserve Account to pay Debt Service and Carry Costs due to the existence of a Default or Event of Default, or if there are insufficient funds in the Debt Service and Operating Deficits Reserve Account to make any such payments, Borrower shall remain responsible for and shall make all payments under the Note as and when due and payable. During the continuation of an Event of Default, Lender may in its sole discretion apply the funds in the Debt Service and Operating Deficits Reserve Account to payments of Debt Service and Carry Costs and other financing costs relating to the Loan or for any payment of Rate Management Obligations required to be made by Borrower under the Note or the other Loan Documents. If at any time the Debt Service and Operating Deficits Reserve Account is reduced to an amount that is less than twenty-five percent (25%) of the original Loan amount, then Borrower shall, within thirty
(30) days after written notice from Lender, deposit cash in the Debt Service and Operating Deficits Reserve Account in an amount sufficient to replenish the Debt Service and Operating Deficits Reserve to an amount not less fifty percent (50%) of the original Loan amount (each such deposit being an “Operating Sufficiency Balancing Deposit”). Once the Property achieves a Debt Service Coverage Ratio of 1.35 to 1.00 or greater based on a trailing twelve (12) month period (as demonstrated to the Lender’s good faith satisfaction), and provided that no Cash Management Period is in effect, Borrower shall no longer be required to replenish the Debt Service and Operating Deficits Reserve Account and all amounts remaining in the Debt Service and Operating Deficits Reserve Account shall be released to Borrower in accordance with separate instructions to be provided by Borrower.
| (g) | Replacement Reserve Account. |
Ex 10.274
Ex 10.274
Ex 10.274
disbursement for such unsatisfactory Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Borrower and to exercise any and all other remedies available to Lender upon an Event of Default hereunder.
(E) to execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (F) to prosecute and defend all actions or proceedings in connection with the Property or the rehabilitation and repair of the Property; and (G) to do any and every act which Borrower might do in its own behalf to fulfill the terms of this Agreement.
Ex 10.274
professional selected by ▇▇▇▇▇▇ and/or may require a copy of a certificate of completion by an independent qualified professional acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional.
(30) days after notice from Lender. Upon the occurrence of an Event of Default, Lender may use the Replacement Reserve Fund (or any portion thereof) for any purpose, including but not limited to completion of the Replacements, or for any other repair or replacement to the Property or toward payment of the Obligations in such order, proportion and priority as Lender may determine in its sole discretion. ▇▇▇▇▇▇’s right to withdraw and apply the Replacement Reserve Funds shall be in addition to all other rights and remedies provided to Lender under this Agreement and the other Loan Documents.
| (h) | Reserved. |
Ex 10.274
| (i) | Reserved. |
Ex 10.274
| (j) | Reserved. |
Ex 10.274
Cash Management Bank, or Escrow Account Bank or Lender to exercise and enforce its rights and remedies hereunder with respect to any Account or Account Collateral.
| 2.8 | Conditions to Loan Advances. |
Ex 10.274
been duly executed and delivered by ▇▇▇▇▇▇▇▇, Guarantors, and ▇▇▇▇▇▇, to the extent a party thereto;
Ex 10.274
Ex 10.274
permits necessary for the commencement of the Hotel Project under Legal Requirements have been obtained, and (v) all other Construction Documents are in proper form, are sufficient to complete all material parts of the work in connection with the Improvements covered thereby in a timely manner prior to the Completion Deadline, and the amounts of all subcontracts executed to date are in the aggregate in line with the amounts contained in the Hotel Project Budget and the Schedule of Values, and (b) addresses such other construction issues as Lender might reasonably request;
| (K) | The Operating Lease Subordination Agreement; |
Ex 10.274
Ex 10.274
| (iv) | Reserved; |
| (h) | Reserved. |
Ex 10.274
performed, (2) duplicative work for which an Advance has already been made, (3) liens filed and not subsequently bonded over, or (4) failure of Borrower or General Contractor to make payments to subcontractors for material or labor.
Ex 10.274
Ex 10.274
Hotel Project, including direct and indirect costs for the Hotel Project but for which payment has not been made and all non-construction costs, including interest accrued and to accrue on the Loan and any other sums due pursuant to the terms of this Loan Agreement (such condition being referred to herein as a “Project Shortfall”), then Borrower shall, within ten (10 Business Days after written notice from Lender, make an additional equity contribution to the Hotel Project in the amount of the Project Shortfall. Any such additional equity contribution shall be made in cash and deposited into the Loan Account (each a “Balancing Deposit”). Borrower hereby grants and conveys to Lender a security interest in the Balancing Deposit as additional security for the Obligations. Prior to disbursing any Advance under the Loan, Lender may advance all or a portion of the Balancing Deposit in payment of construction and non-construction costs. Upon the occurrence of an Event of Default, Lender may (but shall have no obligation to) apply all or any part of the Balancing Deposit against the unpaid Obligations in such order as Lender determines.
The proceeds of any Balancing Deposit shall be disbursed by Lender for the payment of Project Costs in accordance with terms and conditions of this Section 2.8 applicable to Advances under the Loan, and Lender shall not be obligated to make any Advance under the Loan until such time as the proceeds of any Balancing Deposit shall have been fully disbursed. Upon the occurrence of an Event of Default, Lender may (but shall have no obligation to) apply all or any part of any Balancing Deposit then held by Lender against the unpaid Obligations in such order as Lender determines.
(10) Business Days after submittal of an Advance Request. Advances will originate at Lender’s or Servicer’s main office located in Atlanta, Georgia (or such other place as Lender might designate from time to time) and shall be deposited into the Loan Account. Borrower will make withdrawals from the Loan Account only for the purpose of paying Project Costs included in an Advance Request approved by Lender and for no other purpose. Borrower shall furnish to Lender, upon ▇▇▇▇▇▇’s request, a list of all disbursements from the Loan Account, including all Persons to whom disbursements are made and the amounts thereof to each.
(i) all conditions to the Advance set forth in this Loan Agreement are satisfied, (ii) the completed the Hotel Project is in material conformity with the Plans and Specifications and Legal Requirements, (iii) no Default or Event of Default then exists, (iv) all representations and warranties of Borrower contained in this Loan Agreement and the other Loan Documents are true in all material respects as of the date of the Advance Request (other than those representations and warranties which are, by their terms, expressly limited to the date made or given), and (v) the proceeds of all prior Advances have been used by ▇▇▇▇▇▇▇▇ as provided in the Advance Requests submitted with respect thereto and in conformity with the terms and conditions of this Loan Agreement.
Ex 10.274
Ex 10.274
requested by ▇▇▇▇▇▇ or the Title Company, each subcontractor, materialman, or other Person who supplied labor or materials to, or performed work on, the Improvements, in form and content satisfactory to Lender, stating that all amounts due to such Persons have been paid in full (or upon the making of such Advance shall be paid in full);
(x) Other Items. Such other items, instruments, documents, and certificates as Lender or ▇▇▇▇▇▇’s Consultant might reasonably request with respect to the completion of the Improvements and the performance of the Obligations. ▇▇▇▇▇▇▇▇ agrees to instruct and authorize General Contractor and any other Design Professional to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇’s Consultant an electronic or physical copy of any and all construction related reports (e.g., concrete testing reports, etc.) as they become due hereunder.
Ex 10.274
all amounts due under the Loan Documents; and (ii) the Maturity Date. The Exit Fee hereunder shall be deemed to be earned by Lenders upon the funding of the Loan.
Borrower hereby represents and warrants to Lender as of the date hereof, with knowledge that Lender shall materially rely upon each of the following representations and warranties in entering into this Loan Agreement, as follows:
(ii) to execute and deliver this Loan Agreement and the other Loan Documents to which it is a party, to incur and perform the Obligations, and to carry out the transactions contemplated by this Loan Agreement and the other Loan Documents to which it is a party.
Ex 10.274
(i) conflicts with or result in (or will conflict with or result in) any breach or violation of any current Legal Requirement enacted or issued by any Governmental Authority or other agency having jurisdiction over Borrower or any portion of the Property, or any judgment or order applicable to Borrower, or to which Borrower or any portion of the Property is subject, (ii) conflicts with or result in (or will conflict with or result in) any material breach or violation of, or constitute a default under, any of the terms, conditions, or provisions of Borrower’s organizational documents, the Franchise Agreement, the Property Management Agreement, any Permits, any indenture, existing agreement, or other instrument to which Borrower is a party, or to which Borrower or any portion of the Property is subject, (iii) result in or require (or will result in or require) the creation of any lien on all or any portion of the Property or any other Collateral, except for the Permitted Encumbrances, or (iv) require (or will require) the consent or approval of any creditor of Borrower, any Governmental Authority, or any other Person except such consents or approvals that have already been obtained.
| 3.8 | Non-Foreign Person.Borrower is not a “foreign person” within the meaning of |
§ 1445(f)(3) of the Internal Revenue Code.
Ex 10.274
Ex 10.274
Property (including any contract, lease, or agreement for the provision of property management services, cable television services or equipment, gas, electric or other utilities, security services or equipment, laundry services or equipment or telephone services or equipment).
(i) conducts any business or engages in making or receiving any contribution of goods, services, or money to or for the benefit of any Person, or in any country or territory, that is the subject of any Sanctions, (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any Anti-Terrorism Law, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.
Ex 10.274
drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components) is in good condition, order and repair in all material respects. Except as set forth in the Property Condition Report, there exists no structural or other material defects or damages in the Property, whether latent or otherwise, Borrower has not discovered or received written notice of any defects or inadequacies in the Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond. To Borrower’s knowledge, the Improvements at the Property have suffered no material casualty or damage which has not been fully repaired and the cost thereof fully paid.
Ex 10.274
development agreement in effect for the Property and no Person has any right or claim to any fees, commissions, compensation, or other remuneration in connection with the development.
| 3.33 | Construction Matters. |
Ex 10.274
declarations or filings with, or other actions in respect of or by, any Governmental Authorities that are required in connection with the execution, delivery and performance by ▇▇▇▇▇▇▇▇ of the Hotel Project Documents and all other agreements and instruments to be executed by ▇▇▇▇▇▇▇▇ in connection therewith and the construction and operation of the Hotel Project have been obtained or will be obtained when required for the then applicable stage of completion of the Hotel Project and are or will be in full force and effect.
Ex 10.274
as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of the obligations of Borrower).
Ex 10.274
Deficits Reserve, to be held and disbursed by ▇▇▇▇▇▇ as provided in Section 2.7(h)(ii) hereof. Under no circumstances shall Lender be obligated to excuse any cessation or discontinuation of the Hotel Project that persists for more than six (6) months, nor shall Lender be obligated to extend the Completion Deadline by more than six (6) months after the original Completion Deadline set forth in this Agreement.
(iii) shall contain a certification by Borrower stating the aggregate amount, including both increases and decreases, of all changes in Project Costs reflected in Change Orders for which ▇▇▇▇▇▇’s written approval has not been obtained or has not been required hereunder; and (iv) shall be certified by Borrower (which certification will be limited to Borrower’s actual knowledge and without warranty for design) to be in compliance with all Legal Requirements. Notwithstanding the foregoing, ▇▇▇▇▇▇’s consent will not be required with respect to any Change Order that (A) does not increase or decrease the Hotel Project Costs by more than $50,000 or, in combination with all prior Change Orders deemed approved by Lender hereunder, by more than $250,000; (B) does not materially change the structural components, the exterior elevations, or the façade of the Improvements, or materially lessen the quality of any materials used in the construction or equipping of the Improvements; (C) does not reduce the leasable area of the Improvements or otherwise diminish the revenue generation capabilities of the Property in any material respect; (D) complies in all material respects to Franchisor’s standards for the specific brand of the subject hotel; (E) does not cause the Hotel Project to be in violation of any Legal Requirements and has been approved by any Governmental Authority with jurisdiction over the Hotel Project, to the extent required under Legal Requirements; (F) is required due to field conditions not anticipated at the time of drafting the Plans and Specifications or the scope of the Construction Contract and such changes are not reasonably likely to materially, adversely affect the Improvements; or (G) does not extend the time for performance under the Construction Contract by more than ten (10) days (and in any event beyond the Completion Deadline), (a “Permitted Change Order”). In addition, ▇▇▇▇▇▇▇▇ shall deliver to Lender and ▇▇▇▇▇▇’s Consultant, upon receipt by Borrower from General Contractor, any Change Order proposed by General Contractor in writing on the American Institute of Architect’s Form G-701, regardless of whether Borrower intends to accept such Change Order.
Ex 10.274
its own behalf and on behalf of ▇▇▇▇▇▇, and (v) Borrower timely pays any final non-appealable award, judgment, or settlement in favor of such ▇▇▇▇▇▇▇▇’s Lien.
| 4.7 | Reserved. |
| 4.8 | Reserved. |
Ex 10.274
and during ▇▇▇▇▇▇▇▇’s normal business hours, the right to inspect and copy all documents pertaining to the Hotel Project.
4.12
Promotion. During the course of the Hotel Project and subject to all applicable laws, ordinances, rules, regulations and Permitted Encumbrances, Lender may erect and maintain a sign at the Hotel Project that identifies ▇▇▇▇▇▇ as construction lender for the Hotel Project. The size and content of the sign, and the location of the sign, are to be acceptable to Borrower in its reasonable discretion.
4.13
Fees Payable to Borrower or Its Affiliates. Borrower shall not pay any fees, commissions, or other compensation to Borrower, any Guarantor, or any Affiliate of Borrower or any Guarantor in connection with the Hotel Project other than pursuant to the Management Agreement or the Operating Agreement of Borrower without the prior written consent of Lender, which consent may be granted or denied by Lender in its good faith discretion.
| 5.2 | Leasing. |
Ex 10.274
Ex 10.274
form satisfactory to Lender, assigning and subordinating the Manager's interest in the Property and all fees and other rights of the manager pursuant to such Property Management Agreement to the rights of Lender. Upon an Event of Default, Opco Borrower at ▇▇▇▇▇▇'s request made at any time while such Event of Default continues, shall terminate the Property Management Agreement and replace the Property Manager with a Property Manager selected by ▇▇▇▇▇▇.
Ex 10.274
Borrower or any other Person with regard to the condition, maintenance, or operation of the Property, or relieve Borrower of any of its obligations. Borrower has selected all Persons furnishing services or materials to the Property. ▇▇▇▇▇▇ has no duty to supervise or to inspect the Property or any duty of care to Borrower or any other Person to protect against, or inform Borrower or any other Person of the existence of, negligent, faulty, inadequate, or defective design or construction of any building or other improvements comprising the Property.
(iii) all ground rentals, other lease rentals, and other sums, if any, owing by Borrower and becoming due under any lease or rental contract affecting the Property, and (iv) all utility charges that are incurred by Borrower for the benefit of the Property, or which might become a charge or lien against the Property for gas, electricity, water, sewer services, and the like furnished to the Property, and all other public or private assessments or charges of a similar nature affecting the Property or any portion thereof, whether or not the nonpayment of same might result in a lien thereon (collectively, “Impositions”). Borrower shall submit to Lender such evidence of the due and punctual payment of all such premiums, rentals, charges, and other sums as Lender might require and shall submit to Lender such evidence of the due and punctual payment of all such Taxes and Other Charges, assessments, and other fees and charges as Lender might require. Borrower shall have the right, before any such tax, assessment, fee, or charges become delinquent, to contest or object to the amount or validity of any such tax, assessment, fee, or charge by appropriate legal proceedings, provided that said right shall not be deemed or construed in any way as relieving, modifying, or extending Borrower’s covenant to pay any such Imposition at the time and in the manner provided herein unless (i) Borrower has given prior written notice to Lender of Borrower’s intent to so contest or object,
(ii) Borrower shall demonstrate to ▇▇▇▇▇▇’s satisfaction that the legal proceedings shall conclusively operate to prevent the sale of the Property, or any part thereof, to satisfy such Imposition prior to final determination of such proceedings, (iii) Borrower shall furnish a good and sufficient bond or surety as requested by and satisfactory to Lender, and (iv) Borrower shall have provided a good and sufficient undertaking as might be required or permitted by law to accomplish a stay of such proceedings.
Ex 10.274
by applicable law, then the entire Obligations will, at the option of Lender, become immediately due and payable.
| 5.13 | Franchise Agreement. |
(3) promptly notify Lender of the giving of any notice to Opco Borrower of any default by Opco Borrower in the performance or observance of any of the terms, covenants or conditions of the Franchise Agreement on the part of Borrower to be performed and observed and deliver to Lender a true copy of each such notice, (4) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice, report and estimate received by it under the Franchise Agreement, (5) enforce the performance of each and every material term, covenant, condition, agreement, requirement, restriction and provision of the Franchise Agreement to be performed by Franchisor and shall not waive, excuse, condone, discount, set off, compromise or in any manner release or discharge Franchisor under the Franchise Agreement from any of the foregoing, (6) give prompt notice to Lender of any claim of or notice of default under the Franchise Agreement given to or by Borrower, together with a copy of any such notice or claim if the same is in writing, (7)at all times defend ▇▇▇▇▇▇’s first and prior right in and to the Franchise Agreement against any and all claims adverse to the claims of Lender, and (7) appear in and defend any action arising out of, or in any manner connected with, the Franchise Agreement or the duties, obligations, liabilities and responsibilities of Opco Borrower or any guarantor or surety thereunder or with respect thereto and, upon request by ▇▇▇▇▇▇, shall make appearance in the name and on behalf of Lender, but at the expense of ▇▇▇▇▇▇▇▇.
Ex 10.274
provided in Section 4.13(a) hereof and simultaneously replaced with the Replacement Franchise Agreement), or (D) modify, change, supplement, alter or amend the Franchise Agreement in any respect, either orally or in writing, and any such surrender of the Franchise Agreement or termination, cancellation, modification, change, supplement, alteration or amendment of the Franchise Agreement in in violation of the foregoing shall be void and of no force and effect. During the continuation of an Event of Default, and subject to the provisions of the Franchise Agreement and the Comfort Letter, Lender and any Person designated by Lender shall have, and are hereby granted, the right to enter upon the Property at any time and from time to time for the purpose of taking action required by this Section 5.13(b).
Ex 10.274
| 5.16 | Reserved. |
| 5.18 | Interest Rate Protection Agreement. |
Ex 10.274
replacement Interest Agreement to Lender pursuant to the terms of a collateral assignment in form and substance acceptable to Lender as set forth in Section 5.18(a)(ii) below. If Lender is the purchaser of the Interest Rate Protection Agreement, Lender shall be the sole owner and purchaser of the Interest Rate Protection Agreement.
Ex 10.274
organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
Ex 10.274
Interest Rate Protection Agreement to Borrower or (ii) if the Interest Rate Cap was purchased by ▇▇▇▇▇▇, release its security interest in the same.
| 5.20 | Operating Lease. |
Ex 10.274
observed, performed and complied with, at the times set forth therein and to do all things necessary to preserve unimpaired its rights thereunder; (ii) not to do, permit, suffer or refrain from doing anything, as a result of which, there could be a material default under any of the terms thereof or under any of the Leases; (iii) not to exercise any right or option to cancel, surrender or otherwise terminate the Operating Lease; (iv) to give Lender prompt written notice of any default by any party under the Operating Lease and to promptly deliver to Lender copies of each notice of default and, after the occurrence of an Event of Default, copies of all other notices, communications, plans, specifications and other similar instruments received or delivered by Borrower in connection therewith; and (v) to furnish to Lender such information and evidence as Lender may reasonably require concerning Borrower’s due observance, performance and compliance with the terms, covenants and provisions thereof.
At all times while any Obligations are outstanding, or Lender has any obligation to Borrower hereunder, Borrower shall faithfully observe and perform that following covenants:
Ex 10.274
Borrower has knowledge: (i) the occurrence of any Default or Event of Default under this Loan Agreement or any other Loan Document; (ii) the commencement or threat of (in writing), or amendment to, any proceedings by or against Borrower in any federal, state, or local court or before any Governmental Authority, or before any arbitrator, which, if adversely determined, would have, or at the time of determination may reasonably be expected to have, a Material Adverse Effect; (iii) the commencement or threat of any condemnation or similar proceedings with respect to the Property or of any proceeding seeking to enjoin the intended use of the Property or any portion thereof; (iv) the occurrence of any material change in Legal Requirements; (v) the commencement of any proceedings by or against Borrower under any applicable bankruptcy, reorganization, liquidation, insolvency, or other similar law now or hereafter in effect or of any proceeding in which a receiver, liquidator, trustee, or other similar official is sought to be appointed for it; (vi) the receipt of notice from any Governmental Authority having jurisdiction over Borrower that: (A) Borrower is being placed under regulatory supervision, (B) any license, Permit, charter, membership, or registration material to the conduct of Borrower’s business or the Property is to be suspended or revoked, or (C) Borrower is to cease and desist any practice, procedure, or policy employed by Borrower in the conduct of its business, and such cessation would have, or may reasonably be expected to have, a Material Adverse Effect; and (vii) the occurrence of any act, omission, change, or event which has a Material Adverse Effect.
| (b) | Quarterly Financial Statements. As soon as available, but in any event within thirty |
(30) days after the end of each quarter, financial statements, including, without limitation, a balance sheet, an income statement, and statement of cash flows, prepared in accordance with GAAP and a compliance certificate in substance and form acceptable to Lender: (A) certifying that the quarterly financial statements are true and correct, (B) certifying that the STR Report is based on the current competitive set and is an accurate picture of the performance of Property (C) certifying that the Property is current on the franchise fees with Franchisor and, otherwise, not in default of any of its obligations under the Franchise Agreement,
(D) calculating the financial covenants set forth in Section 6.4 hereof, if any, (E) certifying that Borrower has complied with and is in compliance with all material terms, covenants and conditions of this Loan Agreement, or if such is not the case, stating which terms, covenants and conditions are not in compliance,
(F) certifying that, to the best of Borrower’s knowledge, no Default or Event of Default exists or, if such is not the case, that one or more specified Defaults or Events of Default have occurred, and (G) the representations and warranties contained in this Loan Agreement are true in all material respects with the same effect as though made on the date of such certificate;
Ex 10.274
| 6.4 | Financial Covenants. |
Ex 10.274
10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities and the amount of such liabilities shall be the historical cost basis, which generally is the contractual amount owed adjusted for amortization or accretion of any premium or discount. Any financial ratios required to be maintained by any Person pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or percentage is expressed herein and rounding the result up or down to the nearest number (with a rounding- up if there is no nearest number). Except as otherwise stated in this Agreement, all financial information provided to Lender and all financial covenants have been and will be made under GAAP.
| 7.1 | Operation and Separateness. Borrower shall not: |
Ex 10.274
acquisition, construction or improvement of fixed or capital assets (including capital lease obligations); (v) Debt owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business, and (vi) other unsecured Debt of Borrower in an aggregate principal amount not to exceed $50,000 at any time;
| (k) | seek dissolution or winding up, in whole or in part; |
| (l) | fail to correct any known misunderstandings regarding the separate identity of |
Borrower;
Ex 10.274
| 7.3 | Transfers. |
Ex 10.274
(ii) an agreement by Borrower leasing all or a substantial part of the Property for other than actual occupancy by a tenant or hotel guest thereunder, or a sale, assignment, or other transfer of, or the grant of a security interest in, ▇▇▇▇▇▇▇▇’s right, title and interest in and to the Leases or any rents therefrom; (iii) any divestiture of Borrower’s title to the Collateral or any interest therein in any manner or way, whether voluntary or involuntary, or any merger, consolidation, dissolution or syndication affecting Borrower; and
(iv) the change, removal, resignation, or addition of a general partner, managing partner, managing member, or manager of Borrower or any other Person who owns a direct or indirect legal or beneficial interest in ▇▇▇▇▇▇▇▇.
(i) The transfer of a direct or indirect beneficial ownership interest in Borrower to any Person (other than a transfer described in subsections (i), (ii), (iii), or (iv) above) if, after giving effect to such transfer, at least fifty-one percent (51%) of the aggregate equity interests in Borrower are owned by one or more of the Persons who own an equity interest in Borrower as of the Closing Date;
| (viii) | Sales of inventory in the ordinary course of business; and/or |
Ex 10.274
| (ix) | Other sales of equipment not to exceed $50,000 in any calendar |
year.
In addition to any conditions set forth above, but without duplication, no transfer of a direct or indirect equity interest in Borrower shall constitute a Permitted Transfer unless: (i) Borrower provides prior written notice of such transfer to Lender, which notice shall be accompanied by such information and documentation as is reasonably sufficient for Lender (A) to evaluate the nature of such transfer, (B) to determine whether the transfer complies with the conditions set forth in this Section, and (C) to comply with Lender’s “know your customer” or similar regulatory requirements; (ii) promptly after the consummation of such transfer, Borrower delivers to Lender a copy of all documentation evidencing such transfer, and (iii) Borrower and Guarantors execute and deliver to Lender such documentation (which may include an amendment to the Loan Documents) which Lender determines is reasonably necessary or prudent in view of the nature of such transfer. Within fifteen (15) days after ▇▇▇▇▇▇’s request, Borrower shall pay or reimburse Lender for any expense incurred by Lender in connection with its review of any such proposed transfer, including reasonable legal fees and expenses.
Ex 10.274
Property Manager’s default after giving effect to the applicable notice, cure or grace period(s) afforded Property Manager under the Property Management Agreement, if any; (b) reduce or consent to the reduction of the term of the Property Management Agreement; (c) increase the amount of any base management fees payable to Property Manager under the Property Management Agreement in excess of three percent (3.0%) of Operating Revenues allocable to the operations at the Property managed by the Property Manager pursuant to the Property Management Agreement per annum or otherwise agree to pay any incentive fees (or similar compensation) to Property Manager in excess of amounts approved by Lender in writing; or (d) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Property Management Agreement. Borrower shall not permit Property Manager to assign or subcontract Property Manager’s rights, duties or responsibilities under the Property Management Agreement to any other Person without the express written consent of Lender. Following the occurrence and during the continuance of an Event of Default, Borrower shall not exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Property Management Agreement without the prior written consent of Lender, which consent may be granted, conditioned or withheld in ▇▇▇▇▇▇’s sole discretion. ▇▇▇▇▇▇▇▇ will not enter into any management agreement for the Property other than the Property Management Agreement, unless ▇▇▇▇▇▇▇▇ first notifies Lender and provides Lender a copy of the proposed management agreement, obtains Lender’s written consent thereto and obtains and provides Lender with a subordination agreement in form satisfactory to Lender from such property manager subordinating to all rights of Lender.
Ex 10.274
Lender may determine to be necessary to cure any default under any or relating to any Construction Document or to protect the rights of Borrower or Lender with respect thereto. Borrower irrevocably constitutes and appoints ▇▇▇▇▇▇ as ▇▇▇▇▇▇▇▇’s attorney-in-fact, which power of attorney is coupled with an interest and is irrevocable, to enforce in Borrower’s name or in ▇▇▇▇▇▇’s name all rights of Borrower under or with respect to any Construction Document during any ongoing Event of Default. Lender shall incur no liability if any action so taken by it or on its behalf shall prove to be inadequate or invalid. Lender may use the Plans and Specifications for any purpose relating to the Improvements. Borrower shall indemnify and hold Lender harmless against and from any claims, loss, cost, liability or expense (including, but not limited to, consultants’ fees and expenses and reasonable attorneys’ fees and expenses) incurred in connection with Borrower’s failure to perform such Hotel Project Documents, except for any loss, cost, liability, or expenses arising primarily from ▇▇▇▇▇▇’s gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction.
(5) days after the payment thereof is due under this Loan Agreement, whether at stated maturity, acceleration, or otherwise, or the failure of Borrower to pay or reimburse Lender for any other sum due under the terms of this Loan Agreement, the Note, or any other Loan Document within ten (10) days after ▇▇▇▇▇▇ gives Borrower written notice thereof;
Ex 10.274
Property Manager seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal, state, or other statute, law, or regulation relating to bankruptcy, insolvency, or other relief for debtors, which order, judgment, or decree remains unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the date of entry thereof, or the appointment of any trustee, receiver, or liquidator for any Loan Party or of all or any substantial part of such Loan Party’s property or of any or all of the rents, revenues, issues, earnings, profits, or income therefrom, which appointment remains unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive), or any of the foregoing events occurs with a Property Manager that is not an Affiliated Property Manager, provided that Borrower shall have thirty (30) days after the sixty (60) day period set forth above lapses to replace such Property Manager with a replacement Property Manager and replace the Property Management Agreement with a replacement Property Management Agreement, in each case acceptable to Lender in its good faith discretion;
Ex 10.274
| (i) | Prohibited Acts. Any breach or violation of any covenant set forth in Article |
7 above;
Ex 10.274
not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Loan Party to enforce any such judgment the amount thereof exceeds $50,000;
| (t) | Reserved; |
| (y) | Material Adverse Effect. There shall exist or occur any event or condition which |
(i) Lender in good faith believes impairs, or is substantially likely to impair, the prospect of payment or performance by Borrower or any Guarantor of its obligations under any of the Loan Documents or (ii) results in a Material Adverse Effect on any Loan Party.
Ex 10.274
(iii) make changes in the Plans and Specifications that Lender deems necessary or desirable to complete the Improvements, (iv) retain or employ new contractors, subcontractors, architects, engineers, or inspectors as Lender deems necessary or desirable to complete the Improvements, (v) pay, settle, or compromise all bills and claims that might be incurred in connection with constructing and equipping the Improvements, (vi) purchase any fixtures, equipment, machinery, furniture, or any other personal property as Lender deems necessary or desirable for the completion of the construction and equipping of the Improvements or for the clearance of title to the Hotel Project, (vii) execute all applications and certificates in the name of Borrower that might be required, (viii) prosecute and defend all actions or proceedings in connection with the Property, and (ix) do any act that Borrower might do in its own behalf relating to the Property, it being understood and agreed that this power of attorney is a power coupled with an interest and cannot be revoked. All reasonable sums expended or advanced by Lender for any of the foregoing purposes, whether or not in excess of the Loan Commitment, shall be deemed to have been requested by and paid to Borrower, will constitute additional Obligations of Borrower immediately due and payable, shall be evidenced and secured by the Loan Documents, and shall bear interest at the Default Rate retroactive to the date such sums are expended by Lender; and
Ex 10.274
is located, or any other appropriate jurisdiction as might be available for the collection of debts and enforcement of covenants and conditions such as those contained in this Loan Agreement and the other Loan Documents, all of which rights and remedies shall be cumulative and non-exclusive.
(iii) any and all lawful action that may be taken by Lender in connection with the enforcement of the provisions of this Loan Agreement, the Mortgage, or any other Loan Document, whether or not suit is filed in connection with same, or in connection with any Loan Party, and/or any member, partner, joint venturer, or shareholder of any Loan Party becoming a party to a voluntary or involuntary federal or state bankruptcy, insolvency or similar proceeding, (iv) any accident, injury to or death of persons, or loss of or damage to property occurring in, on, or about the Property or any part thereof or adjacent parking areas, streets, or ways, (v) any use, non-use, or condition in, on, or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property, or adjacent parking areas, streets, or ways, (vi) any failure on the part of any Loan Party to perform or be in compliance with any of the terms of this Loan Agreement, the Mortgage, or any other Loan Document, (vii) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof, (viii) the failure of any Person to file timely with the Internal Revenue Service an accurate Form 1099-B, Statement of Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be required in connection with the Loan, or to supply a copy thereof in a timely fashion to the recipient of the proceeds of the Loan, (ix) any failure of the Property to be in compliance with any Legal Requirement, (x) the failure of any Loan Party to comply with Anti-Terrorism Laws, (xi) the enforcement by any Indemnified Party of the provisions of this Section, (xii) the payment of any commission, charge, or brokerage fee to any Person that might be payable in connection with the funding of the Loan, or (xiii) any misrepresentation made by any Loan Party in this Loan Agreement or in any of the other Loan Documents. Additionally, if any taxes (excluding taxes imposed upon or measured by the net income of Lender, but including, without limitation, any intangibles tax, stamp tax, recording tax, or franchise tax) shall be payable by Lender on account of the execution or delivery of this Loan Agreement, or the execution, delivery, issuance, or recording of any other Loan Document, or the creation of any of the Obligations, by reason of any existing or hereafter enacted federal, state, foreign, or local statute, rule, or regulation, Borrower shall pay (or will promptly reimburse Lender for the payment of) all such taxes and will indemnify and hold Lender harmless from and against liability in connection therewith. Any amounts payable to Lender by reason of the application of this Section shall become immediately due and payable and shall bear interest at the Default Rate from the date loss or damage is sustained by Lender until paid. For purposes of this Section, the term “Indemnified Parties” means Lender, any party becoming the holder of the Note, and any Person who is or will have been involved in the origination or administration of the Loan, any Person in whose name the encumbrance created by the Mortgage is or will have been recorded, Persons who may hold or acquire or will have held a full or partial
Ex 10.274
interest in the Loan (including, but not limited to investors or prospective investors who hold or have held a full or partial interest in the Loan for the benefit of third parties) as well as the respective directors, officers, shareholders, members, partners, employees, attorneys, affiliates, subsidiaries, participants, successors, and assigns of any other Person who holds or acquires or will have held a participation or other full or partial interest in the Loan or the Property, whether during the term of the Loan or as a part of or following a foreclosure of the Loan and including, but not limited to any successors by merger, consolidation, or acquisition of all or a substantial portion of Lender’s assets and business. The indemnity obligation of Borrower under this Section and any other provision of this Loan Agreement shall survive the payment in full of the Obligations, but only with respect to matters originating or occurring prior to payment in full of the Obligations, foreclosure or a deed in lieu of foreclosure.
| 9.4 | Sale, Assignments, and Participations. |
Ex 10.274
rights with respect thereto, to grant participations herein, or to issue pass-through certificates or other securities (“Securities”) evidencing a beneficial interest in a rated or unrated public offering or private placement of which the Loan will be made a part. Upon notification of any such transfer, ▇▇▇▇▇▇▇▇ agrees to make all payments required under the Note and this Agreement to the designated transferee without asserting any defense, setoff, recoupment, claim or counterclaim which Borrower may have against Lender.
Ex 10.274
regulatory authorities shall be deemed to be a Change regardless of the date adopted, issued, promulgated or implemented. Lender’s method of determining any amount payable to Lender under this Section shall be substantially similar to the method used by Lender in implementing similar provisions for similarly situated borrowers and extensions of credit. Lender shall provide to Borrower a statement of the amount and basis of calculation of any such increased cost, reduction in return and/or revenue, which amount shall, in the absence of manifest error, be conclusive and binding upon Borrower.
Ex 10.274
This Loan Agreement and each of the other Loan Documents shall be governed by the following protocols (the “Document Protocols”), unless any Loan Document expressly states that the Document Protocols will not apply to such Loan Document in whole or in part:
Ex 10.274
Ex 10.274
Loan, or any course of conduct, act, omission, course of dealing, statements (whether verbal or written) or actions of any Person (including, without limitation, such Person’s directors, officers, partners, members, employees, agents or attorneys, or any other Persons affiliated with such Person), in connection with the Loan or such Loan Document, including, without limitation, in any counterclaim which Borrower may be permitted to assert thereunder or which may be asserted by Lender against Borrower, whether sounding in contract, tort, or otherwise. This waiver by Borrower of its right to a jury trial is a material inducement for Lender to make the Loan and enter into the Loan Documents.
Ex 10.274
State (without regard to principles of conflict of laws) and the federal laws of the United States of America in all respects. To the fullest extent permitted by law, Borrower and each Guarantor hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs such Loan Document.
Ex 10.274
Ex 10.274
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has executed this Loan Agreement under seal as of the date first set forth above.
PROPCO BORROWER:
LF3 RIFC, 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Chief Operating Officer
Address for notices:
▇▇▇▇ -▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
Fargo, ND 58103
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Grand Rapids, MI 49503
Ex 10.274
Ex 10.274
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has executed this Loan Agreement under seal as of the date first set forth above.
OPCO BORROWER:
LF3 RIFC 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Its: Chief Operating Officer
Address for notices:
▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ex 10.274
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ I 000
Grand Rapids, MI 49503
[Signatures Continue on Following Page]
Ex 10.274
ACCESS POINT FINANCIAL, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
Address for notices:
Access Point Financial, LLC ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with copy to (which alone shall not constitute notice):
▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
Atlanta, Georgia 30363 Attn: ▇. ▇▇▇▇▇▇ Horde III Email: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
[End of signatures]
Ex 10.274
Signature PageLoan Agreement
Ex 10.274
, 202
Re:Payment Direction Letter for (the “Property”) [VISA/MASTERCARD/ AMERICAN EXPRESS/DISCOVER Account No: ]
To Whom it May Concern:
A new cash management system has been adopted in connection with our loan from ACCESS POINT FINANCIAL, LLC, (together with its successors and/or assigns, “Lender”). Consequently, from and after the date of this letter, all payments due the undersigned should be delivered as follows:
| (a) | If by check, money order, or its equivalent, please mail such items to: |
Attention:
| (b) | If by wire transfer to: |
Bank: ABA Routing No.: Account: Account No.:
Account Name: Account, for the benefit of
Access Point Financial, LLC, as secured party
This payment direction may not be rescinded or altered, except by a written direction signed by ▇▇▇▇▇▇ or its agent.
We appreciate your cooperation.
Very truly yours,
,
a 
limited liability company
Ex 10.274
By: [SEAL]
Name: Its:
50450794 v7.doc
Exhibit A
Ex 10.274
SCHEDULE 1 HOTEL PROJECT
Ex 10.274
Ex 10.274
Schedules
Ex 10.274
PROPERTY IMPROVEMENT PLAN
All items must be completed within 24 months after the Effective Date, unless otherwise noted with respect to a particular item.
| 1.0 | GENERAL- TYPE B |
| 2.0 | Desktop |
| 3.0 | ADA CERTIFICATION REQUIREMENT |
| 3.1 | ADA CERTIFICATION REQUIREMENT |
.1 As required in this Agreement, the ADA Certification (see Attachment Two) must be completed and submitted to Franchisor by the Property Improvement Plan (PIP) completion date.
| 4.0 | TECHNOLOGY |
| 4.1 | TECHNOLOGY |
| .1 | Install approved RFID/BLE locks on all doors including guestrooms, exterior entrances, fitness, pool, back of house and guest laundry. Perform retrofit or replacement, depending on age of each lock, as follows: if zero-to-six years old, retrofit is required; if six-to-10 years old, replacement is recommended, but a minimum of retrofit is required; and, if more than 10 years old, replacement is required. Conduct a Hotel site survey with lock vendor to determine if any additional hardware (upgraded or new on Property Lock PC, handheld lock programmer and lock interrogator, etc.) is needed to create and deliver Mobile Key. If the Hotel uses Saflok or Ving, and uses the Marriott Network, Franchisee must purchase a Franchisor-imaged server through Franchisor’s purchasing channels. |
| .2 | Franchisor’s Guestroom Entertainment Platform: If Franchisee’s television contract expires before the last deadline in this PIP, Franchisee must install the new Guestroom Entertainment platform upon Franchisee’s television contract expiration to be compliant. A complete list of required steps and resources can be found on the Hotel’s Land-It page. If Franchisee cannot locate a Guestroom Entertainment list, Franchisee should email ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ |
| 5.0 | SITE / BUILDING EXTERIOR |
| 5.1 | SITE ENTRANCE |
| .1 | Install new decorative hardwired lighting (i.e. sconces) on building exterior. |
| 5.2 | ARCHITECTURAL FACADE/BUILDING ENVELOPE |
| .1 | Repair exterior building finishes to a "like new" condition. |
| .2 | Repaint building exterior to current standards. |
Ex 10.274
| .3 | Verify the condition of all exterior windows, doors, frames, ▇▇▇▇▇, and seals, and repair/replace as necessary to prevent wind, rain and noise from leaking into building. |
Ex 10.274
| .4 | Install automatic door at main entrance. |
| .5 | Replace all insulated glass windows that have fogging. |
| .6 | Replace all damaged and/or missing window and sliding door screens. |
| 5.3 | EXTERIOR SIGNAGE AND GRAPHICS/LIGHTING |
| .1 | Replace all exterior graphics and signage (i.e. pylon, monument, building, directional signs, parking lot graphics; including channel letters on building) with current standard. |
| .2 | This property is not eligible for the Exterior Signage Subsidy due to value received as a result of the PIP transaction. |
| .3 | Replace exterior decorative lighting (i.e. sconces, pendant fixtures) with new. |
| 5.4 | HARDSCAPE AND PARKING AREAS |
| .1 | Repair/reseal and re-stripe parking areas. |
| .2 | Repair damaged sidewalks. |
| .3 | Repair all crumbling or otherwise damaged curbs and wheel stops. |
| 5.5 | LANDSCAPE/VISUAL BARRIERS |
| .1 | Enhance and refresh all landscaping (including but not limited to; replacement of over grown trees, shrubs and ground cover). Submit comprehensive landscaping plans. |
| 5.6 | MISCELLANEOUS SITE FEATURES |
| .1 | Repaint service-yard/dumpster area gate. |
| .2 | Replace all trash receptacles with decorative trash receptacles to be compatible with main building exterior. |
| .3 | Replace all exterior entrance furniture. |
| .4 | Provide exterior zones discreetly located away from entrances and common areas for public and staff smoking. |
| 5.7 | PATIO AREA |
| .1 | Provide new patio lounge furniture. |
| .2 | *Provide permanent built-in grill, verify local code requirements for location. [critical brand item required] |
| .3 | Install patio heaters. |
| 6.0 | PUBLIC SPACES |
| 6.1 | DECOR PACKAGE IMPLEMENTATION |
| .1 | Must implement the most recent decor package at the time of renovation or submit a custom décor package for Franchisor review and approval prior to installation. |
| 6.2 | LOBBY |
| .1 | Construct new buffet and coffee station, install new buffet face, sneeze guard and quartz top. |
| .2 | Replace carpet and pad. |
| .3 | Repaint wood base. |
| .4 | Replace wall vinyl. |
| .5 | Repaint all trim/beams. |
| .6 | Reimage front desk. |
| .7 | Reface/replace back of front desk millwork with new laminate finish. |
Ex 10.274
| .8 | Reimage fireplace. |
| .9 | Replace upholstered seating. |
Ex 10.274
| .10 | Install new Studies. Provide electrical and technology as required. |
| .11 | Install banquette. |
| .12 | Replace communal table. |
| .13 | Replace casegoods. |
| .14 | Replace dining tables. |
| .15 | Replace artwork. |
| .16 | Replace accessories. |
| .17 | Remove existing plants and planters and do not replace. |
| .18 | Remove sit down computer station/Business Center; install Quick-Print. |
| .19 | Replace lamps, shades and bulbs. |
| .20 | Replace decorative lighting. |
| .21 | Install lighting controls (dimming system) on existing hardwired lighting. Lighting controls to be placed out of guest view (if not existing). |
| .22 | Replace window treatments. |
| .23 | Upgrade "The Market" per current brand standards.Submit plans to Marriott for approval. |
| .24 | Install acrylic panel at "The Market" equipment; to be solid-neutral. |
| .25 | Relocate juice machines to kitchen or other location on buffet where not viewable to guests. |
| .26 | Replace interior graphics/signage (must be current specification). |
| .27 | Repaint ceiling. |
| .28 | Replace brand walk-off mat outside vestibule area. |
| .29 | Repaint previously painted doors and door trim/frames. |
| 6.3 | MEETING ROOM |
| .1 | Replace carpet and pad. |
| .2 | Repaint wood base. |
| .3 | Replace wall vinyl. |
| .4 | Repaint door trim and frames. |
| .5 | Replace doors and hardware. |
| .6 | Replace chairs. |
| .7 | Install linen-less tables. |
| .8 | Replace bar millwork. |
| .9 | Install quartz bar counter top. |
| .10 | Replace window treatments. |
| .11 | Replace florescent light fixtures with current standard. |
| .12 | Paint ceiling. |
| .13 | Replace any damaged or stained acoustical ceiling tiles and/or grid. |
| .14 | Remove full-size refrigerator. |
| 6.4 | ELEVATOR |
| .1 | Replace floor tile in second building. |
| .2 | Install new ceiling panel with recessed lighting in second building. |
| .3 | Paint elevator doors and frames (facing public space). |
| 6.5 | PUBLIC RESTROOMS |
| .1 | Replace wall vinyl. |
| .2 | Remove wall tile and replace with wall vinyl. |
| .3 | Repaint previously painted doors and door trim/frames. |
| .4 | Install new quartz vanity top and undermount china bowl. |
Ex 10.274
| .5 | Replace faucets. |
| .6 | Replace existing vanity mirror with frameless plate glass mirror. |
| .7 | Install new vanity light fixture and bulbs. |
| .8 | Remove artwork. |
| .9 | Replace any damaged or stained acoustical ceiling tiles and/or grid. |
| 6.6 | GUEST LAUNDRY |
| .1 | Replace flooring and base. |
| .2 | Replace wall vinyl. |
| .3 | Install new entry door with half glass vision panel. |
| .4 | Paint door trim/frames. |
| .5 | Remove artwork; do not replace. |
| .6 | Provide millwork counter where not existing. |
| .7 | Install new solar shades. |
| .8 | Paint ceiling. |
| 6.7 | EXERCISE ROOM |
| .1 | Relocate/add power and cable as required for new equipment in order to avoid trip hazards. |
| .2 | Replace flooring and base. |
| .3 | Replace wall vinyl. |
| .4 | Install new entry door with half glass vision panel. |
| .5 | Repaint door trim/frames. |
| .6 | Install trash/towel cabinet. |
| .7 | Replace fitness equipment-cardio. |
| .8 | Replace fitness equipment- strength. |
| .9 | Remove existing artwork; do not replace. |
| .10 | Install new solar shades. |
| .11 | Replace interior graphics/signage (must be current specification). |
| .12 | Replace light fixtures with current standard. |
| .13 | Replace any damaged or stained acoustical ceiling tiles and/or grid. |
| 6.8 | POOL/SPA |
| .1 | Repaint walls. |
| .2 | Replace pool deck. |
| .3 | Replace indoor pool furniture. |
| .4 | Provide pool towel / trash cabinet. |
| .5 | Replace graphics/signage (must be current specification). |
| .6 | Paint ceiling. |
| .7 | Resurface pool and spa. |
| .8 | Install depth designations and international "No Diving" symbols at spa deck edge and waterline tile. |
| .9 | Repaint previously painted doors and door trim/frames. |
| .10 | Replace light fixtures with current standard. |
| 6.9 | CORRIDORS/STAIRWELLS |
| .1 | Replace carpet, padding and carpet base. |
| .2 | Replace wall vinyl. |
| .3 | Install corner guards. |
Ex 10.274
| .4 | Paint handrails and stringers in stairwells. |
Ex 10.274
| .5 | Repaint previously painted doors, door trim/frames and replace kick plates. |
| .6 | Remove artwork throughout corridor. |
| .7 | Replace window treatments. (solar shades) |
| .8 | Replace decorative hardwired and architectural lighting. |
| .9 | Replace interior graphics/signage (must be current specification). |
| .10 | Replace any damaged or stained acoustical ceiling tiles and/or grid. |
| 7.0 | GUESTROOMS |
| 7.1 | GUESTROOMS |
| .1 | Remove fireplace. |
| .2 | Replace carpet, padding and carpet base. |
| .3 | Remove sheet vinyl flooring (kitchen). |
| .4 | Replace thresholds at connector and entry door with full width and length "T" strip. |
| .5 | Replace closet doors. |
| .6 | Repaint interior doors and door trim/frames. |
| .7 | Repaint walls. Provide knockdown finish (including accent headboard wall). |
| .8 | Replace upholstered seating. |
| .9 | Replace task chair. |
| .10 | Replace dining chairs. |
| .11 | Provide C-Table. |
| .12 | Provide entry console (2 bedroom units). |
| .13 | Replace dining table. |
| .14 | Remove artifacts shelf. |
| .15 | Replace artwork. |
| .16 | Replace window treatments. |
| .17 | Replace lamps. |
| .18 | Touch-up and repair casegoods. |
| .19 | Remove ottoman and garage cocktail table. |
| .20 | Accessible Guestrooms: Provide Marriott standard accessible bed. |
| .21 | Provide shed the day console. |
| .22 | *Provide new signature desk at window with minimum three (3) electrical outlets and storage. Relocate power, data and phone as needed. [critical brand item required] (1 Bedroom unit, where not existing) |
| .23 | *Provide new signature desk at window with storage and dresser (Studio, where not existing). Relocate power, data and phone as needed. [critical brand item required] |
| .24 | Install LVT flooring at kitchen and entry. |
| .25 | Replace kitchen vinyl base and rubber transition strip. |
| .26 | Replace wall vinyl. |
| .27 | Reface kitchen cabinets, replace cabinet door and drawer fronts, and install new hardware. |
| .28 | Install new decorative hardwired lighting (i.e. pendant light at breakfast table, sconce at breakfast table, welcome light). |
| .29 | Replace interior graphics/signage (must be current specification). |
| .30 | Provide current standard LED flat panel TV. |
| .31 | Paint ceiling. |
| 7.2 | GUESTROOMS (GEN 5/6 ROOM B) |
| .1 | Remove dining table at breakfast bar and replace with dining counter. |
| .2 | Extend kitchen flooring to under dining counter. |
Ex 10.274
| .3 | Remove closet doors and install open closet system with mirror panel. |
| 7.3 | GUESTROOM BATH |
| .1 | *Convert tubs to showers in 48 Studios and 2 QQ rooms for a total of 50 tub to shower conversions.[critical brand item required] |
| .2 | Install new tub surrounds where not converting to showers. |
| .3 | Refinish tub where not converting to showers. |
| .4 | Install tile and tile base (including at vanity area). |
| .5 | Replace wall vinyl. |
| .6 | Replace vanity base cabinets. |
| .7 | Install quartz vanity top. |
| .8 | Install undermount china bowl. |
| .9 | Replace faucets. |
| .10 | Remove vanity light fixture and relocate junction box to accommodate for lighted vanity mirror. |
| .11 | Provide lighted vanity mirror. |
| .12 | Remove toiletries shelf at toilet and towel cubbies where existing. |
| .13 | Replace shower curtain with current specification. |
| .14 | Remove artwork; do not replace. |
| .15 | Repaint ceiling. |
| .16 | Replace ceiling mounted light fixture. |
| 8.0 | BACK OF HOUSE/ADMIN AREAS |
| 8.1 | ADMINISTRATIVE OFFICES |
| .1 | Replace carpet, pad and base. |
| .2 | Replace wall vinyl. |
| .3 | Install corner guards. |
| .4 | Repaint door trim/frames. |
| .5 | Replace doors and hardware. |
| .6 | Install solar shades. |
| .7 | Replace any damaged or stained acoustical ceiling tiles and/or grid. |
| .8 | Repair HVAC issue in maintenance and housekeeping office. |
| 8.2 | EMPLOYEE DINING |
| .1 | Install new vinyl flooring and base. |
| .2 | Paint walls. |
| .3 | Replace dining chairs and tables. |
| 8.3 | BACK OF HOUSE |
| .1 | Paint walls. |
| 9.0 | FIRE PROTECTION AND LIFE SAFETY |
| 9.1 | GENERAL |
| .1 | The Residence Inn by Marriott Ft. ▇▇▇▇▇▇▇ Hotel located in Ft. ▇▇▇▇▇▇▇, CO was virtually surveyed by ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on 03, 28,2022. This project has been surveyed with the understanding that the work performed in this building meets renovation as defined as refinishing, replacement, bracing, strengthening, or upgrading of existing materials, elements, equipment, or fixtures without |
Ex 10.274
| involving the reconfiguration of spaces. If any |
Ex 10.274
other work in the building is performed, such as reconfiguration, change of use, additions, or upgrades to fire and life safety systems, etc., Marriott Fire Protection & Life Safety must be contacted for a reassessment of the fire and life safety requirements.
| .2 | The items noted below must be completed to meet Marriott Fire Protection & Life Safety and NFPA Standards within 180 days after the Effective Date, regardless of the current status of compliance with local codes or previous franchisee guidelines. The fire protection and life safety systems must be inspected, tested, or otherwise approved by Marriott Fire Protection & Life Safety for PIP completion. |
| .3 | In the event that the current fire alarm system is replaced or upgraded, or the current fire alarm panel is replaced or upgraded, the entire fire alarm system shall come into compliance with the current edition of Marriott Module 14. As part of Marriott Module 14 compliance, the new/upgraded fire alarm system shall be reviewed and approved by Marriott FLS prior to installation and tested for acceptance by Marriott FLS after installation. Please contact this office for further information prior to project commencement. |
| 9.2 | FIRE ALARM |
| .1 | Provide system type carbon monoxide detectors with sounder bases in all areas with fuel fired appliances. This shall include in Riser Room in Building A which has no CO detector and the main laundry room in Building A which has a plug-in CO detector. To be completed within 180 days after the Effective Date. |
| .2 | Replace the guestroom ionization-type smoke alarms with photoelectric hardwired smoke alarms with battery backup in all guestrooms that do not have a fireplace. To be completed within 180 days after the Effective Date. |
| 9.3 | LIFE SAFETY |
| .1 | Provide emergency lighting with battery back-up in the women's restroom on the 1st floor of Building A and in the main laundry room. To be completed within 180 days after the Effective Date. |
Ex 10.274
SCHEDULE 2 REQUIRED REPAIRS
Ex 10.274
SCHEDULE 3 DRAW SCHEDULE
Ex 10.274
SCHEDULE 4 HOTEL PROJECT BUDGET
[SEE ATTACHED PAGES]
Ex 10.274
Category and ItemBudgetForecastedCommitmentVariance
Summary$43,850$0
Budget | Forecasted | Commitment | | Variance | ||||||
Total Project Budget | $5,262,021 | $5,262,021 | $0 | $0 | ||||||
Soft Costs | $265,000 | $265,000 | $0 | $0 | ||||||
Design | $80,000 | $80,000 | $0 | $0 | ||||||
Architecture/Interior Design | $65,000 | $65,000 | $0 | $0 | ||||||
MEP Engineer | $15,000 | $15,000 | $0 | $0 | ||||||
Project Management | $155,000 | $155,000 | $0 | $0 | ||||||
Project Manager | $155,000 | $155,000 | $0 | $0 | ||||||
Onsite Project Manager | $0 | $0 | $0 | $0 | ||||||
Development Costs | $0 | $0 | $0 | $0 | ||||||
Travel | $30,000 | $30,000 | $0 | $0 | ||||||
Travel | $30,000 | $30,000 | $0 | $0 | ||||||
Contigency | $468,125 | $468,125 | $0 | $0 | ||||||
Contingency Balance | $468,125 | $468,125 | $0 | $0 | ||||||
PCO#1 | $0 | $0 | $0 | $0 | ||||||
PCO#2 | $0 | $0 | $0 | $0 | ||||||
PCO#3 | $0 | $0 | $0 | $0 | ||||||
Owner Direct | $181,215 | $181,215 | $0 | $0 | ||||||
Life Safety | $1,750 | $1,750 | $0 | $0 | ||||||
Refinish Tubs | $27,390 | $27,390 | $0 | $0 | ||||||
Touchup Casegoods | $16,950 | $16,950 | $0 | $0 | ||||||
Resurface Pool/Spa and Depth Designations | $36,500 | $36,500 | $0 | $0 | ||||||
Fitness Equipment | $50,000 | $50,000 | $0 | $0 | ||||||
Elevator Ceiling | $2,500 | $2,500 | $0 | $0 | ||||||
RFID Locks | $46,125 | $46,125 | $0 | $0 | ||||||
Exterior | $284,134 | $284,134 | $0 | $0 | ||||||
Exterior Paint Contract | $135,500 | $135,500 | $0 | $0 | ||||||
Labor Contracts | $12,670 | $12,670 | $0 | $0 | ||||||
Replace Windows and/or Screens | $6,500 | $6,500 | $0 | $0 | ||||||
Exterior Signage | $45,000 | $45,000 | $0 | $0 | ||||||
Parking Lot | $27,500 | $27,500 | $0 | $0 | ||||||
Sidewalks | $5,000 | $5,000 | $0 | $0 | ||||||
Landscaping | $7,500 | $7,500 | $0 | $0 | ||||||
Materials | $35,700 | $35,700 | $0 | $0 | ||||||
Shipping | $4,284 | $4,284 | $0 | $0 | ||||||
Taxes | $2,695 | $2,695 | $0 | $0 | ||||||
Procurement Fee | $1,785 | $1,785 | $0 | $0 | ||||||
Public Space | $364,111 | $364,111 | $0 | $0 | ||||||
Labor Contracts | $186,395 | $186,395 | $0 | $0 | ||||||
Materials | $142,686 | $142,686 | $0 | $0 | ||||||
Shipping | $17,122 | $17,122 | $0 | $0 | ||||||
Taxes | $10,773 | $10,773 | $0 | $0 | ||||||
Procurement Fee | $7,134 | $7,134 | $0 | $0 | ||||||
Guest Rooms | $3,187,530 | $3,187,530 | $0 | $0 | ||||||
Ex 10.274
Labor Contracts | $1,071,785 | $1,071,785 | $0 | $0 |
Materials | $1,698,712 | $1,698,712 | $0 | $0 |
Shipping | $203,845 | $203,845 | $0 | $0 |
Taxes | $128,253 | $128,253 | $0 | $0 |
Procurement Fee | $84,936 | $84,936 | $0 | $0 |
General Conditions | $511,906 | $511,906 | $0 | $0 |
GC OH&P | $288,351 | $288,351 | $0 | $0 |
Supervision | $22,500 | $22,500 | $0 | $0 |
Lodging for contractors | $52,650 | $52,650 | $0 | $0 |
Dumpsters/Equipment | $11,400 | $11,400 | $0 | $0 |
Containers/Warehousing | $21,000 | $21,000 | $0 | $0 |
FF&E Install | $108,900 | $108,900 | $0 | $0 |
Final Clean Rooms | $7,105 | $7,105 | $0 | $0 |
Draw #1
Ex 10.274
Total PaidTotal To Be Paid Jan 2023Feb 2023March 2023April 2023
Total Paid | Total To Be Paid | Draw Amount | Draw Amount | Draw Amount | Draw Amount |
$4,793,896 | $0 | $15,500 | $47,071 | $40,321 | $32,821 |
$265,000 | $0 | $15,500 | $37,500 | $32,500 | $25,000 |
$80,000 | $0 | $0 | $22,500 | $22,500 | $15,000 |
$65,000.00 | $0.00 | $0.00 | $15,000.00 | $15,000.00 | $15,000.00 |
$15,000.00 | $0.00 | $0.00 | $7,500.00 | $7,500.00 | $0.00 |
$155,000 | $0 | $13,000 | $10,000 | $10,000 | $10,000 |
$155,000.00 | $0.00 | $13,000.00 | $10,000.00 | $10,000.00 | $10,000.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0 | $0 | $0 | $0 | $0 | $0 |
$30,000 | $0 | $2,500 | $5,000 | $0 | $0 |
$30,000.00 | $0.00 | $2,500.00 | $5,000.00 | $0.00 | $0.00 |
$0 | $0 | $0 | $0 | $0 | $0 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$181,215 | $0 | $0 | $1,750 | $0 | $0 |
$1,750.00 | $0.00 | $0.00 | $1,750.00 | $0.00 | $0.00 |
$27,390.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$16,950.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$36,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$50,000.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$2,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$46,125.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$284,134 | $0 | $0 | $149 | $149 | $149 |
$135,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$12,670.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$6,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$45,000.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$27,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$5,000.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$7,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$35,700.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$4,284.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$2,695.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$1,785.00 | $0.00 | $0.00 | $148.75 | $148.75 | $148.75 |
$364,110 | $0 | $0 | $595 | $595 | $595 |
$186,395.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$142,686.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$17,122.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$10,773.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$7,134.00 | $0.00 | $0.00 | $594.50 | $594.50 | $594.50 |
$3,187,531 | $0 | $0 | $7,078 | $7,078 | $7,078 |
Ex 10.274
$1,071,785.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$1,698,712.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$203,845.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$128,253.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$84,936.00 | $0.00 | $0.00 | $7,078.00 | $7,078.00 | $7,078.00 |
$511,906 | $0 | $0 | $0 | $0 | $0 |
$288,351.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$22,500.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$52,650.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$11,400.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$21,000.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$108,900.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$7,105.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
Ex 10.274
May 2023June 2023 July 2023Aug 2023Sept 2023Oct 2023Nov 2023
Draw Amount Draw Amount Draw Amount Draw AmountDraw AmountDraw AmountDraw Amount | ||||||
$27,821 | $1,162,356 | $90,884 | $90,821 | $1,212,856 | $112,621 | $601,572 |
$20,000 | $10,000 | $10,000 | $12,000 | $12,000 | $12,000 | $23,000 |
$10,000 | $0 | $0 | $0 | $0 | $0 | $5,000 |
$10,000.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $5,000.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$10,000 | $10,000 | $10,000 | $10,000 | $10,000 | $10,000 | $13,000 |
$10,000.00 | $10,000.00 | $10,000.00 | $10,000.00 | $10,000.00 | $10,000.00 | $13,000.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0 | $0 | $0 | $0 | $0 | $0 | $0 |
$0 | $0 | $0 | $2,000 | $2,000 | $2,000 | $5,000 |
$0.00 | $0.00 | $0.00 | $2,000.00 | $2,000.00 | $2,000.00 | $5,000.00 |
$0 | $0 | $0 | $0 | $0 | $0 | $0 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0 | $0 | $73,063 | $0 | $0 | $30,363 | $34,850 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $5,650.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $7,300.00 | $29,200.00 |
$0.00 | $0.00 | $50,000.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $23,062.50 | $0.00 | $0.00 | $23,062.50 | $0.00 |
$149 | $43,988 | $149 | $71,149 | $92,488 | $23,916 | $3,950 |
$0.00 | $0.00 | $0.00 | $67,750.00 | $67,750.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $1,267.00 | $3,801.00 |
$0.00 | $0.00 | $0.00 | $3,250.00 | $3,250.00 | $0.00 | $0.00 |
$0.00 | $22,500.00 | $0.00 | $0.00 | $0.00 | $22,500.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $17,850.00 | $0.00 | $0.00 | $17,850.00 | $0.00 | $0.00 |
$0.00 | $2,142.00 | $0.00 | $0.00 | $2,142.00 | $0.00 | $0.00 |
$0.00 | $1,347.50 | $0.00 | $0.00 | $1,347.50 | $0.00 | $0.00 |
$148.75 | $148.75 | $148.75 | $148.75 | $148.75 | $148.75 | $148.75 |
$595 | $85,885 | $595 | $595 | $85,885 | $595 | $56,513 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $55,918.50 |
$0.00 | $71,343.00 | $0.00 | $0.00 | $71,343.00 | $0.00 | $0.00 |
$0.00 | $8,561.00 | $0.00 | $0.00 | $8,561.00 | $0.00 | $0.00 |
$0.00 | $5,386.50 | $0.00 | $0.00 | $5,386.50 | $0.00 | $0.00 |
$594.50 | $594.50 | $594.50 | $594.50 | $594.50 | $594.50 | $594.50 |
Ex 10.274
$7,078 | $1,022,483 | $7,078 | $7,078 | $1,022,483 | $7,078 | $328,614 |
Ex 10.274
$0.00 | $0.00 | $0.00 | 0.000 | 0.00 | $0.00 | $321,535.50 |
$0.00 | $849,356.00 | $0.00 | 0.000 | $849,356.00 | $0.00 | $0.00 |
$0.00 | $101,922.50 | $0.00 | 0.000 | $101,922.50 | $0.00 | $0.00 |
$0.00 | $64,126.50 | $0.00 | 0.000 | $64,126.50 | $0.00 | $0.00 |
$7,078.00 | $7,078.00 | $7,078.00 | $7,078.00 | $7,078.00 | $7,078.00 | $7,078.00 |
$0 | $0 | $0 | $0 | $0 | $38,670 | $154,645 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $86,505.30 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $6,750.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $17,550.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $3,800.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $6,000.00 | $5,000.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $32,670.00 | $32,670.00 |
$0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $0.00 | $2,370.00 |
Ex 10.274
Dec 2023Jan 2024Feb 2024March 2024
Draw Amount | Draw Amount | Draw Amount | Draw Amount |
$572,372 | $548,087 | $198,793 | $40,000 |
$23,000 | $18,000 | $14,500 | $0 |
$5,000 | $0 | $0 | $0 |
$5,000.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$13,000 | $13,000 | $13,000 | $0 |
$13,000.00 | $13,000.00 | $13,000.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0 | $0 | $0 | $0 |
$5,000 | $5,000 | $1,500 | $0 |
$5,000.00 | $5,000.00 | $1,500.00 | $0.00 |
$0 | $0 | $0 | $0 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$5,650 | $8,150 | $27,390 | $0 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $27,390.00 | $0.00 |
$5,650.00 | $5,650.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $2,500.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$3,950 | $3,950 | $0 | $40,000 |
$0.00 | $0.00 | $0.00 | $0.00 |
$3,801.00 | $3,801.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $27,500.00 |
$0.00 | $0.00 | $0.00 | $5,000.00 |
$0.00 | $0.00 | $0.00 | $7,500.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$148.75 | $148.75 | $0.00 | $0.00 |
$56,513 | $56,513 | $18,640 | $0 |
$55,918.50 | $55,918.50 | $18,639.50 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$594.50 | $594.50 | $0.00 | $0.00 |
$328,614 | $328,614 | $107,179 | $0 |
Ex 10.274
$321,535.50 | $321,535.50 | $107,178.50 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$0.00 | $0.00 | $0.00 | $0.00 |
$7,078.00 | $7,078.00 | $0.00 | $0.00 |
$154,645 | $132,860 | $31,085 | $0 |
$86,505.30 | $86,505.30 | $28,835.10 | $0.00 |
$6,750.00 | $6,750.00 | $2,250.00 | $0.00 |
$17,550.00 | $17,550.00 | $0.00 | $0.00 |
$3,800.00 | $3,800.00 | $0.00 | $0.00 |
$5,000.00 | $5,000.00 | $0.00 | $0.00 |
$32,670.00 | $10,890.00 | $0.00 | $0.00 |
$2,370.00 | $2,365.00 | $0.00 | $0.00 |