1-34087
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52-1889548
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(Commission File Number)
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(IRS Employer Identification No.)
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4800 Montgomery Lane, Suite 220
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Bethesda, MD
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20814
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(Address of Principal Executive Offices)
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(Zip Code)
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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·
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1% of the gross hotel income if the hotel achieves an investment return of 8.5% to 8.99% for 2017, and an additional 1% of gross hotel income if the hotel achieves an investment return of 9.0% or higher for that year; and
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·
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1% of the gross hotel income if the hotel achieves an investment return of 9.0% to 9.49% for 2018, and an additional 1% of gross hotel income if the hotel achieves an investment return of 9.5% or higher for that year.
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·
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0.5% of gross hotel income if the hotel achieves budgeted hotel net operating income (“NOI”);
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·
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25% of any NOI in excess of budgeted NOI for the hotel; and
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·
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if the hotel achieves its budgeted NOI, 25% of any gross hotel income for the hotel in excess of budgeted gross hotel income for the hotel.
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10.1
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Agreement of Purchase and Sale dated as of August 29, 2016 between Leawood ADP, Ltd. and Condor Hospitality Limited Partnership (incorporated by reference to Exhibit 10.1 filed with the Company’s Form 8-K dated August 29, 2016 (001-34087)).
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10.2
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Hotel Management Agreement dated as of December 14, 2016 between TRS KCI Loft, LLC and Presidian Destinations, Ltd.
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10.3
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Loan Agreement dated as of December 14, 2016 among CDOR KCI Loft, LLC, TRS KCI Loft, LLC and Great Western Bank.
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10.4
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Springing Unconditional Guaranty of Payment and Performance dated as of December 14, 2016 by Condor Hospitality Trust, Inc. in favor of Great Western Bank.
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10.5
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Limited Guaranty of Payment and Performance dated as of December 14, 2016 by Condor Hospitality Trust, Inc. in favor of Great Western Bank.
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Condor Hospitality Trust, Inc.
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|
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Date: December 20, 2016
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By:
_/s/ Jonathan J. Gannt
_______________________
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Name: Jonathan J. Gantt
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Title: Chief Financial Officer
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Exhibit
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Description
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10.1
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Agreement of Purchase and Sale dated as of August 29, 2016 between Leawood ADP, Ltd. and Condor Hospitality Limited Partnership (incorporated by reference to Exhibit 10.1 filed with the Company’s Form 8-K dated August 29, 2016 (001-34087)).
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10.2
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Hotel Management Agreement dated as of December 14, 2016 between TRS KCI Loft, LLC and Presidian Destinations, Ltd.
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10.3
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Loan Agreement dated as of December 14, 2016 among CDOR KCI Loft, LLC, TRS KCI Loft, LLC and Great Western Bank.
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10.4
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Springing Unconditional Guaranty of Payment and Performance dated as of December 14, 2016 by Condor Hospitality Trust, Inc. in favor of Great Western Bank.
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10.5
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Limited Guaranty of Payment and Performance dated as of December 14, 2016 by Condor Hospitality Trust, Inc. in favor of Great Western Bank.
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HOTEL MANAGEMENT AGREEMENT
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4
|
|
ARTICLE 1
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DEFINITIONS
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4
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Section 1.01.
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Definitions.
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4
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ARTICLE 2
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TERM OF AGREEMENT
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12
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Section 2.01.
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Term.
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12
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ARTICLE 3
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OPERATION OF THE HOTELS
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12
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Section 3.01.
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Representations by Lessee and Operator; Engagement of Operator.
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12
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Section 3.02.
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Standards of Operation.
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13
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Section 3.03
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Limitations on Operator’s Authority
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15
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Section 3.04.
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Reservations Services and Revenue Management.
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17
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Section 3.05.
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Marketing.
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17
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Section 3.06.
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Consultations Between Lessee and Operator.
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18
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Section 3.07.
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Transactions with Affiliates and Other Relationships.
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18
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Section 3.08.
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Regional Manager.
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18
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Section 3.09.
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Certain Expenses.
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18
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ARTICLE 4
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INDEPENDENT CONTRACTOR
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19
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Section 4.01.
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Operator Status.
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19
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Section 4.02.
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Employees.
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19
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Section 4.03.
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Employee Expenses.
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20
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Section 4.04.
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Employee Benefit Plans.
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20
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Section 4.05.
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Execution of Agreements.
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21
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ARTICLE 5
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INDEMNIFICATION
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21
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Section 5.01.
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Indemnification by Operator.
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21
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Section 5.02.
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Limitations on Indemnification.
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22
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Section 5.03.
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Indemnification by Lessee.
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22
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Section 5.04.
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Survival of Indemnity.
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23
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ARTICLE 6
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BUDGETS AND POLICY MEETINGS
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23
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Section 6.01.
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Budgets.
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23
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Section 6.02.
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Budget Meetings.
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24
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ARTICLE 7
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OPERATING EXPENSES
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24
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Section 7.01.
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Payment of Operating Expenses.
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24
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Section 7.02.
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Operating Expenses Not an Obligation of Operator.
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24
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ARTICLE 8
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BANK ACCOUNTS
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25
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Section 8.01.
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Lessee Revenue Account.
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25
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Section 8.02.
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Operating Account
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25
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Section 8.03.
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Ownership of Accounts
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25
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Section 8.04.
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Exculpation of Operator
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25
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Section 8.05.
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Reimbursement of Operator
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26
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Section 8.06.
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Working Capital Funds
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26
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ARTICLE 9
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BOOKS, RECORDS AND STATEMENTS
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26
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Section 9.01.
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Books and Records.
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26
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Section 9.02.
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Statements.
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27
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ARTICLE 10
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OPERATOR’S FEE AND TRANSFERS TO LESSEE
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28
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Section 10.01.
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Payment of Operator’s Fee.
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28
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ARTICLE 11
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REPAIRS AND MAINTENANCE
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28
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ARTICLE 12
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INSURANCE
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28
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Section 12.01.
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General.
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28
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Section 12.02.
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Workers’ Compensation and Other Employment Insurance.
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29
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Section 12.03.
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Approval of Companies and Cost by Owner and Lessee.
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29
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Section 12.04.
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Maintenance of Coverages.
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29
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Section 12.05.
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Waiver of Subrogation.
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29
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Section 12.06.
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Blanket Coverage.
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29
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Section 12.07.
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Employment Practice Liability
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30
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Section 12.08.
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Cyber/Network/Privacy Liability.
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30
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Section 12.09.
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Liquor Liability.
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30
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Section 12.10.
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Automobile Liability.
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30
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Section 12.11.
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General Liability.
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30
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Section 12.12.
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Property.
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31
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Section 12.13.
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Crime.
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31
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ARTICLE 13
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PROPERTY TAXES, LOCAL TAXES, LEVIES AND OTHER ASSESSMENTS
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31
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Section 13.01.
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Property Taxes.
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31
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Section 13.02.
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Lessee’s Right to Contest.
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31
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ARTICLE 14
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DAMAGE OR DESTRUCTION - CONDEMNATION
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31
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Section 14.01.
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Damage.
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31
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Section 14.02.
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Condemnation.
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31
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ARTICLE 15
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USE OF NAME
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32
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ARTICLE 16
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TERMINATION
|
32
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Section 16.01.
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Inspection Failure.
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32
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Section 16.02.
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Performance Failure.
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32
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Section 16.03.
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Sale of Hotel.
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33
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Section 16.04.
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Bad Acts
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33
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Section 16.05.
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Optional Termination.
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33
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Section 16.06.
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Lessee Change of Control.
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34
|
Section 16.07.
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Operator Change of Control.
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35
|
Section 16.08.
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Bookings Beyond Expiration of Term
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36
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Section 16.09.
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Tax Law Change.
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37
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Section 16.10.
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Default or Termination of Alcoholic Concession Agreement by Operator.
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37
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Section 16.11.
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Termination Fees.
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37
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ARTICLE 17
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DEFAULT AND REMEDIES
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37
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Section 17.01.
|
Events of Default- Remedies.
|
37
|
Section 17.02.
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Rights Not Exclusive.
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39
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ARTICLE 18
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NOTICES
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39
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Section 18.01.
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Notices.
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39
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ARTICLE 19
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ASSIGNMENT
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40
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Section 19.01.
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No Assignment by Operator.
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40
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Section 19.02.
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Assignment by Lessee.
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40
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ARTICLE 20
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SUBORDINATION
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41
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Section 20.01.
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Subordination To Mortgage.
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41
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Section 20.02.
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Foreclosure.
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41
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Section 20.03.
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Estoppel Certificates.
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42
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ARTICLE 21
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MISCELLANEOUS
|
42
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Section 21.01.
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Further Documentation and Reporting Compliance.
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42
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Section 21.02.
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Captions.
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42
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Section 21.03.
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Successors and Assigns.
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42
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Section 21.04.
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Competitive Market Area.
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42
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Section 21.05.
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Assumption of Post Termination Obligations.
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43
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Section 21.06.
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Entire Agreement.
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43
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Section 21.07.
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Governing Law.
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43
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Section 21.08.
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No Political Contributions.
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43
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Section 21.09.
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Eligible Independent Contractor.
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44
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Section 21.10.
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Time of the Essence.
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45
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Section 21.11.
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Offsets.
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45
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Section 21.12.
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Final Accounting.
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45
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Section 21.13.
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Franchisor Communications.
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45
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(i)
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Fiscal Year 1: Beginning January 1, 2017, Lessee shall pay to Operator an amount equal to 1% of Gross Hotel Income for such Fiscal Year if the Hotel achieves an IR of 8.5 % to 8.99% for such Fiscal Year. Lessee shall pay to Operator an additional amount equal to 1% of Gross Hotel Income for such Fiscal Year if the Hotel achieves an IR of 9.0% or higher for such Fiscal Year.
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(ii)
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Fiscal Year 2: Beginning January 1, 2018, Lessee shall pay to Operator an amount equal to 1% of Gross Hotel Income for such Fiscal Year if the Hotel achieves an IR of 9.0% to 9.49% for such Fiscal Year. Lessee shall pay to Operator an additional amount equal to 1% of Gross Hotel Income for such Fiscal Year if the Hotel achieves an IR of 9.5% or higher for such Fiscal Year.
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(iii)
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Year 3: Beginning January 1, 2019 and continuing until the termination of this Agreement, Lessee shall pay to Operator the following amounts, up to a maximum payout of 2% of Gross Hotel Income:
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a.
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0.5% of Gross Hotel Income if the Hotel achieves budgeted NOI.
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b.
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25% of any NOI in excess of budgeted NOI for the Hotel.
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c.
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If the Hotel has achieved its budgeted NOI, 25% of any Gross Hotel Income for the Hotel in excess of budgeted Gross Hotel Income for the Hotel.
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(i)
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The cost of all food and beverages sold or consumed and of all Hotel Operating Equipment and Hotel Operating Supplies;
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(ii)
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Salaries and wages of on-site Hotel personnel, including costs of payroll taxes and employee benefits and amounts payable under bonus plans approved by Lessee. The salaries or wages of other employees or executives of Operator, or any Affiliate of Operator shall in no event be Operating Expenses;
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(iii)
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The cost of all other goods and services obtained by Operator in connection with its operation of the Property including, without limitation, heat and utilities, office supplies and all services performed by third parties, including leasing expenses in connection with telephone and data processing equipment and such other equipment as Lessee shall designate;
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(iv)
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The cost of repairs to and maintenance of the Property to keep the Property in good condition;
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(v)
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Insurance premiums for all insurance maintained with respect to the Property, including without limitation, property damage insurance, public liability insurance, workers’ compensation insurance or insurance required by similar employee benefits acts, employment liability practices insurance, and such business interruption or other insurance as may be provided for protection against claim, liabilities and losses arising from the use and operation of the Hotel and losses incurred with respect to deductibles applicable to the foregoing types of insurance;
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(vi)
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All taxes, assessments and other charges (other than federal, state or local income taxes and franchise taxes or the equivalent) payable by or assessed against Operator or Lessee with respect to the operation of the Hotel, including water and sewer charges;
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(vii)
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Legal fees relating to Hotel operations (excluding legal fees with respect to employee claims), and real estate tax abatement and appeal services excluding legal fees with respect to employee claims;
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(viii)
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The costs and expenses of technical consultants and specialized operational experts for specialized services in connection with non-recurring work on operational, functional, decorating, design or construction problems and activities, including reasonable third party fees reasonably deemed necessary by Lessee for the efficient operation of the Hotels;
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(ix)
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All expenses for marketing and sales, including all expenses of advertising, sales promotion and public relations activities at the Hotels, exclusive of Operator’s marketing manager and similar administrative personnel (which expenses shall be borne by Operator);
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(x)
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Municipal, county and state license and permit fees;
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(xi)
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All normal and recurring fees, assessments and charges due and payable under Franchisor Agreements;
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(xii)
|
Centralized Services, such as revenue management, accounting, or other services approved in the operating budget;
|
(xiii)
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Credit card fees, travel agent commissions and other third party reservation fees and charges;
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(xiv)
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All parking charges and parking rental fees and other expenses associated with revenues received by the Hotels related to parking operations, including valet services, including any related to the option lot;
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(xv)
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All expenses related to the revenues included in Gross Hotel Income, including without limitation, expenses relating to telephone, vending, television, cable television, pay television and similar services;
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(xvi)
|
The costs of obtaining and keeping in force all licenses or permits (including liquor licenses, if any) necessary for the operation of the Hotel and in complying with governmental laws, rules, regulations, ordinances, orders and requirements;
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(xvii)
|
All reasonable travel expenses of Operator’s supervisory personnel on the next level above hotel manager, to include director of engineering, revenue manager and internal auditors (to the extent approved by Lessee) for visits to the Hotels in the performance of their duties hereunder, but not including travel between Operator’s main office and Operator’s regional offices. Travel shall be limited to economy fares;
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(xviii)
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The costs to send above property supervisory personnel to brand conferences, which costs shall be reimbursed in proportion to the number of Lessee’s hotels associated with the brand conference out of Operator’s total portfolio of hotels managed associated with the specific brand conference. Such percentage of reimbursable costs shall be pre-approved by Lessee prior to the date of the conference;
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(xix)
|
Other potential operating expenses which are budgeted for and approved by Lessee provided they are disclosed in advance to Lessee’s designated representative; and
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(xx)
|
Operator’s Fee, if any.
|
(a)
|
Train, supervise, discharge and determine and pay the compensation, fringe benefits, 401(k) retirement plans and other policies and terms of employment of all personnel as may be reasonably required to provide proper operation, supervision, and management of the Hotel in a professional manner suitable to the character of the Hotel;
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(b)
|
Determine the terms for guest admittance to the Hotel and establish all prices, price schedules, rates and rate schedules for rooms, and other amenities and services provided at or in connection with the Hotel;
|
(c)
|
Develop, revise, and implement all prudent policies and practices relating to all aspects of the Hotel, which shall be set forth in one or more policy manuals or other writings, and train and supervise all Hotel employees for compliance with all such policies and practices, including policies and practices relating to: (i) terms and conditions of employment, applicant screening, background checks, selection, hiring, training, supervision, compensation, employee benefits, discipline, dismissal, transfer and replacement; (ii) compliance with laws, including but not limited to anti-discrimination, sexual harassment and Environmental Laws; and (iii) safety procedures, including those relating to the handling of hazardous and other dangerous materials;
|
(d)
|
Select, purchase and install all Inventories and Operating Equipment and Supplies for the Hotel, and to the extent set forth in the Approved Capital Budget, but subject to the requirement to obtain Lessee’s specific authorization for expenditures in the Approved Capital Budget exceeding $10,000, or otherwise requested by Lessee, FF&E and other items on the Approved Capital Budget. Without limiting the generality of the foregoing, Operator agrees to maintain the levels of Inventories and Operating Supplies at standards consistent with past practice and the requirements of the Operating Standard through the date of termination of this Agreement, including the period after a notice of termination of this Agreement has been given by Lessee or Operator;
|
(e)
|
Negotiate and enter into service contracts on Lessee’s behalf which are necessary or desirable in the ordinary course of business in operating the Hotel, including, without limitation, contracts for provision of electricity, gas, water, telephone and other utility services, cleaning services, security services, vermin extermination, trash removal, elevator and boiler maintenance, air conditioning maintenance, master television service, laundry and dry cleaning, entertainment satellite systems and other services necessary for operation of the Hotel in accordance with this Agreement. Unless Lessee otherwise elects, all such service contracts shall be entered into in the Lessee’s or Affiliate of Lessee’s or the Hotel name;
|
(f)
|
Establish all credit policies, and enter into agreements with credit card companies, in connection with the Hotel;
|
(g)
|
(j)
|
(l)
|
(m)
|
Pay all Operating Expenses, including but not limited to Impositions and insurance premiums (whether for insurance maintained in accordance with this Agreement by Lessee, Lessor or Operator);
|
(n)
|
Pay all gross receipts, transient occupancy and similar taxes;
|
(o)
|
(p)
|
(r)
|
(s)
|
Comply with the provisions of any covenants, conditions and restrictions recorded against the Hotel.
|
Section 12.07.
|
Employment Practice Liability
|
(i)
|
any “person”, as that term is used in Section 13(d) and Section 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), becomes, is discovered to be, or files a report on Schedule 13D or 14D-1 (or any successor schedule, form or report) disclosing that such person is, a beneficial owner (as defined in Rule 13d-3 under the Exchange Act or any successor rule or regulation), directly or indirectly, of securities of Condor Hospitality Trust, Inc., the parent of Lessee (the “Parent”) representing 50% or more of the combined voting power of the Parent’s then outstanding securities entitled to vote generally in the election of directors;
|
(ii)
|
individuals who, as of the date of this Agreement, constitute the Board of Directors of the Parent or their duly elected successors cease for any reason to constitute at least a majority of the Board of Directors of the Parent;
|
(iii)
|
the Parent is merged, consolidated or reorganized into or with another corporation or other legal person, or securities of the Parent are exchanged for securities of another corporation or other legal person, and immediately after such merger, consolidation, reorganization or exchange less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held, directly or indirectly, in the aggregate by the holders of securities entitled to vote generally in the election of directors of the Parent immediately prior to such transaction; or
|
(iv)
|
the Parent in any transaction or series of related transactions, sells all or substantially all of its assets to any other corporation or other legal person and less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such sale or sales are held, directly or indirectly, in the aggregate by the holders of securities entitled to vote generally in the election of directors of the Parent immediately prior to such sale.
|
(a)
|
Operator shall quit, vacate, surrender, and deliver to Owner peacefully and promptly the Hotel and all Permits and all books, records, accounts, contracts, keys, Working Capital, and all other pertinent and necessary documents and records pertaining to the Hotel and the operation thereof. If any Permits, including but not limited to any liquor license, is issued to Operator or any of its Affiliates, Operator shall, to the extent permitted by Legal Requirements, assign or cause its Affiliate holding any such Permits to assign to Lessee or its designee all of the interest of Operator or its Affiliates in such Permits and the Hotel liquor inventory without charge (other than any out of pocket expenses of the assignment, which shall be Operating Expenses), or (if such assignment is not permitted by applicable law) to use reasonable efforts to provide Owner or Owner’s designee with the use and benefits of such Permits and Hotel liquor inventory until such time (not to exceed 180 days) as Owner and/or its designee are able to obtain new Permits; provided that Lessee shall indemnify, defend and hold harmless Operator and its Affiliates from claims and liabilities arising from the post-termination use of such Permits;
|
(b)
|
Operator shall deliver to Lessee any and all of Lessee’s properties and assets within the possession of Operator, including keys, locks and safe combinations, files, correspondence, information regarding group bookings, reservation lists, ledgers, bank statements for the Operating Account and FF&E Reserve, accounting books and records, all electronic data maintained by Operator relating to the Hotel (which data shall be delivered on computer disc in a format that is accessible and readable by Lessee’s then current computer systems), insurance policies, bonds and other documents, agreements, leases, licenses, records and plans (including, without limitation, the as-built or record set plans) relating to the operation of the Hotel, provided that Operator may retain possession of copies of any of the foregoing;
|
(c)
|
Operator shall keep confidential all information concerning the Hotel obtained by Operator or in Operator's possession, and not use any of it for its own account, for the account of others or in any other manner that would directly or indirectly compete with the Hotel;
|
(d)
|
Operator shall remit to Owner the balance (if any) of the Operating Account and the FF&E Reserve, after computation and disbursement to Operator of all accrued and unpaid Management Fees and Operating Expenses reimbursable to Operator;
|
(e)
|
As expeditiously as reasonably possible, prepare and deliver to Lessee the financial reports required under this Agreement with respect to the final Accounting Period and Fiscal Year and remit to Owner the amount (if any) shown as owing to Owner in the final financial statements on account of previously overpaid Management Fee, Operating Expenses reimbursable to Operator or other payments due under this Agreement; and
|
(f)
|
Operator shall do all acts and execute and deliver all documents reasonably requested by Lessee in connection with the transfer, all without consideration therefor, and otherwise reasonably cooperate with Owner and any successor operator to insure or facilitate orderly continuation of the business of the Hotel;
|
(g)
|
The rights and liabilities of the Parties having accrued prior to termination of this Agreement shall continue;
|
(h)
|
Operator will turn over possession of the Hotel in a clean, safe and secure manner;
|
(i)
|
Prior to termination, Operator agrees to maintain operating inventories at standards consistent with past practice and the Hotel pursuant to the Annual Plan and existing repair and maintenance schedules;
|
(j)
|
Lessee, at its option, may install a shadow management team in the Hotel during the ten (10) day period immediately preceding the termination date to have daily access to the Hotel and its books and records; provided that such team shall not (a) unreasonably interfere with the management and operations of the Hotel, and (b) consist of more than ten (10) members. Lessee shall use its reasonable efforts to cause the entity that succeeds Operator to hire a sufficient number of Hotel Employees to avoid a WARN Act violation;
|
(k)
|
Operator shall at all times fully co-operate with and explain all aspects of the business and operation of the Hotel to Lessee or any persons authorized by Lessee to allow Owner or such persons to successfully and efficiently conduct the business after the expiration of the Term.
|
(i)
|
during the Operating Term, Operator shall not permit wagering activities to be conducted at or in connection with the Hotels;
|
(ii)
|
during the Operating Term, Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Condor Hospitality Trust, Inc.;
|
(iii)
|
during the Operating Term, no more than 35% of the total combined voting power of Operator’s outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Condor Hospitality Trust, Inc.; and
|
(iv)
|
At the effective time, Operator shall be actively engaged in the trade or business of operating “qualified lodging facilities” (defined below) for a person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to the Parent or Lessee (“Unrelated Persons”). In order to meet this requirement, Operator agrees that it (i) shall derive at least 10% of both its revenue and profit from operating “qualified lodging facilities” for Unrelated Persons and (ii) shall comply with any regulations or other administrative guidance under Section 856(d)(9) of the Code with respect to the amount of hotel management business with Unrelated Persons that is necessary to qualify as an “eligible independent contractor” with the meaning of such Code Section.
|
Hotel
|
Owner
|
Location
|
# of Rooms
|
Aloft
|
CDOR KCI LOFT, LLC
|
11620 Ash Street, Leawood, KS
|
156
|
Hotel
|
Location
|
Franchisor
|
(i) | the representations and warranties contained in this Agreement and in other Loan Documents are correct in all material respects on and as of the date of disbursement of the PIP Funds to Borrowers as though made on and as of such date; |
(ii) | no Event of Default or event which, with the passage of time or the giving of notice or both would constitute an Event of Default, has occurred or would result from the disbursement of the PIP Funds to Borrowers; |
(iii) | there has been no material change in the financial condition of either Borrower since the effective date of this Agreement that would have a Material Adverse Effect as to such Borrower; and |
(iv) | there are no construction liens filed against the Real Property that have not been released of record. |
(i) | a copy of the Franchisor's property improvement plan for the Real Property (the " PIP "); |
(ii) | c opies of all pay requests , applications, invoices and other documentation reasonably requested by Bank as evidence that the renovations made pursuant to the PIP, for which payment is requested, have been completed and the amount of the advance is supported by the documentation furnished; and |
(iii) | such other documents, property information and other preconditions as Bank may reasonably require. |
Borrowers:
CDOR KCI LOFT, LLC
TRS KCI LOFT, LLC
Attn: Jonathan Gantt
4800 Montgomery Lane, Suite 220
Bethesda, MD 20814
Facsimile: (402) 371-4229
With a copy to:
Jason D. Benson
McGrath North
1601 Dodge St Ste 3700
Omaha, NE 68102
Facsimile: (402) 952-6864
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Bank:
Michael Phelps
Vice President – Business Banking
Great Western Bank
9290 W. Dodge Rd Ste 401
Omaha, NE 68114
Telephone: (402) 952-6016
Facsimile: (402) 330-2030
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With a copy to:
Jacqueline A. Pueppke
Baird Holm LLP
1700 Farnam Street, Suite 1500
Omaha, NE 68102
Telephone: (402) 636-8270
Facsimile: (402) 344-0588
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(a)
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Payment of all Obligations under the Loan Agreement and payment of any other indebtedness, obligations, fees and costs due and owing from either Borrower to Bank under the Loan Documents;
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(b)
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Performance of all covenants, conditions and obligations of either Borrower under the Loan Documents;
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(c) | Payment and performance of all obligations of Guarantor under this Springing Guaranty; |
(d) | Payment and performance of all future advances and other obligations of Borrower to Bank, whether now existing or hereafter incurred or created, whether voluntary or involuntary, whether absolute or contingent, liquidated or unliquidated, determined or undetermined, secured or unsecured, whether on original, renewed, extended or revised terms, whether Borrower may be liable individually or jointly with others, or whether incurred directly or acquired by Bank by assignment or otherwise; and |
(e) | Payment and performance of all modifications, amendments, extensions, and renewals, however evidenced, of any of the Guaranteed Obligations. |
(a) | Election of Remedies . Guarantor waives all rights and defenses arising out of an election of remedies by Bank, including without limitation in connection with any bankruptcy or other debtor relief laws or under any other applicable federal, state or local law, including, but not limited to, those purporting to reduce Bank's right against Guarantor in proportion to the principal amount of the Guaranteed Obligations. |
(b) | Statute of Limitations . To the maximum extent permitted by law, Guarantor waives the benefit of the statute of limitations affecting Guarantor's liability hereunder or the enforcement hereof. |
(c) | Action Against Borrowers and Collateral . Guarantor waives all right to require Bank to: (i) proceed against either Borrower, any endorser, cosigner, other guarantor or other person liable on any Guaranteed Obligation; (ii) join either Borrower or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation in any action or actions that may be brought and prosecuted by Bank solely and separately against Guarantor on any Guaranteed Obligation; (iii) proceed against any item or items of collateral securing any Guaranteed Obligation or any guaranty thereof; or (iv) pursue or refrain from pursuing any other remedy whatsoever in Bank's power. |
(d) | Borrower's Defenses . Guarantor waives any defense arising by reason of any disability or other defense of either Borrower, either Borrower's successors or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation including, without limitation, any statute of limitation defense that may be available to either Borrower or such other Person. Until all Guaranteed Obligations have been paid in full, even though it may be in excess of the liability incurred hereby and Bank has no further commitment to lend or extend financial accommodations to either Borrower, Guarantor shall not have any right of subrogation and Guarantor waives any benefit of and right to participate in any collateral now or hereafter held by Bank. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of sale of any collateral securing any Guaranteed Obligation or any guaranty thereof, and notice of the existence, creation or incurring of new or additional Guaranteed Obligations. |
(e) | Borrower's Financial Condition . Guarantor hereby recognizes, acknowledges and agrees that advances may be made from time to time with respect to any Guaranteed Obligation without authorization from or notice to Guarantor even though the financial condition of either Borrower, any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation may have deteriorated since the date of this Springing Guaranty. Guarantor waives all right to require Bank to disclose any information with respect to any Guaranteed Obligation; the financial condition, credit or character of either Borrower, any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation; any collateral securing any Guaranteed Obligation or any guaranty thereof; or any action or inaction on the part of Bank, either Borrower or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation. Guarantor hereby assumes the responsibility for being informed of the financial condition, credit and character of either Borrower and of all circumstances bearing upon the risk of non-payment of any Guaranteed Obligation which diligent inquiry would reveal. |
(a) | The occurrence of an "Event of Default" (as defined in the Loan Agreement) under the Loan Agreement; or |
(b) | Guarantor fails to perform any of its obligations under this Springing Guaranty within 30 days after written notice from Bank; or |
(c) | Guarantor attempts to revoke this Springing Guaranty or this Springing Guaranty becomes ineffective for any reason; or |
(d) | any representation or warranty made or given by Guarantor to Bank proves to be false or misleading in any material respect; or |
(e) | Guarantor becomes insolvent or the subject of any bankruptcy proceeding or other debtor relief proceeding which remains undismissed or unstayed for a period of 60 days. |
(a) | Governing Law . This Springing Guaranty shall be governed by and construed according to the internal laws of the State of Nebraska without regard to conflict of law principles. Guarantor hereby submits to the jurisdiction of the Nebraska state courts sitting in Douglas County, Nebraska and the United States District Court for the District of Nebraska. |
(b) | Headings . The headings used herein are solely for the purpose of identification and have no legal significance. |
(c) | Entire Agreement . This Springing Guaranty constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and undertaking both written and orally between the parties with respect to the subject matter contained in this Springing Guaranty. |
(d) | Severability . Should any one or more provisions of this Springing Guaranty be determined to be illegal or unenforceable, all other provisions shall remain effective. |
(e) | Drafting of Agreement . This Springing Guaranty, as a matter of convenience for all parties, has been prepared by Bank. The parties hereto agree that in the event of any ambiguity in this Springing Guaranty, such ambiguity shall not be construed against Bank. It is the express intention of the parties that all aspects of this Springing Guaranty shall be construed and interpreted in as broad a manner as possible to the benefit and protection of Bank. |
(f) | Interpretation . If there is more than one Guarantor executing this Springing Guaranty, the term " Guarantor " shall mean all and any one or more of them. As used in this Springing Guaranty, neuter terms include the masculine and feminine, and vice versa. The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. Terms used, but not defined herein, shall have the meaning set forth in the Loan Agreement. |
Title: |
Senior Vice President and
Chief Financial Officer |
(a)
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Payment of all Losses (as defined below) Bank incurs due to fraud by or on behalf of any Borrower in connection with the making or the servicing of either Loan;
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(b)
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Payment of all Losses Bank incurs due to theft by or on behalf of any Borrower; and
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(c)
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Payment of all Losses (as defined below) Bank incurs due to the filing of an involuntary bankruptcy or other debtor relief proceeding against any Borrower.
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(a) | Election of Remedies . Guarantor waives all rights and defenses arising out of an election of remedies by Bank, including without limitation in connection with any bankruptcy or other debtor relief laws or under any other applicable federal, state or local law, including, but not limited to, those purporting to reduce Bank's right against Guarantor in proportion to the principal amount of the Guaranteed Obligations. |
(b) | Statute of Limitations . To the maximum extent permitted by law, Guarantor waives the benefit of the statute of limitations affecting Guarantor's liability hereunder or the enforcement hereof. |
(c) | Action Against Borrowers and Collateral . Guarantor waives all right to require Bank to: (i) proceed against either Borrower, any endorser, cosigner, other guarantor or other person liable on any Guaranteed Obligation; (ii) join either Borrower or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation in any action or actions that may be brought and prosecuted by Bank solely and separately against Guarantor on any Guaranteed Obligation; (iii) proceed against any item or items of collateral securing any Guaranteed Obligation or any guaranty thereof; or (iv) pursue or refrain from pursuing any other remedy whatsoever in Bank's power. |
(d) | Borrower's Defenses . Guarantor waives any defense arising by reason of any disability or other defense of either Borrower, either Borrower's successors or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation including, without limitation, any statute of limitation defense that may be available to either Borrower or such other Person. Until all Guaranteed Obligations have been paid in full, even though it may be in excess of the liability incurred hereby and Bank has no further commitment to lend or extend financial accommodations to either Borrower, Guarantor shall not have any right of subrogation and Guarantor waives any benefit of and right to participate in any collateral now or hereafter held by Bank. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of sale of any collateral securing any Guaranteed Obligation or any guaranty thereof, and notice of the existence, creation or incurring of new or additional Guaranteed Obligations. |
(e) | Borrower's Financial Condition . Guarantor hereby recognizes, acknowledges and agrees that advances may be made from time to time with respect to any Guaranteed Obligation without authorization from or notice to Guarantor even though the financial condition of either Borrower, any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation may have deteriorated since the date of this Limited Guaranty. Guarantor waives all right to require Bank to disclose any information with respect to any Guaranteed Obligation; the financial condition, credit or character of either Borrower, any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation; any collateral securing any Guaranteed Obligation or any guaranty thereof; or any action or inaction on the part of Bank, either Borrower or any endorser, cosigner, other guarantor or other Person liable on any Guaranteed Obligation. Guarantor hereby assumes the responsibility for being informed of the financial condition, credit and character of either Borrower and of all circumstances bearing upon the risk of non-payment of any Guaranteed Obligation which diligent inquiry would reveal. |
(a) | within fifty (50) days after the end of each fiscal quarter, copies of Guarantor's SEC Form 10-Q; |
(b) | within ninety-five (95) days after the end of each fiscal year, copies of Guarantor's SEC Form 10-K and the operating statement for the Hotel that is used in preparing Guarantor's consolidated audit by KMPG; |
(c) | Within one hundred twenty (120) days after the end of each fiscal year, a copy of Guarantor's annual financial statements audited by independent public accountants reasonably acceptable to Bank and otherwise in a form and substance reasonably satisfactory to Bank; |
(d) | Within forty-five (45) days after submission to the Internal Revenue Service, a copy of Guarantor's annual federal tax return, including all schedules attached thereto; and |
(e) | Guarantor will maintain as of the end of each fiscal quarter a "Condor Debt Service Coverage Ratio" (as defined in the Loan Agreement) of at least 1.05 to 1.00. Any violations of the Condor Debt Service Coverage Ratio may be cured in accordance with the terms of Section 5.01(l) of the Loan Agreement. |
(a) | The occurrence of an "Event of Default" (as defined in the Loan Agreement) under the Loan Agreement; or |
(b) | Guarantor fails to perform any of its obligations under this Limited Guaranty, within 30 days after written notice from Bank; or |
(c) | Guarantor attempts to revoke this Limited Guaranty or this Limited Guaranty becomes ineffective for any reason; or |
(d) | any representation or warranty made or given by Guarantor to Bank proves to be false or misleading in any material respect; or |
(e) | Guarantor becomes insolvent or the subject of any bankruptcy proceeding or other debtor relief proceeding which remains undismissed or unstayed for a period of 60 days. |
(a) | Governing Law . This Limited Guaranty shall be governed by and construed according to the internal laws of the State of Nebraska without regard to conflict of law principles. Guarantor hereby submits to the jurisdiction of the Nebraska state courts sitting in Douglas County, Nebraska and the United States District Court for the District of Nebraska. |
(b) | Headings . The headings used herein are solely for the purpose of identification and have no legal significance. |
(c) | Entire Agreement . This Limited Guaranty constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and undertaking both written and orally between the parties with respect to the subject matter contained in this Limited Guaranty. |
(d) | Severability . Should any one or more provisions of this Limited Guaranty be determined to be illegal or unenforceable, all other provisions shall remain effective. |
(e) | Drafting of Agreement . This Limited Guaranty, as a matter of convenience for all parties, has been prepared by Bank. The parties hereto agree that in the event of any ambiguity in this Limited Guaranty, such ambiguity shall not be construed against Bank. It is the express intention of the parties that all aspects of this Limited Guaranty shall be construed and interpreted in as broad a manner as possible to the benefit and protection of Bank. |
(f) | Interpretation . If there is more than one Guarantor executing this Limited Guaranty, the term " Guarantor " shall mean all and any one or more of them. As used in this Limited Guaranty, neuter terms include the masculine and feminine, and vice versa. The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. Terms used, but not defined herein, shall have the meaning set forth in the Loan Agreement. |