UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 11, 2012

SUMMIT HOTEL PROPERTIES, INC.
 (Exact Name of Registrant as Specified in its Charter)

Maryland
(State or Other Jurisdiction of
Incorporation or Organization)
001-35074
(Commission File Number)
 
27-2962512
(I.R.S. Employer Identification No.)

SUMMIT HOTEL OP, LP
(Exact Name of Registrant as Specified in its Charter)

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
000-54273
(Commission File Number)
20-0617340
(I.R.S. Employer Identification No.)
 

2701 South Minnesota Avenue, Suite 6
Sioux Falls, South Dakota 57105
(Address of Principal Executive Offices) (Zip Code)

(605) 361-9566
(Registrants’ telephone number, including area code)

Not applicable
(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 240.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 
 
 

Item 1.01.     Entry into a Material Definitive Agreement.

Please see the information in Item 5.03 below, which is incorporated by reference herein.

Item 5.03.     Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On April 11, 2012, Summit Hotel GP, LLC (“Summit GP”), a wholly owned subsidiary of Summit Hotel Properties, Inc. (“Summit”) and the sole general partner of Summit Hotel OP, LP (the “Operating Partnership”),  on its own behalf as general partner of the Operating Partnership and on behalf of the limited partners, executed the Second Amendment (the “Second Amendment”) to the First Amended and Restated Agreement of Limited Partnership, as amended by the First Amendment thereto (the “Limited Partnership Agreement”). The Second Amendment was made effective as of October 26, 2011.

The purpose of the Second Amendment was to clarify certain tax allocation and capital account maintenance provisions of the Limited Partnership Agreement.  Specifically, the Second Amendment:

 
·
corrected a drafting error in the First Amendment that could have resulted in Summit, as the holder of the Operating Partnership’s Series A preferred units, which the Operating Partnership issued to Summit in connection with Summit’s public offering of Series A preferred stock in October 2011, receiving allocations of profits and loss in excess of the preferred return on the Series A preferred units;
 
 
·
provides Summit GP the discretion not to revalue the property of the Operating Partnership for capital account purposes in connection with certain issuances of additional partnership units of the Operating Partnership; and
 
 
·
memorializes the Operating Partnership’s allocation of profit and loss among the partners of the Operating Partnership as though its taxable year had ended on February 14, 2011, the closing date of Summit’s initial public offering and the date on which the Operating Partnership first issued common units to the Operating Partnership’s partners, including Summit and Summit GP.
 
The Second Amendment is attached hereto as Exhibit 3.1 and is incorporated into this Item 5.03 by this reference.
 
Item 9.01      Financial Statements and Exhibits

(d)  Exhibits.

 
3.1
Second Amendment to First Amended and Restated Agreement of Limited Partnership of Summit Hotel OP, LP, dated April 11, 2012 and effective as of October 26, 2011.
 
 
 
 
 
 
 
 
SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
SUMMIT HOTEL PROPERTIES, INC.
 
       
 
By:
/s/ Christopher R. Eng    
 
Name: Christopher R. Eng
 
Date: April 16, 2012
Title: Vice President, General Counsel and Secretary
 
       
 
 
SUMMIT HOTEL OP, LP
 
     
 
By: Summit Hotel Properties, Inc., its General Partner
 
       
       
 
By:
/s/ Christopher R. Eng    
 
Name: Christopher Eng
 
Date: April 16, 2012
Title: Vice President, General Counsel and Secretary
 
       

 
 
 
 
EXHIBIT INDEX

Exhibit
Number
 
Description                                                                                                            
     
3.1
 
Second Amendment to First Amended and Restated Agreement of Limited Partnership of Summit Hotel OP, LP, dated April 11, 2012 and effective as of October 26, 2011.

 
 
Exhibit 3.1
 
SECOND AMENDMENT TO THE
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
SUMMIT HOTEL OP, LP

April 11, 2012

Pursuant Article XI of the First Amended and Restated Agreement of Limited Partnership of Summit Hotel OP, LP (the “Initial Partnership Agreement”), as amended by the First Amendment to the Initial Partnership Agreement, dated as of October 26, 2011 (the “First Amendment” and, together with the Initial Partnership Agreement, the “Partnership Agreement”), the General Partner 1 hereby amends the Partnership Agreement, effective as of October 26, 2011, as follows to (i) correct a drafting error in the First Amendment that could have resulted in Series A Preferred Units receiving allocations of Profits and Loss in excess of the Series A Preferred Return, (ii) provide the General Partner the discretion not to revalue the property of the Partnership in connection with certain issuances of additional Partnership Units, and (iii) memorialize the Partnership’s allocation of Profits and Loss among the Partners as though the taxable year had ended on February 14, 2011, the date on which the Partnership issued Common Units to Summit REIT and the General Partner in connection with Summit REIT’s issuance of REIT Shares in its initial public offering:

1.              Percentage Interest .  The defined term “Percentage Interest” in Article I is deleted in its entirely and the following new defined term is inserted in its place:
 
“ Percentage Interest ” means the percentage determined by dividing the number of Common Units of a Partner by the sum of the number of Common Units of all Partners, treating LTIP Units, in accordance with Section 4.04(a), as Common Units for this purpose.
 
2.             Additional Capital Contributions and Issuance of Additional Partnership Units .  Article 4, Section 4.02(a)(i)(4) of the Partnership Agreement is hereby deleted in its entirety and the following new Section 4.02(a)(i)(4) is inserted in its place:
 
“(4) Common Units are issued to all Partners owning Common Units or LTIP Units in proportion to their respective Percentage Interests.”
 
 
 
1 Capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in the Partnership Agreement.
 
 
 
 
 
3.              Capital Accounts .  Article 4, Section 4.06 of the Partnership Agreement is hereby deleted in its entirety and the following new Section 4.06 is inserted in its place:
 
“ Capital Accounts .  A separate capital account (a “ Capital Account ”) shall be established and maintained for each Partner in accordance with Regulations Section 1.704-1(b)(2)(iv).  If (i) a new or existing Partner acquires an additional Partnership Interest in exchange for more than a de minimis Capital Contribution, (ii) the Partnership distributes to a Partner more than a de minimis amount of Partnership property as consideration for a Partnership Interest, (iii) the Partnership is liquidated within the meaning of Regulation Section 1.704-1(b)(2)(ii)(g) or (iv) the Partnership grants a Partnership Interest (other than a de minimis Partnership Interest) as consideration for the provision of services to or for the benefit of the Partnership to an existing Partner acting in a Partner capacity, or to a new Partner acting in a Partner capacity or in anticipation of being a Partner, the General Partner shall revalue the property of the Partnership to its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) in accordance with Regulations Section 1.704-1(b)(2)(iv)(f); provided that (i) the issuance of any LTIP Unit shall be deemed to require a revaluation pursuant to this Section 4.06 and (ii) the General Partner may elect not to revalue the property of the Partnership in connection with the issuance of additional Partnership Units pursuant to Section 4.02 to the extent it determines, in its sole and absolute discretion, that revaluing the property of the Partnership is not necessary or appropriate to reflect the relative economic interests of the Partners.  When the Partnership’s property is revalued by the General Partner, the Capital Accounts of the Partners shall be adjusted in accordance with Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), which generally require such Capital Accounts to be adjusted to reflect the manner in which the unrealized gain or loss inherent in such property (that has not been reflected in the Capital Accounts previously) would be allocated among the Partners pursuant to Section 5.01 hereof if there were a taxable disposition of such property for its fair market value (as determined by the General Partner, in its sole and absolute discretion, and taking into account Section 7701(g) of the Code) on the date of the revaluation.  In making those adjustments to the Capital Accounts of the Partners occurring during any taxable year in which this Agreement is effective, the General Partner shall allocate the adjustments, to the extent possible and in its sole and absolute discretion, to cause the Capital Account attributable to each Common Unit to be equal in amount; provided that the General Partner shall not make any allocation that could cause any holder of Partnership Units to recognize income or gain for federal income tax purposes.”
 
 
 
 
 
4.              Percentage Interests .  Article 4, Section 4.07 of the Partnership Agreement is hereby deleted in its entirety and the following new Section 4.07 is inserted in its place:
 
“ Percentage Interests .  If the number of outstanding Common Units or LTIP Units increases or decreases during a taxable year, each Partner’s Percentage Interest   shall be adjusted by the General Partner effective as of the effective date of each such increase or decrease to a percentage equal to the number of Common Units or LTIP Units held by such Partner divided by the aggregate number of Common Units and LTIP Units outstanding after giving effect to such increase or decrease.  If the Partners’ Percentage Interests are adjusted pursuant to this Section 4.07, the Profits and Losses for the taxable year in which the adjustment occurs shall be allocated between the part of the year ending on the day when that adjustment occurs and the part of the year beginning on the following day either (i) as if the taxable year had ended on the date of the adjustment or (ii) based on the number of days in each part.  The General Partner, in its sole and absolute discretion, shall determine which method shall be used to allocate Profits and Losses for the taxable year in which the adjustment occurs; provided , however , that, in connection with the issuance of Common Units on February 14, 2011, the General Partners shall allocate Profits and Losses as if the taxable year had ended on the date.  The allocation of Profits and Losses for the earlier part of any year shall be based on the Percentage Interests before adjustment, and the allocation of Profits and Losses for the later part shall be based on the adjusted Percentage Interests.  In the event there is an increase or decrease in the number of outstanding Partnership Units (other than Common Units or LTIP Units) during a taxable year, the General Partner shall have similar discretion, as provided in the preceding sentences of this Section 4.07, to allocate items of Profit and Loss between the part of the year ending on the day when that increase or decrease occurs and the part of the year beginning on the following day, and that allocation shall take into account the Partners’ relative interests in those items of Profit and Loss before and after such increase or decrease.”
 
5.             Except as modified herein, all terms and conditions of the Partnership Agreement shall remain in full force and effect, which terms and conditions the General Partner hereby ratifies and confirms.
 
 
 
 
 
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set forth above.
 
 
GENERAL PARTNER :
     
 
SUMMIT HOTEL GP, LLC
 
a Delaware limited liability company
     
 
By:
Summit Hotel Properties, Inc.,
   
a Maryland corporation, its sole member
     
 
By:
/s/ Christopher R. Eng
 
Name:
Christopher R. Eng
 
Title:
Vice President, General Counsel
   
and Secretary
     
 
LIMITED PARTNERS :
     
 
SUMMIT HOTEL GP, LLC
 
a Delaware limited liability company, as
Attorney-in-Fact for the Limited Partners
pursuant to Section 8.02 of the Partnership Agreement
     
 
By:
Summit Hotel Properties, Inc.,
   
a Maryland corporation, its sole member
     
 
By:
/s/ Christopher R. Eng
 
Name:
Christopher R. Eng
 
Title:
Vice President, General Counsel
   
and Secretary
 





[ Signature page for Amendment re: Second Amendment -- April 2012 ]