AGREEMENT AND PLAN OF MERGER SUMMIT HOTEL PROPERTIES, LLC SUMMIT HOTEL OP, LP
Annex B
SUMMIT
HOTEL OP, LP
AGREEMENT AND PLAN OF MERGER (this
“Agreement”), dated as of August 5,
2010 by and between Summit Hotel Properties, LLC, a South Dakota
limited liability company (the “LLC”),
and Summit Hotel OP, LP, a Delaware limited partnership (the
“OP”).
RECITALS
WHEREAS, the parties hereto have determined that it is in their
respective best interests, on the terms and subject to the
conditions hereinafter set forth, that (i) the LLC be
merged with and into the OP, with the OP surviving, and
(ii) all of the outstanding Class A,
Class A-1,
Class B and Class C limited liability company
interests in the LLC (collectively, the “Membership
Interests”) be converted into the right to receive
the Aggregate Merger Consideration (as defined below) as set
forth herein;
WHEREAS, the transactions contemplated by this Agreement are
intended to coincide with and be a component part of the
formation and underwritten initial public offering (the
“IPO”) of Summit Hotel Properties, Inc.,
a Maryland corporation (the “REIT”), the
general partner of the OP;
NOW, THEREFORE, for good and valuable consideration and in
consideration of the foregoing and of the representations,
warranties, covenants and agreements contained herein, the
parties, each intending to be legally bound hereby, agree as
follows:
ARTICLE 1
THE MERGER
1.1. The Merger. Subject to the terms and
conditions of this Agreement, and in accordance with the
provisions of the South Dakota Limited Liability Company Act
(the “SDLLCA”) and the Delaware Revised
Uniform Limited Partnership Act (the
“DRULPA”), the LLC shall be merged with
and into the OP and the separate existence of the LLC shall
thereupon cease (the ‘Merger”). The OP
shall be the surviving entity in the Merger (sometimes
hereinafter referred to as the “Surviving
Entity”) and shall continue to be governed by the
laws of the State of Delaware, and the separate existence of the
Surviving Entity as a Delaware limited partnership, with all its
rights, privileges, immunities, powers and franchises, shall
continue unaffected by the Merger. The Merger shall have the
effects specified in the SDLLCA and the DRULPA.
1.2. The Closing. Subject to the terms and
conditions of this Agreement, the closing of the Merger (the
“Closing”) shall take place (a) at
the offices of Hunton & Xxxxxxxx LLP, Riverfront
Plaza, East Tower, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, on
the day upon which all of the conditions to the Merger shall
have been satisfied or waived in writing, or (b) at such
other time, date or place as the LLC and the OP may agree. The
date on which the Closing occurs is hereinafter referred to as
the “Closing Date.”
1.3. Effective Time. If all the conditions to
the Merger set forth in Article 4 have been satisfied or
waived in accordance herewith and this Agreement has not been
terminated as provided in Article 5, upon the Closing, the
parties hereto will cause (i) a certificate of merger
substantially in the form attached hereto as
Exhibit A (the “LLC Certificate of
Merger”) to be executed and filed with the Office
of the Secretary of the State of South Dakota, as provided in
the SDLLCA and (ii) a certificate of merger substantially
in the form attached hereto as Exhibit B (the
“OP Certificate of Merger,” and together
with the LLC Certificate of Merger, the “Certificates
of Merger”) to be executed and filed with the
Office of the Secretary of the State of Delaware, as provided in
the DRULPA. The Merger will become effective at the time and on
the date
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specified in the Certificates of Merger, or, absent any such
indication, upon acceptance of the filings thereof by the States
(the “Effective Time”).
1.4. Name and Location of Surviving Entity.
The name of the Surviving Entity, “Summit Hotel OP,
LP,” shall continue unchanged at the Effective Time. The
address of the Surviving Entity will be: 0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 0, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000.
1.5. Certificate of Limited Partnership. The
certificate of limited partnership of the OP shall be the
certificate of limited partnership of the Surviving Entity until
thereafter changed or amended in accordance with the provisions
thereof and applicable law.
1.6. Partnership Agreement. The First Amended
and Restated Agreement of Limited Partnership of the OP (the
“OP Agreement”) shall be the partnership
agreement of the Surviving Entity until thereafter changed or
amended in accordance with the provisions thereof and applicable
law.
1.7. Effect on Membership Interests.
(a) At the Effective Time, by virtue of the Merger, and
without any further action on the part of any member of the LLC
(each, a “Member” and collectively, the
“Members”):
(i) all of the Membership Interests will be converted into
a total of 9,993,992 units of limited partnership interest
in the OP (“OP Units,” and
such aggregate number of OP Units, ‘Aggregate
Merger Consideration”). The Aggregate Merger
Consideration will be allocated among the Class A,
Class A-1,
Class B and Class C Membership Interests as set forth
on Exhibit C hereto.
(ii) Members holding Class A,
Class A-1,
Class B and Class C Membership Interests will be
entitled to receive a number of OP Units equal to the
product of (i) the aggregate number of OP Units
allocable to the applicable class of Membership Interests as set
forth on Exhibit C multiplied by
(ii) the percentage represented by (A) the
Member’s adjusted capital contribution to the LLC
represented by interests of the class, as defined in the Third
Amended and Restated Operating Agreement for the LLC (the
“Operating Agreement”) and as reflected
in the books and records of the LLC, divided by (B) the
aggregate adjusted capital contributions of all Members holding
Membership Interests of the class represented by interests of
the class, in each case, determined as of the close of the
business day immediately prior to the Effective Time. Examples
are described on Exhibit C attached hereto.
(iii) No fractional OP Units will be issued pursuant
hereto. Any fractional OP Unit will be rounded up or down
to the nearest whole OP unit.
(b) The rights of holders of the OP Units, as limited
partners of the OP, as of the Closing, including rights with
respect to redemption of OP Units, will be as set forth in
the OP Agreement.
(c) The name of each Member, and the number of
OP Units issued to such Member, will be recorded in the
books and records of the OP.
(d) Each Membership Interest will no longer be outstanding
and will be canceled and retired and will cease to exist.
1.8. Rights Upon Exchange.
(a) The Aggregate Merger Consideration will be deemed to
have been issued in full satisfaction of all rights pertaining
to the Membership Interests.
(b) At and after the Effective Time, there will be no
transfers on the books and records of the LLC of Membership
Interests which were outstanding immediately prior to the
Effective Time.
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ARTICLE 2
REPRESENTATIONS
AND WARRANTIES
2.1. Representations and Warranties of the
LLC. The LLC hereby represents and warrants to the OP as
follows:
(a) Organization and Good Standing. The
LLC has been duly formed and is validly existing as a limited
liability company in good standing under the SDLLCA with the
requisite limited liability company power and authority to own,
lease and operate its assets, conduct the business in which it
is engaged and perform its obligations under this Agreement. The
LLC is duly qualified to transact business and is in good
standing under the laws of each jurisdiction in which it owns or
leases assets, or conducts any business, so as to require such
qualification, except where the failure to be so qualified would
not have a material adverse effect on the financial condition or
results of operations of the LLC (a “Material Adverse
Effect”).
(b) Authority. The LLC has the requisite
limited liability company power and authority to enter into this
Agreement and to consummate the Merger. The execution and
delivery of this Agreement by the LLC and the consummation by
the LLC of the Merger have been duly authorized by all necessary
limited liability company action on the part of the LLC; other
than approval of an amendment to the LLC Agreement specifically
relating to the Merger and approval of the Merger by the Members
in accordance with the Operating Agreement and the SDLLCA. This
Agreement has been duly executed and delivered by the LLC and
constitutes the legal, valid and binding agreement of the LLC
enforceable against the LLC in accordance with its terms, except
as may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, and
(b) equitable principles of general applicability relating
to the availability of specific performance, injunctive relief
or other equitable remedies.
(c) Capital Structure. All outstanding
Membership Interests are duly authorized, validly issued, fully
paid and nonassessable and not subject to or issued in violation
of any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right under
any provision of the SDLLCA, the Operating Agreement or any
contract, lease, license, indenture, note, bond or other
agreement (a “Contract”) to which the
LLC is a party. There are no options, warrants, calls, rights,
convertible or exchangeable securities, units, commitments,
Contracts, subscriptions, arrangements or undertakings to which
the LLC is a party (x) obligating the LLC to issue, deliver
or sell, or cause to be issued, delivered or sold, additional
Membership Interests or other equity interests in, or any
security convertible or exercisable for or exchangeable into any
Membership Interests or other equity interest in, the LLC or
(y) obligating the LLC to issue, grant, extend or enter
into any such option, warrant, call, right, security, unit,
commitment, Contract, subscription, arrangement or undertaking.
As of the date of this Agreement, there are no outstanding
contractual obligations of the LLC to repurchase, redeem or
otherwise acquire any Membership Interest. There are no
agreements among Members, voting trusts or other agreements or
understandings to which the LLC is a party or to which it is
bound relating to the holding, voting or disposition of the
Membership Interests.
(d) Litigation. There is no litigation or
proceeding, either judicial or administrative, pending or, to
the LLC’s knowledge, threatened, affecting its ability to
consummate the Merger. There is no outstanding order, writ,
injunction or decree of any court, government, governmental
entity or authority or arbitration against or affecting the LLC,
which in any such case would impair the LLC’s ability to
enter into and perform all of its obligations under this
Agreement.
(e) Title. Except as disclosed in the
LLC’s filings with the Securities and Exchange Commission
prior to the date hereof (the “SEC
Filings”), the LLC has fee simple title to all of
its real property and good and valid title to all the personal
property described in the SEC Filings.
(f) Financial Statements. The financial
statements for the LLC contained in the SEC Filings (the
“Financial Statements”) present fairly
the financial condition of the LLC at the dates indicated and
the results of the LLC’s operations for the periods
specified, and there have been no changes in the financial
condition of the LLC since the date of the most recent Financial
Statements that would, in the aggregate, have a Material Adverse
Effect.
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(g) Debt. Except for the debt described
in the Financial Statements, the LLC has no indebtedness except
for indebtedness incurred by the LLC in the ordinary course of
business. The LLC has received no written notice of any default
under any such debt, nor to the best of the LLC’s knowledge
has any default (or any event that, but for the passage of time
or the giving of notice, or both, would constitute a default)
occurred under any such debt, which in either case has not been
cured in full and which would have a Material Adverse Effect.
(h) No Insolvency Proceedings. No
attachments, execution proceedings, assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or, to the LLC’s knowledge,
threatened against the LLC, nor are any such proceedings
contemplated by the LLC.
(i) No Brokers. The LLC has not entered
into, and covenants that it will not enter into, any agreement,
arrangement or understanding with any person or firm which will
result in the obligation of the LLC to pay any finder’s
fee, brokerage commission or similar payment in connection with
the Merger.
(j) Partnership Status. The LLC
represents and warrants that, since its formation, it has
qualified to be taxed as a partnership, and not an association
or publicly traded partnership taxable as a corporation, for
federal income tax purposes.
(k) Tax Matters. The LLC has timely filed
(taking into account all properly granted extensions) all
material federal, state, and local tax returns required to be
filed by it with respect to all taxes, and all such tax returns
are true, correct and complete, except to the extent not being
so would not have, alone or in the aggregate, a Material Adverse
Effect. The LLC has paid all taxes which are shown to have
become due and payable by it pursuant to such tax returns and
has paid all other taxes for which it has received a notice of
assessment or demand for payment. There are no liens for taxes
upon the assets or properties of the LLC other than liens for
taxes not yet due and those which are being contested in good
faith by appropriate proceedings. There are no outstanding
agreements or waivers extending the statutory period of
limitations applicable to the assessment of any tax for any
currently open taxable period with respect to the LLC. There is
no pending or proposed deficiency, examination, claim,
litigation or other proceeding with respect to taxes of the LLC.
The LLC has complied in all material respects with all laws
relating to the withholding of taxes and has duly and timely
withheld and collected all required amounts from distributions
to its Members, from employee salaries, wages and compensation
and from all other amounts paid, and has paid over such amounts
to the appropriate taxing authority.
2.2. Representations and Warranties of the OP.
The OP hereby represents and warrants to the LLC as follows:
(a) Organization and Good Standing of the
OP. The OP has been duly formed and is validly
existing as a limited partnership in good standing under the
DRULPA with the requisite partnership power and authority to
own, lease and operate its assets, conduct the business in which
it is engaged and perform its obligations under this Agreement.
(b) Authority. The OP has the requisite
limited partnership power and authority to enter into this
Agreement and to consummate the Merger. The execution and
delivery of this Agreement by the OP and the consummation by the
OP of the Merger have been duly authorized by all necessary
limited partnership action on the part of the OP. This Agreement
has been duly executed and delivered by the OP and constitutes
the legal, valid and binding agreement of the OP enforceable
against it in accordance with its terms, except as may be
limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, and
(b) equitable principles of general applicability relating
to the availability of specific performance, injunctive relief
or other equitable remedies.
(c) Issuance of OP Units. The
OP Units when issued, will be duly and validly authorized
and issued, free of any preemptive or similar rights, without
any obligation to restore capital except as required by the
DRULPA or as agreed between the OP and any limited partner in
the OP.
(d) Litigation. There is no litigation or
proceeding, either judicial or administrative, pending or, to
the OP’s knowledge, threatened, affecting its ability to
consummate the Merger. There is no outstanding order,
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writ, injunction or decree of any court, government,
governmental entity or authority or arbitration against or
affecting the OP, which in any such case would impair the
OP’s ability to enter into and perform all of its
obligations under this Agreement.
(e) No Insolvency Proceedings. No
attachments, execution proceedings, assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization or other
proceedings are pending or, to the OP’s knowledge,
threatened against the OP, nor are any such proceedings
contemplated by the OP.
(f) No Brokers. The OP has not entered
into and covenants that it will not enter into, any agreement,
arrangement or understanding with any person or firm which will
result in the obligation of the OP to pay any finder’s fee,
brokerage commission or similar payment in connection with the
Merger.
(g) Disregarded Entity Status. The OP
will be disregarded as an entity separate from the REIT for
federal income tax purposes.
ARTICLE 3
COVENANTS
3.1. Carrying on in the Ordinary Course of
Business. From the date hereof to the Closing Date, each of
the parties hereto shall conduct its business in the ordinary
course in all material respects, except that each party may take
such actions and execute such documents as may be required to
effectuate the Merger and any related transactions.
3.2. Further Assurances. Each of the parties
shall execute and deliver to the other parties all such other
and further instruments and documents and take or cause to be
taken all such other and further actions as any of them may
reasonably request in order to effect the Merger and any related
transactions.
3.3. Structure of Merger. For financial
accounting, state law and all other purposes except federal
income tax purposes, each of the parties will treat the Merger
as (i) a contribution of all of the LLC’s assets to
and assumption of all of the LLC’s liabilities by the OP in
exchange for the Aggregate Merger Consideration;
(ii) distribution of the OP Units by the LLC to its
Members in complete satisfaction of the obligations of the LLC
to its Members; and (iii) continuation of the OP as the
surviving entity and successor to the LLC’s hotel ownership
business. For federal income tax purposes, each of the parties
will treat (i) the Merger as a tax-deferred contribution of
the assets of the OP to the LLC in exchange for OP Units
under Section 721 of the Internal Revenue Code of 1986, as
amended (the “Code”), and (ii) the
OP as a continuation of the LLC following the Merger.
3.4. Distributions to Class A and
Class A-1
Members. On or prior to the Closing Date, the LLC will
distribute to Members holding Class A and
Class A-1
Membership Interests all accrued and unpaid Priority Returns, as
defined in the LLC Agreement, with respect to such Membership
Interests, through August 31, 2010. The LLC may also
distribute to the Members holding Class A and
Class A-1
Membership Interests, at or immediately prior to Closing, up to
the amount of any then unpaid Priority Returns with respect to
the Class A and
Class A-1
Membership Interests, out of available cash, if any, in excess
of the sum of the LLC’s (i) working capital
requirements, (ii) reserve requirements and
(iii) payments to lenders required in the ordinary course
or in connection with extending maturity dates, whether in the
form of fees or defeasement of principal, in each case as
determined in the sole discretion of the board of managers of
the LLC.
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ARTICLE 4
CONDITIONS
4.1. Conditions to Each Party’s Obligations
to Effect the Merger. The obligations of the OP and the LLC
to effect the Merger are subject to the fulfillment,
simultaneously with or prior to the Closing, of the following
conditions (unless such conditions are waived in writing by the
OP and the LLC):
(a) IPO. The IPO of the REIT, on such
terms as the REIT, in its sole and absolute discretion, shall
have determined to be acceptable, shall have been completed.
(b) Registration Statement on
Form S-4. The
registration statement on
Form S-4
(the
‘Form S-4”)
filed with the Securities and Exchange Commission (the
“SEC”) relating to the issuance of the
OP Units shall have been declared effective by the SEC and
shall not have been subjected to any stop order or other
suspension of effectiveness.
(c) Registration Statement on
Form S-11. The
registration statement on
Form S-11
filed by the REIT with the SEC relating to the IPO shall have
been declared effective by the SEC and shall not have been
subjected to any stop order or other suspension of effectiveness.
(d) Amendment to Operating Agreement. The
Amendment to the Operating Agreement described in the
Form S-4
shall have been approved by the Company Manager, as defined in
the Operating Agreement, and by holders of a majority of the
aggregate voting power of the Class A and
Class A-1
Membership Interests, voting as a single group at a special
meeting of Class A and
Class A-1
Members held for such purpose.
(e) Member Approval of the Merger. The
Merger, including this Agreement, shall have been approved by
the Class C Member and the holders of a majority of the
aggregate combined voting power of the Class A and
Class A-1
Membership Interests, voting as a single group, at a special
meeting of Class A,
Class A-1
and Class C Members held for such purpose.
(f) Listing of REIT Shares. The shares of
REIT Common Stock issuable in the IPO shall have been approved
for listing on the New York Stock Exchange or other national
securities exchange, subject to official notice of issuance.
4.2. Conditions to the OP’s Obligations to
Effect the Merger. The obligation of the OP to effect the
Merger is subject to the fulfillment, at or prior to the
Closing, of the following conditions (unless such conditions are
waived in writing by the OP):
(a) Representations and Warranties. The
representations and warranties made by the LLC pursuant to this
Agreement shall be true and correct in all material respects as
of the Closing Date as though such representations and
warranties were made as of the Closing Date.
(b) Performance. The LLC shall have
performed and complied in all material respects with all
agreements and covenants that it is required to perform or
comply with pursuant to this Agreement prior to the Closing.
(c) Legal Proceedings. No order, statute,
rule, regulation, executive order, injunction, stay, decree, or
restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or
governmental entity that prohibits the consummation of the
Merger, and no litigation or governmental proceeding seeking
such an order shall be pending or threatened.
(d) Consents and Approvals. All required
consents of governmental and private parties to effect the
Merger, including, without limitation, required consents of any
lenders and franchisors, shall have been obtained.
(e) Scottsdale Properties. The OP shall
have entered into binding agreements to acquire all of the
membership interests in Summit Group of Scottsdale, Arizona, LLC
(“SGS”) not currently owned by the LLC.
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(f) Hotel Management Agreements. The
hotel management agreements in effect between The Summit Group,
Inc (“SGI”) and the LLC and between SGI
and SGS shall have been assigned by SGI to an “eligible
independent contractor” as defined by the Code, effective
no later than the Effective Time.
4.3. Conditions to the LLC’s Obligation to
Effect the Merger. The obligation of the LLC to effect the
Merger are subject to the fulfillment, at or prior to the
Closing, of the following conditions (unless such conditions are
waived in writing by the LLC):
(a) Representations and Warranties. The
representations and warranties made by the OP pursuant to this
Agreement shall be true and correct in all material respects as
of the Closing as though such representations and warranties
were made at the Closing.
(b) Performance. The OP shall have
performed and complied in all material respects with all
agreements and covenants that it is required to perform or
comply with pursuant to this Agreement prior to the Closing.
(c) Legal Proceedings. No order, statute,
rule, regulation, executive order, injunction, stay, decree, or
restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or
governmental entity that prohibits the consummation of the
Merger, and no litigation or governmental proceeding seeking
such an order shall be pending or threatened.
(d) Consents and Approvals. All required
consents of governmental and private parties to effect the
Merger, including, without limitation, required consents of any
lenders and franchisors, shall have been obtained.
(e) OP Agreement. The OP Agreement shall
have been amended and restated in substantially the form of
Exhibit D hereto effective as of the Closing Time.
ARTICLE 5
TERMINATION
5.1. Termination and Abandonment by the OP.
The OP shall have the right to terminate this Agreement and
abandon the Merger at any time prior to the filing of the
Certificates of Merger upon the determination by the REIT, in
its sole and absolute discretion, not to proceed with the IPO.
5.2. Termination and Abandonment by the LLC.
The LLC shall have the right to terminate this Agreement and
abandon the Merger at any time and for any reason on or after
September 30, 2011, but prior to the filing of the
Certificates of Merger.
5.3. Effect of Termination and Abandonment.
Upon the termination of this Agreement and abandonment of the
Merger pursuant to Section 5.1 or 5.2 hereof, this
Agreement shall become void and have no effect, and no party
shall have any liability to the other in connection with the
Merger, or as a result of the termination of this Agreement;
provided, that the foregoing shall not relieve a party of any
liability as a result of a breach of any of the terms of this
Agreement.
ARTICLE 6
GENERAL
PROVISIONS
6.1. Entire Agreement. This Agreement, the
Exhibits and any documents delivered by the parties in
connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede
all prior agreements and understandings among the parties with
respect thereto. No addition to or modification of any provision
of this Agreement shall be binding upon any party hereto unless
made in writing and signed by all parties hereto.
6.2. Amendment. This Agreement may not be
amended except by an instrument in writing signed on behalf of
each of the parties hereto.
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6.3. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Delaware.
6.4. Counterparts. This Agreement may be
executed by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all
of the parties hereto.
6.5. Headings. Headings of the Articles and
Sections of this Agreement are for the convenience of the
parties only, and shall be given no substantive or interpretive
effect whatsoever.
6.6. Incorporation. All Exhibits attached
hereto and referred to herein are hereby incorporated herein and
made a part hereof for all purposes as if fully set forth herein.
6.7. Severability. Any term or provision of
this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
6.8. Waiver of Conditions. The conditions to
each of the parties’ obligations to consummate the Merger
are for the sole benefit of such party and may be waived by such
party in whole or in part to the extent permitted by applicable
law.
6.9. No Third Party Beneficiaries. This
Agreement is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf as of the
day and year first written above.
SUMMIT HOTEL OP, LP
| By: |
Summit Hotel Properties, Inc., a Maryland corporation, its General Partner |
| By: |
/s/ Xxxxxx
X. Xxxxxx
|
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxx
X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: Chief Executive Officer
[Signature page follows.]
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EXHIBIT A
Articles of Merger
Articles of Merger
Pursuant to the provisions of SDCL
47-34A-905,
the following Articles of Merger are executed for purposes of
merging Summit Hotel Properties, LLC, a South Dakota limited
liability company (“SHP LLC”), with and
into Summit Hotel OP, LP, a Delaware limited partnership (the
“Surviving Entity”). SHP LLC and the
Surviving Entity are sometimes referred to herein as the
“Constituent Parties”)
FIRST: The name and jurisdiction of formation
or organization of the Constituent Parties are as follows:
(a) Summit Hotel Properties, LLC, a South Dakota limited
liability company and (b) Summit Hotel OP, LP, a Delaware
limited partnership.
SECOND: Summit Hotel Properties, LLC filed its
Articles of Organization with the South Dakota Secretary of
State’s office on January 12, 2004.
THIRD: An Agreement and Plan of Merger has
been duly approved by SHP LLC in accordance with the provisions
of the South Dakota Limited Liability Company Act, SDCL
47-34A (the
“Act”) and by the Surviving Entity in
accordance with the Delaware Revised Uniform Limited Partnership
Act.
FOURTH: The Surviving Entity’s name is
Summit Hotel OP, LP, a Delaware limited partnership, and its
principal place of business is 0000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 0, Xxxxx Xxxxx, XX 00000.
FIFTH: The effective date of the merger shall
be the date of filing of these Articles of Merger with the
Secretary of State of South Dakota.
SIXTH: The Surviving Entity filed its
Certificate of Limited Partnership with the Delaware Secretary
of State’s office on June 30, 2010, and it is
submitting contemporaneously herewith an application for
authority to operate as a foreign limited partnership.
SEVENTH: In accordance with SDCL
47-34A-905(a)(8),
the Surviving Entity hereby agrees that it may be served with
process in this state and is subject to liability in any action
or proceeding for the enforcement of any liability in any action
or proceeding for the enforcement of any liability or obligation
of SHP LLC, which was previously subject to suit in this state
and which is a party to the merger, and for the enforcement, as
provided in the Act, of the right of member of SHP LLC to
receive payment for his interest against the Surviving Entity in
accordance with the provisions of the Act.
EIGHTH: In accordance with SDCL
47-34A-905(c),
the Agreement and Plan of Merger shall be provided, on request
and without cost, to any member of SHP LLC or any person holding
an interest in the Surviving Entity.
B-10
IN WITNESS WHEREOF, the Constituent Parties have caused
these Articles of Merger to be signed by their respective
authorized officers on
the
day
of ,
2010.
| By: |
|
Xxxxx Xxxxxxxxxxx
Chief Executive Officer
Summit Hotel OP,
LP
| By: | Summit Hotel Properties, Inc. |
General Partner
| By: |
|
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
B-11
EXHIBIT B
OP Certificate of Merger
OP Certificate of Merger
Pursuant to
Section 17-211
of the Delaware Revised Uniform Limited Partnership Act, the
undersigned limited partnership executed the following
Certificate of Merger:
FIRST: The name and state of formation of each
of the constituent entities of the merger is as follows:
Summit Hotel Properties, LLC, a South Dakota limited liability
company; and Summit Hotel OP, LP, a Delaware limited
partnership.
SECOND: The Agreement and Plan of Merger,
dated August 5, 2010, by and among Summit Hotel Properties,
LLC, a South Dakota limited liability company and Summit Hotel
OP, LP, a Delaware limited partnership, has been approved,
adopted and executed by each of the constituent entities in
accordance with
Section 17-211
of the Delaware Revised Uniform Limited Partnership Act.
THIRD: The name of the surviving entity of the
merger (the “Surviving Entity”) is Summit Hotel OP, LP.
FOURTH: The merger is to become effective
immediately upon filing this Certificate of Merger.
FIFTH: A copy of the executed Agreement and
Plan of Merger is on file at 0000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxx 0, Xxxxx Xxxxx, Xxxxx Xxxxxx 00000, the place of
business of the Surviving Entity.
SIXTH: A copy of the executed Agreement and
Plan of Merger will be furnished by the Surviving Entity, upon
request and without cost, to any member or partner of either
constituent entity.
[Signature
page follows.]
B-12
IN WITNESS WHEREOF, Summit Hotel OP, LP has caused this
Certificate of Merger to be executed in its corporate name by an
authorized officer
this
day
of ,
2010.
SUMMIT HOTEL OP, LP
By: Summit Hotel Properties, Inc.,
a Maryland corporation, its General Partner
| By: |
|
Name:
Title:
B-13
EXHIBIT C
Aggregate Merger Consideration
Aggregate Merger Consideration
Class A
|
Relative Percentage of Total |
||||||||||||
|
Adjusted Capital |
||||||||||||
|
Adjusted Capital |
Contributions to the LLC |
|||||||||||
|
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
| Interests of the Class | the Class | Received in the Merger | ||||||||||
|
Subtotal:
|
$ | 119,138,717 | 100 | % | 6,283,197 | |||||||
|
Example:
|
$ | 100,000 | 0.0008394 | % | 5,274 | |||||||
Class A-1
|
Relative Percentage of Total |
||||||||||||
|
Adjusted Capital |
Adjusted Capital |
|||||||||||
|
Contribution Represented by |
Contributions to the LLC |
|||||||||||
|
Interests of the |
Represented by Interests of |
Number of OP Units to be |
||||||||||
| Class | the Class | Received in the Merger | ||||||||||
|
Subtotal:
|
$ | 44,237,893 | 100 | % | 2,433,040 | |||||||
|
Example:
|
$ | 100,000 | 0.00226 | % | 5,500 | |||||||
Class B
|
Relative Percentage of Total |
||||||||||||
|
Adjusted Capital |
||||||||||||
|
Adjusted Capital |
Contributions to the LLC |
|||||||||||
|
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
| Interests of the Class | the Class | Received in the Merger | ||||||||||
|
Subtotal:
|
$ | 6,687,944 | 100 | % | 352,712 | |||||||
|
Example:
|
$ | 100,000 | 0.01495 | % | 5,274 | |||||||
Class C
|
Relative Percentage of Total |
||||||||||||
|
Adjusted Capital |
||||||||||||
|
Adjusted Capital |
Contributions to the LLC |
|||||||||||
|
Contribution Represented by |
Represented by Interests of |
Number of OP Units to be |
||||||||||
| Interests of the Class | the Class | Received in the Merger | ||||||||||
|
Subtotal:
|
$ | 17,540,183 | 100 | % | 925,043 | |||||||
|
Total:
|
$ | 187,604,737 | 100 | % | 9,993,992 | |||||||
B-14
EXHIBIT D
Form of Amended and Restated OP Agreement
(included as Annex C to proxy statement/prospectus)
Form of Amended and Restated OP Agreement
(included as Annex C to proxy statement/prospectus)
B-15
