LOAN AGREEMENT for a loan in the amount of MADE BY AND BETWEEN NHT BRADENTON, LLC NHT PARK CITY, LLC NHT BRADENTON TRS, LLC NHT PARK CITY TRS, LLC, each a Delaware limited liability company 300 Crescent Court, Suite 700 Dallas, TX 75201 as Borrower...
Exhibit 10.52
LOAN AGREEMENT
for a loan in the amount of
$39,390,000.00
MADE BY AND BETWEEN
NHT BRADENTON, LLC NHT PARK CITY, LLC
NHT BRADENTON TRS, LLC NHT PARK CITY TRS, LLC,
each a Delaware limited liability company ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, TX 75201 as Borrower
AND
THE OHIO STATE LIFE INSURANCE COMPANY,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, Texas 75201, as Lender
Dated as of February 12, 2026
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TABLE OF CONTENTS
ARTICLE I INCORPORATION OF RECITALS AND EXHIBITS 1
ARTICLE II DEFINITIONS 1
ARTICLE III BORROWER’S REPRESENTATIONS AND WARRANTIES 8
ARTICLE IV LOAN AND LOAN DOCUMENTS 11
ARTICLE V INTEREST 14
ARTICLE VI COSTS OF MAINTAINING LOAN 14
ARTICLE VII LOAN EXPENSE AND ADVANCES 16
ARTICLE VIII REQUIREMENTS PRECEDENT TO THE OPENING OF THE LOAN 17
ARTICLE IX OTHER COVENANTS 19
ARTICLE X CASUALTIES AND CONDEMNATION 23
ARTICLE XI ASSIGNMENTS BY ▇▇▇▇▇▇ AND BORROWER 24
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ARTICLE XII TIME OF THE ESSENCE 25
ARTICLE XIII EVENTS OF DEFAULT 26
ARTICLE XIV LENDER’S REMEDIES IN EVENT OF DEFAULT 27
ARTICLE XV GENERAL PROVISIONS 28
EXHIBITS TO LOAN AGREEMENT
Exhibit A Legal Description of Land
Exhibit B Insurance Requirements
Exhibit C Compliance Certificate
Exhibit D Allocated Loan Amounts
LOAN AGREEMENT
THIS LOAN AGREEMENT (“Agreement”) is made as of February 12, 2026 (the “Effective Date”), by and between NHT BRADENTON, LLC, a Delaware limited liability company (“Bradenton Property Owner”), NHT PARK CITY, LLC, a Delaware limited liability company (“Park City Property Owner”), NHT BRADENTON TRS, LLC, a Delaware limited liability company (“Bradenton Operating Lessee”), NHT PARK CITY TRS, LLC, a Delaware limited liability company (“Park City Operating Lessee”; together with Bradenton Property Owner, Park City Property Owner, and Bradenton Operating Lessee, jointly and severally, the “Borrower”), and THE OHIO STATE LIFE INSURANCE COMPANY, its successors and assigns (“Lender”).
RECITALS
WHEREAS, Bradenton Property Owner is the owner in fee simple of certain real property located in Manatee County, Florida and legally described on Exhibit A-1 attached hereto (the “Bradenton Land”).
WHEREAS, Park City Property Owner is the owner in fee simple of certain real property located in Summit County, Utah and legally described on Exhibit A-2 attached hereto (the “Park City Land”; together with the Bradenton Land, the “Land”).
WHEREAS, ▇▇▇▇▇▇▇▇ has applied to Lender for a loan in the amount of up to THIRTY-NINE MILLION THREE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($39,390,000.00)
(the “Loan”), to pay in full that certain existing loan secured by the Project (as defined below), in the current principal amount of $38,579,557.23 made by AREEIF Lender MS LLC, a Delaware limited liability company, as lender, to Borrower (the “Existing Indebtedness”), and ▇▇▇▇▇▇ is willing to make the Loan on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
INCORPORATION OF RECITALS AND EXHIBITS
The foregoing preambles and all other recitals set forth herein are made a part hereof by this reference.
Exhibits A through D to this Agreement, attached hereto, are incorporated in this Agreement and expressly made a part hereof by this reference.
ARTICLE II DEFINITIONS
The following terms as used herein shall have the following meanings:
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Affiliate: With respect to a specified person or entity, any individual, partnership, corporation, limited liability company, trust, unincorporated organization, association or other entity which, directly or indirectly, through one or more intermediaries, Controls or is Controlled by or is under common control with such person or entity, including, without limitation, any general or limited partnership in which such person or entity is a partner.
Agreement: As such term is defined in the Preamble.
Allocated Loan Amount: As to a Project, the amount set forth opposite such Property on Exhibit D attached hereto.
Applicable Rate: 8.50% per annum.
Appraisal: An MAI certified appraisal of the Project performed in accordance with FIRREA and ▇▇▇▇▇▇’s appraisal requirements by an appraiser selected and retained by Lender.
Authorized Representative: The person appointed as the Authorized Representative pursuant to Section 9.2.
Bankruptcy Code: Title 11 of the United States Code entitled “Bankruptcy” as now or hereafter in effect, or any successor thereto or any other present or future bankruptcy or insolvency statute.
Borrower: As such term is defined in the Preamble.
Bradenton Franchise Agreement: That certain Franchise Agreement dated February 22, 2022 by and between Bradenton Franchisor and Bradenton Operating Lessee.
Bradenton Franchisor: Hilton Franchise Holding LLC, a Delaware limited liability company. Bradenton Land: As such term is defined in the Preamble.
Bradenton Management Agreement: Property Management Agreement dated October 22, 2025 by and between Bradenton Operating Lessee and Manager.
Bradenton Operating Lessee: As such term is defined in the Preamble.
Bradenton Project: The collective reference to (i) the Bradenton Land, together with all buildings, structures and improvements located or to be located thereon, including the Inn Improvements, (ii) all rights, privileges, easements and hereditaments relating or appertaining thereto, and (iii) all personal property, fixtures and equipment required or beneficial for the operation thereof.
Bradenton Property Owner: As such term is defined in the Preamble.
Business Day: A day of the year on which banks are not required or authorized to close in Dallas, Texas.
Compliance Certificate: As such term is defined in Section 9.1(m).
Control: As such term is used with respect to any person or entity, including the correlative meanings of the terms “controlled by” and “under common control with”, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such person or entity, whether through the ownership of voting securities, by contract or otherwise (it being
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acknowledged that a Person shall not be deemed to lack Control of another Person even though certain decisions may be subject to “major decision” consent, veto rights or major approval rights of limited partners, general partners, shareholders or members, or representatives or advisory bodies of the foregoing, as applicable).
Debt Service Coverage Ratio: With respect to a particular period, the ratio of (a) Net Operating Income of a Project for the twelve (12) months consecutive calendar months ended on the last date of such period, to (b) the Total Debt Service for such period, annualized.
Default or default: Any event, circumstance or condition, which, if it were to continue uncured, would, with notice or lapse of time or both, constitute an Event of Default hereunder.
Default Rate: A rate per annum equal to the Applicable Rate plus 5.00%. Effective Date: As such term is defined in the Preamble.
Environmental Indemnity: An environmental indemnity from the Borrower, jointly and severally, indemnifying Lender with regard to all matters related to Hazardous Material and other environmental matters as provided therein.
Environmental Proceedings: Any environmental proceedings, whether civil (including actions by private parties), criminal, or administrative proceedings, relating to the Project.
ERISA: The Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder from time to time.
Event of Default: As such term is defined in Article 13. Existing Indebtedness: As such term is defined in the Preamble. Exit Fee: As such term is defined in Section 4.7.
Extension Fee: An amount equal to one-half of one percent (0.50%) of the outstanding principal balance of the Loan.
FIRREA: The Financial Institutions Reform, Recovery And Enforcement Act of 1989, as amended from time to time.
Franchise Agreement: Collectively, (i) Bradenton Franchise Agreement, and (ii) Park City Franchise Agreement.
Franchisor: Collectively, (i) Bradenton Franchisor, and (ii) Park City Franchisor. First Extended Maturity Date: February 12, 2030.
First Extension Option: As such term is defined in Section 4.3.
Governmental Authority: Any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court, administrative tribunal, or public utility.
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Gross Revenues: For any period, all revenues of Borrower, determined on a cash basis, derived from the ownership, operation, use and occupancy of a Project during such period; provided, however, that in no event shall Gross Revenues include (i) any loan proceeds, (ii) proceeds or payments under insurance policies (except proceeds of business interruption, rental loss or use and occupancy insurance); (iii) condemnation proceeds; (iv) any other extraordinary non-recurring items, in Lender’s reasonable discretion.
Guarantor: NexPoint Real Estate Diversified Real Estate Operating Partnership, L.P., a Delaware limited partnership.
Hazardous Material: Means and includes gasoline, petroleum, asbestos containing materials, explosives, radioactive materials or any hazardous or toxic material, substance or waste which is defined by those or similar terms or is regulated as such under any Law of any Governmental Authority having jurisdiction over the Project or any portion thereof or its use, including: (i) any “hazardous substance” defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9601(14) as may be amended from time to time, or any so-called “superfund” or “superlien” Law, including the judicial interpretation thereof; (ii) any “pollutant or contaminant” as defined in 42 U.S.C.A. § 9601(33); (iii) any material now defined as “hazardous waste” pursuant to 40 C.F.R. Part 260; (iv) any petroleum, including crude oil or any fraction thereof; (v) natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel; (vi) any “hazardous chemical” as defined pursuant to 29 C.F.R. Part 1910; and (vii) any other toxic substance or contaminant that is subject to any other Law or other past or present requirement of any Governmental Authority. Any reference above to a Law, includes the same as it may be amended from time to time, including the judicial interpretation thereof.
Improvements: The improvements located on the Land from time to time. Including or including: Including but not limited to.
Initial Maturity Date: February 12, 2029.
Internal Revenue Code: The Internal Revenue Code of 1986, as amended from time to time. Land: As defined in the Recitals.
Late Charge: As such term is defined in Section 4.6.
Laws: Collectively, all federal, state and local laws, statutes, codes, ordinances, orders, rules and regulations, including judicial opinions or precedential authority in the applicable jurisdiction.
Leases: The collective reference to all leases, subleases and occupancy agreements affecting the Project or any part thereof now existing or hereafter executed and all amendments, modifications or supplements thereto.
Lender: As defined in the opening paragraph of this Agreement, and including any successor holder of the Loan from time to time.
Liquor Lease: That certain Lease and Concession Agreement dated February 15, 2022 by and between Bradenton Operating Lessee and Aimbridge Hospitality, LLC, a Delaware limited liability company.
Loan: As defined in the Recitals.
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Loan Amount: The maximum amount of the Loan as set forth in Section 4.1(a) as reduced by principal payments made from time to time.
Loan Documents: The collective reference to this Agreement, the documents and instruments listed in Section 4.2, the documents entered into in connection with the Loan and Loan Agreement (as amended from time to time) and all the other documents and instruments entered into from time to time, evidencing or securing the Loan or any obligation of payment thereof or performance of ▇▇▇▇▇▇▇▇’s obligations in connection with the transaction contemplated hereunder, each as amended.
Loan Opening Date: The date of the disbursement of proceeds of the Loan.
Loan-to-Value: The fraction, expressed as a percentage, the numerator of which is the original principal amount of the Loan and the denominator of which is the “as is” value of the Project as set forth in the Appraisal.
Manager: Dreamscape Hospitality Management, LLC, a Delaware limited liability company.
Management Agreement: The collective reference to the Bradenton Management Agreement and the Park City Management Agreement.
Material Adverse Change or material adverse change: If, in Lender’s sole but reasonable discretion, the business prospects, operations or financial condition of a person, entity or property has changed in a manner which could reasonably be expected to impair the value of ▇▇▇▇▇▇’s security for the Loan, prevent timely repayment of the Loan or otherwise prevent the applicable person or entity from timely performing any of its material obligations under the Loan Documents.
Maturity Date: The Initial Maturity Date, provided, if Borrower timely satisfies the conditions to extend the term of the Loan pursuant to Section 4.3(a) or Section 4.3(b), then the Maturity Date shall be extended to the First Extended Maturity Date or Second Extended Maturity Date, as applicable.
Maximum Lawful Rate: As such term is defined in Section 5.3.
Minimum Interest Amount: An amount equal to the difference between (x) $3,348,150.00, less
(y) all interest on the Loan paid to Lender immediately prior to such date.
Monthly Excess Cash Flow: For any month, the amount by which Gross Revenues exceed the sum of (a) Operating Expenses for such month and (b) actual debt service on the Loan due and payable for such month.
Mortgage: Collectively, (i) an amended and restated mortgage, assignment of rents, security agreement and fixture filing, executed by Bradenton Property Owner for the benefit of Lender securing this Agreement, the Note, and all obligations of Borrower in connection with the Loan, granting a first priority lien on Bradenton Property Owner’s fee interest in the Bradenton Project, subject only to the Permitted Exceptions, and (ii) a deed of trust, assignment of lease and rents, security agreement and fixture filing, executed by Park City Property Owner for the benefit of Lender securing this Agreement, the Note, and all obligations of Borrower in connection with the Loan, granting a first priority lien on Park City Property Owner’s fee interest in the Park City Project, subject only to the Permitted Exceptions.
Net Operating Income: For any period, Gross Revenues, less Operating Expenses for such
period.
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Non-Recourse Guaranty: That certain Guaranty Agreement dated as of the date hereof, made by Guarantor in favor of ▇▇▇▇▇▇, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
Note: An amended and restated promissory note of even date herewith, in the Loan Amount, executed by ▇▇▇▇▇▇▇▇ and payable to the order of Lender, evidencing the Loan.
NXDT: NexPoint Diversified Real Estate Trust, Inc., a Delaware corporation.
Open the Loan, Opening of the Loan or Loan Opening: The first disbursement of Loan proceeds, which will occur on the Effective Date.
Operating Expenses: For any period, the actual costs and expenses of owning, operating, managing and maintaining a Project during such period incurred by ▇▇▇▇▇▇▇▇, determined on a cash basis (except for real and personal property taxes and insurance premiums, which shall be determined on an accrual basis), excepting, however, (i) interest or principal due on the Loan, (ii) permitted capital expenditures, (iii) any legal and other professional service fees and expenses unrelated to the operation of a Project, (iv) deductions for federal, state and other income taxes, (v) depreciation or amortization of capital expenditures (including leasing commissions, tenant improvements, and other leasing costs),
(vi) non-recurring expenses and other extraordinary expenses reasonably not expected to be incurred on an annual basis and other similar non-cash items and (v) deposits made into reserves held by or for the benefit of Lender.
Operating Lease: Collectively, (i) that certain Hotel Lease, dated as of February 15, 2022 by and between Bradenton Property Owner and Bradenton Operating Lessee, and (ii) that certain Hotel Lease, dated as of February 15, 2022 by and between Park City Property Owner and Park City Operating Lessee, each as the same may be amended, modified or supplemented from time to time with ▇▇▇▇▇▇’s approval
Operating Lessee: Collectively, (i) Bradenton Operating Lessee, and (ii) Park City Operating
Lessee.
Park City Franchise Agreement: That certain Hyatt Place Hotel Franchise Agreement dated
February 15, 2022 by and between Park City Franchisor and Park City Operating Lessee.
Park City Franchisor: Hyatt Place Franchising L.L.C., a Delaware limited liability company. Park City Land: As such term is defined in the Preamble.
Park City Management Agreement: Property Management Agreement dated October 21, 2025 by and between Park City Operating Lessee and Manager.
Park City Operating Lessee: As such term is defined in the Preamble.
Park City Project: The collective reference to (i) the Park City Land, together with all buildings, structures and improvements located or to be located thereon, including the Inn Improvements, (ii) all rights, privileges, easements and hereditaments relating or appertaining thereto, and (iii) all personal property, fixtures and equipment required or beneficial for the operation thereof.
Park City Property Owner: As such term is defined in the Preamble.
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Permitted Exceptions: Those matters listed on Schedule B to the Title Policy to which title to the Project may be subject at the Loan Opening and thereafter such other title exceptions as Lender may reasonably approve in writing.
Permitted Transfer: As such term is defined in Section 11.2. PIP Reserve: As such term is defined in Section 4.8.
Project: The collective reference to (i) the Bradenton Project, and (ii) the Park City Project.
Property Owner: Collectively, (i) Bradenton Property Owner, and (ii) Park City Property
Owner.
Proposed Release Tract: As such term is defined in Section 4.8.
Release Price: For any applicable Proposed Release Tract, the greater of (a) one hundred
percent (100%) of the net proceeds received by Borrower (after deduction of reasonable and customary closing costs); or (b) the Allocated Loan Amount for such Proposed Release Tract.
Second Extended Maturity Date: February 12, 2031.
Second Extension Option: As such term is defined in Section 4.3.
Ski Shop Lease: That certain Lease Agreement dated as of June 1, 2024, by and between Bearcat Enterprises LLC, a Utah limited liability company, and Park City Operating Lessee.
State: The state in which the Land is located, as applicable. Tenant: The tenant under a Lease.
Title Insurer: Republic Title of Texas, Inc.
Title Policy: Those certain ALTA Mortgagee’s Loan Title Insurance Policy with extended coverage issued by the Title Insurer insuring the lien of the Mortgage as a valid first, prior and paramount lien upon the Project and all appurtenant easements, and subject to no other exceptions other than the Permitted Exceptions.
Total Debt Service: For any period of time, the aggregate of debt service payments for such period on the Allocated Loan Amount for a Project based on a 300 month amortization schedule, determined by Lender in its sole and absolute discretion and binding absent manifest error.
Transfer: Any sale, transfer, lease (other than the Operating Lease), conveyance, alienation, pledge, assignment, mortgage, encumbrance, hypothecation or other disposition of (a) all or any portion of the Project or any portion of any other security for the Loan, (b) all or any portion of Borrower’s right, title, and interest (legal or equitable) in and to the Project or any portion of any other security for the Loan, or (c) any interest in Borrower or any interest in any entity which directly or indirectly holds an interest in, or directly or indirectly controls, Borrower.
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All terms defined in this Agreement shall have the same meanings when used in the Note, Mortgage, any other Loan Documents, or any certificate or other document made or delivered pursuant hereto. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement.
ARTICLE III
▇▇▇▇▇▇▇▇’S REPRESENTATIONS AND WARRANTIES
To induce ▇▇▇▇▇▇ to execute this Agreement and perform its obligations hereunder, Borrower hereby represents and warrants to Lender as follows:
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any Lease and Borrower has disclosed to Lender in writing any material default by the Tenant under any Lease.
▇▇▇▇▇▇▇▇ agrees that all of the representations and warranties set forth in Section 3.1 and elsewhere in this Agreement are true as of the date hereof, and will be true at the Loan Opening. Each request for a disbursement under the Loan Documents shall constitute a reaffirmation of such representations and warranties, as deemed modified in accordance with the disclosures made and approved as aforesaid, as of the date of such request. It shall be a condition precedent to the Loan Opening and each subsequent disbursement that each of said representations and warranties is true and
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correct as of the date of such requested disbursement. Each disbursement of Loan proceeds shall be deemed to be a reaffirmation by Borrower that each of the representations and warranties is true and correct as of the date of such disbursement, except for matters which have been disclosed by ▇▇▇▇▇▇▇▇ and approved by ▇▇▇▇▇▇ in writing. In addition, at Lender’s request, Borrower shall reaffirm such representations and warranties in writing prior to each disbursement hereunder.
ARTICLE IV
LOAN AND LOAN DOCUMENTS
Subject to the terms, provisions and conditions of this Agreement and the other Loan Documents, Borrower agrees to borrow from ▇▇▇▇▇▇ and ▇▇▇▇▇▇ agrees to lend to Borrower the Loan, for the purposes and subject to all of the terms, provisions and conditions contained in this Agreement.
▇▇▇▇▇▇▇▇ agrees that it will, on or before the Loan Opening Date, execute and deliver or cause to be executed and delivered to Lender the following documents in form and substance acceptable to Lender:
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All principal, interest and other sums due under the Loan Documents shall be due and payable in full on the Maturity Date. All references herein to the Maturity Date shall mean Initial Maturity Date, provided that, subject to clauses (a) and (b) below, Borrower shall have the right to extend the Maturity Date for an additional twelve (12) month term on no more than two (2) occasions (the “First Extension Option” and the “Second Extension Option”, respectively) thereby extending the Maturity Date to the First Extended Maturity Date and the Second Extended Maturity Date, respectively.
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and, if such prepayment is made prior to February 12, 2027, the Minimum Interest Amount. Notwithstanding the foregoing, if Lender or any of its subsidiaries acquires the Bradenton Project, the Minimum Interest Amount shall be waived with regard to the Bradenton Project.
All principal shall be paid on or before the Maturity Date.
Any and all amounts due hereunder or under the other Loan Documents which remain unpaid on the tenth (10th) day after the date said amount was due and payable shall incur a fee (the “Late Charge”) of five percent (5%) of said amount, which payment shall be in addition to all of Lender’s other rights and remedies under the Loan Documents, provided that no Late Charge shall apply to the final payment of principal on the Maturity Date or upon acceleration. Nothing in this Section shall be deemed a cure period for the purpose of determining the occurrence of an Event of Default.
On the earlier of (a) the Maturity Date and (b) such time that the Borrower prepays the Loan in any amount in accordance with Section 4.4 hereof or upon acceleration of the Loan, Borrower shall pay to Lender an exit fee (the “Exit Fee”) in the amount equal to one percent (1%) of the amount paid, prepaid, or accelerated, such that the total exit fee on the Loan shall be $393,900.00. Notwithstanding the foregoing, if Lender or any of its subsidiaries acquires the Bradenton Project, the Exit Fee shall be waived with regard to the Allocated Loan Amount for the Bradenton Project.
Borrower may request that ▇▇▇▇▇▇ approve a partial release of the lien of the Mortgage from either Project (the "Proposed Release Tract"), so long as the following terms and conditions are satisfied:
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Million and No/100 Dollars ($2,000,000.00) into a reserve account, which shall be for expenses related to the property-improvement plan at the Park City Project (the “PIP Reserve”).
ARTICLE V INTEREST
Beginning on March 12, 2026 and continuing on the twelfth (12th) day of every calendar month through and including the Maturity Date, Borrower shall pay interest in arrears in the amount of all interest accrued and unpaid. All payments (whether of principal or of interest) shall be deemed credited to ▇▇▇▇▇▇▇▇’s account only if received by 2:00 p.m. Dallas time on a Business Day; otherwise, such payment shall be deemed received on the next Business Day.
It is the intent of ▇▇▇▇▇▇▇▇ and Lender to conform to and contract in strict compliance with applicable usury law from time to time in effect. In no way, nor in any event or contingency (including but not limited to prepayment, default, demand for payment, or acceleration of the maturity of any obligation), shall the rate of interest taken, reserved, contracted for, charged or received under this Agreement and the other Loan Documents exceed the highest lawful interest rate permitted under applicable law (the “Maximum Lawful Rate”). If Lender shall ever receive anything of value which is characterized as interest under applicable law and which would apart from this provision be in excess of the Maximum Lawful Rate, an amount equal to the amount which would have been excessive interest shall, without penalty, be applied to the reduction of the principal amount owing on the Loan in the inverse order of its maturity and not to the payment of interest, or refunded to the Borrower or the other payor thereof if and to the extent such amount which would have been excessive exceeds such unpaid principal. All interest paid or agreed to be paid to the holder hereof shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full stated term of the Loan so that the amount of interest on account of such obligation does not exceed the Maximum Lawful Rate. As used in this Section, the term "applicable law" shall mean the laws of the State of Texas or the federal laws of the United States, whichever laws allow the greater interest, as such laws now exist or may be changed or amended or come into effect in the future.
ARTICLE VI
COSTS OF MAINTAINING LOAN
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6.1 shall be paid within thirty (30) days of receipt by Borrower of a certificate signed by an authorized officer of Lender setting forth the amount due and the basis for the determination of such amount, which statement shall be conclusive and binding upon Borrower, absent manifest error. Failure on the part of Lender to demand payment from Borrower for any such amount attributable to any particular period shall not constitute a waiver of Lender’s right to demand payment of such amount for any subsequent or prior period. Lender shall use reasonable efforts to deliver to Borrower prompt notice of any event described in subsection (a) or (b) above, of the amount of the reserve and capital adequacy payments resulting therefrom and the reasons therefor and of the basis of calculation of such amount; provided, however, that any failure by Lender to so notify Borrower shall not affect Borrower’s obligation to pay the reserve and capital adequacy payment resulting therefrom.
If by reason of a change in any applicable Laws occurring after the date hereof, Borrower is required by Law to make any deduction or withholding in respect of any taxes (other than taxes imposed on or measured by the net income of Lender or any franchise tax imposed on Lender), duties or other charges from any payment due under the Note to the maximum extent permitted by Law, the sum due from Borrower in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, ▇▇▇▇▇▇ receives and retains a net sum equal
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to the sum which it would have received had no such deduction or withholding been required to be made.
ARTICLE VII
LOAN EXPENSE AND ADVANCES
Borrower unconditionally agrees to pay all costs and expenses incurred by Lender in connection with the Loan, including all amounts payable pursuant to Sections 7.2 and 7.3 and any and all other fees owing to Lender pursuant to the Loan Documents or any separate fee agreement, and also including, without limiting the generality of the foregoing, all recording, filing and registration fees and charges, mortgage or documentary taxes, all insurance premiums, title insurance premiums and other charges of the Title Insurer, printing and photocopying expenses, survey fees and charges, site inspection fees and charges, cost of certified copies of instruments, cost of premiums on surety company bonds, charges of the Title Insurer or other escrowee for administering disbursements, all appraisal fees, insurance consultant’s fees, environmental consultant’s fees, travel related expenses and all costs and expenses incurred by Lender in connection with the determination of whether or not Borrower has performed the obligations undertaken by Borrower hereunder or has satisfied any conditions precedent to the obligations of Lender hereunder and, if any default or Event of Default occurs hereunder or under any of the Loan Documents or if the Loan or Note or any portion thereof is not paid in full when and as due, all costs and expenses of Lender (including, without limitation, court costs and counsel’s fees and disbursements and fees and costs of paralegals) incurred in attempting to enforce payment of the Loan and expenses of Lender incurred (including court costs and counsel’s fees and disbursements and fees and costs of paralegals) in attempting to realize, while a default or Event of Default exists, on any security or incurred in connection with the sale or disposition (or preparation for sale or disposition) of any security for the Loan. ▇▇▇▇▇▇▇▇ agrees to pay all brokerage, finder or similar fees or commissions payable in connection with the transactions contemplated hereby and shall indemnify and hold Lender harmless against all claims, liabilities, costs and expenses (including attorneys’ fees and expenses) incurred in relation to any claim by broker, finder or similar person.
▇▇▇▇▇▇▇▇ agrees to pay ▇▇▇▇▇▇’s attorney fees and disbursements incurred in connection with this Loan, including (i) the preparation of this Agreement, any intercreditor agreements and the other Loan Documents and the preparation of the closing binders, (ii) the disbursement, amendment, and administration of the Loan and (iii) the enforcement of the terms of this Agreement and the other Loan Documents; provided, however, that in no event shall Borrower be obligated to pay ▇▇▇▇▇▇’s attorney fees and disbursements in connection with any syndication of the Loan.
Borrower shall pay all expenses and fees incurred by ▇▇▇▇▇▇ as of the Loan Opening on the Loan Opening Date (unless sooner required herein). At the time of the Opening of the Loan, ▇▇▇▇▇▇ may pay from the proceeds of the initial disbursement of the Loan all Loan expenses and all fees payable to Lender. Lender may require the payment of outstanding fees and expenses as a condition to any disbursement of the Loan. Lender is hereby authorized, without any specific request or direction by Borrower, to make disbursements from time to time in payment of or to reimburse Lender for all Loan expenses and fees.
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Any and all advances or payments made by ▇▇▇▇▇▇ under this Article 7 from time to time, and any amounts expended by Lender pursuant to Section 14.1(a), shall, as and when advanced or incurred, constitute additional indebtedness evidenced by the Note and secured by the Mortgage and the other Loan Documents.
In the event that ▇▇▇▇▇▇▇▇ fails to perform any of Borrower’s covenants, agreements or obligations contained in this Agreement or any of the other Loan Documents (after the expiration of applicable grace periods, except in the event of an emergency or other exigent circumstances), Lender may (but shall not be required to) perform any of such covenants, agreements and obligations, and any amounts expended by Lender in so doing shall constitute additional indebtedness evidenced by the Note and secured by the Mortgage and the other Loan Documents and shall bear interest at the Default Rate.
Borrower shall pay to Lender, at the Opening of the Loan, a non-refundable origination fee in the amount of $390,000.00 to be funded from Loan proceeds.
ARTICLE VIII REQUIREMENTS PRECEDENT
TO THE OPENING OF THE LOAN
Borrower agrees that Lender’s obligation to open the Loan is conditioned upon ▇▇▇▇▇▇▇▇’s delivery, performance and satisfaction of the following conditions precedent in form and substance satisfactory to Lender in its sole discretion (all of which shall be deemed to have occurred upon ▇▇▇▇▇▇’s execution and delivery of this Agreement):
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Project and Borrower, in accordance with the Insurance Requirements attached hereto as Exhibit B, for which the premiums have been fully prepaid with endorsements satisfactory to Lender.
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ARTICLE IX OTHER COVENANTS
(20) days of written notice by ▇▇▇▇▇▇ to Borrower of the existence of the lien). Lender will not be required to make any further disbursements of the proceeds of the Loan until any mechanics’ lien claims have been removed or bonded around and Lender may, at its option, restrict disbursements to reserve sufficient sums to pay 150% of the lien if not removed or bonded around.
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All payments deposited in the escrow account, and all interest accruing thereon, are pledged as additional collateral for the Loan. Notwithstanding ▇▇▇▇▇▇’s holding of the escrow account, nothing herein shall obligate Lender to pay any insurance premiums, real property taxes or repair and replacement costs with respect to any portion of the Project if any Default or Event of Default has occurred.
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any attorney and paralegal fees and costs incurred in connection with any litigation or bankruptcy or administrative hearing and any appeals therefrom and any post-judgment enforcement action including, without limitation, supplementary proceedings) in connection with the enforcement of this Agreement; without limiting the generality of the foregoing, if at any time or times after an Event of Default Lender employs counsel (whether or not any suit has been or shall be filed and whether or not other legal proceedings have been or shall be instituted) for advice or other representation with respect to the Project, this Agreement, or any of the other Loan Documents, or to protect, collect, lease, sell, take possession of, or liquidate any of the Project, or to attempt to enforce any security interest or lien in any portion of the Project, or to enforce any rights of Lender or Borrower’s obligations hereunder, then in any of such events all of the attorneys’ fees arising from such services, and any expenses, costs and charges relating thereto (including fees and costs of paralegals), shall constitute an additional liability owing by Borrower to Lender, payable on demand.
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Applicable Rate as if the Default Rate had never been assessed. All payments deposited into the Interest Reserve Account, and all interest accruing thereon, are pledged as additional collateral for the Loan and on the occurrence of an Event of Default may be applied to the Loan. If Borrower elects to open the Interest Reserve Account and deposit the Interest Reserve Deposit in accordance with this Section 9.1(m), no Event of Default shall arise or occur due to non-compliance with the respective DSCR Covenant.
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(aa) PIP Reserve. Borrower shall use all amounts in the PIP Reserve for expenses related to the property-improvement plan in place at the Park City Project.
Borrower hereby appoints ▇▇▇▇ ▇▇▇▇▇▇▇▇ as an Authorized Representative for purposes of dealing with ▇▇▇▇▇▇ on behalf of Borrower in respect of any and all matters in connection with this Agreement, the other Loan Documents, and the Loan. The Authorized Representative shall have the power, in his discretion, to give and receive all notices, monies, approvals, and other documents and instruments, and to take any other action on behalf of Borrower. All actions by the Authorized Representative shall be final and binding on Borrower. ▇▇▇▇▇▇ may rely on the authority given to the Authorized Representative until actual receipt by ▇▇▇▇▇▇ of a duly authorized resolution substituting a different person as an Authorized Representative.
ARTICLE X CASUALTIES AND CONDEMNATION
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(ii) all Proceeds are deposited with Lender, (iii) in Lender’s reasonable judgment, the amount of Proceeds available for restoration of the Improvements is sufficient to pay the full and complete costs of such restoration, (iv) the cost of restoration exceeds ten percent (10%) of the Loan Amount, in Lender’s sole but reasonable determination after completion of restoration the Loan Amount will not exceed 75% of the fair market value of the Project, (v) in Lender’s sole but reasonable determination, the Project can be restored to an economically viable project in compliance with applicable Laws, and
(vi) in ▇▇▇▇▇▇’s sole but reasonable determination, such restoration is likely to be completed not later than three months prior to the Maturity Date.
In case Lender does not elect to apply or does not have the right to apply the Proceeds to the indebtedness, as provided in Section 10.1 above, Borrower shall:
Any request by Borrower for a disbursement by Lender of Proceeds and funds deposited by Borrower shall be treated by Lender as if such request were for an advance of the Loan hereunder, and the disbursement thereof shall be conditioned upon Borrower’s compliance with and satisfaction of the same conditions precedent as would be applicable under this Agreement for an advance of the Loan.
ARTICLE XI
ASSIGNMENTS BY ▇▇▇▇▇▇ AND BORROWER
Lender may from time to time sell the Loan and the Loan Documents (or any interest therein) and may grant participations in the Loan. ▇▇▇▇▇▇▇▇ agrees to cooperate with ▇▇▇▇▇▇’s efforts to do any of the foregoing and to execute all documents required by ▇▇▇▇▇▇ in connection therewith which do not materially adversely affect Borrower’s rights under the Loan Documents.
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Borrower shall not assign or attempt to assign its rights under this Agreement and any purported assignment shall be void. Without the prior written consent of ▇▇▇▇▇▇, in ▇▇▇▇▇▇’s sole discretion, Borrower shall not suffer or permit (a) any change in the management (whether direct or indirect) of the Project or of Borrower, or (b) any Transfer. Notwithstanding the foregoing or anything contained in this Agreement or any Loan Document to the contrary, Borrower and/or its direct and/or indirect owners, may from time to time, without the consent of Lender, effect any of the following Transfers: (i) a Transfer of any direct and/or indirect interest in Borrower so long as NexPoint Diversified Real Estate Operating Partnership, L.P., a Delaware limited partnership, either (x) Controls Borrower or (y) owns at least fifty-one percent (51%) of the direct and/or indirect equity interests in Borrower; and (ii) a pledge (but not the foreclosure thereon, unless such foreclosure would constitute a Permitted Transfer) of any indirect interest in Borrower to an institutional lender or financial institution providing mezzanine financing, a corporate line of credit, corporate credit facility, a working capital line and/or a subscription facility, in each case otherwise subject to the terms of this Agreement (each of the foregoing, a “Permitted Transfer”).
In addition to the prohibitions set forth in Section 11.2 above, Borrower shall not assign, sell, pledge, encumber, transfer, hypothecate or otherwise dispose of its interest or rights in this Agreement or in the Project, or attempt to do any of the foregoing or suffer any of the foregoing, nor shall any party owning a direct or indirect interest in Borrower assign, sell, pledge, mortgage, encumber, transfer, hypothecate or otherwise dispose of any of its rights or interest (direct or indirect) in Borrower, attempt to do any of the foregoing or suffer any of the foregoing, if such action would cause the Loan, or the exercise of any of Lender’s rights in connection therewith, to constitute a prohibited transaction under ERISA or the Internal Revenue Code or otherwise result in Lender being deemed in violation of any applicable provision of ERISA. ▇▇▇▇▇▇▇▇ agrees to indemnify and hold Lender free and harmless from and against all losses, costs (including attorneys’ fees and expenses), taxes, damages (including consequential damages) and expenses Lender may suffer by reason of the investigation, defense and settlement of claims and in obtaining any prohibited transaction exemption under ERISA necessary or desirable in Lender’s sole judgment or by reason of a breach of the foregoing prohibitions. The foregoing indemnification shall be a recourse obligation of Borrower and shall survive repayment of the Note, notwithstanding any limitations on recourse contained herein or in any of the Loan Documents.
Subject to the foregoing restrictions on transfer and assignment contained in this Article 11, this Agreement shall inure to the benefit of and shall be binding on the parties hereto and their respective successors and permitted assigns.
ARTICLE XII TIME OF THE ESSENCE
▇▇▇▇▇▇▇▇ agrees that time is of the essence under this Agreement.
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ARTICLE XIII EVENTS OF DEFAULT
The occurrence of any one or more of the following shall constitute an “Event of Default” as said term is used herein:
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$500,000.00, and said judgments are not stayed or bonded paid off over within ten (10) Business Days after entry; provided, however, that Borrower or Guarantor shall be deemed to cure this Event of Default if said judgement is paid off within ten (10) Business Days after entry.
Project.
portion thereof, or of the security interest created by any Loan Document to be a valid first lien upon the collateral described therein.
ARTICLE XIV
▇▇▇▇▇▇’S REMEDIES IN EVENT OF DEFAULT
Upon the occurrence of any Event of Default, ▇▇▇▇▇▇ may pursue any one or more of the following remedies concurrently or successively, it being the intent hereof that none of such remedies shall be to the exclusion of any other:
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and defend all actions or proceedings in connection with the Improvements or Project; to take action and require such performance as it deems necessary under any of the Bonds to be furnished hereunder and to make settlements and compromises with the surety or sureties thereunder, and in connection therewith, to execute instruments of release and satisfaction; and to do any and every act which the Borrower might do in its own behalf; it being understood and agreed that this power of attorney shall be a power coupled with an interest and cannot be revoked;
Notwithstanding the foregoing, upon the occurrence of any Event of Default under Section 13.1(d) or (e) with respect to Borrower, all amounts evidenced by the Note shall automatically become due and payable, without any presentment, demand, protest or notice of any kind to Borrower.
ARTICLE XV GENERAL PROVISIONS
The captions and headings of various Articles, Sections and subsections of this Agreement and Exhibits pertaining hereto are for convenience only and are not to be considered as defining or limiting in any way the scope or intent of the provisions hereof.
No modification, waiver, amendment or discharge of this Agreement or any other Loan Document shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment or discharge is sought.
Irrespective of the place of execution and/or delivery, this Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of Texas.
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Each and every covenant and condition for the benefit of Lender contained in this Agreement may be waived by ▇▇▇▇▇▇, provided, however, that to the extent that Lender may have acquiesced in any noncompliance with any conditions precedent to the Opening of the Loan or to any subsequent disbursement of Loan proceeds, such acquiescence shall not be deemed to constitute a waiver by Lender of such requirements with respect to any future disbursements of Loan proceeds.
This Agreement is made for the sole benefit of Borrower and Lender, and no other person or persons shall have any benefits, rights or remedies under or by reason of this Agreement, or by reason of any actions taken by Lender pursuant to this Agreement. Lender shall not be liable to any contractors, subcontractors, supplier, architect, engineer, tenant or other party for labor or services performed or materials supplied in connection with the Project. Lender shall not be liable for any debts or claims accruing in favor of any such parties against Borrower or others or against the Project. Lender, by making the Loan or taking any action pursuant to any of the Loan Documents, shall not be deemed a partner or a joint venturer with Borrower or fiduciary of Borrower. No payment of funds directly to a contractor or subcontractor or provider of services shall be deemed to create any third-party beneficiary status or recognition of same by the Lender. Without limiting the generality of the foregoing:
If any of the provisions of this Agreement, or the application thereof to any person, party or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision or provisions to persons, parties or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and every provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Law.
Definitions contained in this Agreement which identify documents, including, but not limited to, the Loan Documents, shall be deemed to include all amendments and supplements to such documents from the date hereof, and all future amendments, modifications, and supplements thereto entered into from time to time to satisfy the requirements of this Agreement or otherwise with the consent of Lender. Reference to this Agreement contained in any of the foregoing documents shall be deemed to include all amendments and supplements to this Agreement.
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This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
This Agreement, taken together with all of the other Loan Documents and all certificates and other documents delivered by Borrower to Lender, embody the entire agreement and supersede all prior agreements, written or oral, relating to the subject matter hereof.
In no event shall Lender be liable to Borrower for punitive, exemplary or consequential damages, including, without limitation, lost profits, whatever the nature of a breach by Lender of its obligations under this Agreement or any of the Loan Documents, and Borrower and Guarantor waive all claims for punitive, exemplary or consequential damages.
Lender shall not be in default under this Agreement, or under any other Loan Documents, unless a written notice specifically setting forth the claim of Borrower shall have been given to Lender within three (3) months after ▇▇▇▇▇▇▇▇ first had knowledge of the occurrence of the event which Borrower alleges gave rise to such claim and Lender does not remedy or cure the default, if any there be, promptly thereafter. Borrower waives any claim, set-off or defense against Lender arising by reason of any alleged default by ▇▇▇▇▇▇ as to which Borrower does not give such notice timely as aforesaid. Borrower acknowledges that such waiver is or may be essential to ▇▇▇▇▇▇’s ability to enforce its remedies without delay and that such waiver therefore constitutes a substantial part of the bargain between Lender and Borrower with regard to the Loan. No Tenant is intended to have any rights as a third-party beneficiary of the provisions of this Section 15.11.
TO THE GREATEST EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVES ANY AND ALL RIGHTS TO REQUIRE MARSHALLING OF ASSETS BY LENDER. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THIS AGREEMENT (EACH, A “PROCEEDING”), BORROWER IRREVOCABLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION IN THE CITY OF DALLAS, COUNTY OF DALLAS AND STATE OF TEXAS, AND (B) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH PARTY. NOTHING IN THIS AGREEMENT SHALL PRECLUDE LENDER FROM BRINGING A PROCEEDING IN ANY OTHER JURISDICTION NOR WILL THE BRINGING OF A PROCEEDING IN ANY ONE OR MORE JURISDICTIONS PRECLUDE THE BRINGING OF A PROCEEDING IN ANY OTHER JURISDICTION. ▇▇▇▇▇▇▇▇ FURTHER AGREES AND CONSENTS THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING IN ANY TEXAS STATE OR UNITED STATES COURT SITTING IN THE CITY OF DALLAS AND COUNTY OF DALLAS MAY BE
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MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AT THE ADDRESS INDICATED BELOW, AND SERVICE SO MADE SHALL BE COMPLETE UPON RECEIPT; EXCEPT THAT IF BORROWER SHALL REFUSE TO ACCEPT DELIVERY, SERVICE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED.
After the occurrence of an Event of Default, Borrower hereby irrevocably authorizes and directs Lender from time to time to charge ▇▇▇▇▇▇▇▇’s accounts and deposits with Lender (or its Affiliates), and to pay over to Lender an amount equal to any amounts from time to time due and payable to Lender hereunder, under the Note or under any other Loan Document. Borrower hereby grants to Lender a security interest in and to all such accounts and deposits maintained by the Borrower with Lender (or its Affiliates).
Wherever in this Agreement there is a requirement for Lender's consent and/or a document to be provided or an action taken "to the satisfaction of Lender", it is understood by such phrase that, except as expressly modified herein, Lender shall exercise its consent, right or judgment in its sole discretion.
Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to have been properly given
(a) if hand delivered, when delivered; (b) if mailed by United States Certified Mail (postage prepaid, return receipt requested), three (3) Business Days after mailing; (c) if by Federal Express or other reliable overnight courier service, on the next Business Day after delivered to such courier service; or
(d) if by telecopier on the day of transmission so long as copy is sent on the same day by overnight courier as set forth below:
If to Borrower:
NHT Bradenton, LLC NHT Park City, LLC
NHT Bradenton TRS, LLC NHT Park City TRS, LLC ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, TX 75201
Attention: Legal Department Email: ▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
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If to Lender:
The Ohio State Life Insurance Company ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, TX 75201 Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, Texas 75204 Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the party to be served with notice may have furnished in writing to the party seeking or desiring to serve notice as a place for the service of notice.
BORROWER AND ▇▇▇▇▇▇ EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS OR RELATING THERETO OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Signature page follows.]
36
[Loan Agreement]
EXECUTED as of the date first set forth above.
BORROWER:
NHT BRADENTON, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇’s Tax ID No. ▇▇-▇▇▇▇▇▇▇
NHT BRADENTON TRS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇’s Tax ID No. ▇▇-▇▇▇▇▇▇▇
NHT PARK CITY, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇’s Tax ID No. ▇▇-▇▇▇▇▇▇▇
NHT PARK CITY TRS, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇’s Tax ID No. ▇▇-▇▇▇▇▇▇▇
LENDER:
THE OHIO STATE LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: EVP/CIO
EXHIBIT A-1
Legal Description
PARCEL 1:
LOTS 1 THROUGH 8 BLOCK D, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 135, TOGETHER WITH THE VACATED ALLEY BETWEEN LOT 3 AND 6 AND 4 AND 5; LESS PARCEL CONVEYED TO THE FLORIDA DEPARTMENT OF TRANSPORTATION AS DESCRIBED IN DEED RECORDED IN O.R. BOOK 1054, PAGE 3449, OF THE PUBLIC RECORDS OF MANATEE COUNTY, FLORIDA, BEING THE SAME PROPERTY DESCRIBED AS: BEGIN AT THE SOUTHWEST CORNER OF LOT 8, BLOCK ▇▇▇▇▇'▇ ADDITION TO BRADENTON, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 135, OF THE PUBLIC RECORDS OF MANATEE COUNTY, FLORIDA; THENCE N.01°18'42"E., ALONG THE MONUMENTED AND PLATTED RIGHT OF WAY LINE (10TH STREET WEST, 74 FOOT PUBLIC RIGHT WAY) A DISTANCE OF 222.39 FEET TO THE NORTHWEST CORNER OF LOT 2, BLOCK D; THENCE S.89°30'12"E., ALONG THE MONUMENTED AND PLATTED RIGHT OF WAY LINE (3RD AVENUE WEST, 45 FOOT PUBLIC RIGHT WAY) A DISTANCE OF 150.36 FEET; THENCE S.41°06'59"E., A DISTANCE OF 30.31 FEET; THENCE S.02°33'19"W., ALONG THE WESTERLY RIGHT OF WAY LINE OF 9TH STREET WEST (U.S. BUSINESS 41) A DISTANCE OF 180.18 FEET; THENCE S.41°21'22"W., A DISTANCE OF 24.98 FEET; THENCE N.89°08'33"W., A DISTANCE OF 15.00 FEET; THENCE S.00°51'07"W., A DISTANCE OF 1.73 FEET; THENCE N.89°07'45"W., ALONG THE MONUMENTED AND PLATTED RIGHT OF WAY LINE (4TH AVENUE WEST, 40 FOOT PUBLIC RIGHT WAY) A DISTANCE OF 135.83 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
LOTS 1 AND 4, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 1, PAGE 135, OF THE PUBLIC RECORDS OF MANATEE COUNTY, FLORIDA, LESS THE WESTERLY 3 FEET THEREOF, BEING THE SAME PROPERTY DESCRIBED AS: BEGIN AT THE SOUTHEAST CORNER OF LOT 4, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, ACCORDING TO THE PLAT AS RECORDED IN PLAT BOOK 1, PAGE 135, OF THE PUBLIC RECORDS OF MANATEE COUNTY, FLORIDA; THENCE N.88°58'17"W., ALONG THE SOUTH LINE OF LOT 4, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, A DISTANCE OF 97.38 FEET; THENCE N.01°09'33"E., BEING PARALLEL TO AND 3 FEET EAST OF THE WEST LINE OF LOTS 1 AND 4, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, A DISTANCE OF 100.02 FEET TO THE NORTH LINE OF LOT 1, BLOCK F AND THE SOUTH RIGHT OF WAY LINE OF 4TH AVENUE WEST (40 FOOT PUBLIC RIGHT OF WAY); THENCE S.88°58'17"E., ALONG SAID NORTH LINE OF LOT 1 AND THE SOUTH RIGHT OF WAY LINE OF 4TH AVENUE WEST, A DISTANCE OF 97.25 FEET TO THE NORTHEAST CORNER OF LOT 1, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON, THENCE S.01°05'04"W., ALONG THE EAST LINE OF LOTS 1 AND 4, BLOCK F, ▇▇▇▇▇'▇ ADDITION TO BRADENTON AND THE WEST RIGHT OF WAY LINE OF 10TH STREET WEST (74 FOOT PUBLIC RIGHT OF WAY) A DISTANCE OF 100.02 FEET THE POINT OF BEGINNING. THE LEASEHOLD ESTATE CONTAINED IN THAT CERTAIN UNRECORDED LEASE BETWEEN MANATEE COUNTY, AS LESSOR LANDLORD, AND WIDEWATERS BRADENTON LLC, AS LESSEE TENANT, AS EVIDENCED BY THAT
[Exhibit A-1]
CERTAIN MEMORANDUM OF LEASE, RECORDED IN OFFICIAL RECORDS BOOK 2443, PAGE 6249, OF THE PUBLIC RECORDS OF MANATEE COUNTY, FLORIDA, DEMISING ALL OR A PORTION OF THE AFOREDESCRIBED PREMISES.
[Exhibit A-1]
[Exhibit A-2]
EXHIBIT A-2
Legal Description
PARCEL 1:
BEGINNING AT A POINT WHICH IS SOUTH 00°00'06" EAST ALONG THE SECTION LINE 1086.98 FEET AND EAST 636.76 FEET FROM THE NORTHWEST CORNER OF SECTION 31, TOWNSHIP 1 SOUTH, RANGE 4 EAST, SALT LAKE BASE AND MERIDIAN; THENCE EAST
361.36 FEET; THENCE NORTH 01°20'00" EAST 272.37 FEET; THENCE SOUTH 86°40'00" EAST
370.43 FEET TO A POINT ON THE WEST RIGHT-OFWAY LINE OF UTAH STATE HIGHWAY U-224; THENCE SOUTH 00°13'32" EAST ALONG SAID WEST LINE 478.98 FEET TO THE NORTH LINE OF THE ▇▇▇▇▇▇ PARCEL; THENCE ALONG SAID ▇▇▇▇▇▇ PARCEL THE FOLLOWING TWO (2) COURSES; THENCE (1) WEST 225.40 FEET; THENCE (2) SOUTH 5.79 FEET; THENCE WEST 351.96 FEET; THENCE NORTH 02°00'00" EAST 87.64 FEET; THENCE WEST 170.20 FEET; THENCE NORTH 02°00'00" EAST 146.51 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
A ROAD WAY EASEMENT AS SET FORTH IN THAT CERTAIN “GRANT OF ROAD WAY EASEMENT” RECORDED FEBRUARY 20, 1996 AS ENTRY NO. 448470 IN BOOK 945 AT PAGE 591, “ROADWAY EASEMENT SPECIAL WARRANTY DEED” RECORDED APRIL 14, 2006 AS ENTRY NO. 774815 IN BOOK 1784 AT PAGE 1530, “ROADWAY EASEMENT SPECIAL WARRANTY DEED” RECORDED AUGUST 30, 2013 AS ENTRY NO. 978169 IN BOOK 2204 AT PAGE 1424, AND “ROADWAY EASEMENT SPECIAL WARRANTY DEED” RECORDED SEPTEMBER 27, 2013 AS ENTRY NO. 980065 IN BOOK 2208 AT PAGE 1976 ALL OF OFFICIAL RECORDS OF SUMMIT COUNTY.
PARCEL 3:
A RECIPROCAL EASEMENT AGREEMENT WITH COVENANTS, CONDITIONS AND RESTRICTIONS RECORDED NOVEMBER 5, 2014 AS ENTRY NO. 01006474 IN BOOK 2264 AT PAGE 1797 OF OFFICIAL RECORDS.
[Exhibit B]
EXHIBIT B
Insurance Requirements
(30) days before the expiration of old policies and shall be held by ▇▇▇▇▇▇ until all indebtedness has been fully paid. Upon request by ▇▇▇▇▇▇ (but no more often than once per calendar year so long as no Event of Default exists), Borrower, at its sole cost and expense, shall furnish Lender evidence of the replacement cost of the Project. In case of any transfer of title to the Project either resulting from an exercise of remedies under or pursuant to the Mortgage or in lieu of such remedies, complete title to all policies of insurance required by this Agreement and to all prepaid or unearned premiums thereon shall pass to and vest in the grantee or other transferee of the Project. Lender shall not, by reason of accepting, rejecting, approving or obtaining insurance, incur any liability for payment of losses. Notwithstanding the foregoing, Borrower shall be permitted to pay premiums on installments to the insurance company and/or the insurance agent/broker, provided that, Borrower submits to Lender proof of payment of each and every installment as such installments become due and payable. In no event shall Borrower be permitted to finance their premiums through a premium finance company.
[Exhibit C]
(5%) of the total insurable value of the Project per occurrence and (D) if any of the Improvements or the use of the Project shall at any time constitute legal non-conforming structures or uses, containing building ordinance coverage for loss to the undamaged portion of the building (with a limit equal to replacement cost), demolition and increased cost of construction, each in an amount as Lender may reasonably require; (ii) rent loss insurance, covering all risks required to be covered by the insurance provided for in subsection (i) above, in an amount equal to not less than gross revenue from the Project (less non-continuing expenses) for twenty-four (24) months, plus 365 days extended period of indemnity; (iii) commercial general public liability and property damage insurance with a broad form coverage endorsement, including terrorism, for an amount as reasonably required from time to time by Lender but not less than an aggregate amount of Five Million and No/100 Dollars ($5,000,000.00) and an occurrence limit of not less than Three Million and No/100 Dollars ($3,000,000.00) combined single limit to cover at least the following hazards:
(1) premises and operations; (2) products and completed operations on an “if any” basis;
(3) independent contractors; and (4) contractual liability for all insured contracts to the extent the same is available, plus $25,000,000 excess and/or umbrella liability insurance on terms consistent with the commercial general liability insurance policy required above; (iv) at all times that any material portion of the Project is located in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, flood insurance in an amount equal to (1) the maximum limit of coverage available under the National Flood Insurance Program, plus (2) such additional coverage as Lender shall require, subject to a deductible not to exceed an amount equal to the maximum available through the Flood Insurance Acts; (v) earthquake insurance in amounts and in form and substance satisfactory to Lender (provided that Lender shall not require earthquake insurance unless the Project is located in an area with a high degree of seismic activity and a Probable Maximum Loss (“PML”) or Scenario Expected Loss (“SEL”) of greater than twenty percent (20%)); (vi) insurance covering pressure vessels, pressure piping and machinery, if any, and all major components of any centralized heating or air-conditioning systems located in the Improvements, in an amount reasonably satisfactory to Lender, such policies also to insure against physical damage to the Improvements arising out of peril covered thereunder;
(vii) workers’ compensation, subject to the statutory limits of the state in which the Project is located, and employer’s liability insurance with limits of $1,000,000 (if applicable); (viii) commercial motor vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, with limits of $1,000,000 (if applicable) and (ix) such other insurance that may be reasonably required from time to time by Lender. Prior to commencement of any capital improvements, and only if the property or liability coverage forms do not otherwise apply, Borrower shall have delivered to Lender a so-called Builder’s Risk Completed Value non-reporting form insurance policy for one hundred percent (100%) of the insurable replacement value of the applicable construction work and on terms consistent with the all-risk insurance policy required above.
[Exhibit C]
thirty (30) days prior to the expiration of any policy of insurance, Borrower shall furnish to Lender renewal insurance policies as required by this Agreement and the other Loan Documents.
EXHIBIT C
Compliance Certificate The Ohio State Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Dallas, TX 75201 Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Re: Loan Agreement dated as of February 12, 2026 (as amended, modified, supplemented, restated, or renewed, from time to time, the “Agreement”), by and between NHT Bradenton, LLC, a Delaware limited liability company (“Bradenton Property Owner”), NHT Park City, LLC, a Delaware limited liability company (“Park City Property Owner”), NHT Bradenton TRS, LLC, a Delaware limited liability company (“Bradenton Operating Lessee”), NHT Park City TRS, LLC, a Delaware limited liability company (“Park City Operating Lessee”; jointly and severally with Bradenton Property Owner, Park City Property Owner, and Bradenton Operating Lessee, the “Borrower”), and The Ohio State Life Insurance Company (“Lender”).
Reference is made to the Agreement. Capitalized terms used in this Certificate (including schedules and other attachments hereto, this “Certificate”) without definition have the meanings specified in the Agreement.
Pursuant to applicable provisions of the Agreement, the undersigned, being the Authorized Representative designated in the Agreement, hereby certifies to the Lender that the information furnished in the attached schedules, including, without limitation, each of the calculations listed below are true, correct and complete in all material respects as of the last day of the fiscal periods subject to the financial statements and associated covenants being delivered to the Lender pursuant to the Agreement together with this Certificate (such statements the “Financial Statements” and the periods covered thereby the “reporting period”) and for such reporting periods.
The undersigned hereby further certifies to the Lender that:
[Note to preparer. The following Financial Covenants are provided as illustration. The actual Financial Covenants must be obtained from the Agreement]
Calculation:
Bradenton calculation:
Debt Service Coverage Ratio = ((Gross Revenues – Operating Expenses) / Total Debt Service : 1.0.
[Exhibit D]
[Exhibit C]
Debt Service Coverage Ratio of : 1.0 for period ending .
[Borrower to include specific calculation based upon formula outlined in Agreement]
Compliance? (Yes or No) Park City calculation:
Debt Service Coverage Ratio = ((Gross Revenues – Operating Expenses) / Total Debt Service : 1.0.
Debt Service Coverage Ratio of : 1.0 for period ending .
[Borrower to include specific calculation based upon formula outlined in Agreement]
Compliance? (Yes or No)
Covenant: Maximum Loan-to-Value of 75%, measured as of the most recent Appraisal.
Calculation:
Loan-to-Value = $39,000,000 / As-is value of Project as set forth in the Appraisal.
Loan-to-Value of for Appraisal dated as of .
Compliance? (Yes or No)
IN WITNESS WHEREOF, this Certificate is executed by the undersigned this day of
.
[Exhibit C]
By: Authorized Representative
[Exhibit C]
Schedule A
[ ]
[Exhibit D]
EXHIBIT D
Allocated Loan Amounts
Project |
Allocated Loan Amount |
Bradenton Project |
$25,250,000.00 |
Park City Project |
$14,140,000.00 |