Exhibit 10.3

 

Execution Version

 

AMENDMENT NO. 2 TO CREDIT AGREEMENT

 

This AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Amendment”) is entered into as of June 21, 2023, among ASHFORD HOSPITALITY LIMITED PARTNERSHIP (the “Borrower”), ASHFORD HOSPITALITY TRUST, INC. (the “Parent”), the guarantors party hereto (the “Guarantors”), the Lenders party hereto (the “Lenders”) and OAKTREE FUND ADMINISTRATION, LLC, as administrative agent (in such capacity, together with its successors and assigns in such capacity, the “Administrative Agent”).

 

RECITALS:

 

A.            The Borrower, the Parent, the Administrative Agent and the Lenders are parties to that certain Credit Agreement, dated as of January 15, 2021 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of October 12, 2021, and as may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time through the date hereof, the “Credit Agreement”).

 

B.            The Borrower, the Parent, the Guarantors, the Administrative Agent and the Lenders have agreed to certain amendments to the Credit Agreement, reaffirmations of other Loan Documents and certain other agreements, as more fully set forth herein.

 

AGREEMENT:

 

In consideration of the premises and mutual covenants herein and for other valuable consideration, the Borrower, the Parent, the Guarantors, the Administrative Agent, and the Lenders party hereto agree as follows:

 

Section 1.         Definitions. Capitalized terms used in this Amendment but not defined have the meaning provided in the Credit Agreement, as modified hereby. Each reference to “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference and each reference to “this Agreement” and each other similar reference contained in the Credit Agreement shall, after giving effect to this Amendment, refer to the Credit Agreement, as modified hereby.

 

Section 2.         Amendments. Each of the parties hereto agrees that, effective on the Amendment Effective Date and subject to Section 3 of this Amendment, the Existing Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto.

 

Section 3.         Conditions to Effectiveness. The amendments set forth in Section 2 above shall become effective on the first date (the “Amendment Effective Date”) that the following conditions precedent have been satisfied:

 

3.1           The Administrative Agent shall have received counterpart signature pages to this Amendment executed by each of the Administrative Agent, the Borrower, the Parent, the Guarantors and all the Lenders;

 

3.2           The Borrower shall have paid to Administrative Agent all fees and expenses due and payable hereunder and under the Credit Agreement, including, without limitation, all reasonable and documented out-of-pocket fees and expenses of Paul Weiss, counsel to the Administrative Agent; and

 

1 

 

 

3.3           Notwithstanding anything to the contrary or otherwise, in the event that the Amendment Effective Date does not occur on or prior to June 21, 2023, the amendments set forth in Section 2 above shall not become effective and shall be of no force and effect.

 

Section 4.         Miscellaneous.

 

4.1           Representations and Warranties. Each Loan Party, by signing below, hereby represents and warrants to the Administrative Agent and the Lenders that:

 

(a)           they have the legal power and authority to execute and deliver this Amendment;

 

(b)           the officers executing this Amendment on behalf of the Loan Parties have been duly authorized to execute and deliver the same and bind the Loan Parties with respect to the provisions hereof;

 

(c)            immediately after giving effect to this Amendment, no Default or Event of Default exists under the Credit Agreement;

 

(d)           this Amendment constitutes the legal, valid and binding agreement and obligation of the Loan Parties, enforceable against the Loan Parties in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles relating to enforceability (regardless of whether enforcement is sought in equity or at law); and

 

(e)           each of the representations and warranties set forth in Section 5 of the Credit Agreement and in each other Loan Document is true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date hereof after giving effect to this Amendment, except to the extent that any thereof expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of such earlier date.

 

4.2           Ratification. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions of the Credit Agreement and shall not be deemed to be a consent to the modification or waiver of any other term or condition of the Credit Agreement. Except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are hereby ratified and confirmed and shall continue in full force and effect on a continuous basis after giving effect to this Amendment. Each of the Loan Parties hereby ratifies and reaffirms (a) the Obligations under and as defined in the Credit Agreement and all of the covenants, duties, indebtedness and liabilities under the Credit Agreement (as modified hereby) and the other Loan Documents to which it is a party, (b) the Liens and security interests created in favor of the Administrative Agent and/or Lenders pursuant to each Collateral Document, which Liens and security interests shall continue in full force and effect during the term of the Credit Agreement, and shall continue to secure the Obligations, in each case, on and subject to the terms and conditions set forth in the Credit Agreement (as modified hereby) and the other Loan Documents, and nothing herein shall be construed to deem any such Obligations paid, or to release or terminate any Lien or security interest given to secure any such Obligations or any guarantee thereof, (c) the guarantee of the Obligations pursuant to the Guaranty and (d) each of such other Loan Documents executed and delivered by or on its behalf in connection with the Credit Agreement or this Amendment. Each Loan Party confirms that, assuming all UCC financing statements naming the Administrative Agent, as secured party, and a Loan Party, as debtor, filed in connection with the Credit Agreement have not been terminated or amended, such UCC financing statements remain effective and authorized by the Loan Parties to continue perfection of the security interests in the Collateral. This Amendment constitutes the entire agreement of the parties hereto, and supersedes all prior understandings and agreements, among the parties hereto relating to the subject matter hereof.

 

2 

 

 

4.3           No Novation. This Amendment represents in part a renewal of, and not in satisfaction of or a novation of, the Obligations under the Credit Agreement. Each of the Loan Parties expressly acknowledges and agrees that (i) there has not been, and this Amendment does not constitute or establish, a novation with respect to the Credit Agreement or any of the other Loan Documents, or a mutual departure from the strict terms, provisions and conditions thereof, other than with respect to the amendments set forth in Section 2 above, and (ii) nothing in this Amendment shall affect or limit any right of the Administrative Agent or any Lender to demand payment of liabilities owing from the Loan Parties, or to demand strict performance of the terms, provisions and conditions of, the Credit Agreement (as modified hereby) and the other Loan Documents, as applicable, to exercise any and all rights, powers, and remedies under the Credit Agreement or the other Loan Documents or at law or in equity, or to do any and all of the foregoing, immediately at any time after the occurrence of an Event of Default under the Credit Agreement (as modified hereby) or an Event of Default under and as defined in any of the other Loan Documents.

 

4.4           Credit Agreement Unaffected. Each reference to the Credit Agreement in any Loan Document shall hereafter be construed as a reference to the Credit Agreement, as modified hereby. Except as herein otherwise specifically provided, all provisions of the Credit Agreement (as modified hereby) and the other Loan Documents shall remain in full force and effect and be unaffected hereby. This Amendment shall constitute a “Loan Document” for all purposes under and pursuant to the Credit Agreement and the other Loan Documents.

 

4.5           Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.

 

4.6           Counterparts. This Amendment may be executed in any number of counterparts, by different parties hereto in separate counterparts and by facsimile signature or other electronic transmissions, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.

 

4.7           Governing Law; Consent to Jurisdiction. The provisions of Sections 11.14 and 11.15 of the Credit Agreement shall be set forth herein mutatis mutandis.

 

4.8           Release. By signing below, each Loan Party hereby releases, remises, acquits and forever discharges the Administrative Agent, the Lenders and their respective employees, agents, representatives, consultants, attorneys, officers, directors, partners, fiduciaries, predecessors, successors and assigns, subsidiary corporations, parent corporations and related corporate divisions (collectively, the “Released Parties”), from any and all actions, causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, known or unknown, direct or indirect, at law or in equity, of whatever nature or kind, whether heretofore or hereafter arising, for or because of any manner of things done, omitted or suffered to be done by any of the Released Parties prior to and including the date of execution hereof, and in any way directly or indirectly arising out of any or in any way connected to this Amendment or any other Loan Document (collectively, the “Released Matters”).  Each Loan Party hereby acknowledges that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Released Matters.  Each Loan Party hereby represents and warrants to the Administrative Agent and each Lender that it has not purported to transfer, assign or otherwise convey any right, title or interest of such Loan Party in any Released Matter to any other Person and that the foregoing constitutes a full and complete release of all Released Matters.

 

[Signature pages follow.]

 

3 

 

 

IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of the date first above written.

 

ASHFORD HOSPITALITY TRUST, INC.
By:	/s/ J. Robison Hays III
Name:	J. Robison Hays III
Title:	Chief Executive Officer
ASHFORD OP GENERAL PARTNER LLC
ASHFORD OP LIMITED PARTNER LLC
By:	/s/ J. Robison Hays III
Name:	J. Robison Hays III
Title:	President and Chief Executive Officer
ASHFORD HOSPITALITY LIMITED PARTNERSHIP
By:	Ashford OP General Partner LLC, its general partner
By:	/s/ Alex Rose
Name:	Alex Rose
Title:	Executive Vice President, General Counsel and Secretary

[Signature Page to Amendment No. 2]

 

 

 

 

ASHFORD A-3 MEZZ LLC
ASHFORD AA SENIOR MEZZ LLC
ASHFORD C-1 LLC
ASHFORD C-2 LLC
ASHFORD CHAMBERS GP LLC
ASHFORD CREDIT HOLDING LLC
ASHFORD D-3 MEZZ LLC
ASHFORD FIVE JUNIOR HOLDER LLC
ASHFORD FIVE JUNIOR MEZZ LLC
ASHFORD FIVE SENIOR MEZZ LLC
ASHFORD G-3 MEZZ LLC
ASHFORD IHC LLC
ASHFORD JUNIOR A LLC
ASHFORD JUNIOR B LLC
ASHFORD JUNIOR Ml LLC
ASHFORD JUNIOR M2 LLC
ASHFORD LE PAVILLON SENIOR MEZZ LLC
ASHFORD POOL C2 JUNIOR HOLDER LLC
ASHFORD POOL C2 JUNIOR MEZZ LLC
ASHFORD POOL C2 SENIOR MEZZ LLC
ASHFORD SENIOR M1 LLC
ASHFORD SENIOR M2 LLC
ASHFORD TEN JUNIOR MEZZ LLC
ASHFORD TEN SENIOR MEZZ LLC
ASHFORD WQ HOTEL GP LLC
HH MEZZ BORROWER A-4 LLC
HH MEZZ BORROWER G-4 LLC
HH SWAP C LLC
HH SWAP C-1 LLC
HH SWAP F LLC
HH SWAP F-1 LLC
PIM HIGHLAND HOLDING LLC
RFS SPE 2000 LLC

By:	/s/ Alex Rose
Name:	Alex Rose
Title:	Vice President and Secretary

 

[Signature Page to Amendment No. 2]

 

 

 

 

ASHFORD TRS AA SENIOR MEZZ LLC
ASHFORD TRS ASHTON HOLDER LLC
ASHFORD TRS C-I LLC ASHFORD TRS C-2 LLC
ASHFORD TRS CHAMBERS LLC
ASHFORD TRS FIVE JUNIOR HOLDER I LLC
ASHFORD TRS FIVE JUNIOR HOLDER II LLC
ASHFORD TRS FIVE JUNIOR HOLDER III LLC
ASHFORD TRS FIVE JUNIOR HOLDER IV LLC
ASHFORD TRS FIVE JUNIOR HOLDER V LLC
ASHFORD TRS FIVE JUNIOR MEZZ I LLC
ASHFORD TRS FIVE JUNIOR MEZZ II LLC
ASHFORD TRS FIVE JUNIOR MEZZ III LLC
ASHFORD TRS FIVE JUNIOR MEZZ IV LLC
ASHFORD TRS FIVE JUNIOR MEZZ V LLC
ASHFORD TRS FIVE SENIOR MEZZ I LLC
ASHFORD TRS FIVE SENIOR MEZZ II LLC
ASHFORD TRS FIVE SENIOR MEZZ III LLC
ASHFORD TRS FIVE SENIOR MEZZ IV LLC
ASHFORD TRS FIVE SENIOR MEZZ V LLC
ASHFORD TRS JUNIOR A LLC
ASHFORD TRS JUNIOR B LLC
ASHFORD TRS JUNIOR MI LLC
ASHFORD TRS JUNIOR M2 LLC
ASHFORD TRS LE PA VILLON SENIOR MEZZ LLC
ASHFORD TRS POOL C2 JUNIOR HOLDER LLC
ASHFORD TRS POOL C2 JUNIOR MEZZ LLC
ASHFORD TRS POOL C2 SENIOR MEZZ LLC
ASHFORD TRS POOL C3 JUNIOR HOLDER LLC
ASHFORD TRS POOL C3 JUNIOR MEZZ LLC
ASHFORD TRS POOL C3 SENIOR MEZZ LLC
ASHFORD TRS SENIOR M1 LLC
ASHFORD TRS SENIOR M2 LLC
ASHFORD TRS TEN JUNIOR MEZZ LLC
ASHFORD TRS TEN SENIOR MEZZ LLC
ASHFORD TRS WQ LLC
HH MEZZ BORROWER D-2 LLC
HH MEZZ BORROWER D-4 LLC
AH TENANT CORPORATION
ASHFORD TRS CORPORATION
ASHFORD TRS VI CORPORATION
CRYSTAL CITY TENANT CORP.
LEE VISTA TENANT CORP.
SANTA CLARA TENANT CORP.

By:	/s/ Deric S. Eubanks
Name:	Deric S. Eubanks
Title:	President and Secretary

[Signature Page to Amendment No. 2]

 

 

 

 

ASHFORD CHAMBERS LP
By:	ASHFORD CHAMBERS GP LLC,
its general partner
By:	/s/ Alex Rose
Name:	Alex Rose
Title:	Vice President and Secretary
ASHFORD WQ HOTEL LP
By:	ASHFORD WQ HOTEL GP LLC,
its general partner
By:	/s/ Alex Rose
Name:	Alex Rose
Title:	Vice President and Secretary
ASHFORD WQ LICENSEE LLC
By:	ASHFORD TRS CORPORATION,
its sole member
By:	/s/ Deric S. Eubanks
Name:	Deric S. Eubanks
Title:	President

[Signature Page to Amendment No. 2]

 

 

 

 

OCM AHT HOLDINGS, LLC
By:	Oaktree Fund GP, LLC, its Manager
By:	Oaktree Fund GP I, L.P., its Managing Member
By:	/s/ Jordan Mikes
Name:	Jordan Mikes
Title:	Authorized Signatory
By:	/s/ Brian Laibow
Name:	Brian Laibow
Title:	Authorized Signatory

[Signature Page to Amendment No. 2]

 

 

 

 

ROF8 AHT PT, LLC
By:	/s/ Taejo Kim
Name:	Taejo Kim
Title:	Authorized Signatory
By:	/s/ Cary Kleinman
Name:	Cary Kleinman
Title:	Authorized Signatory

[Signature Page to Amendment No. 2]

 

 

 

 

OAKTREE PHOENIX INVESTMENT FUND AIF (DELAWARE), L.P.
By:	Oaktree Fund AIF Series, L.P. – Series U, its General Partner
By:	Oaktree Fund GP AIF, LLC, its General Partner
By:	Oaktree Fund GP III, L.P., its Managing Member
By:	/s/ Jordan Mikes
Name:	Jordan Mikes
Title:	Authorized Signatory
By:	/s/ Steven Tesoriere
Name:	Steven Tesoriere
Title:	Authorized Signatory

[Signature Page to Amendment No. 2]

 

 

 

 

OAKTREE FUND ADMINISTRATION, LLC, as Administrative Agent
By:	Oaktree Capital Management, L.P., its Managing Member
By:	/s/ Henry Orren
Name:	Henry Orren
Title:	Vice President
By:	/s/ Brian Price
Name:	Brian Price
Title:	Senior Vice President

[Signature Page to Amendment No. 2]

 

 

 

 

EXHIBIT A

 

Amended Credit Agreement

[see attached]

 

 

 

Conformed Through Amendment No. 1, dated October 12, 2021

Conformed Through Amendment No. 2, dated June 21, 2023

 

CREDIT AGREEMENT

 

Dated as of January 15, 2021

 

among

 

ASHFORD HOSPITALITY LIMITED PARTNERSHIP,
as the Borrower,

 

Ashford Hospitality Trust, Inc.,
as the Parent,

 

OAKTREE FUND ADMINISTRATION, LLC,
as Administrative Agent,

 

and

 

The Lenders Party Hereto

 

 

 

 

TABLE OF CONTENTS

Section		Page
Article I. Definitions and Accounting Terms		1
1.01	Defined Terms	1
1.02	Other Interpretive Provisions	2427
1.03	Accounting Terms	2527
1.04	Rounding	2527
1.05	Times of Day; Rates	2527
1.06	Payments	2527
Article II. The Commitments and Credit Extensions		2527
2.01	Commitments and Loans	2527
2.02	Borrowings of Loans	2628
2.03	Pro Rata Borrowings	2729
2.04	Prepayments	2729
2.05	Termination or Reduction of Commitments	3133
2.06	Repayment of Loans	3133
2.07	Interest	3133
2.08	Fees	3234
2.09	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	3336
2.10	Evidence of Debt	3336
2.11	Payments Generally; Administrative Agent’s Clawback	3436
2.12	Sharing of Payments by Lenders	3538
2.13	Extension of Maturity Date	3538
2.14	Tax Treatment	3639
2.15	Reduction of Obligations	3639
Article III. Taxes, Yield Protection and Illegality		3639
3.01	Taxes	3639
3.02	Increased Costs	4043
3.03	[Reserved]	4144
3.04	[Reserved]	4144
3.05	Defaulting Lenders	4144
3.06	[Reserved]	4245
3.07	Mitigation Obligations; Replacement of Lenders	4246
3.08	Survival	4246
Article IV. Conditions Precedent To Credit Extensions		4346
4.01	Conditions of Initial Credit Extension	4346
4.02	Conditions to DDTLs	4649
Article V. Representations and Warranties		4650
5.01	Existence, Qualification and Power	4650
5.02	Authorization; No Contravention	4750
5.03	Governmental Authorization; Other Consents	4750
5.04	Binding Effect	4750
5.05	Financial Statements; No Material Adverse Effect	4751
5.06	Litigation	4851
5.07	Ownership of Property; Liens; Investments	4852
5.08	Environmental Compliance	4852
5.09	Insurance	4953

i

5.10	Taxes	4953
5.11	ERISA Compliance	4953
5.12	Subsidiaries and JV Subsidiaries; Equity Interests; Loan Parties	5054
5.13	Margin Regulations; Investment Company Act	5154
5.14	Disclosure	5155
5.15	Compliance with Laws	5155
5.16	Taxpayer Identification Number	5155
5.17	Intellectual Property; Licenses, Etc.	5155
5.18	Casualty, Etc.	5255
5.19	Labor Matters	5255
5.20	Collateral Documents	5255
5.21	OFAC	5256
5.22	Nature of Business	5256
5.23	Anti-Corruption Laws	5256
5.24	EEA Financial Institutions	5256
5.25	REIT Status	5356
5.26	No Default	5356
5.27	Anti-Terrorism Laws	5356
5.28	Use of Proceeds	5356
Article VI. Affirmative Covenants		5357
6.01	Financial Statements	5357
6.02	Certificates; Other Information	5458
6.03	Notices	5559
6.04	Payment of Obligations	5659
6.05	Preservation of Existence, Etc.	5659
6.06	Maintenance of Properties	5660
6.07	Maintenance of Insurance	5660
6.08	Compliance with Laws	5660
6.09	Books and Records	5660
6.10	Inspection Rights	5760
6.11	Use of Proceeds	5760
6.12	Covenant to Guarantee Obligations and Give Security	5761
6.13	Compliance with Environmental Laws	5862
6.14	Further Assurances	5862
6.15	Anti-Corruption Laws	5962
6.16	Collateral Accounts	5962
6.17	Conditions Subsequent	5963
6.18	Tax Returns	5963
6.19	Quarterly Lender Calls	5963
Article VII. Negative Covenants		5963
7.01	Liens	6063
7.02	Indebtedness	6064
7.03	Investments	6266
7.04	Fundamental Changes	6266
7.05	Dispositions	6367
7.06	Restricted Payments	6468
7.07	Change in Nature of Business	6568
7.08	Transactions with Affiliates	6569
7.09	Burdensome Agreements	6569
7.10	Use of Proceeds	6569

ii

7.11	Minimum Cash	6569
7.12	Permitted Activities of Parent Entities	6569
7.13	Amendments of Certain Documents	6670
7.14	Accounting Changes	6670
7.15	Sanctions	6670
7.16	Anti-Corruption Laws	6670
7.17	Advisory Agreement	6670
Article VIII. Events of Default and Remedies		6771
8.01	Events of Default	6771
8.02	Remedies Upon Event of Default	6973
8.03	Application of Funds	6974
8.04	Cure Right	7074
Article IX. Administrative Agent		7075
9.01	Appointment and Authority	7075
9.02	Rights as a Lender	7175
9.03	Exculpatory Provisions	7176
9.04	Reliance by Administrative Agent	7277
9.05	Delegation of Duties	7277
9.06	Resignation of Administrative Agent	7277
9.07	Non-Reliance on Administrative Agent and Other Lenders	7478
9.08	Reserved	7478
9.09	Administrative Agent May File Proofs of Claim	7478
9.10	Collateral and Guaranty Matters	7479
9.11	Releases	7580
Article X. Continuing Guaranty		7681
10.01	Guaranty	7681
10.02	Rights of Lenders	7681
10.03	Certain Waivers	7781
10.04	Obligations Independent	7782
10.05	Subrogation	7782
10.06	Termination; Reinstatement	7782
10.07	Subordination	7782
10.08	Stay of Acceleration	7882
10.09	Condition of Borrower	7882
Article XI. Miscellaneous		7883
11.01	Amendments, Etc.	7883
11.02	Notices; Effectiveness; Electronic Communication	7984
11.03	No Waiver; Cumulative Remedies; Enforcement	8186
11.04	Expenses; Indemnity; Damage Waiver	8286
11.05	Payments Set Aside	8388
11.06	Successors and Assigns	8488
11.07	Treatment of Certain Information; Confidentiality	8893
11.08	Right of Setoff	8893
11.09	Interest Rate Limitation	8994
11.10	Counterparts; Integration; Effectiveness	8994
11.11	Survival of Representations and Warranties	8994
11.12	Severability	8994
11.13	Replacement of Lenders	9095
11.14	Governing Law; Jurisdiction; Etc.	9095

iii

11.15	Waiver of Jury Trial	9196
11.16	No Advisory or Fiduciary Responsibility	9297
11.17	Electronic Execution of Assignments and Certain Other Documents	9297
11.18	USA PATRIOT Act	9297
11.19	Time of the Essence	9397
11.20	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	9398
11.21	ENTIRE AGREEMENT Entire Agreement	9398

iv

SCHEDULES 

1.01	Commitments and Applicable Percentage
5.06	Litigation
5.07(b)	Existing Liens
5.07(c)	Owned and Ground Leased Hotel Properties
5.08	Environmental Matters
5.11(d)	ERISA Matters
5.12	Subsidiaries and JV Subsidiaries and Other Equity Investments; Loan Parties
6.17	Conditions Subsequent
7.09	Burdensome Agreements
11.02	Administrative Agent’s Office; Certain Addresses for Notices

EXHIBITS 

Form of 

A	Request for Credit Extension
B	Warrant Certificate
C	Note
D	Compliance Certificate
E-1	Assignment and Assumption
E-2	Administrative Questionnaire
F	Guaranty
G	Security Agreement
H	Pledge Agreement
I	Registration Rights Agreement
J	U.S. Tax Compliance Certificate

v

CREDIT AGREEMENT

This CREDIT AGREEMENT (“Agreement”) is entered into as of January 15, 2021, among Ashford Hospitality Limited Partnership, a Delaware limited partnership (the “Borrower”), Ashford Hospitality TRUST, Inc., a Maryland corporation (the “Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and OAKTREE FUND ADMINISTRATION, LLC, as Administrative Agent.

PRELIMINARY STATEMENTS

The Borrower has requested that the Lenders extend credit in the form of initial term loans in an aggregate principal amount of $200,000,000 and delayed draw term loans in an aggregate principal amount of up to $250,000,000, in each case, subject to the terms contained herein.

The Lenders are willing to extend credit to the Borrower on the terms and subject to the conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

Article I.
Definitions and Accounting Terms

1.01            Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

“Additional DDTL” means any DDTL advanced hereunder (excluding, for the avoidance of doubt, PIK Principal on Initial DDTLs) after all Initial DDTLs have been advanced hereunder (and any PIK Principal on Additional DDTLs).

“Administrative Agent” means Oaktree Fund Administration, LLC in its capacity as administrative agent under this Agreement or any other Loan Document, or any successor administrative agent.

“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.

“Advisor” means AINC and Ashford Hospitality Advisors LLC, a Delaware limited liability company (or either of them, as the context may require), and their respective successors and assigns.

“Advisory Agreement” means (a) that certain Second Amended and Restated Advisory Agreement dated as of January 14, 2021 (the “Second A&R Advisory Agreement”), by and among Advisor, Borrower, Parent and Ashford TRS Corporation, as amended or assigned from time to time and (b) to the extent not amended pursuant to the document referenced in clause (a), (i) the Enhanced Return Funding Program as described in that certain Enhanced Return Funding Program Agreement and Amendment No. 1 to the Amended and Restated Advisory Agreement, dated as of June 26, 2018 (the “ERF Program”), by and among Advisor, Parent, Borrower and Ashford TRS Corporation and (ii) the Addendum to Amended and Restated Advisory Agreement – La Pavillion Hotel, dated as of June 3, 2015, by and among Advisor, Parent, Borrower and Ashford TRS Corporation.

“Advisory Agreement Suspended Covenant Period” means the period commencing on the date that (x) no PIK Principal is outstanding hereunder, (y) there are no accrued dividends on Company Preferred Stock then outstanding and (z) the aggregate amount of Unrestricted Cash exceeds the Advisory Agreement Suspended Covenant Period Minimum Cash (the requirements set forth in clauses (x), (y) and (z), the “Advisory Agreement Suspended Covenant Period Conditions”) and ending on the next date subsequent thereto that any of the Agreement Suspended Covenant Period Conditions is no longer satisfied (assuming that such Advisory Agreement Suspended Covenant Period Conditions are tested on a daily basis).

“Advisory Agreement Suspended Covenant Period Minimum Cash” means an amount equal to the sum of (x) the Loans then outstanding, (y) the PIK Principal then outstanding and (z) an amount equal to pay any premiums (including the Prepayment Premium) and fees (excluding the Exit Fee), in each case, that would then be owing if all Loans and PIK Principal were prepaid and this Agreement were terminated.

“Advisor Arrangements” means, collectively, the Advisory Agreement, the Remington Management Agreement, Premier Project Management Agreement and the Lismore Contract, each as amended, restated, supplemented otherwise modified in accordance with this Agreement.

“Advisor Arrangement Amendment Documents” means the Second A&R Advisory Agreement (as defined in the definition of “Advisory Agreement”) and the AINC Subordination and Non-Disturbance Agreement.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Additionally, for purposes of Section 7.08, Advisor shall be deemed to be an Affiliate of the Borrower and the Parent Entities for so long as the Advisory Agreement, or any amendment, restatement, replacement or successor agreement thereto, remains in effect.

“Agreement” means this Credit Agreement.

“AINC” means Ashford Inc., a Nevada corporation.

“AINC Subordination and Non-Disturbance Agreement” means that certain Subordination and Non-Disturbance Agreement of even date herewith among Borrower, Parent, Advisor, Remington Lodging & Hospitality LLC, Premier Project Management LLC, Lismore Capital II LLC and Administrative Agent relating to the Advisor Arrangements.

“Amendment No. 1” means that certain Amendment No. 1 to Credit Agreement, dated as of October 12, 2021.

“Amendment No. 1 Effective Date” means the Amendment Effective Date (as defined in Amendment No. 1).

“Amendment No. 12” means that certain Amendment No. 12 to Credit Agreement, dated as of 8June 21, 20212023.

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“Amendment No. 2 Effective Date” means the Amendment Effective Date (as defined in Amendment No. 2).

“Applicable Issuance Limit” has the meaning specified in Section 2.08(b)(iv).

“Applicable Percentage” means, (a) with respect to a Lender’s obligation to make Loans of any Class hereunder at any time, the quotient obtained by dividing (i) the aggregate amount of such Lender’s Commitments of such Class at such time by (ii) the aggregate amount of Commitments of such Class of all Lenders at such time and (b) with respect to a Lender’s right to receive principal, interest, fees, premiums, voluntary and mandatory prepayments, proceeds of Collateral or any other amounts in respect of Loans (or Loans of any Class) hereunder at any time, the quotient obtained by dividing (i) the aggregate outstanding principal amount of Loans (or Loans of such Class) held by such Lender at such time by (ii) the aggregate outstanding principal amount of Loans (or Loans of such Class) held by all Lenders at such time, in each case, expressed as a percentage carried out to the ninth decimal place, giving effect to assignments in accordance with Section 11.06, and subject in the case of a Defaulting Lender to Section 3.05. The Applicable Percentage of each Lender (for each Class, if such Lender’s Applicable Percentage differs among Classes) as of the Closing Date is set forth opposite the name of such Lender on Schedule 1.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“Applicable Rate” means (1) in respect of the Initial Term Loan and Initial DDTLs (a) during the period from the Closing Date to and including the second anniversary of the Closing Date, 16% per annum and (b) at all times thereafter, thereafter, 14% per annum and (2) in respect of any Additional DDTLs (a) during the period from the Closing Date to and including the second anniversary of the Closing Date, 18.5% per annum and (b) at all times thereafter, thereafter, 16.5% per annum.; provided that the Applicable Rate with respect to outstanding Loans on any day shall automatically increase by 3% per annum if Unrestricted Cash on such date is less than the sum of (x) $100,000,000 plus (y) the amount of DDTLs drawn on or prior to such date minus (z) the aggregate amount of any prepayments of Initial Term Loans and/or DDTLs on or prior to such date.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor or by investment advisors that are Affiliates.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries and Controlled JV Subsidiaries for the fiscal year ended December 31, 2019, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent, and its Subsidiaries and Controlled JV Subsidiaries, including the notes thereto.

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

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“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Banking Services” means each and any of the following bank services provided to any Loan Party: commercial credit cards, stored value cards, purchasing cards, deposit accounts, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, and cash pooling services.

“Bankruptcy Code” mean Title 11 of the United States Code.

“Borrower” has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02.

“Borrower Partnership Agreement” means that certain Seventh Amended and Restated Agreement of Limited Partnership of the Borrower, dated April 14, 2016, as in effect on the date hereof.

“Borrowing” means a borrowing of Initial Term Loans and/or DDTLs and/or Protective Advance Loans, as the context may require.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where any Lending Office is located.

“Capitalized Lease Obligations” shall mean, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.

“Cash Equivalents” means any of the following types of Investments:

  

(a)            readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;

(b)            time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i)(A) is a Lender or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition thereof;

(c)            commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof; and

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(d)            Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.

“Cash Exit Fee” has the meaning specified in Section 2.08(b)(ii).

“Casualty Event” means any event that gives rise to the receipt of insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon).

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980.

“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.

“CFC” means a Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code.

“CFC Holding Company” shall mean a Subsidiary that is a U.S. Person, substantially all of the assets of which consist of equity (or equity and debt) of one or more non-U.S. Subsidiaries of a U.S. Loan Party that are CFCs.

“Class”, when used in reference to a Loan or Commitment, refers to whether such Loan is an Initial Term Loan, an Initial DDTL, an Additional DDTL or a Protective Advance Loan, or whether such Commitment is an Initial Term Loan Commitment or a DDTL Commitment.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x)  the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Change of Control” means an event or series of events by which:

(a)            any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or more of the equity securities of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such “person” or “group” has the right to acquire pursuant to any option right); or

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(b)            during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or

(c)            the Parent shall cease, directly or indirectly, to (i) Control the Borrower and (ii) own at least a majority of the Equity Interests of the Borrower; or

(d)            a “change of control” or “change in control” or similar event shall occur under any documents governing Indebtedness for borrowed money of the Loan Parties having an aggregate outstanding principal amount that is greater than the Threshold Amount; or

(e)            any of the events described in the foregoing clauses (a) or (b) shall occur with respect to Advisor, with all instances of “Parent” therein for purposes of this clause (e) deemed to refer to either “AINC” or “Ashford Hospitality Advisors LLC”, as applicable, mutatis mutandis;

Notwithstanding the foregoing, no Change of Control shall be deemed to have occurred on account of the ownership of Warrants, Common Stock or OP Units by any Lender.

“Charge” means any fee, loss, charge, expense, cost, accrual or reserve of any kind (in each case, if applicable, as defined under GAAP).

“Closing Date” means the date of this Agreement, as specified in the introductory paragraph hereto.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means all of the “Collateral” referred to in the Collateral Documents and all of the other property that is or is intended under the terms of the Collateral Documents to be subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.

“Collateral Documents” means, collectively, the Security Agreement, the Pledge Agreement, each of the collateral assignments, security agreements, any amendments or supplements thereto or other similar agreements delivered to the Administrative Agent pursuant to Section 6.12, and each of the other agreements, instruments or documents that relates to any of the foregoing or creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

“Commitment” means, as to each Lender, its Initial Term Loan Commitment and its DDTL Commitment.

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“Common Stock” means the common stock of Parent.

“Company Preferred Stock” means the preferred stock of Parent.

“Compliance Certificate” means a certificate substantially in the form of Exhibit D or in such other form as may be agreed by Borrower and Administrative Agent.

“Consolidated Parties” means a collective reference to the Parent and its consolidated Subsidiaries and Controlled JV Subsidiaries; and “Consolidated Party” means any one of them.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Controlled JV Subsidiary” means any JV Subsidiary which at least a majority of the Equity Interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other individuals performing similar functions of such corporation, partnership or other entity (without regard to the occurrence of any contingency) is at the time directly or indirectly owned or controlled by the Parent or one or more Subsidiaries or Controlled JV Subsidiaries of the Parent or by the Parent and one or more Subsidiaries or Controlled JV Subsidiaries of the Parent, and shall include all Persons the accounts of which are consolidated with those of the Parent pursuant to GAAP. For the avoidance of doubt, the Borrower is deemed a Subsidiary of the Parent.

“COVID-19 Pandemic” means the pandemic of coronavirus disease 2019 caused by contagious severe acute respiratory syndrome coronavirus 2, and related or associated epidemics, pandemics, and disease outbreaks.

“Credit Extension” means a Borrowing of Initial Term Loans, DDTLs, or Protective Advance Loans, as applicable.

“Cure Amount” has the meaning set forth in Section 8.04.

“Cure Cut-Off Date” has the meaning set forth in Section 8.04.

“Cure Right” has the meaning set forth in Section 8.04.

“DDTL” has the meaning set forth in Section 2.01(b). For the avoidance of doubt, the term DDTL is a collective reference to any Initial DDTL or Additional DDTL.

“DDTL Commitment” means, in the case of each DDTL Lender as of the date hereof, the amount set forth opposite such DDTL Lender’s name on Schedule 1.01 under the heading “DDTL Commitment”, as the same may be changed from time to time pursuant to the terms hereof.

“DDTL Commitment Expiration Date” means the thirty (30) month anniversary of the Closing Date, subject to any extension thereof pursuant to Section 2.04(e). date the Keys Draw is funded following a duly submitted Request for Credit Extension in accordance herewith; provided that if no such Request for Credit Extension is made on or prior to July 7, 2023, then the DDTL Commitment Expiration Date shall be July 7, 2023; provided further that, notwithstanding the occurrence of the “DDTL Commitment Expiration Date” in accordance with the foregoing, up to $100,000,000 Initial DDTLs will be made available by the Lenders on the terms and conditions otherwise applicable to Initial DDTLs hereunder for a period of twelve (12) months, ending July 7, 2024.

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“DDTL Lender” means any Lender with a DDTL Commitment or an outstanding DDTL.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means an interest rate equal the Applicable Rate plus 2% per annum.

“Defaulting Lender” means, subject to Section 3.05(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.05(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, and each other Lender promptly following such determination.

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“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Disqualified Lender” shall mean (i) the persons identified as “Disqualified Lenders” in writing to the Administrative Agent by the Borrower or Parent on or prior to the Closing Date, (ii) any persons who are competitors of the Borrower and its Subsidiaries and Controlled JV Subsidiaries that are separately identified in writing by the Borrower or Parent to the Administrative Agent from time to time and (iii) up to ten (10) additional persons or institutions in the aggregate (whereby any one such person or institution together with the Affiliates of such person or institution reasonably identifiable by name as an Affiliate thereof shall count as one person or institution for the purposes hereof), including, without limitation, investors in the Equity Interests of the Parent and its Affiliates, as may be identified in writing by the Borrower or the Parent to the Administrative Agent from time to time. Notwithstanding the foregoing, (x) each Loan Party and the Lenders acknowledge and agree that the Administrative Agent shall not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Lender and the Administrative Agent shall have no liability with respect to any assignment or participation made to a Disqualified Lender and (y) any such designation of a Disqualified Lender may not apply retroactively to disqualify any Person that has previously acquired an assignment or participation in any Loan prior to such date of designation.

“Disqualified Stock” means, with respect to any Person, any Equity Interests of such person that, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) is redeemable at the option of the holder thereof, except to the extent such Person may satisfy such redemption through the issuance of Qualified Equity Interests, in whole or in part, (c) requires the scheduled payment of dividends in cash (and which may not accrue) or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Stock, in each case of clauses (a) to (d), prior to the date that is ninety-one (91) days after the Final Extended Maturity Date in effect at the time of issuance thereof (provided, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock). Notwithstanding the foregoing, any Equity Interests issued to any employee or to any plan for the benefit of employees of the Borrower or the Subsidiaries or by any such plan to such employees shall not constitute Disqualified Stock solely because they may be required to be repurchased by the Borrower in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability.

“Dollar” and “$” mean lawful money of the United States.

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of or exposure to any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries or Controlled JV Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, approval, identification number, license or other authorization required under any Environmental Law.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock (or other ownership or profit interests) in such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock (or other ownership or profit interests) in such Person, all of the securities convertible into or exchangeable for shares of capital stock (or other ownership or profit interests) in such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

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“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Event of Default” has the meaning specified in Section 8.01.

“Excluded Subsidiary” means (a) any Property-Level Subsidiary which is prohibited from guaranteeing the Obligations pursuant to restrictions contained in (x) any document, instrument or agreement evidencing Mortgage Indebtedness secured by assets directly owned by such Property-Level Subsidiary (or by its Subsidiary, provided Section 6.12(b) has been complied with in respect of such Mortgage Indebtedness) or (y) such Property-Level Subsidiary’s Organizational Documents as in effect on the Closing Date or to the extent they are required to contain such restrictions under documents referred to in clause (x), (b) any JV Subsidiary, (c) any Subsidiary that holds no material assets (and holds no Equity Interests in entities that own material assets, whether directly or indirectly through Equity Interests in other such entities) and has no material operations, (d) any Subsidiary of any entity described in clause (a) or (b) or (c) above, (e) any CFC or a Subsidiary that is held directly or indirectly by a CFC, (f) any Subsidiary of Parent that is a CFC Holding Company, (g) any Subsidiary that is disregarded as separate from its owner within the meaning of Treasury Regulations Section 301.7701-2(c)(2) that is held directly or indirectly by a non-U.S. Subsidiary that is a CFC, (h) any captive insurance Subsidiary, (i) any not-for-profit Subsidiary, or (j) any Subsidiary that is taxable as a REIT and prohibited by law or by the terms of any Mortgage Indebtedness from providing any guaranty in respect of this Agreement. A Subsidiary shall no longer be considered an Excluded Subsidiary when it ceases to be subject to the circumstances or restrictions which caused it to be an Excluded Subsidiary.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13), or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such withholding Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any withholding Taxes imposed pursuant to FATCA.

“Exit Fee” has the meaning specified in Section 2.08(b)(i).

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“Extended Maturity Date” means, (a) with respect to the first requested extension pursuant to Section 2.13, if any, the first anniversary of the Initial Maturity Date, and (b) with respect to the second requested extension pursuant to Section 2.13, if any, the second anniversary of the Initial Maturity Date.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average quotation (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) on such day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing, selected by it.

“Final Extended Maturity Date” means the fifth anniversary of the Closing Date.

“Forbearance Agreements” means any forbearance, standstill or modification agreements relating to Mortgage Indebtedness executed on or prior to the Closing Date or pending as of the Closing Date and hereafter executed in connection with the COVID-19 Pandemic or such other forbearance agreement contemplated by Section 2.01(c).

“Foreign Lender” means a Lender that is not a U.S. Person.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantee” means, as to any Person, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person in any manner, whether directly or indirectly. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.

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“Guarantors” means, collectively, (a) the Parent Entities, and (b) all Subsidiary Guarantors.

“Guaranty” means, collectively, the Guaranty made by the Parent under Article X in favor of the Secured Parties, the Guaranty made by the Borrower and Guarantors in favor of the Secured Parties, substantially in the form of Exhibit F, together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative transaction, or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or credit spread transaction, repurchase transaction, reserve repurchase transaction, securities lending transaction, weather index transaction, spot contracts, fixed price physical delivery contracts, or any similar transaction or any combination of these transactions, in each case of the foregoing, whether or not exchange traded.

“Hotel Properties” means any of the hotel properties owned or leased by the Borrower or any Subsidiaries or JV Subsidiaries.

“Immediate Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals, such individual’s estate (or an executor or administrator acting on its behalf), heirs or legatees or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.

“Indebtedness” means, as to any Person, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (c) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (e) all obligations of such Person issued or assumed as the deferred purchase price of property or services (other than such obligations accrued in the ordinary course of business or consistent with past practice), to the extent that the same would be required to be shown as a long-term liability on a balance sheet prepared in accordance with GAAP, (f) all Capitalized Lease Obligations of such Person, (g) all net payments that would be due from such Person in the event of an early termination, on the date of determination, in respect of outstanding Hedging Agreements, (h) the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased the liquidation preference of such Disqualified Stock) and (i) all Guarantees by such Person of Indebtedness described in clauses (a) to (h) above. The Indebtedness of any Person shall include the Indebtedness of any partnership in which such Person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness limits the liability of such Person in respect thereof.

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“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitees” has the meaning specified in Section 11.04(b).

“Information” has the meaning specified in Section 11.07.

“Initial DDTLDDTLs” means DDTLs advanced up tomade in an aggregate principal amount of $150,000,000 (and(including any PIK Principal on Initial DDTLs). of up to $150,000,000; provided that from and after the funding of the Keys Draw or other occurrence of the DDTL Commitment Expiration Date, up to $100,000,000 of Initial DDTLs may be made hereunder for a period of twelve (12) months following such funding or occurrence in accordance with the definition of “DDTL Commitment Expiration Date”.

“Initial Maturity Date” means the third anniversary of the Closing Date.

“Initial Loans” means the Initial Term Loans and each DDTL (if any).

“Initial Term Loan” has the meaning set forth in Section 2.01(a).

“Initial Term Loan Commitment” means, in the case of each Lender as of the date hereof, the amount set forth opposite such Lender’s name on Schedule 1.01 under the header “Initial Term Loan Commitment”, as the same may be changed from time to time pursuant to the terms hereof.

“Initial Term Loan Lender” means any Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.

“Insolvency Proceeding” has the meaning set forth in Section 8.01(f).

“Interest Payment Date” means the last Business Day of each March, June, September and December and the Maturity Date.

“Intermediate Parents” means, collectively, Ashford OP General Partner LLC and Ashford OP Limited Partner LLC.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition (including pursuant to a merger with another Person that is not a Subsidiary of a Loan Party immediately prior to such merger) of Equity Interests, Indebtedness or other securities of another Person, (b) the making of a loan, advance or capital contribution to another Person, or the Guarantee or assumption of Indebtedness of another Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of a Hotel Property or assets of another Person that constitute a business unit.

“IP Rights” has the meaning specified in Section 5.17.

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“IRS” means the United States Internal Revenue Service.

“JV Subsidiary” means any entity in which Borrower owns, directly and indirectly, less than 100% of the equity interests, excluding any investment in the securities of any publicly traded company.

“Keys Draw” means a Borrowing of Initial DDTLs in the principal amount of $50,000,000, contemplated (but not obligated) to be requested by the Borrower in a duly submitted Request for Credit Extension on or prior to July 7, 2023.

“Keys Pool A” means that certain Mortgage Indebtedness evidenced by (a) mortgage loan dated as of June 13, 2018, in the principal amount of $144,400,000, and (b) mezzanine loan dated as of June 13, 2018, in the principal amount of $36,320,000.

“Keys Pool B” means that certain Mortgage Indebtedness evidenced by (a) mortgage loan dated as of June 13, 2018, in the principal amount of $149,400,000, and (b) mezzanine loan dated as of June 13, 2018, in the principal amount of $25,000,000.

“Keys Prepayment” means the use of the proceeds of the Keys Draw to prepay certain Mortgage Indebtedness.

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“Lender” has the meaning specified in the introductory paragraph hereto.

“Lending Office” means, as to any Lender, the office or offices of such Lender and, as appropriate, its account, as described in such Lender’s Administrative Questionnaire, or such other office or offices or account as a Lender may from time to time notify the Borrower and the Administrative Agent, which office or account may be that of any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Liquidity Test Date” has the meaning set forth in Section 7.11.

“Lismore Contract” means that certain letter agreement re Amended and Restated Ashford Trust Agreement, dated as of April 6, 2020, related to the provision by Lismore Capital II LLC to the Parent of certain services.

“Loan” means an extension of credit by a Lender to the Borrower in the form of an Initial Term Loan, a DDTL or a Protective Advance Loan, as applicable.

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“Loan Documents” means, collectively, (a) this Agreement, (b) the Note, (c) the Guaranty, (d) the Collateral Documents, (e) the AINC Subordination and Non-Disturbance Agreement, (f) the Voting Agreement and (g) each other agreement, certificate, instrument or document executed or delivered pursuant to this Agreement and the other Loan Documents.

“Loan Parties” means, collectively, the Borrower and each Guarantor.

“Make-Whole Amount” means, as of any time of determination with respect to any applicable actual or required repayment, prepayment or acceleration of the outstanding principal amount of the Initial Loans, an amount, determined by the Administrative Agent, equal to the excess of (i) the sum of (x) the present value on the repayment, prepayment or acceleration (including automatic acceleration pursuant to Section 8.02 or by operation of law) date of the aggregate amount of all interest which would otherwise have accrued on the amount repaid, prepaid or accelerated for the period from the date of such repayment, or prepayment or acceleration (or the date on which such repayment or prepayment was required to be made) to the date that is twenty-four (24) months following the Closing Date, computed using a discount rate equal to the Treasury Rate as at the date which is two Business Days prior to the date of repayment or prepayment plus 50 basis points, plus (y) an amount equal to 102.00% of the principal amount to be repaid, prepaid or accelerated over (ii) the principal amount to be repaid or prepaid or accelerated.

“Material Adverse Effect” means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Parent and its Subsidiaries and Controlled JV Subsidiaries taken as a whole, (b) the ability of the Loan Parties to timely perform their obligations under the Loan Documents, or (c) the validity or enforceability of the Loan Documents.

“Material Contract” means, with respect to any Person, each contract or agreement to which such Person is a party (a) involving aggregate consideration in excess of the Threshold Amount, (b) as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect, or (c) that is a management, franchise or brand license agreement with respect to any of the Hotel Properties.

“Maturity Date” means (a) if the Initial Maturity Date is not extended to the Extended Maturity Date pursuant to Section 2.13, then the Initial Maturity Date, and (b) if the Initial Maturity Date is extended to the Extended Maturity Date pursuant to Section 2.13, then the Extended Maturity Date; provided, however, that, in each case, if such date is not a Business Day, then the Maturity Date shall be the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case the Maturity Date shall be the next preceding Business Day.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

“Mortgage Debt Threshold Amount” means $400,000,000.

“Mortgage Indebtedness” means, collectively, (a) the Indebtedness identified on Schedule 5.07(b) (including any mezzanine loans comprising a part thereof) and any Permitted Refinancing thereof and (b) all other Indebtedness of Property-Level Subsidiaries that is secured by the assets of any Property-Level Subsidiaries, in each case of clauses (a) and (b), that is without recourse to any Loan Party (other than pursuant to one or more Mortgage Recourse Carve-outs).

“Mortgage Recourse Carve-outs” means, (a) with respect to Mortgage Indebtedness, (i) recourse liabilities contained in customary (ii) “bad boy” guarantees, (iii) environmental indemnities, (iv) PIP completion guarantees, (v) limited payment or replenishment guarantees contained in any Forbearance Agreements, and (b) guarantees of brand franchise or management agreements.

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“MS-17 Loan” means that certain Mortgage Indebtedness entered into on October 31, 2017, with an initial aggregate principal amount of $427,000,000 (and a current aggregate principal amount of $415,000,000 as of the Amendment No. 2 Effective Date, and, from and after the Amendment No. 2 Effective Date, subject to the proviso to Section 8.01(d)).

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

“Net Cash Proceeds” means:

(a)            with respect to any Disposition of a Hotel Property (including a Disposition of any direct or indirect Equity Interests in a Property-Level Subsidiary that owns a Hotel Property) or any other Disposition pursuant to clauses (e), (h)(vii) and (h)(viii) of Section 7.05 by the Borrower or any of its Subsidiaries or Controlled JV Subsidiaries, the excess, if any, of:

(i)            the sum of cash and Cash Equivalents received in connection with such Disposition (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received); over

(ii)            the sum (without duplication) of (A) the principal amount of any Mortgage Indebtedness that is directly or indirectly secured by the Hotel Property (or any other Indebtedness secured by the property subject to such Disposition) and that is required to be repaid in connection with such Disposition (other than Indebtedness under the Loan Documents), together with any applicable premium, penalty, interest and breakage costs, (B) the out-of-pocket expenses (including, without limitation, attorneys’ fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees) actually incurred by the Borrower or such Subsidiary or Controlled JV Subsidiary in connection with such Disposition; (C) taxes (or distributions for taxes) paid or reasonably estimated to be payable in connection therewith by the Borrower or such Subsidiary or Controlled JV Subsidiary and attributable to such Disposition; and (D) any reserve for adjustment in respect of (1) the sale price of such asset or assets established in accordance with GAAP and (2) any liabilities associated with such asset or assets and retained by the Borrower or such Subsidiary or Controlled JV Subsidiary after such Disposition, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction;

(b)            with respect to any incurrence or issuance of Indebtedness (other than to the extent permitted under Section 7.02 or in respect of Indebtedness incurred or issued in connection with a Permitted Refinancing), the excess, if any, of (i) the sum of the cash received in connection with such incurrence or issuance over (ii) the investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by such Person in connection with such transaction;

17 

(c)            with respect to any Permitted Refinancing, (A) the amount of Indebtedness incurred or issued in such Permitted Refinancing in excess of the principal amount of Indebtedness to be repaid in connection with such Permitted Refinancing, together with any applicable premium, penalty, interest and breakage costs, less (B) investment banking fees, underwriting discounts, commissions, costs and other out-of-pocket expenses (including attorneys’ fees) and other customary expenses, incurred by such Person in connection with such transaction (including any reserves required to be maintained by such Person); and

(d)            with respect to any Casualty Event, the excess of (i) the sum of the cash and Cash Equivalents received under an insurance claim filed or from any governmental authority in connection with such Casualty Event over (ii) the sum (without duplication) of (A) the costs incurred or reserved to repair or restore the damage to the Hotel Property (or insured property) (x) to the extent such repair or restoration is required under the terms of any Mortgage Indebtedness or (y) otherwise, so long as such repair or restoration is commenced within 180 days of receipt of such Net Cash Proceeds (B) any amounts required to be applied or reserved under the terms of any Mortgage Indebtedness, (C) the out-of-pocket expenses (including, without limitation, attorneys’ fees) incurred in connection with the insurance recovery thereof, (D) taxes (or distributions for taxes) paid or reasonably estimated to be payable in connection therewith by the Borrower or such Subsidiary or Controlled JV Subsidiary and attributable to such Casualty Event, and (E) any reserve for adjustment in respect of any liabilities retained by Borrower or any Subsidiary or Controlled JV Subsidiary after such Casualty Event, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.

“Net Equity Proceeds” means, in respect of any sale or issuance of common Equity Interests in Parent, the excess of (i) the sum of the cash and Cash Equivalents received by Parent in connection with such sale or issuance, over the sum (without duplication) of (ii)(A) the fees, underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by Parent in connection therewith and (B) taxes (or distributions for taxes) paid or reasonably estimated to be payable in connection therewith by the Parent and attributable to such sale or issuance.

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.01 and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C.

“NPL” means the National Priorities List under CERCLA.

“Oaktree Registered Warrants” means the Warrants to purchase shares of Common Stock, the resale of which will be registered for the benefit of the Lender and its Affiliates on or before the Amendment No. 1 Effective Date.

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“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and premiums that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and premiums are allowed claims in such proceeding.

“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

“OP Units” means “Common Partnership Units” as defined in the Borrower Partnership Agreement.

“Organizational Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.07).

“Outstanding Amount” means the aggregate outstanding principal amount of all Loans after giving effect to any borrowings and prepayments or repayments of Loans occurring on such date;.

“Parent” has the meaning specified in the introductory paragraph hereto.

“Parent Entities” means, collectively, the Parent and the Intermediate Parents.

“Participant” has the meaning specified in Section 11.06(d).

“Participant Register” has the meaning specified in Section 11.06(d).

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Act” means the Pension Protection Act of 2006.

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“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

“Permitted Refinancing” means any refinancing or replacement of Indebtedness that does not increase the principal amount thereof or shorten the maturity thereof; provided that (i) the principal amount may be increased by reasonable fees incurred in connection therewith and otherwise increased, so long as any Net Cash Proceeds thereof are applied in accordance with Section 2.04, and (ii) if the Indebtedness being so refinanced or replaced is Mortgage Indebtedness, the Indebtedness with which it is refinanced or replaced shall constitute Mortgage Indebtedness.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“PIK Election Period” means the period commencing on the Closing Date and ending on the second anniversary of the Closing Date.

“PIK Interest” has the meaning specified in Section 2.07(c)(ii).

“PIK Interest Payment” has the meaning specified in Section 2.07(c)(ii).

“PIP” means any property improvement plan or other capital expenditures required by any hotel brand franchisor at a Hotel Property.

“Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.

“Platform” has the meaning specified in Section 6.02.

“Pledge Agreement” has the meaning specified in Section 4.01(a)(iii).

“Pledged Debt Instruments” has the meaning specified in Section 1 of the Security Agreement.

“Pledged Equity” means the Pledged Shares and the Pledged Interests, each as defined in Section 1 of the Pledge Agreement.

“Premier Project Management Agreement” means (a) that certain Master Project Management Agreement dated August 8, 2018, by and among Ashford TRS Corporation, RI Manchester Tenant Corporation, CY Manchester Tenant Corporation and Premier Project Management LLC, together with all addendums executed in connection therewith, and (b) Mutual Exclusivity Agreement dated August 8, 2018, by and among Borrower, Parent and Premier Project Management LLC, together with all addendums executed in connection therewith, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.

20 

“Prepayment Premium” means, as of the date of the occurrence of a Prepayment Premium Trigger Event, with respect to any Initial Loan:

(a)            during the period from and after the Closing Date through and including the date that is the second anniversary of the Closing Date, an amount equal to the Make-Whole Amount;

(b)            during the period following the second anniversary of the Closing Date through the date immediately preceding the Initial Maturity Date, an amount equal to two percent (2.0%) of the principal amount of the Initial Loans prepaid (or in the case of an Prepayment Premium Trigger Event occurring under clauses (b) or (c) of the definition thereof, deemed to be prepaid) on such date; and

(c)            on the Initial Maturity Date (and including in the event of an extension of the Initial Maturity Date pursuant to Section 2.13), zero (0.0%).

“Prepayment Premium Trigger Event” means:

(a)            any prepayment by the Borrower of all, or any part, of the principal balance of any Initial Loan other than (i) any payment of PIK Principal (including pursuant to Sections 2.04(a) and 2.07(c)(ii)(B)), (ii) prepayments of Protective Loan Advances, (iii) any prepayment of the Initial Loans in an aggregate principal amount up to $125,000,000 prior to the Maturity Date that is funded solely with (x) the Net Equity Proceeds of the issuance and sale of common Equity Interests in the Parent in a registered offering (provided such Net Equity Proceeds are applied to make such prepayment within ten (10) Business Days of such issuance and sale), (y) the Net Cash Proceeds of a Disposition of Hotel Properties or of the Equity Interests of a Property-Level Subsidiary or other Disposition pursuant to Section 2.04(b)(i) or (z) with the Net Cash Proceeds of Casualty Events pursuant to Section 2.04(b)(i).

(b)            the acceleration of the Obligations for any reason pursuant to Section 8.02, including any automatic acceleration upon commencement of any proceeding under the Bankruptcy Code; or

(c)            the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Obligations in any proceeding under the Bankruptcy Code, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure, or the making of a distribution of any kind in any proceeding under the Bankruptcy Code to the Administrative Agent or the Lenders in full or partial satisfaction of the Obligations.

For purposes of the definition of the term Prepayment Premium, if a Prepayment Premium Trigger Event occurs under clause (b) or (c) above, solely for the purposes of determining the amount of Prepayment Premium that is due, the entire outstanding principal amount of the Initial Loans shall be deemed to have been prepaid on the date on which such Prepayment Premium Trigger Event occurs.

“Property-Level Subsidiary” means any Subsidiary or Controlled JV Subsidiary of the Borrower that is obligated in respect of any Mortgage Indebtedness and (i) holds title to any assets which are collateral for, or are intended under applicable security documents to be collateral for, such Mortgage Indebtedness, (ii) which is a direct or indirect beneficial owner of one or more other Subsidiaries or Controlled JV Subsidiaries holding assets referred to in clause (i), or (iii) which is a Subsidiary or Controlled JV Subsidiary of a Property-Level Subsidiary.

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“Protective Advance Lender” means any Lender with an outstanding Protective Advance Loan.

“Protective Advance Loan” has the meaning specified in Section 2.01(e).

“Public Lender” has the meaning specified in Section 6.02.

“Qualified Equity Interests” shall mean any Equity Interest other than Disqualified Stock.

“Recipient” means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.

“Register” has the meaning specified in Section 11.06(c).

“REIT” means a Person qualifying for treatment as a “real estate investment trust” under Sections 856 through 860 of the Code and the United States Treasury Regulations promulgated thereunder.

“REIT Ownership Issuance Limit” has the meaning specified in Section 2.08(b)(iv).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Registration Rights Agreement” means that certain Registration Rights Agreement, in the form attached hereto as Exhibit I, that may be entered into by Parent and one or more Lenders or their Affiliates in accordance with Section 2.08(b)(vi).

“Remington Management Agreement” means (a) that certain Consolidated, Amended and Restated Hotel Master Management Agreement dated August 8, 2018, by and among Ashford TRS Corporation, RI Manchester Tenant Corporation, CY Manchester Tenant Corporation and Remington Lodging & Hospitality LLC, together with all addendums executed in connection therewith, and (b) Amended and Restated Mutual Exclusivity Agreement dated August 8, 2018, by and among Borrower, Parent and Remington Lodging & Hospitality, LLC, together with all addendums executed in connection therewith, as amended, restated, supplemented or otherwise modified in accordance with the terms hereof.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

“Request for Credit Extension” means a notice of a Borrowing pursuant to Section 2.02(a), which, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than fifty percent (50%) of the Total Credit Exposures of all Lenders. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

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“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer, controller or other executive officer of a Loan Party, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restricted Payment” means (a) the payment or declaration by any Person of any dividend or other distribution, by reduction of capital or otherwise (whether in cash, securities or other property, but excluding dividends and distributions payable solely by the issuance of additional Equity Interests (other than Disqualified Stock) of such Person) with respect to any capital stock or other Equity Interest of such Person, (b) the payment by any Person (whether in cash, securities or other property other than any payment solely in the form of Equity Interests (other than Disqualified Stock) of such Person), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any capital stock or other Equity Interest of such Person, or such Person’s direct or indirect parent entity, or on account of any return of capital to such Person’s or such Person’s direct or indirect parent entity’s shareholders, partners, members or other holders of Equity Interests and (c) the making of any principal payment on or with respect to, or purchase, redemption, defeasance or other acquisition or retirement for value of, any Indebtedness for borrowed money of any Loan Party that is (i) contractually subordinated in right of payment to the Obligations, (ii) secured by a Lien on the Collateral that ranks junior in priority to the Lien on the Collateral securing the Obligations or (iii) unsecured, in each case, except for regularly scheduled principal payments thereof, at the stated maturity thereof or a Permitted Refinancing thereof.

“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.

“Sanction(s)” means any international economic sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

“Security Agreement” has the meaning specified in Section 4.01(a)(iii).

“Specified Suspended Covenants” means the covenants set forth in Sections 6.01, 6.02 (other than clause (d) thereof), 6.10, 6.19, 7.11, 7.17 and Article 2 of the Voting Agreement.

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“Specified Suspended Covenant Period” means the period commencing on the date that no Loans or PIK Principal are outstanding hereunder and ending on the next date subsequent thereto that any Loans or PIK Principal are outstanding hereunder.

“Stock Exchange Issuance Limit” has the meaning specified in Section 2.08(b)(iv).

“Subsidiary” of a Person means a corporation, partnership, limited liability company or other entity in respect of which 100% of the Equity Interests therein are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person. As used in this Agreement, the Borrower shall be deemed a Subsidiary of Parent. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

“Subsidiary Guarantor” means each Subsidiary of the Borrower that has entered into (or is required hereunder to enter into) the Guaranty, or an addendum thereto in the form attached to the Guaranty; provided that “Subsidiary Guarantors” shall not include (i) Subsidiaries of the Borrower that have been released from the Guaranty pursuant to the terms of this Agreement or (ii) Excluded Subsidiaries.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Threshold Amount” means $40,000,000.

“Threshold Price” has the meaning specified in Section 2.15.

“Total Credit Exposure” means, as to any Lender at any time, (a) the unused DDTL Commitments of such Lender at such time and (b) the aggregate outstanding principal amount of such Lender’s Loans.

“Total DDTL Commitment” means the sum of all Lenders’ DDTL Commitments, which as of the date hereof is $250,000,000.

“Total Initial Term Loan Commitment” means the sum of all Initial Term Loan Lenders’ Initial Term Loan Commitments, which as of the date hereof is $200,000,000.

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“Total Outstandings” means the aggregate Outstanding Amount of all Loans.

“Treasury Rate” means, as of any date of determination, the weekly average rounded to the nearest 1/100th of a percentage point (for the most recently completed week for which such information is available as of the date that is two (2) Business Days prior to such date) of the yield to maturity of United States Treasury Securities with a constant maturity (as compiled and published in Federal Reserve Statistical Release H.15 with respect to each applicable day during such week or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from such date of determination to the date that is twenty-four (24) months following the Closing Date; provided, however, that if the period from such date of determination to the date that is twenty-four (24) months following the Closing Date is not equal to the constant maturity of a United States Treasury Security for which such a yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of United States Treasury Securities for which such yields are given, except that if the period from the date of determination to the date that is twenty-four (24) months following the Closing Date is less than one year, the weekly average yield on actually traded United States Treasury Securities adjusted to a constant maturity of one year shall be used.

“UCC” means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.

“United States” and “U.S.” mean the United States of America.

“Unpledgeable Subsidiary” means (a) any Subsidiary of the Borrower the Equity Interests in which are prohibited from being pledged to secure the Obligations pursuant to restrictions contained in (x) any document, instrument or agreement evidencing Mortgage Indebtedness secured by assets directly or indirectly owned by such Subsidiary (or by its Subsidiary, provided Section 6.12(b) has been complied with in respect of such Mortgage Indebtedness) or (y) such Subsidiary’s Organizational Documents as in effect on the Closing Date or to the extent they are required to contain such restrictions under documents referred to in clause (x), (b) any JV Subsidiary, (c) any Subsidiary that holds no material assets (and holds no Equity Interests in entities that own material assets, whether directly or indirectly through Equity Interests in other such entities) and has no material operations, (d) any Subsidiary of any entity described in clause (a) or (b) or (c) above, (e) any CFC or a Subsidiary that is held directly or indirectly by a CFC, (f) any captive insurance Subsidiary, (g) any not-for-profit Subsidiary, or (h) any Subsidiary of the Borrower that is taxable as a REIT and prohibited by law or by the terms of any Mortgage Indebtedness from having its Equity Interests pledged to secure the Obligations. A Subsidiary shall no longer be considered an Unpledgeable Subsidiary when it ceases to be subject to the circumstances or restrictions which caused it to be an Unpledgeable Subsidiary.

“Unrestricted Cash” ” means, as of any date of determination, all cash and Cash Equivalents of the Loan Parties that would not appear as “restricted” on a consolidated balance sheet of the Parent (other than by reason of being held in a Collateral Account).

“Unused Fee” has the meaning specified in Section 2.08(d).

“U.S. Loan Party” means any Loan Party that is a U.S. Person.

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(3) or (4).

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“Voting Agreement” means that certain Investor Agreement, of even date herewith, by and among the Parent and the Lenders, as amended, restated, supplemented or otherwise modified from time to time.

“Warrants” has the meaning specified in Section 2.08(b)(iii).

“Warrant Certificate” means that certain Warrant Certificate, in the form attached heretoas Exhibit A to Amendment No. 1 (which replaced the form attached as Exhibit B to this Agreement as it existed on the Closing Date), that may be entered into by Parent and one or more of the Lenders or their Affiliates in accordance with Section 2.08(b)(iii).

“Withholding Agent” means any Loan Party and the Administrative Agent.

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.02         Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a)            The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Loan Document in which such references appear, and (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.

(b)            In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c)            Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

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1.03         Accounting Terms.

(a)            Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries and or Controlled JV Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.

(b)            Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or Lender shall so request, Lender and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP.

1.04         Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05         Times of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Eastern Time (daylight or standard, as applicable).

1.06         Payments. If the Administrative Agent so instructs, all payments that are to be made to the Administrative Agent hereunder for the account of the Lenders shall instead be made directly by the Borrower to each Lender in the amount owed to such Lender hereunder assuming that the Administrative Agent had paid over such amounts to each Lender in accordance with the terms of this Agreement.

Article II.
The Commitments and Credit Extensions

2.01         Commitments and Loans.

(a)            Initial Term Loans. Subject to the terms and conditions set forth herein, each Initial Term Lender agrees severally and not jointly to make a loan or loans (each such loan, an “Initial Term Loan”) to the Borrower on the Closing Date, in an amount equal to such Initial Term Lender’s Initial Term Loan Commitment. All such Initial Term Loans in the aggregate shall not exceed the Total Initial Term Loan Commitment. Such Initial Term Loans may be repaid or prepaid in accordance with the terms hereof, but once repaid or prepaid may not be re-borrowed.

(b)            DDTLs. Subject to the terms and conditions set forth herein, each DDTL Lender severally agrees severally and not jointly to make a loan or loans to the Borrower from time to time after the Closing Date (each such loan, a “DDTL”), which shall be either an Initial DDTL or an Additional DDTL, until the DDTL Commitment Expiration Date (or, solely with respect to Initial DDTLs, the date that is 12 months thereafter in accordance with the definitions of “Initial DDTL” and “DDTL Commitment Expiration Date”), in an aggregate principal amount not to exceed its DDTL Commitment. All such DDTLs in the aggregate shall not exceed the Total DDTL Commitment. Such DDTLs may be repaid or prepaid in accordance with the terms hereof, but once repaid or prepaid may not be re-borrowed. Notwithstanding anything to the contrary herein or otherwise, in no event shall more than $150,000,000 in aggregate principal amount of DDTLs be available or funded hereunder on or after the Amendment No. 2 Effective Date.

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(c)            Protective Advances. Subject to the terms and conditions set forth herein, the Lenders may, in their sole and absolute discretion, make advances (each, a “Protective Advance Loan”) to or on behalf of the Borrower or its applicable Subsidiary or Controlled JV Subsidiary from time to time on any Business Day, solely to cure a default under Mortgage Indebtedness with an outstanding principal amount in excess of the Mortgage Debt Threshold Amount in the aggregate (the “Applicable Mortgage Indebtedness) (and for the avoidance of doubt, no such cure may be made with respect to any Mortgage Indebtedness with an aggregate outstanding principal amount equal to or less than the Mortgage Debt Threshold Amount); provided, however, that the Administrative Agent shall give Borrower ten (10) Business Days’ prior written notice prior to making a Protective Advance Loan, which notice shall specify (i) the amount of the Protective Advance Loan, (ii) the funding date of the Protective Advance Loan, which shall be a Business Day, and (iii) a reasonably detailed description of the default and the Applicable Mortgage Indebtedness to be paid with the proceeds of the Protective Advance Loan. If, prior to such funding date the Borrower pays or cures such default or obtains a Forbearance Agreement in respect thereof or provides other adequate assurances to the satisfaction of the Administrative Agent, the Administrative Agent will not advance the Protective Advance Loan; provided that, (i) in the event the Forbearance Agreement obtained or other assurances provided with respect to such default terminate or expire while the applicable default is continuing under such Applicable Mortgage Indebtedness, or if, notwithstanding any such Forbearance Agreement or other assurances, the creditor under the Applicable Mortgage Indebtedness is or becomes entitled to accelerate the Applicable Mortgage Indebtedness or enforce its rights in the collateral therefor, the Administrative Agent may advance Protective Advance Loans pursuant to this Section 2.01(c) without regard to this sentence and (ii) without the prior written consent of the Administrative Agent, the Loan Parties shall not, and shall cause their Subsidiaries and Controlled JV Subsidiaries not to, following such default, enter into, consent to or otherwise acquiesce to any agreement, arrangement, action or proceeding whereby the secured creditors under such Applicable Mortgage Indebtedness take exclusive control or possession of, or dispose of, or exercise their rights as a secured creditor in, collateral for such Applicable Mortgage Indebtedness, in full or partial satisfaction thereof.

(d)            Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class made by the applicable Lenders ratably in accordance with their respective Commitments of the applicable Class. To the extent a Borrowing of Initial DDTLs would exceed an aggregate principal amount of $150,000,000, any amount in excess thereof shall be deemed to be a Borrowing of Additional DDTLs.

2.02         Borrowings of Loans.

(a)            Each Borrowing shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by a Request for Credit Extension. Each such Request for Credit Extension must be received by the Administrative Agent not later than 11:00 a.m. (i) in the case of the Borrowing of Initial Term Loans to occur on the Closing Date, at least three (3) Business Days prior to the Closing Date and (ii) in the case of a Borrowing of DDTLs, at least five (5) Business Days prior to the date of the proposed Borrowing. Each Borrowing of Loans shall be in a principal amount of at least $25,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Request for Credit Extension shall specify (i) whether the Borrower is requesting an Initial Term Loan or DDTL, (ii) the requested date of the Borrowing (which shall be a Business Day) and (iii) the principal amount of Loans to be borrowed (and, in the case of a Borrowing of DDTLs, the amount of such Borrowing constituting Initial DDTLs and the amount thereof constituting Additional DDTLs, if applicable).

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(b)            Following receipt of a Request for Credit Extension, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans. Subject to the satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), each Lender shall make the amount of its Loan available to the Borrower by wire transfer of such funds, in each case in accordance with instructions provided to the Administrative Agent by the Borrower, on the Business Day specified in the applicable Request for Credit Extension.

2.03         Pro Rata Borrowings. The Initial Term Loans under this Loan Agreement shall be made by the Initial Term Loan Lenders pro rata on the basis of their Initial Term Loan Commitments. Any DDTL under this Loan Agreement shall be made by the DDTL Lenders pro rata on the basis of their DDTL Commitments. No Lender shall be responsible for any default by any other Lender in its obligation to make Loans hereunder, and each Lender shall be obligated to make the Loans, as applicable, provided to be made by it hereunder regardless of the failure of any other Lender to fulfill its commitments hereunder.

2.04         Prepayments.

(a)            Voluntary Prepayments. The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay the Loans (including PIK Principal) in whole or in part without premium or penalty other than, to the extent set forth in Section 2.04(d), any applicable Prepayment Premium; provided that such notice must be received by the Administrative Agent not later than 11:00 a.m. one Business Day prior to any date of prepayment (which notice may be extended or revoked in the discretion of Borrower). Each such notice shall specify the date and amount of such prepayment of Loans to be prepaid, and the applicable Prepayment Premium (if any). The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such prepayment. If such notice is given by the Borrower (and not extended or revoked), the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of Loans shall be accompanied by all accrued but unpaid interest on the amount prepaid, together with any applicable Prepayment Premium pursuant to Section 2.04(d) and, in the case of a repayment in full of the outstanding principal amount of the Loans (including any PIK Principal), the Exit Fee in accordance with Section 2.08(b). Subject to Section 3.05, each such prepayment shall be applied to the Loans of each Class held by the Lenders in accordance with their respective Applicable Percentages for Loans of such Class.

(b)            Mandatory Prepayments.

(i)            Dispositions; Casualty Events.

(A)            All Net Cash Proceeds described in clauses (a) or (d) of the definition thereof that are realized or received by the Parent and its Subsidiaries (but, in the case of any Property-Level Subsidiary, only to the extent permitted by the terms of any Mortgage Indebtedness to distribute such net cash proceeds to the Borrower), shall be paid to the Administrative Agent, for distribution to the Lenders for application to the Loans in accordance with the provisions of Section 2.04(c), within five (5) Business Days after realization or receipt of such Net Cash Proceeds; provided that, in respect of Net Cash Proceeds realized or received with respect to any Disposition of a Hotel Property or other Disposition pursuant to clauses (e), (h)(vii) and (h)(viii) of Section 7.05 or any Casualty Event, no such prepayment shall be required pursuant to this Section 2.04(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention, to either (1) reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds in accordance with Section 2.04(b)(i)(B) or (2) utilize all or a portion of such Net Cash Proceeds to fund operations at Property-Level Subsidiaries in accordance with Section 2.04(b)(i)(C) (which election may only be made if no Event of Default has occurred and is then continuing).

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(B)            With respect to any Net Cash Proceeds realized or received with respect to any Disposition of a Hotel Property or other Disposition pursuant to clauses (e), (h)(vii) and (h)(viii) of Section 7.05 or any Casualty Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Cash Proceeds (to the extent not utilized pursuant to Section 2.04(b)(i)(C)) in new Hotel Properties and other capital assets useful for the business of the Borrower and its Subsidiaries and JV Subsidiaries within one hundred and eighty (180) days of the receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds are not so reinvested within such reinvestment period, an amount equal to any such Net Cash Proceeds shall be immediately applied to the payment of the Loans pursuant to Section 2.04(c).

(C)            With respect to any Net Cash Proceeds realized or received with respect to any Disposition of a Hotel Property or other Disposition pursuant to clauses (e), (h)(vii) and (h)(viii) of Section 7.05 or any Casualty Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may use all or a portion of such Net Cash Proceeds (to the extent not reinvested pursuant to Section 2.04(b)(i)(B)) to pay any operating deficits at any Property-Level Subsidiary, provided that the aggregate amount of such Net Cash Proceeds that may be utilized pursuant to this Section 2.04(b)(i)(C) shall not exceed (1) $50,000,000 in any fiscal year of the Borrower (with no carry-over to subsequent fiscal years) and (2) $125,000,000 in the aggregate prior to the Maturity Date.

(ii)            Non-Permitted Indebtedness. If the Borrower or any other Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.02, the Borrower shall immediately cause to be paid to the Administrative Agent an amount equal to 100% of the Net Cash Proceeds received therefrom, to be immediately applied as set forth in Section 2.04(c).

(iii)            Permitted Refinancings. If the Borrower or any other Subsidiary realizes or receives any Net Cash Proceeds in connection with any Permitted Refinancing, the Borrower shall immediately cause to be paid to the Administrative Agent an amount equal to 100% of the Net Cash Proceeds received therefrom, to be immediately applied as set forth in Section 2.04(c).

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(c)            Except as otherwise provided in Section 2.04(b)(i), each prepayment of principal pursuant to this Section 2.04 shall be applied pro rata to the Loans based on the outstanding principal amounts thereof. All amounts received pursuant to this Section 2.04 shall be applied (i) first, to the prepayment of the any Protective Advance Loan then outstanding in accordance with the first sentence of this Section 2.04(c), (ii) second, to the outstanding balance of PIK Principal, and (iii) third, to the prepayment of any Initial Loans (including any Prepayment Premium thereon) in accordance with the first sentence of this Section 2.04(c). For the avoidance of doubt, the Net Cash Proceeds required to be applied pursuant to this Section 2.04(c) shall not be increased to an amount in excess of the Net Cash Proceeds realized or received to account for any Prepayment Premium owing as a result of any prepayment of Initial Loans.

 

(d)            Prepayment Premium. Upon the occurrence of a Prepayment Premium Trigger Event, the Borrower shall pay to the Administrative Agent, for the account of the Lenders holding the Loans being prepaid (or deemed prepaid), the Prepayment Premium. For the avoidance of doubt, no Prepayment Premium shall be due in connection with (i) any prepayment of PIK Principal, (ii) any prepayment of Protective Loan Advances or (iii) any prepayment of the Initial Loans in an aggregate principal amount up to $125,000,000 prior to the Maturity Date that is funded solely with: (x) the Net Equity Proceeds of the issuance and sale of common Equity Interests in the Parent in a registered offering (provided such Net Equity Proceeds are applied to make such prepayment within ten (10) Business Days of such issuance and sale), (y) the Net Cash Proceeds of a Disposition of Hotel Properties or of the Equity Interests of a Property-Level Subsidiary, pursuant to Section 2.04(b)(i) or (z) with the Net Cash Proceeds of Casualty Events pursuant to Section 2.04(b)(i). Notwithstanding anything to the contrary in this Loan Agreement or any other Loan Document, it is understood and agreed that if the Obligations are accelerated as a result of the occurrence and continuance of any Event of Default (including by operation of law or otherwise), the Prepayment Premium, if any, determined as of the date of acceleration, will also be due and payable and will be treated and deemed as though the Loans were prepaid as of such date and shall constitute part of the Obligations for all purposes herein. Any Prepayment Premium payable pursuant to this Section 2.04 shall be presumed to be equal to the liquidated damages sustained by the Lenders as the result of the occurrence of the Prepayment Premium Trigger Event, and the Borrower and Guarantors agree that it is reasonable under the circumstances currently existing. The Prepayment Premium, if any, shall also be payable in the event the Obligations (and/or this Loan Agreement) are satisfied or released by foreclosure (whether by power of judicial proceeding), deed in lieu of foreclosure or by any other means. THE LOAN PARTIES EXPRESSLY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Loan Parties expressly agree that (a) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel, (b) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made, (c) there has been a course of conduct between Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium, (d) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this Section 2.04(d), (e) their agreement to pay the Prepayment Premium is a material inducement to the Lenders to provide the Commitments and make the Loans, and (f) the Prepayment Premium represents a good faith, reasonable estimate and calculation of the lost profits or damages of the Lenders and that it would be impractical and extremely difficult to ascertain the actual amount of damages to the Lenders or profits lost by the Lenders as a result of any Prepayment Premium Trigger Event.

 

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(e)            Change of Control Offer. Unless the Borrower has previously or concurrently delivered a notice of prepayment with respect to all the outstanding Loans pursuant to Section 2.04(a) (and such notice has not been rescinded):

 

(i)            not less than thirty (30) days nor more than sixty (60) days prior to the expected occurrence of a Change of Control, the Borrower shall deliver to the Administrative Agent (who shall promptly distribute the same to the Lenders) written notice setting forth in reasonable detail the facts and circumstances underlying such Change of Control (each, a “Change of Control Notice”). In the Change of Control Notice, the Borrower shall make an irrevocable offer to prepay all, but not less than all, of the principal amount of the Loans outstanding as of the date of such Change of Control, subject to payment of a premium of 1.00% of the aggregate principal amount of the Loans to be so prepaid, (and, for the avoidance of doubt, not the Prepayment Premium). Such offer may be contingent upon the occurrence of the Change of Control;

 

(ii)            the Change of Control Notice shall also set forth (A) the estimated date on which such Change of Control will occur, and (B) the estimated date on which the prepayment of the Loans will be consummated (which date shall be simultaneous with, the occurrence of such Change of Control);

 

(iii)            following receipt of any Change of Control Notice, each Lender shall advise the Administrative Agent, by written notice, within fifteen (15) Business Days after receipt by the Administrative Agent of such Change of Control Notice, as to whether it desires to have any or all of the Loans held by it prepaid in accordance with this Section 2.04(e), specifying the principal amount of the Loans that it elects to be prepaid. If a Lender accepts the offer contained in the Change of Control Notice but does not specify a principal amount of the Loans that it elects to be prepaid, it will be deemed to have elected that all of the Loans held by such Lender should be prepaid on the applicable date. If a Lender fails to respond to such offer by the Borrower within such fifteen (15) Business Day period, such Lender shall be deemed to have declined the offer contained in the Change of Control Notice; and

 

(iv)            in the case of offers contingent upon the occurrence of the Change of Control Event (x) the Borrower shall keep the Administrative Agent reasonably informed as to the status of the proposed Change of Control, (y) if the consummation of such Change of Control will be delayed for a period of more than forty-five (45) days after the estimated date therefor set forth in the Change of Control Notice, the Borrower shall provide the Administrative Agent with written notice of the revised estimated date from which such Change of Control will have effect and each Lender shall have the option, by written notice to the Administrative Agent (who shall promptly distribute the same to the Borrower) within fifteen (15) Business Days after receipt thereof, to no longer have its Loans prepaid pursuant to this Section 2.04(e) (in which case such Lender shall be treated as a Lender that originally rejected the offer set forth in the Change of Control Notice). If any Lender fails to respond to such notice from the Borrower within such fifteen (15) Business Day period, such Lender’s denial of the original offer shall remain effective; and (z) the Borrower shall (x) provide the Administrative Agent with written notice of the actual date of closing of the Change of Control and its final calculation of the interest payable upon consummation of such Change of Control two (2) Business Days prior to such closing date and (y) on such closing date prepay the Loans in such amount as described above.

 

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(f) Upon any prepayment or repayment of the Initial Term Loans (including any reduction thereof pursuant to Section 2.15) in full prior to the DDTL Commitment Expiration Date, the DDTL Commitment Expiration Date will be automatically extended to the date that is the forty-two (42) month anniversary of the Closing Date (it being acknowledged and agreed that the Borrower may elect to terminate the DDTL Commitments as otherwise set forth in this Agreement at any time).

 

2.05            Termination or Reduction of Commitments. The Initial Term Loan Commitments of each Initial Term Loan Lender shall automatically terminate upon the making of such Initial Term Loan Lender’s Initial Term Loans pursuant to Section 2.01(a) on the Closing Date. Upon the effectiveness of any Borrowing of DDTL, the DDTL Commitments of each DDTL Lender shall be automatically reduced by the aggregate principal amount of DDTL made by such DDTL Lender pursuant to such Borrowing. Any outstanding DDTL Commitments of each DDTL Lender shall automatically terminate on the DDTL Commitment Expiration Date (or, solely with respect to Initial DDTLs, the date that is 12 months thereafter in accordance with the definitions of “Initial DDTL” and “DDTL Commitment Expiration Date”).

 

2.06            Repayment of Loans. The Borrower agrees to pay to the Administrative Agent, for the benefit of the Initial Lenders, on the Maturity Date, the principal amount of the Loans then outstanding (including any PIK Principal), together with all accrued interest thereon and all fees, expenses payable under the terms of the Loan Documents and other Obligations accrued in respect thereof.

 

2.07            Interest.

 

(a)            Subject to the provisions of Section 2.07(b), each Initial Loan shall bear interest on the outstanding principal amount thereof for at a rate per annum equal to the Applicable Rate.

 

(b)            If any amount of principal, interest, premium, or any other amount payable under this Agreement in respect of any Loan or Obligation is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at an interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

 

(c)            (i) Subject to clause (ii) below, interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

 

(ii)            (A) Any interest on each Loan payable under clause (i) above shall be paid in cash, provided that, in the case of any interest payable on any Interest Payment Date during the PIK Election Period, all of such interest payment (the “PIK Interest”) shall be paid-in-kind by capitalizing the entire amount of such PIK Interest accrued as of such Interest Payment Date by adding the amount thereof to the unpaid principal amount of the relevant Loans as of such date (each, a “PIK Interest Payment” and such capitalized PIK Interest, “PIK Principal”) unless the Borrower elects to pay all or any portion of such interest payment in cash (and any such amount paid in cash shall not constitute a PIK Interest Payment) by providing the Administrative Agent written notice, not less than five (5) Business Days prior to the applicable Interest Payment Date, stating that all or a specified portion of such interest payment will be paid in cash. Following each such increase in the principal amount of such Loans as a result of any PIK Interest Payment, such Loans will bear interest on such increased principal amount from and after the date of each such PIK Interest Payment. Each PIK Interest Payment will be applied pro rata to the Loans (and pro rata among and within each Class of Loans) based for each Lender on the Applicable Percentage of such Lender for the Loans (or the Loans of such Class). For all purposes of this Agreement and the other Loan Documents, the outstanding principal amount of the Loans at any time shall include each increase in the principal amount of the relevant outstanding Loans as a result of all PIK Interest Payments occurring at or prior to such time.

 

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(B)            The Borrower may at any time make “catch-up” prepayments of PIK Principal and such prepayment shall not be deemed a Prepayment Premium Trigger Event or be subject to Section 2.04(d). Each prepayment made in reliance on this clause (B) shall be applied pro rata to the Loans (and pro rata among and within each Class of Loans) based for each Lender on the Applicable Percentage of such Lender for the Loans (or the Loans of such Class).

 

2.08            Fees.

 

(a)            Upfront Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender, in accordance with its Applicable Percentage for the applicable Class of Loans after giving effect to the funding of such Loans, an upfront fee (the “Origination Fee”) in an amount equal to $4,500,000, payable on the Closing Date, which may be net funded from the proceeds of the Initial Term Loans.

 

(b)            Exit Fee. (i) Upon the earliest of (x) repayment in full of the outstanding principal amount of the Loans (including any PIK Principal, and including for the avoidance of doubt as a result of a Change of Control Offer under Section 2.04(e) to the extent that the full outstanding principal amount of all Loans are prepaid as a result of such Change of Control Offer), (y) the Maturity Date, or (z) the acceleration of the outstanding principal amount of the Loans pursuant to Section 8.02 following an Event of Default (the “Exit Date”), in addition to all other amounts owed under this Agreement, the Borrower shall pay to the Administrative Agent, for the account of the Lenders, a fee (the “Exit Fee”) equal to and in the form of, at the Administrative Agent’s written election (acting upon the instructions of the Required Lenders), either the Cash Exit Fee or the Warrants, provided that at least 50% of the Exit Fee shall be paid as a Cash Exit Fee. For the avoidance of doubt, the election for either the Cash Exit Fee or the Warrants shall apply to all Lenders collectively.

 

(i)            The “Cash Exit Fee” means an amount payable in cash equal to the product of (A) 15%, multiplied by (B) the aggregate amount of Initial Loans advanced to Borrower at any time on or after the Closing Date plus the then-outstanding balance of PIK Principal; provided, however, so long as payment of the Exit Fee is not triggered by the acceleration of the outstanding principal amount of the Loans by the Administrative Agent pursuant to Section 8.02 following an Event of Default, the Borrower may in its sole discretion pay all or any portion of the Cash Exit Fee in the form of Common Stock. The amount of Cash Exit Fee that each Lender will be deemed to have received with any issuance of Common Stock will be equal to the number of shares of Common Stock issued to such Lender multiplied by the volume weighted average price of Common Stock for the thirty (30) days prior to the issuance of such Common Stock. Any Common Stock issued to the Lenders pursuant to the payment of the Cash Exit Fee shall be subject to the Voting Agreement. At any time after the Amendment No. 1 Effective Date, to the extent that any portion of the Cash Exit Fee is to be paid in the form of Common Stock in accordance with this clause (b)(ii), such Cash Exit Fee may instead be satisfied by the issuance of Oaktree Registered Warrants in an equivalent amount of the Common Stock that would otherwise be issued pursuant to this clause (b)(ii).

 

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(ii)            The “Warrants” mean a number of warrants to purchase an equivalent number of shares of Common Stock, at a purchase price of $0.01 per share, equal to the product of the Warrants Percentage (as defined in the Warrant Certificate) multiplied by the number of shares of Common Stock outstanding as of the Closing Date, determined on a Pro Forma Basis (as defined in the Warrant Certificate). The Warrants will be issued pursuant to, and be subject to the terms of, the Warrant Certificate, which will be executed and delivered by the parties in the event the Lenders elect to receive Warrants for the Exit Fee. Any Common Stock issued to the Lenders or their Affiliates, as applicable, pursuant to the exercise of Warrants shall be subject to the Voting Agreement. Upon the issuance of the Warrants, Parent shall also make a cash payment and non-cash distribution to each Lender or its Affiliates, as applicable, being issued Warrants, as more fully described in Section 2(a)(i)(D) of the Warrant Certificate.

 

(iii)            The board of directors of the Parent will (A) approve each applicable Lender and its applicable Affiliates as an “Excepted Holder” (as that term is defined in the Organizational Documents of the Parent) with respect to any Common Stock, Warrants and/or OP Units issued pursuant to this Section 2.08(b) and (B) maintain such Lender’s or any of its Affiliates’ status as an “Excepted Holder” for so long as any Lender or any of its Affiliates continues to hold any such Common Stock, Warrants, OP Units and/or any other securities convertible into Common Stock.

 

(iv)            For the avoidance of doubt, the Exit Fee shall not be payable at the time of any prepayment of the Loans pursuant to Section 2.04 (including, for the avoidance of doubt, as a result of a Change of Control Offer), unless such prepayment shall constitute a prepayment in full of all outstanding Obligations on such date of prepayment.

  

(v)            In the event that any Lender or any of its Affiliates receives Common Stock or Warrants in accordance with this Section 2.08(b), each such Lender and/or the applicable Affiliate and the Parent shall execute and deliver to the other parties thereto the Registration Rights Agreement.

 

(vi)            Notwithstanding anything herein to the contrary or otherwise, at any time after the Amendment No. 1 Effective Date the Administrative Agent (acting upon the instructions of the Required Lenders) (which action shall apply to all Lenders collectively) may elect in writing to receive the Exit Fee (computed based on the then outstanding Obligations) as Warrants. Within two (2) Business Days of receipt of any such election, the Parent shall issue Warrants to the Lenders in respect of the Exit Fee pursuant to the Warrant Certificate. Any election to receive the Exit Fee as Warrants prior to the occurrence of the Exit Date shall be without prejudice to the Lenders’ right to receive an Exit Fee on any Obligations incurred subsequent to the date of such election (it being understood and agreed that no Exit Fee shall be due or payable on any portion of the Obligations more than a single time).

 

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(c)            Administrative Agent Fee. In the event Oaktree Fund Administration, LLC resigns as administrative agent pursuant to Section 9.06 or otherwise ceases to be the Administrative Agent, Parent and the Borrower hereby agree to enter into a customary fee letter with any successor administrative agent appointed pursuant to Section 9.06, which will provide for the Borrower to pay to such successor a customary annual administrative agent fee in an amount reasonably satisfactory to the Borrower and Parent and such successor.

 

(d)            Unused Fee. After the DDTL Commitment Expiration Date (following which up to $100,000,000 of Initial DDTLs will be available hereunder for a period of 12 months in accordance with the definitions of “Initial DDTLs” and “DDTL Commitment Expiration Date”), Parent and the Borrower hereby agree to pay an undrawn commitment fee during such twelve (12) month period in an amount equal to 9% per annum multiplied by the actual daily amount by which $100,000,000 exceeds the aggregate outstanding principal amount of Initial DDTLs that were requested and funded after the DDTL Commitment Expiration Date (which, for the avoidance of doubt, shall not include any portion of the Keys Draw) (the “Unused Fee”). The Unused Fee shall be payable on each Interest Payment Date after the DDTL Commitment Expiration Date.

 

2.09            Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. All computations of interest shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

2.10            Evidence of Debt. The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto. The Administrative Agent shall maintain a record of all PIK Interest outstanding from time to time and any prepayments thereof pursuant to Section 2.07(c).

 

2.11            Payments Generally; Administrative Agent’s Clawback.

 

(a)            General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to each Lender (unless there shall be more than five (5) Lenders, in which event, if the Administrative Agent is unable or unwilling to accept payment from the Borrower for the account of the Lenders, then the Administrative Agent hereby agrees, within thirty (30) calendar days after receipt of the Borrower’s written request therefor, to resign as administrative agent in accordance with Section 9.06, and, following the appointment of a successor Administrative Agent pursuant to Section 9.06, all such payments shall be made to the Administrative Agent for the account of the Lenders) to which such payment is owed for its own account, in accordance with such Lender’s Applicable Percentage (or other applicable share as provided herein) of the Loans (or Class of Loans) to which such payment relates, by wire transfer to such Lender’s Lending Office in Dollars and in immediately available funds, not later than 2:00 p.m. on the due date specified for such payment herein. All payments received by a Lender after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

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(b)            Payments by Borrower; Presumptions by Administrative Agent. Subject to Borrower’s right to make PIK Interest Payments, unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

A notice of the Administrative Agent to the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

 

(c)            [Reserved].

 

(d)            Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).

 

(e)            Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

(f)            Insufficient Funds. If at any time insufficient funds are received by and available to the Lenders to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, toward payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.

 

2.12            Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:

 

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(i)            if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

 

(ii)            the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) [reserved], or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than an assignment to the Parent, the Borrower or any Subsidiary or Controlled JV Subsidiary thereof (as to which the provisions of this Section 2.12 shall apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

2.13            Extension of Maturity Date.

 

(a)            Notice of Extension. The Borrower may, on up to two occasions, by notice to the Administrative Agent (who shall promptly notify the Lenders) not earlier than 90 days and not later than 30 days prior to the Maturity Date then in effect hereunder (the “Existing Maturity Date”), extend the Maturity Date to the Extended Maturity Date.

 

(b)            Conditions to Effectiveness of Extensions. An extension of the Maturity Date pursuant to Section 2.13(a) shall be subject solely to (i) payment to the Administrative Agent for the account of each Lender of an extension fee of 1.0% of the outstanding principal amount of the Loans being extended, to be paid in accordance with the Applicable Percentage of such Lender and (ii) as of the applicable Existing Maturity Date, not more than 25% of the aggregate principal amount of Mortgage Indebtedness shall have a final maturity date occurring prior to the applicable Extended Maturity Date.

 

(c)            Conflicting Provisions. This Section 2.13 shall supersede any provisions in Section 11.01 to the contrary.

 

2.14            Tax Treatment. The parties hereto agree to treat the Loans as indebtedness for U.S. federal and applicable state and local income tax purposes, unless otherwise required pursuant to a final judgment, decree or order by a court of competent jurisdiction.

 

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2.15. Reduction of Obligations. Notwithstanding anything herein to the contrary or otherwise, in the event that prior to the termination of this Agreement, one or more of the Oaktree Registered Warrants (or any Warrant Shares (as defined in the Warrant Certificate) resulting from the exercise thereof) are sold by a Lender or any Affiliate of such Lender to any Person that is not a Lender or an Affiliate of such Lender for consideration (net of fees, expenses and discounts) per Warrant or per Warrant Share (as the case may be) in excess of $40 (the “Threshold Price”), the Obligations owing to such Lender shall be reduced by an amount equal to (1) 25% of the amount of such consideration (net of reasonable and customary fees, expenses and discounts) per Warrant or per Warrant Share (as the case may be) in excess of the Threshold Price multiplied by (2) the number of Warrants or Warrant Shares (as the case may be) so sold, with such reductions to be made in the following order: (v) first, to reduce the amount of any PIK Principal outstanding and owing to such Lender, (w) second, to reduce the amount of any Additional DDTLs outstanding and owing to such Lender and any Prepayment Premium due thereon, (x) third, to reduce the amount of any Initial DDTLs outstanding and owing to such Lender and any Prepayment Premium due thereon, (y) fourth, to reduce the amount of any Initial Term Loans outstanding and owing to such Lender and any Prepayment Premium due thereon and (z) fifth, to reduce the amount of any other Obligations then outstanding and owing to such Lender (or, if no Obligations are then outstanding, to reduce any future premium or fees owing at a subsequent time to such Lender, as elected by the Borrower). In order to effect any reductions pursuant to this Section 2.15, the Borrower shall provide the relevant Lender and the Administrative Agent with a certificate of a Responsible Officer containing a reasonably detailed calculation of the amounts of such reductions (which certificate shall be subject to the approval of the Lender, which approval shall not be unreasonably withheld or delayed). The relevant Lender shall provide to the Borrower (promptly after any sale of Warrants or Warrant Shares), any information reasonably necessary for the calculation of the amount of the amount of consideration received by such Lender or its Affiliates for the Warrants or Warrant Shares sold. For the avoidance of doubt, any reduction of Obligations owing to any Lender effected pursuant to this Section 2.15 (x) shall not have the effect of resulting in the Borrower, the Parent or any of their Affiliates receiving any reduction in Obligations owing to such Lender in excess of the amount of Obligations owing to such Lender hereunder (whether in the form of a credit, refund or otherwise) so long as such Lender does not receive more than its pro rata share of the Warrants and (y) may be on a non-pro rata basis with respect to the Obligations owing other Lenders.

 

Article III.
Taxes, Yield Protection and Illegality

 

3.01            Taxes. For purposes of this Section, the term “applicable Laws” includes FATCA.

 

(a)            Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

 

(i)            Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the applicable Withholding Agent) require the deduction or withholding of any Tax from any such payment by the applicable Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below.

 

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(ii)            If any Loan Party or the Administrative Agent shall be required by any applicable Laws to withhold or deduct any Taxes from any payment, then (A) the applicable withholding Agent shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the applicable withholding Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(b)            Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Laws, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(c)            Tax Indemnifications.

 

(i)            Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto (other than penalties resulting from the gross negligence, bad faith or willful misconduct of such Recipient), whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith by such Lender (or the Administrative Agent on behalf of such Lender), accompanied by a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts, delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(ii)            Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, the Administrative Agent against (x) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (y)  any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register and (z)  any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii).

 

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(d)            Evidence of Payments. Upon request by any Loan Party or the Administrative Agent, as the case may be, after any payment of Taxes by such Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, such Loan Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to such Loan Party, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.

 

(e)            Status of Lenders; Tax Documentation.

 

(i)            Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), 3.01(e)(ii)(B) and 3.01(e)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)            Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

 

(A)            any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)            any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)            in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” Article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” Article of such tax treaty;

 

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(2)            executed copies of IRS Form W-8ECI;

 

(3)            in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 871(h)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BENE (or W-8BEN, as applicable); or

 

(4)            to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;

 

(C)            any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)            if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

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(iii)            Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(f)            Treatment of Certain Refunds. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes (including any tax credit in lieu of a refund) as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall promptly pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no event will a Recipient be required to pay any amount to a Loan Party pursuant to this paragraph (f) the payment of which would place such Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person.

 

(g)            Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

3.02            Increased Costs.

 

(a)            Increased Costs Generally. If any Change in Law shall:

 

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

 

(ii)            subject any Lender to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)            impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender;

 

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and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Loan Parties will pay to such Lender such additional amount or amounts as will compensate such Lender as the case may be, for such additional costs incurred or reduction suffered.

 

(b)            Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Loan Parties will pay to such Lender such additional amount or amounts as will compensate such Lender’s holding company for any such reduction suffered.

 

(c)            Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error. The Loan Parties shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

(d)            Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Loan Parties shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender notifies the Issuer of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

3.03            [Reserved].

 

3.04            [Reserved].

 

3.05            Defaulting Lenders.

 

(a)            Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i)            Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and in Section 11.01.

 

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(ii)            Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08, shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with their Commitments hereunder.

 

(iii)            Certain Fees.

 

(A)            No Defaulting Lender shall be entitled to receive any fee payable under Section 2.08(b) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).

 

(B)            [Reserved]

 

(C)            [Reserved].

 

(b)            Defaulting Lender Cure. If the Borrower and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held on a pro rata basis by the Lenders in accordance with their respective Applicable Percentages, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

3.06            [Reserved].

 

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3.07            Mitigation Obligations; Replacement of Lenders.

 

(a)            Designation of a Different Lending Office. Each Lender may make any Credit Extension to the Borrower through any Lending Office, provided that the exercise of this option shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with the terms of this Agreement. If any Lender requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, then at the request of the Borrower such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 in the future and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)            Replacement of Lenders. If Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, and such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.

 

3.08            Survival. All of the Borrower’s obligations under this Article III shall survive the termination of all Commitments, repayment in full of all other Obligations hereunder, and resignation of the Administrative Agent.

 

Article IV.
Conditions Precedent To Credit Extensions

 

4.01            Conditions of Initial Credit Extension. The obligation of each Lender to make its initial Credit Extension of Initial Term Loans on the Closing Date is subject to satisfaction or waiver of the following conditions precedent either prior to or substantially contemporaneously with such initial Credit Extension:

 

(a)            The Administrative Agent’s receipt of the following, each of which shall be originals or electronic (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:

 

(i)            executed counterparts of this Agreement and the Guaranty, in each case sufficient in number for distribution to the Administrative Agent, each Lender, and the Borrower;

 

(ii)            a Note executed by the Borrower in favor of each Lender requesting a Note;

 

(iii)            a security agreement, in substantially the form of Exhibit G (together with each other security agreement and supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), in each case duly executed by each Loan Party, together with:

 

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(A)            proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, and

 

(B)            evidence that all other actions, recordings, and filings that the Administrative Agent may deem necessary or desirable in order to create a perfected first-priority Lien (subject to Liens permitted by Section 7.01) in the Collateral described in the Security Agreement has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);

 

(iv)            a pledge agreement, in substantially the form of Exhibit H (together with each other pledge agreement and supplement delivered pursuant to Section 6.12, in each case as amended, the “Pledge Agreement”), in each case duly executed by each of the Parent Entities and the Administrative Agent, together with:

 

(A)            proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Pledged Equity described therein (which shall be uncertificated), and

 

(B)            evidence that all other actions, recordings, and filings that the Administrative Agent may deem necessary or desirable in order to create a perfected first-priority Lien (subject to Liens permitted by Section 7.01) in the Pledged Equity (which shall be uncertificated) has been taken (including receipt of duly executed payoff letters and UCC-3 termination statements);

 

(v)            to the extent requested by Administrative Agent, lien searches in the name of each Loan Party, and any other name(s) as Administrative Agent may deem appropriate in such Loan Party’s jurisdiction of formation, showing no financing statements or other Lien instruments of record except for Liens created or permitted by the Loan Documents or Liens being released on the Closing Date;

 

(vi)            such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;

 

(vii)            such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of formation and each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;

 

(viii)            a customary opinion of (A) Weil, Gotshal & Manges LLP, counsel to the Loan Parties, (B) Hogan Lovells, counsel to the Loan Parties organized in Maryland, (C) Jackson Walker LLP, counsel to the Loan Parties organized in Delaware, (D) Cadwalader, Wickersham & Taft LLP, counsel to the Loan Parties and (E) Locke Lord, LLP, counsel to the Loan Parties, each addressed to the Administrative Agent and each Lender, and each as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;

 

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(ix)            a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;

 

(x)            a certificate signed by a Responsible Officer of the Borrower certifying:

 

(A)            that no Default or Event of Default shall have occurred and be continuing and

 

(B)            that there has been no event or circumstance since September 30, 2020, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect (excluding (i) the COVID-19 pandemic and (ii) domestic political and/or social unrest);

 

(C)            as to the matters set forth in Section 4.01(e); and

 

(D)            that the following representation shall be true and correct in all respects, both (x) if the “Applicable Date” means December 26, 2020 and (y) if the “Applicable Date” means Closing Date: (1) all written information, including for the avoidance of doubt all 10-K and 10-Q filings with the Securities and Exchange Commission of the Parent (but other than financial projections referred to in clause (2) below or information of a general economic or general industry nature) that has been made available to the Administrative Agent and the Lenders by the Borrower or any of its Affiliates or representatives on or prior to the Applicable Date in connection with the transactions contemplated hereby, taken as a whole (including giving effect to any supplements to the information prior to Applicable Date), is, as of the date hereof, complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of circumstances under which the statements were made and (2) all financial projections concerning the Borrower and its Subsidiaries and Controlled JV Subsidiaries that have been made available to the Administrative Agent and the Lenders by the Borrower or any of its Affiliates or representatives on or prior to the Applicable Date in connection with the transactions contemplated hereby, taken as a whole, have been prepared in good faith based upon assumptions believed to be reasonable as of the Applicable Date; it being understood and acknowledged that any such projections are as to future events and are not to be viewed as facts, and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, that no assurance can be given that any particular projections can be realized, that actual results may differ significantly from the projected results and that such differences may be material; and

 

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(xi)            such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.

 

(b)            (i) All fees required to be paid to the Administrative Agent on or before the Closing Date under this Agreement shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.

 

(c)            The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent and such Lender require in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act (as hereafter defined), in each case to be received no later than three Business Days prior to the Closing Date, to the extent such documentation and/or information was request no later than five Business Days prior to the Closing Date.

 

(d)            Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

 

(e)            The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such date.

 

(f)            The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements thereof.

 

(g)            Prior to, simultaneously or substantially concurrently with the closing under this Agreement, (i) each of the Advisor Arrangement Amendment Documents shall have been entered into by the parties thereto, and the AINC Subordination and Non-Disturbance Agreement shall be effective to subordinate to the prior repayment in full of the Obligations all amounts that would otherwise be owed under the Advisory Agreement or the Lismore Contract and, in each case, are not permitted to be paid under Section 7.17; and (ii) Bank of America N.A. shall have provided its prior written consent to the Advisory Arrangement Amendment Documents for which its consent is required and, in each case, complete and accurate copies of such documents or evidence of such consent (each as in effect on the Closing Date) shall have been delivered to the Administrative Agent.

 

Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

4.02            Conditions to DDTLs. The obligation of each Lender to make any Credit Extension of DDTLs hereunder is subject to satisfaction or waiver of the following conditions precedent either prior to or substantially contemporaneously with such Credit Extension:

 

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(a)            The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof;

 

(b)            No Default or Event of Default shall have occurred and not have been cured or waived; and

 

(c)            The date of such Credit Extension shall be on or prior to the DDTL Commitment Expiration Date (or, solely with respect to Initial DDTLs, the date that is 12 months thereafter in accordance with the definitions of “Initial DDTL” and “DDTL Commitment Expiration Date”).

 

Article V.
Representations and Warranties

 

Each of the Parent and the Borrower represents and warrants to the Administrative Agent and the Lenders that:

 

5.01            Existence, Qualification and Power. Each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

5.02            Authorization; No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Material Contract of any Loan Party or any of their Subsidiaries or Controlled JV Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.

 

5.03            Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, (b) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except as may be provided in any “transfer” or “change of control” provision or other similar change in ownership provision in the organizational documents of the Subsidiaries and the JV Subsidiaries, direct or indirect Equity Interests in which are included in the Pledged Equity, that would apply to the exercise by the Administrative Agent or any Lender of any rights or remedies with respect to such Pledged Equity.

 

5.04            Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party hereto or thereto, as applicable. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to Debtor Relief Laws and principles of equity, whether applied in a court of law or equity.

 

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5.05            Financial Statements; No Material Adverse Effect.

 

(a)            The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Consolidated Parties as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Consolidated Parties as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

 

(b)            The unaudited consolidated balance sheet of the Consolidated Parties dated September 30, 2020, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Consolidated Parties as of the date thereof and their results of operations, cash flows and changes in shareholders’ equity for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.

 

(c)            Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect, other than the COVID-19 Pandemic and political and/or social unrest in the United States.

 

5.06            Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Parent and the Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries or against any of their properties or revenues that (i) purport to affect or pertain to this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (ii) except as specifically disclosed in Schedule 5.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.

 

5.07            Ownership of Property; Liens; Investments.

 

(a)            Each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)            As of the date hereof, Schedule 5.07(b)(i) sets forth a complete and accurate list of all Mortgage Indebtedness constituting Liens on the property or assets of each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries showing the original principal amount of the obligations secured thereby and the property or assets of such Loan Party or such Subsidiary or Controlled JV Subsidiary subject thereto. As of the date hereof, Schedule 5.07(b)(ii) sets forth a complete and accurate list of Liens on the property or assets of each Loan Party.

 

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(c)            As of the date hereof, Schedule 5.07(c) sets forth a complete and accurate list of all Hotel Properties owned or ground leased by each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries, showing as of the date hereof the street address, county or other relevant jurisdiction, state, and record owner. Each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries has good, marketable and insurable fee simple or ground leasehold title to the Hotel Properties owned or ground leased by such Loan Party or such Subsidiary or Controlled JV Subsidiary, free and clear of all Liens, other than Liens not otherwise prohibited by the Loan Documents.

 

5.08            Environmental Compliance.

 

(a)            The Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries are and have been in compliance with all applicable Environmental Laws, except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries conducted in the ordinary course of business a review of the effect of existing and reasonably anticipated future Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Parent and the Borrower have reasonably concluded that, except as specifically disclosed in Schedule 5.08, such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

(b)            Except as otherwise set forth in Schedule 5.08, none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; there are no underground or above-ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed in violation of any Environmental Law on any property currently owned or operated by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in violation of any Environmental Law or in a condition reasonably likely to result in liability; and Hazardous Materials have not been released, discharged or disposed of in violation of any Environmental Law on any property currently owned or operated by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries.

 

(c)            Except as otherwise set forth on Schedule 5.08, neither any Loan Party nor any of its Subsidiaries or Controlled JV Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any Governmental Authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries have been disposed of in a manner that has not resulted and is not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries.

 

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5.09            Insurance. The properties of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of any Loan Party, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the applicable Loan Party or the applicable Subsidiary or Controlled JV Subsidiary operates.

 

5.10            Taxes. The Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries have filed all material Federal, state and other tax returns and reports required to be filed, and have paid all material Federal, state and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being disputed or contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Loan Party or any Subsidiary or Controlled JV Subsidiary that would, if made, have a Material Adverse Effect.

 

5.11            ERISA Compliance.

 

(a)            Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Parent and the Borrower, nothing has occurred that would prevent, or cause the loss of, such tax-qualified status. The Parent, the Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

 

(b)            There are no pending or, to the best knowledge of the Parent and the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

 

(c)            (i) No ERISA Event has occurred and neither the Parent, nor the Borrower nor any ERISA Affiliate is aware of any fact, event, or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Loan Parties and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher, and neither the Parent, nor the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) no Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) no Loan Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.

 

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(d)            No Loan Party nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan other than (A) on the Closing Date, those listed on Schedule 5.11(d) hereto and (B) thereafter, Pension Plans not otherwise prohibited by this Agreement.

 

5.12            Subsidiaries and JV Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, no Loan Party has any Subsidiaries or JV Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.12. All of the outstanding Equity Interests in such Subsidiaries and JV Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party (or a Subsidiary or JV Subsidiary thereof) in the amounts specified on Part (a) of Schedule 5.12 and, with respect to any Equity Interests pledged or intended to be pledged under this Agreement or any other Loan Document, free and clear of all Liens except those created under the Collateral Documents, and with respect to all other Equity Interests, free and clear of all Liens except those permitted under this Agreement. As of the Closing Date, no Loan Party has any equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.12. All of the outstanding Equity Interests in each Loan Party have been validly issued, are fully paid and non-assessable and are owned in the amounts specified on Part (c) of Schedule 5.12 (including, in the case of the Common Stock of Parent, both the number of shares issued and outstanding and the fully-diluted share number in reasonable detail, as of the close of business on the Business Day immediately prior to the Closing Date) and, with respect to any Equity Interests pledged or intended to be pledged under this Agreement or any other Loan Document, free and clear of all Liens except those created under the Collateral Documents, and with respect to all other Equity Interests, free and clear of all Liens except those permitted under this Agreement. Set forth on Part (d) of Schedule 5.12 is a complete and accurate list of all Loan Parties as of the Closing Date, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number.

 

5.13            Margin Regulations; Investment Company Act.

 

(a)            The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.

 

(b)            None of the Borrower, any Person Controlling the Borrower, or any Subsidiary or Controlled JV Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

 

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5.14            Disclosure. (a) All written information, including for the avoidance of doubt all 10-K and 10-Q filings with the Securities and Exchange Commission of the Parent (but other than financial projections referred to in clause (b) below or information of a general economic or general industry nature) that has been made available to the Administrative Agent and the Lenders by the Borrower or any of its Affiliates or representatives on or prior to the Closing Date in connection with the transactions contemplated hereby, taken as a whole (including giving effect to any supplements to the information prior to Closing Date), is, as of the date hereof, complete and correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of circumstances under which the statements were made and (b) all financial projections concerning the Borrower and its Subsidiaries and Controlled JV Subsidiaries that have been made available to the Administrative Agent and the Lenders by the Borrower or any of its Affiliates or representatives on or prior to the Closing Date in connection with the transactions contemplated hereby, taken as a whole, have been prepared in good faith based upon assumptions believed to be reasonable as of the Closing Date; it being understood and acknowledged that any such projections are as to future events and are not to be viewed as facts, and are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, that no assurance can be given that any particular projections can be realized, that actual results may differ significantly from the projected results and that such differences may be material.

 

5.15            Compliance with Laws. Each Loan Party and each Subsidiary or Controlled JV Subsidiary thereof is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being disputed or contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

 

5.16            Taxpayer Identification Number. The Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule 11.02.

 

5.17            Intellectual Property; Licenses, Etc. Each Loan Party and each of its Subsidiaries and Controlled JV Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without infringement or conflict with the rights of any other Person except to the extent the absence of any such IP Rights could not reasonably be expected to have a Material Adverse Effect. To the best knowledge of the Parent and the Borrower, no trademark, slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries infringes upon any rights held by any other Person, except to the extent the absence of any such IP Rights could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Parent and the Borrower, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. To the knowledge of the Loan Parties, no patent, invention, device, application, principle or any statute, law, rule, regulation, standard or code pertaining to intellectual property is pending or proposed, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

5.18            Casualty, Etc. Neither the businesses nor the properties of any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance), condemnation or eminent domain proceeding that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, other than the COVID-19 Pandemic.

 

5.19            Labor Matters. There are no collective bargaining agreements or Multiemployer Plans covering the employees of the Parent, the Borrower or any of their respective Subsidiaries or Controlled JV Subsidiaries as of the Closing Date and neither the Parent, nor the Borrower nor any Subsidiary or Controlled JV Subsidiary has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the last five years.

 

5.20            Collateral Documents. The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien on all right, title and interest of the respective Loan Parties in the Collateral described therein. Except for filings completed prior to the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens.

 

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5.21         OFAC. Neither the Parent, nor the Borrower, nor any of their respective Subsidiaries or Controlled JV Subsidiaries, nor, to the knowledge of the Parent, the Borrower and their respective Subsidiaries and Controlled JV Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of specially Designated Nationals, Her Majesty’s Treasury’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.

5.22         Nature of Business. As of the Closing Date, the Loan Parties and their Subsidiaries are engaged in the business of acquiring, financing, owning, and operating hotel properties, together with other business activities incidental thereto.

5.23         Anti-Corruption Laws. The Parent, the Borrower and their respective Subsidiaries and Controlled JV Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in those or other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

5.24         EEA Financial Institutions. No Loan Party is an EEA Financial Institution.

5.25         REIT Status. Parent qualifies as, and has elected to be treated as, a REIT and its proposed method of operation is in compliance with all requirements and conditions imposed under the Code necessary to maintain its status as a REIT.

5.26         No Default. No Default or Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

5.27         Anti-Terrorism Laws. Except as could not reasonably be expected to have a Material Adverse Effect, to the extent applicable, each Loan Party is in compliance with (a) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (b) the Patriot Act, the Bank Secrecy Act, and any other anti-terrorism or anti-money laundering laws or regulations that are applicable to the Loan Parties.

5.28         Use of Proceeds. Each Loan Party will use the proceeds of Credit Extensions only for uses permitted under Section 6.11.

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Article VI.
Affirmative Covenants

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and 6.03) cause each Subsidiary and Controlled JV Subsidiary to:

6.01         Financial Statements. Deliver to the Administrative Agent (who will deliver same to each Lender), in form and detail satisfactory to the Administrative Agent:

(a)            within 90 days after the end of each fiscal year of the Parent, a consolidated balance sheet of the Consolidated Parties as of the end of such fiscal year, the related consolidated statements of income or operations of the Parent for such fiscal year, and the related consolidated statements of changes in shareholders’ equity and cash flows of the Parent for such fiscal year, setting forth in each case in comparative form, as applicable, the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, which consolidated financial statements shall be accompanied by a customary management’s discussion and analysis, audited by an independent certified public accountant of nationally recognized standing and accompanied by an opinion of such accountants (which opinion may be subject to a “going concern” or like qualification) to the effect that such consolidated financial statements fairly present, in all material respects, the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Parties on a consolidated basis in accordance with GAAP;

(b)            within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, a consolidated balance sheet of the Consolidated Parties as at the end of such fiscal quarter, the related consolidated statements of income or operations for such quarter and for the portion of the Parent’s fiscal year then ended, and the related statements of changes in shareholders’ equity and cash flows of the Parent for such fiscal quarter and for the portion of the Parent’s fiscal year then ended, setting forth in each case in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, which consolidated financial statements shall be accompanied by a customary management’s discussion and analysis and certified by the chief executive officer, chief financial officer, treasurer or controller of the Parent as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Consolidated Parties on a consolidated basis in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;

(c)            to the extent available, and within 30 days after the end of each fiscal month, monthly financial reports in respect of the Property-Level Subsidiaries, in each case in form and substance consistent with such reporting delivered by the applicable Property-Level Subsidiary to the creditors under any applicable Mortgage Indebtedness (or otherwise consistent with such reporting as is customarily produced by such Property-Level Subsidiary), in each case, as may be adjusted as to form or re-formatted from time to time;

(d)            within 60 days after the beginning of the fiscal year ending December 31, 2021 and each fiscal year thereafter, a consolidated annual budget for such fiscal year consisting of a projected consolidated balance sheet of the Consolidated Parties as of the end of the following fiscal year, the related consolidated statements of projected income or operations and projected cash flows (collectively, the “Budget”), which Budget shall in each case be accompanied by the certification by the chief executive officer, chief financial officer, treasurer or controller of the Parent to the effect that the Budget is based on assumptions believed by the Parent to be reasonable as of the date of delivery thereof; and

(e)            Documents required to be delivered pursuant to this Section 6.01(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent or the Borrower posts such documents, or provides a link thereto on the Parent’s or the Borrower’s website on the Internet; or (ii) on which such documents are posted on the Parent’s or the Borrower’s behalf on an Internet or intranet website, if any, to which Lender has access (whether a commercial, third-party website or whether sponsored by Lender).

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6.02         Certificates; Other Information. Deliver to the Administrative Agent (who will deliver same to each Lender), in form and detail satisfactory to the Administrative Agent:

(a)            concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Parent (which delivery may be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes);

(b)            not later than five Business Days after receipt thereof by any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, copies of all notices, requests and other documents (including amendments, waivers and other modifications) so received under or pursuant to any instrument, indenture, loan or credit or similar agreement regarding or related to any breach or default by any party thereto or any other event that could materially impair the value of the interests or the rights of any Loan Party or otherwise have a Material Adverse Effect;

(c)            promptly after the assertion or occurrence thereof, notice of any action or proceeding against or of any noncompliance by any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries with any Environmental Law or Environmental Permit that could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(d)            promptly following any request therefor, provide information and documentation reasonably requested by Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act;

(e)            promptly, such additional information regarding the business, financial, legal or corporate affairs of any Loan Party or any Subsidiary or Controlled JV Subsidiary thereof, or compliance with the terms of the Loan Documents, as any Lender may from time to time reasonably request.

The Parent and the Borrower hereby acknowledge that (a) the Administrative Agent may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Parent or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Parent, the Borrower or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Parent and the Borrower hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Parent and the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”

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6.03         Notices. Promptly notify the Administrative Agent:

(a)            of the occurrence of any Default or Event of Default;

(b)            of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including as a result of (i) any breach or non-performance of, or any default under, a Material Contract of the Parent, the Borrower or any Subsidiary or Controlled JV Subsidiary, by any party thereto; (ii) any dispute, litigation, investigation, proceeding or suspension between the Parent, the Borrower or any Subsidiary or Controlled JV Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Parent, the Borrower or any Subsidiary or Controlled JV Subsidiary, including pursuant to any applicable Environmental Laws;

(c)            of the occurrence of any ERISA Event; and

(d)            of the receipt by the Parent, the Borrower, or any Subsidiary or Controlled JV Subsidiary of a written notice of default in respect of any Mortgage Indebtedness having an outstanding principal amount in excess of the Mortgage Debt Threshold Amount.

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Parent and the Borrower setting forth details of the occurrence referred to therein and stating what action the Parent and the Borrower have taken and propose to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

6.04         Payment of Obligations. Timely pay and discharge (or bond or insure against) as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being disputed or contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Parent, the Borrower or such Subsidiary or Controlled JV Subsidiary; and (b) all lawful claims of materialmen and mechanics, for labor, materials and supplies which, if unpaid, would by law become a Lien upon its property, unless the same are being disputed or contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Parent, the Borrower or such Subsidiary or Controlled JV Subsidiary, except in each case of the foregoing, to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.05         Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except, in the case of any Person other than the Parent Entities and the Borrower, in a transaction permitted in this Agreement or to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, copyrights, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

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6.06         Maintenance of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.

6.07         Maintenance of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Parent or the Borrower, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts (and including deductibles and exclusions) as are customarily carried under similar circumstances by such other Persons.

6.08         Compliance with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being disputed or contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

6.09         Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Parent, the Borrower or such Subsidiary or Controlled JV Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Parent, the Borrower or such Subsidiary or Controlled JV Subsidiary, as the case may be.

6.10         Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Parent and the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Parent and the Borrower; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Parent and the Borrower at any time during normal business hours and without advance notice.

6.11         Use of Proceeds. Use the proceeds of the Credit Extensions for working capital, capital expenditures and other general corporate purposes not in contravention of any Law or of any Loan Document.

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6.12         Covenant to Guarantee Obligations and Give Security.

(a)            Upon the formation or acquisition of any new direct or indirect Subsidiary (other than an Excluded Subsidiary) by any Loan Party, or with respect to a Subsidiary that is no longer an Excluded Subsidiary due to it ceasing to be subject to the circumstances or restrictions which caused it to be an Excluded Subsidiary, then the Borrower shall, within 30 days after such formation or acquisition or such Subsidiary ceasing to be an Excluded Subsidiary, at the Borrower’s expense, as applicable:

(i)            cause such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so), to duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in form and substance satisfactory to the Administrative Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents,

(ii)           furnish to the Administrative Agent a description of the real and personal properties of such Subsidiary, in detail reasonably satisfactory to the Administrative Agent, and

(iii)          cause such Subsidiary to duly execute and deliver to the Administrative Agent supplements to the Security Agreement and Pledge Agreement, as applicable, in form and substance satisfactory to the Administrative Agent (including delivery of all instruments specified in Section 4.01(a)(iii) and (iv) as applicable); provided, any such supplements to the Pledge Agreement and other pledge agreements shall not be required with respect to any Equity Interests in such Subsidiary or JV Subsidiary or other direct or indirect parent of such Subsidiary or JV Subsidiary that constitutes an Unpledgeable Subsidiary.

(b)            The Loan Parties shall use commercially reasonable efforts to cause each of their respective Subsidiaries (other than Property-Level Subsidiaries) to be subject to no restrictions under any Indebtedness, any other Contractual Obligation or any organizational documents that would cause it to be an Excluded Subsidiary or Unpledgeable Subsidiary; provided that a Subsidiary may be subject to such restrictions existing on the Closing Date (as to which it need not use commercially reasonable efforts to cause such restrictions to be removed, except in connection with any refinancing or replacement of any Indebtedness or any other Contractual Obligation requiring such restriction).

(c)            At any time upon request of the Administrative Agent, promptly execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting and preserving the Liens of, such guaranties, supplements to the Security Agreement and Pledge Agreement, and other security and pledge agreements, consistent with Borrower’s obligations in this Agreement.

(d)            On or prior to each date on which financial statements are delivered by the Borrower pursuant to Section 6.01(a) of this Agreement, the Borrower shall provide the Administrative Agent (who will deliver same to each Lender) with a written report of all new and material Copyrights, Patents or Trademarks (as defined in the Security Agreement) that are registered or the subject of pending applications for registrations, in each case, which were acquired, registered, or for which applications for registration were filed by the Parent or any Loan Party during the most recent fiscal year included in such financial statements and any statement of use or amendment to allege use with respect to any material intent-to-use trademark applications filed by the Parent or any Loan Party during such fiscal year. In the case of such registrations or applications therefor which were acquired by the Parent or any Loan Party, the Parent or the Loan Party as applicable shall file the necessary documents with the appropriate Governmental Authority identifying the Parent or the applicable Loan Party as the owner (or as a co-owner thereof, if such is the case) of such intellectual property. In each of the foregoing cases, to the extent requested in writing by the Administrative Agent, the Parent or the applicable Loan Party shall promptly cause to be prepared, executed, and delivered to the Administrative Agent supplemental schedules to the applicable Loan Documents to identify such Copyright, Patent and Trademark registrations and applications therefor (with the exception of Trademark applications filed on an intent-to-use basis for which no statement of use or amendment to allege use has been filed) as being subject to the security interests created thereunder.

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6.13         Compliance with Environmental Laws. Comply, in all material respects, with all applicable Environmental Laws and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any investigation, study, sampling and testing, and undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its properties, in accordance with the requirements of all Environmental Laws; provided, however, that neither the Parent, nor the Borrower nor any of their respective Subsidiaries or Controlled JV Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the extent that its obligation to do so is being disputed or contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

6.14         Further Assurances. Promptly upon the reasonable request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s or any of its Subsidiaries’ or Controlled JV Subsidiaries’ properties, assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Secured Parties the rights granted or now or hereafter intended to be granted to the Secured Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries is or is to be a party, and cause each of its Subsidiaries and Controlled JV Subsidiaries to do so.

6.15         Anti-Corruption Laws. Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in those and other jurisdictions, and maintain policies and procedures designed to promote and achieve compliance with such laws.

6.16         Collateral Accounts. Maintain one or more deposit accounts (which shall be held at institution(s) selected by the Borrower in its sole discretion) each subject to a first priority perfected lien in favor of the Administrative Agent, for the benefit of the Secured Parties, pursuant to control agreements in form and substance reasonably satisfactory to the Administrative Agent (each, a “Collateral Account”). The Borrower shall use its commercially reasonable efforts to obtain such control agreements within 120 days following the Closing Date, provided that a failure to obtain the same within such 120 day period shall not constitute a Default or Event of Default so long as the Borrower used and continues to use its commercially reasonable efforts to so obtain the same. The Borrower will hold all of its cash and Cash Equivalents (including for the avoidance of doubt all distributions received from Subsidiaries, Controlled JV Subsidiaries and all Net Cash Proceeds) in the Collateral Accounts. Borrower shall have the right to open additional Collateral Accounts after the Closing Date, subject to executing and delivering to Lender a control agreement in form and substance reasonably satisfactory to the Administrative Agent.

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6.17         Conditions Subsequent. Use commercially reasonable efforts to deliver each of the items set forth on Schedule 6.17 to the Administrative Agent, within 120 days following the Closing Date (or such later date that the Administrative Agent may agree in its reasonable discretion); provided that a failure to deliver such items within said 120 period shall not constitute a Default or an Event of Default, so long as the Borrower used and is continuing to use its commercially reasonable efforts to deliver the same.

6.18         Tax Returns. Timely file all federal, state and other tax returns and reports required to be filed (after giving effect to any available exceptions and/or extensions), except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.19         Quarterly Lender Calls. Upon the prior written request of the Administrative Agent, and not later than (i) 10 days after the delivery of any financial statements pursuant to Section 6.01(a) or (b) or (ii) such other time as agreed by the Borrower and the Administrative Agent, the appropriate Responsible Officers of the Parent or the Borrower shall participate in a conference call with the Administrative Agent and the Lenders to discuss in reasonable detail such financial statements and the financial condition and results of operations of the Consolidated Parties, as well as to answer reasonable questions from the Administrative Agent or the Lenders about such financial statements and the financial condition and results of operations of the Consolidated Parties.

Notwithstanding the foregoing or anything herein to the contrary or otherwise, at all times during a Specified Suspended Covenant Period, the Specified Suspended Covenants shall cease to apply. At any time after the end of a Specified Suspended Covenant Period, the Specified Suspended Covenants shall again apply in all respects (it being understood and agreed that no Default or Event of Default shall be deemed to have occurred as a result of any actions taken (or actions not taken) during the Specified Suspended Covenant Period that would have breached any of the Specified Suspended Covenants that at such time were inapplicable). Notwithstanding anything to the contrary in this Agreement, including Article VIII hereof, the sole remedy available to the Administrative Agent and the Lenders following an Event of Default caused by the breach of any covenants or agreements set forth in Articles V, VI or VII of this Agreement during a Specified Suspended Covenant Period shall be the right to terminate any and all outstanding DDTL Commitments of such Lenders. The Borrower shall have the right to terminate all or any portion of the DDTL Commitments at any time, effective upon written notice thereof to the Administrative Agent.

Article VII.
Negative Covenants

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, each of the Parent Entities (but only with respect to Sections 7.04, 7.06, 7.08, 7.12, 7.13, 7.15, 7.16, and 7.17) and the Borrower shall not, nor shall it permit any Subsidiary or Controlled JV Subsidiary, directly or indirectly:

7.01         Liens. Other than in the case of any Property-Level Subsidiary or any other Subsidiary or JV Subsidiary that owns a Hotel Property, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

(a)            Liens pursuant to any Loan Document;

(b)            Liens for taxes not yet due or which are being disputed or contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

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(c)            landlord’s, carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business that are not overdue for a period of more than 60 days or which are being disputed or contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person, or which are otherwise subject to a bond or insured against;

(d)            pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

(e)            deposits to secure the performance of bids, trade contracts and leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(f)            Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(f);

(g)            Liens securing Capital Lease Obligations permitted pursuant to Section 7.02(i)(ii);

(h)            Liens evidenced by the filing of precautionary UCC financing statements relating solely to operating leases entered into in the ordinary course of business; and

(i)            Liens that are contractual rights of set-off relating to depositary relations with banks in the ordinary course of business.

7.02         Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:

(a)            the Loans and Obligations;

(b)            Mortgage Indebtedness as of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;

(c)            Monthly payment, installment or financing plans for the payment of insurance policy premiums;

(d)            Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Property) or the direct or indirect Equity Interests of any Person that owns a Hotel Property, not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;

(e)            Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that any such Indebtedness of a Loan Party to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;

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(f)            Indebtedness in respect of Banking Services;

(g)            trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;

(h)            Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;

(i)             Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) shall be without recourse to any Loan Parties and (ii) any Loan Party in an aggregate amount at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;

(j)             Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes and guarantees thereof;

(k)            Indebtedness incurred under the ERF Program in an aggregate amount at any time not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders);

(l)             without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;

(m)           (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries to the extent consisting of Guarantees that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunder;

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(n)            Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of business; and

(o)            Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds.

In furtherance of the foregoing, no Property-Level Subsidiary shall create, incur, assume or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.

7.03         Investments. In the case of any Loan Party, make or hold any Investment, other than those which are in the lines of businesses of the Loan Parties as of the date hereof, or those substantially related or incidental thereto (for the sake of clarity, acquiring and owning retail and/or commercial space acquired as part of an acquisition consisting primarily of assets otherwise permitted to be acquired or held pursuant to this Section 7.03 shall be considered substantially related or incidental to the lines of businesses of the Loan Parties as of the date hereof), and unless immediately prior to making such Investment, and immediately thereafter and after giving effect thereto, no Event of Default has occurred and not been cured or waived.

7.04         Fundamental Changes. In the case of any Loan Party, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:

(a)            any Loan Party may merge or consolidate with any other Person, provided that (i) to the extent involving the Borrower, the Borrower shall be the continuing surviving Person and (ii) to the extent involving a Loan Party (other than the Borrower), a Loan Party shall be the continuing or surviving Person;

(b)            any Loan Party (other than the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Loan Party (other than the Parent Entities);

(c)            any Loan Party (other than the Borrower) may liquidate or dissolve, to the extent in the interests of the Loan Parties (as determined by the Borrower in good faith) and not materially adverse to the Lenders in any respect; and

(d)            other than a Disposition that results in the Disposition of all or substantially all of the assets of the Borrower or any Parent Entity, any Subsidiary or Controlled JV Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) if such Disposition is permitted under Section 7.05.

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7.05         Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:

(a)            Dispositions of obsolete or worn out property or property determined by Borrower to no longer be necessary in the business or operations of Borrower or its Subsidiaries or JV Subsidiaries, whether now owned or hereafter acquired, in the ordinary course of business;

(b)            Dispositions of furniture, fixtures and equipment or other personal property to AINC or an Affiliate thereof that is leased back under the ERF Program;

(c)            Dispositions of inventory in the ordinary course of business;

(d)            Dispositions of equipment or non-core assets in the ordinary course of business to the extent that (i) such property is replaced with similar replacement property or exchanged for credit against the purchase price of similar replacement property and (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

(e)            Dispositions of Equity Interests of any Property Level Subsidiaries, any Hotel Properties and other Dispositions, in each case, not otherwise permitted by this Section 7.05 (including, for the avoidance of doubt, Dispositions in excess of any monetary limitations as set forth in this Section 7.05); provided that the Borrower complies with the applicable requirements of Section 2.04(b)(i) with respect to the Net Cash Proceeds of such Disposition;

(f)            To the extent constituting Dispositions, (i) Investments permitted by Section 7.03, (ii) Restricted Payments permitted by Section 7.06, and (iii) Liens permitted by Section 7.01;

(g)            (i) Any Loan Party may make a Disposition to any other Loan Party and (ii) any Subsidiary or Controlled JV Subsidiary (other than a Loan Party) of a Loan Party may make a Disposition to any Loan Party or any other Subsidiary or Controlled JV Subsidiary of any Loan Party; and

(h)            Parent or any Subsidiary or Controlled JV Subsidiary of Parent may make or effect, as applicable:

(i)            Dispositions in the ordinary course of business of (A) receivables in connection with the collection, settlement or compromise thereof (including any discount and/or forgiveness thereof), (B) equipment, (C) other current assets or (D) immaterial assets,

(ii)           Dispositions, to the extent required pursuant to the terms of any agreement with respect to a JV Subsidiary (including, but not limited to, buy/sell arrangements between joint venture or similar parties),

(iii)          Dispositions of non-core assets (which may include non-core real properties) currently owned or acquired in an acquisition or Investment permitted pursuant to Section 7.03 in an aggregate amount not greater than $10,000,000,

(iv)          leases and/or licenses of Hotel Properties and assets related thereto (including, without limitation, intellectual property) in the ordinary course of business,

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(v)           Dispositions of cash and/or Cash Equivalents,

(vi)          (i) any termination of any lease in the ordinary course of business and (ii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business,

(vii)         Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding),

(viii)        Dispositions made to comply with any order of any Governmental Authority or any applicable requirement of Law.

7.06         Restricted Payments. In the case of the Parent Entities and the Borrower, declare, make or pay any Restricted Payment, other than, so long as no Event of Default has occurred and is continuing under Sections 8.01(a) or 8.01(e), (a), Restricted Payments in an amount necessary for the Parent to make distributions (x) to remain in compliance with the applicable rules for qualifications as a REIT under the Code and (y) sufficient to avoid the imposition of any U.S. federal or state income and excise taxes under the Code (and in connection therewith the Borrower may make Restricted Payments in a ratable amount to the holders of partnership interests of the Borrower), (b) at any time following November 30, 2021, Restricted Payments constituting current or accrued dividends on Company Preferred Stock, so long as (i) no PIK Principal is then outstanding and (ii) the aggregate amount of Unrestricted Cash, after giving effect to such Restricted Payment, is not less than an amount equal to the sum of (x) $100,000,000 plus (y) the aggregate principal amount of DDTLs advanced prior to the date thereof or contemporaneously therewith,, (c) to repurchase, redeem, retire or otherwise acquire or retire for value the Equity Interests of the Parent held by any future, present or former employee, director, officer (or any Immediate Family Members thereof) of AINC and its Affiliates, the Loan Parties, their Subsidiaries or Controlled JV Subsidiaries, in connection with the death, disability, retirement or termination of employment of any such Person or otherwise in connection with any equity option, equity benefit or incentive plan or agreement, equity subscription plan or other employment agreements, in an aggregate amount under this clause (c) not to exceed (i) $5,000,000 in any fiscal year or (ii) $15,000,000 in aggregate, (d) Restricted Payments among the Borrower and the Parent Entities, (e) to the extent constituting Restricted Payments, any payments made in respect of and subject to the terms of Section 7.02(e), (f) the purchase, repurchase or acquisition by the Parent of its Equity Interests in an aggregate amount not to exceed $30,000,000 in the aggregate, to the extent (i) Equity Interests are approved to be awarded to employees and/or officers of the Parent, the Advisor and/or their Affiliates pursuant to an equity compensation plan, (ii) sufficient Equity Interests are not as of such date authorized or available for issuance by the Parent and (iii) such purchased or acquired Equity Interests are subsequently distributed to such employees and/or officers and (g) Restricted Payments in respect of the OP Units made in accordance with the terms of the Borrower Partnership Agreement; provided that (i) all such Restricted Payments made under this clause (g) in respect of the OP Units shall be made in Equity Interests (not constituting Disqualified Stock) to the greatest extent permitted by the Borrower Partnership Agreement and (ii) any Restricted Payments made under this clause (g) in respect of the OP Units not outstanding on the Closing Date shall be made solely in Equity Interests (not constituting Disqualified Stock), except in the case of this clause (ii) to the extent that such OP Units not outstanding on the Closing Date were issued in connection with an acquisition of any Person or Hotel Property permitted hereby, in which case a maximum amount of consideration of $50,000,000 that does not constitute Equity Interests (not constituting Disqualified Stock) may be paid.

7.07         Change in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries and Controlled JV Subsidiaries on the date hereof or any business substantially related or incidental thereto.

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7.08         Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower or Advisor or its Affiliates, whether or not in the ordinary course of business, other than on fair and reasonable terms as would be obtainable by the Borrower or such Subsidiary or Controlled JV Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to (a) transactions between or among the Loan Parties, (b) the Advisor Arrangements existing as of the Closing Date or as they may be amended or otherwise modified in accordance with Section 7.13(b) or entered into in accordance therewith, or (c) any transaction or series of related transactions involving aggregate payments not exceeding $1,000,000.

7.09         Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other than this Agreement, any other Loan Document, any Mortgage Indebtedness or any Organizational Document) that (a) limits the ability (i) of such Person to make any dividends or distributions to another Loan Party or to otherwise transfer property to or invest in another Loan Party, except for any agreement in effect (A) on the date hereof and set forth on Schedule 7.09 or (B) at the time any such Person becomes a Subsidiary or Controlled JV Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary or Controlled JV Subsidiary of the Borrower, (ii) of such Person to Guarantee the Indebtedness of the Borrower or (iii) of any Loan Party to create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that, with respect to any Property-Level Subsidiary, this clause (iii) shall not prohibit any such restriction contained in (x) any document, instrument or agreement evidencing Mortgage Indebtedness secured by assets directly owned by such Property-Level Subsidiary (or by its Subsidiary) or (y) such Property-Level Subsidiary’s Organizational Documents as in effect on the Closing Date or to the extent they are required to contain such restrictions under documents referred to in clause (x); or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

7.10         Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

7.11         Minimum Cash. Permit, as of the close of business on the last Business Day of each calendar week following the Closing Date (each, a “Liquidity Test Date”), the aggregate amount of Unrestricted Cash to be less than $50,000,000. ; provided that, solely for the purposes of this Section 7.11, during the period commencing with the proper delivery of a Request for Credit Extension for any DDTLs (including, for the avoidance of doubt, the Keys Draw) and ending upon the funding of the such DDTL, the Borrower shall be deemed to hold an amount of Unrestricted Cash equal to the amount of such DDTL so requested, so long as the requested DDTL is funded following the satisfaction (or written waiver in accordance herewith) of all conditions precedent to the funding thereof.

7.12         Permitted Activities of Parent Entities. None of the Parent Entities shall:

(a)            own any material property other than (i) direct or indirect Equity Interests of the Borrower, as applicable, and any property owned in relation thereto (including, without limitation, intercompany loans to the Borrower) and (ii) cash and Cash Equivalents in an aggregate amount (for all Parent Entities) not to exceed at any time the sum of (x) $500,000 and (y) an additional amount of cash and Cash Equivalents intended in good faith to be used for making dividends or distributions permitted under Section 7.06 or other uses permitted under this Section 7.12; provided that any additional amount under this clause (y) is actually applied to such intended purpose (or contributed to the Borrower) within five (5) Business Days after the first date on which the aggregate cash and Cash Equivalents of the Parent Entities exceeds $500,000; or

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(b)            otherwise conduct, transact or engage in any business or operations other than as specified in clause (a) other than (i) any actions required or expressly permitted under this Agreement or any other Loan Document, (ii) the maintenance of its legal existence and other customary administrative matters related thereto (including payment of taxes and fees and expenses related thereto), (iii) participating in tax, accounting and similar matters, (iv) the issuance of its Equity Interests (other than Disqualified Stock), including, for the avoidance of doubt, Company Preferred Stock (other than Disqualified Stock), (v) making any dividends or distributions to the extent not otherwise prohibited by Section 7.06, (vi) any Investment in a Loan Party or a Subsidiary of a Loan Party that is not otherwise prohibited by Section 7.03, (vii) in the case of the Parent, any activities (other than Restricted Payments and Investments) required to maintain its status as a REIT, (viii) providing indemnification to officers and directors, (ix) providing Mortgage Recourse Carve-outs consistent with past practices or then-applicable customary market terms, and (x) any activities incidental to those actions described in clauses (i) through (ix) of this paragraph.

7.13         Amendments of Certain Documents.

(a)            Amend any of its Organization Documents in any manner that would adversely affect any Loan Party’s ability to pay its Obligations hereunder or materially and adversely impairs any rights or remedies of Administrative Agent or any Lender under the Loan Documents or applicable Laws; or

(b)            Make (i) any material changes to the Advisor Arrangements, including any modification or termination thereof or (ii) any changes to other agreements or arrangements between the Parent and its Subsidiaries, on the one hand, and AINC and its Affiliates, on the other hand, to the extent that such changes are materially adverse to the Lenders or would otherwise not be on fair and reasonable terms for the Parent and its Subsidiaries, including, for the avoidance of doubt, in the case of each of clauses (i) and (ii), the termination of AINC or any of its Affiliates’ roles under any such agreement or arrangement other than in accordance with its terms.

7.14         Accounting Changes. Make any change in (a) accounting policies or reporting practices, except as required by GAAP, or (b) fiscal year.

7.15         Sanctions. Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds to any Subsidiary, Controlled JV Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Administrative Agent, or otherwise) of Sanctions.

7.16         Anti-Corruption Laws. Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.

7.17         Advisory Agreement.

(a)            Prior to the later of (i) the second anniversary of the Closing Date, and (ii) the first date thereafter that no PIK Principal is outstanding, make payment to Advisor in respect of any fees (other than (x) termination fees referred to in clause (b) below and (y) any reimbursable expenses) owing to Advisor under the Advisory Agreement in any fiscal year commencing with the fiscal year ending on December 31, 2021 in excess of $29,015,034;

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(b)            Make any payment of a termination fee (including the “Termination Fee” or any “Liquidated Damages Amount” (each term as defined in the Advisory Agreement) or any amount owed under any enhanced return funding program arrangement in connection with the termination of the Advisory Agreement or the sale, foreclosure, casualty or other disposition of assets financed under such arrangement) to Advisor pursuant to the Advisory Agreement prior to repayment in full of the Obligations; or

(c)            Make any payment under the Lismore Contract or otherwise to Lismore Capital II LLC (or any other Affiliate of AINC, excluding the Parent and its Subsidiaries and Controlled JV Subsidiaries) in connection with the negotiation, arrangement, or administration of the Commitments or the Loans, including any future forbearances, extensions or other workout negotiations in respect of the Loans, and including without limitation any fees of the type that are set forth in the Lismore Contract.

Notwithstanding the foregoing or anything herein to the contrary or otherwise, at any time during an Advisory Agreement Suspended Covenant Period, the covenants set forth in this Section 7.17 shall cease to apply. At any time after the end of an Advisory Agreement Suspended Covenant Period, the covenants set forth in this Section 7.17 shall again apply in all respects (it being understood and agreed that no Default or Event of Default shall be deemed to have occurred as a result of any actions taken (or actions not taken) during an Advisory Agreement Suspended Covenant Period that would have breached any of the covenants set forth in this Section 7.17 that at such time were inapplicable and any payments that are subject to Section 7.17 and were made during an Advisory Agreement Suspended Covenant Period shall be deemed to be permitted without any requirement for a return thereof).

Notwithstanding the foregoing or anything herein to the contrary or otherwise, at all times during a Specified Suspended Covenant Period, the Specified Suspended Covenants shall cease to apply. At any time after the end of a Specified Suspended Covenant Period, the Specified Suspended Covenants shall again apply in all respects (it being understood and agreed that no Default or Event of Default shall be deemed to have occurred as a result of any actions taken (or actions not taken) during the Specified Suspended Covenant Period that would have breached any of the Specified Suspended Covenants that at such time were inapplicable). Notwithstanding anything to the contrary in this Agreement, including Article VIII hereof, the sole remedy available to the Administrative Agent and the Lenders following an Event of Default caused by the breach of any covenants or agreements set forth in Articles V, VI or VII of this Agreement during a Specified Suspended Covenant Period shall be the right to terminate any and all outstanding DDTL Commitments of such Lenders. The Borrower shall have the right to terminate all or any portion of the DDTL Commitments at any time, effective upon written notice thereof to the Administrative Agent.

Article VIII.
Events of Default and Remedies

8.01         Events of Default. Any of the following shall constitute an Event of Default:

(a)            Non-Payment. The Borrower or any other Loan Party fails to pay any amount of principal or interest on any Loan or any fee due hereunder, and such failure continues for three (3) Business Days after written notice from the Administrative Agent or any Lender; or

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(b)            Other Defaults. The Borrower or any Loan Party fails to perform or observe any term, covenant or agreement contained in this Agreement (other than as set forth in Section 8.01(a)) or any Loan Document on its part to be performed or observed and, except in the case of any covenant contained in Article VII hereof that is not reasonably susceptible of cure, the Borrower or such Loan Party shall have received notice of such failure from the Administrative Agent or any Lender and thereafter such failure continues for 30 days (or, if such failure cannot reasonably be cured within such 30-day period and the Borrower or such Loan Party shall have commenced to cure such failure within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such longer period as is reasonably necessary to effectuate a cure of such failure, not to exceed a total of 60 days after the Borrower or such Loan Party received notice of such failure); or

(c)            Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect (without duplication of any materiality qualifiers contained therein) when made or deemed made (a “Misrepresentation”) and shall not have been cured within 30 days of receipt of notice thereof from the Administrative Agent or any Lender (or, if such Misrepresentation cannot reasonably be cured within such 30-day period and the Borrower or such Loan Party shall have commenced to cure such Misrepresentation within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, such longer period as is reasonably necessary to effectuate a cure of such Misrepresentation, not to exceed a total of 60 days after the Borrower or such Loan Party received notice of such Misrepresentation); or

(d)            Cross-Default. (i) The Borrower shall default, after giving effect to any applicable cure or grace periods, in respect of any Indebtedness of the Borrower having an aggregate outstanding principal amount of more than the Threshold Amount (excluding Mortgage Recourse Carve-outs), the effect of which default is to permit the holder thereof to cause such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed, or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity or (ii) any Subsidiary or Controlled JV Subsidiary shall default, after giving effect to any applicable cure or grace periods, with respect to Mortgage Indebtedness (other than Keys Pool A and Keys Pool B) having an aggregate principal amount of more than the Mortgage Debt Threshold Amount, and which the holder thereof has demanded payment of such Indebtedness in full or has caused such Indebtedness to become immediately due and payable or to be immediately repurchased, prepaid, defeased or redeemed prior to its stated maturity, provided that the MS-17 Loan shall be deemed to have a principal amount of $400,000,000 for the purposes of this Section 8.01(d) and for all other purposes of the Mortgage Debt Threshold Amount; or

(e)            Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding (any such proceeding or proceedings set forth in this clause (e), each an “Insolvency Proceeding”); or

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(f)            Judgments. There is entered against any Loan Party one or more monetary judgments or orders for the payment of money with respect to any transaction or other matter not otherwise addressed in Section 8.01(k) in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not covered by insurance) that is not paid, stayed, bonded or dismissed within 60 days; or

(g)            ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

(h)            Invalidity of Loan Documents. This Agreement or any material Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect and same is not promptly remedied; or any Loan Party or any other Person disputes or contests in any manner the validity or enforceability thereof; or any Loan Party denies that it has any or further liability or obligation thereunder, or purports to revoke, terminate or rescind this Agreement or any material Loan Document; or

(i)            Collateral Documents. Any Collateral Document after delivery thereof shall for any reason (other than (i) pursuant to the terms thereof or (ii) the failure of the Administrative Agent to maintain perfection, whether through failing to maintain possession of Collateral, file UCC or equivalent continuation statements or otherwise) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section 7.01) on a material portion of the Collateral purported to be covered thereby and same is not promptly remedied; or

(j)            REIT Status. The Parent shall, for any reason, lose or fail to maintain its status as a REIT (after taking into account any cure provisions set forth in the Code that are complied with by the Parent).

(k)            Bad Boy Guarantees. There is entered against any Loan Party, by a court of competent jurisdiction, a monetary judgment or order for a payment of money in excess of $50,000,000 relating to a claim made against such Loan Party under any “bad boy” guarantee provided by such Loan Party with respect to any Mortgage Indebtedness (and, in the case of an environmental liability, not otherwise covered by insurance that may apply thereto and for which, (i) an insurance claim has been made within 120 days following such judgment or order and (ii) such insurance carrier at such time has not denied liability or coverage in respect of such claim).

8.02         Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

(a)            declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments shall be terminated;

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(b)            declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, the applicable Prepayment Premium (if any), the Exit Fee, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;

(c)            exercise on behalf of itself and the Lenders all rights and remedies available to it and the under the Loan Documents, at law, in equity, or otherwise;

provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest, premiums (including the Prepayment Premium), fees (including the Exit Fee), and other amounts as aforesaid shall automatically become due and payable without further act of the Administrative Agent or any Lender.

8.03            Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Section 3.05 be applied by the Administrative Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting, fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders and fees and time charges for attorneys who may be employees of any Lender) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them;

Third, to payment of all other Obligations hereunder (including the Prepayment Premium and Exit Fee); and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

8.04            Cure Right. In the event Borrower fails to comply with the financial covenant set forth in Section 7.11, subject to the terms and conditions hereof, the Parent shall have the right (the “Cure Right”) from the applicable Liquidity Test Date until date that is 30 days following such Liquidity Test Date (the applicable “Cure Cut-Off Date”) to issue Qualified Equity Interests for cash in an amount sufficient to comply with Section 7.11 when such cash amounts received are added on a dollar-for-dollar basis to Unrestricted Cash for purposes of such Liquidity Test Date (hereinafter, the “Cure Amount”), and upon the receipt by Borrower of the cash proceeds thereof, Borrower’s compliance with Section 7.11 shall then be recalculated and increased giving effect to the to the Cure Amount by an amount equal to the Cure Amount; and if, after giving effect to the foregoing recalculation, Borrower shall then be in compliance with the requirements of the financial covenant set forth in Section 7.11, Borrower shall be deemed to have been in compliance with such financial covenant as of the relevant date of determination with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach, default or Event of Default of such financial covenant that had occurred shall be deemed not to have occurred. In the event that (i) no Event of Default exists other than that arising due to failure of Borrower to comply with the financial covenant set forth in Section 7.11, and (ii) the Parent shall have delivered to Administrative Agent written notice of its intention to exercise the Cure Right, then from and following receipt by Administrative Agent of any such notice and until the Business Day immediately following the Cure Cut-off Date, neither Administrative Agent nor any Lender shall exercise any remedies for breach of Section 7.11 (or any subsequent breach prior to the Cure Cut-Off Date) or any Default or Event of Default resulting therefrom set forth in any Loan Document or otherwise during such period; provided, that so long as any Default or Event of Default would otherwise be in existence due to failure of the Loan Parties to comply with the financial covenant set forth in Section 7.11 and until Borrower receives the Cure Amount, neither the Administrative Agent nor any Lender shall be required to advance any Loans. Notwithstanding anything herein to the contrary, in no event shall the Parent be permitted to exercise the Cure Right hereunder (x) more than 5 times in the aggregate during the term of this Agreement or (y) more than 2 times in any 4 consecutive calendar quarters.

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Article IX.
Administrative Agent

9.01         Appointment and Authority.

(a)            Each of the Lenders hereby irrevocably appoints Oaktree Fund Administration, LLC to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

(b)            The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article IX and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

9.02         Rights as a Lender. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or Controlled JV Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

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9.03         Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:

(a)            shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(b)            shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents (which discretionary rights and powers shall in all cases be exercised or not exercised by the Administrative Agent at the written direction of the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents)), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may affect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(c)            shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 11.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, or a Lender.

The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

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9.04         Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

9.05         Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

9.06         Resignation of Administrative Agent.

(a)            The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower (unless an Event of Default has occurred and is continuing), to appoint a successor, which shall be a financial institution with an office in the United States that has capital, surplus and undivided profits aggregating at least $100,000,000 (as of the date of such financial institution’s most recent financial reports), or an Affiliate of any such financial institution with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall a Defaulting Lender be so appointed as successor Administrative Agent. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b)            If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

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(c)            With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Collateral held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such Collateral until such time as a successor Administrative Agent is appointed) and (ii) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). Subject to Section 2.08(c), the fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting as collateral agent or otherwise holding any Collateral on behalf of any of the Lenders and (b) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.

9.07         Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

9.08         Reserved.

9.09         Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

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(a)            to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.08 and 11.04) allowed in such judicial proceeding; and

(b)            to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08 and 11.04.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.

9.10         Collateral and Guaranty Matters. Without limiting the provisions of Section 9.09, each of the Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion,

(a)            to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of all Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) pursuant to Section 9.11, or (iii) subject to Section 11.01, if approved, authorized or ratified in writing by the Required Lenders; and

(b)            to release any Guarantor from its obligations under the Guaranty, Security Agreement, and Pledge Agreement pursuant to Section 9.11.

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty, Security Agreement and Pledge Agreement pursuant to this Section 9.10. In each case as specified in this Section 9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, Security Agreement and Pledge Agreement, in each case in accordance with the terms of the Loan Documents and this Section 9.10.

The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.

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9.11         Releases.

(a)            The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, any Person from any of the Guaranty and the Security Agreement so long as: (i) such Person qualifies, or will qualify at the time of its release from the Guaranty and the Security Agreement, as an Excluded Subsidiary or has ceased to be, or at the time of its release from the Guaranty and the Security Agreement will cease to be, a Subsidiary pursuant to a transaction permitted by this Agreement; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release, and (iii) the Administrative Agent shall have received such written request at least 7 Business Days prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.

(b)            The Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent shall release, the Equity Interests in a Person from the Lien of a Pledge Agreement so long as: (i) such Person qualifies, or will qualify at the time of the release of its Equity Interests, as an Unpledgeable Subsidiary or has ceased to be, or at the time of its release from the Pledge Agreement will cease to be, a Subsidiary pursuant to a transaction permitted by this Agreement; (ii) no Default or Event of Default shall then be in existence or would occur as a result of such release; and (iii) the Administrative Agent shall have received such written request at least 7 Business Days prior to the requested date of release. Delivery by the Borrower to the Administrative Agent of any such request shall constitute a representation by the Borrower that the matters set forth in the preceding sentence (both as of the date of the giving of such request and as of the date of the effectiveness of such request) are true and correct with respect to such request.

(c)            Reasonably promptly after written request from the Borrower, the Administrative Agent will confirm (subject to the terms hereof) in writing that it has no Lien in a particular asset (including the Equity Interests in a specified Person), or that a specified Person is not a Guarantor hereunder, as the case may be. Delivery by the Borrower to the Administrative Agent of any such request shall be accompanied by a certificate of a Responsible Officer, certifying as to the facts underlying such confirmation requested of the Administrative Agent, and such other supporting documentation as the Administrative Agent may request.

(d)            The Lenders hereby authorize the Administrative Agent to execute and deliver any instruments, documents, and agreements reasonably necessary to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this Section 9.11 and to return to Parent or the Borrower all possessory collateral (including share certificates (if any)) held by it in respect of any Collateral so released. Delivery by the Borrower to the Administrative Agent of any such request shall be accompanied by a certificate of a Responsible Officer to the effect that the release of the applicable Guarantor and/or Collateral is in compliance with this Agreement including the foregoing provisions of this Section 9.11. Administrative Agent shall rely solely on the representations of Borrower in the taking or not taking of any action pursuant to this Section 9.11. If such representations of Borrower are not true and correct, then to the full extent possible under applicable law, such evidence or confirmation by Administrative Agent shall not release, diminish or impair any Lien pursuant to the Collateral Documents or other rights under the Loan Documents.

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(e)            The Borrower agrees to pay all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its representatives in connection with taking any actions to effectuate the releases contemplated by this Section 9.11.

Article X.
Continuing Guaranty

10.01        Guaranty. The Parent hereby absolutely and unconditionally guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Obligations, whether for principal, interest, premiums (including the Prepayment Premium), fees (including the Exit Fee), indemnities, damages, costs, expenses or otherwise, of the Borrower to the Secured Parties, and whether arising hereunder or under any other Loan Document (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Secured Parties in connection with the collection or enforcement thereof) and hereby consents to any extension of the Maturity Date pursuant to Section 2.13 hereof or otherwise. The Administrative Agent’s books and records showing the amount of the Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Parent, and conclusive for the purpose of establishing the amount of the Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any instrument or agreement evidencing any Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Obligations which might otherwise constitute a defense to the obligations of the Parent under this Guaranty, and the Parent hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing.

10.02       Rights of Lenders. The Parent agrees that it shall not affect the enforceability or continuing effectiveness hereof if any of the Secured Parties shall at any time, with or without notice or demand: (a) amend, extend, renew, compromise, discharge, accelerate or otherwise change the time for payment or the terms of the Obligations or any part thereof; (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Obligations; (c) apply such security and direct the order or manner of sale thereof as the Administrative Agent and the Lenders in their sole discretion may determine; and (d) release or substitute one or more of any endorsers or other guarantors of any of the Obligations. Without limiting the generality of the foregoing, the Parent consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the Parent under this Guaranty or which, but for this provision, might operate as a discharge of the Parent.

10.03       Certain Waivers. The Parent waives (a) any defense arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the Borrower; (b) any defense based on any claim that the Parent’s obligations exceed or are more burdensome than those of the Borrower; (c) the benefit of any statute of limitations affecting the Parent’s liability hereunder; (d) any right to proceed against the Borrower, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and (f) to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties. The Parent expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Obligations.

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10.04       Obligations Independent. The obligations of the Parent hereunder are those of primary obligor, and not merely as surety, and are independent of the Obligations and the obligations of any other guarantor, and a separate action may be brought against the Parent to enforce this Guaranty whether or not the Borrower or any other person or entity is joined as a party.

10.05       Subrogation. The Parent shall not exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and the Commitments are terminated. If any amounts are paid to the Parent in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Secured Parties to reduce the amount of the Obligations, whether matured or unmatured.

10.06       Termination; Reinstatement. This Guaranty is a continuing and irrevocable guaranty of all Obligations now or hereafter existing and shall remain in full force and effect until all Obligations and any other amounts payable under this Guaranty are indefeasibly paid in full in cash and the Commitments with respect to the Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Borrower or the Parent is made, or any of the Secured Parties exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by any of the Secured Parties in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred and whether or not the Secured Parties are in possession of or have released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Parent under this paragraph shall survive termination of this Guaranty.

10.07       Subordination. The Parent hereby subordinates the payment of all obligations and indebtedness of the Borrower owing to the Parent, whether now existing or hereafter arising, including but not limited to any obligation of the Borrower to the Parent as subrogee of the Secured Parties or resulting from the Parent’s performance under this Guaranty, to the indefeasible payment in full in cash of all Obligations. If the Secured Parties so request, any such obligation or indebtedness of the Borrower to the Parent shall be enforced and performance received by the Parent as trustee for the Secured Parties and the proceeds thereof shall be paid over to the Secured Parties on account of the Obligations, but without reducing or affecting in any manner the liability of the Parent under this Guaranty.

10.08       Stay of Acceleration. If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any Loan Party other than the Parent under any Debtor Relief Laws, or otherwise, all such amounts shall nonetheless be payable by the Parent immediately upon demand by the Secured Parties.

10.09       Condition of Borrower. The Parent acknowledges and agrees that it has the sole responsibility for, and has adequate means of, obtaining from the Borrower and any other guarantor such information concerning the financial condition, business and operations of the Borrower and any such other guarantor as the Parent requires, and that none of the Secured Parties has any duty, and the Parent is not relying on the Secured Parties at any time, to disclose to the Parent any information relating to the business, operations or financial condition of the Borrower or any other guarantor (the Parent waiving any duty on the part of the Secured Parties to disclose such information and any defense relating to the failure to provide the same).

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Article XI.
Miscellaneous

11.01       Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

(a)            waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i)), or, in the case of a DDTL, Section 4.02, without the prior written consent of each Lender;

(b)            extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the prior written consent of such Lender;

(c)            postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts (including the Prepayment Premium and the Exit Fee) due to the Lenders (or any of them) hereunder or under any other Loan Document without the prior written consent of each Lender directly affected thereby;

(d)            reduce the principal of, or the rate of interest specified herein on, any Loan, or any fees or other amounts (including the Prepayment Premium and the Exit Fee) payable hereunder or under any other Loan Document, without the prior written consent of each Lender; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate;

(e)            change the definition of “Applicable Percentage” or Sections 8.03, 2.11, or 2.12 in a manner that would alter the pro rata sharing of payments required thereby (or otherwise permit any direct or indirect non-pro rata purchase, prepayment or repayment of the Loans by the Borrower or its Affiliates (including by way of open market repurchase or otherwise)) without the written consent of each Lender;

(f)            change any provision of this Section 11.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender;

(g)            release all or substantially all of the Collateral in any transaction or series of related transactions other than releases as permitted by Section 9.10 or 9.11 hereof, without the prior written consent of each Lender;

(h)            release all or substantially all of the value of the Guaranty, without the prior written consent of each Lender, except to the extent the release of any Subsidiary or Controlled JV Subsidiary from the Guaranty is permitted pursuant to Section 9.10 or 9.11 (in which case such release may be made by the Administrative Agent acting alone); or

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(i)            subordinate or have the effect of subordinating (i) the Administrative Agent’s Lien on any Collateral to a Lien securing any other Indebtedness, or (ii) any Obligation in right of payment to any other Indebtedness, in each case, without the prior written consent of each Lender.

and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender and that has been approved by the Required Lenders, the Borrower may replace such non-consenting Lender in accordance with Section 11.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

11.02       Notices; Effectiveness; Electronic Communication.

(a)            Notices Generally. Except as provided in subsection (b) below, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i)             if to the Parent, the Borrower or any other Loan Party or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02; and

(ii)            if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below shall be effective as provided in such subsection (b).

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(b)            Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

(c)            The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Parent, the Borrower, any other Loan Party, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet.

(d)            Change of Address, Etc. Each of the Parent, the Borrower, any other Loan Party or the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.

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(e)            Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including Requests for Credit Extension) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.

11.03       No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b)  any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.12), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

11.04       Expenses; Indemnity; Damage Waiver.

(a)            Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the negotiation of the Commitments, including legal, financial and accounting due diligence, and the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)  all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), and shall pay all reasonable fees and time charges for attorneys who may be employees of the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans, in each case, whether such expenses were incurred at any time on or prior to the Closing Date or thereafter.

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(b)            Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all reasonable fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any Hotel Properties, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries or JV Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from (x) the gross negligence or willful misconduct of such Indemnitee or (y) a breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document. Without limiting the provisions of Section 3.01(c), this Section 11.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

(c)            Reimbursement by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing (and without limiting its obligation to do so), each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.11(d).

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(d)            Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Loan Parties and their Subsidiaries and Consolidated JV Subsidiaries shall not assert, and hereby waive, and acknowledge that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

(e)            Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor accompanied by an invoice setting forth in reasonable detail the calculation of the amount of such demand.

(f)            Survival. The agreements in this Section and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of all Commitments and the repayment, satisfaction or discharge of all the other Obligations.

11.05       Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

11.06       Successors and Assigns.

(a)            Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

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(b)            Assignments by Lenders. Any Lender may at any time assign to one or more assignees (but subject to Section 11.06(b)(v)) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i)            Minimum Amounts.

(A)            in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds (determined after giving effect to such Assignments) that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B)            in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $1,000,000, unless the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower, otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

(ii)            Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned;

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(iii)           Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A)            Until the earlier of (x) the DDTL Commitment Expiration Date and (y) the date that the DDTL Lenders shall have made Loans to the Borrower constituting DDTLs in an amount equal to the DDTL Commitments, the consent of the Borrower with respect to the assignment of any Lender’s DDTL Commitment (it being understood that the sole reason that the Borrower may withhold such consent is that the Borrower has reasonable concern as to the financial wherewithal of the proposed assignee Lender as it relates to such proposed assignee Lender’s ability to fund the portion of unfunded DDTL Commitments proposed to be assigned to such proposed assignee Lender) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof; and

(B)            the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.

(iv)          Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent and the Borrower an Administrative Questionnaire.

(v)           No Assignment to Certain Persons. No such assignment shall be made (A) to the Parent, the Borrower or any of their respective Affiliates or Subsidiaries or JV Subsidiaries, (B) to any Defaulting Lender or any Person who, upon becoming a Lender hereunder, would constitute a Defaulting Lender, (C) to a Disqualified Lender, or (D) to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).

(vi)          Disqualified Lender. In the event that any assignment of Loans is made pursuant to this Section 11.06(b) or participation in any Loan pursuant to Section 11.06(d) to a Disqualified Lender notwithstanding the prohibition thereon contained in Section 11.06(b)(v) or Section 11.06(d), (1) such assignment or participation, as applicable, shall be deemed null and void ab initio, (2) the assignment or participation, as applicable, shall be unwound by the parties to such assignment or participation, (3) the Borrower shall be entitled to seek specific performance to unwind such assignment or participation in addition to any injunctive relief (without posting a bond or proving irreparable harm) or other remedy available at law or in equity and (4) such Disqualified Lender shall not be deemed a “Lender” for the purposes of this Agreement, including without limitation Section 11.01, and shall not be entitled to payment of any principal, interest, fees and expenses that would otherwise be owed to the Lenders pursuant to any section of this Agreement. The Administrative Agent shall provide a copy of the Disqualified Lender list to any Lender upon request therefor.

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(vii)         Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.06(d).

(c)            Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(d)            Participations. Any Lender may at any time, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person, a Disqualified Lender, a Defaulting Lender, or the Borrower or any of the Borrower’s Affiliates or Subsidiaries or JV Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Sections 11.04(c) without regard to the existence of any participation.

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Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 11.01 that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.07 and 11.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request, to use commercially reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.07 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.12 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e)            Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

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11.07       Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates, its auditors and to Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 11.01 or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or JV Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or (B) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. In no event shall any disclosure of any Information be made to any person that is or would be a Disqualified Lender.

For purposes of this Section, “Information” means all information received from any Loan Party or any Subsidiary or JV Subsidiary thereof relating to any Loan Party or any Subsidiary or JV Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, any Lender on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary or JV Subsidiary thereof, provided that, in the case of information received from a Loan Party or any such Subsidiary or JV Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

11.08       Right of Setoff. If an Event of Default shall have occurred and be continuing, the Administrative Agent, each Lender and each of their Affiliates is hereby authorized at any time and from time to time, except to the extent prohibited by law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness or other obligations at any time owing by the Administrative Agent, any Lender or any of their Affiliates, as applicable, to or for the credit or the account of the Loan Parties, against any of and all the Obligations now or hereafter existing under this Agreement and other Loan Documents held by the Administrative Agent or such Lender, as applicable, irrespective of whether or not the Administrative Agent or such Lender or Affiliate, as applicable, shall have made any demand under this Agreement or such other Loan Document and although such obligations may be unmatured or owed to a branch, office or Affiliate of the Administrative Agent or such Lender different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness or other obligation. The rights of the Administrative Agent, each Lender and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) which such Persons may have.

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11.09       Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

11.10       Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.

11.11       Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.

11.12       Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited.

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11.13       Replacement of Lenders. If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.07, if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.06), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.02) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(a)            the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b);

(b)            such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

(c)            in the case of any such assignment resulting from a claim for compensation under Section 3.02 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; and

(d)            such assignment does not conflict with applicable Laws; and

(e)            in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

11.14       Governing Law; Jurisdiction; Etc.

(a)            GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

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(b)            SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c)            WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d)            SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

11.15            Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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11.16       No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrower and the Parent and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i)(A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Lenders are arm’s-length commercial transactions between the Borrower, the Parent, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent and the Lenders, on the other hand, (B) each of the Borrower, the Parent, and each other Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrower the Parent and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii)(A) the Administrative Agent and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, the Parent, any other Loan Party, or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent nor any Lender has any obligation to the Borrower, the Parent, any other Loan Party, or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the Parent, the other Loan Parties and their respective Affiliates, and neither the Administrative Agent nor any Lender has any obligation to disclose any of such interests to the Borrower, the Parent, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrower and the Parent, and each other Loan Party hereby waives and releases any claims that it may have against the Administrative Agent or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

11.17       Electronic Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, Requests for Credit Extension, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.

11.18       USA PATRIOT Act. Each Lender that is subject to the Patriot Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Patriot Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

11.19       Time of the Essence. Time is of the essence of the Loan Documents.

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11.20       Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Solely to the extent any Lender that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)            the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and

(b)            the effects of any Bail-In Action on any such liability, including, if applicable:

(i)             a reduction in full or in part or cancellation of any such liability;

(ii)            a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)           the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

11.21       ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

ASHFORD HOSPITALITY LIMITED PARTNERSHIP
By: Ashford OP General Partner LLC, its general partner
By:
	Name: J. Robison Hays III
	Title: Chief Executive Officer
ASHFORD HOSPITALITY TRUST, INC.
By:
	Name: J. Robison Hays III
	Title: Chief Executive Officer

Signature Page to Credit Agreement

OAKTREE FUND ADMINISTRATION, LLC, as
Administrative Agent
By:
	Name:
	Title:

Signature Page to Credit Agreement

[[●], as a Lender]
By:
	Name:
	Title:

Signature Page to Credit Agreement