wf_diamondrock-sixthamen






  LEGAL02/41986661v10                  Execution Version       SIXTH AMENDED AND RESTATED CREDIT AGREEMENT    Dated as of September 27, 2022  by and among  DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP,  as Borrower,  DIAMONDROCK HOSPITALITY COMPANY,  as Parent,  THE FINANCIAL INSTITUTIONS PARTY HERETO  AND THEIR ASSIGNEES UNDER SECTION 13.5.,  as Lenders,  and  WELLS FARGO BANK, NATIONAL ASSOCIATION,  as Administrative Agent  __________________________________________________________    WELLS FARGO SECURITIES, LLC,   BOFA SECURITIES, INC.,  U.S. BANK NATIONAL ASSOCIATION,   KEYBANC CAPITAL MARKETS, INC.,  REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,  PNC CAPITAL MARKETS LLC  TD SECURITIES (USA) LLC  CAPITAL ONE, NATIONAL ASSOCATION  and  BMO HARRIS BANK, N.A.  as Joint Lead Arrangers,  WELLS FARGO SECURITIES, LLC,   BOFA SECURITIES, INC.,  U.S. BANK NATIONAL ASSOCIATION  and  TD SECURITIES (USA) LLC,  as Joint Bookrunners,  BANK OF AMERICA, N.A.,   U.S. BANK NATIONAL ASSOCIATION  and  TD BANK, N.A.  as Syndication Agents,  and  KEYBANK NATIONAL ASSOCIATION,  REGIONS BANK,  PNC BANK, NATIONAL ASSOCIATION,  BMO HARRIS BANK, N.A.  and  CAPITAL ONE, NATIONAL ASSOCATION  as Documentation Agents 





 






  - i -      LEGAL02/41986661v10  TABLE OF CONTENTS  Article I. Definitions ............................................................................................................. 1  Section 1.1.  Definitions. .......................................................................................... 1  Section 1.2.  General; References to Pacific Time. ................................................. 38  Section 1.3.  Financial Attributes of Non-Wholly Owned Subsidiaries. ................. 39  Section 1.4.  Rates. ................................................................................................... 40  Section 1.5.  Divisions. ............................................................................................ 40  Article II. Credit Facility ....................................................................................................... 40  Section 2.1.  Revolving Loans. ................................................................................ 40  Section 2.2.  Term Loans. ........................................................................................ 41  Section 2.3.  Letters of Credit. ................................................................................. 43  Section 2.4. Swingline Loans. .................................................................................. 47  Section 2.5.  Rates and Payment of Interest on Loans. ............................................ 49  Section 2.6.  Number of Interest Periods. ................................................................ 51  Section 2.7.  Repayment of Loans. .......................................................................... 51  Section 2.8.  Prepayments. ....................................................................................... 51  Section 2.9.  Continuation. ....................................................................................... 52  Section 2.10.  Conversion. ....................................................................................... 52  Section 2.11.  Notes. ................................................................................................ 52  Section 2.12.  Voluntary Reductions of the Commitment. ...................................... 53  Section 2.13.  Extension of Revolving Termination Date and Term 2 Loan  Maturity Date. ............................................................................................. 54  Section 2.14.  Expiration Date of Letters of Credit Past Revolving Commitment  Termination. ................................................................................................ 54  Section 2.15.  Amount Limitations. ......................................................................... 55  Section 2.16.  Increase in Commitments; Additional Term Loans. ......................... 55  Section 2.17.  Funds Transfer Disbursements. ......................................................... 56  Article III. Payments, Fees and Other General Provisions ................................................... 56  Section 3.1.  Payments. ............................................................................................ 56  Section 3.2.  Pro Rata Treatment. ............................................................................ 57  Section 3.3.  Sharing of Payments, Etc. ................................................................... 58  Section 3.4.  Several Obligations. ............................................................................ 58  Section 3.5.  Fees. .................................................................................................... 59  Section 3.6.  Computations. ..................................................................................... 60  Section 3.7.  Usury. .................................................................................................. 60  Section 3.8.  Statements of Account. ....................................................................... 61  Section 3.9.  Defaulting Lenders. ............................................................................. 61  Section 3.10.  Taxes. ................................................................................................ 64  Article IV.  Intentionally Omitted. ........................................................................................ 67  Article V. Yield Protection, Etc. ........................................................................................... 67  Section 5.1.  Additional Costs; Capital Adequacy. .................................................. 67  Section 5.2.  Changed Circumstances. ..................................................................... 69  Section 5.3.  Illegality. ............................................................................................. 71  Section 5.4.  Compensation. .................................................................................... 71  Section 5.5.  Treatment of Affected Loans. ............................................................. 71  Section 5.6.  Change of Lending Office. .................................................................. 72  





 






  - ii -      LEGAL02/41986661v10  Section 5.7.  Assumptions Concerning Funding of Term SOFR Loans. ................. 72  Section 5.8.  Affected Lenders. ................................................................................ 72  Article VI. Conditions Precedent .......................................................................................... 73  Section 6.1.  Initial Conditions Precedent. ............................................................... 73  Section 6.2.  Conditions Precedent to All Loans and Letters of Credit. .................. 75  Article VII. Representations and Warranties ........................................................................ 76  Section 7.1.  Representations and Warranties. ......................................................... 76  Section 7.2.  Survival of Representations and Warranties, Etc. ............................... 82  Article VIII. Affirmative Covenants ..................................................................................... 82  Section 8.1.  Preservation of Existence and Similar Matters. .................................. 82  Section 8.2.  Compliance with Applicable Law and Material Contracts. ................ 83  Section 8.3.  Maintenance of Property. .................................................................... 83  Section 8.4.  Conduct of Business. .......................................................................... 83  Section 8.5.  Insurance. ............................................................................................ 83  Section 8.6.  Payment of Taxes and Claims. ............................................................ 83  Section 8.7.  Inspections. ......................................................................................... 84  Section 8.8.  Use of Proceeds; Letters of Credit. ..................................................... 84  Section 8.9.  Environmental Matters. ....................................................................... 85  Section 8.10.  Books and Records. .......................................................................... 85  Section 8.11.  Further Assurances. ........................................................................... 85  Section 8.12.  REIT Status. ...................................................................................... 85  Section 8.13.  Exchange Listing. ............................................................................. 86  Section 8.14.  Additional Guarantors. ...................................................................... 86  Section 8.15.  Release of Guarantors. ...................................................................... 86  Section 8.16.  Compliance with Anti-Corruption Laws; Beneficial Ownership  Regulation, Anti-Money Laundering Laws and Sanctions. ........................ 87  Article IX. Information ......................................................................................................... 87  Section 9.1.  Quarterly Financial Statements. .......................................................... 87  Section 9.2.  Year-End Statements. ......................................................................... 88  Section 9.3.  Compliance Certificate. ...................................................................... 88  Section 9.4.  Other Information. .............................................................................. 88  Section 9.5.  Electronic Delivery of Certain Information. ....................................... 90  Section 9.6.  Public/Private Information. ................................................................. 91  Section 9.7.  USA Patriot Act Notice; Compliance. ................................................ 91  Article X. Negative Covenants ............................................................................................. 91  Section 10.1.  Financial Covenants. ......................................................................... 91  Section 10.2.  Restricted Payments. ......................................................................... 93  Section 10.3.  Indebtedness. ..................................................................................... 93  Section 10.4.  Intentionally Omitted. ....................................................................... 93  Section 10.5.  Investments Generally. ..................................................................... 93  Section 10.6.  Negative Pledge. ............................................................................... 94  Section 10.7.  Merger, Consolidation, Sales of Assets and Other Arrangements. ... 95  Section 10.8.  Fiscal Year. ....................................................................................... 96  Section 10.9.  Modifications of Material Contracts. ................................................ 96  Section 10.10.  Modifications of Organizational Documents. ................................. 96  Section 10.11.  Transactions with Affiliates. ........................................................... 96  





 






  - iii -      LEGAL02/41986661v10  Section 10.12.  ERISA Exemptions. ........................................................................ 96  Section 10.13.  Environmental Matters. ................................................................... 96  Section 10.14.  Derivatives Contracts. ..................................................................... 97  Article XI. Default ................................................................................................................ 97  Section 11.1.  Events of Default. ............................................................................. 97  Section 11.2.  Remedies Upon Event of Default. .................................................... 100  Section 11.3.  Remedies Upon Default. ................................................................... 101  Section 11.4.  Marshaling; Payments Set Aside. ..................................................... 101  Section 11.5.  Allocation of Proceeds. ..................................................................... 102  Section 11.6.  Letter of Credit Collateral Account. ................................................. 103  Section 11.7.  Performance by Administrative Agent.............................................. 104  Section 11.8.  Rights Cumulative. ........................................................................... 104  Article XII. The Administrative Agent ................................................................................. 105  Section 12.1.  Appointment and Authorization. ....................................................... 105  Section 12.2.  Administrative Agent’s Reliance. ..................................................... 106  Section 12.3.  Notice of Events of Default. ............................................................. 106  Section 12.4.  Administrative Agent as Lender. ...................................................... 107  Section 12.5.  Approvals of Lenders. ....................................................................... 107  Section 12.6.  Lender Credit Decision, Etc. ............................................................. 107  Section 12.7.  Indemnification of Administrative Agent. ........................................ 108  Section 12.8.  Successor Administrative Agent. ...................................................... 109  Section 12.9.  Titled Agents. .................................................................................... 110  Section 12.10.  Sustainability Structuring Agents. .................................................. 110  Section 12.11.  Administrative Agent May File Bankruptcy Disclosure and  Proofs of Claim. .......................................................................................... 110  Section 12.12.  Erroneous Payments. ....................................................................... 111  Article XIII. Miscellaneous .................................................................................................. 113  Section 13.1.  Notices. ............................................................................................. 113  Section 13.2.  Expenses. .......................................................................................... 115  Section 13.3.  Setoff. ................................................................................................ 115  Section 13.4.  Litigation; Jurisdiction; Other Matters; Waivers. ............................. 116  Section 13.5.  Successors and Assigns. .................................................................... 117  Section 13.6.  Amendments and Waivers. ............................................................... 121  Section 13.7.  Nonliability of Administrative Agent and Lenders. .......................... 124  Section 13.8.  Confidentiality. ................................................................................. 124  Section 13.9.  Indemnification. ................................................................................ 125  Section 13.10.  Termination; Survival. .................................................................... 126  Section 13.11.  Severability of Provisions. .............................................................. 127  Section 13.12.  GOVERNING LAW. ...................................................................... 127  Section 13.13.  Counterparts. ................................................................................... 127  Section 13.14.  Obligations with Respect to Loan Parties. ...................................... 127  Section 13.15.  Independence of Covenants. ........................................................... 127  Section 13.16.  Limitation of Liability. .................................................................... 127  Section 13.17.  Entire Agreement. ........................................................................... 128  Section 13.18.  Construction. ................................................................................... 128  Section 13.19.  Headings. ........................................................................................ 128  Section 13.20.  No Novation. ................................................................................... 128  Section 13.21.  New York Mortgages. ..................................................................... 128  





 






  - iv -      LEGAL02/41986661v10  Section 13.22.  Acknowledgement and Consent to Bail-In of Affected Financial  Institutions. ................................................................................................. 131  Section 13.23.  Acknowledgement Regarding Any Supported QFCs. .................... 131  Section 13.24.  New Lenders; Exiting Lenders. ...................................................... 132  Section 13.25.  Release of Collateral. ...................................................................... 133    





 






  - v -      LEGAL02/41986661v10  SCHEDULE I Commitments  SCHEDULE 1.1.(a) Approved Managers  SCHEDULE 1.1.(b) List of Loan Parties  SCHEDULE 7.1.(b) Ownership Structure  SCHEDULE 7.1.(f) Title to Properties; Occupancy Rates; Liens  SCHEDULE 7.1.(g) Existing Indebtedness; Total Indebtedness  SCHEDULE 7.1.(h) Material Contracts  SCHEDULE 7.1.(i) Litigation  SCHEDULE 7.1.(y) Initial Unencumbered Properties  SCHEDULE 13.1. Address for Notices to Issuing Banks      EXHIBIT A Form of Assignment and Assumption Agreement  EXHIBIT B Form of Guaranty  EXHIBIT C Form of Revolving Note  EXHIBIT D Form of Notice of Borrowing  EXHIBIT E Form of Notice of Continuation  EXHIBIT F Form of Notice of Conversion  EXHIBIT G  Form of Notice of Swingline Borrowing  EXHIBIT H Form of Swingline Note  EXHIBIT I Form of Disbursement Instruction Agreement   EXHIBIT J Forms of U.S. Tax Compliance Certificates  EXHIBIT K  Form of Compliance Certificate  EXHIBIT L  Form of Term 1 Loan Note  EXHIBIT M  Form of Term 2 Loan Note                





 






  LEGAL02/41986661v10  THIS SIXTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated  as of September 27, 2022, by and among DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP,  a limited partnership formed under the laws of the State of Delaware (the “Borrower”), DIAMONDROCK  HOSPITALITY COMPANY, a corporation formed under the laws of the State of Maryland (the “Parent”),  each of the financial institutions initially a signatory hereto together with their successors and assignees  under Section 13.5. (collectively, the “Lenders”), and WELLS FARGO BANK, NATIONAL  ASSOCIATION, as Administrative Agent (the “Administrative Agent”), with each of WELLS FARGO  SECURITIES, LLC, BOFA SECURITIES, INC., U.S. BANK NATIONAL ASSOCIATION, KEYBANC  CAPITAL MARKETS INC., REGIONS CAPITAL MARKETS, A DIVISION OF REGIONS BANK,  PNC CAPITAL MARKETS LLC, TD SECURITIES (USA) LLC, CAPITAL ONE, NATIONAL  ASSOCIATION and BMO HARRIS BANK, N.A, as Joint Lead Arrangers (collectively, the “Lead  Arrangers”), each of WELLS FARGO SECURITIES, LLC, BOFA SECURITIES, INC., U.S. BANK  NATIONAL ASSOCIATION and TD SECURITIES (USA) LLC, as Joint Bookrunners (collectively, the  “Bookrunners”), BANK OF AMERICA, N.A., U.S. BANK NATIONAL ASSOCIATION and TD BANK,  N.A., as Syndication Agents (collectively, the “Syndication Agents”), KEYBANK NATIONAL  ASSOCIATION, REGIONS BANK, PNC BANK, NATIONAL ASSOCIATION, CAPITAL ONE,  NATIONAL ASSOCIATION and BMO HARRIS BANK, N.A., as Documentation Agents (the  “Documentation Agents”), and WELLS FARGO BANK, NATIONAL ASSOCIATION and PNC BANK,  NATIONAL ASSOCIATION, as Sustainability Structuring Agents (the “Sustainability Structuring  Agents”).     WHEREAS, certain of the Lenders and other financial institutions have made available to the  Borrower a revolving credit facility in the amount of $400,000,000, including a $40,000,000 letter of credit  subfacility and a $40,000,000 swingline subfacility, on the terms and conditions contained in that certain  Fifth Amended and Restated Credit Agreement dated as of July 25, 2019 (as amended and in effect  immediately prior to the date hereof, the “Existing Credit Agreement”) by and among the Parent, the  Borrower, such Lenders, certain other financial institutions, the Administrative Agent and the other parties  thereto; and     WHEREAS, the Administrative Agent, the Issuing Banks and the Lenders desire to amend and  restate the terms of the Existing Credit Agreement to make available to the Borrower (i) a revolving credit  facility in the initial amount of $400,000,000, which will include a $40,000,000 letter of credit subfacility  and a $40,000,000 swingline subfacility, (ii) a $500,000,000 term loan facility and (iii) a $300,000,000 term  loan facility, in each case, on the terms and conditions contained herein.     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which  are hereby acknowledged by the parties hereto, the parties hereto agree that the Existing Credit Agreement  is amended and restated in its entirety as follows:    ARTICLE I. DEFINITIONS  Section 1.1.  Definitions.   In addition to terms defined elsewhere herein, the following terms shall have the following  meanings for the purposes of this Agreement:     “2023 Mortgage Debt” means the mortgage loan secured by The Lodge at Sonoma, the mortgage  loan secured by the Marriott Salt Lake City, the mortgage loan secured by the Westin Washington DC City  Center and the mortgage loan secured by the Westin San Diego.    





 






  2  LEGAL02/41986661v10   “Accession Agreement” means an Accession Agreement substantially in the form of Annex I to  the Guaranty.     “Accommodation Subsidiary” means a Subsidiary (other than the Subsidiary that owns the  applicable Eligible Property) that owns the improvements on an Eligible Property or the furniture, fixtures  and equipment utilized in the operation of such Eligible Property.     “Additional Costs” has the meaning given that term in Section 5.1.(b).     “Adjusted EBITDA” means, for any given period, (a) the EBITDA of the Parent and its  Subsidiaries determined on a consolidated basis for such period, minus (b) FF&E Reserves for such period.     “Adjusted NOI” means, for any Property and for any period (or if no applicable period is stated,  the period of twelve consecutive fiscal months then ended), Net Operating Income for such Property for  such period minus the greater of (a) the actual amount of franchise fees paid with respect to such Property  during such period and (b) an imputed franchise fee in the amount of four percent (4.0%) of the gross  revenues for such Property for such period; provided however, for purposes of this definition, no imputed  franchise fee shall be deducted from Net Operating Income with respect to any Property that is not subject  to a Franchise Agreement.  If a Property has not continuously operated the immediately preceding period  of twelve consecutive months, then the Adjusted NOI of such Property shall be calculated by annualizing  the historical Net Operating Income of such Property for the most recently ending period for which it has  been in continuous operation, determined on a pro forma basis reasonably acceptable to the Administrative  Agent.  For the avoidance of doubt and only with respect to continuously operated Properties, Adjusted  NOI for the period of four consecutive fiscal quarters most recently ended for any such Property acquired  by the Borrower or any Subsidiary during such period shall be utilized regardless of the date such Property  was acquired by the Borrower or such Subsidiary.     “Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a)  Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term  SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be  the Floor.      “Adjusted Total Asset Value” means Total Asset Value determined exclusive of assets that are  owned by Excluded Subsidiaries, Foreign Subsidiaries and Unconsolidated Affiliates.     “Administrative Agent” means Wells Fargo Bank, National Association as contractual  representative of the Lenders under this Agreement, or any successor Administrative Agent appointed  pursuant to Section 12.8.     “Administrative Questionnaire” means the Administrative Questionnaire completed by each  Lender and delivered to the Administrative Agent in a form supplied by the Administrative Agent to the  Lenders from time to time.     “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial  Institution.      “Affected Lender” has the meaning given that term in Section 5.8.     “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly  through one or more intermediaries, Controls or is Controlled by or is under common Control with the  





 






  3  LEGAL02/41986661v10  Person specified.  In no event shall the Administrative Agent or any Lender be deemed to be an Affiliate  of the Borrower.     “Agreement Date” means the date as of which this Agreement is dated.    “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to  the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including,  without limitation, the United States Foreign Corrupt Practices Act of 1977 and the rules and regulations  thereunder and the U.K. Bribery Act 2010 and the rules and regulations thereunder.  “Anti-Money Laundering Laws” means any and all laws, statutes, regulations or obligatory  government orders, decrees, ordinances or rules applicable to a Loan Party, its Subsidiaries or Affiliates  related to terrorism financing or money laundering, including any applicable provision of the Patriot Act  and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act,” 31  U.S.C. §§ 5311-5330 and 12U.S.C. §§ 1818(s), 1820(b) and 1951-1959).    “Applicable Facility Fee” means, at all times after the Investment Grade Rating Date, the  percentage set forth in the table below corresponding to the Level at which the “Applicable Margins” are  determined in accordance with the definition thereof:    Level Facility Fee  1 0.100%  2 0.125%  3 0.150%  4 0.200%  5 0.250%  6 0.300%    Any change in the applicable Level at which the Applicable Margins are determined shall result in a  corresponding and simultaneous change in the Applicable Facility Fee. The provisions of this definition  shall be subject to Section 2.5.(c).       “Applicable Law” means all international, foreign, federal, state and local statutes, treaties, rules,  guidelines, regulations, ordinances, codes, executive orders, 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.    “Applicable Margin” means:    (a)  Prior to the Investment Grade Rating Date, the percentage rate set forth below  corresponding to the Leverage Ratio in effect at such time as set forth in the Compliance Certificate most  recently delivered by the Borrower pursuant to Section 9.3.:    





 






  4  LEGAL02/41986661v10      Level      Leverage Ratio  Applicable  Margin for  Term SOFR  Revolving  Loans  Applicable  Margin for  Base Rate  Revolving  Loans  Applicable  Margin for  Term  SOFR  Term  Loans    Applicable  Margin for  Base Rate  Term  Loans    1 Less than 30%    1.40% 0.40% 1.35% 0.35%  2 Greater than or equal to  30.0% but less than 35.0%  1.45% 0.45% 1.40% 0.40%  3 Greater than or equal to  35.0% but less than 40.0%  1.50% 0.50% 1.45% 0.45%  4 Greater than or equal to  40.0% but less than 45.0%  1.60% 0.60% 1.55% 0.55%  5 Greater than or equal to  45.0% but less 50.0%  1.80% 0.80% 1.75% 0.75%  6 Greater than or equal to  50.0% but less than 55.0%  1.95% 0.95% 1.85% 0.85%  7 Greater than or equal to   55.0%  2.25% 1.25% 2.20% 1.20%    The Applicable Margin shall be determined by the Administrative Agent from time to time, based on the  Leverage Ratio as set forth in the Compliance Certificate most recently delivered by the Borrower pursuant  to Section 9.3.  Any adjustment to the Applicable Margin shall be effective as of the first day of the calendar  month immediately following the month during which the Borrower delivers to the Administrative Agent  the applicable Compliance Certificate pursuant to Section 9.3.  If the Borrower fails to deliver a Compliance  Certificate pursuant to Section 9.3., the Applicable Margin shall equal the percentage corresponding to  Level 7 above until the first day of the calendar month immediately following the month that the required  Compliance Certificate is delivered.  Notwithstanding the foregoing, for the period from the Effective Date  through but excluding the date on which the Administrative Agent first determines the Applicable Margin  for Loans as set forth above, the Applicable Margin shall be determined based on Level 3.  Thereafter, until  the Investment Grade Rating Date, the Applicable Margin shall be adjusted from time to time as set forth  in this clause (a).    (b) On, and at all times after, the Investment Grade Rating Date, the applicable rate per annum  set forth in the table below corresponding to the Level in the first column of the table in which the Parent’s  or Borrower’s Credit Rating falls.  Subject to the penultimate sentence of this clause (b), at all times, at  least one of Parent’s or Borrower’s Credit Ratings shall be from S&P or Moody's. During any period that  the Parent or Borrower has received only two Credit Ratings, and such Credit Ratings are not equivalent,  then the Applicable Margin shall be determined based on the higher of the two Credit Ratings; provided,  however, that if one of the Credit Ratings is from Fitch, then the Applicable Margins shall be determined  based on the Level corresponding to the Credit Rating of S&P or Moody’s, as applicable.  During any  period that the Parent or Borrower has received more than two Credit Ratings, and such Credit Ratings are  not all equivalent, the Applicable Margin shall be (A) if the difference between the highest and the lowest  such Credit Ratings is one ratings category (e.g. Baa2 by Moody's and BBB- by S&P or Fitch), the  Applicable Margin shall be the rate per annum that would be applicable if the highest of the Credit Ratings  were used; and (B) if the difference between the highest and the lowest such Credit Ratings is two ratings  categories (e.g. Baal by Moody's and BBB- by S&P or Fitch) or more, the Applicable Margin shall be the  rate per annum that would be applicable if the average of the two highest Credit Ratings were used, provided  





 






  5  LEGAL02/41986661v10  that if such average is not a recognized rating category (i.e., the difference between the Credit Ratings is an  even number of ratings categories), then the Applicable Margin shall be based on the lower of the two  highest Credit Ratings.  During any period in which the Parent or Borrower has received a Credit Rating  from only Moody’s or S&P, then the Applicable Margins shall be based upon such Credit Rating. During  any period after the Investment Grade Rating Date that the Parent has (A) not received a Credit Rating from  any Rating Agency or (B) only received a Credit Rating from a Rating Agency that is neither S&P nor  Moody’s, then the Applicable Margin shall be determined based on Level 6 in the table below. Any change  in the Parent’s Credit Rating which would cause it to move to a different Level shall be effective as of the  first day of the first calendar month immediately following such change.      Level    Credit Rating  Applicable  Margin for  Term SOFR  Revolving Loans  Applicable  Margin for Base  Rate Revolving  Loans  Applicable  Margin for  Term SOFR  Term Loans  Applicable  Margin for  Base Rate  Term Loans  1 >A/A2 0.775% 0.000% 0.850% 0.000%  2 A-/A3 0.825% 0.000% 0.900% 0.000%  3 BBB+/Baa1 0.875% 0.000% 0.950% 0.000%  4 BBB/Baa2 1.000% 0.000% 1.100% 0.100%  5 BBB-/Baa3 1.200% 0.200% 1.350% 0.350%  6 <BBB- /Baa3/Unrated  1.550% 0.550% 1.750% 0.750%     (c) During any Leverage Ratio Surge Period, any Applicable Margin determined as provided  above shall, each time a Leverage Ratio Surge Period applies, be increased by 0.35%.     (d) The provisions of this definition shall be subject to Section 2.5.(c).       “Approved Accounting Firm” means Deloitte LLP, KPMG LLP, PricewaterhouseCoopers  International Limited, Ernst & Young LLP or such other independent certified public accountant of  recognized national standing reasonably acceptable to the Administrative Agent.       “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 any entity that administers or manages a Lender.      “Approved Manager” means (i) each property management company listed on Schedule 1.1.(a),  (ii) any Affiliate thereof and (ii) any other nationally recognized third-party property management company  approved by the Administrative Agent in writing.       “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 13.5.), and  accepted by the Administrative Agent, in substantially the form of Exhibit A or any other form approved  by the Administrative Agent.    “Available Tenor” means, as of any date of determination and with respect to the then-current  Benchmark, as applicable, (a) if such Benchmark is a term rate, any tenor for such Benchmark (or  component thereof) that is or may be used for determining the length of an interest period pursuant to this  Agreement or (b) otherwise, any payment period for interest calculated with reference to such Benchmark  (or component thereof) that is or may be used for determining any frequency of making payments of interest  calculated with reference to such Benchmark, in each case, as of such date and not including, for the  





 






  6  LEGAL02/41986661v10  avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest  Period” pursuant to Section 5.2.(b)(iv).    “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable  Resolution Authority in respect of any liability of an Affected Financial Institution.     “Bail-In Legislation” means (a) 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, regulation, rule or requirement for such EEA Member Country from time to time which  is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,  Part I of  the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or  rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment  firms or other financial institutions or their Affiliates (other than through liquidation, administration or other  insolvency proceedings).     “Bankruptcy Code” means the Bankruptcy Code of 1978, as amended.      “Base Rate” means, at any time, the highest of (a) the Prime Rate, (b) the Federal Funds Rate plus  0.50% and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00%; each change  in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime  Rate, the Federal Funds Rate or Adjusted Term SOFR (provided that clause (c) shall not be applicable  during any period in which Adjusted Term SOFR is unavailable or unascertainable).  Notwithstanding the  foregoing, in no event shall the Base Rate be less than 1.00%.      “Base Rate Loan” means a Loan (or any portion thereof) bearing interest at a rate based on the  Base Rate.     “Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark  Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such  Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 5.2.(b)(i).    “Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of:  (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving  due consideration to (i) any selection or recommendation of a replacement benchmark rate or the  mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then- prevailing market convention for determining a benchmark rate as a replacement to the then-current  Benchmark for Dollar-denominated syndicated credit facilities and (b) the related Benchmark Replacement  Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor,  such Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the  other Loan Documents.     “Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor, the  spread adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower  giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for  calculating or determining such spread adjustment, for the replacement of such Benchmark with the  applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving  or then-prevailing market convention for determining a spread adjustment, or method for calculating or  





 






  7  LEGAL02/41986661v10  determining such spread adjustment, for the replacement of such Benchmark with the applicable  Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.    “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark:  (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,”  the later of (i) the date of the public statement or publication of information referenced therein and  (ii) the date on which the administrator of such Benchmark (or the published component used in  the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such  Benchmark (or such component thereof); or    (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the  first date on which such Benchmark (or the published component used in the calculation thereof)  has been determined and announced by the regulatory supervisor for the administrator of such  Benchmark (or such component thereof) to be non-representative; provided that such non- representativeness will be determined by reference to the most recent statement or publication  referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such  component thereof) continues to be provided on such date.    For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the  case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or  events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the  published component used in the calculation thereof).    “Benchmark Transition Event” means the occurrence of one or more of the following events  with respect to the then-current Benchmark:    (a) a public statement or publication of information by or on behalf of the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that such administrator has ceased or will cease to provide all Available Tenors of such  Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of  such statement or publication, there is no successor administrator that will continue to provide any  Available Tenor of such Benchmark (or such component thereof);    (b) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof),  the FRB, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the  administrator for such Benchmark (or such component), a resolution authority with jurisdiction  over the administrator for such Benchmark (or such component) or a court or an entity with similar  insolvency or resolution authority over the administrator for such Benchmark (or such component),  which states that the administrator of such Benchmark (or such component) has ceased or will cease  to provide all Available Tenors of such Benchmark (or such component thereof) permanently or  indefinitely; provided that, at the time of such statement or publication, there is no successor  administrator that will continue to provide any Available Tenor of such Benchmark (or such  component thereof); or    (c) a public statement or publication of information by the regulatory supervisor for  the administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or  as of a specified future date will not be, representative.    





 






  8  LEGAL02/41986661v10  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect  to any Benchmark if a public statement or publication of information set forth above has occurred with  respect to each then-current Available Tenor of such Benchmark (or the published component used in the  calculation thereof).    “Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the  earlier of (a) the applicable Benchmark Replacement Date and (b) if such Benchmark Transition Event is a  public statement or publication of information of a prospective event, the 90th day prior to the expected  date of such event as of such public statement or publication of information (or if the expected date of such  prospective event is fewer than 90 days after such statement or publication, the date of such statement or  publication).    “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a  Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the  then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with  Section 5.2(b)(i) and (y) ending at the time that a Benchmark Replacement has replaced the then-current  Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 5.2(b)(i).    “Beneficial Ownership Certification” means a certification regarding beneficial ownership as  required by the Beneficial Ownership Regulation.    “Beneficial Ownership Regulation” means 31 CFR § 1010.230.     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section  3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise  contributed to by any member of the ERISA Group.    “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and  interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.    “Borrower” has the meaning set forth in the introductory paragraph hereof and shall include the  Borrower’s successors and permitted assigns.     “Borrower Information” has the meaning given that term in Section 2.5.(c).     “Business Day” means a day of the week (but not a Saturday, Sunday or holiday) on which the  offices of the Administrative Agent in San Francisco, California are open to the public for carrying on  substantially all of the Administrative Agent’s business functions.  Unless specifically referenced in this  Agreement as a Business Day, all references to “days” shall be to calendar days.     “Capitalization Rate” means (a) 7.25% for Properties developed with hotels categorized as  Upscale, Upper Upscale or above Full-Service and located within (i) the central business districts of Boston,  Massachusetts, Chicago, Illinois, Borough of Manhattan, New York, Washington, D.C., San Francisco,  California, San Diego, California, (ii) Key West, Florida and (iii) Sausalito, California, (b) 12.00% for  Tranquility Bay or (c) 7.75% for all other Properties. Categorization of hotels shall be as determined by  Smith Travel Research or as otherwise requested by the Borrower and consented to in writing by the  Requisite Lenders.       “Capitalized Lease Obligation” means an obligation under a lease that is required to be capitalized  for financial reporting purposes in accordance with GAAP.  The amount of a Capitalized Lease Obligation  





 






  9  LEGAL02/41986661v10  is the capitalized amount of such obligation as would be required to be reflected on a balance sheet of the  applicable Person prepared in accordance with GAAP as of the applicable date.     “Cash Collateralize” means, to pledge and deposit with or deliver to the Administrative Agent,  for the benefit of the applicable Issuing Bank or the Revolving Lenders, as collateral for Letter of Credit  Liabilities or obligations of Revolving Lenders to fund participations in respect of Letter of Credit  Liabilities, cash or deposit account balances or, if the Administrative Agent and the applicable Issuing Bank  shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and  substance satisfactory to the Administrative Agent and the applicable Issuing Bank.  “Cash Collateral” shall  have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other  credit support.     “Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of  America or any of its agencies with maturities of not more than one year from the date acquired;  (b) certificates of deposit with maturities of not more than one year from the date acquired issued by a  United States federal or state chartered commercial bank of recognized standing, or a commercial bank  organized under the laws of any other country which is a member of the Organisation for Economic Co- operation and Development, or a political subdivision of any such country, acting through a branch or  agency, which bank has capital and unimpaired surplus in excess of $500,000,000 and which bank or its  holding company has a short-term commercial paper rating of at least A-2 or the equivalent by S&P or at  least P-2 or the equivalent by Moody’s; (c) reverse repurchase agreements with terms of not more than  seven days from the date acquired, for securities of the type described in clause (a) above and entered into  only with commercial banks having the qualifications described in clause (b) above; (d) commercial paper  issued by any Person incorporated under the laws of the United States of America or any State thereof and  rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s, in  each case with maturities of not more than one year from the date acquired; and (e) investments in money  market funds registered under the Investment Company Act of 1940, as amended, which have net assets of  at least $500,000,000 and at least 85% of whose assets consist of securities and other obligations of the type  described in clauses (a) through (d) above.     “Class” means (a) when used with respect to a Commitment, refers to whether such Commitment  is a Revolving Commitment, Term Loan 1 Commitment or Term 2 Loan Commitment, (b) when used with  respect to a Loan, refers to whether such Loan is a Revolving Loan, a Term 1 Loan or a Term 2 Loan and  (c) when used with respect to a Lender, refers to whether such Lender has a Loan or Commitment with  respect to a particular Class of Loans or Commitments.    “Commitment” means, as to each Lender (other than the Swingline Lender), such Lender’s  Revolving Commitment, such Lender’s Term 1 Loan Commitment or such Lender’s Term 2 Loan  Commitment, as the context may require.     “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as  amended from time to time, and any successor statute.     “Compliance Certificate” has the meaning given that term in Section 9.3.      “Conforming Changes” means, with respect to either the use or administration of Term SOFR or  the use, administration, adoption or implementation of any Benchmark Replacement, any technical,  administrative or operational changes (including changes to the definition of “Base Rate,” the definition of  “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest  Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  





 






  10  LEGAL02/41986661v10  prepayment, conversion or continuation notices, the applicability and length of lookback periods, the  applicability of Section 5.2 and other technical, administrative or operational matters) that the  Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such  rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially  consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such  market practice is not administratively feasible or if the Administrative Agent determines that no market  practice for the administration of any such rate exists, in such other manner of administration as the  Administrative Agent decides is reasonably necessary in connection with the administration of this  Agreement and the other Loan Documents).     “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by  net income (however denominated) or that are franchise Taxes or branch profits Taxes.     “Continue”, “Continuation” and “Continued” each refers to the continuation of a Term SOFR  Loan from one Interest Period to another Interest Period pursuant to Section 2.9.     “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.     “Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type  into a Loan of another Type pursuant to Section 2.10.      “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. §252.82(b); (ii) a “covered bank” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. §47.3(b); or (iii) a “covered FSI” as that term is defined in, and  interpreted in accordance with, 12 C.F.R. §382.2(b).     “Credit Event” means any of the following: (a) the making (or deemed making) of any Loan,  (b) the Conversion of a Base Rate Loan into a Term SOFR Loan or (c) the issuance of a Letter of Credit or  the amendment of a Letter of Credit that extends the maturity, or increases the Stated Amount, of such  Letter of Credit.     “Credit Rating” means the rating assigned by a Rating Agency to the senior unsecured long term  Indebtedness of a Person.     “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,  bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,  reorganization, or similar Applicable Laws relating to the relief of debtors in the United States of America  or other applicable jurisdictions from time to time in effect.     “Default” means any of the events specified in Section 11.1., whether or not there has been satisfied  any requirement for the giving of notice, the lapse of time, or both.     “Defaulting Lender” means, subject to Section 3.9.(f), any Lender that (a) has failed to (i) fund all  or any portion of its Loans within 2 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 good faith 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, any Issuing Bank,  the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including  





 






  11  LEGAL02/41986661v10  with respect to a Revolving Lender, in respect of its participation in Letters of Credit or Swingline Loans)  within 2 Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, any  Issuing Bank or the Swingline Lender 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 good faith 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 3 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 of America 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 shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a  Defaulting Lender (subject to Section 3.9.(f)) upon delivery of written notice of such determination to the  Borrower, the Issuing Banks, the Swingline Lender and each Lender.      “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance  with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.    “Derivatives Contract” means a “swap agreement” as defined in Section 101 of the Bankruptcy  Code.     “Derivatives Support Document” means (a) any Credit Support Annex comprising part of (and  as defined in) any Specified Derivatives Contract, and (b) any document or agreement, pursuant to which  cash, deposit accounts, securities accounts or similar financial asset collateral are pledged to or made  available for set-off by, a Specified Derivatives Provider, including any banker’s lien or similar right,  securing or supporting Specified Derivatives Obligation.     “Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,  after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives  Contracts, (a) for any date on or after the date such Derivatives Contracts have been closed out and  termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date  prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market value(s) for such  Derivatives Contracts, as determined based upon one or more mid-market or other readily available  quotations provided by any recognized dealer in such Derivatives Contracts (which may include the  Administrative Agent or any Lender).     “Development/Redevelopment Property” means (a) a new Property under construction or (b) an  existing Property which is undergoing an expansion pursuant to which the total guest rooms for such  Property will be increased by 50% or more. Each Development/Redevelopment Property shall continue to    





 






  12  LEGAL02/41986661v10  be classified as a Development/Redevelopment Property hereunder until the achievement of substantial  completion with respect to such Development/Redevelopment Property, following which such  Development/Redevelopment Property shall be classified as a Seasoned Property.     “Disbursement Instruction Agreement” means an agreement substantially in the form of  Exhibit I to be executed and delivered by the Borrower pursuant to Section 6.1.(a), as the same may be  amended, restated or modified from time to time with the prior written approval of the Administrative  Agent.     “Dollars” or “$” means the lawful currency of the United States of America.     “Domestic Subsidiary” means any Subsidiary that is incorporated or organized under the laws of  any state of the United States or the District of Columbia.    “EBITDA” means, with respect to a Person for any period (without duplication):  (a) net income  (loss) of such Person for such period determined on a consolidated basis (before minority interests),  exclusive of the following (but only to the extent included in determination of such net income (loss)):  (i)  depreciation and amortization expense; (ii) Interest Expense; (iii) income tax expense; (iv) extraordinary or  non-recurring gains and losses; (v) closing costs expensed which are directly attributable to the acquisition  of Property; (vi) severance costs; and (vii) other non-cash charges including, without limitation, impairment  charges (other than non-cash charges that constitute an accrual of a reserve for future cash payments) plus  (b) such Person’s Ownership Share of EBITDA of its Unconsolidated Affiliates.  EBITDA shall be adjusted  to remove any impact from (x) non-cash amortization of stock grants to members of the Parent’s  management, (y) straight line rent leveling adjustments required under GAAP and (z) amortization of  intangibles pursuant to FASB ASC 805.       “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.     “EEA Member Country” means any of the member states of the European Union, Iceland,  Liechtenstein, and Norway.     “EEA Resolution Authority” means any public administrative authority or any person entrusted  with public administrative authority of any EEA Member Country (including any delegee) having  responsibility for the resolution of any EEA Financial Institution.     “Effective Date” means the later of (a) the Agreement Date or (b) the date on which all of the  conditions precedent set forth in Section 6.1. shall have been fulfilled or waived.     “Eligible Assignee” means any Person that meets the requirements to be an assignee under Section  13.5.(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 13.5.(b)(iii)).     “Eligible Property” means a Property which satisfies all of the following requirements:      (a)  such Property is either (x) an Upper-Upscale, Luxury or Upscale (as defined by Smith  Travel Research) hotel located in a major urban market or (y) a destination resort hotel;     





 






  13  LEGAL02/41986661v10  (b)  such Property is open for business to the public;     (c)  such Property is (i) branded by one or more nationally recognized hotel companies or an  Affiliate of such a company, (ii) operated as an independent hotel located in a central business district or  leisure market or (iii) a destination resort hotel;     (d)  such Property is located in one of the 48 contiguous States of the United States of America,  the State of Hawaii, or in the District of Columbia;    (e)  such Property is owned in fee simple or leased under a Ground Lease entirely by the  Borrower or a Guarantor (or, on and after the Investment Grade Rating Date, a Wholly Owned Subsidiary)  other than any Guarantor (or Wholly Owned Subsidiary) which is an Excluded Subsidiary or Foreign  Subsidiary; provided that Tranquility Bay may be owned by the Borrower or a Guarantor as a condo hotel  such that some or all of the individual units are owned by third parties;     (f)  neither such Property, nor any interest of the Borrower or any Subsidiary therein, is subject  to any Lien (other than Permitted Liens (but not Liens of the types described in clauses (f), (g)(other than  Liens relating the New York Mortgages described in clause (g)(ii)) and (h) of the definition of Permitted  Liens));     (g)  if such Property is owned or leased by a Subsidiary (i) none of the Borrower’s direct or  indirect ownership interest in such Subsidiary is subject to any Lien (other than Permitted Liens (but not  Liens of the types described in clauses (f), (g) and (h) of the definition of Permitted Liens)) or to a Negative  Pledge; and (ii) the Borrower directly, or indirectly through a Subsidiary, has the right to take the following  actions without the need to obtain the consent of any Person: (x) to sell, transfer or otherwise dispose of  such Property and (y) to create a Lien on such Property as security for Indebtedness of the Borrower or  such Subsidiary, as applicable;     (h)  such Property is managed by an Approved Manager;     (i)  such Property is covered by property insurance in amounts and upon terms that satisfy  criteria set forth in Section 8.5.;     (j)  such Property has all material occupancy and operating permits and licenses required by  Applicable Law; and    (k) such Property is free of all structural defects or major architectural deficiencies, title  defects, environmental conditions or other adverse matters except for defects, deficiencies, conditions or  other matters which, individually or collectively, are not material to the profitable operation of such  Property.     “Environmental Claims” means any and all administrative, regulatory or judicial actions, suits,  demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation,  investigations (other than internal reports prepared by any Person in the ordinary course of business and  not in response to any third party action or request of any kind) or proceedings relating in any way to any  actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or  any approval given, under any such Environmental Law, including, without limitation, any and all claims  by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or  damages, contribution, indemnification cost recovery, compensation or injunctive relief resulting from  Hazardous Materials or arising from alleged injury or threat of injury to human health (as it pertains to  exposure to Hazardous Materials) or the environment.  





 






  14  LEGAL02/41986661v10     “Environmental Laws” means any Applicable Law relating to environmental protection or the  manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without  limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act, 33  U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery  Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act,  42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the  Environmental Protection Agency, any applicable rule of common law relating primarily to the  environment or Hazardous Materials, and any analogous or comparable state or local laws, regulations or  ordinances that concern Hazardous Materials or protection of the environment.     “Equity Interest” means, with respect to any Person, any share of capital stock of (or other  ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other  acquisition from such Person of any share of capital stock of (or other ownership or profit interests in) such  Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership  or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such  Person of such shares (or such other interests), and any other ownership or profit interest in such Person  (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting,  and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on  any date of determination.     “Equity Payment Exclusions” has the meaning given that term in Section 2.8.(b)(iv).     “ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to  time.     “ERISA Event” means, with respect to the ERISA Group, (a) any “reportable event” as defined in  Section 4043 of ERISA with respect to a Plan (unless the 30 day notice requirement with respect to such  event has been waived); (b) the withdrawal of a member of the ERISA Group from a Plan subject to  Section 4063 of ERISA during a plan year in which it 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) the incurrence by a member of the ERISA Group of any liability with respect  to the withdrawal or partial withdrawal from any Multiemployer Plan; (d) the incurrence by any member  of the ERISA Group of any liability under Title IV of ERISA with respect to the termination of any Plan  or Multiemployer Plan; (e) the institution of proceedings to terminate a Plan or Multiemployer Plan by the  PBGC; (f) the failure by any member of the ERISA Group to make when due required contributions to a  Multiemployer Plan or Plan unless such failure is cured within 30 days or the filing pursuant to  Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA of an application for a waiver of  the minimum funding standard; (g) any other event or condition that might reasonably be expected to  constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to  administer, any Plan or Multiemployer Plan or the imposition of liability under Section 4069 or 4212(c) of  ERISA; (h) the receipt by any member of the ERISA Group of any notice or the  receipt by any  Multiemployer Plan from any member of the ERISA Group of any notice, concerning the imposition of  Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent (within  the meaning of Section 4245 of ERISA), or in “critical” or “endangered” status (within the meaning of  Section 432 of the Internal Revenue Code or Section 305 of ERISA); (i)  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 any member of the ERISA Group or the imposition of any Lien in favor of the PBGC under  Title IV of ERISA; or (j) a determination that a Plan is, or is reasonably expected to be, in “at risk” status  (within the meaning of Section 430 of the Internal Revenue Code or Section 303 of ERISA).    





 






  15  LEGAL02/41986661v10   “ERISA Group” means the Borrower, the Parent and all members of a controlled group of  corporations and all trades or businesses (whether or not incorporated) under common control, which,  together with the Borrower or the Parent, are treated as a single employer under Section 414(b) or (c) of the  Internal Revenue Code.     “Erroneous Payment” has the meaning given to that term in Section 12.12(a).    “Erroneous Payment Deficiency Assignment” has the meaning given to that term in Section  12.12(d).    “Erroneous Payment Impacted Class” has the meaning given to that term in Section 12.12(d).    “Erroneous Payment Return Deficiency” has the meaning given to that term in Section 12.12(d).     “ESG” has the meaning given to that term in in Section 13.6.(d).     “ESG Amendment” has the meaning given to that term in Section 13.6.(d).     “ESG Pricing Provisions” has the meaning given to that term in Section 13.6.(d).     “ESG Ratings” has the meaning given to that term in Section 13.6.(d).     “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” means any of the events specified in Section 11.1., provided that any  requirement for notice or lapse of time or any other condition has been satisfied.     “Excluded Subsidiary” means any Subsidiary as to which both of the following apply: (a) such  Subsidiary holds title to, or beneficially owns, assets which are or are intended to become collateral for any  Secured Indebtedness of such Subsidiary, or is a direct or indirect beneficial owner of a Subsidiary holding  title to or beneficially owning such assets (but having no material assets other than such beneficial  ownership interests); and (b) which (i) is, or is expected to be, prohibited from Guarantying the  Indebtedness of any other Person pursuant to any document, instrument or agreement evidencing such  Secured Indebtedness or (ii) is prohibited from Guarantying the Indebtedness of any other Person pursuant  to a provision of such Subsidiary’s organizational documents which provision was included in such  Subsidiary’s organizational documents as a condition to the extension of such Secured Indebtedness.     “Excluded Swap Obligation” means, with respect to any Loan Party, any Swap Obligation if, and  to the extent that, all or a portion of the liability of such Loan Party for or the Guarantee of such Loan Party  of, or the grant by such Loan Party of a Lien to secure, such Swap Obligation (or any liability or guarantee  thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the  Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by  virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined  in the Commodity Exchange Act and the regulations thereunder at the time the liability for or the Guarantee  of such Loan Party or the grant of such Lien becomes effective with respect to such Swap Obligation (such  determination being made after giving effect to any applicable keepwell, support or other agreement for the  benefit of the applicable Loan Party, including under any applicable provision of the Guaranty).  If a Swap  Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only  to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or Lien is or  becomes illegal for the reasons identified in the immediately preceding sentence of this definition.  





 






  16  LEGAL02/41986661v10     “Excluded Taxes” means any of the following Taxes imposed on or with respect to a 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 applicable 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 an Applicable 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 5.8.) or (ii) such Lender changes its lending office, except in each  case to the extent that, pursuant to Section 3.10., amounts with respect to such 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 3.10.(g) and (d) any withholding Taxes imposed under FATCA.     “Existing Term Loan” means the term loan funded under the Existing Term Loan Agreement.     “Existing Term Loan Agreement” means that certain Term Loan Agreement dated as of October  18, 2018, by and among the Borrower, the Parent, the financial institutions from time to time party thereto,  U.S. Bank National Association, as administrative agent, and the other parties thereto, as amended and in  effect immediately prior to the date hereof.     “Extended Letter of Credit” has the meaning given that term in Section 2.3.(b).     “Existing Credit Agreement” has the meaning given such term in the first “WHEREAS” clause  of this Agreement.     “Fair Market Value” means, (a) with respect to a security listed on a national securities exchange  or the NASDAQ National Market, the price of such security as reported on such exchange or market by  any widely recognized reporting method customarily relied upon by financial institutions and (b) with  respect to any other property, the price which could be negotiated in an arm’s-length free market transaction,  for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to  complete the transaction.       “FASB ASC” means the Accounting Standards Codification of the Financial Accounting  Standards Board.     “FATCA” means Sections 1471 through 1474 of the Internal Revenue 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 if  such rate is not so published for any day which is a Business Day, the Federal Funds Rate for such day shall  be the average of the quotation for such day on such transactions received by the Administrative Agent  from three federal funds brokers of recognized standing selected by the Administrative Agent.   





 






  17  LEGAL02/41986661v10  Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed  to be zero for purposes of this Agreement.     “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank  of New York at http://www.newyorkfed.org, or any successor source.    “Fee Letters” means, collectively, (a) that certain fee letter dated as of August 16, 2022, by and  among the Borrower, the Parent, Wells Fargo, Wells Fargo Securities, LLC, Bank of America, N.A. and  BofA Securities, Inc., (b) that certain fee letter dated as of August 16, 2022, by and among the Borrower,  the Parent and Wells Fargo and (c) each other respective fee letter by and among the Borrower, each other  respective Lead Arranger and the other parties thereto.      “Fees” means the fees and commissions provided for or referred to in Section 3.5. and any other  fees payable by the Borrower hereunder, under any other Loan Document or under the Fee Letters.    “FF&E Reserves” means, for any period and with respect to a Property, an amount equal to the  greater of (a) 4.0% of total gross revenues for such Property for such period and (b) the aggregate amount  of reserves in respect to furniture, fixtures and equipment required under any Property Management  Agreement or Franchise Agreement applicable to such Properties for such period.  If the term FF&E  Reserves is used without reference to a specific Property, then the amount shall be determined on an  aggregate basis with respect to all Properties of the Parent and its Subsidiaries and a proportionate share of  all Properties of all Unconsolidated Affiliates.     “Financial Covenants” means the covenants set forth in clauses (a) – (f) of Section 10.1.     “Fitch” means Fitch Ratings Inc.     “Fixed Charges” means, for any period, the sum of the following (without duplication): (a) Interest  Expense of the Parent and its Subsidiaries determined on a consolidated basis for such period, (b) all  regularly scheduled principal payments made with respect to Indebtedness of the Parent and its Subsidiaries  during such period, other than any balloon, bullet or similar principal payment which repays such  Indebtedness in full, (c) all Preferred Dividends paid during such period on Preferred Equity Interests not  owned by the Parent or any of its Subsidiaries and (d) payments in respect of Capitalized Lease Obligations.   The Parent’s pro rata share of the Fixed Charges of Unconsolidated Affiliates of the Parent shall be included  in determinations of Fixed Charges.    “Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968 as now  or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now  or hereafter in effect or any successor statue thereto, (c) the National Flood Insurance Reform Act of 1994  as now or hereafter in effect or any successor statute thereto, (d) the Flood Insurance Reform Act of 2004  as now or hereafter in effect or any successor statute thereto and (e) the Biggert-Waters Flood Insurance  Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.     “Floor” means a rate of interest equal to 0.00%.     “Foreign Lender” means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person,  and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a  jurisdiction other than that in which the Borrower is resident for tax purposes.       “Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.    





 






  18  LEGAL02/41986661v10   “Franchise Agreement” means an agreement permitting the use of the applicable hotel brand  name, hotel system trademarks, trade names and any related rights in connection with the ownership or  operation of a Property.    “Fronting Exposure” means, at any time there is a Defaulting Lender that is a Revolving Lender,  (a) with respect to each Issuing Bank, such Defaulting Lender’s Revolving Commitment Percentage of the  outstanding Letter of Credit Liabilities attributable to such Issuing Bank other than Letter of Credit  Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other  Revolving Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the  Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of outstanding Swingline  Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been  reallocated to other Revolving Lenders.     “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 of America set forth  in the opinions and pronouncements of the Accounting Principles Board of the American Institute of  Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards  Board (including Statement of Financial Accounting Standards No. 168, “The FASB Accounting Standards  Codification”) or in such other statements by such other entity as may be approved by a significant segment  of the accounting profession in the United States of America, which are applicable to the circumstances as  of the date of determination.     “Governmental Approvals” means all authorizations, consents, approvals, licenses and  exemptions of, registrations and filings with, and reports to, all Governmental Authorities.    “Governmental Authority” means any national, state or local government (whether domestic or  foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial,  administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,  department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the  Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority)  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), or any arbitrator with authority to bind a party at law.    “Ground Lease” means (i) so long as there are no material adverse changes to the ground lease  applicable thereto effected after the Effective Date, United States Department of the Interior National Park  Service Lease Fort Baker at Golden Gate National Recreation Area dated December 7, 2006 (as amended  prior to the Effective Date) and (ii) a ground lease containing the following terms and conditions:  (a) a  remaining term (exclusive of any unexercised extension options) of 50 years or more from the Agreement  Date; (b) the right of the lessee to mortgage and encumber its interest in the leased property without the  consent of the lessor, or, if consent is required, such consent has been obtained or is required to be given  upon the satisfaction of conditions reasonably acceptable to the Administrative Agent; (c) the obligation of  the lessor to give the holder of any mortgage Lien on such leased property written notice of any defaults on  the part of the lessee and agreement of such lessor that such lease will not be terminated until such holder  has had a reasonable opportunity to cure or complete foreclosures, and fails to do so; (d) transferability of  the lessee’s interest under such lease, including ability to sublease without lessor consent or, if consent is  required, such consent is required to be given upon the satisfaction of conditions reasonably acceptable to  





 






  19  LEGAL02/41986661v10  the Administrative Agent; and (e) such other rights customarily required by mortgagees making a loan  secured by the interest of the holder of the leasehold estate demised pursuant to a ground lease.     “Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future  payment and other obligations owing by any Loan Party under any Specified Derivatives Contract (other  than any Excluded Swap Obligation).    “Guarantor” means any Person that is a party to the Guaranty as a “Guarantor” and, in any event,  shall include the Parent and each Subsidiary required to provide a Guaranty pursuant to Section 6.1. or  Section 8.14.     “Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any obligation  means and includes:  (a) a guaranty (other than by endorsement of negotiable instruments for collection or  deposit in the ordinary course of business), directly or indirectly, in any manner, of any part or all of such  obligation, or (b) an agreement, direct or indirect, contingent or otherwise, and whether or not constituting  a guaranty, the practical effect of which is to assure the payment or performance (or payment of damages  in the event of nonperformance) of any part or all of such obligation whether by:  (i) the purchase of  securities or obligations, (ii) the purchase, sale or lease (as lessee or lessor) of property or the purchase or  sale of services primarily for the purpose of enabling the obligor with respect to such obligation to make  any payment or performance (or payment of damages in the event of nonperformance) of or on account of  any part or all of such obligation, or to assure the owner of such obligation against loss, (iii) the supplying  of funds to or in any other manner investing in the obligor with respect to such obligation, (iv) repayment  of amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the  supplying of funds to or investing in a Person on account of all or any part of such Person’s obligation  under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such Person against  any part or all of such obligation.  Obligations in respect of customary performance guaranties and  Guaranties constituting Nonrecourse Indebtedness shall not be deemed to give rise to Indebtedness or  otherwise constitute a Guaranty except as otherwise provided in the definition of “Nonrecourse  Indebtedness”.  As the context requires, “Guaranty” shall also mean the Amended and Restated Guaranty  executed and delivered pursuant to Section 6.1. and substantially in the form of Exhibit B.     “Hazardous Materials” means all or any of the following: (a) substances that are defined or listed  in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous substances”,  “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define,  list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,  carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”; (b) oil, petroleum or petroleum  derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and  other wastes associated with the exploration, development or production of crude oil, natural gas or  geothermal resources; (c) any flammable substances or explosives or any radioactive materials; (d) asbestos  in any form; (e) toxic mold; and (f) electrical equipment which contains any oil or dielectric fluid containing  levels of polychlorinated biphenyls in excess of fifty parts per million.     “Implied Debt Service” means (a) a given principal balance of Indebtedness multiplied by (b) the  greatest of (i) 10% per annum, (ii) the highest per annum interest rate then applicable to any of the  outstanding principal balance of the Loans and (iii) a mortgage debt constant for a loan calculated using a  per annum interest rate equal to the yield on a 10 year United States Treasury Note at such time as  determined by the Administrative Agent plus 3.50% and amortizing in full in a 25-year period.     “Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the  following (without duplication):  (a) all obligations of such Person in respect of money borrowed (other  than trade debt incurred in the ordinary course of business which is not more than 180 days past due); (b) all  





 






  20  LEGAL02/41986661v10  obligations of such Person, whether or not for money borrowed (other than trade debt incurred in the  ordinary course of business which is not more than 180 days past due) (i) represented by notes payable, or  drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes  or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title  retention debt instruments or other similar instruments, upon which interest charges are customarily paid  or that are issued or assumed as full or partial payment for property or services rendered; (c) Capitalized  Lease Obligations of such Person; (d) all reimbursement obligations of such Person under any letters of  credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet  Obligations of such Person; (f) all obligations of such Person to purchase, redeem, retire, defease or  otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such Person or  any other Person, valued at the greater of its voluntary or involuntary liquidation preference plus accrued  and unpaid dividends; (g) all obligations of such Person in respect of any (i) purchase obligation, repurchase  obligation or takeout commitment, in each case evidenced by a binding agreement and to the extent such  obligation is to acquire Equity Interests of another Person, assets of another Person that constitute the  business or a division or operating unit of such Person, real estate, bonds, debentures, notes or similar  instruments or (ii) forward equity commitment evidenced by a binding agreement (provided, however that  this clause (g) shall exclude any such obligation to the extent the obligation can be satisfied by the issuance  of Equity Interests (other than Mandatorily Redeemable Stock)); (h) net obligations under any Derivatives  Contract not entered into as a hedge against Indebtedness existing from time to time, in an amount equal to  the Derivatives Termination Value thereof; (i) all Indebtedness of other Persons which such Person has  Guaranteed or is otherwise recourse to such Person (except for Guaranties constituting Nonrecourse  Indebtedness); (j) all Indebtedness of another Person secured by (or for which the holder of such  Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property or assets  owned by such Person, even though such Person has not assumed or become liable for the payment of such  Indebtedness or other payment obligation and (k) such Person’s Ownership Share of the Indebtedness of  any Unconsolidated Affiliate of such Person.  Indebtedness of any Person shall include Indebtedness of any  partnership or joint venture in which such Person is a general partner or joint venturer to the extent of such  Person’s Ownership Share of the ownership of such partnership or joint venture (except if such  Indebtedness, or portion thereof, is recourse (other than in respect of exceptions referred to in the definition  of Nonrecourse Indebtedness) to such Person, in which case the greater of such Person’s Ownership Share  of such Indebtedness or the amount of such recourse portion of the Indebtedness, shall be included as  Indebtedness of such Person).  All Loans and Letter of Credit Liabilities shall constitute Indebtedness of  the Borrower.  Notwithstanding the foregoing, (A) in the case of any Nonrecourse Indebtedness as to which  recourse for payment thereof is expressly limited to the property or asset on which a Lien is granted, such  Indebtedness shall be valued at the lesser of (i) the stated or determinable amount of the Indebtedness that  is so secured or, if not stated or determinable, the maximum reasonably anticipated liability in respect  thereof subject to confirmation by the Administrative Agent in its reasonable discretion and (ii) the Fair  Market Value of such property or asset; and (B) in the case of any Indebtedness of other Persons which  such Person has Guaranteed, the amount of such Indebtedness attributable to such Person shall be equal to  the lesser of the stated or determinable amount of the Indebtedness such Person Guaranteed or, if  the amount of such Indebtedness is not stated or determinable, the maximum reasonably  anticipated liability in respect thereof subject to confirmation by the Administrative Agent in its  reasonable discretion.  The calculation of Indebtedness shall not include any fair value adjustments to the  carrying value of liabilities to record such Indebtedness at fair value pursuant to electing the fair value  option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for  Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value  option for financial liabilities.     “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 the Borrower or any other Loan Party under any  





 






  21  LEGAL02/41986661v10  Loan Document and (b) to the extent not otherwise described in the immediately preceding clause (a), Other  Taxes.     “Intellectual Property” has the meaning given that term in Section 7.1.(t).      “Interest Expense” means, with respect to a Person and for any period, and without duplication  (a) all paid, accrued or capitalized interest expense (including, without limitation, capitalized interest  expense (other than capitalized interest funded from a construction loan interest reserve account held by  another lender and not included in the calculation of cash for balance sheet reporting purposes) and interest  expense attributable to Capitalized Lease Obligations) of such Person and in any event shall include all  letter of credit fees and all interest expense with respect to any Indebtedness in respect of which such Person  is wholly or partially liable whether pursuant to any repayment, interest carry, performance guarantee or  otherwise, plus (b) to the extent not already included in the foregoing clause (a), such Person’s Ownership  Share of all paid, accrued or capitalized interest expense for such period of Unconsolidated Affiliates of  such Person.  The term “Interest Expense” shall exclude all costs and expenses of defeasing any  Indebtedness encumbering any Property following the acquisition thereof.        “Interest Period” means with respect to each Term SOFR Loan, each period commencing on the  date such Term SOFR Loan is made, or in the case of the Continuation of a Term SOFR Loan the last day  of the preceding Interest Period for such Loan, and ending on the numerically corresponding day in the  first, third or sixth calendar month thereafter, as the Borrower may select in a Notice of Borrowing, Notice  of Continuation or Notice of Conversion, as the case may be, except that each Interest Period that  commences on the last Business Day of a calendar month (or on any day for which there is no numerically  corresponding day in the appropriate subsequent calendar month) shall end on the last Business Day of the  appropriate subsequent calendar month.  Notwithstanding the foregoing: (i) if any Interest Period for a Class  of Loans would otherwise end after the Termination Date for such Class, such Interest Period shall end on  such Termination Date; and (ii) each Interest Period that would otherwise end on a day which is not a  Business Day shall end on the immediately following Business Day (or, if such immediately following  Business Day falls in the next calendar month, on the immediately preceding Business Day).  No tenor that  has been removed from this definition pursuant to Section 5.2 shall be available for specification in any  Notice of Borrowing, Notice of Conversion or Notice of Continuation.          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.    “Investment” means, with respect to any Person, any acquisition or investment (whether or not of  a controlling interest) by such Person, by means of any of the following:  (a) the purchase or other  acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of credit to, capital  contribution to, Guaranty of Indebtedness of, or purchase or other acquisition of any Indebtedness of,  another Person, including any partnership or joint venture interest in such other Person, or (c) the purchase  or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute  the business or a division or operating unit of another Person.  Any binding commitment to make an  Investment in any other Person, as well as any option of another Person to require an Investment in such  Person, shall constitute an Investment.  Except as expressly provided otherwise, for purposes of determining  compliance with any covenant contained in a Loan Document, the amount of any Investment shall be the  amount actually invested, without adjustment for subsequent increases or decreases in the value of such  Investment.    “Investment Grade Rating” means a Credit Rating of BBB- (or equivalent) or higher from S&P  or Fitch and Baa3 (or equivalent) or higher from Moody’s.    





 






  22  LEGAL02/41986661v10  “Investment Grade Rating Date” means the date specified by the Borrower in a written notice to  the Administrative Agent after the Parent or the Borrower obtains an Investment Grade Rating from either  Moody’s or S&P.    “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”  published by the Institute of International Banking Law & Practice (or such later version thereof as may be  in effect at the time of issuance).      “Issuing Banks” means each of Wells Fargo, Bank of America, N.A., TD Bank, N.A., and U.S.  Bank National Association in its capacity as an issuer of Letters of Credit pursuant to Section 2.3.     “KPIs” has the meaning given to that term in Section 13.6.(d).      “L/C Commitment Amount” has the meaning given that term in Section 2.3.(a).     “L/C Disbursement” has the meaning given to that term in Section 3.9.(b).     “Lender” means each financial institution from time to time party hereto as a “Lender”, together  with its respective successors and permitted assigns, and, as the context requires, includes the Swingline  Lender; provided, however, that the term “Lender” except as otherwise expressly provided herein, shall  exclude any Lender (or its Affiliates) in its capacity as a Specified Derivatives Provider.     “Lender Parties” means, collectively, the Administrative Agent, the Lenders, the Issuing Banks,  the Specified Derivatives Providers, each co-agent or sub-agent appointed by the Administrative Agent  from time to time pursuant to Section 12.8, any other holder from time to time of any of any Obligations  and, in each case, their respective successors and permitted assigns.     “Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender  specified in such Lender’s Administrative Questionnaire or in the applicable Assignment and Assumption,  or such other office of such Lender as such Lender may notify the Administrative Agent in writing from  time to time.     “Letter of Credit” has the meaning given that term in Section 2.3.(a).     “Letter of Credit Collateral Account” means a special deposit account maintained by the  Administrative Agent, for the benefit of the Administrative Agent, the Issuing Banks and the Revolving  Lenders, and under the sole dominion and control of the Administrative Agent.     “Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any  application therefor, any certificate or other document presented in connection with a drawing under such  Letter of Credit and any other agreement, instrument or other document governing or providing for (a) the  rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any  collateral security for any of such obligations.     “Letter of Credit Liabilities” means, without duplication, at any time and in respect of any Letter  of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate unpaid principal  amount of all Reimbursement Obligations of the Borrower at such time due and payable in respect of all  drawings made under such Letter of Credit.  For purposes of this Agreement, (i) a Revolving Lender (other  than a Revolving Lender in its capacity as an Issuing Bank of a Letter of Credit) shall be deemed to hold a  Letter of Credit Liability in an amount equal to its participation interest under Section 2.3. in such Letter of  Credit, and the Revolving Lender that is the Issuing Bank of such Letter of Credit shall be deemed to hold  





 






  23  LEGAL02/41986661v10  a Letter of Credit Liability in an amount equal to its retained interest in such Letter of Credit after giving  effect to the acquisition by the Revolving Lenders (other than the Revolving Lender then acting as the  Issuing Bank of such Letter of Credit) of their participation interests under such Section and (ii) if on any  date of determination a Letter of Credit has expired by its terms but any amount may still be drawn  thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be  “outstanding” in the amount so remaining available to be drawn.     “Level” means each numerical level set forth below the column entitled “Level” in the definition  of “Applicable Margin”.     “Leverage Ratio” means the ratio, expressed as a percentage, of (i) Net Indebtedness to (ii) Total  Asset Value.     “Leverage Ratio Surge Period” has the meaning given to that term in Section 10.1.(a).     “Lien” as applied to the property of any Person means:  (a) any security interest, encumbrance,  mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, charge or lease  constituting a Capitalized Lease Obligation, conditional sale or other title retention agreement, or other  security title or encumbrance of any kind in respect of any property of such Person, or upon the income,  rents or profits therefrom; (b) any arrangement, express or implied, under which any property of such Person  is transferred, sequestered or otherwise identified for the purpose of subjecting the same to the payment of  Indebtedness or performance of any other obligation in priority to the payment of the general, unsecured  creditors of such Person; (c) the filing of any financing statement under the Uniform Commercial Code or  its equivalent in any jurisdiction, other than any precautionary filing not otherwise constituting or giving  rise to a Lien, including a financing statement filed (i) in respect of a lease not constituting a Capitalized  Lease Obligation pursuant to Section 9-505 (or a successor provision) of the Uniform Commercial Code or  its equivalent as in effect in an applicable jurisdiction or (ii) in connection with a sale or other disposition  of accounts or other assets not prohibited by this Agreement in a transaction not otherwise constituting or  giving rise to a Lien; and (d) any agreement by such Person to grant, give or otherwise convey any of the  foregoing.     “Loan” means a Revolving Loan, a Swingline Loan or a Term Loan.    “Loan Document” means this Agreement, each Note, each Letter of Credit Document, the  Guaranty and each other document or instrument now or hereafter executed and delivered by a Loan Party  in connection with, pursuant to or relating to this Agreement (excluding the Fee Letters).     “Loan Party” means the Borrower, the Parent and each other Guarantor. Schedule 1.1.(b) sets  forth the Loan Parties in addition to the Borrower and the Parent as of the Effective Date.     “Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest of such  Person which by the terms of such Equity Interest (or by the terms of any security into which it is convertible  or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (a) matures  or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than an Equity  Interest to the extent redeemable in exchange for common stock or other equivalent common Equity  Interests), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily  Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than  an Equity Interest which is redeemable solely in exchange for common stock or other equivalent common  Equity Interests), in each case on or prior to the date on which all Loans are scheduled to be due and payable  in full.    





 






  24  LEGAL02/41986661v10   “Material Acquisition” means any acquisition (whether by direct purchase, merger or otherwise  and whether in one or more related transactions) by the Parent, the Borrower or any Subsidiary in which  the purchase price of the assets acquired exceeds an amount equal to 10% of Total Asset Value as of the  last day of the most recently ended fiscal quarter prior to the consummation of such acquisition of the Parent  for which financial statements are publicly available.      “Material Adverse Effect” means a materially adverse effect on (a) the business, assets, liabilities,  financial condition or results of operations of the Parent and its Subsidiaries, or the Borrower and its  Subsidiaries, in each case, taken as a whole, (b) the ability of the Borrower or any other Loan Party to  perform its obligations under any Loan Document to which it is a party, (c) the validity or enforceability of  any of the material provisions of the Loan Documents, or (d) the material rights and remedies of the Lenders  and the Administrative Agent under any of the Loan Documents.     “Material Contract” means any contract or other arrangement (other than Loan Documents),  whether written or oral, to which the Parent, the Borrower, or any other Subsidiary is a party 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.     “Material Subsidiary” means (a) (x) any Subsidiary that owns in fee simple, or leases pursuant to  a ground lease, an Unencumbered Property or (y) any Subsidiary (other than an Excluded Subsidiary or  Foreign Subsidiary) to which more than 5% of Total Asset Value is attributable on an individual basis or  (b) any Subsidiary that owns any Equity Interest in any Subsidiary in the foregoing clause (a).     “Moody’s” means Moody’s Investors Service, Inc. and its successors.     “Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument  made by a Person owning an interest in real property granting a Lien on such interest in real property as  security for the payment of Indebtedness of such Person or another Person.     “Mortgage Receivable” means a promissory note secured by a Mortgage of which the Parent, the  Borrower or another Subsidiary is the holder and retains the rights of collection of all payments thereunder.     “Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section  4001(a)(3) of ERISA, subject to Title IV of ERISA, to which any member of the ERISA Group is then  making or accruing an obligation to make contributions or has within the preceding six plan years made  contributions, including for these purposes any Person which ceased to be a member of the ERISA Group  during such six-year period.    “Negative Pledge” means, with respect to a given asset, any provision of a document, instrument  or agreement (other than any Loan Document or Specified Derivatives Contract) which prohibits or  purports to prohibit the creation or assumption of any Lien on such asset as security for Indebtedness of the  Person owning such asset or any other Person; provided, however, that an agreement that conditions a  Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such  Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or  the encumbrance of specific assets, shall not constitute a Negative Pledge.     “Net Indebtedness” means (a) Total Indebtedness minus (b) the amount, if any, by which the  aggregate amount of the Parent’s and its Subsidiaries’ unrestricted and Lien-free cash and Cash Equivalents  exceeds $15,000,000.    





 






  25  LEGAL02/41986661v10  “Net Operating Income” or “NOI” means, for any Property and for a given period, the sum of the  following (without duplication and determined on a consistent basis with prior periods):  (a) gross revenues  received in the ordinary course from such Property minus (b) all expenses paid (excluding interest but  including an appropriate accrual for property taxes and insurance) related to the ownership, operation or  maintenance of such Property, including but not limited to property taxes, assessments and the like,  insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and  general and administrative expenses (including an appropriate allocation for legal, accounting, advertising,  marketing and other expenses incurred in connection with such Property, but specifically excluding general  overhead expenses of the Borrower or any Subsidiary and any property management fees) minus (c) the  FF&E Reserves for such Property as of the end of such period minus (d) the greater of (i) the actual property  management fee paid during such period and (ii)  an imputed management fee in the amount of three percent  (3.0%) of the gross revenues for such Property for such period.     “New Property” means each Property on which a hotel is located acquired by the Parent, the  Borrower, any Subsidiary or Unconsolidated Affiliate from the date of acquisition until the Seasoned Date  in respect thereof; provided, however, that, upon the Seasoned Date for any New Property, such New  Property shall be converted to a Seasoned Property and shall cease to be a New Property.     “New York Mortgage” has the meaning given that term in Section 13.21.(a).     “Non-Defaulting Lender” means a Lender that is not a Defaulting Lender.    “Nonrecourse Indebtedness” means, with respect to a Person, (a) Indebtedness for borrowed  money in respect of which recourse for payment (except for customary exceptions for fraud, misapplication  of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other  similar exceptions to nonrecourse liability) is contractually limited to specific assets of such Person  encumbered by a Lien securing such Indebtedness, (b) obligations in respect of guaranties of customary  exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive  involuntary bankruptcy and other similar exceptions to nonrecourse liability, provided that, once any such  obligation shall cease to be contingent, then such obligation shall cease to be Nonrecourse Indebtedness, or  (c) if such Person is a Single Asset Entity, any Indebtedness for borrowed money of such Person.     “Note” means a Revolving Note, a Swingline Note or a Term Loan Note.     “Notice of Borrowing” means a notice substantially in the form of Exhibit D (or such other form  reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit)  to be delivered to the Administrative Agent pursuant to Section 2.1.(b) or Section 2.2(c), as applicable,  evidencing the Borrower’s request for a borrowing of Loans.     “Notice of Continuation” means a notice substantially in the form of Exhibit E (or such other form  reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit)  to be delivered to the Administrative Agent pursuant to Section 2.9. evidencing the Borrower’s request for  the Continuation of a Term SOFR Loan.     “Notice of Conversion” means a notice substantially in the form of Exhibit F (or such other form  reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit)  to be delivered to the Administrative Agent pursuant to Section 2.10. evidencing the Borrower’s request  for the Conversion of a Loan from one Type to another Type.    “Notice of Swingline Borrowing” means a notice substantially in the form of Exhibit G (or such  other form reasonably acceptable to the Administrative Agent and containing the information required in  





 






  26  LEGAL02/41986661v10  such Exhibit) to be delivered to the Swingline Lender pursuant to Section 2.4.(b) evidencing the Borrower’s  request for a Swingline Loan.     “Obligations” means, individually and collectively:  (a) the aggregate principal balance of, and all  accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other Letter of Credit  Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants and duties of the Borrower and  the other Loan Parties owing to the Administrative Agent, the Issuing Banks or any Lender of every kind,  nature and description, under or in respect of this Agreement or any of the other Loan Documents or the  Fee Letters, including, without limitation, the Fees and indemnification obligations, whether direct or  indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, and  whether or not evidenced by any promissory note.  The term “Obligations” does not include any Specified  Derivatives Obligations.      “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.    “Off-Balance Sheet Obligations” means liabilities and obligations of the Parent, any Subsidiary  or any other Person in respect of “off-balance sheet arrangements” (as defined in Item 303(a)(4)(ii) of  Regulation S-K promulgated under the Securities Act) which the Parent would be required to disclose in  the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of  the Parent’s report on Form 10-Q or Form 10-K (or their equivalents) which the Parent is required to file  with the Securities and Exchange Commission (or any Governmental Authority substituted therefor).     “Operating Property Value” means, at any date of determination, (a) for each New Property that  Borrower elects (until the Seasoned Date), the purchase price paid for such Property determined in  accordance with GAAP; (b) for each Development/Redevelopment Property, GAAP book value for such  Property as of the date of determination; or (c) for each (x) Seasoned Property and (y) New Property that  Borrower irrevocably elects, (A) the Adjusted NOI of such Property for the period of four consecutive fiscal  quarters most recently ending divided by (B) the applicable Capitalization Rate; provided that, with respect  to this clause (c), if the Adjusted NOI for such Property would be less than zero, it shall be deemed to be  zero for purposes of calculating Operating Property Value.       “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 5.8.).    “Ownership Share” means, with respect to any Subsidiary of a Person (other than a Wholly  Owned Subsidiary) or any Unconsolidated Affiliate of a Person, the greater of (a) such Person’s relative  nominal direct and indirect ownership interest (expressed as a percentage) in such Subsidiary or  Unconsolidated Affiliate or (b) such Person’s relative direct and indirect economic interest (calculated as a  percentage) in such Subsidiary or Unconsolidated Affiliate determined in accordance with the applicable  provisions of the declaration of trust, articles or certificate of incorporation, articles of organization,  





 






  27  LEGAL02/41986661v10  partnership agreement, joint venture agreement or other applicable organizational document of such  Subsidiary or Unconsolidated Affiliate.       “Parent” has the meaning given such term in the introductory paragraph hereof.     “Participant” has the meaning given that term in Section 13.5.(d).     “Participant Register” has the meaning given that term in Section 13.5.(d).     “PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law  October 26, 2001)).     “PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.     “Permitted Assumed Debt” has the meaning given that term in Section 10.15.(c)(v).     “Permitted Liens” means, as to any Person:  (a) Liens securing taxes, assessments and other  charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any of  the provisions of ERISA or pursuant to any Environmental Laws) or the claims of materialmen, mechanics,  carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary course  of business, which either (x) are not at the time required to be paid or discharged under Section 8.6. or (y)  relate to claims against such Person and its Subsidiaries not in excess of $2,000,000 in the aggregate at any  one time; (b) Liens consisting of deposits or pledges made, in the ordinary course of business, in connection  with, or to secure payment of, obligations under workers’ compensation, unemployment insurance or  similar Applicable Laws; (c) Liens consisting of encumbrances in the nature of zoning restrictions,  easements, and rights or restrictions of record on the use of real property, which do not materially detract  from the value of such property or impair the intended use thereof in the business of such Person; (d) the  rights of tenants under leases or subleases or licenses not interfering with the ordinary conduct of business  of such Person; (e) Liens in favor of the Administrative Agent for the benefit of the Lenders; (f) Liens in  favor of the Borrower or a Guarantor securing obligations owing by a Subsidiary to the Borrower or a  Guarantor; (g) Liens (i) in existence as of the Effective Date and set forth in Part II of Schedule 7.1.(f) and  (ii) in respect of any New York Mortgage or any mortgage encumbering property located in New York  State securing Indebtedness of the Loan Parties pursuant to provisions in loan documentation governing  such Indebtedness which provisions are substantially similar to Section 13.21. of this Agreement; (h) Liens  arising out of judgments or awards in respect of the Parent or any of its Subsidiaries not constituting an  Event of Default under Section 11.1.(i); (i) any interest or title of a lessor under any lease of equipment (not  constituting a fixture) entered into by the Borrower or any Subsidiary in the ordinary course of its business  and covering only the assets so leased; (j) Liens arising in the ordinary course of business by virtue of any  contractual, statutory or common law provision relating to banker’s liens, rights of set-off or similar rights  and remedies covering deposit or securities accounts (including funds or other assets credited thereto); and  (k) Liens securing the performance of bids, trade contracts, leases, statutory obligations, surety and appeal  bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business  and not securing any Indebtedness.     “Person” means any natural person, corporation, limited partnership, general partnership, joint  stock company, limited liability company, limited liability partnership, joint venture, association, company,  trust, bank, trust company, land trust, business trust or other organization, whether or not a legal entity, or  any other nongovernmental entity, or any Governmental Authority.     “Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)  which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of  





 






  28  LEGAL02/41986661v10  the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the ERISA  Group for employees of any member of the ERISA Group or (b) has at any time within the preceding six  years been maintained, or contributed to, by any Person which was at such time a member of the ERISA  Group for employees of any Person which was at such time a member of the ERISA Group.     “Post-Default Rate” means, in respect of any principal of any Loan or any Reimbursement  Obligation, the rate otherwise applicable plus an additional two percent (2.0%) per annum and with respect  to any other Obligation, a rate per annum equal to the Base Rate as in effect from time to time plus the  Applicable Margin for Revolving Loans that are Base Rate Loans plus two percent (2.0%).     “Preferred Dividends” means, for any period and without duplication, all Restricted Payments  paid during such period on Preferred Equity Interests issued by the Parent or a Subsidiary.  Preferred  Dividends shall not include dividends or distributions (a) paid or payable solely in Equity Interests (other  than Mandatorily Redeemable Stock) payable to holders of such class of Equity Interests, (b) paid or  payable to the Parent or a Subsidiary, or (c) constituting or resulting in the redemption of Preferred Equity  Interests, other than scheduled redemptions not constituting balloon, bullet or similar redemptions in full.     “Preferred Equity Interests” means, with respect to any Person, Equity Interests in such Person  which are entitled to preference or priority over any other Equity Interest in such Person in respect of the  payment of dividends or distribution of assets upon liquidation or both.     “Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to  time by the Lender then acting as the Administrative Agent as its prime rate.  Each change in the Prime  Rate shall be effective as of the opening of business on the day such change in such prime rate occurs.  The  parties hereto acknowledge that the rate announced publicly by the Lender acting as Administrative Agent  as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its  customers or other banks.     “Principal Office” means the office of the Administrative Agent located at 600 South 4th Street,  10th Floor, Minneapolis, Minnesota 55415, or any other subsequent office that the Administrative Agent  shall have specified as the Principal Office by written notice to the Borrower and the Lenders.     “Property” means any parcel of real property owned or leased (in whole or in part) or operated by  the Parent, the Borrower, any other Subsidiary or any Unconsolidated Affiliate of the Parent which is  located in a state of the United States of America or the District of Columbia.     “Property Management Agreement” means, collectively, all agreements entered into by a Loan  Party pursuant to which such Loan Party engages a Person to advise it with respect to the management of  an Unencumbered Property or to provide management services with respect to the same.     “Pro Rata Share” means, as to each Lender, the ratio, expressed as a percentage of (a)(i) the  aggregate amount of such Lender’s Revolving Commitments plus (ii) the aggregate amount of such  Lender’s outstanding Term Loans to (b)(i) the aggregate amount of the Revolving Commitments of all  Lenders plus (ii) the aggregate principal amount of all outstanding Term Loans; provided, however, that if  at the time of determination the Revolving Commitments have been terminated or reduced to zero, the “Pro  Rata Share” of each Lender shall be the ratio, expressed as a percentage of (A) the sum of the aggregate  principal amount of all outstanding Revolving Loans, Term Loans, Swingline Loans and Letter of Credit  Liabilities owing to such Lender as of such date to (B) the sum of the aggregate principal amount of all  outstanding Revolving Loans, Term Loans, Swingline Loans and Letter of Credit Liabilities.  If at the time  of determination the Revolving Commitments have been terminated or reduced to zero and there are no  outstanding Loans or Letter of Credit Liabilities, then the Pro Rata Shares of the Lenders shall be  





 






  29  LEGAL02/41986661v10  determined as of the most recent date on which Revolving Commitments were in effect or Loans or Letters  of Credit Liabilities were outstanding.  For purposes of this definition, a Revolving Lender shall be deemed  to hold a Swingline Loan or a Letter of Credit Liability to the extent such Revolving Lender has acquired  a participation therein under the terms of this Agreement and has not failed to perform its obligations in  respect of such participation.    “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be  interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).     “Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has  total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security  interest becomes effective with respect to such Swap Obligation or such other person as constitutes an  “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated  thereunder and can cause another person to qualify as an “eligible contract participant” at such time by  entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.     “Qualified Plan” means a Benefit Arrangement or Plan that is intended to be tax-qualified under  Section 401(a) of the Internal Revenue Code.     “Qualified REIT Subsidiary” shall have the meaning given to such term in the Internal Revenue  Code.      “Rating Agencies” means Fitch, S&P and Moody’s.     “Recipient” means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, as  applicable.     “Register” has the meaning given that term in Section 13.5.(c).     “Regulatory Change” means, with respect to any Lender, any change effective after the  Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of Governors  of the Federal Reserve System) or the adoption or making after such date of any interpretation, directive or  request applying to a class of banks, including such Lender, of or under any Applicable Law (whether or  not having the force of law and whether or not failure to comply therewith would be unlawful) by any  Governmental Authority or monetary authority charged with the interpretation or administration thereof or  compliance by any Lender with any request or directive regarding capital adequacy or liquidity.   Notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer  Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith  and (b) 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  or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a  “Regulatory Change”, regardless of the date enacted, adopted or issued.       “Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the  Borrower to reimburse the applicable Issuing Bank for any drawing honored by such Issuing Bank under a  Letter of Credit issued by such Issuing Bank.     “REIT” means a Person qualifying for treatment as a “real estate investment trust” under the  Internal Revenue Code.    





 






  30  LEGAL02/41986661v10   “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,  shareholders, directors, officers, employees, agents, counsel, other advisors and representatives of such  Person and of such Person’s Affiliates.     “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve  Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or  the Federal Reserve Bank of New York or any successor thereto.    “Requisite Class Lenders” means, with respect to a Class of Lenders as of any date of  determination, (a) with respect to the Revolving Lenders, (i) Lenders of such Class having more than 51.0%  of the aggregate amount of the Revolving Commitments of such Class or (ii) if the Revolving Commitments  of such Class have been terminated or reduced to zero, Lenders of such Class holding more than 51.0% of  the principal amount of the aggregate outstanding Loans of such Class, Letter of Credit Liabilities and  Swingline Loans, or (b) with respect to the Term Loans, Lenders of such Class holding more than 51.0%  of the principal amount of the aggregate outstanding Loans of such Class; provided that (i) in determining  such percentage at any given time, all then existing Defaulting Lenders of such Class will be disregarded  and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) of such Class  are party to this Agreement, the term “Requisite Class Lenders” shall in no event mean less than two  Lenders of such Class.  For purposes of this definition, a Revolving Lender shall be deemed to hold a  Swingline Loan or a Letter of Credit Liability to the extent such Lender has acquired a participation therein  under the terms of this Agreement and has not failed to perform its obligations in respect of such  participation.     “Requisite Lenders” means, as of any date, (a) Lenders having more than 51.0% of the aggregate  amount of the Revolving Commitments and the outstanding Term Loans of all Lenders, or (b) if the  Revolving Commitments have been terminated or reduced to zero, Lenders holding more than 51.0% of  the principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities; provided that (i) in  determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded  and excluded, and (ii) at all times when two or more Lenders (excluding Defaulting Lenders) are party to  this Agreement, the term “Requisite Lenders” shall in no event mean less than two unaffiliated Lenders.   For purposes of this definition, a Revolving Lender shall be deemed to hold a Swingline Loan or a Letter  of Credit Liability to the extent such Lender has acquired a participation therein under the terms of this  Agreement and has not failed to perform its obligations in respect of such participation.      “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial  Institution, a UK Resolution Authority.    “Responsible Officer” means with respect to the Parent, the Borrower or any Subsidiary, the chief  executive officer, the chief financial officer, chief operating officer or general counsel of the Parent, the  Borrower or such Subsidiary.     “Restricted Payment” means:  (a) any dividend or other distribution, direct or indirect, on account  of any Equity Interest of the Parent, the Borrower or any Subsidiary now or hereafter outstanding, except a  dividend payable solely in Equity Interests; (b) any redemption, conversion, exchange, retirement, sinking  fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interest  of the Parent, the Borrower or any Subsidiary now or hereafter outstanding; and (c) any payment made to  retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire any Equity  Interests of the Parent, the Borrower or any Subsidiary now or hereafter outstanding.    “Revolving Commitment” means, as to each Lender (other than the Swingline Lender), such  Lender’s obligation to make Revolving Loans pursuant to Section 2.1., to issue (in the case of the Issuing  





 






  31  LEGAL02/41986661v10  Banks) and to participate (in the case of the other Revolving Lenders) in Letters of Credit pursuant to  Section 2.3.(i), and to participate in Swingline Loans pursuant to Section 2.4.(e), in an amount up to, but  not exceeding, the amount set forth for such Lender on Schedule I as such Revolving Lender’s “Revolving  Commitment Amount” or as set forth in the applicable Assignment and Assumption or agreement executed  by a Person becoming a Revolving Lender pursuant to Section 2.16., as the same may be reduced from time  to time pursuant to Section 2.12., increased from time to time pursuant to Section 2.16., or increased or  reduced as appropriate to reflect any assignments to or by such Revolving Lender effected in accordance  with Section 13.5.    “Revolving Commitment Percentage” means, as to each Revolving Lender, the ratio, expressed  as a percentage, of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount of  the Revolving Commitments of all Lenders; provided, however, that if at the time of determination the  Revolving Commitments have been terminated or been reduced to zero, the “Revolving Commitment  Percentage” of each Revolving Lender shall be the Revolving Commitment Percentage of such Revolving  Lender in effect immediately prior to such termination or reduction.    “Revolving Credit Exposure” means, as to any Revolving Lender at any time, the aggregate  principal amount at such time of its outstanding Revolving Loans and such Revolving Lender’s  participation in Letter of Credit Liabilities and Swingline Loans at such time.     “Revolving Lender” means a Lender having a Revolving Commitment, or if the Revolving  Commitments have been terminated or reduced to zero, holding any Revolving Loans or Letter of Credit  Liabilities.    “Revolving Loan” means a loan made by a Revolving Lender to the Borrower pursuant to  Section 2.1.(a).    “Revolving Note” means a promissory note of the Borrower substantially in the form of Exhibit C,  payable to the order of a Revolving Lender in a principal amount equal to the amount of such Lender’s  Revolving Commitment.    “Revolving Termination Date” means September 27, 2026, or such later date to which the  Revolving Termination Date may be extended pursuant to Section 2.13.(a).     “Sanctioned Country” means, at any time, a country, region or territory which is itself the subject  or target of any Sanctions (including, without limitation, as of the Effective Date, the Crimea Region of  Ukraine, the so-called Donetsk People’s Republic or Luhansk People’s Republic regions of Ukraine, Cuba,  Iran, North Korea and Syria).    “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of  designated Persons maintained by OFAC (including, without limitation, OFAC’s Specially Designated  Nationals and Blocked Persons List and OFAC’s Consolidated Non-SDN List), the U.S. Department of  State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United  Kingdom, or other relevant sanctions authority, (b) any Person operating, organized or resident in a  Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in  clauses (a) and (b), including a Person that is deemed by OFAC to be a Sanctions target based on the  ownership of such legal entity by Sanctioned Person(s).     “Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondary  sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed,  administered or enforced from time to time by the U.S. government (including those administered by OFAC  





 






  32  LEGAL02/41986661v10  or the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s  Treasury of the United Kingdom, or other relevant sanctions authority with jurisdiction over any Lender,  the Borrower or any of its Subsidiaries or Affiliates.     “Seasoned Date” means the first day on which an acquired Property on which a hotel is located  has been owned for four (4) full fiscal quarters following the date of acquisition by the Parent, the Borrower,  a Subsidiary or an Unconsolidated Affiliate.    “Seasoned Property” means Property on which a hotel is located that is not a New Property or a  Development/Redevelopment Property.     “SEC” means the Securities and Exchange Commission, or any Governmental Authority  succeeding to any of its principal functions.     “Secured Indebtedness” means, with respect to any Person, (a) all Indebtedness of such Person  that is secured in any manner by any Lien on any Property plus (b) such Person’s pro rata share of the  Secured Indebtedness of any of such Person’s Unconsolidated Affiliates; provided that neither any New  York Mortgage nor any mortgage encumbering property located in New York State securing Indebtedness  of the Loan Parties pursuant to provisions in loan documentation governing such Indebtedness which  provisions are substantially similar to Section 13.21 of this Agreement shall constitute Secured  Indebtedness hereunder.     “Secured Recourse Indebtedness” means all Indebtedness (including Guaranties of Secured  Indebtedness) that is Secured Indebtedness and is not Nonrecourse Indebtedness.     “Securities Act” means the Securities Act of 1933, as amended from time to time, together with  all rules and regulations issued thereunder.    “Significant Subsidiary” means any Subsidiary to which more than $30,000,000 of Total Asset  Value is attributable.     “Single Asset Entity” means a Person (other than an individual) that (a) only owns a single  Property; (b) is engaged only in the business of owning, developing and/or leasing such Property; and (c)  receives substantially all of its gross revenues from such Property.  In addition, if the assets of a Person  consist solely of (i) Equity Interests in one or more Single Asset Entities that directly or indirectly own such  single Property and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the  other Single Asset Entity, such Person shall also be deemed to be a Single Asset Entity for purposes of this  Agreement.       “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR  Administrator.    “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).    “Solvent” means, when used with respect to any Person, that (a) the fair value and the fair salable  value of its assets (excluding any Indebtedness due from any Affiliate of such Person) are each in excess  of the fair valuation of its total liabilities (including all contingent liabilities computed at the amount which,  in light of all the facts and circumstances existing at such time, represents the amount that could reasonably  be expected to become an actual and matured liability); (b) such Person is able to pay its debts or other  obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably small  to carry on its business and all business in which it proposes to be engaged.  





 






  33  LEGAL02/41986661v10     “Specified Derivatives Contract” means any Derivatives Contract, together with any Derivatives  Support Document relating thereto, that is made or entered into at any time, or in effect at any time now or  hereafter, whether as a result of an assignment or transfer or otherwise, between the Parent, the Borrower  or any Subsidiary of the Parent and an Specified Derivatives Provider.       “Specified Derivatives Obligations” means all indebtedness, liabilities, obligations, covenants  and duties of the Parent, the Borrower or any Subsidiaries under or in respect of any Specified Derivatives  Contract, whether direct or indirect, absolute or contingent, due or not due, liquidated or unliquidated, and  whether or not evidenced by any written confirmation.     “Specified Derivatives Provider” means any Lender, or any Affiliate of a Lender that is a party  to a Derivatives Contract at the time the Derivatives Contract is entered into.     “SPTs” has the meaning given to that term in in Section 13.6.(d).     “S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business and its  successors.      “Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of Credit  from time to time, as such amount may be increased or reduced from time to time in accordance with the  terms of such Letter of Credit.     “Subsidiary” means, for any Person, any corporation, partnership, limited liability company or  other entity of 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, limited liability company or other entity (without regard to the occurrence of any  contingency) is at the time directly or indirectly owned or controlled by such Person or one or more  Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person, and shall  include all Persons the accounts of which are consolidated with those of such Person pursuant to GAAP.    “Sustainability Assurance Provider” means an external auditing firm or sustainability assurance  provider of recognized national standing reasonably satisfactory to the Administrative Agent, independent  of the Parent, the Borrower and the Subsidiaries, with relevant expertise in evaluating KPIs with respect to  ESG targets.    “Sustainability Linked Loan Principles” means the Sustainability Linked Loan Principles as  most recently published by the Loan Market Association, the Asia Pacific Loan Market Association, and  the Loan Syndications & Trading Association.    “Sustainability Structuring Agents” shall mean each of Wells Fargo and PNC Bank, National  Association in its capacity as such.    “Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under  any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of  the Commodity Exchange Act.    “Swingline Commitment” means the Swingline Lender’s obligation to make Swingline Loans  pursuant to Section 2.4.  in an amount up to, but not exceeding the amount set forth in the first sentence of  Section 2.4.(a), as such amount may be reduced from time to time in accordance with the terms hereof.    





 






  34  LEGAL02/41986661v10   “Swingline Lender” means Wells Fargo Bank, National Association, together with its successors  and assigns.     “Swingline Loan” means a loan made by the Swingline Lender to the Borrower pursuant to  Section 2.4.     “Swingline Maturity Date” means the date which is 7 Business Days prior to the Revolving  Termination Date.     “Swingline Note” means the promissory note of the Borrower substantially in the form of  Exhibit H, payable to the order of the Swingline Lender in a principal amount equal to the amount of the  Swingline Commitment as originally in effect and otherwise duly completed.     “Taxable REIT Subsidiary” means any corporation (other than a REIT) in which the Parent  directly or indirectly owns stock and the Parent and such corporation have jointly elected that such  corporation be treated as a taxable REIT subsidiary of the Parent under and pursuant to Section 856 of the  Internal Revenue Code.     “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.     “Termination Date” means (a) with respect to the Revolving Loans and the Revolving  Commitments, the Revolving Termination Date, (b) with respect to the Term 1 Loans, the Term 1 Loan  Maturity Date and (c) with respect to the Term 2 Loans, the Term 2 Loan Maturity Date.     “Term 1 Loan” means a loan made by a Term Loan Lender to the Borrower pursuant to Section  2.2.(a) as such loan may be increased pursuant to Section 2.16.    “Term 1 Loan Commitment” means, as to each Term 1 Loan Lender, such Lender’s obligation  to make Term 1 Loans on the Effective Date in an amount up to, but not exceeding, the amount set forth  for such Lender on Schedule I as such Lender’s “Term 1 Loan Commitment Amount”.     “Term 1 Loan Lender” means a Lender having a Term 1 Loan Commitment, or if the Term 1  Loan Commitments have been terminated, a Lender holding a Term 1 Loan.    “Term 1 Loan Maturity Date” means January 3, 2028.    “Term 1 Loan Note” means a promissory note of the Borrower substantially in the form of  Exhibit L, payable to the order of a Term 1 Loan Lender in a principal amount equal to the amount of such  Term 1 Loan Lender’s Term 1 Loan Commitment or, if issued after the Effective Date, the amount of such  Term 1 Loan Lender’s Term 1 Loans.    “Term 2 Loan” means a loan made by a Term Loan Lender to the Borrower pursuant to Section  2.2.(b) as such loan may be increased pursuant to Section 2.16.     “Term 2 Loan Commitment” means, as to each Term 2 Loan Lender, such Lender’s obligation  to make Term 2 Loans on the Effective Date in an amount up to, but not exceeding, the amount set forth  for such Lender on Schedule I as such Lender’s “Term 2 Loan Commitment Amount”.    





 






  35  LEGAL02/41986661v10   “Term 2 Loan Lender” means a Lender having a Term 2 Loan Commitment, or if the Term 2  Loan Commitments have been terminated, a Lender holding a Term 2 Loan.    “Term 2 Loan Maturity Date” means January 3, 2025, or such later date to which the Term 2  Loan Maturity Date may be extended pursuant to Section 2.13.(b).       “Term 2 Loan Note” means a promissory note of the Borrower substantially in the form of  Exhibit M, payable to the order of a Term 2 Loan Lender in a principal amount equal to the amount of such  Term 2 Loan Lender’s Term 2 Loan Commitment or, if issued after the Effective Date, the amount of such  Term 2 Loan Lender’s Term 2 Loans.      “Term Loan” means a Term 1 Loan and a Term 2 Loan.     “Term Loan Lender” means a Term 1 Loan Lender and a Term 2 Loan Lender.     “Term Loan Note” means a Term 1 Loan Note and a Term 2 Loan Note.     “Term SOFR” means,     (a) for any calculation with respect to a Term SOFR Loan, the Term SOFR Reference  Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic  Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior  to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator;  provided, however, that if as of 5:00 p.m. (Eastern time) on any Periodic Term SOFR  Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published  by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term  SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate  for such tenor as published by the Term SOFR Administrator on the first preceding U.S.  Government Securities Business Day for which such Term SOFR Reference Rate for such tenor  was published by the Term SOFR Administrator so long as such first preceding U.S. Government  Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior  to such Periodic Term SOFR Determination Day, and    (b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR  Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR  Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day,  as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00  p.m. (Eastern time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference  Rate for the applicable tenor has not been published by the Term SOFR Administrator and a  Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred,  then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term  SOFR Administrator on the first preceding U.S. Government Securities Business Day for which  such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator  so long as such first preceding U.S. Government Securities Business Day is not more than three (3)  U.S. Government Securities Business Days prior to such Base Rate SOFR Determination Day.    “Term SOFR Adjustment” means, for any calculation with respect to a Base Rate Loan or a Term  SOFR Loan, 0.10% per annum.    





 






  36  LEGAL02/41986661v10   “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or  a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its  reasonable discretion).     “Term SOFR Loan” means any Loan bearing interest at a rate based on Adjusted Term SOFR,  (other than pursuant to clause (c) of the definition of “Base Rate”).     “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.    “Titled Agents” has the meaning given that term in Section 12.9.     “Total Asset Value” means the sum of all of the following of the Parent, the Borrower and their  respective Subsidiaries (without duplication) on a consolidated basis determined in accordance with GAAP  applied on a consistent basis:  (a) the Operating Property Value of all Properties of the Parent, the Borrower  and their Subsidiaries on which a hotel is located, plus (b) the book value of Unimproved Land, Mortgage  Receivables and other promissory notes, plus (c) the Borrower’s Ownership Share of the preceding items  for its Unconsolidated Affiliates, plus (d) the contractual purchase price of any real property subject to a  purchase obligation, repurchase obligation or forward commitment which at such time could be specifically  enforced by the seller of such real property, but only to the extent such obligations are included in the  Indebtedness of the Parent, the Borrower and their respective Subsidiaries on a consolidated basis, plus  (e) in the case of any real property subject to a purchase obligation, repurchase obligation or forward  commitment which at such time could not be specifically enforced by the seller of such real property, the  aggregate amount of due diligence deposits, earnest money payments and other similar payments made  under the applicable contract which, at such time, would be subject to forfeiture upon termination of the  contract, but only to the extent such amounts are included in the Indebtedness of the Parent, the Borrower  and their respective Subsidiaries on a consolidated basis minus (f) to the extent otherwise included in Total  Asset Value any deferred financing costs.  For purposes of determining Total Asset Value, (i) to the extent  the amount of Total Asset Value attributable to Unimproved Land would exceed 5% of Total Asset Value,  such excess shall be excluded, (ii) to the extent the amount of Total Asset Value attributable to Mortgage  Notes Receivables and other promissory notes would exceed 15% of Total Asset Value, such excess shall  be excluded, (iii) to the extent the amount of Total Asset Value attributable to Investments in  Unconsolidated Affiliates and other Persons that are not Subsidiaries would exceed 10% of Total Asset  Value, such excess shall be excluded, (iv) to the extent the amount of Total Asset Value attributable to  Development/Redevelopment Properties would exceed 15% of Total Asset Value, such excess shall be  excluded, (v) to the extent the amount of Total Asset Value attributable to Tranquility Bay would exceed  5% of Total Asset Value, such excess shall be excluded and (vi) to the extent the amount of Total Asset  Value attributable to the items described in clauses (i) through (iv) would exceed 35% of Total Asset Value,  such excess shall be excluded.  The percentage of Total Asset Value attributable to a given Subsidiary shall  be equal to the ratio expressed as a percentage of (x) an amount equal to Total Asset Value calculated solely  with respect to assets owned directly by such Subsidiary to (y) Total Asset Value.  For purposes of  determining Total Asset Value, Adjusted NOI from Properties disposed of by the Parent, the Borrower or  any Subsidiary during the immediately preceding period of four consecutive fiscal quarters of the Borrower  shall be excluded.       “Total Indebtedness” means all Indebtedness of the Parent, the Borrower and all other  Subsidiaries of the Parent determined on a consolidated basis, minus, to the extent otherwise included in  such Indebtedness, deferred financing costs.       “Tranquility Bay” means Tranquility Bay Beachfront Resort located in Marathon, Florida and  owned by DRH Tranquility, LLC, a Delaware limited liability company.    





 






  37  LEGAL02/41986661v10   “Type” with respect to any Loan, refers to whether such Loan or portion thereof is a Term SOFR  Loan or a Base Rate Loan.     “UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.    “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the  PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation  Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time)  promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions  and investment firms, and certain Affiliates of such credit institutions or investment firms.     “UK Resolution Authority” means the Bank of England or any other public administrative  authority having responsibility for the resolution of any UK Financial Institution.     “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the  Benchmark Replacement Adjustment.      “Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such  Person holds an Investment, which Investment is accounted for in the financial statements of such Person  on an equity basis of accounting and whose financial results would not be consolidated under GAAP with  the financial results of such Person on the consolidated financial statements of such Person.     “Unencumbered Leverage Ratio” means the ratio, expressed as a percentage, of (i) the aggregate  outstanding principal amount of Indebtedness (excluding Nonrecourse Indebtedness and Indebtedness to  the extent owing among the Parent and/or any of its Subsidiaries but including Secured Recourse  Indebtedness and the aggregate principal amount of all Loans and the aggregate amount of all Letter of  Credit Liabilities) of the Parent and the Ownership Share of all such Indebtedness of its Subsidiaries to  (ii) Unencumbered Property Value.     “Unencumbered Leverage Ratio Surge Period” has the meaning given to that term in Section  10.1.(e).    “Unencumbered Property” means an Eligible Property.  A Property shall cease to be an  Unencumbered Property if at any time such Property shall cease to be an Eligible Property unless otherwise  agreed by the Requisite Lenders.     “Unencumbered Property Value” means, at any time of determination, the aggregate Operating  Property Values of the Unencumbered Properties at such time.  For purposes of this definition, the Adjusted  NOI for any Unencumbered Property shall be reduced by an amount equal to the greater of (x) the amount  by which the Adjusted NOI of such Unencumbered Property would exceed 30.0% of the aggregate Adjusted  NOI of all Unencumbered Properties and (y) the amount by which the Adjusted NOI of Unencumbered  Properties located in the same metropolitan statistical area as such Property would exceed 40.0% of the  aggregate Adjusted NOI of all Unencumbered Properties.  In addition, to the extent that Unencumbered  Property Value attributable to (A) Properties leased under Ground Leases would exceed 33.0% of  Unencumbered Property Value or (B) Tranquility Bay would exceed 5.0% of Unencumbered Property  Value, in each case, such excess shall be excluded.  For purposes of determining Unencumbered Property  Value, Adjusted NOI from Properties disposed of by the Borrower or any Subsidiary during the  immediately preceding period of four consecutive fiscal quarters of the Borrower shall be excluded.       “Unimproved Land” means land on which no development (other than improvements that are not  material and are temporary in nature) has occurred and for which no development is scheduled in the  





 






  38  LEGAL02/41986661v10  following 12 months.  Unimproved Land shall not include any undeveloped parcels of a Property that has  been developed unless and until the Borrower intends to develop such parcel.     “Unsecured Indebtedness” means with respect to a Person as of any given date, (a) the aggregate  principal amount of (a) all Indebtedness of such Person outstanding at such date that is not Secured  Indebtedness plus (b) all Nonrecourse Indebtedness which such Person has Guaranteed but only to the  extent of such Guaranty (excluding obligations in respect of Guaranties of customary exceptions to  nonrecourse liability).    “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a  Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that  the fixed income departments of its members be closed for the entire day for purposes of trading in United  States government securities; provided, that for purposes of notice requirements in Sections 2.1.(b), 2.2.(c),  2.4(b), 2.8. 2.9., and 2.10, in each case, such day is also a Business Day.     “U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)  of the Internal Revenue Code.     “U.S. Tax Compliance Certificate” has the meaning assigned to such term in  Section 3.10.(g)(ii)(B)(III).     “Wells Fargo” means Wells Fargo Bank, National Association, and its successors and assigns.     “Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the  Equity Interests (other than, in the case of a corporation, directors’ qualifying shares) are at the time directly  or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person or by  such Person and one or more other Subsidiaries of such Person.     “Withdrawal Liability” means any liability as a result of a complete or partial withdrawal from a  Multiemployer Plan as such terms are defined in Part I of Subtitle E of Title IV of ERISA.     “Withholding Agent” means (a) the Borrower, (b) any other Loan Party and (c) the Administrative  Agent, as applicable.     “Write-Down and Conversion Powers” means (a) 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, and (b) with respect to the United Kingdom, any powers  of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change  the form of a liability of any UK Financial Institution or any contract or instrument under which that liability  arises, to convert all or part of that liability into shares, securities or obligations of such Person or any other  Person, to provide that any such contract or instrument is to have effect as if a right had been exercised  under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In  Legislation that are related to or ancillary to any of those powers.    Section 1.2.  General; References to Pacific Time.   Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted or  determined in accordance with GAAP; provided that, 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 the Requisite Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall  





 






  39  LEGAL02/41986661v10  negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of  such change in GAAP (subject to the approval of the appropriate Lenders pursuant to Section 13.6.);  provided further that, until so amended, (i) such ratio or requirement shall continue to be computed in  accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the  Administrative Agent and the Lenders financial statements and other documents required under this  Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such  ratio or requirement made before and after giving effect to such change in GAAP.  References in this  Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules” are to sections, articles, exhibits and  schedules herein and hereto unless otherwise indicated.  References in this Agreement to any document,  instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall  include all documents, instruments or agreements issued or executed in replacement thereof, to the extent  permitted hereby and (c) shall mean such document, instrument or agreement, or replacement or  predecessor thereto, as amended, supplemented, restated or otherwise modified from time to time to the  extent not prohibited hereby and in effect at any given time.  Wherever from the context it appears  appropriate, each term stated in either the singular or plural shall include the singular and plural, and  pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and  the neuter.  Except as expressly provided otherwise in any Loan Document, (i) any reference to any law  (including, without limitation, Anti-Corruption Laws, Anti-Money Laundering Laws, the Bankruptcy  Code, the Internal Revenue Code, ERISA, the PATRIOT Act, the UCC or the Investment Company Act)  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, extended, restated, replaced or supplemented from time to time and  (ii) any reference to any Person shall be construed to include such Person’s permitted successors and  permitted assigns.  Unless explicitly set forth to the contrary, a reference to “Subsidiary” means a Subsidiary  of the Parent or a Subsidiary of such Subsidiary and a reference to an “Affiliate” means a reference to an  Affiliate of the Parent.  Titles and captions of Articles, Sections, subsections and clauses in this Agreement  are for convenience only, and neither limit nor amplify the provisions of this Agreement.  Unless otherwise  indicated, all references to time are references to Pacific time.  Notwithstanding the first sentence of this  Section 1.2., (i) the calculation of liabilities shall not include any fair value adjustments to the carrying  value of liabilities to record such liabilities at fair value pursuant to electing the fair value option election  under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and  Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial  liabilities and (ii) all accounting terms, ratios and calculations shall be determined without giving effect to  Accounting Standards Codification 842 (or any other Accounting Standards Codification or Financial  Accounting Standard having a similar result or effect) (and related interpretations) to the extent any lease  (or similar arrangement conveying the right to use) would be required to be treated as a capital lease  thereunder where such lease (or similar arrangement) would have been treated as an operating lease under  GAAP as in effect immediately prior to the effectiveness of the Accounting Standards Codification 842,  provided that the Borrower shall provide to the Administrative Agent and the Lenders financial statements  and other documents required under this Agreement or as reasonably requested hereunder setting forth a  reconciliation between calculations of such ratio or requirement made in accordance with  GAAP and made  without giving effect to Account Standards Codification 842.    Section 1.3.  Financial Attributes of Non-Wholly Owned Subsidiaries.   When determining compliance by the Borrower or the Parent with any financial covenant contained  in any of the Loan Documents, only the Ownership Share of the Borrower or the Parent, as applicable, of  the financial attributes of a Subsidiary that is not a Wholly Owned Subsidiary shall be included.    





 






  40  LEGAL02/41986661v10  Section 1.4.  Rates.  The Administrative Agent does not warrant or accept any responsibility for, and shall not have any  liability with respect to, (a) the continuation of, administration of, submission of, calculation of or any other  matter related to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any  component definition thereof or rates referred to in the definition thereof, or with respect to any alternative,  successor or replacement rate thereto (including any Benchmark Replacement), including whether the  composition or characteristics of any such alternative, successor or replacement rate (including any  Benchmark Replacement), as it may or may not be adjusted pursuant to Section 5.2.(b), will be similar to,  or produce the same value or economic equivalence of, or have the same volume or liquidity as, SOFR, the  Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its  discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming  Changes.  The Administrative Agent and its Affiliates or other related entities may engage in transactions  that affect the calculation of SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR, or Term SOFR,  any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant  adjustments thereto and such transactions may be adverse to the Borrower.  The Administrative Agent may  select information sources or services in its reasonable discretion to ascertain, SOFR, the Term SOFR  Reference Rate, Adjusted Term SOFR or Term SOFR, or any other Benchmark, any component definition  thereof or rates referred to in the definition thereof, in each case pursuant to the terms of this Agreement,  and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any  kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or  expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation  of any such rate (or component thereof) provided by any such information source or service.    Section 1.5.  Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division  under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right,  obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person,  then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b)  if any new Person comes into existence, such new Person shall be deemed to have been organized on the  first date of its existence by the holders of its equity interests at such time.    ARTICLE II. CREDIT FACILITY  Section 2.1.  Revolving Loans.   (a) Making of Revolving Loans.  Subject to the terms and conditions set forth in this  Agreement, including without limitation, Section 2.15., each Revolving Lender severally and not jointly  agrees to make Revolving Loans to the Borrower in Dollars during the period from and including the  Effective Date to but excluding the Revolving Termination Date, in an aggregate principal amount at any  one time outstanding up to, but not exceeding, such Lender’s Revolving Commitment.  Each borrowing of  Revolving Loans that are to be (i) Base Rate Loans shall be in an aggregate minimum amount of $500,000  and integral multiples of $100,000 in excess thereof and (ii) Term SOFR Loans shall be in an aggregate  minimum amount of $1,000,000 and integral multiples of $100,000 in excess thereof.  Notwithstanding the  immediately preceding two sentences but subject to Section 2.15., a borrowing of Revolving Loans may be  in the aggregate amount of the unused Revolving Commitments.  Within the foregoing limits and subject  to the terms and conditions of this Agreement, the Borrower may borrow, repay and reborrow Revolving  Loans.    





 






  41  LEGAL02/41986661v10   (b) Requests for Revolving Loans. Not later than 9:00 a.m. Pacific time at least one Business  Day prior to a borrowing of Revolving Loans that are to be Base Rate Loans and not later than 9:00 a.m.  Pacific time at least three Business Days prior to a borrowing of Revolving Loans that are to be Term SOFR  Loans, the Borrower shall deliver to the Administrative Agent a Notice of Borrowing.  Each Notice of  Borrowing shall specify the aggregate principal amount of the Revolving Loans to be borrowed, the date  such Revolving Loans are to be borrowed (which must be a Business Day), a general description of the use  of the proceeds of such Revolving Loans, the Type of the requested Revolving Loans, and if such Revolving  Loans are to be Term SOFR Loans, the initial Interest Period for such Revolving Loans.  Each Notice of  Borrowing shall be irrevocable once given and binding on the Borrower.  Prior to delivering a Notice of  Borrowing, the Borrower may (without specifying whether a Revolving Loan will be a Base Rate Loan or  a Term SOFR Loan) request that the Administrative Agent provide the Borrower with the most recent Term  SOFR available to the Administrative Agent.  The Administrative Agent shall provide such quoted rate to  the Borrower on the date of such request or as soon as possible thereafter.     (c) Funding of Revolving Loans.  Promptly after receipt of a Notice of Borrowing under the  immediately preceding subsection (b), the Administrative Agent shall notify each Revolving Lender of the  proposed borrowing.  Each Revolving Lender shall deposit an amount equal to the Revolving Loan to be  made by such Revolving Lender to the Borrower with the Administrative Agent at the Principal Office, in  immediately available funds not later than 9:00 a.m. Pacific time on the date of such proposed Revolving  Loans.  Subject to fulfillment of all applicable conditions set forth herein, the Administrative Agent shall  make available to the Borrower in the account specified in the Disbursement Instruction Agreement, not  later than 12:00 noon Pacific time on the date of the requested borrowing of Revolving Loans, the proceeds  of such amounts received by the Administrative Agent.       (d) Assumptions Regarding Funding by Revolving Lenders.  With respect to Revolving Loans  to be made after the Effective Date, unless the Administrative Agent shall have been notified by any  Revolving Lender that such Lender will not make available to the Administrative Agent a Revolving Loan  to be made by such Lender in connection with any borrowing, the Administrative Agent may assume that  such Lender will make the proceeds of such Revolving Loan available to the Administrative Agent in  accordance with this Section, and the Administrative Agent may (but shall not be obligated to), in reliance  upon such assumption, make available to the Borrower the amount of such Revolving Loan to be provided  by such Lender.  In such event, if such Lender does not make available to the Administrative Agent the  proceeds of such Revolving Loan, then such Lender and the Borrower severally agree to pay to the  Administrative Agent on demand the amount of such Revolving Loan with interest thereon, for each day  from and including the date such Revolving Loan is made available to the Borrower but excluding the date  of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the  greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with  banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the  Borrower, the interest rate applicable to Base Rate Loans that are Revolving Loans.  If the Borrower and  such Lender shall pay the amount of such interest to the Administrative Agent for the same or overlapping  period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by  the Borrower for such period.  If such Lender pays to the Administrative Agent the amount of such  Revolving Loan, the amount so paid shall constitute such Lender’s Revolving Loan included in the  borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have  against a Revolving Lender that shall have failed to make available the proceeds of a Revolving Loan to be  made by such Lender.    Section 2.2.  Term Loans.   (a)  Term 1 Loans.  Subject to the terms and conditions set forth in this Agreement, on the  Effective Date, each Term 1 Loan Lender severally and not jointly agrees to make a Term 1 Loan to the  





 






  42  LEGAL02/41986661v10  Borrower in Dollars in the principal amount set forth for such Term 1 Loan Lender on Schedule I as such  Term 1 Loan Lender’s “Term 1 Loan Commitment Amount”.  Upon the funding by each Term 1 Loan  Lender of its Term 1 Loan on the Effective Date, the Term 1 Loan Commitment of such Term 1 Loan  Lender shall terminate whether or not the full amount of the Term 1 Loan Commitments are funded on such  date.  Any portion of a Term 1 Loan that is repaid or prepaid may not be reborrowed.  Additional Term 1  Loans shall be made in accordance with Section 2.16.     (b) Term 2 Loans. Subject to the terms and conditions set forth in this Agreement, on the  Effective Date, each Term 2 Loan Lender severally and not jointly agrees to make a Term 2 Loan to the  Borrower in Dollars in the principal amount set forth for such Term 2 Loan Lender on Schedule I as such  Term 2 Loan Lender’s “Term 2 Loan Commitment Amount”.  Upon the funding by each Term 2 Loan  Lender of its Term 2 Loan on the Effective Date, the Term 2 Loan Commitment of such Term 2 Loan  Lender shall terminate whether or not the full amount of the Term 2 Loan Commitments are funded on such  date.  Any portion of a Term 2 Loan that is repaid or prepaid may not be reborrowed.  Additional Term 2  Loans shall be made in accordance with Section 2.16.     (c) Request for Term Loans.  The Borrower shall deliver to the Administrative Agent a Notice  of Borrowing requesting that the Term Loan Lenders make Term Loans on the Effective Date. Such Notice  of Borrowing shall be delivered to the Administrative Agent not later than 9:00 a.m. Pacific time at least 1  Business Day prior to the Effective Date for Term Loans that are to be Base Rate Loans and not later than  9:00 a.m. Pacific time at least 3 Business Days prior to the Effective Date for Term Loans that are to be  Term SOFR Loans. Such Notice of Borrowing shall specify the aggregate principal amount of the Term 1  Loans and the Term 2 Loans to be borrowed, the Type of the requested Term 1 Loans and requested Term  2 Loans and if such Term 1 Loans or such Term 2 Loans are to be Term SOFR Loans, the initial Interest  Period for such Term Loans.     (d) Funding of Term Loans.  Promptly after receipt of the Notice of Borrowing under the  immediately preceding subsection (b), the Administrative Agent shall notify each Term 1 Loan Lender and  Term 2 Loan Lender of the proposed borrowing.  Each Term 1 Loan Lender and each Term 2 Loan Lender  shall deposit an amount equal to the Term 1 Loan and/or Term 2 Loan to be made by such Term Loan  Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately available  funds not later than 9:00 a.m. Pacific time on the Effective Date.  Subject to fulfillment of all applicable  conditions set forth herein, the Administrative Agent shall make available to the Borrower in the account  specified in the Disbursement Instruction Agreement, the proceeds of such amounts received by the  Administrative Agent on the Effective Date.    (e) Assumptions Regarding Funding by Term Loan Lenders.  With respect to Term Loans to  be made on the Effective Date, unless the Administrative Agent shall have been notified by any Term Loan  Lender that such Lender will not make available to the Administrative Agent a Term Loan to be made by  such Lender, the Administrative Agent may assume that such Lender will make the proceeds of such Term  Loan available to the Administrative Agent in accordance with this Section, and the Administrative Agent  may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the  amount of such Term Loan to be provided by such Lender.  In such event, if such Lender does not make  available to the Administrative Agent the proceeds of such Term Loan, then such Lender and the Borrower  severally agree to pay to the Administrative Agent on demand the amount of such Term Loan with interest  thereon, for each day from and including the date such Term Loan is made available to the Borrower but  excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by  such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in  accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be  made by the Borrower, the interest rate applicable to Base Rate Loans that are Term Loan.  If the Borrower  and such Lender shall pay the amount of such interest to the Administrative Agent for the same or  





 






  43  LEGAL02/41986661v10  overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such  interest paid by the Borrower for such period.  If such Lender pays to the Administrative Agent the amount  of such Term Loan, the amount so paid shall constitute such Lender’s Term Loan included in the borrowing.   Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a  Term Loan Lender that shall have failed to make available the proceeds of a Term Loan to be made by such  Lender.     Section 2.3.  Letters of Credit.   (a) Letters of Credit.  Subject to the terms and conditions of this Agreement, including without  limitation, Section 2.15., each of the Issuing Banks, on behalf of the Revolving Lenders, agrees to issue for  the account of the Borrower during the period from and including the Effective Date to, but excluding, the  date 30 days prior to the Revolving Termination Date, one or more standby letters of credit (each a “Letter  of Credit”) up to a maximum aggregate Stated Amount at any one time outstanding not to exceed  $40,000,000, as such amount may be reduced from time to time in accordance with the terms hereof (the  “L/C Commitment Amount”); provided, that an Issuing Bank shall not be obligated to issue any Letter of  Credit if (w) after giving effect to such issuance, the aggregate Stated Amount of outstanding Letters of  Credit issued by such Issuing Bank would exceed the lesser of (i) one-fourth of the L/C Commitment  Amount and (ii) the Revolving Commitment of such Issuing Bank in its capacity as a Revolving Lender,  (x) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to  enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or any Applicable Law with respect  to such Issuing Bank or any request or directive (whether or not having the force of law) from any  Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing  Bank refrain from, the issuance of letters of credit generally or the Letter of Credit in particular, (y) the  beneficiary of such Letter of Credit is a Sanctioned Person or (z) such issuance would conflict with, or  cause such Issuing Bank or any Revolving Lender to exceed any limits imposed by, any Applicable Law.     (b) Terms of Letters of Credit.  At the time of issuance, the amount, form, terms and conditions  of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to approval by the  applicable Issuing Bank and the Borrower.  Notwithstanding the foregoing, in no event may (i) the  expiration date of any Letter of Credit extend beyond the date that is 30 days prior to the Revolving  Termination Date, or (ii) any Letter of Credit have an initial duration in excess of one year; provided,  however, a Letter of Credit may contain a provision providing for the automatic extension of the expiration  date in the absence of a notice of non-renewal from the applicable Issuing Bank but in no event shall any  such provision permit the extension of the expiration date of such Letter of Credit beyond the date that is  thirty (30) days prior to the Revolving Termination Date; provided, further, that a Letter of Credit (any such  Letter of Credit being referred to as an “Extended Letter of Credit”) may, as a result of its express terms or  as the result of the effect of an automatic extension provision, have an expiration date of not more than one  year beyond the date that is 30 days prior to the Revolving Termination Date so long as the Borrower  delivers to the Administrative Agent for its benefit and the benefit of the applicable Issuing Bank and the  Revolving Lenders no later than 30 days prior to the Revolving Termination Date Cash Collateral for such  Letter of Credit for deposit into the Letter of Credit Collateral Account in an amount equal to the Stated  Amount of such Letter of Credit; provided, that the obligations of the Borrower under this Section in respect  of such Extended Letters of Credit shall survive the termination of this Agreement and shall remain in effect  until no such Extended Letters of Credit remain outstanding.  If the Borrower fails to provide Cash  Collateral with respect to any Extended Letter of Credit by the date 30 days prior to the Revolving  Termination Date, such failure shall be treated as a drawing under such Extended Letter of Credit (in an  amount equal to the maximum Stated Amount of such Letter of Credit), which shall be reimbursed (or  participations therein funded) by the Revolving Lenders in accordance with the immediately following  subsections (i) and (j), with the proceeds being utilized to provide Cash Collateral for such Letter of Credit.   





 






  44  LEGAL02/41986661v10  The initial Stated Amount of each Letter of Credit shall be at least $100,000 (or such lesser amount as may  be reasonably acceptable to the Administrative Agent and the applicable Issuing Bank).      (c) Requests for Issuance of Letters of Credit.  The Borrower shall give the Issuing Bank  selected by the Borrower to issue a Letter of Credit and the Administrative Agent written notice at least 5  Business Days prior to the requested date of issuance of a Letter of Credit, such notice to describe in  reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations  proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such  Letter of Credit the proposed (i) initial Stated Amount, (ii) beneficiary, and (iii) expiration date. The  Borrower shall also execute and deliver such customary applications and agreements for standby letters of  credit, and other forms as requested from time to time by the applicable Issuing Bank.  Provided the  Borrower has given the notice prescribed by the first sentence of this subsection and delivered such  application and agreements referred to in the preceding sentence, subject to the other terms and conditions  of this Agreement, including the applicable Issuing Banks’s approval of the form of the requested Letter of  Credit pursuant to Section 2.3.(b) and the satisfaction of any applicable conditions precedent set forth in  Article VI, the applicable Issuing Bank shall issue the requested Letter of Credit on the requested date of  issuance for the benefit of the stipulated beneficiary but in no event prior to the date 5 Business Days  following the date after which such Issuing Bank has received all of the items required to be delivered to it  under this subsection.  References herein to “issue” and derivations thereof with respect to Letters of Credit  shall also include extensions or modifications of any outstanding Letters of Credit, unless the context  otherwise requires.  Upon the written request of the Borrower, the Issuing Banks shall deliver to the  Borrower a copy of each Letter of Credit issued by such Issuing Bank within a reasonable time after the  date of issuance thereof.  To the extent any term of a Letter of Credit Document is inconsistent with a term  of any Loan Document, the term of such Loan Document shall control.     (d) Reimbursement Obligations.  Upon receipt by an Issuing Bank from the beneficiary of a  Letter of Credit issued by such Issuing Bank of any demand for payment under such Letter of Credit and  such Issuing Banks’s determination that such demand for payment complies with the requirements of such  Letter of Credit, such Issuing Bank shall promptly notify the Borrower and the Administrative Agent of the  amount to be paid by such Issuing Bank as a result of such demand and the date on which payment is to be  made by such Issuing Bank to such beneficiary in respect of such demand; provided, however, that such  Issuing Banks’s failure to give, or delay in giving, such notice shall not discharge the Borrower in any  respect from the applicable Reimbursement Obligation.  The Borrower hereby absolutely, unconditionally  and irrevocably agrees to pay and reimburse the Issuing Banks for the amount of each demand for payment  under a Letter of Credit on or prior to the date on which payment is to be made by the applicable Issuing  Bank to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind  (other than notice as provided in this subsection).  Upon receipt by an Issuing Bank of any payment in  respect of any Reimbursement Obligation, such Issuing Bank shall promptly pay to each Revolving Lender  that has acquired a participation therein under the second sentence of the immediately following subsection  (i) such Lender’s Revolving Commitment Percentage of such payment.     (e) Manner of Reimbursement.  Upon its receipt of a notice referred to in the immediately  preceding subsection (d), the Borrower shall advise the Administrative Agent and the applicable Issuing  Bank whether or not the Borrower intends to borrow hereunder to finance its obligation to reimburse such  Issuing Bank for the amount of the related demand for payment and, if it does, the Borrower shall submit a  timely request for such borrowing as provided in the applicable provisions of this Agreement.  If the  Borrower fails to so advise the Administrative Agent and the applicable Issuing Bank, or if the Borrower  fails to reimburse such Issuing Bank for a demand for payment under a Letter of Credit by the date of such  payment, the failure of which such Issuing Bank shall promptly notify the Administrative Agent, then (i) if  the applicable conditions contained in Article VI. would permit the making of Revolving Loans, the  Borrower shall be deemed to have requested a borrowing of Revolving Loans (which shall be Base Rate  





 






  45  LEGAL02/41986661v10  Loans) in an amount equal to the unpaid Reimbursement Obligation and the Administrative Agent shall  give each Revolving Lender prompt notice of the amount of the Revolving Loan to be made available to  the Administrative Agent not later than 10:00 a.m. Pacific time and (ii) if such conditions would not permit  the making of Revolving Loans, the provisions of subsection (j) of this Section shall apply.  The limitations  set forth in the second sentence of Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans  under this subsection.     (f) Effect of Letters of Credit on Revolving Commitments.  Upon the issuance by an Issuing  Bank of any Letter of Credit and until such Letter of Credit shall have expired or been cancelled, the  Revolving Commitment of each Revolving Lender shall be deemed to be utilized for all purposes of this  Agreement in an amount equal to the product of (i) such Lender’s Revolving Commitment Percentage and  (ii) the sum of (A) the Stated Amount of such Letter of Credit plus (B) any related Reimbursement  Obligations then outstanding.     (g) Issuing Banks’ Duties Regarding Letters of Credit; Unconditional Nature of  Reimbursement Obligations.  In examining documents presented in connection with drawings under Letters  of Credit and making payments under such Letters of Credit against such documents, each Issuing Bank  shall only be required to use the same standard of care as it uses in connection with examining documents  presented in connection with drawings under letters of credit in which it has not sold participations and  making payments under such letters of credit.  The Borrower assumes all risks of the acts and omissions of,  or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit.  In furtherance  and not in limitation of the foregoing, none of the Issuing Banks, Administrative Agent or any of the  Revolving Lenders shall be responsible for, and the Borrower’s obligations in respect of Letters of Credit  shall not be affected in any manner by, (i) the form, validity, sufficiency, accuracy, genuineness or legal  effects of any document submitted by any party in connection with the application for and issuance of or  any drawing honored under any Letter of Credit even if such document should in fact prove to be in any or  all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any  instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or  benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective  for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required  in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission  or delivery of any messages, by mail, cable, facsimile, electronic mail, telecopy or otherwise, whether or  not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission  or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the  proceeds thereof; (vii) the misapplication by the beneficiary of any Letter of Credit, or of the proceeds of  any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control  of the Issuing Banks, Administrative Agent or the Revolving Lenders.  None of the above shall affect,  impair or prevent the vesting of any of the applicable Issuing Bank’s or Administrative Agent’s rights or  powers hereunder.  Any action taken or omitted to be taken by an Issuing Bank under or in connection with  any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct (as  determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against  such Issuing Bank any liability to the Borrower, the Administrative Agent or any Revolving Lender.  In  this connection, the obligation of the Borrower to reimburse the applicable Issuing Bank for any drawing  made under any Letter of Credit, and to repay any Revolving Loan made pursuant to the second sentence  of the immediately preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be  paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit  Document under all circumstances whatsoever, including without limitation, the following circumstances:  (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein;  (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit  Documents; (C) the existence of any claim, setoff, defense or other right which the Borrower may have at  any time against any Issuing Bank, the Administrative Agent or any Revolving Lender, any beneficiary of  





 






  46  LEGAL02/41986661v10  a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions  contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of  contract or dispute between the Borrower, any Issuing Bank, the Administrative Agent, any Revolving  Lender or any other Person; (E) any demand, statement or any other document presented under a Letter of  Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or  made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any non-application  or misapplication by the beneficiary of a Letter of Credit or of the proceeds of any drawing under such  Letter of Credit; (G) payment by an Issuing Bank under any Letter of Credit issued by such Issuing Bank  against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of  Credit; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the  provisions of this Section, constitute a legal or equitable defense to or discharge of, or provide a right of  setoff against, the Borrower’s Reimbursement Obligations.  Notwithstanding anything to the contrary  contained in this Section or Section 13.9., but not in limitation of the Borrower’s unconditional obligation  to reimburse an Issuing Bank for any drawing made under a Letter of Credit issued by such Issuing Bank  as provided in this Section and to repay any Revolving Loan made pursuant to the second sentence of the  immediately preceding subsection (e), the Borrower shall have no obligation to indemnify the  Administrative Agent, any Issuing Bank or any Lender in respect of any liability incurred by the  Administrative Agent, such Issuing Bank or such Lender arising solely out of the gross negligence or willful  misconduct of the Administrative Agent, such Issuing Bank or such Lender in respect of a Letter of Credit  as determined by a court of competent jurisdiction in a final, non-appealable judgment.  Notwithstanding  the above, nothing in this Section shall affect any rights the Borrower may have with respect to the gross  negligence or willful misconduct of the Administrative Agent, any Issuing Bank or any Lender with respect  to any Letter of Credit.   (h) Amendments, Etc.  The issuance by an Issuing Bank of any amendment, supplement or  other modification to any Letter of Credit issued by such Issuing Bank shall be subject to the same  conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without  limitation, that the request therefor be made through such Issuing Bank), and no such amendment,  supplement or other modification shall be issued unless either (i) the respective Letter of Credit affected  thereby would have complied with such conditions had it originally been issued hereunder in such amended,  supplemented or modified form or (ii) the Administrative Agent and appropriate Revolving Lenders  required by Section 13.6. shall have consented thereto.  In connection with any such amendment,  supplement or other modification, the Borrower shall pay the fees, if any, payable under the last sentence  of Section 3.5.(c).     (i) Revolving Lenders’ Participation in Letters of Credit.  Immediately upon the issuance by  an Issuing Bank of any Letter of Credit each Revolving Lender shall be deemed to have absolutely,  irrevocably and unconditionally purchased and received from such Issuing Bank, without recourse or  warranty, an undivided interest and participation to the extent of such Lender’s Revolving Commitment  Percentage of the liability of such Issuing Bank with respect to such Letter of Credit and each Revolving  Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as  surety, and shall be unconditionally obligated to the such Issuing Bank to pay and discharge when due, such  Lender’s Revolving Commitment Percentage of such Issuing Bank’s liability under such Letter of Credit.   In addition, upon the making of each payment by a Revolving Lender to the Administrative Agent for the  account of an Issuing Bank in respect of any Letter of Credit issued by such Issuing Bank pursuant to the  immediately following subsection (j), such Lender shall, automatically and without any further action on  the part of such Issuing Bank, Administrative Agent or such Lender, acquire (i) a participation in an amount  equal to such payment in the Reimbursement Obligation owing to the applicable Issuing Bank by the  Borrower in respect of such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s  Revolving Commitment Percentage in any interest or other amounts payable by the Borrower in respect of  





 






  47  LEGAL02/41986661v10  such Reimbursement Obligation (other than the Fees payable to the applicable Issuing Bank pursuant to the  second and the last sentences of Section 3.5.(c)).     (j) Payment Obligation of Revolving Lenders.  Each Revolving Lender severally agrees to  pay to the Administrative Agent, for the account of the applicable Issuing Bank, on demand in immediately  available funds in Dollars the amount of such Lender’s Revolving Commitment Percentage of each drawing  paid by such Issuing Bank under each Letter of Credit issued by such Issuing Bank to the extent such  amount is not reimbursed by the Borrower pursuant to the immediately preceding subsection (d); provided,  however, that in respect of any drawing under any Letter of Credit, the maximum amount that any  Revolving Lender shall be required to fund, whether as a Revolving Loan or as a participation, shall not  exceed such Lender’s Revolving Commitment Percentage of such drawing except as otherwise provided in  Section 3.9.(d).  If the notice referenced in the second sentence of the immediately preceding subsection (e)  is received by a Lender not later than 9:00 a.m. Pacific time, then such Revolving Lender shall make such  payment available to the Administrative Agent not later than 12:00 p.m. Pacific time on the date of demand  therefor; otherwise, such payment shall be made available to the Administrative Agent not later than 11:00  a.m. Pacific time on the next succeeding Business Day.  Each Revolving Lender’s obligation to make such  payments to the Administrative Agent under this subsection, and the Administrative Agent’s right to receive  the same for the account of the applicable Issuing Bank, shall be absolute, irrevocable and unconditional  and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the  failure of any other Revolving Lender to make its payment under this subsection, (ii) the financial condition  of the Borrower or any other Loan Party, (iii) the existence of any Default or Event of Default, including  any Event of Default described in Section 11.1.(f) or (g), (iv) the termination of the Revolving  Commitments or (v) the delivery of Cash Collateral in respect of any Extended Letter of Credit.  Each such  payment to the Administrative Agent for the account of an Issuing Bank shall be made without any offset,  abatement, withholding or deduction whatsoever.       (k) Information to Revolving Lenders.  Periodically, each Issuing Bank shall deliver to the  Administrative Agent, which shall promptly deliver the same to each Revolving Lender and the Borrower,  a notice describing the aggregate amount of all Letters of Credit issued by such Issuing Bank and  outstanding at such time.  Upon the request of any Revolving Lender from time to time, each Issuing Bank  shall deliver any other information reasonably requested by such Revolving Lender with respect to each  Letter of Credit issued by such Issuing Bank and then outstanding.  Other than as set forth in this subsection,  the Issuing Banks shall have no duty to notify the Lenders regarding the issuance or other matters regarding  Letters of Credit issued hereunder.  The failure of any Issuing Bank to perform its requirements under  this subsection shall not relieve any Revolving Lender from its obligations under the immediately preceding  subsection (j).     (l) Extended Letters of Credit.  Each Revolving Lender confirms that its obligations under the  immediately preceding subsections (i) and (j) shall be reinstated in full and apply if the delivery of any Cash  Collateral in respect of an Extended Letter of Credit is subsequently invalidated, declared to be fraudulent  or preferential, set aside or required to be repaid to a trustee, receiver or any other party, in connection with  any proceeding under any Debtor Relief Law or otherwise.    Section 2.4. Swingline Loans.  (a) Swingline Loans.  Subject to the terms and conditions hereof, including without limitation  Section 2.15, the Swingline Lender agrees to make Swingline Loans to the Borrower, during the period  from the Effective Date to but excluding the Swingline Maturity Date, in an aggregate principal amount at  any one time outstanding up to, but not exceeding, the lesser (such lesser amount being referred to as the  “Swingline Availability”) of (i) $40,000,000, as such amount may be reduced from time to time in  accordance with the terms hereof and (ii) the Revolving Commitment of the Swingline Lender in its  





 






  48  LEGAL02/41986661v10  capacity as a Revolving Lender minus the aggregate outstanding principal amount of Revolving Loans of  the Swingline Lender in its capacity as a Revolving Lender.  If at any time the aggregate principal amount  of the Swingline Loans outstanding at such time exceeds the Swingline Availability at such time, the  Borrower shall immediately pay the Administrative Agent for the account of the Swingline Lender the  amount of such excess.  Subject to the terms and conditions of this Agreement, the Borrower may borrow,  repay and reborrow Swingline Loans hereunder.  The borrowing of a Swingline Loan shall not constitute  usage of any Revolving Lender’s Revolving Commitment for purposes of calculation of the fee payable  under Section 3.5.(b).     (b) Procedure for Borrowing Swingline Loans.  The Borrower shall give the Administrative  Agent and the Swingline Lender notice pursuant to a Notice of Swingline Borrowing or telephonic notice  of each borrowing of a Swingline Loan.  Each Notice of Swingline Borrowing shall be delivered to the  Swingline Lender no later than 9:00 a.m. Pacific time on the proposed date of such borrowing.  Any  telephonic notice shall include all information to be specified in a written Notice of Swingline Borrowing  and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Swingline Borrowing  sent to the Swingline Lender on the same day of the giving of such telephonic notice.  Not later than 12:00  noon Pacific time on the date of the requested Swingline Loan and subject to satisfaction of the applicable  conditions set forth in Section 6.2. for such borrowing, the Swingline Lender will make the proceeds of  such Swingline Loan available to the Borrower in Dollars, in immediately available funds, in the account  specified by the Borrower in the Disbursement Instruction Agreement.     (c) Interest.  Swingline Loans shall bear interest at a per annum rate equal to the Base Rate as  in effect from time to time plus the Applicable Margin for Base Rate Loans that are Revolving Loans.   Interest on Swingline Loans is solely for the account of the Swingline Lender (except to the extent a  Revolving Lender acquires a participating interest in a Swingline Loan pursuant to the immediately  following subsection (e)).  All accrued and unpaid interest on Swingline Loans shall be payable on the dates  and in the manner provided in Section 2.5. with respect to interest on Base Rate Loans (except as the  Swingline Lender and the Borrower may otherwise agree in writing in connection with any particular  Swingline Loan).     (d) Swingline Loan Amounts, Etc.  Each Swingline Loan shall be in the minimum amount of  $500,000 and integral multiples of $100,000 in excess thereof, or such other minimum amounts agreed to  by the Swingline Lender and the Borrower.  Any voluntary prepayment of a Swingline Loan must be in  integral multiples of $100,000 or the aggregate principal amount of all outstanding Swingline Loans (or  such other minimum amounts upon which the Swingline Lender and the Borrower may agree) and in  connection with any such prepayment, the Borrower must give the Swingline Lender and the Administrative  Agent prior written notice thereof no later than 9:00 a.m. Pacific time on the day prior to the date of such  prepayment.  The Swingline Loans shall, in addition to this Agreement, be evidenced by the Swingline  Note.     (e) Repayment and Participations of Swingline Loans.  The Borrower agrees to repay each  Swingline Loan within 3 Business Day of demand therefor by the Swingline Lender and, in any event,  within 5 Business Days after the date such Swingline Loan was made; provided, that the proceeds of a  Swingline Loan may not be used to pay a Swingline Loan.  Notwithstanding the foregoing, the Borrower  shall repay the entire outstanding principal amount of, and all accrued but unpaid interest on, the Swingline  Loans on the Swingline Maturity Date (or such earlier date as the Swingline Lender and the Borrower may  agree in writing).  In lieu of demanding repayment of any outstanding Swingline Loan from the Borrower,  the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably directs the Swingline  Lender to act on its behalf), request a borrowing of Revolving Loans that are Base Rate Loans from the  Revolving Lenders in an amount equal to the principal balance of such Swingline Loan.  The amount  limitations contained in the second sentence of Section 2.1.(a) shall not apply to any borrowing of such  





 






  49  LEGAL02/41986661v10  Revolving Loans made pursuant to this subsection.  The Swingline Lender shall give notice to the  Administrative Agent of any such borrowing of Revolving Loans not later than 9:00 a.m. Pacific time at  least one Business Day prior to the proposed date of such borrowing.  Promptly after receipt of such notice  of borrowing of Revolving Loans from the Swingline Lender under the immediately preceding sentence,  the Administrative Agent shall notify each Revolving Lender of the proposed borrowing.  Not later than  9:00 a.m. Pacific time on the proposed date of such borrowing, each Revolving Lender will make available  to the Administrative Agent at the Principal Office for the account of the Swingline Lender, in immediately  available funds, the proceeds of the Revolving Loan to be made by such Lender.  The Administrative Agent  shall pay the proceeds of such Revolving Loans to the Swingline Lender, which shall apply such proceeds  to repay such Swingline Loan.  If the Revolving Lenders are prohibited from making Revolving Loans  required to be made under this subsection for any reason whatsoever, including without limitation, the  existence of any of the Defaults or Events of Default described in Sections 11.1.(f) or (g), each Revolving  Lender shall purchase from the Swingline Lender, without recourse or warranty, an undivided interest and  participation to the extent of such Revolving Lender’s Revolving Commitment Percentage of such  Swingline Loan, by directly purchasing a participation in such Swingline Loan in such amount and paying  the proceeds thereof to the Administrative Agent for the account of the Swingline Lender in Dollars and in  immediately available funds.  A Revolving Lender’s obligation to purchase such a participation in a  Swingline Loan shall be absolute and unconditional and shall not be affected by any circumstance  whatsoever, including without limitation, (i) any claim of setoff, counterclaim, recoupment, defense or  other right which such Lender or any other Person may have or claim against the Administrative Agent, the  Swingline Lender or any other Person whatsoever, (ii) the existence of a Default or Event of Default  (including without limitation, any of the Defaults or Events of Default described in Sections 11.1. (f) or  (g)), or the termination of any Revolving Lender’s Revolving Commitment, (iii) the existence (or alleged  existence) of an event or condition which has had or could have a Material Adverse Effect, (iv) any breach  of any Loan Document by the Administrative Agent, any Lender, the Parent, the Borrower or any other  Loan Party, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of  the foregoing.  If such amount is not in fact made available to the Swingline Lender by any Revolving  Lender, the Swingline Lender shall be entitled to recover such amount on demand from such Lender,  together with accrued interest thereon for each day from the date of demand thereof, at the Federal Funds  Rate.  If such Lender does not pay such amount forthwith upon the Swingline Lender’s demand therefor,  and until such time as such Lender makes the required payment, the Swingline Lender shall be deemed to  continue to have outstanding Swingline Loans in the amount of such unpaid participation obligation for all  purposes of the Loan Documents (other than those provisions requiring the other Revolving  Lenders to  purchase a participation therein).  Further, such Lender shall be deemed to have assigned any and all  payments made of principal and interest on its Revolving Loans, and any other amounts due it hereunder,  to the Swingline Lender to fund Swingline Loans in the amount of the participation in Swingline Loans that  such Lender failed to purchase pursuant to this Section until such amount has been purchased (as a result  of such assignment or otherwise)    Section 2.5.  Rates and Payment of Interest on Loans.  (a) Rates.      (i) The Borrower promises to pay to the Administrative Agent for the account of each  Revolving Lender interest on the unpaid principal amount of each Revolving Loan made by such  Revolving Lender for the period from and including the date of the making of such Revolving Loan  to but excluding the date such Revolving Loan shall be paid in full, at the following per annum  rates:    





 






  50  LEGAL02/41986661v10    (A) during such periods as such Revolving Loan is a Base Rate Loan, at the  Base Rate (as in effect from time to time), plus the Applicable Margin for Revolving Loans  that are Base Rate Loans; and      (B) during such periods as such Revolving Loan is a Term SOFR Loan, at  Adjusted Term SOFR for such Revolving Loan for the Interest Period therefor, plus the  Applicable Margin for Revolving Loans that are Term SOFR Loans.     (ii)  The Borrower promises to pay to the Administrative Agent for the account of each  Term Loan Lender interest on the unpaid principal amount of each Term Loan made by such Term  Loan Lender for the period from and including the date of the making of such Term Loan to but  excluding the date such Term Loan shall be paid in full, at the following per annum rates:      (A) during such periods as such Term Loan is a Base Rate Loan, at the Base  Rate (as in effect from time to time), plus the Applicable Margin for Term Loans that are  Base Rate Loans; and      (B) during such periods as such Term Loan is a Term SOFR Loan, at Adjusted  Term SOFR for such Loan for the Interest Period therefor, plus the Applicable Margin for  Term Loans that are Term SOFR Loans.     Notwithstanding the foregoing, while an Event of Default exists under Section 11.1.(a), 11.1.(b), 11.1.(f),  or 11.1.(g), or at the direction of the Requisite Lenders upon the existence of any other Event of Default,  the Borrower shall pay to the Administrative Agent for the account of each Class of Lenders and the Issuing  Banks, as the case may be, interest at the Post-Default Rate on the outstanding principal amount of any  Class of Loans made by such Lender, on all Reimbursement Obligations and on any other amount payable  by the Borrower hereunder or under the Notes held by such Lender to or for the account of such Lender  (including without limitation, accrued but unpaid interest to the extent permitted under Applicable Law).       (b) Payment of Interest. All accrued and unpaid interest on the outstanding principal amount  of each Loan shall be payable (i) monthly in arrears on the first day of each month, commencing with the  first full calendar month occurring after the Effective Date and (ii) on any date on which the principal  balance of such Loan is due and payable in full (whether at maturity, due to acceleration or otherwise).   Interest payable at the Post-Default Rate shall be payable from time to time on demand.  All determinations  by the Administrative Agent of an interest rate hereunder shall be conclusive and binding on the Lenders  and the Borrower for all purposes, absent manifest error.     (c) Borrower Information Used to Determine Applicable Interest Rates.  The parties  understand that the applicable interest rate for the Obligations and certain fees set forth herein may be  determined and/or adjusted from time to time based upon certain financial ratios and/or other information  to be provided or certified to the Lenders by the Parent or the Borrower (the “Borrower Information”).  If  it is subsequently determined that any such Borrower Information was incorrect (for whatever reason,  including without limitation because of a subsequent restatement of earnings by the Parent or the Borrower)  at the time it was delivered to the Administrative Agent, and if the applicable interest rate or fees calculated  for any period were lower than they should have been had the correct information been timely provided,  then, such interest rate and such fees for such period shall be automatically recalculated using correct  Borrower Information.  The Administrative Agent shall promptly notify the Borrower in writing of any  additional interest and fees due because of such recalculation, and the Borrower shall pay such additional  interest or fees due to the Administrative Agent, for the account of each Lender, within 5 Business Days of  receipt of such written notice.  Any recalculation of interest or fees required by this provision shall survive  





 






  51  LEGAL02/41986661v10  the termination of this Agreement, and this provision shall not in any way limit any of the Administrative  Agent’s, any Issuing Bank’s, or any Lender’s other rights under this Agreement.    Section 2.6.  Number of Interest Periods.   There may be no more than 7 different Interest Periods for Term SOFR Loans outstanding at the  same time.    Section 2.7.  Repayment of Loans.   The Borrower shall repay the entire outstanding principal amount of, and all accrued but unpaid  interest on, each Class of Loans on the Termination Date for such Class of Loans.     Section 2.8.  Prepayments.   (a) Optional.  Subject to Section 5.4., the Borrower may prepay any Loan at any time without  premium or penalty.  The Borrower shall give the Administrative Agent at least 2 Business Days prior  written notice of the prepayment of any Loan.  Each voluntary partial prepayment of Loans shall be in an  aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess thereof.    (b) Mandatory.     (i) Overadvance.  If at any time the aggregate principal amount of all outstanding  Revolving Loans and Swingline Loans, together with the aggregate amount of all Letter of Credit  Liabilities, exceeds the aggregate amount of the Revolving Commitments, the Borrower shall  immediately upon demand pay to the Administrative Agent for the account of the Revolving  Lenders then holding Revolving Commitments (or if the Revolving Commitments have been  terminated, then holding outstanding Revolving Loans and/or Letter of Credit Liabilities), the  amount of such excess.     (ii) Issuance of Indebtedness.  If, at any time prior to the repayment in full of all  Obligations relating to the Term 2 Loans, the Parent, the Borrower or any Subsidiary thereof  receives cash proceeds from any incurrence of any Indebtedness including the net proceeds of any  refinancing of existing Indebtedness but excluding (i) the Revolving Loans and (ii) Nonrecourse  Indebtedness which is Secured Indebtedness incurred in connection with the acquisition by the  Borrower or a Subsidiary of the Borrower of a Property from an unaffiliated third party which was  not at any time an Unencumbered Property, the Borrower shall, in accordance with clause (iii)  below, prepay the Term 2 Loans in an amount equal to the amount of such cash proceeds, net of  underwriting discounts and commissions and other reasonable costs and expenses associated  therewith (to the extent not paid to an Affiliate of the Parent, the Borrower or its Subsidiaries),  including reasonable legal fees and expenses, within three (3) Business Days of the Parent’s, the  Borrower’s or such Subsidiary’s receipt of such cash proceeds.      (iii) Application of Mandatory Prepayments.  Amounts paid under the preceding (x)  subsection (b)(i) shall be applied to pay all amounts of principal outstanding on the Revolving  Loans and any Reimbursement Obligations pro rata in accordance with Section 3.2. and if any  Letters of Credit are outstanding at such time, the remainder, if any, shall be deposited into the  Letter of Credit Collateral Account for application to any Reimbursement Obligations and (y)  subsection (b)(ii) shall be applied to prepay the Term 2 Loan and any Obligations (including  accrued interest) relating to the Term 2 Loan until paid in full.     





 






  52  LEGAL02/41986661v10   (vi) If the Borrower is required to pay any outstanding Term SOFR Loans by reason of  this Section 2.8. prior to the end of the applicable Interest Period therefor, the Borrower shall pay  all amounts due under Section 5.4.     Section 2.9.  Continuation.   So long as no Default or Event of Default exists, the Borrower may on any Business Day, with  respect to any Term SOFR Loan, elect to maintain such Term SOFR Loan or any portion thereof as a Term  SOFR Loan by selecting a new Interest Period for such Term SOFR Loan.  Each Continuation of Term  SOFR Loans of the same Class shall be in an aggregate minimum amount of $1,000,000 and integral  multiples of $100,000 in excess of that amount, and each new Interest Period selected under this Section  shall commence on the last day of the immediately preceding Interest Period.  Each selection of a new  Interest Period shall be made by the Borrower giving to the Administrative Agent a Notice of Continuation  not later than 9:00 a.m. Pacific time on the third Business Day prior to the date of any such Continuation.   Such notice by the Borrower of a Continuation shall be by telecopy, electronic mail or other similar form  of communication in the form of a Notice of Continuation, specifying (a) the proposed date of such  Continuation, (b) the Term SOFR Loans, Class and portions thereof subject to such Continuation and (c) the  duration of the selected Interest Period, all of which shall be specified in such manner as is necessary to  comply with all limitations on Loans outstanding hereunder.  Each Notice of Continuation shall be  irrevocable by and binding on the Borrower once given.  Promptly after receipt of a Notice of Continuation,  the Administrative Agent shall notify each Lender holding Loans being Continued of the proposed  Continuation.  If the Borrower shall fail to select in a timely manner a new Interest Period for any Term  SOFR Loan in accordance with this Section, such Loan will automatically, on the last day of the current  Interest Period therefor, continue as a Term SOFR Loan with an Interest Period of one month; provided,  however that if a Default or Event of Default exists, such Loan will automatically, on the last day of the  current Interest Period therefor, Convert into a Base Rate Loan notwithstanding the first sentence of  Section 2.10. or the Borrower’s failure to comply with any of the terms of such Section.     Section 2.10.  Conversion.   The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to  the Administrative Agent by telecopy, electronic mail or other similar form of communication, Convert all  or a portion of a Loan of one Type into a Loan of another Type; provided, however, a Base Rate Loan may  not be Converted into a Term SOFR Loan if a Default or Event of Default exists.  Each Conversion of Base  Rate Loans of the same Class into Term SOFR Loans of the same Class shall be in an aggregate minimum  amount of $1,000,000 and integral multiples of $100,000 in excess of that amount.  Each such Notice of  Conversion shall be given not later than 9:00 a.m. Pacific time 3 Business Days prior to the date of any  proposed Conversion.  Promptly after receipt of a Notice of Conversion, the Administrative Agent shall  notify each Lender holding Loans being Converted of the proposed Conversion.  Subject to the restrictions  specified above, each Notice of Conversion shall be by telecopy, electronic mail or other similar form of  communication in the form of a Notice of Conversion specifying (a) the requested date of such Conversion,  (b) the Type and Class of Loan to be Converted, (c) the portion of such Type of Loan to be Converted,  (d) the Type of Loan such Loan is to be Converted into and (e) if such Conversion is into a Term SOFR  Loan, the requested duration of the Interest Period of such Loan.  Each Notice of Conversion shall be  irrevocable by and binding on the Borrower once given.      Section 2.11.  Notes.   (a) Notes.  Except in the case of a Lender that has notified the Administrative Agent in writing  that it elects not to receive a Note, the Loans of any Class made by each Lender in such Class shall, in  addition to this Agreement, also be evidenced by a Note of such Class, payable to the order of such Lender  





 






  53  LEGAL02/41986661v10  in a principal amount equal to the amount of its Commitment of such Class as originally in effect and  otherwise duly completed.  The Swingline Loans made by the Swingline Lender to the Borrower shall, in  addition to this Agreement, also be evidenced by a Swingline Note payable to the order of the Swingline  Lender.       (b) Records.  The date, amount, interest rate, Type, Class and duration of Interest Periods (if  applicable) of each Loan made by each Lender to the Borrower, and each payment made on account of the  principal thereof, shall be evidenced by one or more accounts or records maintained by such Lender or 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.  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.     (c) Lost, Stolen, Destroyed or Mutilated Notes.  Upon receipt by the Borrower of (i) written  notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or mutilated, and (ii)(A) in  the case of loss, theft or destruction, an unsecured agreement of indemnity from such Lender in form  reasonably satisfactory to the Borrower, or (B) in the case of mutilation, upon surrender and cancellation  of such Note, the Borrower shall at its own expense execute and deliver to such Lender a new Note dated  the date of such lost, stolen, destroyed or mutilated Note.      Section 2.12.  Voluntary Reductions of the Commitment.   The Borrower shall have the right to terminate or reduce the aggregate unused amount of the  Revolving Commitments (for which purpose use of the Revolving Commitments shall be deemed to include  the aggregate amount of all Letter of Credit Liabilities and the aggregate principal amount of all outstanding  Swingline Loans) at any time and from time to time without penalty or premium upon not less than 5  Business Days prior written notice to the Administrative Agent of each such termination or reduction, which  notice shall specify the effective date thereof and the amount of any such reduction (which in the case of  any partial reduction of the Revolving Commitments shall not be less than $10,000,000 and integral  multiples of $5,000,000 in excess of that amount in the aggregate) and shall be irrevocable once given and  effective only upon receipt by the Administrative Agent (“Commitment Reduction Notice”); provided,  however, the Borrower may not reduce the aggregate amount of the Revolving Commitments below  $100,000,000 unless the Borrower is terminating the Revolving Commitments in full; and provided, further,  a notice of termination of the Revolving Commitments may state that such notice is conditioned upon the  effectiveness of other credit facilities or the receipt of the proceeds from  the issuance of other Indebtedness  or the occurrence of some other identifiable event or condition, in which case such notice may be revoked  by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date  of termination).  Promptly after receipt of a Commitment Reduction Notice the Administrative Agent shall  notify each Revolving Lender of the proposed termination or Revolving Commitment reduction.  The  Revolving Commitments, once reduced or terminated pursuant to this Section, may not be increased or  reinstated.  The Borrower shall pay all interest and fees on the Revolving Loans accrued to the date of such  reduction or termination of the Revolving Commitments to the Administrative Agent for the account of the  Revolving Lenders, including but not limited to any applicable compensation due to each Lender in  accordance with Section 5.4. of this Agreement.    





 






  54  LEGAL02/41986661v10  Section 2.13.  Extension of Revolving Termination Date and Term 2 Loan Maturity Date.   (a) Extension of Revolving Termination Date.  The Borrower shall have the right, exercisable  two times, to extend the Revolving Termination Date by six months per each request.  The Borrower may  exercise such right only by executing and delivering to the Administrative Agent at least 30 days but not  more than 120 days prior to the current Revolving Termination Date, a written request for such extension  (a “Revolving Extension Request”).  The Administrative Agent shall notify the Revolving Lenders if it  receives a Revolving Extension Request promptly upon receipt thereof and, subject to satisfaction of the  following conditions, the Revolving Termination Date shall be extended for six months effective upon  receipt by the Administrative Agent of each permitted Revolving Extension Request and payment of the  fee referred to in the following clause (y): (x) immediately prior to such extension and immediately after  giving effect thereto, (i) no Default or Event of Default shall exist and (ii) the representations and warranties  made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of  them is a party, shall be true and correct in all material respects (or, to the extent qualified by materiality or  Material Adverse Effect, in all respects) on and as of the date of such extension with the same force and  effect as if made on and as of such date except to the extent that such representations and warranties  expressly relate solely to an earlier date (in which case such representations and warranties shall have been  true and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect,  in all respects) on and as of such earlier date) and except for changes in factual circumstances not prohibited  under the Loan Documents and (y) the Borrower shall have paid the Fees payable under Section 3.5.(d).   At any time prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the  Borrower shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the  Parent or the Borrower certifying the matters referred to in the immediately preceding clauses (x)(i) and  (x)(ii).     (b) Extension of Term 2 Loan Maturity Date.  The Borrower shall have the right, exercisable  one time, to extend the Term 2 Loan Maturity Date by twelve months.  The Borrower may exercise such  right only by executing and delivering to the Administrative Agent at least 30 days but not more than 120  days prior to the current Term 2 Loan Maturity Date, a written request for such extension (a “Term 2  Extension Request”).  The Administrative Agent shall notify the Term 2 Loan Lenders if it receives a  Extension Request promptly upon receipt thereof and, subject to satisfaction of the following conditions,  the Term 2 Loan Maturity Date shall be extended for twelve months effective upon receipt by the  Administrative Agent of the permitted Term 2 Extension Request and payment of the fee referred to in the  following clause (y): (x) immediately prior to such extension and immediately after giving effect thereto,  (i) no Default or Event of Default shall exist and (ii) the representations and warranties made or deemed  made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party,  shall be true and correct in all material respects (or, to the extent qualified by materiality or Material  Adverse Effect, in all respects) on and as of the date of such extension with the same force and effect as if  made on and as of such date except to the extent that such representations and warranties expressly relate  solely to an earlier date (in which case such representations and warranties shall have been true and correct  in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in all respects)  on and as of such earlier date) and except for changes in factual circumstances not prohibited under the  Loan Documents and (y) the Borrower shall have paid the Fees payable under Section 3.5.(e).  At any time  prior to the effectiveness of any such extension, upon the Administrative Agent’s request, the Borrower  shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the Parent or  the Borrower certifying the matters referred to in the immediately preceding clauses (x)(i) and (x)(ii).    Section 2.14.  Expiration Date of Letters of Credit Past Revolving Commitment Termination.     If on the date the Revolving Commitments are terminated or reduced to zero (whether voluntarily,  by reason of the occurrence of an Event of Default or otherwise) there are any Letters of Credit outstanding  





 






  55  LEGAL02/41986661v10  hereunder and the aggregate Stated Amount of such Letters of Credit exceeds the balance of available funds  on deposit in the Letter of Credit Collateral Account, then the Borrower shall, on such date, pay to the  Administrative Agent, for its benefit and the benefit of the Revolving Lenders and the Issuing Banks, for  deposit into the Letter of Credit Collateral Account, an amount of money equal to the amount of such  excess.    Section 2.15.  Amount Limitations.     Notwithstanding any other term of this Agreement or any other Loan Document, no Revolving  Lender shall be required to make a Revolving Loan, the Swingline Lender shall not be required to make a  Swingline Loan, no Issuing Bank shall be required to issue a Letter of Credit and no reduction of the  Revolving Commitments pursuant to Section 2.12. shall take effect, if immediately after the making of such  Loan, the issuance of such Letter of Credit or such reduction in the Revolving Commitments the aggregate  principal amount of all outstanding Revolving Loans and Swingline Loans, together with the aggregate  amount of all Letter of Credit Liabilities, would exceed the aggregate amount of the Revolving  Commitments at such time.    Section 2.16.  Increase in Commitments; Additional Term Loans.   The Borrower shall have the right (a) up to but excluding the Revolving Termination Date, to  request increases in the aggregate amount of the Revolving Commitments, (b) up to but excluding the Term  1 Loan Maturity Date, to request the making of additional Term 1 Loans and (c) up to but excluding the  Term 2 Loan Maturity Date, to request the making of additional Term 2 Loans, in each case, by providing  written notice thereof to the Administrative Agent, which notice shall specify the Class and amount of  Loans requested and shall be irrevocable once given; provided, however, that after giving effect to any such  Revolving Commitment increases, additional Term 1 Loans or additional Term 2 Loans the aggregate  amount of the Revolving Commitments, the aggregate outstanding principal balance of the Term 1 Loans  and the aggregate outstanding principal balance of the Term 2 Loans shall not exceed $1,400,000,000 (less  the amount of any reductions of the Revolving Commitments effected pursuant to Section 2.12 and any  prepayments of Term Loans, in each case, prior to such date).  Additional Term 1 Loans shall be subject to  the same terms and conditions of this Agreement that are applicable to all other Term 1 Loans. Additional  Term 2 Loans shall be subject to the same terms and conditions of this Agreement that are applicable to all  other Term 2 Loans.  Each such increase in the Revolving Commitments or additional Term Loans must be  an aggregate minimum amount of $50,000,000 and integral multiples of $5,000,000 in excess thereof.  The  Administrative Agent, in consultation with and with the consent of the Borrower, shall manage all aspects  of the syndication of such increase in the Revolving Commitments or additional Term Loans, including  decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other  institutional lenders to be approached with respect to such increase or additional Term Loans and the  allocations of the increase in the Revolving Commitments and/or Term Loans among such existing Lenders  and/or other banks, financial institutions and other institutional lenders.  No Lender shall be obligated in  any way whatsoever to increase its Commitment, provide a new Commitment or provide Term Loans, and  any new Lender becoming a party to this Agreement in connection with any such requested increase must  be an Eligible Assignee.  If a new Revolving Lender becomes a party to this Agreement, or if any existing  Revolving Lender is increasing its Revolving Commitment, such Revolving Lender shall on the date it  becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its  Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving  Commitment Percentage (determined with respect to the Revolving Lenders’ relative Revolving  Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding  Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving  Lenders, in immediately available funds, an amount equal to the sum of (A) the portion of the outstanding  principal amount of such Revolving Loans to be purchased by such Revolving Lender, plus (B) the  





 






  56  LEGAL02/41986661v10  aggregate amount of payments previously made by the other Revolving Lenders under Section 2.3.(j) that  have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the  outstanding principal amount of such Revolving Loans.  The Borrower shall pay to the Revolving Lenders  amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any  such Revolving Loans.  Effecting the increase of the Revolving Commitments or the making of any  additional Term Loans under this Section is subject to the following conditions precedent:  (x) no Default  or Event of Default shall be in existence on the effective date of such increase, (y) the representations and  warranties made or deemed made by the Borrower or any other Loan Party in any Loan Document to which  such Loan Party is a party shall be true and accurate in all material respects (or, to the extent qualified by  materiality or Material Adverse Effect, in all respects) on the effective date of such increase except to the  extent that such representations and warranties expressly relate solely to an earlier date (in which case such  representations and warranties shall have been true and accurate in all material respects (or, to the extent  qualified by materiality or Material Adverse Effect, in all respects) on and as of such earlier date) and except  for changes in factual circumstances not prohibited hereunder, and (z)  the Administrative Agent shall have  received each of the following, in form and substance satisfactory to the Administrative Agent:  (i) if not  previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary  of (A) all corporate, partnership or other necessary action taken by the Parent and the Borrower to authorize  such increase or additional Term Loans and (B) all corporate, partnership, member or other necessary action  taken by each Guarantor authorizing the guaranty of such increase or additional Term Loans; (ii) an opinion  of counsel to the Parent, the Borrower and the Guarantors, and addressed to the Administrative Agent and  the Lenders covering such matters as reasonably requested by the Administrative Agent, and (iii) new Notes  executed by the Borrower, payable to any new Lenders and replacement Notes executed by the Borrower,  payable to any existing Lenders increasing their Commitments or making additional Term Loans, in the  amount of such Lender’s Commitment or Term Loans, as the case may be, at the time of the effectiveness  of the applicable increase in the aggregate amount of the Revolving Commitments or the making of any  additional Term Loans.  In connection with any increase in the aggregate amount of the Revolving  Commitments or making of any additional Term Loans pursuant to this Section 2.16. any Lender becoming  a party hereto shall (1) execute such documents and agreements as the Administrative Agent may  reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside  of the United States of America, provide to the Administrative Agent, its name, address, tax identification  number and/or such other information as shall be necessary for the Administrative Agent to comply with  “know your customer” and Anti-Money Laundering Laws, including, without limitation, the Patriot Act.    Section 2.17.  Funds Transfer Disbursements.  The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any Loan  made by the Lenders or any of their Affiliates pursuant to the Loan Documents as requested by an  authorized representative of the Borrower to any of the accounts designated in the Disbursement Instruction  Agreement.      ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS  Section 3.1.  Payments.   (a) Payments by Borrower.  Except to the extent otherwise provided herein, all payments of  principal, interest, Fees and other amounts to be made by the Borrower under this Agreement, the Notes or  any other Loan Document shall be made in Dollars, in immediately available funds, without setoff,  deduction or counterclaim (excluding Taxes required to be withheld pursuant to Section 3.10.), to the  Administrative Agent at the Principal Office, not later than 11:00 a.m. Pacific time on the date on which  such payment shall become due (each such payment made after such time on such due date to be deemed  





 






  57  LEGAL02/41986661v10  to have been made on the next succeeding Business Day).  Subject to Section 11.5., the Borrower shall, at  the time of making each payment under this Agreement or any other Loan Document, specify to the  Administrative Agent the amounts payable by the Borrower hereunder to which such payment is to be  applied.  Each payment received by the Administrative Agent for the account of a Lender under this  Agreement or any Note shall be paid to such Lender by wire transfer of immediately available funds in  accordance with the wiring instructions provided by such Lender to the Administrative Agent from time to  time, for the account of such Lender at the applicable Lending Office of such Lender.  Each payment  received by the Administrative Agent for the account of an Issuing Bank under this Agreement shall be  paid to the applicable Issuing Bank by wire transfer of immediately available funds in accordance with the  wiring instructions provided by such Issuing Bank to the Administrative Agent from time to time, for the  account of such Issuing Bank.  In the event the Administrative Agent fails to pay such amounts to such  Lender or such Issuing Bank, as the case may be, (i) by 5:00 p.m. Pacific time on the Business Day such  funds are received by the Administrative Agent, if such amounts are received by 11:00 a.m. Pacific time  on such date or (ii) by 5:00 p.m. Pacific time on the Business Day following the date such funds are received  by the Administrative Agent, if such amounts are received after 11:00 a.m. Pacific time on any Business  Day, the Administrative Agent shall pay interest on such amount until paid at a rate per annum equal to the  Federal Funds Rate from time to time in effect.  If the due date of any payment under this Agreement or  any other Loan Document would otherwise fall on a day which is not a Business Day such date shall be  extended to the next succeeding Business Day and interest shall continue to accrue at the rate, if any,  applicable to such payment for the period of such extension.     (b) Presumptions Regarding Payments by Borrower.  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 or an Issuing Bank 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 (but shall not be obligated to), in reliance upon such assumption, distribute  to the Lenders or the applicable Issuing Bank, as the case may be, the amount due.  In such event, if the  Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as  the case may be, severally agrees to repay to the Administrative Agent on demand that amount so distributed  to such Lender or such Issuing Banks, 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.      Section 3.2.  Pro Rata Treatment.   Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders  under Section 2.1.(a) and 2.3.(e) shall be made from the Revolving Lenders, each payment of the Fees  under Sections 3.5.(a) (as applicable), 3.5.(b), the first sentence of 3.5.(c), 3.5.(d) and 3.5.(e) shall be made  for the account of the Revolving Lenders, and each termination or reduction of the amount of the Revolving  Commitments under Section 2.12. shall be applied to the respective Revolving Commitments of the  Revolving Lenders, pro rata according to the amounts of their respective Revolving Commitments; (b) the  making of Term 1 Loans and the Term 2 Loans shall be made from the Term 1 Loan Lenders or Term 2  Loan Lenders, as the case may be, pro rata according to the amounts of their respective Term 1 Loan  Commitments or Term 2 Loan Commitments, as the case may be, (c) each payment or prepayment of  principal of Loans of a Class shall be made for the account of the Lenders of such Class pro rata in  accordance with the respective unpaid principal amounts of the Loans of such Class held by them, provided  that, subject to Section 3.9., if immediately prior to giving effect to any such payment in respect of any  Revolving Loans the outstanding principal amount of the Revolving Loans shall not be held by the  Revolving Lenders pro rata in accordance with their respective Revolving Commitments in effect at the  time such Revolving Loans were made, then such payment shall be applied to the Revolving Loans in such  





 






  58  LEGAL02/41986661v10  manner as shall result, as nearly as is practicable, in the outstanding principal amount of the Revolving  Loans being held by the Lenders pro rata in accordance with their respective Revolving Commitments;  (d) each payment of interest in respect of a Class of Loans shall be made for the account of the Lenders of  such Class, pro rata in accordance with the amounts of interest on such Class of Loans then due and payable  to the respective Lenders of such Class; (e) the Conversion and Continuation of Loans of a particular Class  and Type (other than Conversions provided for by Section 5.1.(c) and Section 5.5.) shall be made pro rata  among the Lenders of such Class according to the amounts of their respective Loans of such Class and the  then current Interest Period for each Lender’s portion of each such Loan of such Type shall be coterminous;  (f) the Revolving Lenders’ participation in, and payment obligations in respect of, Letters of Credit under  Section 2.3., shall be in accordance with their respective Revolving Commitment Percentages; and (g) the  Revolving Lenders’ participation in, and payment obligations in respect of, Swingline Loans under Section  2.4., shall be in accordance with their respective Revolving Commitment Percentages.  All payments of  principal, interest, fees and other amounts in respect of the Swingline Loans shall be for the account of the  Swingline Lender only (except to the extent any Revolving Lender shall have acquired a participating  interest in any such Swingline Loan pursuant to Section 2.4.(e), in which case such payments shall be pro  rata in accordance with such participating interests).      Section 3.3.  Sharing of Payments, Etc.    If a Lender shall obtain payment of any principal of, or interest on, any of its Loans of a Class made  by it to the Borrower under this Agreement or shall obtain payment on any other Obligation owing by the  Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien, counterclaim  or similar right or otherwise or through voluntary prepayments directly to a Lender or other payments made  by the Borrower or any other Loan Party to a Lender (other than a payment in respect of Specified  Derivatives Obligations) not in accordance with the terms of  this Agreement and such payment should be  distributed to the Lenders of the same Class in accordance with Section 3.2. or Section 11.5., as applicable,  such Lender shall promptly purchase from the other Lenders of such Class participations in (or, if and to  the extent specified by such Lender, direct interests in) the Loans made by the other Lenders of such Class  or other Obligations owed to such other Lenders in such amounts, and make such other adjustments from  time to time as shall be equitable, to the end that all the Lenders of such Class shall share the benefit of  such payment (net of any reasonable expenses which may actually be incurred by such Lender in obtaining  or preserving such benefit) in accordance with the requirements of Section 3.2. or Section 11.5., as  applicable.  To such end, all the Lenders of such Class shall make appropriate adjustments among  themselves (by the resale of participations sold or otherwise) if such payment is rescinded or must otherwise  be restored.  The Borrower agrees that any Lender of such Class so purchasing a participation (or direct  interest) in the Loans or other Obligations owed to such other Lenders of such Class may exercise all rights  of set-off, banker’s lien, counterclaim or similar rights with respect to such participation as fully as if such  Lender were a direct holder of Loans of such Class in the amount of such participation.  Nothing contained  herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise  and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of  the Borrower.     Section 3.4.  Several Obligations.   No Lender shall be responsible for the failure of any other Lender to make a Loan or to perform  any other obligation to be made or performed by such other Lender hereunder, and the failure of any Lender  to make a Loan or to perform any other obligation to be made or performed by it hereunder shall not relieve  the obligation of any other Lender to make any Loan or to perform any other obligation to be made or  performed by such other Lender.    





 






  59  LEGAL02/41986661v10  Section 3.5.  Fees.   (a) Closing Fee.  On the Effective Date, the Borrower agrees to pay to the Administrative  Agent, for its own account or the account of the Lenders, as applicable, all loan fees as have been agreed to  in writing by the Borrower and the Administrative Agent.     (b) Unused Facility Fees and Revolving Commitment Fees.  During the period from the  Effective Date to but excluding the Revolving Termination Date, the Borrower agrees to pay to the  Administrative Agent for the account of the Revolving Lenders:     (i) at all times prior to the Investment Grade Rating Date, an unused facility fee equal  to the sum of the daily amount by which the aggregate amount of the Revolving Commitments  exceeds the aggregate outstanding principal balance of Revolving Loans and Letter of Credit  Liabilities set forth in the table below multiplied by the corresponding per annum rate set forth  below:     Amount by Which Revolving Commitments Exceed  Revolving Loans and Letter of Credit Liabilities  Unused Fee  $0 to and including an amount equal to 50% of the  aggregate amount of Revolving Commitments  0.20% per annum  Greater than an amount equal to 50% of the aggregate  amount of Revolving Commitments  0.30% per annum    (ii)  at all times on and after the Investment Grade Rating Date, a commitment fee equal  to the daily aggregate amount of the Revolving Commitments (whether or not utilized) multiplied  by a per annum rate equal to the Applicable Facility Fee.  The Borrower acknowledges that the fee  payable under this subclause (ii) is a bona fide commitment fee and is intended as reasonable  compensation to the Revolving Lenders for committing to make funds available to the Borrower  as described herein and for no other purposes.    All fees in this clause (b) shall be computed on a daily basis and payable quarterly in arrears on the first  day of each January, April, July and October during the term of this Agreement and on the Revolving  Termination Date or any earlier date of termination of the Revolving Commitments or reduction of the  Revolving Commitments to zero.       (c) Letter of Credit Fees.  The Borrower agrees to pay to the Administrative Agent for the  account of each Revolving Lender a letter of credit fee at a rate per annum equal to the Applicable Margin  for Term SOFR Loans that are Revolving Loans times the daily average Stated Amount of each Letter of  Credit for the period from and including the date of issuance of such Letter of Credit (x) to and including  the date such Letter of Credit expires or is cancelled or terminated or (y) to but excluding the date such  Letter of Credit is drawn in full; provided, however, notwithstanding anything to the contrary contained  herein, while any Event of Default exists, such letter of credit fees shall accrue at the Post-Default Rate.  In  addition to such fees, the Borrower shall pay to each Issuing Bank, solely for its own account, a fronting  fee in respect of each Letter of Credit issued by such Issuing Bank equal to twelve and one-half one  hundredths of one percent (0.125%) of the Stated Amount of such Letter of Credit; provided, however, in  no event shall the aggregate amount of such fee in respect of any Letter of Credit be less than $500.  The  fees provided for in this subsection shall be nonrefundable and payable, in the case of the fee provided for  in the first sentence, in arrears (i) quarterly on the first day of January, April, July and October, (ii) on the  Revolving Termination Date, (iii) on the date the Revolving Commitments are terminated or reduced to  zero and (iv) thereafter from time to time on demand of the Administrative Agent and in the case of the fee  





 






  60  LEGAL02/41986661v10  provided for in the second sentence, at the time of issuance of such Letter of Credit.  The Borrower shall  pay directly to the Issuing Banks from time to time on demand all commissions, charges, costs and expenses  in the amounts customarily charged or incurred by such Issuing Bank from time to time in like  circumstances with respect to the issuance, amendment, renewal or extension of any Letter of Credit issued  by such Issuing Bank or any other transaction relating thereto.     (d) Revolving Commitment Extension Fee.  If the Revolving Termination Date is being  extended in accordance with Section 2.13.(a)., the Borrower shall pay to the Administrative Agent for the  account of each Revolving Lender a fee for each such extension equal to seventy-five one-thousandths of  one percent (0.075%) of the amount of such Lender’s Revolving Commitment (whether or not utilized).   Such fee shall be due and payable in full on the effective date of such extension.     (e) Term 2 Loan Extension Fee.  If the Term 2 Loan Maturity Date is being extended in  accordance with Section 2.13.(b)., the Borrower shall pay to the Administrative Agent for the account of  each Term 2 Loan Lender a fee for such extension equal to fifteen hundredths of one percent (0.15%) of  the amount of such Lender’s Term 2 Loan Commitment.  Such fee shall be due and payable in full on the  effective date of such extension.     (f) Administrative and Other Fees.  The Borrower agrees to pay the administrative fees,  arrangement fees and other fees of the Administrative Agent and the Lead Arrangers as provided in the Fee  Letters and as may be otherwise agreed to in writing from time to time by the Borrower and the  Administrative Agent.    Section 3.6.  Computations.   Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any other  Obligations due hereunder shall be computed on the basis of a year of 360 days and the actual number of  days elapsed.    Section 3.7.  Usury.   In no event shall the amount of interest due or payable on the Loans or other Obligations exceed  the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by the Borrower  or any other Loan Party or received by any Lender, then such excess sum shall be credited as a payment of  principal, unless the Borrower shall notify the respective Lender in writing that the Borrower elects to have  such excess sum returned to it forthwith.  It is the express intent of the parties hereto that the Borrower not  pay and the Lenders not receive, directly or indirectly, in any manner whatsoever, interest in excess of that  which may be lawfully paid by the Borrower under Applicable Law.  The parties hereto hereby agree and  stipulate that the only charge imposed upon the Borrower for the use of money in connection with this  Agreement is and shall be the interest specifically described in Section 2.5.(a)(i) and (ii) and, with respect  to Swingline Loans, in Section 2.6.(c).  Notwithstanding the foregoing, the parties hereto further agree and  stipulate that all agency fees, syndication fees, commitment fees, facility fees, closing fees, letter of credit  fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased cost  charges, attorneys’ fees and reimbursement for costs and expenses paid by the Administrative Agent or any  Lender to third parties or for damages incurred by the Administrative Agent or any Lender, in each case in  connection with the transactions contemplated by this Agreement and the other Loan Documents are  charges made to compensate the Administrative Agent or any such Lender for underwriting or  administrative services and costs or losses performed or incurred, and to be performed or incurred, by the  Administrative Agent and the Lenders in connection with this Agreement and shall under no circumstances  be deemed to be charges for the use of money.  All charges other than charges for the use of money shall  be fully earned and nonrefundable when due.  





 






  61  LEGAL02/41986661v10    Section 3.8.  Statements of Account.   The Administrative Agent will account to the Borrower quarterly with a statement of Loans,  accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan  Documents, and such account rendered by the Administrative Agent shall be deemed conclusive upon the  Borrower absent manifest error.  The failure of the Administrative Agent to deliver such a statement of  accounts shall not relieve or discharge the Borrower from any of its obligations hereunder.    Section 3.9.  Defaulting Lenders.   Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a  Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent  permitted by Applicable Law:     (a) 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 Requisite Lenders and in Section 13.5.     (b) 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 XI. or otherwise) or received by the Administrative Agent from  a Defaulting Lender pursuant to Section 13.3. 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, in the case of a Defaulting Lender that is a  Revolving Lender, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to  the Issuing Banks or the Swingline Lender hereunder; third, in the case of a Defaulting Lender that is a  Revolving Lender, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such  Defaulting Lender in accordance with subsection (e) below; fourth, 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; fifth, if so determined by the Administrative Agent and the Borrower, to be held in  a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future  funding obligations with respect to Revolving Loans under this Agreement and (y) in the case of a  Defaulting Lender that is a Revolving Lender, Cash Collateralize the Issuing Banks’ future Fronting  Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this  Agreement, in accordance with subsection (e) below; sixth, to the payment of any amounts owing to the  Lenders, the Issuing Banks or the Swingline Lender as a result of any judgment of a court of competent  jurisdiction obtained by any Lender, any Issuing Bank or the Swingline Lender against such Defaulting  Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, 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 eighth, 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 of any Class or amounts  owing by such Defaulting Lender under Section 2.3.(j) in respect of Letters of Credit (such amounts  “L/C Disbursements”), in respect of which such Defaulting Lender has not fully funded its appropriate  share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the  conditions set forth in Article VI. were satisfied or waived, such payment shall be applied solely to pay the  Loans of such Class of, and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis  prior to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting  





 






  62  LEGAL02/41986661v10  Lender until such time as all Loans of such Class and, as applicable, funded and unfunded participations in  Letter of Credit Liabilities and Swingline Loans are held by the Revolving Lenders pro rata in accordance  with their respective Revolving Commitment Percentages (determined without giving effect to the  immediately following subsection (d)) and all Term Loans are held by the Term Loan Lenders pro rata as  if there had been no Defaulting Lenders that are Term Loan Lenders.  Any payments, prepayments or other  amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a  Defaulting Lender or to post Cash Collateral pursuant to this subsection shall be deemed paid to and  redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.     (c) Certain Fees.     (i) No Defaulting Lender shall be entitled to receive any Fee payable under  Section 3.5.(b) for any period during which that 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 that Defaulting Lender.     (ii) Each Defaulting Lender that is a Revolving Lender shall be entitled to receive the  Fee payable under Section 3.5.(c) for any period during which that Lender is a Defaulting Lender  only to the extent allocable to its Revolving Commitment Percentage of the stated amount of Letters  of Credit for which it has provided Cash Collateral pursuant to the immediately following  subsection (e).     (iii) With respect to any Fee not required to be paid to any Defaulting Lender that is a  Revolving Lender pursuant to the immediately preceding clause (ii), the Borrower shall (x) pay to  each Non-Defaulting Lender that is a Revolving Lender that portion of any such Fee otherwise  payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter  of Credit Liabilities or Swingline Loans that has been reallocated to such Non-Defaulting Lender  pursuant to the immediately following subsection (d), (y) pay to each Issuing Bank and the  Swingline Lender, as applicable, the amount of any such Fee otherwise payable to such Defaulting  Lender to the extent allocable to such Issuing Banks’s or Swingline Lender’s Fronting Exposure to  such Defaulting Lender, and (z) not be required to pay the remaining amount of any such Fee.     (d) Reallocation of Participations to Reduce Fronting Exposure.  In the case of a Defaulting  Lender that is a Revolving Lender, all or any part of such Defaulting Lender’s participation in Letter of  Credit Liabilities and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in  accordance with their respective Revolving Commitment Percentages (determined without regard to such  Defaulting Lender’s Revolving Commitment) but only to the extent that such reallocation does not cause  the aggregate Revolving Credit Exposure of any Non-Defaulting Lender that is a Revolving Lender to  exceed such Non-Defaulting Lender’s Revolving Commitment.  Subject to Section 13.22., no reallocation  hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting  Lender arising from that Revolving Lender having become a Defaulting Lender, including any claim of a  Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such  reallocation.     (e) Cash Collateral, Repayment of Swingline Loans.     (i) If the reallocation described in the immediately preceding subsection (d) above  cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or  remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal  to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize each Issuing  Bank’s Fronting Exposure in accordance with the procedures set forth in this subsection.  





 






  63  LEGAL02/41986661v10     (ii) At any time that there shall exist a Defaulting Lender that is a Revolving Lender,  within 1 Business Day following the written request of the Administrative Agent or the applicable  Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize such  Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender (determined after giving  effect to the immediately preceding subsection (d) and any Cash Collateral provided by such  Defaulting Lender) in an amount not less than the aggregate Fronting Exposure of such Issuing  Bank with respect to Letters of Credit issued by such Issuing Bank and outstanding at such time.     (iii) The Borrower, and to the extent provided by any Defaulting Lender that is a  Revolving Lender, such Defaulting Lender, hereby grant to the Administrative Agent, for the  benefit of the applicable Issuing Bank, and agree to maintain, a first priority security interest in all  such Cash Collateral as security for the obligation of Defaulting Lenders that are Revolving  Lenders to fund participations in respect of Letter of Credit Liabilities, to be applied pursuant to  the immediately following clause (iv).  If at any time the Administrative Agent determines that  Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent  and the applicable Issuing Bank as herein provided, or that the total amount of such Cash Collateral  is less than the aggregate Fronting Exposure of the applicable Issuing Bank with respect to Letters  of Credit issued by such Issuing Bank and outstanding at such time, the Borrower will, promptly  upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional  Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash  Collateral provided by the Defaulting Lender that is a Revolving Lender).     (iv) Notwithstanding anything to the contrary contained in this Agreement, Cash  Collateral provided under this Section in respect of Letters of Credit shall be applied to the  satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of  Credit Liabilities (including, as to Cash Collateral provided by a Defaulting Lender, any interest  accrued on such obligation) for which the Cash Collateral was so provided, prior to any other  application of such property as may otherwise be provided for herein.     (v) Cash Collateral (or the appropriate portion thereof) provided to reduce the Issuing  Banks’ Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this  subsection following (x) the elimination of the applicable Fronting Exposure (including by the  termination of Defaulting Lender status of the applicable Revolving Lender), or (y) the  determination by the Administrative Agent and the applicable Issuing Bank that there exists excess  Cash Collateral; provided that, subject to the immediately preceding subsection (b), the Person  providing Cash Collateral and the applicable Issuing Bank may (but shall not be obligated to) agree  that Cash Collateral shall be held to support future anticipated Fronting Exposure or other  obligations and provided further that to the extent that such Cash Collateral was provided by the  Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the  Loan Documents.     (f) Defaulting Lender Cure.  If the Borrower and the Administrative Agent, and solely in the  case of a Defaulting Lender that is a Revolving Lender, the Swingline Lender and the Issuing Banks 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 (which may include arrangements with respect to any Cash Collateral), 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, as applicable, (i) the Revolving  Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Revolving  Lenders in accordance with their respective Revolving Commitment Percentages (determined without  





 






  64  LEGAL02/41986661v10  giving effect to the immediately preceding subsection (d)) and (ii) the Term Loans to be held by the Term  Loan Lenders pro rata as if there had been no Defaulting Lenders of such Class, 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.     (g) New Swingline Loans/Letters of Credit.  So long as any Revolving Lender is a Defaulting  Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans and (ii) no Issuing Bank  shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will  have no Fronting Exposure after giving effect thereto.    Section 3.10.  Taxes.   (a) Issuing Banks.  For purposes of this Section, the term “Lender” includes the Issuing Banks  and the term “Applicable Law” includes FATCA.     (b) Payments Free of Taxes.  Any and all payments by or on account of any obligation of the  Borrower or any other Loan Party under any Loan Document shall be made without deduction or  withholding for any Taxes, except as required by Applicable Law.  If any Applicable Law (as determined  in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of  any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be  entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld  to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an  Indemnified Tax, then the sum payable by the Borrower or other applicable Loan Party shall be increased  as necessary so that after such deduction or withholding has been made (including such deductions and  withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an  amount equal to the sum it would have received had no such deduction or withholding been made.     (c) Payment of Other Taxes by the Borrower.  The Borrower and the other Loan Parties shall  timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of  the Administrative Agent timely reimburse it for the payment of, any Other Taxes.     (d) Indemnification by the Borrower.  The Borrower and the other Loan Parties shall jointly  and severally indemnify each Recipient, 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) payable or paid by such Recipient or required to be withheld or deducted from a payment  to such Recipient and any reasonable expenses arising therefrom or with respect thereto, 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 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.     (e) Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative  Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but  only to the extent that the Borrower or another Loan Party has not already indemnified the Administrative  Agent for such Indemnified Taxes and without limiting the obligation of the Borrower and the other Loan  Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of  Section 13.5. relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable  to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any  





 






  65  LEGAL02/41986661v10  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 any Loan Document or  otherwise payable by the Administrative Agent to the Lender from any other source against any amount  due to the Administrative Agent under this subsection.  The provisions of this subsection shall continue to  inure to the benefit of an Administrative Agent following its resignation or removal as Administrative  Agent.     (f) Evidence of Payments.  As soon as practicable after any payment of Taxes by the Borrower  or any other Loan Party to a Governmental Authority pursuant to this Section, the Borrower or such other  Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by  such Governmental Authority evidencing such payment, a copy of the return reporting such payment or  other evidence of such payment reasonably satisfactory to the Administrative Agent.     (g) Status of Lenders.       (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 Law 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 the immediately following  clauses (ii)(A), (ii)(B) and (ii)(D)) 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), an electronic copy (or an original if requested by  the Borrower or the Administrative Agent) of an executed IRS Form W-9 (or any successor  form) 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:    





 






  66  LEGAL02/41986661v10   (I) 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, an electronic copy (or an original if requested  by the Borrower or the Administrative Agent) of an executed IRS Form W-8BEN,  or W-8BEN-E, 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 or W-8BEN-E, 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;     (II) an electronic copy (or an original if requested by the Borrower or  the Administrative Agent) of an executed IRS Form W-8ECI;     (III) in the case of a Foreign Lender claiming the benefits of the  exemption for portfolio interest under Section 881(c) of the Internal Revenue  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 881(c)(3)(A) of the  Internal Revenue Code, a “10 percent shareholder” of the Borrower within the  meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled  foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue  Code (a “U.S. Tax Compliance Certificate”) and (y) an electronic copy (or an  original if requested by the Borrower or the Administrative Agent) of IRS Form  W-8BEN or W-8BEN-E, as applicable; or     (IV) to the extent a Foreign Lender is not the beneficial owner, an  electronic copy (or an original if requested by the Borrower or the Administrative  Agent) of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI,  IRS Form W-8BEN or W-8BEN-E, 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), an electronic copy (or an original if  requested by the Borrower or the Administrative Agent) of any other form prescribed by  Applicable Law 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 Law 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  





 






  67  LEGAL02/41986661v10  Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall  deliver to the Borrower and the Administrative Agent at the time or times prescribed by  Applicable Law and at such time or times reasonably requested by the Borrower or the  Administrative Agent such documentation prescribed by Applicable Law (including as  prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue 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 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.    Each Lender agrees that if any form or certification it previously delivered 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.     (h) Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in  good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this  Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the  indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made  under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses  (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant  Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such  indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection  (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event  that such indemnified party is required to repay such refund to such Governmental Authority.   Notwithstanding anything to the contrary in this subsection, in no event will the indemnified party be  required to pay any amount to an indemnifying party pursuant to this subsection the payment of which  would place the indemnified party in a less favorable net after-Tax position than the indemnified party  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 indemnified  party to make available its Tax returns (or any other information relating to its Taxes that it deems  confidential) to the indemnifying party or any other Person.     (i) Survival.  Each party’s obligations under this Section 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 obligations under  any Loan Document.    ARTICLE IV.  INTENTIONALLY OMITTED.  ARTICLE V. YIELD PROTECTION, ETC.  Section 5.1.  Additional Costs; Capital Adequacy.   (a) Capital Adequacy.  If any Lender determines that any Regulatory Change affecting such  Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital  or liquidity ratios or 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 Commitments of such Lender or the Loans made by, or participations in Letters of Credit  





 






  68  LEGAL02/41986661v10  or Swingline Loans held by, such Lender, to a level below that which such Lender or such Lender’s holding  company could have achieved but for such Regulatory Change (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 Borrower will pay to such Lender such additional amount or amounts as will compensate  such Lender or such Lender’s holding company for any such reduction suffered.     (b) Additional Costs.  In addition to, and not in limitation of the immediately preceding  subsection (a), the Borrower shall promptly pay to the Administrative Agent for the account of a Lender  from time to time such amounts as such Lender may determine to be necessary to compensate such Lender  for any costs incurred by such Lender that it reasonably determines are attributable to its making,  maintaining, continuing or converting of any Term SOFR Loans or its obligation to make any Term SOFR  Loans hereunder, any reduction in any amount receivable by such Lender under this Agreement or any of  the other Loan Documents in respect of any of such Term SOFR Loans or such obligation or the  maintenance by such Lender of capital in respect of its Term SOFR Loans or its Commitments (such  increases in costs and reductions in amounts receivable being herein called “Additional Costs”), resulting  from any Regulatory Change that:  (i) changes the basis of taxation of any amounts payable to such Lender  under this Agreement or any of the other Loan Documents in respect of any of such Term SOFR Loans or  its Commitments (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition  of Excluded Taxes and Connection Income Taxes); or (ii) imposes or modifies any reserve, special deposit,  compulsory loan, insurance charge or similar requirements (other than Regulation D of the Board of  Governors of the Federal Reserve System or other similar reserve requirement applicable to any other  category of liabilities or category of extensions of credit or other assets by reference to which the interest  rate on Term SOFR Loans is determined to the extent utilized when determining Term SOFR for such  Loans) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, or  other credit extended by, or any other acquisition of funds by such Lender (or its parent corporation), or  any commitment of such Lender (including, without limitation, the Commitments of such Lender  hereunder) or (iii) imposes on any Lender or the London interbank market any other condition, cost or  expense (other than Taxes) affecting this Agreement or the Loans made by such Lender.     (c) Lender’s Suspension of Term SOFR Loans.  Without limiting the effect of the provisions  of the immediately preceding subsections (a) and (b), if by reason of any Regulatory Change, any Lender  either (i) incurs Additional Costs based on or measured by the excess above a specified level of the amount  of a category of deposits or other liabilities of such Lender that includes deposits by reference to which the  interest rate on Term SOFR Loans is determined as provided in  this Agreement or a category of extensions  of credit or other assets of such Lender that includes Term SOFR Loans or (ii) becomes subject to  restrictions on the amount of such a category of liabilities or assets that it may hold, then, if such Lender so  elects by notice to the Borrower (with a copy to the Administrative Agent), the obligation of such Lender  to make or Continue, or to Convert Base Rate Loans into, Term SOFR Loans shall be suspended until such  Regulatory Change ceases to be in effect (in which case the provisions of Section 5.5. shall apply).     (d) Additional Costs in Respect of Letters of Credit.  Without limiting the obligations of the  Borrower under the preceding subsections of this Section (but without duplication), if as a result of any  Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued  by any Governmental Authority there shall be imposed, modified or deemed applicable any Tax (other than  Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and  Connection Income Taxes), reserve, special deposit, capital adequacy or similar requirement against or with  respect to or measured by reference to Letters of Credit and the result shall be to increase the cost to an  Issuing Bank of issuing (or any Revolving Lender of purchasing participations in) or maintaining its  obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount  receivable by any Issuing Bank or any Revolving Lender hereunder in respect of any Letter of Credit, then,  upon demand by the such Issuing Bank or such Lender, the Borrower shall pay promptly, and in any event  





 






  69  LEGAL02/41986661v10  within 3 Business Days of demand, to the applicable Issuing Bank or, in the case of such Lender, to the  Administrative Agent for the account of such Lender, from time to time as specified by such Issuing Bank  or such Lender, such additional amounts as shall be sufficient to compensate such Issuing Bank or such  Lender for such increased costs or reductions in amount.     (e) Notification and Determination of Additional Costs.  Each of the Administrative Agent,  each Issuing Bank, each Lender, and each Participant, as the case may be, agrees to notify the Borrower of  any event occurring after the Agreement Date entitling the Administrative Agent, such Issuing Bank, such  Lender or such Participant to compensation under any of the preceding subsections of this Section as  promptly as practicable; provided, however, that the failure of the Administrative Agent, any Issuing Bank,  any Lender or any Participant to give such notice shall not release the Borrower from any of its obligations  hereunder (and in the case of a Lender, to the Administrative Agent); provided further that no Lender shall  be entitled to claim any additional cost, reduction in amounts, loss, tax or other additional amount under  this Article V if such Lender fails to provide such notice to the Borrower within 180 days of the date such  Lender becomes aware of the occurrence of the event giving rise to the additional cost, reduction in  amounts, loss, tax or other additional amount.  The Administrative Agent, each Issuing Bank, each Lender  and each Participant, as the case may be, agrees to furnish to the Borrower (and in the case of the Issuing  Banks, a Lender or a Participant to the Administrative Agent as well) a certificate setting forth in reasonable  detail the basis and amount of each request for compensation under this Section.  Determinations by the  Administrative Agent, such Issuing Bank, such Lender, or such Participant, as the case may be, of the effect  of any Regulatory Change shall be conclusive and binding for all purposes, provided that such  determination is made on a reasonable basis and in good faith.      Section 5.2.  Changed Circumstances.   (a) Anything herein to the contrary notwithstanding and unless and until a Benchmark  Replacement is implemented in accordance with Section 5.2.(b) below, if, on or prior to the determination  of Term SOFR for any Interest Period:    (i) the Administrative Agent shall determine (which determination shall be  conclusive) that reasonable and adequate means do not exist for ascertaining Term SOFR for such  Interest Period; or     (ii) the Requisite Lenders reasonably determine (which determination shall be  conclusive) that the relevant rates of interest referred to in the definition of Term SOFR upon the  basis of which the rate of interest for Term SOFR Loans for such Interest Period is to be determined  do not adequately and fairly cover the cost to the Lenders of making or maintaining Term SOFR  Loans for such Interest Period;     then the Administrative Agent shall give the Borrower and each Lender prompt notice thereof and, so long  as such condition remains in effect, the Lenders shall be under no obligation to, and shall not, make  additional Term SOFR Loans (without limiting the obligation to make Base Rate Loans), Continue Term  SOFR Loans or Convert Loans into Term SOFR Loans and the Borrower shall, on the last day of each  current Interest Period for each outstanding Term SOFR Loan, either prepay such Loan or Convert such  Loan into a Base Rate Loan.     (b)  Benchmark Replacement Setting.        (i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in  any other Loan Document, upon the occurrence of a Benchmark Transition Event, the Administrative Agent  and the Borrower may amend this Agreement to replace the then-current Benchmark with a Benchmark  





 






  70  LEGAL02/41986661v10  Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective  at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed  amendment to all affected Lenders and the Borrower so long as the Administrative Agent has not received,  by such time, written notice of objection to such amendment from Lenders comprising the Requisite  Lenders.  No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 5.2(b)(i)  will occur prior to the applicable Benchmark Transition Start Date.      (ii) Benchmark Replacement Conforming Changes.   In connection with the use,  administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will  have the right, in consultation with the Borrower, to make Conforming Changes from time to time and,  notwithstanding anything to the contrary herein or in any other Loan Document, any amendments  implementing such Conforming Changes will become effective without any further action or consent of  any other party to this Agreement or any other Loan Document.      (iii) Notices; Standards for Decisions and Determinations. The Administrative Agent  will promptly notify the Borrower and the Lenders of (A) the implementation of any Benchmark  Replacement and (B) the effectiveness of any Conforming Changes in connection with the use,  administration, adoption or implementation of a Benchmark Replacement.  The Administrative Agent will  promptly notify the Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to  Section 5.2(b)(iv).  Any determination, decision or election that may be made by the Administrative Agent  or, if applicable, the Borrower or any Lender (or group of Lenders) pursuant to this Section 5.2(b), including  any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an  event, circumstance or date and any decision to take or refrain from taking any action or any selection, will  be conclusive and binding absent manifest error and may be made in its or their sole discretion and without  consent from any other party to this Agreement or any other Loan Document, except, in each case, as  expressly required pursuant to this Section 5.2(b).     (iv) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary  herein or in any other Loan Document, at any time (including in connection with the implementation of a  Benchmark Replacement), (A) if the then-current Benchmark is a term rate (including the Term SOFR  Reference Rate) and either (1) any tenor for such Benchmark is not displayed on a screen or other  information service that publishes such rate from time to time as selected by the Administrative Agent in  its reasonable discretion or (2) the regulatory supervisor for the administrator of such Benchmark has  provided a public statement or publication of information announcing that any tenor for such Benchmark  is not or will not be representative, then the Administrative Agent may modify the definition of “Interest  Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove  such unavailable or non-representative tenor and (B) if a tenor that was removed pursuant to clause (A)  above either (1) is subsequently displayed on a screen or information service for a Benchmark (including a  Benchmark Replacement) or (2) is not, or is no longer, subject to an announcement that it is not or will not  be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent  may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark  settings at or after such time to reinstate such previously removed tenor.     (v) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the  commencement of a Benchmark Unavailability Period, (A) the Borrower may revoke any pending request  for a borrowing of, conversion to or continuation of Term SOFR Loans to be made, converted or continued  during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have  converted any such request into a request for a borrowing of or conversion to Base Rate Loans and (B) any  outstanding affected Term SOFR Loans will be deemed to have been converted to Base Rate Loans at the  end of the applicable Interest Period.  During any Benchmark Unavailability Period or at any time that a  tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based  





 






  71  LEGAL02/41986661v10  upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any  determination of the Base Rate.     Section 5.3.  Illegality.   Notwithstanding any other provision of this Agreement, if any Lender shall reasonably determine  (which determination shall be conclusive and binding) that it has become unlawful for such Lender to honor  its obligation to make or maintain Term SOFR Loans hereunder, then such Lender shall promptly notify  the Borrower thereof (with a copy of such notice to the Administrative Agent) and such Lender’s obligation  to make or Continue, or to Convert Loans of any other Type into, Term SOFR Loans shall be suspended,  in each case, until such time as such Lender may again make and maintain Term SOFR Loans (in which  case the provisions of Section 5.5. shall be applicable (without limiting the obligation to make Base Rate  Loans)).    Section 5.4.  Compensation.   The Borrower shall pay to the Administrative Agent for the account of each Lender, upon the  request of the Administrative Agent, such amount or amounts as the Administrative Agent shall determine  in its reasonable discretion shall be sufficient to compensate such Lender for any loss, cost or expense  (excluding lost profits) attributable to:     (a) any payment or prepayment (whether mandatory or optional) of a Term SOFR  Loan, or Conversion of a Term SOFR Loan, made by such Lender for any reason (including,  without limitation, acceleration) on a date other than the last day of the Interest Period for such  Loan; or     (b) any failure by the Borrower for any reason (including, without limitation, the  failure of any of the applicable conditions precedent specified in Article VI. to be satisfied) to  borrow a Term SOFR Loan from such Lender on the date for such borrowing, or to Convert a Base  Rate Loan into a Term SOFR Loan or Continue a Term SOFR Loan on the requested date of such  Conversion or Continuation.    Not in limitation of the foregoing, such compensation shall include, without limitation, in the case of a  Term SOFR Loan, an amount equal to the then present value of (A) the amount of interest that would have  accrued on such Term SOFR Loan for the remainder of the Interest Period at the rate applicable to such  Term SOFR Loan, less (B) the amount of interest that would accrue on the same Term SOFR Loan for the  same period if Adjusted Term SOFR were set on the date on which such Term SOFR Loan was repaid,  prepaid or Converted or the date on which the Borrower failed to borrow, Convert or Continue such Term  SOFR Loan  calculating present value by using as a discount rate Adjusted Term SOFR quoted on such  date.  Upon the Borrower’s request, the Administrative Agent shall provide the Borrower with a statement  setting forth in reasonable detail the basis for requesting such compensation and the method for determining  the amount thereof.  Any such statement shall be conclusive provided that such determination is made on a  reasonable basis and in good faith.     Section 5.5.  Treatment of Affected Loans.   If the obligation of any Lender to make Term SOFR Loans or to Continue, or to Convert Base Rate  Loans into, Term SOFR Loans shall be suspended pursuant to Section 5.1.(c), Section 5.2. or Section 5.3.  then such Lender’s Term SOFR Loans shall be automatically Converted into Base Rate Loans on the last  day(s) of the then current Interest Period(s) for Term SOFR Loans (or, in the case of a Conversion required  by Section 5.1.(c), Section 5.2., or Section 5.3. on such earlier date as such Lender or the Administrative  





 






  72  LEGAL02/41986661v10  Agent, as applicable, may specify to the Borrower (with a copy to the Administrative Agent, as applicable)  and, unless and until such Lender or the Administrative Agent, as applicable, gives notice as provided below  that the circumstances specified in Section 5.1., Section 5.2. or Section 5.3. that gave rise to such  Conversion no longer exist:    (i) to the extent that such Lender’s Term SOFR Loans have been so Converted, all  payments and prepayments of principal that would otherwise be applied to such Lender’s Term  SOFR Loans shall be applied instead to its Base Rate Loans; and    (ii) all Loans that would otherwise be made or Continued by such Lender as Term  SOFR Loans shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans of  such Lender that would otherwise be Converted into Term SOFR Loans shall remain as Base Rate  Loans.    If such Lender or the Administrative Agent, as applicable, gives notice to the Borrower (with a copy to the  Administrative Agent, as applicable) that the circumstances specified in Section 5.1.(c), 5.2 or 5.3. that  gave rise to the Conversion of such Lender’s Term SOFR Loans pursuant to this Section no longer exist  (which such Lender agrees to do promptly upon such circumstances ceasing to exist) at a time when Term  SOFR Loans made by other Lenders are outstanding, then such Lender’s Base Rate Loans shall be  automatically Converted, on the first day(s) of the next succeeding Interest Period(s) for such outstanding  Term SOFR Loans, to the extent necessary so that, after giving effect thereto, all Loans held by the Lenders  holding Term SOFR Loans and by such Lender are held pro rata (as to principal amounts, Types and Interest  Periods) in accordance with their respective Commitments.    Section 5.6.  Change of Lending Office.   Each Lender agrees that it will use reasonable efforts (consistent with its internal policy and legal  and regulatory restrictions) to designate an alternate Lending Office with respect to any of its Loans affected  by the matters or circumstances described in Sections 3.10., 5.1. or 5.3. to reduce the liability of the  Borrower or avoid the results provided thereunder, so long as such designation is not disadvantageous to  such Lender as determined by such Lender in its sole discretion, except that such Lender shall have no  obligation to designate a Lending Office located in the United States of America.    Section 5.7.  Assumptions Concerning Funding of Term SOFR Loans.   Calculation of all amounts payable to a Lender under this Article shall be made as though such  Lender had actually funded Term SOFR Loans through the purchase of deposits in the relevant market  bearing interest at the rate applicable to such Term SOFR Loans in an amount equal to the amount of the  Term SOFR Loans and having a maturity comparable to the relevant Interest Period; provided, however,  that each Lender may fund each of its Term SOFR Loans in any manner it sees fit and the foregoing  assumption shall be used only for calculation of amounts payable under this Article.     Section 5.8.  Affected Lenders.   If (a) a Lender requests compensation pursuant to Section 3.10. or 5.1., and the Requisite Lenders  are not also doing the same, or (b) the obligation of any Lender to make Term SOFR Loans or to Continue,  or to Convert Base Rate Loans into, Term SOFR Loans shall be suspended pursuant to Section 5.1.(b) or  5.3. but the obligation of the Requisite Lenders shall not have been suspended under such Sections, (c) a  Lender does not vote in favor of any amendment, modification or waiver to this Agreement which, pursuant  to Section 13.6.(b), requires the vote of such Lender, and the Requisite Lenders shall have voted in favor  of such amendment, modification or waiver, or (d) a Lender is a Defaulting Lender, then, so long as there  





 






  73  LEGAL02/41986661v10  does not then exist any Default or Event of Default, the Borrower may demand that such Lender (the  “Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its Commitment to  an Eligible Assignee subject to and in accordance with the provisions of Section 13.5.(b) for a purchase  price equal to (x) the aggregate principal balance of all Loans then owing to the Affected Lender plus (y)  the aggregate amount of payments previously made by the Affected Lender under Section 2.3.(j) that have  not been repaid, plus (z) any accrued but unpaid interest thereon and accrued but unpaid fees owing to the  Affected Lender, or any other amount as may be mutually agreed upon by such Affected Lender and  Eligible Assignee.  Each of the Administrative Agent and the Affected Lender shall reasonably cooperate  in effectuating the replacement of such Affected Lender under this Section, but at no time shall the  Administrative Agent, such Affected Lender, any other Lender nor any Titled Agent be obligated in any  way whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee.  The exercise  by the Borrower of its rights under this Section shall be at the Borrower’s sole cost and expense and at no  cost or expense to the Administrative Agent, the Affected Lender or any of the other Lenders.  The terms  of this Section shall not in any way limit the Borrower’s obligation to pay to any Affected Lender  compensation owing to such Affected Lender pursuant to this Agreement (including, without limitation,  pursuant to Sections 3.10., 5.1. or 5.4.) with respect to the periods up to the date of replacement.    ARTICLE VI. CONDITIONS PRECEDENT  Section 6.1.  Initial Conditions Precedent.   The obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder,  whether as the making of a Loan or the issuance of a Letter of Credit, is subject to the satisfaction of the  following conditions precedent:     (a) The Administrative Agent shall have received each of the following, in form and substance  satisfactory to the Administrative Agent:    (i) counterparts of this Agreement executed by each of the parties hereto;    (ii) Notes of each Class executed by the Borrower, payable to each Lender of such  Class (other than any Lender that has requested that it not receive a Note) and complying with the  terms of Section 2.11.(a) and a replacement Swingline Note executed by the Borrower;    (iii) the Guaranty executed by each of the Parent and each Material Subsidiary existing  as of the Effective Date;    (iv) the certificate or articles of incorporation or formation, articles of organization,  certificate of limited partnership, declaration of trust or other comparable organizational instrument  (if any) of each Loan Party certified by the Secretary or Assistant Secretary (or other individual  performing similar functions) of such Loan Party as being a true, correct and complete copy thereof  as of the Agreement Date;    (v) a certificate of good standing (or certificate of similar meaning) with respect to  each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each  such Loan Party and certificates of qualification to transact business or other comparable  certificates issued as of a recent date by each Secretary of State (and any state department of  taxation, as applicable) of each state in which such Loan Party is required to be so qualified and  where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;    





 






  74  LEGAL02/41986661v10  (vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other  individual performing similar functions) of each Loan Party with respect to each of the officers of  such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party  is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the  Borrower Notices of Borrowing, Notices of Conversion, Notices of Continuation, Notices of  Swingline Borrowing, and to request issuance of Letters of Credit;    (vii) copies certified by the Secretary or Assistant Secretary (or other individual  performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a  corporation, the operating agreement, if a limited liability company, the partnership agreement, if  a limited or general partnership, or other comparable document in the case of any other form of  legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan  Party to authorize the execution, delivery and performance of the Loan Documents to which it is a  party;    (viii) an opinion of counsel to the Loan Parties (other than any Accommodation  Subsidiary that is not a Material Subsidiary), addressed to the Administrative Agent and the  Lenders and covering such customary matters as may be required by the Administrative Agent;    (ix) evidence that the Fees then due and payable under Section 3.5., together with all  other fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the  Lead Arrangers and any of the Lenders, including without limitation, the fees and expenses of  counsel to the Administrative Agent, have been paid;     (x) a Compliance Certificate calculated as of the Effective Date (giving pro forma  effect to the financing evidenced by this Agreement and the use of the proceeds of the Loans to be  funded on the Agreement Date);     (xi) a certificate by a Responsible Officer of the Borrower certifying that, as of the  Effective Date, (i) the Liens securing the Existing Term Loan have been released or shall be  released substantially simultaneously with the effectiveness of this Agreement, (ii) the Covenant  Relief Period under the Existing Credit Agreement and the Existing Term Loan Agreement has  ended, and (iii) the Restriction Period under the Existing Credit Agreement and the Existing Term  Loan Agreement has ended;     (xii) a Disbursement Instruction Agreement effective as of the Agreement Date;    (xiii) (x) evidence of repayment in full of the “Term Loan” under and as defined in the  Existing Credit Agreement and (y) evidence of termination of the Existing Term Loan Agreement and  the repayment in full of the Existing Term Loan and all other obligations in connection with the Existing  Term Loan Agreement, and the release of all Liens securing the Existing Term Loan; and     (xiv) such other documents, agreements and instruments as the Administrative Agent,  or any Lender through the Administrative Agent, may reasonably request.    The provisions of clauses (iv) through (viii) of the immediately preceding subsection (a) shall not apply to  Accommodation Subsidiaries that are not also Material Subsidiaries.     (b) There shall not have occurred or become known to the Administrative Agent or any of the  Lenders any event, condition, situation or status since the date of the information contained in the financial  and business projections, budgets, pro forma data and forecasts concerning the Parent, the Borrower and its  





 






  75  LEGAL02/41986661v10  Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has  had or could reasonably be expected to result in a Material Adverse Effect;    (c) No litigation, action, suit, investigation or other arbitral, administrative or judicial  proceeding shall be pending or threatened in writing which could reasonably be expected to (i) result in a  Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise  materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations  under the Loan Documents to which it is a party;     (d) The Parent, the Borrower and its Subsidiaries shall have received all approvals, consents  and waivers, and shall have made or given all necessary filings and notices as shall be required to  consummate the transactions contemplated hereby without the occurrence of any default under, conflict  with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any  Loan Party is a party or by which any of them or their respective properties is bound, except for such  approvals, consents, waivers, filings and notices the receipt, making or giving of which would not  reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially  burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any  other Loan Party to fulfill its obligations under the Loan Documents to which it is a party; and    (e) The Borrower and each other Loan Party shall have provided to the Administrative Agent  and the Lenders the documentation and other information requested by the Administrative Agent in order  to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, the  PATRIOT Act and any applicable “know your customer” rules and regulations.    (f) Each Loan Party or Subsidiary thereof that qualifies as a “legal entity customer” under the  Beneficial Ownership Regulation shall have delivered to the Administrative Agent, and any Lender  requesting the same, a Beneficial Ownership Certification in relation to such Loan Party or such Subsidiary,  in each case at least five (5) Business Days prior to the Effective Date.    Section 6.2.  Conditions Precedent to All Loans and Letters of Credit.   The obligations of (i) Lenders to make any Loans and (ii) the Issuing Banks to issue Letters of  Credit are each subject to the further conditions precedent that: (a) no Default or Event of Default shall  exist as of the date of the making of such Loan or date of issuance of such Letter of Credit or would exist  immediately after giving effect thereto, and no violation of the limits described in Section 2.15. would occur  after giving effect thereto; (b) the representations and warranties made or deemed made by the Parent, the  Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true  and correct in all material respects (or, to the extent qualified by materiality or Material Adverse Effect, in  all respects) on and as of the date of the making of such Loan or date of issuance of such Letter of Credit  with the same force and effect as if made on and as of such date (except to the extent that such  representations and warranties expressly relate solely to an earlier date (in which case such representations  and warranties shall have been true and correct in all material respects (or, to the extent qualified by  materiality or Material Adverse Effect, in all respects) on and as of such earlier date) and except for changes  in factual circumstances not prohibited under the Loan Documents; and (c) in the case of the borrowing of  Revolving Loans, the Administrative Agent shall have received a timely Notice of Borrowing, and in the  case of a Swingline Loan, the Swingline Lender shall have received a timely Notice of Swingline  Borrowing, and in the case of the issuance of a Letter of Credit, the Issuing Banks and the Administrative  Agent shall have received a timely request for the issuance of such Letter of Credit. Each Credit Event shall  constitute a certification by the Borrower to the effect set forth in clauses (a) and (b) in the preceding  sentence (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower  otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of such  





 






  76  LEGAL02/41986661v10  occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the  Administrative Agent and the Lenders at the time any Loan is made or any Letter of Credit is issued that  all conditions to the making of such Loan or issuing of such Letter of Credit contained in this Section have  been satisfied.     ARTICLE VII. REPRESENTATIONS AND WARRANTIES  Section 7.1.  Representations and Warranties.   In order to induce the Administrative Agent and each Lender to enter into this Agreement and to  make Loans and, in the case of the Issuing Banks, to issue Letters of Credit, the Parent and the Borrower  represent and warrant to the Administrative Agent, each Issuing Bank and each Lender as follows:     (a) Organization; Power; Qualification.  Each of the Parent, the Borrower, the other Loan  Parties and the other Subsidiaries is a corporation, partnership, limited liability company or other legal  entity, duly organized or formed, validly existing and in good standing under the jurisdiction of its  incorporation or formation, has the power and authority to own or lease its respective properties and to  carry on its respective business as now being and hereafter proposed to be conducted and is duly qualified  and is in good standing as a foreign corporation, limited liability company, partnership or other legal entity,  and authorized to do business, in each jurisdiction in which the character of its properties or the nature of  its business requires such qualification or authorization and where the failure to be so qualified or authorized  could reasonably be expected to have, in each instance, a Material Adverse Effect.     (b) Ownership Structure.  As of the Effective Date, Part I of Schedule 7.1.(b) is a complete  and correct list of all Subsidiaries of the Parent setting forth for each such Subsidiary, (i) the jurisdiction of  organization of such Subsidiary, (ii) each Person holding any Equity Interests in such Subsidiary, (iii) the  nature of the Equity Interests held by each such Person, (iv) the percentage of ownership of such Subsidiary  represented by such Equity Interests and (v) whether such Subsidiary is a Material Subsidiary, a Significant  Subsidiary, an Excluded Subsidiary, an Accommodation Subsidiary on the Effective Date or none of the  foregoing.  Except as disclosed in such Schedule, as of the Effective Date (A) each of the Parent and its  Subsidiaries owns, free and clear of all Liens (other than Permitted Liens), and has the unencumbered right  to vote, all outstanding Equity Interests in each Person shown to be held by it on such Schedule 7.1.(b),  (B) all of the issued and outstanding capital stock of each such Person organized as a corporation is validly  issued, fully paid and nonassessable and (C) there are no outstanding subscriptions, options, warrants,  commitments, preemptive rights or agreements of any kind (including, without limitation, any  stockholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or outstanding  securities convertible into, any additional shares of capital stock of any class, or partnership or other  ownership interests of any type in, any such Person.  As of the Effective Date, Part II of Schedule 7.1.(b)  correctly sets forth all Unconsolidated Affiliates of the Parent, including the correct legal name of such  Person, the type of legal entity which each such Person is, and all Equity Interests in such Person held  directly or indirectly by the Parent.     (c) Authorization of Loan Documents and Borrowings.  The Borrower has the right and power,  and has taken all necessary action to authorize it, to borrow and obtain other extensions of credit hereunder.   The Borrower and each other Loan Party has the right and power, and has taken all necessary action to  authorize it, to execute, deliver and perform each of the Loan Documents and the Fee Letters to which it is  a party in accordance with their respective terms and to consummate the transactions contemplated hereby  and thereby.  The Loan Documents and the Fee Letters to which any Loan Party is a party have been duly  executed and delivered by the duly authorized officers, agents and/or signatories of such Person and each  is a legal, valid and binding obligation of such Person enforceable against such Person in accordance with  its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws  





 






  77  LEGAL02/41986661v10  affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of  certain obligations (other than the payment of principal) contained herein or therein and as may be limited  by equitable principles generally.     (d) Compliance of Loan Documents with Laws, Etc.  The execution, delivery and performance  of this Agreement, the Notes, the other Loan Documents to which any Loan Party is a party and of the Fee  Letters in accordance with their respective terms and the borrowings and other extensions of credit  hereunder do not and will not, by the passage of time, the giving of notice, or both:  (i) require any  Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating to the  Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the  organizational documents of any Loan Party, or any indenture, agreement or other instrument to which the  Borrower or any other Loan Party is a party or by which it or any of its respective properties may be bound;  or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now  owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its  benefit and the benefit of the other Lender Parties.     (e) Compliance with Law; Governmental Approvals.  Each of the Borrower, the other Loan  Parties and the other Subsidiaries is in compliance with each Governmental Approval applicable to it and  in compliance with all other Applicable Laws (including, without limitation, Environmental Laws) relating  to it except for noncompliances which, and Governmental Approvals the failure to possess which, could  not, in the aggregate, reasonably be expected to cause a Default or Event of Default or have a Material  Adverse Effect.     (f) Title to Properties; Liens.  As of the Effective Date, Part I of Schedule 7.1.(f) is a complete  and correct listing of all real estate assets of the Parent, the Borrower, each other Loan Party and each other  Subsidiary, setting forth, for each such Property, the average occupancy status of such Property for the  period of twelve consecutive calendar fiscal months ending July 31, 2022.  Each of the Parent, the Borrower,  each other Loan Party and each other Subsidiary has good, marketable and legal title to, or a valid leasehold  interest in, its respective assets (other than Permitted Liens and Liens on assets of an Excluded Subsidiary  securing the Indebtedness which causes such Subsidiary to be an Excluded Subsidiary).  As of the Effective  Date, there are no Liens against any assets of the Parent, the Borrower or any other Subsidiary except for  Permitted Liens and Liens on assets of an Excluded Subsidiary securing the Indebtedness which causes  such Subsidiary to be an Excluded Subsidiary.     (g) Existing Indebtedness; Total Indebtedness.  Schedule 7.1.(g) is, as of the Effective Date, a  complete and correct listing of all Indebtedness (including all Guarantees) of each of the Parent, the  Borrower, the other Loan Parties and the other Subsidiaries, and if such Indebtedness is secured by any  Lien, a description of all of the property subject to such Lien.         (h) Material Contracts.  Excluding Material Contracts evidencing Indebtedness listed on  Schedule 7.1.(g), if any, Schedule 7.1.(h) is, as of the Effective Date, a true, correct and complete listing of  all Material Contracts.  No event or condition which with the giving of notice, the lapse of time, or both,  would permit any party to any such Material Contract to terminate such Material Contract exists.     (i) Litigation.  Except as set forth on Schedule 7.1.(i), there are no actions, suits, investigations  or proceedings pending (nor, to the knowledge of any Responsible Officer of the Parent or the Borrower,  are there any actions, suits or proceedings threatened) against or in any other way relating adversely to or  affecting the Parent, the Borrower, any other Loan Party, any other Subsidiary or any of their respective  property in any court or before any arbitrator of any kind or before or by any other Governmental Authority  which, (i) could reasonably be expected to have a Material Adverse Effect or (ii) in any manner draws into  question the validity or enforceability of any Loan Documents or the Fee Letters.    





 






  78  LEGAL02/41986661v10     (j) Taxes.  Subject to applicable extensions, all federal, state and other material tax returns of  the Parent, the Borrower, each other Loan Party and each other Subsidiary required by Applicable Law to  be filed have been duly filed, and all federal, state and other material Taxes of the Parent, the Borrower,  each other Loan Party, each other Subsidiary and their respective properties, income, profits and assets  which are due and payable have been paid, except any such nonpayment which is at the time permitted  under Section 8.6.  As of the Agreement Date, none of the United States income tax returns of the Parent,  the Borrower any other Loan Party or any other Subsidiary is under audit.  All charges, accruals and reserves  on the books of the Parent, the Borrower, the other Loan Parties and the other Subsidiaries in respect of any  taxes or other governmental charges are in accordance with GAAP.     (k) Financial Statements.  The Borrower has furnished to each Lender copies of (i) the audited  consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal year ended  December 31, 2021, and the related audited consolidated statements of operations, shareholders’ equity and  cash flow for the fiscal year ended on such date, with the opinion thereon of KPMG LLP, and (ii) the  unaudited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal quarter  ended June 30, 2022, and the related unaudited consolidated statements of operations, and cash flow of the  Parent and its consolidated Subsidiaries for the fiscal quarter period ended on such date.  Such balance  sheets and statements (including in each case related schedules and notes) are complete and correct in all  material respects and present fairly, in accordance with GAAP consistently applied throughout the periods  involved, the consolidated financial position of the Parent and its consolidated Subsidiaries as at their  respective dates and the results of operations and the cash flow for such periods (subject, as to interim  statements, to changes resulting from normal year-end audit adjustments).  Neither the Parent nor any of its  Subsidiaries has on the Agreement Date any material contingent liabilities, liabilities, liabilities for taxes,  unusual or long-term commitments or unrealized or forward anticipated losses from any unfavorable  commitments that would be required to be set forth in its financial statements or notes thereto, except as  referred to or reflected or provided for in said financial statements.       (l) No Material Adverse Change.  Since December 31, 2021, there has been no material  adverse change in the business, assets, liabilities, financial condition or results of operations of the Parent  and its Subsidiaries or the Borrower and its Subsidiaries, in each case, taken as a whole.  Each of the  Borrower and the Parent are Solvent, and the other Loan Parties taken as a whole are Solvent.     (m) ERISA.     (i) Each Benefit Arrangement and Plan is in compliance with the applicable  provisions of ERISA, the Internal Revenue Code and other Applicable Laws in all material  respects.  Except with respect to Multiemployer Plans, each Qualified Plan (A) has received a  favorable determination from the Internal Revenue Service indicating that such Qualified Plan is  so qualified, or (B) is maintained under a prototype or volume submitter plan and is entitled to rely  upon a favorable opinion or advisory letter issued by the Internal Revenue Service with respect to  such prototype or volume submitter plan.  To the best knowledge of the Parent and the Borrower,  nothing has occurred which could reasonably be expected to result in the loss of their reliance on  the Qualified Plan’s or Plan’s favorable determination letter, opinion or advisory letter.     (ii) With respect to any Benefit Arrangement that is a retiree welfare benefit  arrangement, all amounts have been accrued on the applicable ERISA Group’s financial statements  in accordance with FASB ASC 715.  The “benefit obligation” of all Plans does not exceed the “fair  market value of plan assets” for such Plans by more than $10,000,000 all as determined by and  with such terms defined in accordance with FASB ASC 715.    





 






  79  LEGAL02/41986661v10   (iii) Except as could not reasonably be expected, individually or in the aggregate, to  have a Material Adverse Effect: (i) no ERISA Event has occurred or is expected to occur; (ii) there  are no pending, or to the best knowledge of the Parent and the Borrower, threatened, claims, actions  or lawsuits or other action by any Governmental Authority, plan participant or beneficiary with  respect to a Benefit Arrangement; (iii) there are no violations of the fiduciary responsibility rules  with respect to any Benefit Arrangement or Plan; (iv)  no member of the ERISA Group has engaged  in a non-exempt “prohibited transaction,” as defined in Section 406 of ERISA and Section 4975 of  the Internal Revenue Code, in connection with any Benefit Arrangement or Plan, that would subject  the Parent or Borrower to a tax on prohibited transactions imposed by Section 502(i) of ERISA or  Section 4975 of the Internal Revenue Code and (v) no assessment or tax has arisen under Section  4980H of the Internal Revenue Code.     (n) Not Plan Assets; No Prohibited Transactions.  None of the assets of the Parent, the  Borrower, any other Loan Party or any other Subsidiary constitutes “plan assets” within the meaning of  ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder.  Assuming that  no Lender funds any amount payable by it hereunder with “plan assets,” as that term is defined in 29 C.F.R.  2510.3-101, the execution, delivery and performance of this Agreement and the other Loan Documents,  and the borrowing and repayment of amounts hereunder, do not and will not constitute “prohibited  transactions” under Section 406 of ERISA or Section 4975 of the Internal Revenue Code.     (o) Absence of Defaults.  None of the Loan Parties or any of the other Subsidiaries is in default  under its certificate or articles of incorporation or formation, bylaws, partnership agreement or other similar  organizational documents, and no event has occurred, which has not been remedied, cured or waived,  which, in any such case:  (i) constitutes a Default or an Event of Default; or (ii) constitutes, or which with  the passage of time, the giving of notice, or both, would constitute, a default or event of default by the  Parent, the Borrower, any other Loan Party or any other Subsidiary under any agreement (other than this  Agreement) or judgment, decree or order to which any such Person is a party or by which any such Person  or any of its respective properties may be bound where such default or event of default could, individually  or in the aggregate, reasonably be expected to have a Material Adverse Effect.     (p) Environmental Laws.  In the ordinary course of business each of the Parent, the Borrower,  each other Loan Party and each other Subsidiary reviews the compliance with Environmental Laws of its  respective business, operations and properties.  Each of the Parent, the Borrower, each other Loan Party  and the other Subsidiary: (i) is in compliance with all Environmental Laws applicable to its business,  operations and the Properties, (ii) has obtained all Governmental Approvals which are required under  Environmental Laws, and each such Governmental Approval is in full force and effect, and (iii) is in  compliance with all terms and conditions of such Governmental Approvals, where with respect to each of  the immediately preceding clauses (i) through (iii) the failure to obtain or to comply with could reasonably  be expected to have a Material Adverse Effect.  Except for any of the following matters that could not  reasonably be expected to have a Material Adverse Effect, no Loan Party has any knowledge of, or has  received written notice of, any past, present, or pending releases, events, conditions, circumstances,  activities, practices, incidents, facts, occurrences, actions, or plans that, with respect to any Loan Party or  any other Subsidiary, their respective businesses, operations or with respect to the Properties, may:  (i)  cause or contribute to an actual or alleged violation of or noncompliance with Environmental Laws, (ii)  cause or contribute to any other potential common-law or legal claim or other liability, or (iii) cause any of  the Properties to become subject to any restrictions on ownership, occupancy, use or transferability under  any Environmental Law or require the filing or recording of any notice, approval or disclosure document  under any Environmental Law and, with respect to the immediately preceding clauses (i) through (iii) is  based on or related to the on-site or off-site manufacture, generation, processing, distribution, use,  treatment, storage, disposal, transport, removal, clean up or handling, or the emission, discharge, release or  threatened release of any Hazardous Material, or any other requirement under Environmental Law.  There  





 






  80  LEGAL02/41986661v10  is no civil, criminal, or administrative action, suit, demand, claim, hearing, written notice, or demand letter,  mandate, order, lien, request, investigation, or proceeding pending or, to the Parent’s or Borrower’s  knowledge, threatened in writing, against the Parent, the Borrower, any other Loan Party or any other  Subsidiary relating in any way to Environmental Laws which reasonably could be expected to have a  Material Adverse Effect.  To the Parent’s or Borrower’s knowledge, none of the Properties of the Parent,  the Borrower, any other Loan Party or any other Subsidiary is listed on or proposed for listing on the  National Priority List promulgated pursuant to the Comprehensive Environmental Response, Compensation  and Liability Act of 1980 and its implementing regulations, or any state or local priority list promulgated  pursuant to any analogous state or local law.  To Parent’s or Borrower’s knowledge, no Hazardous Materials  generated at or transported from any such Properties is or has been transported to, or disposed of at, any  location that is listed or proposed for listing on the National Priority List or any analogous state or local  priority list, or any other location that is or has been the subject of a clean-up, removal or remedial action  pursuant to any Environmental Law, except to the extent that such transportation or disposal could not  reasonably be expected to result in a Material Adverse Effect.     (q) Investment Company.  None of the Parent, the Borrower, any other Loan Party or any other  Subsidiary is (i) an “investment company” or a company “controlled” by an “investment company” within  the meaning of the Investment Company Act of 1940, as amended, or (ii) subject to any other Applicable  Law which purports to regulate or restrict its ability to borrow money or obtain other extensions of credit  or to consummate the transactions contemplated by this Agreement or to perform its obligations under any  Loan Document to which it is a party.     (r) Margin Stock.  None of the Parent, the Borrower, any other Loan Party or any other  Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit  for the purpose, whether immediate, incidental or ultimate, of buying or carrying “margin stock” within the  meaning of Regulation U of the Board of Governors of the Federal Reserve System.     (s) Affiliate Transactions.  Except as permitted by Section 10.11., none of the Parent, the  Borrower, any other Loan Party or any other Subsidiary is a party to or bound by any agreement or  arrangement with any Affiliate.     (t) Intellectual Property.  Each of the Loan Parties and each other Subsidiary owns or has the  right to use, under valid license agreements or otherwise, all material registered patents, licenses, franchises,  registered trademarks, trademark rights, service marks, service mark rights, trade names, trade name rights,  trade secrets and copyrights (collectively, “Intellectual Property”) necessary to the conduct of its businesses  as now conducted and as contemplated by the Loan Documents, without, to the knowledge of the Loan  Parties, conflict in any material respect with any registered patent, license, franchise, registered trademark,  trademark right, service mark, service mark right, trade secret, trade name, copyright, or other proprietary  right of any other Person.  The Parent, the Borrower and each other Subsidiary have taken all such steps as  they deem reasonably necessary to protect their respective rights under and with respect to such Intellectual  Property.     (u) Business.  As of the Agreement Date, the Parent, the Borrower, the other Loan Parties and  the other Subsidiaries are engaged in the business of developing, construction, acquiring, owning and  operating hotel properties, together with other business activities incidental thereto.     (v) Broker’s Fees.  No broker’s or finder’s fee, commission or similar compensation will be  payable with respect to the transactions contemplated hereby.  No other similar fees or commissions will  be payable by any Loan Party for any other services rendered to the Parent, the Borrower, any other Loan  Party or any other Subsidiary ancillary to the transactions contemplated hereby.    





 






  81  LEGAL02/41986661v10   (w) Accuracy and Completeness of Information.  All written information, reports and data  (other than financial projections and other forward looking statements) furnished to the Administrative  Agent or any Lender by, on behalf of, or at the direction of, the Parent, the Borrower, any other Loan Party  or any other Subsidiary were, at the time the same were so furnished, and when taken as a whole, complete  and correct in all material respects, to the extent necessary to give the recipient a true and accurate  knowledge of the subject matter, or, in the case of financial statements, present fairly in all material respects,  in accordance with GAAP consistently applied throughout the periods involved in each case, the financial  position of the Persons involved as at the date thereof and the results of operations for such periods (subject,  as to interim statements, to changes resulting from normal year end audit adjustments and absence of full  footnote disclosure).  All financial projections and other forward looking statements prepared by or on  behalf of the Parent, the Borrower, any other Loan Party or any other Subsidiary that have been or may  hereafter be made available to the Administrative Agent or any Lender were or will be prepared in good  faith based on assumptions believed by the Borrower to be reasonable at the time such projections or  statements are made or delivered but with it being understood that such projections and statement are not a  guarantee of future performance.  As of the Effective Date, no fact is known to any Loan Party which has  had, or may reasonably be expected in the future to have (so far as any Loan Party can reasonably foresee),  a Material Adverse Effect which has not been set forth in the financial statements referred to in  Section 7.1.(k) or in such information, reports or data or otherwise disclosed in writing to the Administrative  Agent and the Lenders. As of the Effective Date, all of the information included in the Beneficial Ownership  Certification, if applicable, is true and correct.    (x) REIT Status.  The Parent has elected to be treated as a REIT under the Internal Revenue  Code, the Parent is qualified as a REIT and each of its Subsidiaries that is a corporation is a Qualified REIT  Subsidiary or Taxable REIT Subsidiary, except where a Subsidiary’s failure to so qualify could not  reasonably be expected to have an adverse effect on the Parent’s qualification as a REIT.       (y) Unencumbered Properties.  Each of the Properties included in calculations of the  Unencumbered Property Value satisfies all of the requirements contained in the definition of “Eligible  Property” (except to the extent such requirements were waived by Requisite Lenders).  Each of the Eligible  Properties as of the Effective Date are listed on Schedule 7.1.(y).    (z)  Anti-Corruption Laws and Sanctions; Anti-Terrorism Laws.      (i) None of (A) the Parent, the Borrower, any Subsidiary, any of their respective  directors, officers, or, to the knowledge of the Parent, the Borrower or such Subsidiary, any of their  respective employees or Affiliates, or (B) to the knowledge of the Parent or the Borrower, any agent  or representative of the Parent, the Borrower or any Subsidiary that will act in any capacity in  connection with or benefit from any Loan or Letter of Credit, (I) is a Sanctioned Person or currently  the subject or target of any Sanctions, (II) is controlled by or is acting on behalf of a Sanctioned  Person, (III) has its assets located in a Sanctioned Country, (IV) is under administrative, civil or  criminal investigation for an alleged violation of, or received notice from or made a voluntary  disclosure to any governmental entity regarding a possible violation of, Anti-Corruption Laws,  Anti-Money Laundering Laws or Sanctions by a governmental authority that enforces Sanctions or  any Anti-Corruption Laws or Anti-Money Laundering Laws, or (V) directly or indirectly derives  revenues from investments in, or transactions with, Sanctioned Persons.     (ii) Each of the Parent, the Borrower and their respective Subsidiaries has  implemented and maintains in effect policies and procedures reasonably designed to promote and  achieve compliance by the Parent, the Borrower and their respective Subsidiaries and their  respective directors, officers, employees, agents and Affiliates with applicable Anti-Corruption  Laws, Anti-Money Laundering Laws and Sanctions.    





 






  82  LEGAL02/41986661v10    (iii) Each of the Parent, the Borrower and its Subsidiaries, each director, officer, and to  the knowledge of the Parent and the Borrower, employee, agent and Affiliate of the Parent, the  Borrower and each such Subsidiary, is in compliance with applicable Anti-Corruption Laws, Anti- Money Laundering Laws and Sanctions in all material respects.    (iv) No proceeds of any Loan or Letter of Credit have been used, directly or  (to the  knowledge of the Borrower) indirectly, by the Borrower, any of its Subsidiaries or any of its or  their respective directors, officers, employees and agents in violation of Section 8.8.(b).       (aa) Affected Financial Institution. None of the Parent, Borrower or any of their respective  Subsidiaries is an Affected Financial Institution.    Section 7.2.  Survival of Representations and Warranties, Etc.   All statements contained in any certificate, financial statement or other instrument delivered by or  on behalf of any Loan Party or any other Subsidiary to the Administrative Agent, the Sustainability  Structuring Agents or any Lender pursuant to or in connection with this Agreement or any of the other Loan  Documents (including, but not limited to, any such statement made in or in connection with any amendment  thereto or any statement contained in any certificate, financial statement or other instrument delivered by  or on behalf of any Loan Party prior to the Agreement Date and delivered to the Administrative Agent, the  Sustainability Structuring Agents or any Lender in connection with the underwriting or closing the  transactions contemplated hereby) shall constitute representations and warranties made by the Parent and  the Borrower to the Administrative Agent, the Sustainability Structuring Agents and the Lenders under this  Agreement.  All representations and warranties made under this Agreement and the other Loan Documents  shall be deemed to be made at and as of the Agreement Date, the Effective Date, the date on which any  extension of the Termination Date is effectuated pursuant to Section 2.13. and at and as of the date of the  occurrence of each Credit Event, except to the extent that such representations and warranties expressly  relate solely to an earlier date (in which case such representations and warranties shall have been true and  correct in all material respects on and as of such earlier date) and except for changes in factual circumstances  not prohibited under the Loan Documents.  All such representations and warranties shall survive the  effectiveness of this Agreement, the execution and delivery of the Loan Documents and the making of the  Loans and the issuance of the Letters of Credit.    ARTICLE VIII. AFFIRMATIVE COVENANTS   For so long as this Agreement is in effect, unless the appropriate Lenders shall otherwise consent  in the manner provided for in Section 13.6., the Parent and the Borrower shall comply with the following  covenants:    Section 8.1.  Preservation of Existence and Similar Matters.   Except as otherwise permitted under Section 10.7., the Parent and the Borrower shall, and shall  cause each other Loan Party and each other Subsidiary to, preserve and maintain its respective existence,  rights, franchises, licenses and privileges in the jurisdiction of its incorporation or formation and qualify  and remain qualified and authorized to do business in each jurisdiction in which the character of its  properties or the nature of its business requires such qualification and authorization and where the failure  to be so authorized and qualified could reasonably be expected to have a Material Adverse Effect; provided,  however, that nothing in this Section 8.1. will prohibit the Parent or any other Loan Party or any of their  Subsidiaries from engaging in any transactions permitted under this Agreement, including Section 10.7.,  and neither the Parent nor any other Loan Party or any of their Subsidiaries shall be required to preserve  





 






  83  LEGAL02/41986661v10  any such right, franchise or existence if the board of directors of the Parent or the Borrower shall determine  that the preservation thereof is no longer desirable in the conduct of the business of the Parent, the Borrower  and their Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the  Lenders.    Section 8.2.  Compliance with Applicable Law and Material Contracts.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, comply with (a) all Applicable Laws, including the obtaining of all Governmental Approvals, the failure  with which to comply could reasonably be expected to have a Material Adverse Effect, and (b) all terms  and conditions of all Material Contracts to which it is a party, the failure with which to comply could give  any other party thereto the right to terminate such Material Contract.      Section 8.3.  Maintenance of Property.   In addition to the requirements of any of the other Loan Documents, the Parent and the Borrower  shall, and shall cause each other Loan Party and each other Subsidiary to, (a) protect and preserve all of its  respective material properties, including, but not limited to, all Intellectual Property (to the extent  reasonably necessary in connection with operations), and maintain in good repair, working order and  condition all tangible properties, ordinary wear and tear and insured casualty losses excepted, and (b) make  or cause to be made all repairs, renewals, replacements and additions to such properties necessary or  appropriate in the Borrower’s good faith and reasonable judgment, so that the business carried on in  connection therewith may be properly and advantageously conducted at all times.    Section 8.4.  Conduct of Business.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  taken as a whole to, carry on the business as described in Section 7.1.(u) and not enter into any line of  business not otherwise engaged in by such Person as of the Agreement Date.    Section 8.5.  Insurance.   In addition to the requirements of any of the other Loan Documents, the Parent and the Borrower  shall, and shall cause each other Loan Party and each other Subsidiary to, maintain insurance (on a  replacement cost basis) with financially sound and reputable insurance companies against such risks  (including, without limitation, acts of terrorism) and in such amounts as is customarily maintained by  prudent Persons engaged in similar businesses and in similar locations or as may be required by Applicable  Law.  At the time financial statements are furnished pursuant to Section 9.2. and from time to time upon  the request of the Administrative Agent, the Borrower shall deliver to the Administrative Agent a detailed  list, together with copies of all policies of the insurance then in effect, stating the names of the insurance  companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties  and risks covered thereby.    Section 8.6.  Payment of Taxes and Claims.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, pay and discharge before delinquent (a) all federal and state income taxes and all other material taxes,  assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any  properties belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and  landlords for labor, materials, supplies and rentals which, if unpaid, might become a Lien on any properties  of such Person (other than any such claim that constitutes a Permitted Lien under clause (a)(y) of the  





 






  84  LEGAL02/41986661v10  definition of “Permitted Liens”); provided, however, that this Section shall not require the payment or  discharge of any such tax, assessment, charge, levy or claim (i) which is being contested in good faith by  appropriate proceedings which operate to suspend the collection thereof and for which adequate reserves  have been established on the books of such Person in accordance with GAAP or (ii) to the extent covered  by title insurance.    Section 8.7.  Inspections.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, permit the representatives or agents of any Lender or the Administrative Agent, from time to time after  reasonable prior notice and in a manner that does not unreasonably disrupt the normal business operations  of the Parent, the Borrower or such Subsidiary, in each case so long as no Event of Default shall be in  existence, as often as may be reasonably requested, but only during normal business hours, as the case may  be, to:  (a) visit and inspect all properties of the Parent, the Borrower or such Subsidiary to the extent any  such right to visit or inspect is within the control of such Person; provided that such visit and inspection  shall not include the extraction of soil or other sample testing related to Environmental Law or Hazardous  Materials, unless a Default or Event of Default exists; (b) inspect and make extracts from their respective  books and records, including but not limited to management letters prepared by independent accountants;  and (c) discuss with its officers and employees, and its independent accountants, its business, properties,  condition (financial or otherwise), results of operations and performance.  If requested by the  Administrative Agent, the Parent and the Borrower shall execute an authorization letter addressed to their  accountants authorizing the Administrative Agent or any Lender to discuss the financial affairs of the  Parent, the Borrower, any other Loan Party or any other Subsidiary with their accountants. The Parent may  designate a representative to accompany any Lender or Administrative Agent in connection with such visits,  inspections and discussion unless a Default or Event of Default exists.  The Borrower shall be obligated to  reimburse the Administrative Agent and the Lenders for their reasonable costs and expenses incurred in  connection with the exercise of their rights under this Section only if such exercise occurs while an Event  of Default exists.      Section 8.8.  Use of Proceeds; Letters of Credit.   (a) The Borrower will use the proceeds of the Loans only (i) on the Effective Date, to (x) repay  in full all outstanding obligations under the Existing Term Loan Agreement and (y) to pay fees and expenses  relating to this Agreement and such repayment, (ii) after the Effective Date but on or prior to December 31,  2022, to repay the 2023 Mortgage Debt and (iii) thereafter for the general working capital and other general  corporate purposes of the Borrower and its Subsidiaries, including without limitation, to finance  acquisitions otherwise not prohibited under this Agreement, to finance capital expenditures and the  repayment of Indebtedness of the Borrower and its Subsidiaries and for short-term bridge advances and the  payment of fees and expenses related to this Agreement.  The Borrower shall only use Letters of Credit for  the same purposes for which it may use the proceeds of Loans.  The Borrower shall not, and shall not permit  any other Loan Party or any other Subsidiary to, use any part of such proceeds to purchase or carry, or to  reduce or retire or refinance any credit incurred to purchase or carry, any margin stock (within the meaning  of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System) or to extend  credit to others for the purpose of purchasing or carrying any such margin stock.      (b) The Borrower will not request any Loan or Letter of Credit, and the Borrower shall not  use, and shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents  shall not use, the proceeds of any Loan or Letter of Credit, directly or to Borrower’s knowledge indirectly,  (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money,  or anything else of value, to any Person in violation of any Anti-Corruption Laws or Anti-Money  Laundering Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or  





 






  85  LEGAL02/41986661v10  transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (iii) in any manner that  would result in the violation of any Sanctions applicable to any party hereto.    Section 8.9.  Environmental Matters.   The Parent and the Borrower shall, and shall cause each other Loan Party and each other Subsidiary  to, comply with all Environmental Laws, the failure with which to comply could reasonably be expected to  have a Material Adverse Effect.  If the Parent, the Borrower, or any other Subsidiary shall (a) receive written  notice that any violation of any Environmental Law may have been committed by such Person, (b) receive  written notice that any administrative or judicial complaint or order has been filed or is about to be filed  against the Parent, the Borrower or any other Subsidiary alleging violations of any Environmental Law or  requiring any such Person to take any action in connection with the release of Hazardous Materials or  (c) receive any written notice from a Governmental Authority or private party alleging that any such Person  may be liable or responsible for costs associated with a response to or cleanup of a release of Hazardous  Materials or any damages caused thereby, and the matters referred to in such notices, individually or in the  aggregate, could reasonably be expected to have a Material Adverse Effect, the Borrower shall provide the  Administrative Agent with a copy of such notice promptly, and in any event within 10 Business Days, after  the receipt thereof.  The Parent and the Borrower shall, and shall cause each other Loan Party and each  other Subsidiary to, promptly take all actions necessary to prevent the imposition of any material Liens on  any of their respective properties arising out of or related to any Environmental Laws (other than a Lien (i)  which is being contested in good faith by appropriate proceedings which operate to suspend the enforcement  thereof and for which adequate reserves have been established on the books of the Parent, the Borrower or  such Subsidiary, as applicable, in accordance with GAAP, (ii) which has been bonded-off in a manner  reasonably acceptable to the Administrative Agent, (iii) consisting of restrictions on the use of real property,  which restrictions do not materially detract from the value of such property or impair the intended use  thereof in the business of the Parent, the Borrower and its other Subsidiaries or (iv) which could not  reasonably be expected to have a Material Adverse Effect).  Nothing in this Section shall impose any  obligation or liability whatsoever on the Administrative Agent or any Lender.    Section 8.10.  Books and Records.  The Parent and the Borrower shall, and shall cause each Subsidiary to, maintain books and records  pertaining to its respective business operations in such detail, form and scope as is consistent with good  business practice and in accordance with GAAP.    Section 8.11.  Further Assurances.   The Parent and the Borrower shall, at their cost and expense and upon request of the Administrative  Agent, execute and deliver or cause to be executed and delivered, to the Administrative Agent such further  instruments, documents and certificates consistent with the existing terms and conditions of the Loan  Documents, and do and cause to be done such further acts that may be reasonably necessary or advisable  in the reasonable opinion of the Administrative Agent to carry out more effectively the provisions and  purposes of this Agreement and the other Loan Documents.    Section 8.12.  REIT Status.   The Parent shall at all times maintain its status as a REIT and election to be treated as a REIT under  the Internal Revenue Code.    





 






  86  LEGAL02/41986661v10  Section 8.13.  Exchange Listing.   The Parent shall maintain at least one class of common Equity Interest of the Parent having trading  privileges on the New York Stock Exchange or the American Stock Exchange or which is subject to price  quotations on the over-the-counter market as reported by the National Association of Securities Dealers  Automated Quotation System.     Section 8.14.  Additional Guarantors.   (a) Prior to the Investment Grade Rating Date and within 30 days of any Person becoming a  Material Subsidiary or an Accommodation Subsidiary after the Effective Date, the Borrower shall deliver  to the Administrative Agent each of the following items, each in form and substance satisfactory to the  Administrative Agent: (i) an Accession Agreement executed by such Subsidiary and (ii) the items with  respect to such Subsidiary that would have been delivered under Sections 6.1.(a)(iv) through (viii), 6.1.(e)  and 6.1.(f) if such Subsidiary had been a Guarantor on the Effective Date; provided, however, promptly  (and in any event within 30 days) upon any Excluded Subsidiary that is a Material Subsidiary ceasing to be  subject to the restriction which prevented it from delivering an Accession Agreement pursuant to this  Section, such Subsidiary shall comply with the provisions of this Section.       (b) On and at all times after the Investment Grade Rating Date, the Borrower shall cause any  Subsidiary that is not already a Guarantor and to which any of the following conditions applies to become  a Guarantor by delivering to the Administrative Agent each of the following items, each in form and  substance satisfactory to the Administrative Agent: (i) an Accession Agreement executed by such  Subsidiary and (ii) the items with respect to such Subsidiary that would have been delivered under  Sections 6.1.(a)(iv) through (viii), 6.1.(e) and 6.1.(f) if such Subsidiary had been a Guarantor on the  Effective Date:    (i) such Subsidiary Guarantees, or otherwise becomes obligated in respect of, any  Indebtedness of the Parent, the Borrower or any other Subsidiary of the Parent or the  Borrower; or    (ii) (A) such Subsidiary owns an Unencumbered Property (including, for the avoidance of  doubt, any Accommodation Subsidiary) and (B) such Subsidiary, or any other Subsidiary  that directly or indirectly owns any Equity Interests in such Subsidiary, has incurred,  acquired or suffered to exist any Indebtedness.    (c) The Borrower may, at its option, cause any Subsidiary that is not already a Guarantor to  become a Guarantor by delivering to the Administrative Agent (i) an Accession Agreement executed by  such Subsidiary and (ii) the items with respect to such Subsidiary that would have been delivered under  Sections 6.1.(a)(iv) through (viii), 6.1.(e) and 6.1.(f) if such Subsidiary had been a Guarantor on the  Effective Date.    Section 8.15.  Release of Guarantors.  The Borrower may request in writing that the Administrative Agent release, and upon receipt of  such request the Administrative Agent shall release (subject to the terms of the Guaranty), a Guarantor  (other than the Parent) from the Guaranty so long as: (i) either (A) the Investment Grade Rating Date has  occurred or (B) prior to an Investment Grade Rating Date, such Guarantor has ceased to be, or  simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary; (ii) such  Guarantor is not otherwise required to be a party to the Guaranty under: (A) prior to the Investment Grade  Rating Date, Section 8.14.(a) or (B) on or after the Investment Grade Rating Date, Section 8.14.(b); (iii) no  





 






  87  LEGAL02/41986661v10  Default or Event of Default shall then be in existence or would occur as a result of such release, including  without limitation, a Default or Event of Default resulting from a violation of any of the covenants contained  in Section 10.1.; (iv) the representations and warranties made or deemed made by the Borrower and each  other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct on and  as of the date of such release with the same force and effect as if made on and as of such date except to the  extent that such representations and warranties expressly relate solely to an earlier date (in which case such  representations and warranties shall have been true and accurate on and as of such earlier date) and except  for changes in factual circumstances not prohibited under the Loan Documents; and (v) the Administrative  Agent shall have received such written request at least 10 Business Days (or such shorter period as may be  acceptable to the Administrative Agent) 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.  The  Administrative Agent agrees to furnish to the Borrower, at the Borrower’s request and at the Borrower’s  sole cost and expense, any release, termination, or other agreement or document evidencing the foregoing  release as may be reasonably requested by the Borrower.    Section 8.16.  Compliance with Anti-Corruption Laws; Beneficial Ownership Regulation,  Anti-Money Laundering Laws and Sanctions.  The Parent and the Borrower will (a) maintain in effect and enforce policies and procedures  reasonably designed to promote and achieve compliance by the Parent, the Borrower, their respective  Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption  Laws, Anti-Money Laundering Laws and Sanctions, (b) notify the Administrative Agent and each Lender  that previously received a Beneficial Ownership Certification, if any, of any change in the information  provided in the Beneficial Ownership Certification that would result in a change to the list of beneficial  owners identified therein and (c) promptly upon the reasonable request of the Administrative Agent or any  Lender, provide the Administrative Agent or such Lender, as the case may be, any information or  documentation requested by it for purposes of complying with the Beneficial Ownership Regulation.      ARTICLE IX. INFORMATION   For so long as this Agreement is in effect, unless the appropriate Lenders shall otherwise consent  in the manner set forth in Section 13.6., the Borrower shall furnish to the Administrative Agent for  distribution to each of the Lenders:    Section 9.1.  Quarterly Financial Statements.   As soon as available and in any event within 5 days after the same is required to be filed with the  Securities and Exchange Commission (but in no event later than 45 days after the end of each of the first,  second and third fiscal quarters of the Parent) commencing with the fiscal quarter ending September 30,  2022, the unaudited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such period  and the related unaudited consolidated statements of income and cash flows of the Parent and its  Subsidiaries for such period, setting forth in each case in comparative form the figures as of the end of and  for the corresponding periods of the previous fiscal year, all of which shall be certified by the chief financial  officer or chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance with  GAAP and in all material respects, the consolidated financial position of the Parent and its Subsidiaries as  at the date thereof and the results of operations for such period (subject to normal year-end audit  adjustments); provided, however, the Parent shall not be required to deliver an item required under this  Section if such item is contained in a Form 10-Q filed by the Parent with the Securities and Exchange  





 






  88  LEGAL02/41986661v10  Commission (or any Governmental Authority substituted therefore) and is publicly available to the  Administrative Agent and the Lenders.    Section 9.2.  Year-End Statements.   As soon as available and in any event within 5 days after the same is required to be filed with the  Securities and Exchange Commission (but in no event later than 120 days after the end of each fiscal year  of the Parent), the audited consolidated balance sheet of the Parent and its Subsidiaries as at the end of such  fiscal year and the related audited consolidated statements of income, shareholders’ equity and cash flows  of the Parent and its Subsidiaries for such fiscal year, setting forth in comparative form the figures as at the  end of and for the previous fiscal year, all of which shall be (a) certified by the chief financial officer or  chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance with GAAP and  in all material respects, the consolidated financial position of the Parent, the Borrower and its other  Subsidiaries as at the date thereof and the results of operations for such period and (b) accompanied by the  report thereon of an Approved Accounting Firm, whose certificate shall be unqualified and in scope and  substance reasonably satisfactory to the Administrative Agent and who shall have authorized the Borrower  to deliver such financial statements and certification thereof to the Administrative Agent and the Lenders  pursuant to this Agreement; provided, however, the Parent shall not be required to deliver an item required  under this Section if such item is contained in a Form 10-K filed by the Parent with the Securities and  Exchange Commission (or any Governmental Authority substituted therefore) and is publicly available to  the Administrative Agent and the Lenders.    Section 9.3.  Compliance Certificate.   At the time financial statements are furnished pursuant to Sections 9.1. and 9.2., and if the Requisite  Lenders reasonably believe that an Event of Default specified in any of Sections 11.1.(a), 11.1.(b),  11.1.(c)(1) resulting from noncompliance with Section 10.1., and 11.1.(f) or a Default specified in Section  11.1.(g) may occur, then within 10 days of the Administrative Agent’s request with respect to any other  fiscal period, a certificate substantially in the form of Exhibit K (a “Compliance Certificate”) executed by  the chief financial officer or chief accounting officer of the Parent, among other things, (a) setting forth in  reasonable detail as of the end of such quarterly accounting period, fiscal year, or other fiscal period, as the  case may be, the calculations required to establish whether the Borrower was in compliance with the  covenants contained in Sections 10.1. and 10.2.; and (b) stating that, to the best of his or her knowledge,  information and belief after due inquiry, no Default, Event of Default or breach of any covenant under this  Agreement exists, or, if such is not the case, specifying such Default or Event of Default and its nature,  when it occurred, whether it is continuing and the steps being taken by the Borrower with respect to such  event, condition or failure.  Together with the delivery of each Compliance Certificate, the Borrower shall  deliver (A) a list of all Persons that have become a Material Subsidiary or a Significant Subsidiary since the  date of the Compliance Certificate most recently delivered by the Borrower hereunder and (B) a report of newly  acquired Properties, including each such property’s name, address, number of keys, Net Operating Income for  the period of four consecutive fiscal quarters most recently ending, the purchase price, and the principal  amount of the mortgage debt as of the date of such Compliance Certificate, if any, since the date of the  Compliance Certificate most recently delivered by the Borrower hereunder.        Section 9.4.  Other Information.    (a) Management Reports.  Promptly upon receipt thereof, copies of all reports, if any,  submitted to the Parent or its Board of Directors by its independent public accountants, including without  limitation, any management report;    





 






  89  LEGAL02/41986661v10  (b) Securities Filings.  Within 5 Business Days of the filing thereof, copies of all registration  statements (excluding the exhibits thereto (unless reasonably requested by the Administrative Agent) and  any registration statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their  equivalents) and all other periodic reports which the Parent, the Borrower, any other Loan Party or any  other Subsidiary shall file with the Securities and Exchange Commission (or any Governmental Authority  substituted therefor) or any national securities exchange.  The materials described in this subsection shall  be deemed to have been delivered to each Lender if same are contained in a filing by the Parent with the  SEC and is publicly available to the Administrative Agent and the Lenders, or if same are otherwise  available on Parent’s website without charge;    (c) Shareholder Information.  Promptly upon the mailing thereof to the shareholders of the  Parent generally, copies of all financial statements, reports and proxy statements so mailed.  The materials  described in this subsection shall be deemed to have been delivered to each Lender if same are contained  in a filing by the Parent with the Securities and Exchange Commission (or any Governmental Authority  substituted therefor) and is publicly available to the Administrative Agent and the Lenders, or if same are  otherwise available on Parent’s website;    (d) Partnership Information.  To the extent not delivered in connection with clause (c) above,  promptly upon the mailing thereof to the partners of the Borrower generally, copies of all financial  statements, reports and proxy statements so mailed;    (e) [reserved];     (f) Litigation.  To the extent the Parent, the Borrower, any other Loan Party or any other  Subsidiary is aware of the same, prompt notice of the commencement of any proceeding or investigation  by or before any Governmental Authority and any action or proceeding in any court or other tribunal or  before any arbitrator against or in any other way relating adversely to, or adversely affecting, such Person  or any of its respective properties, assets or businesses which could reasonably be expected to have a  Material Adverse Effect, and prompt notice of the receipt of notice that any United States income tax returns  of the Parent, the Borrower, any other Loan Party or any other Subsidiary are being audited;    (g) Change of Management or Financial Condition.  Prompt notice of any change in the senior  management of the Parent or the Borrower and any change in the business, assets, liabilities, financial  condition or results of operations of the Parent, the Borrower, any other Loan Party or any other Subsidiary  which has had, or could reasonably be expected to have, a Material Adverse Effect;    (h) Default.  Notice of the occurrence of any of the following promptly upon a Responsible  Officer of the Parent obtaining knowledge thereof:  (i) any Default or Event of Default or (ii) any event  which with the passage of time, the giving of notice, or otherwise, would permit any party to a Material  Contract to terminate such Material Contract;    (i) Judgments.  Prompt notice of any order, judgment or decree in excess of $7,500,000 having  been entered against the Parent, the Borrower, any other Loan Party or any other Subsidiary or any of their  respective properties or assets;    (j) Notice of Violation of Law.  Prompt notice if the Parent, the Borrower or any other  Subsidiary shall receive any notification from any Governmental Authority alleging a violation of any  Applicable Law or any inquiry which, in either case, could reasonably be expected to have a Material  Adverse Effect;    





 






  90  LEGAL02/41986661v10  (k) Material Contracts.  Promptly upon entering into any Material Contract after the  Agreement Date (other than a Material Contract evidencing Indebtedness), a copy to the Administrative  Agent of such Material Contract unless such Material Contract is otherwise publicly available to the  Administrative Agent in a Form 10-K, 10-Q and/or 8-K (or their equivalents) or any other periodic report  which the Parent, the Borrower, or any other Subsidiary files with the Securities and Exchange  Commission; provided, that the Borrower shall not be required to deliver to the Administrative Agent a  copy of any Material Contract that contains a confidentiality provision prohibiting such disclosure; provided  further that the Borrower shall use its commercially reasonable efforts to obtain the other party’s consent  to disclose such Material Contract to the Administrative Agent and the Lenders;    (l) ERISA.  If any ERISA Event shall occur that individually, or together with any other  ERISA Event that has occurred, could reasonably be expected to result in liability to any member of the  ERISA Group aggregating in excess of $10,000,000, a certificate of the chief executive officer or chief  financial officer of the Parent setting forth details as to such occurrence and the action, if any, which the  Parent or applicable member of the ERISA Group is required or proposes to take;    (m) Material/Significant Subsidiary.  Prompt notice of any Person becoming a Material  Subsidiary or a Significant Subsidiary;    (n) Material Asset Sales.  Prompt notice of the sale, transfer or other disposition of any assets  having an undepreciated book value of at least $45,000,000 of the Parent, the Borrower, any Subsidiary or  any other Loan Party to any Person other than the Parent, the Borrower, any Subsidiary or any other Loan  Party;    (o) Ownership Share of Subsidiaries and Unconsolidated Affiliates.  Promptly upon the  request of the Administrative Agent, evidence of the Parent’s calculation of the Ownership Share with  respect to a Subsidiary or an Unconsolidated Affiliate, such evidence to be in form and detail satisfactory  to the Administrative Agent;     (p) Projections and Budgets.  Within ninety (90) days after the end of each calendar year  ending prior to the Termination Date, a schedule summarizing the gross operating revenues, gross operating  expenses, Net Operating Income, FF&E Reserves and Adjusted NOI, along with the average daily rate,  occupancy levels and revenue per available room on an individual basis for each Unencumbered Property;    (q) PATRIOT Act Information.  Promptly upon the request thereof, such other information  and documentation required under applicable “know your customer” rules and regulations, the PATRIOT  Act or any applicable Anti-Money Laundering Laws, in each case as from time to time reasonably requested  by the Administrative Agent or any Lender; and    (r) Other Information.  From time to time and promptly upon each request, such data,  certificates, reports, statements, opinions of counsel, documents or further information regarding any  Property or the business, assets, liabilities, financial condition, results of operations or business prospects  of the Parent, the Borrower, any other Loan Party or any other Subsidiary as the Administrative Agent or  any Lender may reasonably request (subject to limitations imposed under confidentiality requirements and  agreements to which the Parent, Borrower or a Subsidiary is subject).    Section 9.5.  Electronic Delivery of Certain Information.   (a) Documents required to be delivered pursuant to the Loan Documents shall be delivered by  electronic communication and delivery, including, the Internet, e-mail or intranet websites to which the  Administrative Agent and each Lender have access (including a commercial, third-party website or a  





 






  91  LEGAL02/41986661v10  website sponsored or hosted by the Administrative Agent or the Borrower) provided that the foregoing shall  not apply to (i) notices to any Lender (or any Issuing Bank) pursuant to Article II. and (ii) any Lender that  has notified the Administrative Agent and the Borrower that it cannot or does not want to receive electronic  communications.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices  and other communications to it hereunder by electronic delivery pursuant to procedures approved by it for  all or particular notices or communications.  Documents or notices delivered electronically shall be deemed  to have been delivered twenty-four (24) hours after the date and time on which the Administrative Agent  or the Borrower posts such documents or the documents become available on a commercial website and  the Administrative Agent or Borrower notifies each Lender of said posting and provides a link thereto  provided if such notice or other communication is not sent or posted during the normal business hours of  the recipient, said posting date and time shall be deemed to have commenced as of  9:00 a.m. Pacific time  on the opening of business on the next business day for the recipient.  The Administrative Agent shall have  no obligation to request the delivery of or to maintain paper copies of the documents delivered  electronically, and in any event shall have no responsibility to monitor compliance by the Borrower with  any such request for delivery.  Each Lender shall be solely responsible for requesting delivery to it of paper  copies and maintaining its paper or electronic documents.      (b) Documents required to be delivered pursuant to Article II. may be delivered electronically  to a website provided for such purpose by the Administrative Agent pursuant to the procedures provided to  the Borrower by the Administrative Agent.     Section 9.6.  Public/Private Information.   The Borrower shall cooperate with the Administrative Agent in connection with the publication of  certain materials and/or information provided by or on behalf of the Borrower.  Documents required to be  delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the  Administrative Agent and the Lenders (collectively, “Information Materials”) pursuant to this Article and  the Borrower shall designate Information Materials (a) that are either available to the public or not material  with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United  States federal and state securities laws, as “Public Information” and (b) that are not Public Information as  “Private Information”.      Section 9.7.  USA Patriot Act Notice; Compliance.  The Administrative Agent and each Lender hereby notifies the Borrower that pursuant to the  requirements of the PATRIOT Act, the Beneficial Ownership Regulation or any other Anti-Money  Laundering Laws, each of them 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 to identify each Loan Party in accordance with the PATRIOT Act, the Beneficial  Ownership Regulation or such Anti-Money Laundering Laws.    ARTICLE X. NEGATIVE COVENANTS   For so long as this Agreement is in effect, unless the appropriate Lenders shall otherwise consent  in the manner set forth in Section 13.6., the Parent and the Borrower shall comply with the following  covenants in accordance with their respective terms:    Section 10.1.  Financial Covenants.  (a) Maximum Leverage Ratio.  The Parent and the Borrower shall not permit the Leverage  Ratio to exceed 60.0% at any time; provided, however, that the Borrower shall have the option, exercisable  





 






  92  LEGAL02/41986661v10  two times, upon written notice from the Borrower to the Administrative Agent that the Borrower is  exercising such option, to elect that the Leverage Ratio may exceed 60.0% for a period not to exceed two  (2) full fiscal quarters, such period to commence on the date set forth in such notice (such period, the  “Leverage Ratio Surge Period”), so long as (i) the Borrower has delivered a written notice to the  Administrative Agent that the Borrower is exercising its option under this subsection (a), (ii) the Leverage  Ratio does not exceed 65.0% at any time during the Leverage Ratio Surge Period and (iii) a Leverage Surge  Period was not in effect for the fiscal quarter immediately preceding the Borrower’s election.  The Borrower  shall have the option to exercise both a Leverage Ratio Surge Period and an Unencumbered Leverage Surge  Period in the same notice.    (b) Minimum Fixed Charge Coverage Ratio.  The Parent and the Borrower shall not at any  time permit the ratio of (i) Adjusted EBITDA of the Parent and its Subsidiaries for the period of twelve  consecutive fiscal months most recently ending to (ii) Fixed Charges for such period, to be less than 1.50  to 1.00.    (c) Secured Indebtedness.  The Parent and the Borrower shall not permit the aggregate amount  of Secured Indebtedness of the Parent and its Subsidiaries determined on a consolidated basis to exceed  45% of Total Asset Value at any time.    (d) Adjusted Total Asset Value.  Prior to the Investment Grade Rating Date, the Parent and the  Borrower shall not permit the amount of Adjusted Total Asset Value attributable to assets directly owned  by the Borrower and the Guarantors to be less than 90.0% of Adjusted Total Asset Value at any time.    (e) Unencumbered Leverage Ratio.  The Parent and the Borrower shall not permit the  Unencumbered Leverage Ratio to exceed 60.0% at any time; provided, however, that, the Borrower shall  have the option, exercisable two times, upon written notice from the Borrower to the Administrative Agent  that the Borrower is exercising such option, to elect that the Unencumbered Leverage Ratio may exceed  60.0% for a period not to exceed two (2) full fiscal quarters, such period to commence on the date set forth  in such notice (such period, the “Unencumbered Leverage Ratio Surge Period”), so long as (i) the Borrower  has delivered a written notice to the Administrative Agent that the Borrower is exercising its option under  this subsection (a), (ii) the Unencumbered Leverage Ratio does not exceed 65.0% at any time during the  Unencumbered Leverage Ratio Surge Period, (iii) the Borrower completed a Material Acquisition which  resulted in such ratio (after giving effect to such Material Acquisition) exceeding 60% at any time during  the fiscal quarter in which such Material Acquisition took place, and (iv) an Unencumbered Leverage Surge  Period was not in effect for the fiscal quarter immediately preceding the Borrower’s election.  The Borrower  shall have the option to exercise both an Unencumbered Leverage Ratio Surge Period and a Leverage Ratio  Surge Period in the same notice.    (f) Unencumbered Implied Debt Service Coverage Ratio. The Parent and the Borrower shall  not at any time permit the ratio of (i) Adjusted NOI for Unencumbered Properties for the period of twelve  consecutive fiscal months most recently ending (provided that, to the extent the Adjusted NOI from  Tranquility Bay would exceed 5.0% of the total Adjusted NOI from all Unencumbered Properties, such  excess shall be excluded) to (ii) Implied Debt Service for the aggregate principal balance of all Indebtedness  (excluding Nonrecourse Indebtedness and Indebtedness to the extent owing among the Parent and/or any  of its Subsidiaries but including Secured Recourse Indebtedness, the aggregate principal amount of all  Loans and the aggregate amount of all Letter of Credit Liabilities) of the Parent and the Ownership share  of all such Indebtedness of its Subsidiaries for such period, to be less than 1.20 to 1.00.      





 






  93  LEGAL02/41986661v10  Section 10.2.  Restricted Payments.  Subject to the following sentence, if an Event of Default exists, the Parent shall not, and shall not  permit any of its Subsidiaries to, declare or make any Restricted Payments except that, subject to the  following sentence, (x) the Borrower may declare and make cash distributions to the Parent and other  holders of partnership interests in the Borrower, and the Parent may declare and make cash distributions to  its shareholders, each, in an aggregate amount not to exceed the minimum amount necessary for the Parent  to remain in compliance with Section 8.12. and (y) Subsidiaries may pay Restricted Payments to the Parent,  the Borrower or any other Subsidiary.  If an Event of Default specified in Section 11.1.(a), Section 11.1.(f)  or Section 11.1.(g) shall exist, or if as a result of the occurrence of any other Event of Default any of the  Obligations have been accelerated pursuant to Section 11.2.(a), the Parent and the Borrower shall not, and  shall not permit any Subsidiary to, make any Restricted Payments to any Person except that Subsidiaries  may pay Restricted Payments to the Parent, the Borrower or any other Subsidiary.    Section 10.3.  Indebtedness.   The Parent and the Borrower shall not, and shall not permit any Subsidiary to, incur, assume, or  otherwise become obligated in respect of any Indebtedness after the Agreement Date if immediately prior  to the assumption, incurring or becoming obligated in respect thereof, or immediately thereafter and after  giving effect thereto, a Default or Event of Default is or would be in existence, including without limitation,  an Event of Default resulting from a violation of any of the covenants contained in Section 10.1.    Section 10.4.  Intentionally Omitted.      Section 10.5.  Investments Generally.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, directly or indirectly, acquire, make or purchase any Investment, or permit any Investment  of such Person to be outstanding on and after the Agreement Date, other than the following:     (a) Investments in Subsidiaries;     (b) Investments to acquire Equity Interests of a Subsidiary or any other Person who after giving  effect to such acquisition would be a Subsidiary, so long as in each case immediately prior to such  Investment, and after giving effect thereto, no Default or Event of Default is or would be in existence;     (c) Investments in Unconsolidated Affiliates and other Persons that are not Subsidiaries,  Development/Redevelopment Properties, Unimproved Land and Mortgage Receivables;     (d) Investments in Cash Equivalents;     (e) intercompany Indebtedness among (i) the Parent and the Borrower and (ii) the Borrower  and its Wholly Owned Subsidiaries provided that such Indebtedness is permitted by the terms of  Section 10.3.;     (f) Guarantees incurred by the Borrower or any Guarantor in respect of Unsecured  Indebtedness of the Borrower, the Parent or any other Guarantor that is otherwise permitted by  Section 10.3.;    





 






  94  LEGAL02/41986661v10  (g) loans and advances to employees for moving, entertainment, travel and other similar  expenses in the ordinary course of business consistent with past practices; and     (h) any other Investment as long as immediately prior to making such Investment, and  immediately thereafter and after giving effect thereto, no Default or Event of Default is or would be in  existence.    Section 10.6.  Negative Pledge.   (a) The Parent and the Borrower shall not, and shall not permit any other Loan Party or any  other Subsidiary to, create, assume, or incur any Lien (other than Permitted Liens and Liens on assets of an  Excluded Subsidiary securing the Indebtedness which causes such Subsidiary to be an Excluded Subsidiary)  upon any of its properties, assets, income or profits of any character whether now owned or hereafter  acquired if immediately prior to the creation, assumption or incurring of such Lien, or immediately  thereafter, a Default or Event of Default is or would be in existence.       (b) The Parent and the Borrower shall not, and shall not permit any other Loan Party or any  other Subsidiary (other than an Excluded Subsidiary) to, enter into, assume or otherwise be bound by any  Negative Pledge except for a Negative Pledge contained in any agreement (i)(x) evidencing Indebtedness  which the Parent, the Borrower, such other Loan Party or such Subsidiary may create, incur, assume, or  permit or suffer to exist under Section 10.3., (y) which Indebtedness is secured by a Lien permitted to exist,  and (z) which prohibits the creation of any other Lien on only the property securing such Indebtedness as  of the date such agreement was entered into; (ii) consisting of customary provisions in leases and other  contracts restricting the assignment thereof; (iii) relating to the sale of a Subsidiary or assets pending such  sale, provided that in any such case the Negative Pledge applies only to the Subsidiary or the assets that are  the subject of such sale; or (iv) that evidences Unsecured Indebtedness which contains restrictions on  encumbering assets that are substantially similar to, or less restrictive than, those restrictions contained in  the Loan Documents.    (c) The Parent and the Borrower shall not, and shall not permit any other Loan Party or any  other Subsidiary (other than an Excluded Subsidiary) to, create or otherwise cause or suffer to exist or  become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary  (other than an Excluded Subsidiary) to: (i) pay dividends or make any other distribution on any of such  Subsidiary’s capital stock or other equity interests owned by the Borrower or any Subsidiary; (ii) pay any  Indebtedness owed to the Parent, the Borrower or any other Subsidiary; (iii) make loans or advances to the  Parent, the Borrower or any other Subsidiary; or (iv) transfer any of its property or assets to the Parent, the  Borrower or any other Subsidiary, except for any such encumbrances or restrictions, (A) contained in  agreements relating to the sale of a Subsidiary or assets pending such sale, or relating to Indebtedness  secured by a Lien on assets that the Borrower or such Subsidiary may create, incur, assume, or permit or  suffer to exist under Sections 10.3. and 10.6.(a), provided that in any such case the encumbrances and  restrictions apply only to the Subsidiary or the assets that are the subject of such sale or Lien, as the case  may be, (B) set forth in the organizational documents or other agreements binding on or applicable to any  Excluded Subsidiary or any Subsidiary that is not a Wholly Owned Subsidiary (but only to the extent such  encumbrance or restriction covers any Equity Interest in such Subsidiary or the property or assets of such  Subsidiary), (C) contained in an agreement that governs an Investment in an Unconsolidated Affiliate (but  only to the extent such encumbrance or restriction covers any Equity Interest in such Unconsolidated  Affiliate) or (D) in any other agreement (1) evidencing Unsecured Indebtedness that the Borrower, any  other Loan Party or any other Subsidiary may create, incur, assume or permit or suffer to exist under this  Agreement and (2) containing encumbrances and restrictions imposed in connection with such Unsecured  Indebtedness that are either substantially similar to, or less restrictive than, such encumbrances and  restrictions set forth in the Loan Documents.  





 






  95  LEGAL02/41986661v10    Section 10.7.  Merger, Consolidation, Sales of Assets and Other Arrangements.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to: (i) enter into any transaction of merger or consolidation; (ii) liquidate, windup or dissolve  itself (or suffer any liquidation or dissolution);  or (iii) convey, sell, lease, sublease, transfer or otherwise  dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets,  or the capital stock of or other Equity Interests in any of its Subsidiaries, whether now owned or hereafter  acquired; provided, however, that:    (a) any of the actions described in the immediately preceding clauses (i) through (iii)  may be taken with respect to any Subsidiary so long as (x) immediately prior to the taking of such  action, and immediately thereafter and after giving effect thereto, no Default or Event of Default is  or would be in existence, and (y) if such action includes the sale of all Equity Interests in a  Subsidiary that is a Guarantor owned directly or indirectly by the Parent, such Subsidiary can and  will be released from the Guaranty in accordance with Section 8.15;    (b) the Parent, the Borrower, the other Loan Parties and the other Subsidiaries may  lease and sublease their respective assets, as lessor or sublessor (as the case may be), in the ordinary  course of their business;     (c) a Person may merge with a Loan Party so long as (i) the survivor of such merger  is such Loan Party or becomes a Loan Party at the time of such merger (provided, that the foregoing  shall not be construed to allow the Parent or the Borrower to merge and not be the surviving party  to such merger without the prior written consent of the Administrative Agent and each Lender in  accordance with Section 13.5.(a)), (ii) immediately prior to such merger, and immediately  thereafter and after giving effect thereto, (x) no Default or Event of Default is or would be in  existence, including, without limitation, a Default or Event of Default resulting from a breach of  Section 10.1. and (y) the representations and warranties made or deemed made by the Borrower  and each other Loan Party in the Loan Documents to which any of them is a party are and shall be  true and correct in all material respects, except to the extent that such representations and warranties  expressly relate solely to an earlier date (in which case such representations and warranties shall  have been true and correct in all material respects on and as of such earlier date) and except for  changes in factual circumstances not prohibited under the Loan Documents, (iii) the Borrower shall  have given the Administrative Agent at least 30-days’ prior written notice of such merger, such  notice to include a certification as to the matters described in the immediately preceding clause (ii)  (except that such prior notice shall not be required in the case of the merger of a Subsidiary that  does not own an Unencumbered Property with and into a Loan Party but the Borrower shall give  the Administrative Agent notice of any such merger promptly following the effectiveness of such  merger) and (iv) at the time the Borrower gives notice pursuant to clause (i) of this subsection, the  Borrower shall have delivered to the Administrative Agent for distribution to each of the Lenders  a Compliance Certificate, calculated on a pro forma basis, evidencing the continued compliance by  the Loan Parties, as applicable, with the terms and conditions of this Agreement and the other Loan  Documents, including without limitation, the financial covenants contained in Section 10.1., after  giving effect to such consolidation, merger, acquisition, Investment, sale, lease or other transfer  and any prepayment of Loans to be made in connection therewith; and    (d) the Parent, the Borrower and each other Subsidiary may sell, transfer or dispose of  assets among themselves.    





 






  96  LEGAL02/41986661v10  Further, no Loan Party nor any Subsidiary, shall enter into any sale-leaseback transactions or other  transaction by which such Person shall remain liable as lessee (or the economic equivalent thereof) of any  real or personal property that it has sold or leased to another Person.    Section 10.8.  Fiscal Year.   The Parent shall not change its fiscal year from that in effect as of the Agreement Date.    Section 10.9.  Modifications of Material Contracts.    The Parent and the Borrower shall not enter into, and shall not permit any Subsidiary or other Loan  Party to enter into, any amendment or modification to any Material Contract which could reasonably be  expected to have a Material Adverse Effect.     Section 10.10.  Modifications of Organizational Documents.     The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, amend, supplement, restate or otherwise modify its certificate or articles of incorporation or  formation, by-laws, operating agreement, declaration of trust, partnership agreement or other applicable  organizational document if such amendment, supplement, restatement or other modification (a) is  materially adverse to the interest of the Administrative Agent, the Issuing Banks or the Lenders or (b) could  reasonably be expected to have a Material Adverse Effect.      Section 10.11.  Transactions with Affiliates.   The Parent and the Borrower shall not permit to exist or enter into, and shall not permit any other  Loan Party or any other Subsidiary to permit to exist or enter into, any transaction (including the purchase,  sale, lease or exchange of any property or the rendering of any service) with any Affiliate (other than the  Parent, the Borrower, any other Loan Party or any Wholly Owned Subsidiary), except transactions pursuant  to the reasonable requirements of the business of the Parent, the Borrower, such other Loan Party or such  other Subsidiary and upon fair and reasonable terms which are no less favorable to the Parent, the Borrower,  such other Loan Party or such other Subsidiary, as applicable, than would be obtained in a comparable  arm’s length transaction with a Person that is not an Affiliate.      Section 10.12.  ERISA Exemptions.  The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, permit any of its respective assets to become or be deemed to be “plan assets” within the  meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder.  The  Parent and the Borrower shall not cause or permit to occur, and shall not permit any other member of the  ERISA Group to cause or permit to occur, any ERISA Event if such ERISA Event could reasonably be  expected to have a Material Adverse Effect.    Section 10.13.  Environmental Matters.   The Parent and the Borrower shall not, and shall not permit any other Loan Party, any other  Subsidiary or any other Person to, use, generate, discharge, emit, manufacture, handle, process, store,  release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties  in violation of any Environmental Law or in a manner that could reasonably be expected to lead to any  Environmental Claim or pose a risk to human health or the environment which, in the case of any of the  





 






  97  LEGAL02/41986661v10  foregoing, could reasonably be expected to have a Material Adverse Effect.  Nothing in this Section shall  impose any obligation or liability whatsoever on the Administrative Agent or any Lender.     Section 10.14.  Derivatives Contracts.   The Parent and the Borrower shall not, and shall not permit any other Loan Party or any other  Subsidiary to, enter into or become obligated in respect of, Derivatives Contracts, other than Derivatives  Contracts entered into by the Parent, the Borrower, any such Loan Party or any such Subsidiary in the  ordinary course of business and which establish an effective hedge in respect of liabilities, commitments or  assets held or reasonably anticipated by the Parent, the Borrower, such other Loan Party or such other  Subsidiary.     ARTICLE XI. DEFAULT  Section 11.1.  Events of Default.   Each of the following shall constitute an Event of Default, whatever the reason for such event and  whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or pursuant to  any judgment or order of any Governmental Authority:    (a) Default in Payment of Principal.  The Borrower shall fail to pay when due (whether upon  demand, at maturity, by reason of acceleration or otherwise) the principal of any of the Loans, or any  Reimbursement Obligation.    (b) Default in Payment of Interest and Other Obligations.  The Borrower shall fail to pay when  due any interest on any of the Loans or any of the other payment Obligations owing by the Borrower under  this Agreement, any other Loan Document or the Fee Letters or any other Loan Party shall fail to pay when  due any payment Obligation owing by such other Loan Party under any Loan Document to which it is a  party, and such failure shall continue for a period of 3 Business Days.     (c) Default in Performance.       (i) Any Loan Party shall fail to perform or observe any term, covenant, condition or  agreement on its part to be performed or observed and contained in the last sentence of Section  8.8.(a), Section 8.8.(b), Section 9.4.(h), or Article X.; or     (ii) Any Loan Party shall fail to perform or observe any term, covenant, condition or  agreement contained in this Agreement or any other Loan Document to which it is a party and not  otherwise mentioned in this Section, and in the case of this clause (ii) only, such failure shall  continue for a period of 30 days after the earlier of (x) the date upon which a Responsible Officer  of the Parent or the Borrower obtains knowledge of such failure or (y) the date upon which the  Parent or any other Loan Party has received written notice of such failure from the Administrative  Agent.     (d) Misrepresentations.  Any written statement, representation or warranty made or deemed  made by or on behalf of any Loan Party under this Agreement or under any other Loan Document, or any  amendment hereto or thereto, or in any other writing or statement at any time furnished or made or deemed  made by, or on behalf of, any Loan Party to the Administrative Agent, any Issuing Bank or any Lender,  shall at any time prove to have been incorrect or misleading, in light of the circumstances in which made  or deemed made, in any material respect (or, to the extent qualified by materiality or Material Adverse  Effect, in any respect) when furnished or made or deemed made.  





 






  98  LEGAL02/41986661v10     (e) Indebtedness Cross-Default; Derivatives Contracts.      (i) The Borrower, any other Loan Party or any other Subsidiary shall fail to pay when  due and payable, within any applicable grace or cure period, the principal of, or interest on, any  Indebtedness (other than the Loans and Reimbursement Obligations) having an aggregate  outstanding principal amount (or, in the case of any Derivatives Contract, having, without regard  to the effect of any close-out netting provision, a Derivatives Termination Value), in each case,  individually or in the aggregate with all other Indebtedness as to which such a failure exists, of  $50,000,000 or more (all such Indebtedness being “Material Indebtedness”); or      (ii) (x) The maturity of any Material Indebtedness shall have been accelerated in  accordance with the provisions of any indenture, contract or instrument evidencing, providing for  the creation of or otherwise concerning such Material Indebtedness or (y) any Material  Indebtedness shall have been required to be prepaid, repurchased, redeemed or defeased prior to  the stated maturity thereof; or      (iii) Any other event shall have occurred and be continuing which would permit any  holder or holders of any Material Indebtedness, any trustee or agent acting on behalf of such holder  or holders or any other Person, to accelerate the maturity of any such Material Indebtedness or  require any such Material Indebtedness to be prepaid, repurchased, redeemed or defeased prior to  its stated maturity; or      (iv) There occurs an “Event of Default” under and as defined in any Derivatives  Contract as to which the Borrower, any Loan Party or any other Subsidiary is a “Defaulting Party”  (as defined therein), or there occurs an “Early Termination Date” (as defined therein) in respect of  any such Derivatives Contract as a result of a “Termination Event” (as defined therein) as to which  the Borrower or any of its Subsidiaries is an “Affected Party” (as defined therein), in each case, if  the Derivatives Termination Value payable by the Borrower, any other Loan Party or any other  Subsidiary exceeds $15,000,000 in the aggregate.       (f) Voluntary Bankruptcy Proceeding.  The Borrower, any other Loan Party or any Significant  Subsidiary shall:  (i) commence a voluntary case under the Bankruptcy Code or other federal bankruptcy  laws (as now or hereafter in effect); (ii) file a petition seeking to take advantage of any other Applicable  Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition  or adjustment of debts; (iii) consent to, or fail to contest in a timely and appropriate manner, any petition  filed against it in an involuntary case under such bankruptcy laws or other Applicable Laws or consent to  any proceeding or action described in the immediately following subsection; (iv) apply for or consent to,  or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a  receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign;  (v) admit in writing its inability to pay its debts as they become due; (vi) make a general assignment for the  benefit of creditors; (vii) make a conveyance fraudulent as to creditors under any Applicable Law; or  (viii) take any corporate or partnership action for the purpose of effecting any of the foregoing.     (g) Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced  against any Loan Party or any other Significant Subsidiary in any court of competent jurisdiction seeking:   (i) relief under the Bankruptcy Code or other federal bankruptcy laws (as now or hereafter in effect) or  under any other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,  winding-up, or composition or adjustment of debts; or (ii) the appointment of a trustee, receiver, custodian,  liquidator or the like of such Person, or of all or any substantial part of the assets, domestic or foreign, of  





 






  99  LEGAL02/41986661v10  such Person, and such case or proceeding shall continue undismissed or unstayed for a period of  60 consecutive days, or an order granting the remedy or other relief requested in such case or proceeding  against such Loan Party or such Significant Subsidiary (including, but not limited to, an order for relief  under such Bankruptcy Code or such other federal bankruptcy laws) shall be entered.     (h) Revocation of Loan Documents.  Any Loan Party shall (or shall attempt to) disavow,  revoke or terminate any Loan Document or the Fee Letters to which it is a party or shall otherwise challenge  or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity  or enforceability of any Loan Document or the Fee Letters, or any Loan Document or the Fee Letters shall  cease to be in full force and effect (except as a result of the express terms thereof).     (i) Judgment.   A judgment or order for the payment of money or for an injunction shall be  entered against the Borrower, any other Loan Party, or any other Subsidiary by any court or other tribunal  and (i) such judgment or order shall continue for a period of 30 days without being paid, stayed or dismissed  through appropriate appellate proceedings and (ii) either (A) the amount of such judgment or order for  which insurance has not been acknowledged in writing by the applicable insurance carrier (or the amount  as to which the insurer has denied liability) exceeds, individually or together with all other such outstanding  judgments or orders entered against any Loan Parties or any other Subsidiary, $50,000,000  or (B) in the  case of an injunction or other non-monetary judgment, such injunction or judgment or order could  reasonably be expected to have a Material Adverse Effect.     (j) Attachment.  A warrant, writ of attachment, execution or similar process shall be issued  against any property of any Loan Party or any other Subsidiary, which exceeds, individually or together  with all other such warrants, writs, executions and processes, $50,000,000 in amount and such warrant,  writ, execution or process shall not be paid, discharged, vacated, stayed or bonded for a period of 30 days;  provided, however, that if a bond has been issued in favor of the claimant or other Person obtaining such  warrant, writ, execution or process, the issuer of such bond shall execute a waiver or subordination  agreement in form and substance satisfactory to the Administrative Agent pursuant to which the issuer of  such bond subordinates its right of reimbursement, contribution or subrogation to the Obligations and  waives or subordinates any Lien it may have on the assets of any Loan Party.    (k) ERISA.       (i) Any ERISA Event shall have occurred that results or could reasonably be expected  to result in liability to any member of the ERISA Group aggregating in excess of $50,000,000; or     (ii) The “benefit obligation” of all Plans exceeds the “fair market value of plan assets”  for such Plans by more than $50,000,000, all as determined, and with such terms defined, in  accordance with FASB ASC 715.   (l) Loan Documents.  An Event of Default (as defined therein) shall occur under any of the  other Loan Documents.    (m) Change of Control/Change in Management.      (i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of  the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the  “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a  Person will be deemed to have “beneficial ownership” of all securities that such Person has the  right to acquire, whether such right is exercisable immediately or only after the passage of time),  





 






  100  LEGAL02/41986661v10  directly or indirectly, of more than 35% of the total voting power of the then outstanding voting  stock of the Parent;    (ii) During any period of 12 consecutive months ending after the Agreement Date,  individuals who at the beginning of any such 12-month period constituted the Board of Directors  of the Parent (together with any new directors whose election by such Board or whose nomination  for election by the shareholders of the Parent was approved by a vote of a majority of the directors  then still in office who were either directors at the beginning of such period or whose election or  nomination for election was previously so approved) cease for any reason to constitute a majority  of the Board of Directors of the Parent then in office; or    (iii) The Parent or a Wholly Owned Subsidiary of the Parent shall cease to be the sole  general partner of the Borrower or shall cease to have the sole and exclusive power to exercise all  management and control over the Borrower.    Section 11.2.  Remedies Upon Event of Default.   Upon the occurrence of an Event of Default the following provisions shall apply:     (a) Acceleration; Termination of Facilities.      (i) Automatic.  Upon the occurrence of an Event of Default specified in  Sections 11.1.(f) or 11.1.(g), (A)(1) the principal of, and all accrued interest on, the Loans and the  Notes at the time outstanding, (2) an amount equal to the Stated Amount of all Letters of Credit  outstanding as of the date of the occurrence of such Event of Default for deposit into the Letter of  Credit Collateral Account pursuant to Section 11.5. and (3) all of the other Obligations, including,  but not limited to, the other amounts owed to the Lenders and the Administrative Agent under this  Agreement, the Notes or any of the other Loan Documents shall become immediately and  automatically due and payable without presentment, demand, protest, or other notice of any kind,  all of which are expressly waived by the Borrower on behalf of itself and the other Loan Parties,  and (B) the Commitments, the Swingline Commitment, and the obligation of the Issuing Banks to  issue Letters of Credit hereunder, shall all immediately and automatically terminate.      (ii) Optional.  If any other Event of Default shall exist, the Administrative Agent may,  and at the direction of the Requisite Lenders shall:  (A) declare (1) the principal of, and accrued  interest on, the Loans and the Notes at the time outstanding, (2) an amount equal to the Stated  Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event of Default  for deposit into the Letter of Credit Collateral Account pursuant to Section 11.5. and (3) all of the  other Obligations, including, but not limited to, the other amounts owed to the Lenders and the  Administrative Agent under this Agreement, the Notes or any of the other Loan Documents to be  forthwith due and payable, whereupon the same shall immediately become due and payable without  presentment, demand, protest or other notice of any kind, all of which are expressly waived by the  Borrower on behalf of itself and the other Loan Parties, and (B) terminate the Commitments and  the Swingline Commitment and the obligation of the Issuing Banks to issue Letters of Credit  hereunder.       (b) Loan Documents.  The Requisite Lenders may direct the Administrative Agent to, and the  Administrative Agent if so directed shall, exercise any and all of its rights under any and all of the other  Loan Documents.    





 






  101  LEGAL02/41986661v10   (c) Applicable Law.  The Requisite Lenders may direct the Administrative Agent to, and the  Administrative Agent if so directed shall, exercise all other rights and remedies it may have under any  Applicable Law.     (d) Appointment of Receiver.  To the extent permitted by Applicable Law, the Administrative  Agent and the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the  Borrower and its Subsidiaries (other than Excluded Subsidiaries), without notice of any kind whatsoever  and without regard to the adequacy of any security for the Obligations or the solvency of any party bound  for its payment, to take possession of all or any portion of the property or the business operations of the  Borrower and its Subsidiaries (other than Excluded Subsidiaries) and to exercise such power as the court  shall confer upon such receiver.     (e) Specified Derivatives Contract Remedies.  Notwithstanding any other provision of this  Agreement or other Loan Document, each Specified Derivatives Provider shall have the right, with prompt  notice to the Administrative Agent, but without the approval or consent of or other action by the  Administrative Agent or the Lenders, and without limitation of other remedies available to such Specified  Derivatives Provider under contract or Applicable Law, to undertake any of the following:  (a) to declare  an event of default, termination event or other similar event under any Specified Derivatives Contract and  to create an “Early Termination Date” (as defined therein) in respect thereof, (b) to determine net  termination amounts in respect of any and all Specified Derivatives Contracts in accordance with the terms  thereof, and to set off amounts among such contracts, (c) to set off or proceed against deposit account  balances, securities account balances and other property and amounts held by such Specified Derivatives  Provider pursuant to any Derivatives Support Document, including any “Posted Collateral” (as defined in  any credit support annex included in any such Derivatives Support Document to which such Specified  Derivatives Provider may be a party), and (d) to prosecute any legal action against the Parent, the Borrower,  any other Loan Party or any other Subsidiary to enforce or collect net amounts owing to such Specified  Derivatives Provider pursuant to any Specified Derivatives Contract.    Section 11.3.  Remedies Upon Default.   Upon the occurrence of a Default specified in Section 11.1.(g), the Commitments, the Swingline  Commitment, and the obligation of the Issuing Banks to issue Letters of Credit shall immediately and  automatically terminate.      Section 11.4.  Marshaling; Payments Set Aside.   None of the Administrative Agent, any Issuing Bank or any Lender shall be under any obligation  to marshal any assets in favor of any Loan Party or any other party or against or in payment of any or all of  the Guaranteed Obligations.  To the extent that any Loan Party makes a payment or payments to the  Administrative Agent, any Issuing Bank, or any Lender, or the Administrative Agent, any Issuing Bank or  any Lender enforce their security interests or exercise their rights of setoff, and such payment or payments  or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to  be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party  under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such  recovery, the Guaranteed Obligations, or part thereof originally intended to be satisfied, and all Liens, rights  and remedies therefor, shall be revived and continued in full force and effect as if such payment had not  been made or such enforcement or setoff had not occurred.    





 






  102  LEGAL02/41986661v10  Section 11.5.  Allocation of Proceeds.   If an Event of Default exists, all payments received by the Administrative Agent (or any Lender as  a result of its exercise of remedies permitted under Section 13.3. under any of the Loan Documents, in  respect of any principal of or interest on the Guaranteed Obligations or any other amounts payable by the  Borrower hereunder or thereunder, shall be applied in the following order and priority:    (a) to payment of that portion of the Guaranteed Obligations constituting fees,  indemnities, expenses and other amounts, including attorney fees, payable to the Administrative  Agent in its capacity as such, each applicable Issuing Bank in its capacity as such and the Swingline  Lender in its capacity as such, ratably among the Administrative Agent, the applicable Issuing  Banks and Swingline Lender in proportion to the respective amounts described in this clause (a)  payable to them;    (b) to payment of that portion of the Guaranteed Obligations constituting fees,  indemnities and other amounts (other than principal and interest) payable to the Lenders under the  Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective  amounts described in this clause (b) payable to them;    (c) to payment of that portion of the Guaranteed Obligations constituting accrued and  unpaid interest on the Swingline Loans;    (d) to payment of that portion of the Guaranteed Obligations constituting accrued and  unpaid interest on the Loans and Reimbursement Obligations, ratably among the Lenders and the  applicable Issuing Banks in proportion to the respective amounts described in this clause (d)  payable to them;    (e) to payment of that portion of the Guaranteed Obligations constituting unpaid  principal of the Swingline Loans;    (f) to payment of that portion of the Guaranteed Obligations constituting unpaid  principal of the Loans, Reimbursement Obligations, other Letter of Credit Liabilities and payment  obligations then owing under Specified Derivatives Contracts, ratably among the Lenders, the  Issuing Banks, as applicable, and the Specified Derivatives Providers in proportion to the respective  amounts described in this clause (f) payable to them; provided, however, to the extent that any  amounts available for distribution pursuant to this clause are attributable to the issued but undrawn  amount of an outstanding Letter of Credit, such amounts shall be paid to the Administrative Agent  for deposit into the Letter of Credit Collateral Account; and    (g) the balance, if any, after all of the Guaranteed Obligations have been indefeasibly  paid in full, to the Borrower or as otherwise required by Applicable Law.    Notwithstanding the foregoing, Guaranteed Obligations arising under Specified Derivatives Contracts shall  be excluded from the application described above if the Administrative Agent has not received written  notice thereof, together with such supporting documentation as the Administrative Agent may request, from  the applicable Specified Derivatives Provider, as the case may be; provided, however, that during a Default  or Event of Default trade-by-trade notices shall be sufficient to satisfy this requirement.  Each Specified  Derivatives Provider not a party to this Agreement that has given the notice contemplated by the preceding  sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the  Administrative Agent pursuant to the terms of Article XII. for itself and its Affiliates as if a “Lender” party  hereto. Upon the occurrence of an Event of Default including after any acceleration of the Obligations, each  





 






  103  LEGAL02/41986661v10  Specified Derivatives Provider shall provide the Administrative Agent periodic updates (including updates  promptly upon the Administrative Agent’s request therefore) of the amounts due and owing with respect to  any outstanding Specified Derivatives Contracts.      Section 11.6.  Letter of Credit Collateral Account.   (a) As collateral security for the prompt payment in full when due of all Letter of Credit  Liabilities and the other Obligations, the Borrower hereby pledges and grants to the Administrative Agent,  for the ratable benefit of the Administrative Agent, the Issuing Banks and the Lenders as provided herein,  a security interest in all of its right, title and interest in and to the Letter of Credit Collateral Account and  the balances from time to time in the Letter of Credit Collateral Account (including the investments and  reinvestments therein provided for below).  The balances from time to time in the Letter of Credit Collateral  Account shall not constitute payment of any Letter of Credit Liabilities until applied by the applicable  Issuing Bank(s) as provided herein.  Anything in this Agreement to the contrary notwithstanding, funds  held in the Letter of Credit Collateral Account shall be subject to withdrawal only as provided in this  Section.       (b) Amounts on deposit in the Letter of Credit Collateral Account shall be invested and  reinvested by the Administrative Agent in such Cash Equivalents as the Administrative Agent shall  determine in its sole discretion.  All such investments and reinvestments shall be held in the name of and  be under the sole dominion and control of the Administrative Agent for the ratable benefit of the  Administrative Agent, the Issuing Banks and the Revolving Lenders; provided, that all earnings on such  investments will be credited to and retained in the Letter of Credit Collateral Account.  The Administrative  Agent shall exercise reasonable care in the custody and preservation of any funds held in the Letter of Credit  Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment  substantially equivalent to that which the Administrative Agent accords other funds deposited with the  Administrative Agent, it being understood that the Administrative Agent shall not have any responsibility  for taking any necessary steps to preserve rights against any parties with respect to any funds held in the  Letter of Credit Collateral Account.     (c) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of  such Letter of Credit, the Borrower and the Lenders authorize the Administrative Agent to use the monies  deposited in the Letter of Credit Collateral Account to reimburse the applicable Issuing Bank for the  payment made by such Issuing Bank to the beneficiary with respect to such drawing or the payee with  respect to such presentment.      (d) If an Event of Default exists, the Administrative Agent may (and, if instructed by the  Requisite Lenders, shall) in its (or their) discretion at any time and from time to time elect to liquidate any  such investments and reinvestments and apply the proceeds thereof to the Obligations in accordance with  Section 11.5.  Notwithstanding the foregoing, the Administrative Agent shall not be required to liquidate  and release any such amounts if such liquidation or release would result in the amount available in the  Letter of Credit Collateral Account to be less than the Stated Amount of all Extended Letters of Credit that  remain outstanding.     (e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in  or credited to the Letter of Credit Collateral Account exceed the aggregate amount of the Letter of Credit  Liabilities then due and owing, the Administrative Agent shall, from time to time, at the request of the  Borrower, deliver to the Borrower within 10 Business Days after the Administrative Agent’s receipt of such  request from the Borrower, against receipt but without any recourse, warranty or representation whatsoever,  such amount of the credit balances in the Letter of Credit Collateral Account as exceeds the aggregate  amount of Letter of Credit Liabilities at such time.  Upon the expiration, termination or cancellation of an  





 






  104  LEGAL02/41986661v10  Extended Letter of Credit for which the Lenders reimbursed (or funded participations in) a drawing deemed  to have occurred under the fourth sentence of Section 2.3.(b) for deposit into the Letter of Credit Collateral  Account but in respect of which the Lenders have not otherwise received payment for the amount so  reimbursed or funded, the Administrative Agent shall promptly remit to the Lenders the amount so  reimbursed or funded for such Extended Letter of Credit that remains in the Letter of Credit Collateral  Account, pro rata in accordance with the respective unpaid reimbursements or funded participations of the  Lenders in respect of such Extended Letter of Credit, against receipt but without any recourse, warranty or  representation whatsoever.  When all of the Obligations shall have been indefeasibly paid in full and no  Letters of Credit remain outstanding, the Administrative Agent shall deliver to the Borrower, against receipt  but without any recourse, warranty or representation whatsoever, the balances remaining in the Letter of  Credit Collateral Account.     (f) The Borrower shall pay to the Administrative Agent from time to time such fees as the  Administrative Agent normally charges for similar services in connection with the Administrative Agent’s  administration of the Letter of Credit Collateral Account and investments and reinvestments of funds  therein.    Section 11.7.  Performance by Administrative Agent.   If the Borrower or any other Loan Party shall fail to perform any covenant, duty or agreement  contained in any of the Loan Documents, the Administrative Agent may, after notice to the Borrower,  perform or attempt to perform such covenant, duty or agreement on behalf of the Borrower or such other  Loan Party after the expiration of any cure or grace periods set forth herein.  In such event, the Borrower  shall, at the request of the Administrative Agent, promptly pay any amount reasonably expended by the  Administrative Agent in such performance or attempted performance to the Administrative Agent, together  with interest thereon at the applicable Post-Default Rate from the date of such expenditure until paid.   Notwithstanding the foregoing, neither the Administrative Agent nor any Lender shall have any liability or  responsibility whatsoever for the performance of any obligation of the Borrower under this Agreement or  any other Loan Document.    Section 11.8.  Rights Cumulative.   (a) The rights and remedies of the Administrative Agent, the Issuing Banks, and the Lenders  under this Agreement, each of the other Loan Documents and the Fee Letters shall be cumulative and not  exclusive of any rights or remedies which any of them may otherwise have under Applicable Law.  In  exercising their respective rights and remedies the Administrative Agent, the Issuing Banks and the Lenders  may be selective and no failure or delay by the Administrative Agent, any Issuing Bank or any of the  Lenders in exercising any right shall operate as a waiver of it, nor shall any single or partial exercise of any  power or right preclude its other or further exercise or the exercise of any other power or right.     (b) Enforcement by Administrative Agent.  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 Article XI. for the benefit of all  the Lenders and the Issuing Banks; provided that the foregoing shall not prohibit (i) 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, (ii) any Issuing Bank,  the Swingline Lender or any Specified Derivatives Provider from exercising the rights and remedies that  inure to its benefit (solely in its capacity as an Issuing Bank, Swingline Lender or Specified Derivatives  Provider, as the case may be) hereunder, under the other Loan Documents or under any Specified  





 






  105  LEGAL02/41986661v10  Derivatives Contract, as applicable, (iii) any Lender from exercising setoff rights in accordance with  Section 13.3. (subject to the terms of Section 3.3.), or (iv) 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 (x) the Requisite Lenders shall  have the rights otherwise ascribed to the Administrative Agent pursuant to Article XI. and (y) in addition  to the matters set forth in clauses (ii), (iii) and (iv) of the preceding proviso and subject to Section 3.3., any  Lender may, with the consent of the Requisite Lenders, enforce any rights and remedies available to it and  as authorized by the Requisite Lenders.    ARTICLE XII. THE ADMINISTRATIVE AGENT  Section 12.1.  Appointment and Authorization.   Each Lender hereby irrevocably appoints and authorizes the Administrative Agent to take such  action as contractual representative on such Lender’s behalf and to exercise such powers under this  Agreement and the other Loan Documents as are specifically delegated to the Administrative Agent by the  terms hereof and thereof, together with such powers as are reasonably incidental thereto. Not in limitation  of the foregoing, each Lender authorizes and directs the Administrative Agent to enter into the Loan  Documents for the benefit of the Lenders.  Each Lender hereby agrees that, except as otherwise set forth  herein, any action taken by the Requisite Lenders in accordance with the provisions of this Agreement or  the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or therein,  together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon  all of the Lenders.  Nothing herein shall be construed to deem the Administrative Agent a trustee or  fiduciary for any Lender or to impose on the Administrative Agent duties or obligations other than those  expressly provided for herein.  Without limiting the generality of the foregoing, the use of the terms  “Agent”, “Administrative Agent”, “agent” and similar terms in the Loan Documents 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, use of such terms is merely a matter of  market custom, and is intended to create or reflect only an administrative relationship between independent  contracting parties.  The Administrative Agent shall deliver or otherwise make available to each Lender,  promptly upon receipt thereof by the Administrative Agent, copies of each of the financial statements,  certificates, notices and other documents delivered to the Administrative Agent pursuant to Article IX. that  the Borrower is not otherwise required to deliver directly to the Lenders.  The Administrative Agent will  furnish to any Lender, upon the request of such Lender, a copy (or, where appropriate, an original) of any  document, instrument, agreement, certificate or notice furnished to the Administrative Agent by the  Borrower, any other Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or any  other Loan Document not already delivered or otherwise made available to such Lender pursuant to the  terms of this Agreement or any such other Loan Document.  As to any matters not expressly provided for  by the Loan Documents (including, without limitation, enforcement or collection of any of the Obligations),  the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be  required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting)  upon the instructions of the Requisite Lenders (or all of the Lenders if explicitly required under any other  provision of this Agreement), and such instructions shall be binding upon all Lenders and all holders of any  of the Obligations; provided, however, that, notwithstanding anything in this Agreement to the contrary,  the Administrative Agent shall not be required to take any action which exposes the Administrative Agent  to personal liability or which is contrary to this Agreement or any other Loan Document or Applicable Law.   Not in limitation of the foregoing, the Administrative Agent may exercise any right or remedy it or the  Lenders may have under any Loan Document upon the occurrence of a Default or an Event of Default  unless the Requisite Lenders have directed the Administrative Agent otherwise.  Without limiting the  foregoing, no Lender shall have any right of action whatsoever against the Administrative Agent as a result  





 






  106  LEGAL02/41986661v10  of the Administrative Agent acting or refraining from acting under this Agreement or any of the other Loan  Documents in accordance with the instructions of the Requisite Lenders, or where applicable, all the  Lenders.    Section 12.2.  Administrative Agent’s Reliance.   Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither the  Administrative Agent nor any of its Related Parties shall be liable for any action taken or not taken by it  under or in connection with this Agreement or any other Loan Document, except for its or their own gross  negligence or willful misconduct in connection with its duties expressly set forth herein or therein as  determined by a court of competent jurisdiction in a final non-appealable judgment.  Without limiting the  generality of the foregoing, the Administrative Agent may consult with legal counsel (including its own  counsel or counsel for the Parent, the Borrower or any other Loan Party), independent public accountants  and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good  faith by it in accordance with the advice of such counsel, accountants or experts.  Neither the Administrative  Agent nor any of its Related Parties: (a) makes any warranty or representation to any Lender, any Issuing  Bank or any other Person, or shall be responsible to any Lender, any Issuing Bank or any other Person for  any statement, warranty or representation made or deemed made by the Borrower, any other Loan Party or  any other Person in or in connection with this Agreement or any other Loan Document; (b) shall have any  duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or  conditions of this Agreement or any other Loan Document or the satisfaction of any conditions precedent  under this Agreement or any Loan Document on the part of the Borrower or other Persons, or to inspect the  property, books or records of the Borrower or any other Person; (c) shall be responsible to any Lender or  any Issuing Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value  of this Agreement or any other Loan Document, any other instrument or document furnished pursuant  thereto or any collateral covered thereby or the perfection or priority of any Lien in favor of the  Administrative Agent on behalf of the Lenders and the Issuing Banks in any such collateral; (d) shall have  any liability in respect of any recitals, statements, certifications, representations or warranties contained in  any of the Loan Documents or any other document, instrument, agreement, certificate or statement  delivered in connection therewith; and (e) shall incur any liability under or in respect of this Agreement or  any other Loan Document by acting upon any notice, consent, certificate or other instrument or writing  (which may be by telephone, telecopy or electronic mail) believed by it to be genuine and signed, sent or  given by the proper party or parties.  The Administrative Agent may execute any of its duties under the  Loan Documents by or through agents, employees or attorneys-in-fact and shall not be responsible for the  negligence or misconduct of any agent or attorney-in-fact that it selects in the absence of gross negligence  or willful misconduct in the selection of such agent or attorney-in-fact as determined by a court of  competent jurisdiction in a final non-appealable judgment.  Unless set forth in writing to the contrary, the  making of its initial Loan by a Lender shall constitute a certification by such Lender to the Administrative  Agent and the other Lenders that the conditions precedent for initial Loans set forth in Sections 6.1. and  6.2. that have not previously been waived by the Requisite Lenders have been satisfied.    Section 12.3.  Notice of Events of Default.   The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of a  Default or Event of Default unless the Administrative Agent has received notice from a Lender or the  Borrower referring to this Agreement, describing with reasonable specificity such Default or Event of  Default and stating that such notice is a “notice of default.”  If any Lender (excluding the Lender which is  also serving as the Administrative Agent) becomes aware of any Default or Event of Default, it shall  promptly send to the Administrative Agent such a “notice of default”; provided, a Lender’s failure to  provide such a “notice of default” to the Administrative Agent shall not result in any liability of such Lender  





 






  107  LEGAL02/41986661v10  to any other party to any of the Loan Documents.  Further, if the Administrative Agent receives such a  “notice of default,” the Administrative Agent shall give prompt notice thereof to the Lenders.    Section 12.4.  Administrative Agent as Lender.   The Lender acting as Administrative Agent shall have the same rights and powers as a Lender or a  Specified Derivatives Provider, as the case may be, under this Agreement, any other Loan Document, any  Specified Derivatives Contract, as the case may be, as any other Lender or Specified Derivatives Provider  and may exercise the same as though it were not the Administrative Agent; and the term “Lender” or  “Lenders” shall, unless otherwise expressly indicated, include the Lender acting as Administrative Agent  in each case in its individual capacity.  Such Lender and its Affiliates may each accept deposits from,  maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures of, serve  as financial advisor to, and generally engage in any kind of business with the Borrower, any other Loan  Party or any other Affiliate thereof as if it were any other bank and without any duty to account therefor to  the Issuing Banks, the other Lenders or any Specified Derivatives Providers.  Further, the Administrative  Agent and any Affiliate may accept fees and other consideration from the Borrower for services in  connection with this Agreement or any Specified Derivatives Contract, or otherwise without having to  account for the same to the Issuing Banks, the other Lenders or any Specified Derivatives Providers.  The  Issuing Banks and the Lenders acknowledge that, pursuant to such activities, the Lender acting as  Administrative Agent or its Affiliates may receive information regarding the Borrower, other Loan Parties,  other Subsidiaries and other Affiliates (including information that may be subject to confidentiality  obligations in favor of such Person) and acknowledge that the Administrative Agent shall be under no  obligation to provide such information to them.    Section 12.5.  Approvals of Lenders.   All communications from the Administrative Agent to any Lender requesting such Lender’s  determination, consent or approval (a) shall be given in the form of a written notice to such Lender, (b) shall  be accompanied by a description of the matter or issue as to which such determination, consent or approval  is requested, or shall advise such Lender where information, if any, regarding such matter or issue may be  inspected, or shall otherwise describe the matter or issue to be resolved and (c) shall include, if reasonably  requested by such Lender and to the extent not previously provided to such Lender, written materials  provided to the Administrative Agent by the Borrower in respect of the matter or issue to be resolved.  With  respect to any action requiring the consent of the Requite Lenders or Requisite Class Lenders (and not all  Lenders or all affected Lenders pursuant to Section 13.6), unless a Lender shall give written notice to the  Administrative Agent that it specifically objects to the requested determination, consent or approval within  10 Business Days (or such lesser or greater period as may be specifically required under the express terms  of the Loan Documents) of receipt of such communication, such Lender shall be deemed to have  conclusively approved such requested determination, consent or approval.     Section 12.6.  Lender Credit Decision, Etc.   Each of the Lenders and the Issuing Banks expressly acknowledges and agrees that neither the  Administrative Agent nor any of its Related Parties has made any representations or warranties to such  Issuing Bank or such Lender and that no act by the Administrative Agent hereafter taken, including any  review of the affairs of the Parent, the Borrower, any other Loan Party or any other Subsidiary or Affiliate,  shall be deemed to constitute any such representation or warranty by the Administrative Agent to any  Issuing Bank or any Lender.  Each of the Lenders and the Issuing Banks acknowledges that it has made its  own credit and legal analysis and decision to enter into this Agreement and the transactions contemplated  hereby, independently and without reliance upon the Administrative Agent, the Sustainability Structuring  Agents, any other Lender or counsel to the Administrative Agent, or any of their respective Related Parties,  





 






  108  LEGAL02/41986661v10  and based on the financial statements of the Parent, the Borrower, the other Loan Parties, the other  Subsidiaries and other Affiliate thereof, and inquiries of such Persons, its independent due diligence of the  business and affairs of the Parent, the Borrower, the other Loan Parties, the other Subsidiaries and other  Persons, its review of the Loan Documents, the legal opinions required to be delivered to it hereunder, the  advice of its own counsel and such other documents and information as it has deemed appropriate.  Each  of the Lenders and the Issuing Banks also acknowledges that it will, independently and without reliance  upon the Administrative Agent, the Sustainability Structuring Agents, any other Lender or counsel to the  Administrative Agent or any of their respective Related Parties, and based on such review, advice,  documents and information as it shall deem appropriate at the time, continue to make its own decisions in  taking or not taking action under the Loan Documents.  The Administrative Agent shall not be required to  keep itself informed as to the performance or observance by the Parent, the Borrower or any other Loan  Party of the Loan Documents or any other document referred to or provided for therein or to inspect the  properties or books of, or make any other investigation of, the Parent, the Borrower, any other Loan Party  or any other Subsidiary.  Except for notices, reports and other documents and information expressly  required to be furnished to the Lenders and the Issuing Banks by the Administrative Agent under this  Agreement or any of the other Loan Documents, the Administrative Agent shall have no duty or  responsibility to provide any Lender or the any Issuing Bank with any credit or other information  concerning the business, operations, property, financial and other condition or creditworthiness of the  Parent, the Borrower, any other Loan Party or any other Affiliate thereof which may come into possession  of the Administrative Agent or any of its Related Parties.  Each of the Lenders and the Issuing Banks  acknowledges that the Administrative Agent’s legal counsel in connection with the transactions  contemplated by this Agreement is only acting as counsel to the Administrative Agent and is not acting as  counsel to any Lender or any Issuing Bank.    Section 12.7.  Indemnification of Administrative Agent.   Each Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by the  Borrower and without limiting the obligation of the Borrower to do so) pro rata in accordance with such  Lender’s respective Pro Rata Share (determined as of the time that the applicable unreimbursed expense or  indemnity payment is sought), from and against any and all liabilities, obligations, losses, damages,  penalties, actions, judgments, suits, reasonable out-of-pocket costs and expenses of any kind or nature  whatsoever which may at any time be imposed on, incurred by, or asserted against the Administrative Agent  (in its capacity as Administrative Agent but not as a Lender) in any way relating to or arising out of the  Loan Documents, any transaction contemplated hereby or thereby or any action taken or omitted by the  Administrative Agent under the Loan Documents (collectively, “Indemnifiable Amounts”); provided,  however, that no Lender shall be liable for any portion of such Indemnifiable Amounts to the extent  resulting from the Administrative Agent’s gross negligence or willful misconduct as determined by a court  of competent jurisdiction in a final, non-appealable judgment; provided, however, that no action taken in  accordance with the directions of the Requisite Lenders (or all of the Lenders, if expressly required  hereunder) shall be deemed to constitute gross negligence or willful misconduct for purposes of this  Section.  Without limiting the generality of the foregoing, each Lender agrees to reimburse the  Administrative Agent (to the extent not reimbursed by the Borrower and without limiting the obligation of  the Borrower to do so) promptly upon demand for its Pro Rata Share (determined as of the time that the  applicable reimbursement is sought) of any out-of-pocket expenses (including the reasonable fees and  expenses of the counsel to the Administrative Agent) incurred by the Administrative Agent in connection  with the preparation, negotiation, execution, administration, or enforcement (whether through negotiations,  legal proceedings, or otherwise) of, or legal advice with respect to the rights or responsibilities of the parties  under, the Loan Documents, any suit or action brought by the Administrative Agent to enforce the terms of  the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought against the  Administrative Agent and/or the Lenders, and any claim or suit brought against the Administrative Agent  and/or the Lenders arising under any Environmental Laws.  Such out-of-pocket expenses (including counsel  





 






  109  LEGAL02/41986661v10  fees) shall be advanced by the Lenders on the request of the Administrative Agent notwithstanding any  claim or assertion that the Administrative Agent is not entitled to indemnification hereunder upon receipt  of an undertaking by the Administrative Agent that the Administrative Agent will reimburse the Lenders if  it is actually and finally determined by a court of competent jurisdiction that the Administrative Agent is  not so entitled to indemnification.  The agreements in this Section shall survive the payment of the Loans  and all other amounts payable hereunder or under the other Loan Documents and the termination of this  Agreement.  If the Borrower shall reimburse the Administrative Agent for any Indemnifiable Amount  following payment by any Lender to the Administrative Agent in respect of such Indemnifiable Amount  pursuant to this Section, the Administrative Agent shall share such reimbursement on a ratable basis with  each Lender making any such payment.    Section 12.8.  Successor Administrative Agent.   (a) The Administrative Agent may (i) resign at any time as Administrative Agent under the  Loan Documents by giving written notice thereof to the Lenders and the Borrower or (ii) be removed as  Administrative Agent under the Loan Documents for gross negligence or willful misconduct, as determined  by a court of competent jurisdiction in a final, non-appealable judgment, upon 30 days’ prior written notice  by all Lenders (other than the Lender then acting as Administrative Agent).  Upon any such resignation or  removal, the Requisite Lenders shall have the right to appoint a successor Administrative Agent which  appointment shall, provided no Default or Event of Default exists, be subject to the Borrower’s approval,  which approval shall not be unreasonably withheld or delayed (except that the Borrower shall, in all events,  be deemed to have approved each Lender and any of its Affiliates as a successor Administrative Agent).  If  no successor Administrative Agent shall have been so appointed in accordance with the immediately  preceding sentence, and shall have accepted such appointment, within 30 days after the resigning  Administrative Agent’s giving of notice of resignation or the giving of notice of removal of the  Administrative Agent, then the current Administrative Agent may, on behalf of the Lenders and the Issuing  Banks, appoint a successor Administrative Agent, which shall be a Lender, if any Lender shall be willing  to serve, or otherwise shall be a financial institution having total combined assets of at least  $50,000,000,000 and an Eligible Assignee or another Person acceptable to the Requisite Lenders.      (b) The Administrative Agent may be removed as Administrative Agent under the Loan  Documents, with or without cause, upon 15 days’ prior written notice from the Borrower to the  Administrative Agent and all the Lenders; provided that upon such removal Bank of America, N.A. is  appointed as successor Administrative Agent (in such capacity, “Successor Agent”) and accepts such  appointment thereof.  Wells Fargo, as the retiring Administrative Agent, shall, at the sole cost and expense  of the Borrower, take such actions and furnish such information, documents, instruments and agreements  as are customary in its business practices and may be reasonably requested from time to time by Successor  Agent in order to facilitate and complete the transfer of the administrative agency function to the Successor  Agent.     (c) If the Administrative Agent shall notify the Borrower and the Lenders that no Lender has  accepted such appointment, then such resignation shall nonetheless become effective in accordance with  such notice and (1) the Administrative Agent shall be discharged from its duties and obligations hereunder  and under the other Loan Documents and (2) all payments, communications and determinations provided  to be made by, to or through the Administrative Agent shall instead be made to each Lender and each  applicable Issuing Bank directly, until such time as a successor Administrative Agent has been appointed  as provided for above in this Section; provided, further that such Lenders and such Issuing Bank so acting  directly shall be and be deemed to be protected by all indemnities and other provisions herein for the benefit  and protection of the Administrative Agent as if each such Lender or such Issuing Bank were itself the  Administrative Agent.  Upon the acceptance of any appointment as Administrative Agent hereunder by a  successor Administrative Agent pursuant to the terms of clause (a) or (b) above, such successor  





 






  110  LEGAL02/41986661v10  Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges  and duties of the current Administrative Agent, and the current Administrative Agent shall be discharged  from its duties and obligations under the Loan Documents.  Any resignation by an Administrative Agent  shall also constitute the resignation as an Issuing Bank and as the Swingline Lender by the Lender then  acting as Administrative Agent (the “Resigning Lender”).  Upon the acceptance of a successor’s  appointment as Administrative Agent hereunder (i) the Resigning Lender shall be discharged from all duties  and obligations of an Issuing Bank and the Swingline Lender hereunder and under the other Loan  Documents and (ii) any successor Issuing Bank shall issue letters of credit in substitution for all Letters of  Credit issued by the Resigning Lender as an Issuing Bank outstanding at the time of such succession (which  letters of credit issued in substitutions shall be deemed to be Letters of Credit issued hereunder) or make  other arrangements satisfactory to the Resigning Lender to effectively assume the obligations of the  Resigning Lender with respect to such Letters of Credit.  After any Administrative Agent’s resignation or  removal hereunder as Administrative Agent pursuant to the terms of clause (a) or (b) above, the provisions  of this Article XII. shall continue to inure to its benefit as to any actions taken or omitted to be taken by it  while it was Administrative Agent under the Loan Documents.  Notwithstanding anything contained herein  to the contrary, the Administrative Agent may assign its rights and duties under the Loan Documents to any  of its Affiliates by giving the Borrower and each Lender prior written notice.    Section 12.9.  Titled Agents.   Each of the Lead Arrangers, the Syndication Agents, the Documentation Agent and the  Sustainability Structuring Agents (each a “Titled Agent”) in each such respective capacity, assumes no  responsibility or obligation hereunder, including, without limitation, for servicing, enforcement or  collection of any of the Loans, nor any duties as an agent hereunder for the Lenders.  The titles given to the  Titled Agents are solely honorific and imply no fiduciary responsibility on the part of the Titled Agents to  the Administrative Agent, any Issuing Bank, any Lender, the Parent, the Borrower or any other Loan Party  and the use of such titles does not impose on the Titled Agents any duties or obligations greater than those  of any other Lender or entitle the Titled Agents to any rights other than those to which any other Lender is  entitled.    Section 12.10.  Sustainability Structuring Agents.    In connection with any proposed ESG Amendment, the Sustainability Structuring Agents may (i)  assist the Borrower in selecting the KPIs and/or ESG Ratings and setting the associated SPTs, (ii) determine  the ESG Pricing Provisions in connection with the ESG Amendment, and (iii) assist the Borrower in  preparing informational materials focused on ESG to be used in connection with the ESG Amendment, in  each case based upon the information provided by the Borrower with respect to the applicable KPIs and/or  ESG Ratings selected in accordance with Section 13.6.(d); provided that the Sustainability Structuring  Agents (x) shall not be deemed to make any representations or assurances as to whether this Agreement or  any other Loan Document meets any criteria or expectations of the Borrower or any Lender in relation to  ESG or other sustainability performance, or whether any sustainability metric (or computation thereof)  meets any industry standards for sustainability-linked credit facilities (including, without limitation,  Sustainability Linked Loan Principles), (y) shall have no duty to ascertain, audit, inquire into or otherwise  independently verify any such information or any computations thereof and (z) shall have no responsibility  for (and shall not be liable for) the completeness or accuracy of any such information or calculations.    Section 12.11.  Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim.   In the case of the pendency of any proceeding under any Debtor Relief Laws relative to any Loan  Party, 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 Administrative Agent shall  





 






  111  LEGAL02/41986661v10  have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by  intervention in such proceeding or otherwise:     (i) to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy  Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities  representing more than one creditor;     (ii) 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 Administrative  Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of  Administrative Agent and its respective agents and counsel and all other amounts due Administrative Agent  under this Agreement allowed in such judicial proceeding; and      (iii) 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 Administrative Agent  and, in the event that Administrative Agent shall consent to the making of such payments directly to the  Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses,  disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts  due Administrative Agent under this Agreement. To the extent that the payment of any such compensation,  expenses, disbursements and advances of Administrative Agent, its agent and counsel, and any other  amounts due Administrative Agent under this Agreement out of the estate in any such proceeding, shall be  denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and  all distributions, dividends, money securities and other properties that the Lenders may be entitled to receive  in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.     Nothing contained herein shall be deemed to authorize 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 or to authorize Administrative Agent  to vote in respect of the claim of any Lender in any such proceeding.    Section 12.12.  Erroneous Payments.  (a) Each Lender, each Specified Derivatives Provider and any other party hereto hereby  severally agrees that if (i) the Administrative Agent notifies (which such notice shall be conclusive absent  manifest error) such Lender or Specified Derivatives Provider or any other Person that has received funds  from the Administrative Agent or any of its Affiliates, either for its own account or on behalf of a Lender  or Specified Derivatives Provider (each such recipient, a “Payment Recipient”) that the Administrative  Agent has determined in its sole discretion that any funds received by such Payment Recipient were  erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient  (whether or not known to such Payment Recipient) or (ii) any Payment Recipient receives any payment  from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different  date from, that specified in a notice of payment, prepayment or repayment sent by the Administrative Agent  (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, (y) that was  not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative  Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, as applicable, or  (z) that such Payment Recipient otherwise becomes aware was transmitted or received in error or by mistake  (in whole or in part) then, in each case, an error in payment shall be presumed to have been made (any such  





 






  112  LEGAL02/41986661v10  amounts specified in clauses (i) or (ii) of this Section 12.12(a), whether received as a payment, prepayment  or repayment of principal, interest, fees, distribution or otherwise; individually and collectively, an  “Erroneous Payment”), then, in each case, such Payment Recipient is deemed to have knowledge of such  error at the time of its receipt of such Erroneous Payment; provided that nothing in this Section shall require  the Administrative Agent to provide any of the notices specified in clauses (i) or (ii) above. Each Payment  Recipient agrees that it shall not assert any right or claim to any Erroneous Payment, and hereby waives  any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or  counterclaim by the Administrative Agent for the return of any Erroneous Payments, including without  limitation waiver of any defense based on “discharge for value” or any similar doctrine.    (b) Without limiting the immediately preceding clause (a), each Payment Recipient agrees that,  in the case of clause (a)(ii) above, it shall promptly notify the Administrative Agent in writing of such  occurrence.    (c) In the case of either clause (a)(i) or (a)(ii) above, such Erroneous Payment shall at all times  remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held  in trust for the benefit of the Administrative Agent, and upon demand from the Administrative Agent such  Payment Recipient shall (or, shall cause any Person who received any portion of an Erroneous Payment on  its behalf to), promptly, but in all events no later than two Business Days thereafter, return to the  Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a  demand was made in same day funds and in the currency so received, together with interest thereon in  respect of each day from and including the date such Erroneous Payment (or portion thereof) was received  by such Payment Recipient to the date such amount is repaid 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 from time to time in effect.    (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the  Administrative Agent for any reason, after demand therefor by the Administrative Agent in accordance  with immediately preceding clause (c), from any Lender that is a Payment Recipient or an Affiliate of a  Payment Recipient (such unrecovered amount as to such Lender, an “Erroneous Payment Return  Deficiency”), then at the sole discretion of the Administrative Agent and upon the Administrative Agent’s  written notice to such Lender (i) such Lender shall be deemed to have made a cashless assignment of the  full face amount of the portion of its Loans of the relevant Class with respect to which such Erroneous  Payment was made (the “Erroneous Payment Impacted Class”) to the Administrative Agent or, at the option  of the Administrative Agent, the Administrative Agent’s applicable lending affiliate in an amount that is  equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may  specify) (such assignment of the Loans of the Erroneous Payment  Impacted Class, the “Erroneous Payment  Deficiency Assignment”) plus any accrued and unpaid interest on such assigned amount, without further  consent or approval of any party hereto and without any payment by the Administrative Agent or its  applicable lending affiliate as the assignee of such Erroneous Payment Deficiency Assignment.  The parties  hereto acknowledge and agree that (1) any assignment contemplated in this clause (d) shall be made without  any requirement for any payment or other consideration paid by the applicable assignee or received by the  assignor, (2) the provisions of this clause (d) shall govern in the event of any conflict with the terms and  conditions of Section 13.5 and (3) the Administrative Agent may reflect such assignments in the Register  without further consent or action by any other Person.    (e) Each party hereto hereby agrees that (x) in the event an Erroneous Payment (or portion  thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion  thereof) for any reason, the Administrative Agent (1) shall be subrogated to all the rights of such Payment  Recipient with respect to such amount and (2) is authorized to set off, net and apply any and all amounts at  any time owing to such Payment Recipient under any Loan Document, or otherwise payable or distributable  





 






  113  LEGAL02/41986661v10  by the Administrative Agent to such Payment Recipient from any source, against any amount due to the  Administrative Agent under this Section 12.12 or under the indemnification provisions of this Agreement,  (y) the receipt of an Erroneous Payment by a Payment Recipient shall not for the purpose of this Agreement  be treated as a payment, prepayment, repayment, discharge or other satisfaction of any Obligations owed  by the Borrower or any other Loan Party, except, in each case, to the extent such Erroneous Payment is,  and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by  the Administrative Agent from the Borrower or any other Loan Party for the purpose of making a payment  on the Obligations and (z) to the extent that an Erroneous Payment was in any way or at any time credited  as payment or satisfaction of any of the Obligations, the Obligations or any part thereof that were so  credited, and all rights of the Payment Recipient, as the case may be, shall be reinstated and continue in full  force and effect as if such payment or satisfaction had never been received; provided that this Section 12.12  shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or  accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for  payment) of the Obligations that would have been payable had such Erroneous Payment not been made by  the Administrative Agent.    (f) Each party’s obligations under this Section 12.12 shall survive the resignation or  replacement of the Administrative Agent or any transfer of right or obligations by, or the replacement of, a  Lender, or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any  Loan Document.    (g) Nothing in this Section 12.12 will constitute a waiver or release of any claim of the  Administrative Agent hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.      ARTICLE XIII. MISCELLANEOUS  Section 13.1.  Notices.   Unless otherwise provided herein (including without limitation as provided in Section 9.5.),  communications provided for hereunder shall be in writing and shall be mailed, telecopied, or delivered as  follows:     If to the Borrower and/or the Parent:    DiamondRock Hospitality Limited Partnership  2 Bethesda Metro Center, Suite 1400  Bethesda, Maryland 20814  Attn:  Chief Financial Officer and General Counsel  Telephone: 240-744-1190  Telecopy:  240-744-1199    with a copy to:    Willkie Farr & Gallagher LLP  787 Seventh Ave.  New York, New York 10019  Attn:  David Drewes  Telephone: 212-728-8653  Telecopy:   212-728-9653    





 






  114  LEGAL02/41986661v10  If to the Administrative Agent under Article II:    Wells Fargo Bank, National Association  Minneapolis Loan Center  600 South 4th Street, 10th Floor  Minneapolis, Minnesota 55415  Attn:  Marsha Rouch  Telecopier: 866-968-5589  Telephone: 612-667-1098    If to the Administrative Agent:    Wells Fargo Bank, National Association  550 South Tryon Street, 14th Floor  Charlotte, NC 28202-4200  Attention:  Daniel S. Dyer  Telecopier:  704-715-1468  Telephone:  704-715-8147     with a copy to:    Wells Fargo Bank, National Association  301 S. College Street, 4th Floor  Charlotte, NC  28202   MAC D1053-04N  Attention:  Lisa Rossin  Telecopier:  704-715-1468  Telephone: 704-715-4858     If to an Issuing Bank:    To the address(es) of such Issuing Bank set forth on Schedule 13.1. hereto.     If to any other Lender:    To such Lender’s address or telecopy number as set forth in the applicable Administrative  Questionnaire.    or, as to each party at such other address as shall be designated by such party in a written notice to the other  parties delivered in compliance with this Section; provided, a Lender or an Issuing Bank shall only be  required to give notice of any such other address to the Administrative Agent and the Borrower.  All such  notices and other communications shall be effective (i) if mailed or sent by overnight courier, upon the first  to occur of receipt or the expiration of 3 days after the deposit in the United States Postal Service mail,  postage prepaid and addressed to the address of the Parent or the Borrower or the Administrative Agent,  the Issuing Banks and Lenders at the addresses specified; (ii) if telecopied, when transmitted; (iii) if hand  delivered, when delivered; or (iv) if delivered in accordance with Section 9.5. to the extent applicable;  provided, however, that, in the case of the immediately preceding clauses (i), (ii) and (iii), non-receipt of  any communication as of the result of any change of address of which the sending party was not notified or  as the result of a refusal to accept delivery shall be deemed receipt of such communication.  Notwithstanding  the immediately preceding sentence, all notices or communications to the Administrative Agent, any  Issuing Bank or any Lender under Article II. shall be effective only when actually received.  None of the  





 






  115  LEGAL02/41986661v10  Administrative Agent, any Issuing Bank or any Lender shall incur any liability to any Loan Party (nor shall  the Administrative Agent incur any liability to the Issuing Banks or the Lenders) for acting upon any  telephonic notice referred to in this Agreement which the Administrative Agent, such Issuing Bank or such  Lender, as the case may be, believes in good faith to have been given by a Person authorized to deliver such  notice or for otherwise acting in good faith hereunder.  Failure of a Person designated to get a copy of a  notice to receive such copy shall not affect the validity of notice properly given to another Person.    Section 13.2.  Expenses.   The Borrower agrees (a) to pay or reimburse the Administrative Agent and the Sustainability  Structuring Agents for all of its reasonable out-of-pocket costs and expenses incurred in connection with  the preparation, negotiation and execution of, and any amendment, supplement or modification to, any of  the Loan Documents (including due diligence expenses and reasonable travel expenses related to closing),  and the consummation of the transactions contemplated hereby and thereby, including the reasonable and  documented fees and disbursements of counsel to the Administrative Agent and all costs and expenses of  the Administrative Agent in connection with the use of IntraLinks, SyndTrak or other similar information  transmission systems in connection with the Loan Documents, (b) to pay or reimburse the Administrative  Agent, the Sustainability Structuring Agents, the Issuing Banks and the Lenders for all their reasonable  costs and expenses incurred in connection with the enforcement or preservation of any rights under the  Loan Documents and the Fee Letters, including the reasonable and documented fees and disbursements of  their respective counsel (including the allocated fees and expenses of in-house counsel) and any payments  in indemnification or otherwise payable by the Lenders to the Administrative Agent or the Sustainability  Structuring Agents pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the  Administrative Agent, the Sustainability Structuring Agents, the Issuing Banks and the Lenders from, any  and all recording and filing fees and any and all liabilities with respect to, or resulting from any failure to  pay or delay in paying, documentary, stamp, excise and other similar taxes, if any, which may be payable  or determined to be payable in connection with the execution and delivery of any of the Loan Documents,  or consummation of any amendment, supplement or modification of, or any waiver or consent under or in  respect of, any Loan Document and (d) to the extent not already covered by any of the preceding  subsections, to pay or reimburse the documented fees and disbursements of counsel to the Administrative  Agent, the Sustainability Structuring Agents, any Issuing Bank and any Lender incurred in connection with  the representation of the Administrative Agent, the Sustainability Structuring Agents, such Issuing Bank or  such Lender in any matter relating to or arising out of any bankruptcy or other proceeding of the type  described in Sections 11.1.(f) or 11.1.(g), including, without limitation (i) any motion for relief from any  stay or similar order, (ii) the negotiation, preparation, execution and delivery of any document relating to  the Obligations and (iii) the negotiation and preparation of any debtor-in-possession financing or any plan  of reorganization of the Borrower or any other Loan Party, whether proposed by the Borrower, such Loan  Party, the Lenders or any other Person, and whether such fees and expenses are incurred prior to, during or  after the commencement of such proceeding or the confirmation or conclusion of any such proceeding.  If  the Borrower shall fail to pay any amounts required to be paid by it pursuant to this Section, the  Administrative Agent, the Sustainability Structuring Agents and/or the Lenders may pay such amounts on  behalf of the Borrower and such amounts shall be deemed to be Obligations owing hereunder.    Section 13.3.  Setoff.   Subject to Section 3.3. and in addition to any rights now or hereafter granted under Applicable Law  and not by way of limitation of any such rights, the Borrower hereby authorizes the Administrative Agent,  each Issuing Bank, each Lender, each Affiliate of the Administrative Agent, any Issuing Bank or any  Lender, and each Participant (but not Affiliates of a Participant), at any time or from time to time, to the  fullest extent permitted by Applicable Law, while an Event of Default exists, without notice to the Borrower  or to any other Person, any such notice being hereby expressly waived, but in the case of an Issuing Bank,  





 






  116  LEGAL02/41986661v10  a Lender, an Affiliate of an Issuing Bank or a Lender, or a Participant, subject to receipt of the prior written  consent of the Requisite Lenders exercised in their sole discretion, to set off and to appropriate and to apply  any and all deposits (general or special, including, but not limited to, indebtedness evidenced by certificates  of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing by the  Administrative Agent, such Issuing Bank, such Lender, any Affiliate of the Administrative Agent, such  Issuing Bank or such Lender, or such Participant, to or for the credit or the account of the Borrower against  and on account of any of the Obligations, irrespective of whether or not any or all of the Loans and all other  Obligations have been declared to be, or have otherwise become, due and payable as permitted by  Section 11.2., and although such Obligations shall be contingent or unmatured.  Notwithstanding anything  to the contrary in this Section, if any Defaulting Lender shall exercise any such right of setoff, (x) all  amounts so set off shall be paid over immediately to the Administrative Agent for further application in  accordance with the provisions of Section 3.9. and, pending such payment, shall be segregated by such  Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent,  the Issuing Banks and the Lenders and (y) the Defaulting Lender shall provide promptly to the  Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting  Lender as to which it exercised such right of setoff.  Each Lender and the Issuing Banks agree to make  reasonable efforts to notify the Borrower promptly after any such setoff and application, provided that the  failure to give such notice shall not affect the validity of such setoff and application.      Section 13.4.  Litigation; Jurisdiction; Other Matters; Waivers.     (a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR  CONTROVERSY BETWEEN OR AMONG THE PARENT, THE BORROWER, THE  ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY OF THE LENDERS WOULD BE  BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN  DELAY AND EXPENSE TO THE PARTIES.  ACCORDINGLY, TO THE EXTENT PERMITTED BY  APPLICABLE LAW, EACH OF THE LENDERS, THE ADMINISTRATIVE AGENT, THE ISSUING  BANKS, THE PARENT AND THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY  JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR  TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY  HERETO ARISING OUT OF THIS AGREEMENT, THE NOTES, ANY OTHER LOAN DOCUMENT  OR THE FEE LETTERS OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE  WHATSOEVER BETWEEN OR AMONG THE PARENT, THE BORROWER, THE  ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY OF THE LENDERS OF ANY KIND OR  NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.     (b) EACH OF THE PARENT, THE BORROWER, THE ADMINISTRATIVE AGENT,  EACH ISSUING BANK AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT  COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN  THE BOROUGH OF MANHATTAN OF NEW YORK, NEW YORK SHALL HAVE EXCLUSIVE  JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR  AMONG THE PARENT, THE BORROWER, THE ADMINISTRATIVE AGENT, ANY ISSUING  BANK OR ANY OF THE LENDERS, ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN  DOCUMENT OR THE FEE LETTERS OR IN CONNECTION WITH  OR BY REASON OF ANY  OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE  PARENT, THE BORROWER, THE ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY OF  THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.   THE PARENT, THE BORROWER, EACH ISSUING BANK AND EACH OF THE LENDERS  EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION  OR PROCEEDING COMMENCED IN SUCH COURTS.  EACH PARTY FURTHER WAIVES ANY  OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH  





 






  117  LEGAL02/41986661v10  ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING  WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR  CLAIM THE SAME.  THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE  DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE ADMINISTRATIVE AGENT,  ANY ISSUING BANK OR ANY LENDER REGARDING THE ENFORCEMENT BY THE  ADMINISTRATIVE AGENT, ANY ISSUING BANK OR ANY LENDER OF ANY JUDGMENT  OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.     (c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH  PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE  LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS  AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN  DOCUMENTS, THE TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE  TERMINATION OF THIS AGREEMENT.    Section 13.5.  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 Parent or the Borrower 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 Eligible  Assignee in accordance with the provisions of the immediately following subsection (b), (ii) by way of  participation in accordance with the provisions of the immediately following subsection (d) or (iii) by way  of pledge or assignment of a security interest subject to the restrictions of the immediately following  subsection (e) (and, subject to the last sentence of the immediately following subsection (b), 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 the immediately  following subsection (d) and, to the extent expressly contemplated hereby, the Related Parties of the  Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of  this Agreement.     (b) Assignments by Lenders.  Any Lender may at any time assign to one or more Eligible  Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of  its Commitments 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 an assigning  Revolving Lender’s Revolving Commitment and the Revolving Loans at the time owing  to it, or, if applicable, in the case of an assignment of the entire remaining amount of an  assigning Term Loan Lender’s Term 1 Loans or Term 2 Loans, 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 the immediately preceding subsection (A), the  aggregate amount of a specific Class of Commitments (which for this purpose includes  Loans outstanding thereunder) or, if the applicable Class of Commitment is not then in  effect, the principal outstanding balance of the applicable Class of Loans of the assigning  





 






  118  LEGAL02/41986661v10  Lender subject to each such assignment (in each case, 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 $5,000,000 in the case of any assignment of a  Commitment or Loans, unless each of the Administrative Agent and, so long as no Default  or Event of Default shall exist, the Borrower otherwise consents (each such consent not to  be unreasonably withheld or delayed); provided, however, that if, after giving effect to such  assignment, the amount of the Commitments of a specific Class held by such assigning  Lender or, if the applicable Commitment is not then in effect,  the outstanding principal  balance of the Loans of such Class of such assigning Lender, as applicable, would be less  than $5,000,000, then such assigning Lender shall assign the entire amount of its  Commitment and the Loans of such Class at the time owing to it.       (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 Loan or the Commitment assigned, except that this clause (ii) shall not prohibit  any Lender from assigning all or a portion of its rights and obligations among separate Classes of  Commitments or Loans on a non-pro rata basis.     (iii) Required Consents.  No consent shall be required for any assignment except to the  extent required by clause (i)(B) of this subsection (b) and, in addition:     (A) the consent of the Borrower (such consent not to be unreasonably withheld  or delayed) shall be required unless (x) a Default or Event of Default shall exist at the time  of such assignment or (y) such assignment is to a Lender of the same Class of  Commitments or Loans, to an Affiliate of such Lender or an Approved Fund in respect of  such Lender; 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 10 Business Days after having received notice thereof;      (B) the consent of the Administrative Agent (such consent not to be  unreasonably withheld or delayed) shall be required for assignments in respect of (x) a  Commitment if such assignment is to a Person that is not already a Lender of the same  Class of Commitments, an Affiliate of such a Lender or an Approved Fund in respect of  such a Lender with respect to such Lender or (y) any Term Loan or, if the Revolving  Commitments have been terminated, any Revolving Loan to a Person who is not a Lender,  an Affiliate of a Lender or an Approved Fund; and     (C) the consent of the Issuing Banks and the Swingline Lender (such consent not  to be unreasonably withheld or delayed), as applicable, shall be required for any assignment  in respect of a Revolving Commitment; provided, however, that no such consent is required  if such assignment is to a Person that is already a Revolving Lender with a Revolving  Commitment, an Affiliate of such Revolving Lender or an Approved Fund with respect to  such Revolving Lender.     (iv) Assignment and Assumption; Notes.  The parties to each assignment shall execute  and deliver to the Administrative Agent an Assignment and Assumption, together with a processing  and recordation fee of $4,500 for each assignment (which fee the Administrative Agent may, in its  sole discretion, elect to waive), and the assignee, if it is not a Lender, shall deliver to the  Administrative Agent an Administrative Questionnaire.  If requested by the transferor Lender or  the assignee, upon the consummation of any assignment, the transferor Lender, the Administrative  





 






  119  LEGAL02/41986661v10  Agent and the Borrower shall make appropriate arrangements so that new Notes are issued to the  assignee and such transferor Lender, as appropriate.     (v) No Assignment to Certain Person.  No such assignment shall be made to (A) the  Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or  any of its Subsidiaries, or to any Person who, upon becoming a Lender hereunder, would constitute  any of the foregoing Persons described in this clause (B).     (vi) No Assignment to Natural Persons.  No such assignment shall be made to a natural  person (or holding company, investment vehicle or trust for, or owned and operated for the primary  benefit of a natural person).     (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, the Issuing Banks,  the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (y)  acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of  Credit and Swingline Loans in accordance with its Revolving Commitment Percentage and such  that all Term Loans are held by the Term Loan Lenders pro rata as if there had been no Defaulting  Lenders that are Term Loan Lenders.  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 the immediately  following subsection (c), 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 5.4.,  13.2. and 13.9. and the other provisions of this Agreement and the other Loan Documents as provided in  Section 13.10. 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 having been a Defaulting Lender.  Any assignment or transfer by a Lender of rights  or obligations under this Agreement that does not comply with this paragraph 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 the immediately following subsection (d).     (c) Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent  of the Borrower, shall maintain at the Principal Office a copy of each Assignment and Assumption delivered  





 






  120  LEGAL02/41986661v10  to it 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, without the consent of, or notice to, the Parent,  the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or  holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural  person, the Borrower, a Defaulting Lender or any of their respective Affiliates or 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 owing to it); 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 Parent, the Borrower, the Administrative  Agent, the Issuing Banks 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.  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 (w) increase such Lender’s Commitment, (x) extend the date  fixed for the payment of principal on the Loans or portions thereof owing to such Lender, (y) reduce the  rate at which interest is payable thereon or (z) release any Guarantor from its Obligations under the  Guaranty except as contemplated by Section 8.13.(b), in each case, as applicable to that portion of such  Lender’s rights and/or obligations that are subject to the participation.  The Borrower agrees that each  Participant shall be entitled to the benefits of Sections 3.10., 5.1., 5.4. (subject to the requirements and  limitations therein, including the requirements under Section 3.10.(g) (it being understood that the  documentation required under Section 3.10.(g) shall be delivered to the participating Lender)) to the same  extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this  Section; provided that such Participant (A) agrees to be subject to the provisions of Section 5.8. as if it were  an assignee under subsection (b) of this Section; and (B) shall not be entitled to receive any greater payment  under Sections 5.1. or 3.10., with respect to any participation, than its participating Lender would have been  entitled to receive, except to the extent such entitlement to receive a greater payment results from a  Regulatory Change that occurs after the Participant acquired the applicable participation.  Each Lender that  sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate  with the Borrower to effectuate the provisions of Section 5.8. with respect to any Participant.  To the extent  permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 13.3. as  though it were a Lender, provided such Participant agrees to be subject to Section 3.3. 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  





 






  121  LEGAL02/41986661v10  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 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.       (f) No Registration.  Each Lender agrees that, without the prior written consent of the  Borrower and the Administrative Agent, it will not make any assignment hereunder in any manner or under  any circumstances that would require registration or qualification of, or filings in respect of, any Loan or  Note under the Securities Act or any other securities laws of the United States of America or of any other  jurisdiction.    Section 13.6.  Amendments and Waivers.  (a) Generally.  Except as otherwise expressly provided in this Agreement, (i) any consent or  approval required or permitted by this Agreement or in any other Loan Document to be given by the Lenders  may be given, (ii) any term of this Agreement or of any other Loan Document may be amended, (iii) the  performance or observance by the Parent, the Borrower, any other Loan Party or any other Subsidiary of  any terms of this Agreement or such other Loan Document may be waived, and (iv) the continuance of any  Default or Event of Default may be waived (either generally or in a particular instance and either  retroactively or prospectively) with, but only with, the written consent of the Requisite Lenders (or the  Administrative Agent at the written direction of the Requisite Lenders), and, in the case of an amendment  to any Loan Document, the written consent of each Loan Party which is party thereto.  Any term of this  Agreement or of any other Loan Document relating solely to the rights or obligations of the Lenders of a  particular Class, and not Lenders of any other Class, may be amended, and the performance or observance  by the Borrower or any other Loan Party or any Subsidiary of any such terms may be waived (either  generally or in a particular instance and either retroactively or prospectively) with, and only with, the written  consent of the Requisite Class Lenders for such Class of Lenders (and, in the case of an amendment to any  Loan Document, the written consent of each Loan Party which is a party thereto).  Notwithstanding anything  to the contrary contained in this Section, each Fee Letter may only be amended, and the performance or  observance by any Loan Party thereunder may only be waived, in a writing executed by the parties thereto.   Notwithstanding anything to the contrary contained in this Section, the Administrative Agent and the  Borrower may, without the consent of any Lender, enter into amendments or modifications to this  Agreement or any of the other Loan Documents or enter into additional Loan Documents as the  Administrative Agent reasonably deems appropriate in order to implement any Benchmark Replacement,  Benchmark Replacement Adjustment or Benchmark Conforming Changes or otherwise effectuate the terms  of Section 5.2. in accordance with the terms of Section 5.2.    (b) Additional Lender Consents.  In addition to the foregoing requirements, no amendment,  waiver or consent shall:     (i) increase (or reinstate) the Commitment of a Lender or subject a Lender to any  additional obligations without the written consent of such Lender;     (ii) reduce the principal of, or interest that has accrued or the rates of interest that will  be charged on the outstanding principal amount of, any Loans or other Obligations without the  written consent of each Lender directly affected thereby; provided, however, only the written  consent of the Requisite Lenders shall be required for the waiver of interest payable at the Post- 





 






  122  LEGAL02/41986661v10  Default Rate, retraction of the imposition of interest at the Post-Default Rate and amendment of the  definition of “Post-Default Rate”;     (iii) reduce the amount of any Fees payable to a Lender hereunder or postpone any date  fixed for payment thereof without the written consent of such Lender;     (iv) modify the definitions of “Revolving Commitment Percentage” without the  written consent of each Revolving Lender;     (v) modify the definition of “Revolving Termination Date” or clause (a) of the  definition of “Termination Date” (in each case, except in accordance with Section 2.13.(a).) or  otherwise postpone any date fixed for any payment of principal of, or interest on, any Revolving  Loans or for the payment of Fees or any other Obligations (including the waiver of any Default or  Event of Default as a result of the nonpayment of any such Obligations as and when due) owing to  the Revolving Lenders, or extend the expiration date of any Letter of Credit beyond the Revolving  Termination Date (except in accordance with Section 2.3.(b)), in each case, without the written  consent of each Revolving Lender;     (vi) modify the definitions of “Term 1 Loan Maturity Date”, “Term 2 Loan Maturity  Date” (except in accordance with Section 2.13.(b).) or clause (b) of the definition of “Termination  Date” or otherwise postpone any date fixed for, or forgive any payment of principal of, or interest  on, any Term Loans or for the payment of Fees or any other Obligations owing to the Term Loan  Lenders, in each case, without the written consent of each Term Loan Lender directly affected  thereby;      (vii) while any Term Loans are outstanding, amend, modify or waive (A) Section 6.2.  or any other provision of this Agreement if the effect of such amendment, modification or waiver  is to require the Revolving Lenders to make Revolving Loans when such Lenders would not  otherwise be required to do so, (B) the amount of the Swingline Commitment or (C) the L/C  Commitment Amount, in each case, without the prior written consent of the Requisite Class  Lenders of the Revolving Lenders;     (viii) modify the definition of “Pro Rata Share” or amend or otherwise modify the  provisions of Section 3.2 or Section 11.5, in each case, without the written consent of each affected  Lender;     (ix) amend this Section or amend the definitions of the terms used in this Agreement  or the other Loan Documents insofar as such definitions affect the substance of this Section, in each  case, without the written consent of each Lender;     (x) modify the definition of the term “Requisite Lenders” or, except as otherwise  provided in the immediately following clause (xi), modify in any other manner the number or  percentage of the Lenders required to make any determinations or waive any rights hereunder or to  modify any provision hereof, in each case, without the written consent of each Lender;     (xi) modify the definition of the term “Requisite Class Lenders” as it relates to a  particular Class of Lenders or modify in any other manner the number or percentage of a Class of  Lenders required to make any determination or waive any rights hereunder or to modify any  provision hereof, in each case, solely with respect to such Class of Lenders, without the written  consent of each Lender in such Class;    





 






  123  LEGAL02/41986661v10   (xii) release the Parent as a Guarantor or any other Guarantor from its obligations under  the Guaranty except as contemplated by Section 8.15., without the written consent of each Lender;     (xiii) waive a Default or Event of Default under Section 11.1.(a) or Section 11.1.(b), in  each case, without the written consent of each Lender directly affected thereby;     (xiv) amend, or waive the Borrower’s compliance with, Section 2.15., in each case,  without the written consent of each Revolving Lender; or    (xv) affect the rights or duties of the Sustainability Structuring Agents under this  Agreement or any other Loan Document without the written consent of the Sustainability  Structuring Agents.    (c) Amendment of Administrative Agent’s Duties, Etc.  No amendment, waiver or consent  unless in writing and signed by the Administrative Agent, in addition to the Lenders required hereinabove  to take such action, shall affect the rights or duties of the Administrative Agent under this Agreement or  any of the other Loan Documents.  Any amendment, waiver or consent relating to Section 2.3. or the  obligations of the Issuing Banks under this Agreement or any other Loan Document shall, in addition to the  Lenders required hereinabove to take such action, require the written consent of the Issuing Banks.  Any  amendment, waiver or consent relating to Section 2.4. or the obligations of the Swingline Lender under this  Agreement or any other Loan Document shall, in addition to the Lenders required hereinabove to take such  action, require the written consent of the Swingline Lender. No waiver shall extend to or affect any  obligation not expressly waived or impair any right consequent thereon and any amendment, waiver or  consent shall be effective only in the specific instance and for the specific purpose set forth therein.   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 Commitments of any  Defaulting Lender may not be increased, reinstated or extended without the written consent of such  Defaulting 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 more adversely than other affected  Lenders shall require the written consent of such Defaulting Lender.  Except as otherwise provided in  Section 12.5., no course of dealing or delay or omission on the part of the Administrative Agent or any  Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto.  Any  Event of Default occurring hereunder shall continue to exist until such time as such Event of Default is  waived in writing in accordance with the terms of this Section, notwithstanding any attempted cure or other  action by the Borrower, any other Loan Party or any other Person subsequent to the occurrence of such  Event of Default.  Except as otherwise explicitly provided for herein or in any other Loan Document, no  notice to or demand upon any Loan Party shall entitle such Loan Party to other or further notice or demand  in similar or other circumstances.     (d) ESG Amendment.  Notwithstanding anything to the contrary in this Section 13.6., after the  Effective Date, the Borrower, in consultation with the Sustainability Structuring Agents, shall be entitled  to (a) identify specified Environmental, Social and Governance (“ESG”) related Key Performance  Indicators (“KPIs”) and establish associated annual Sustainability Performance Targets (“SPTs”) with  respect to the ESG strategy and disclosure of the Borrower and its Subsidiaries and/or (b) identify external  ESG ratings (“ESG Ratings”) and establish associated annual SPTs. Any such KPIs and/or ESG Ratings  and associated SPTs are to be mutually agreed between the Borrower and the Sustainability Structuring  Agents. The Sustainability Structuring Agents, the Borrower and the Requisite Lenders may amend this  Agreement (such amendment, the “ESG Amendment”) solely for the purpose of incorporating KPIs and/or  ESG Ratings, associated SPTs and other related provisions (the “ESG Pricing Provisions”) into this  





 






  124  LEGAL02/41986661v10  Agreement. In the event that any such ESG Amendment does not obtain requisite consent of the Requisite  Lenders, an alternative ESG Amendment may be effectuated with the consent of the Requisite Lenders, the  Borrower, the Sustainability Structuring Agents, and the Administrative Agent. Upon the effectiveness of  any such ESG Amendment, based on the Borrower’s performance against the KPIs and/or ESG Ratings  and associated SPTs, certain adjustments (an increase, a decrease, or no adjustment) to the Applicable  Margin will be made; provided that the amount of any such adjustments made pursuant to an ESG  Amendment shall not exceed an increase and/or decrease of 4.00 basis points; provided, further, that in no  event shall the Applicable Margin be less than 0%. If KPIs are utilized, the pricing adjustments will require,  among other things, annual reporting in a manner that is aligned with the Sustainability Linked Loan  Principles in effect at the time of the ESG Amendment and is to be mutually agreed between the Borrower,  the Sustainability Structuring Agents, and the Administrative Agent (each acting reasonably). If KPIs are  utilized, any proposed ESG Amendment shall also identify the Sustainability Assurance Provider, provided  that any such Sustainability Assurance Provider shall be a qualified external reviewer, independent of the  Borrower and its Subsidiaries, with relevant expertise, such as an auditor, environmental consultant and/or  independent ratings agency of recognized national standing. Following the effectiveness of the ESG  Amendment, (A) any modification to the ESG Pricing Provisions which has the effect of reducing the  Applicable Margin to a level not otherwise permitted by this Section 13.6.(d) shall be subject to the consent  of all Lenders and (B) any other modification to the ESG Pricing Provisions (other than, for the avoidance  of doubt, as provided for in the immediately preceding clause (A)) shall be subject only to the consent of  the Requisite Lenders.     (e) Technical Amendments.  Notwithstanding anything to the contrary in this Section 13.6., if  the Administrative Agent and the Borrower have jointly identified an ambiguity, omission, mistake or  defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the  Administrative Agent and the Borrower shall be permitted to amend such provision or provisions to cure  such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect  the interests of the Lenders and the Issuing Banks.  Any such amendment shall become effective without  any further action or consent of any other party to this Agreement.    Section 13.7.  Nonliability of Administrative Agent and Lenders.   The relationship between the Borrower, on the one hand, and the Lenders, the Issuing Banks and  the Administrative Agent, on the other hand, shall be solely that of borrower and lender.  None of the  Administrative Agent, any Issuing Bank or any Lender shall have any fiduciary responsibilities to the  Borrower or the Parent and no provision in this Agreement or in any of the other Loan Documents, and no  course of dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty  owing by the Administrative Agent, any Issuing Bank or any Lender to any Lender, the Borrower, any  Subsidiary or any other Loan Party.  None of the Administrative Agent, any Issuing Bank or any Lender  undertakes any responsibility to the Borrower or the Parent to review or inform the Borrower or the Parent  of any matter in connection with any phase of the business or operations of the Borrower or the Parent.    Section 13.8.  Confidentiality.   The Administrative Agent, each Issuing Bank and each Lender shall maintain the confidentiality  of all Information (as defined below) but in any event may make disclosure: (a) to its Affiliates and to its  and its Affiliates’ other respective 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) subject to an agreement containing provisions substantially the same as  those of this Section, to (i) any actual or proposed assignee, Participant or other transferee in connection  with a potential transfer of any Commitment or participation therein as permitted hereunder, or (ii) any  actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the  





 






  125  LEGAL02/41986661v10  Borrower and its obligations; (c) as required or requested by any Governmental Authority or representative  thereof or pursuant to legal process or in connection with any legal proceedings, or as otherwise required  by Applicable Law; (d) to the Administrative Agent’s, such Issuing Bank’s or such Lender’s independent  auditors and other professional advisors (provided they shall be notified of the confidential nature of the  information); (e) in connection with the exercise of any remedies under any Loan Document (or any  Specified Derivatives Contract) or any action or proceeding relating to any Loan Document (or any  Specified Derivatives Contract) or the enforcement of rights hereunder or thereunder; (f) to the extent such  Information (i) becomes publicly available other than as a result of a breach of this Section actually known  by the Administrative Agent, such Issuing Bank or such Lender to be a breach of this Section or (ii) becomes  available to the Administrative Agent, any Issuing Bank, any Lender or any Affiliate of the Administrative  Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower  or any Affiliate of the Borrower; (g) to the extent requested by, or required to be disclosed to, any nationally  recognized rating agency or regulatory or similar authority (including any self-regulatory authority, such  as the National Association of Insurance Commissioners) having or purporting to have jurisdiction over it;  (h) to bank trade publications, such information to consist of deal terms and other information customarily  found in such publications; (i) to any other party hereto; (j) on a confidential basis to the CUSIP Service  Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with  respect to the Loan Documents; and (k) with the consent of the Borrower.  Notwithstanding the foregoing,  the Administrative Agent, each Issuing Bank and each Lender may disclose any such confidential  information, without notice to the Borrower or any other Loan Party, to Governmental Authorities in  connection with any regulatory examination of the Administrative Agent, such Issuing Bank or such Lender  or in accordance with the regulatory compliance policy of the Administrative Agent, such Issuing Bank or  such Lender.  As used in this Section, the term “Information” means all information received from the  Borrower, any other Loan Party, any other Subsidiary or Affiliate relating to any Loan Party or any of their  respective businesses, other than any such information that is available to the Administrative Agent, any  Lender or any Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower, any other Loan  Party, any other Subsidiary or any Affiliate, provided that, in the case of any such information received  from the Borrower, any other Loan Party, any other Subsidiary or any Affiliate 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.    Section 13.9.  Indemnification.   (a) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the  Sustainability Structuring Agents, the Issuing Banks, each Lender and each Related Party of any of the  foregoing Persons (each such Person being called an “Indemnified Party”) against, and hold each  Indemnified Party harmless from, and shall pay or reimburse any such Indemnified Party for, any and all  losses, claims (including without limitation, Environmental Claims), damages, liabilities and related  expenses (including without limitation, the fees, charges and disbursements of any counsel for any  Indemnified Party (which counsel may be employees of any Indemnified Party)), incurred by any  Indemnified Party or asserted against any Indemnified Party by any Person (including the Borrower, any  other Loan Party or any other Subsidiary) other than such Indemnified Party and its Related Parties, 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 or thereto of their respective obligations hereunder or thereunder or the consummation of the  transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of  the proceeds therefrom (including any refusal by an Issuing Bank to honor a demand for payment under a  Letter of Credit issued by it if the documents presented in connection with such demand do not strictly  comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous  





 






  126  LEGAL02/41986661v10  Materials on or from any property owned or operated by the Borrower, any other Loan Party or any other  Subsidiary, or any Environmental Claim related in any way to the Borrower, any other Loan Party or any  other Subsidiary, (iv) any actual or prospective claim, litigation, investigation or proceeding (an “Indemnity  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, any other Loan Party or any other Subsidiary, and regardless  of whether any Indemnified Party is a party thereto, or (v) any claim (including without limitation, any  Environmental Claims), investigation, litigation or other proceeding (whether or not the Administrative  Agent, the Sustainability Structuring Agents, any Issuing Bank or any Lender is a party thereto) and the  prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement,  any other Loan Document, or any documents contemplated by or referred to herein or therein or the  transactions contemplated hereby or thereby, including without limitation, reasonable attorneys and  consultant’s fees; provided, however, that such indemnity shall not, as to any Indemnified Party, be  available to the extent that such losses, claims, damages, liabilities or related expenses (i) are determined  by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross  negligence, bad faith or willful misconduct of such Indemnified Party or (ii) resulted from any dispute  solely between and among Indemnified Parties that does not arise from an act or omission by any Loan  Party or any of its Affiliates (other than with respect to a claim against an Indemnified Party acting in its  capacity as Administrative Agent or arranger or similar role under the Loan Documents); provided, that  this Section 13.9.(a) shall not apply with respect to Taxes other than any Taxes that represent losses or  damages arising under any non-Tax claim.     (b) If and to the extent that the obligations of the Borrower under this Section are  unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the  payment and satisfaction of such obligations which is permissible under Applicable Law.     (c) The Borrower’s obligations under this Section shall survive any termination of this  Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are in  addition to, and not in substitution of, any of the other obligations set forth in this Agreement or any other  Loan Document to which it is a party.    References in this Section 13.9. to “Lender” or “Lenders” shall be deemed to include such Persons (and  their Affiliates) in their capacity as Specified Derivatives Providers.    Section 13.10.  Termination; Survival.   This Agreement shall terminate at such time as (a) all of the Commitments have been terminated,  (b) all Letters of Credit have terminated or expired or been canceled (other than Extended Letters of Credit  in respect of which the Borrower has satisfied the requirements to provide Cash Collateral as required by  Section 2.3.(b)), (c) none of the Lenders is obligated any longer under this Agreement to make any Loans  and no Issuing Bank is obligated any longer under this Agreement to issue Letters of Credit and (d) all  Obligations (other than obligations which survive as provided in the following sentence) have been paid  and satisfied in full. The indemnities to which the Administrative Agent, the Issuing Banks and the Lenders  are entitled under the provisions of Sections 3.10., 5.1., 5.4., 12.7., 13.2. and 13.9. and any other provision  of this Agreement and the other Loan Documents, and the provisions of Section 13.4., shall continue in full  force and effect and shall protect the Administrative Agent, the Issuing Banks and the Lenders  (i) notwithstanding any termination of this Agreement, or of the other Loan Documents, against events  arising after such termination as well as before and (ii) at all times after any such party ceases to be a party  to this Agreement with respect to all matters and events existing on or prior to the date such party ceased  to be a party to this Agreement.  The Administrative Agent agrees to furnish to the Borrower, upon the  Borrower’s request and at the Borrower’s sole cost and expense, any release, termination, or other  





 






  127  LEGAL02/41986661v10  agreement or document evidencing the foregoing termination.  The provisions of Section 13.9 shall survive  termination of this Agreement for a period of one year.    Section 13.11.  Severability of Provisions.   If any provision under this Agreement or the other Loan Documents shall be determined by a court  of competent jurisdiction to be invalid or unenforceable, that provision shall be deemed severed from the  Loan Documents, and the validity, legality and enforceability of the remaining provisions shall remain in  full force as though the invalid, illegal, or unenforceable provision had never been part of the Loan  Documents.    Section 13.12.  GOVERNING LAW.   THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE  WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,  AND TO BE FULLY PERFORMED, IN SUCH STATE.    Section 13.13.  Counterparts.   To facilitate execution, this Agreement and any amendments, waivers, consents or supplements  may be executed in any number of counterparts as may be convenient or required (which may be effectively  delivered by facsimile, in portable document format (“PDF”) or other similar electronic means).  It shall  not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required  to bind any party, appear on each counterpart.  All counterparts shall collectively constitute a single  document.  It shall not be necessary in making proof of this document to produce or account for more than  a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto.      Section 13.14.  Obligations with Respect to Loan Parties.   The obligations of the Parent or the Borrower to direct or prohibit the taking of certain actions by  the other Loan Parties as specified herein shall be absolute and not subject to any defense the Parent or the  Borrower may have that the Parent or the Borrower does not control such Loan Parties.    Section 13.15.  Independence of Covenants.   All covenants hereunder shall be given in any jurisdiction independent effect so that if a particular  action or condition is not permitted by any of such covenants, the fact that it would be permitted by an  exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of  a Default or an Event of Default if such action is taken or condition exists.    Section 13.16.  Limitation of Liability.   None of the Administrative Agent, any Issuing Bank or any Lender, or any Related Party shall have  any liability with respect to, and each of the Parent and the Borrower hereby waives, releases, and agrees  not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages  suffered or incurred by the Borrower in connection with, arising out of, or in any way related to, this  Agreement, any of the other Loan Documents or the Fee Letters, or any of the transactions contemplated  by this Agreement or any of the other Loan Documents.  Each of the Parent and the Borrower hereby  waives, releases, and agrees not to sue the Administrative Agent, any Issuing Bank or any Lender or any of  the Administrative Agent’s, any Issuing Bank’s or any Lender’s affiliates, officers, directors, employees,  attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in  





 






  128  LEGAL02/41986661v10  any way related to, this Agreement, any of the other Loan Documents, the Fee Letters, or any of the  transactions contemplated by this Agreement or financed hereby.  No Indemnified Party referred to in  Section 13.9. shall be liable for damages arising from the use by unintended recipients of any information  or other materials distributed by it 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, except to the extent resulting from such Indemnified Party’s gross  negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non- appealable judgment).    Section 13.17.  Entire Agreement.   This Agreement, the Notes, the other Loan Documents and the Fee Letters embody the final, entire  agreement among the parties hereto and supersede any and all prior commitments, agreements,  representations, and understandings, whether written or oral, relating to the subject matter hereof and  thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral  agreements or discussions of the parties hereto.  There are no oral agreements among the parties hereto.  To  the extent any term of this Agreement is inconsistent with a term of any other Loan Document to which the  parties of this Agreement are party, the term of this Agreement shall control to the extent of such  inconsistency.      Section 13.18.  Construction.   The Administrative Agent, each Issuing Bank, the Parent, the Borrower and each Lender  acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded  an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this  Agreement and the other Loan Documents shall be construed as if jointly drafted by the Administrative  Agent, each Issuing Bank, the Parent, the Borrower and each Lender.    Section 13.19.  Headings.   The paragraph and section headings in this Agreement are provided for convenience of reference  only and shall not affect its construction or interpretation.    Section 13.20.  No Novation.  THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND  AND RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT.  THE PARTIES DO NOT  INTEND THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND  THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE  CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE  BORROWER UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR  ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT  AGREEMENT).    Section 13.21.  New York Mortgages.   (a) Generally.  The parties hereto acknowledge and agree that as an accommodation to the  Parent and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders may, from time to  time, in their sole discretion, accept the benefits of Mortgages encumbering real property located in the  State of New York assigned from time to time pursuant to the terms of this Section to the Administrative  





 






  129  LEGAL02/41986661v10  Agent, for its benefit and the benefit of the Issuing Banks and the Lenders (any such Mortgage a “New  York Mortgage”).  Any Lender’s agreement to accept the benefit of a New York Mortgage in its sole  discretion will be subject to, among other things, such Lender’s determination that the real property subject  to such Mortgage is not in a special flood hazard area.     (b) Assignment of New York Mortgages.  In connection with the acceptance of the benefits of  a New York Mortgage by the Administrative Agent, the Issuing Banks and the Lenders, the Borrower shall  cause to be delivered to the Administrative Agent each of the following, in form and substance satisfactory  to the Administrative Agent:     (i) the originals (or if not available, copies) of each outstanding promissory note  evidencing the Indebtedness secured by such New York Mortgage, duly endorsed (by allonge or  otherwise) to the order of the Administrative Agent (collectively, “Existing New York Notes”);     (ii) an amended and restated promissory note (each a “Restated New York Note”)  which amends, restates and, if applicable, consolidates the applicable Existing New York Notes,  which (x) shall be payable to the order of the Administrative Agent for the benefit of itself, the  Issuing Banks and the Lenders, (y) shall be in an initial aggregate principal amount equal to the  principal amount of Loans advanced hereunder in connection with the transfer of such Existing  New York Notes to the Administrative Agent for the benefit of itself, the Issuing Banks and the  Lenders and (z) shall incorporate by reference all of the applicable terms and conditions of this  Agreement and the other Loan Documents;     (iii) a copy of such New York Mortgage, including all amendments thereto, showing  all recording information thereon certified to the knowledge of an authorized officer of the  Borrower as being true, correct and complete;     (iv) an assignment of such New York Mortgage, in recordable form, executed by each  holder of the Indebtedness secured by such New York Mortgage (or an authorized agent acting on  behalf of each such holder);     (v) a modification to such New York Mortgage executed by the applicable Loan  Parties, such modification, among other things, to modify such New York Mortgage (x) to provide  that it secures the applicable Restated New York Note, (y) to provide that the maximum principal  sum of Obligations secured by such New York Mortgage at execution or in the future shall not  exceed the initial principal amount of the applicable Restated New York Note and (z) to include  language reasonably satisfactory to the Administrative Agent to the effect that payments in respect  of the Obligations shall not be deemed to reduce the amount of the Obligations secured by such  New York Mortgage until such time as the outstanding principal amount of the Obligations shall  have been reduced to the initial principal amount of the applicable Restated New York Note;     (vi) terminations of, or assignments and modifications to, any assignment of leases and  rents, financing statements and any other document, instrument or agreement securing the  Indebtedness secured by such New York Mortgage, as the Administrative Agent may reasonably  request;     (vii) a copy of any Phase I or II Environmental Site Assessment report on the Property  subject to such New York Mortgage available to the Borrower, and if reasonably requested by the  Administrative Agent, reliance letters from the environmental engineering firms performing such  assessments addressed to the Administrative Agent, the Issuing Banks and the Lenders; provided,  





 






  130  LEGAL02/41986661v10  however, if such a reliance letter is not provided, the Administrative Agent, the Issuing Banks and  the Lenders shall have no obligation to accept an assignment of such New York Mortgage;     (viii) an environmental indemnity agreement executed by the Borrower, the Parent and  any other Loan Party that owns or leases the Property encumbered by such New York Mortgage in  favor of the Administrative Agent for its benefit and the benefit of the Issuing Banks and the  Lenders and in a form reasonably acceptable to the Administrative Agent; and     (ix) such other documents, agreements and instruments as the Administrative Agent on  behalf of the Issuing Banks and the Lenders may reasonably request.     (c) Release of New York Mortgages. Notwithstanding any other provision of this Agreement  or any other Loan Document to the contrary, including without limitation, Section 13.7., (i) upon the  Borrower’s written request and at the Borrower’s sole cost and expense, the Administrative Agent shall  release any or all of the New York Mortgages or assign any or all of the New York Mortgages to any Person  requested by the Borrower (any such assignment to be without recourse or warranty whatsoever) and (ii) the  Administrative Agent may in its discretion, and shall at the direction of the Requisite Lenders, release any  or all of the New York Mortgages if the Administrative Agent has, or the Requisite Lenders have,  reasonably determined that holding any of such New York Mortgages could be detrimental to the  Administrative Agent or the Lenders, and so long as the Administrative Agent shall have given the  Borrower written notice at least 5 days prior to any such release; provided, however, the Administrative  Agent shall not be required to give any such prior notice to the Borrower if the Administrative Agent, in its  sole discretion, has determined that delay of such release would be detrimental to the Administrative Agent  or the Lenders.     (d) Indemnity. Not in limitation of any of the Borrower’s obligations under Section 13.2. or  13.10., the Borrower shall and hereby agrees to indemnify, defend and hold harmless the Administrative  Agent, each Issuing Bank, each Lender and each other Indemnified Party from and against any and all  losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses of every kind and nature  (including, without limitation, amounts paid in settlement, court costs and the fees and disbursements of  counsel incurred in connection with any litigation, investigation, claim or proceeding or any advice  rendered in connection therewith) incurred by an Indemnified Party in connection with, arising out of, or  by reason of, any Indemnity Proceeding which is in any way related directly or indirectly to (i) the failure  of any Person to pay any recording tax payable pursuant to N.Y. Tax Law, Ch. 60, Art. 11, Sec. 253 et seq.  or other Applicable Laws of the State of New York or any political subdivision of such State or (ii) any  New York Mortgage.     (e) The Borrower represents and warrants that no Property encumbered by a New York  Mortgage is located in an area determined by the Federal Emergency Management Agency to have special  flood hazards.  If at any time in the future the Borrower becomes aware that any portion of a Property  encumbered by a New York Mortgage is located in an area determined by the Federal Emergency  Management Agency as special flood hazard area, then the Borrower will promptly notify the  Administrative Agent.  Unless (i) the Borrower promptly obtains flood insurance coverage required  pursuant to the Flood Insurance Laws and takes such other measures relating to such special flood hazard  area reasonably requested by the Administrative Agent and each Lender and (ii) the Borrower, the  Administrative Agent and each affected Lender otherwise agree that the New York Mortgage can continue  to be provided under this Section 13.21, the New York Mortgage relating to such Property which is in a  special flood hazard area will be released pursuant to clause (c) above.     





 






  131  LEGAL02/41986661v10  Section 13.22.  Acknowledgement and Consent to Bail-In of Affected Financial Institutions.   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 Affected Financial Institution arising under any Loan Document may be subject to the Write-Down  and Conversion Powers of the applicable 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 the applicable Resolution  Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an  Affected 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 Affected Financial Institution, its parent entity, 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 the applicable Resolution Authority.    Section 13.23.  Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for  a  Derivatives Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit  Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with  respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit  Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together  with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such  Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the  Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of  New York and/or of the United States or any other state of the United States):    In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and  the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC  and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit  Support) from such Covered Party will be effective to the same extent as the transfer would be effective  under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any  such interest, obligation and rights in property) were governed by the laws of the United States or a state of  the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject  to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that  might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against  such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be  exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were  governed by the laws of the United States or a state of the United States. Without limitation of the foregoing,  it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall  





 






  132  LEGAL02/41986661v10  in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit  Support.    Section 13.24.  New Lenders; Exiting Lenders.  The Administrative Agent, the Borrower and each Lender agree that upon the Effective Date, the  outstanding Revolving Loans and the participation interests of the Revolving Lenders in any outstanding  Letters of Credit and Swingline Loans under the Existing Credit Agreement shall be allocated among the  Revolving Lenders in accordance with their respective Revolving Commitment Percentages calculated  based on the Revolving Commitments of the Revolving Lenders set forth on Schedule I attached hereto  (the “Post-Amendment Revolving Commitment Percentage”).  To effect such allocations, each Revolving  Lender whose Post-Amendment Revolving Commitment Percentage exceeds the amount of such Revolving  Lender’s Revolving Commitment Percentage immediately prior to the effectiveness of this Amendment  and any New Lender (as defined below) providing a new Revolving Commitment shall make a Revolving  Loan in such amount as is necessary so that the aggregate principal amount of Revolving Loans held by  such Lender shall equal such Revolving Lender’s Post-Amendment Revolving Commitment Percentage of  the aggregate outstanding principal amount of the Revolving Loans as of the Effective Date.  The  Administrative Agent shall make such amounts of the proceeds of such Revolving Loans available (a) to  each Revolving Lender whose Post-Amendment Revolving Commitment Percentage is less than the  amount of such Revolving Lender’s Revolving Commitment Percentage immediately prior to the  effectiveness of this Amendment as is necessary so that the aggregate principal amount of Revolving Loans  held by such Revolving Lender shall equal such Lender’s Post-Amendment Revolving Commitment  Percentage of the aggregate outstanding principal amount of the Revolving Loans as of the Effective Date  and (b) to the Exiting Lenders (as defined below) as is necessary to repay in full the Revolving Loans owing  to such Exiting Lenders.    Each new Lender identified in its signature page hereto as a “New Lender” under the Credit  Agreement on the Effective Date (each, a “New Lender”) hereby agrees to provide a new Revolving  Commitment, and/or Term 1 Loan Commitment and/or Term 2 Loan Commitment, as the case may be, in  the amount set forth opposite such New Lender’s name on Schedule I attached hereto.  On the Effective  Date, each New Lender agrees to become and shall be deemed a Lender for all purposes of the Credit  Agreement, and each reference to the Lenders in the Credit Agreement shall be deemed to include each  New Lender.  Each New Lender hereby appoints Wells Fargo Bank, National Association as the  Administrative Agent and authorizes the Administrative Agent to take such action on its behalf and to  exercise such powers under the Credit Agreement and other Loan Documents as are delegated to the  Administrative Agent by the terms thereof.    On the Effective Date, the Commitments of each Revolving Lender and each Term Loan Lender  identified in its signature page hereto as an “Exiting Lender” under the Credit Agreement on the Effective  Date (each, an “Exiting Lender”) shall be terminated, all outstanding amounts due under the Credit  Agreement and the other Loan Documents to the Exiting Lenders on the Effective Date shall be paid in full,  and each Exiting Lender shall cease to be a Lender under the Credit Agreement; provided that obligations  of the Loan Parties under the Loan Documents that are intended to survive any Lender ceasing to be a  Lender or a party to any Loan Document shall survive in accordance with their respective terms for the  benefit of such Lender.    The Administrative Agent, the Borrower and each Lender confirms as of the date hereof the amount  of each such Lender’s Commitment as set forth opposite such Lender’s name on Schedule I attached hereto.    





 






  133  LEGAL02/41986661v10  Section 13.25.  Release of Collateral.  The Administrative Agent, the Borrower and each Lender agree that upon the Effective Date (i) the  Administrative Agent’s Liens in the Collateral (as defined in the Existing Credit Agreement) securing the  Obligations (as defined in the Existing Credit Agreement) shall be released and (ii) each of the Pledge  Agreement and the Intercreditor Agreement (each as defined in the Existing Credit Agreement) shall  terminate and be of no further force and effect, in each case, regardless of whether the Security Release  Date (as defined in the Existing Credit Agreement) shall have occurred as of the Effective Date. The  Borrower and each Lender hereby authorize the Administrative Agent to file UCC-3 termination statements  and to take such further actions as may be reasonably necessary to effectuate, evidence or reflect the  termination of the Liens referenced in this Section 13.25.