Exhibit 10.4






Exhibit 10.4




EXECUTION COPY




 





AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of February 28, 2007




by and among




DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP,




as Borrower,




DIAMONDROCK HOSPITALITY COMPANY,

as Parent,




WACHOVIA CAPITAL MARKETS, LLC,




as Sole Lead Arranger

and

as Book Manager,




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




Each of

BANK OF AMERICA, N.A.,

CALYON NEW YORK BRANCH

and

THE ROYAL BANK OF SCOTLAND PLC,

as a Syndication Agent,




CITICORP NORTH AMERICA, INC.,

as Documentation Agent,




and




THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO

AND THEIR ASSIGNEES PURSUANT TO SECTION 13.5.,

as Lenders




 






 


 









 







TABLE OF CONTENTS




	 	 	 	 	 
	Article I. Definitions 1
	 	 	1	 
	 
	 	 	 	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. General; References to Times
	 	 	24	 
	Section 1.3. Financial Attributes of Non-Wholly Owned Subsidiaries
	 	 	25	 
	 
	 	 	 	 
	Article II. Credit Facility
	 	 	25	 
	 
	 	 	 	 
	Section 2.1. Revolving Loans
	 	 	25	 
	Section 2.2. Swingline Loans
	 	 	26	 
	Section 2.3. Letters of Credit
	 	 	28	 
	Section 2.4. Rates and Payment of Interest on Loans
	 	 	32	 
	Section 2.5. Number of Interest Periods
	 	 	33	 
	Section 2.6. Repayment of Loans
	 	 	33	 
	Section 2.7. Prepayments
	 	 	33	 
	Section 2.8. Continuation
	 	 	34	 
	Section 2.9. Conversion
	 	 	34	 
	Section 2.10. Notes
	 	 	35	 
	Section 2.11. Voluntary Reductions of the Commitment
	 	 	35	 
	Section 2.12. Extension of Termination Date
	 	 	36	 
	Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination Date
	 	 	36	 
	Section 2.14. Amount Limitations
	 	 	36	 
	Section 2.15. Increase of Commitments
	 	 	36	 
	 
	 	 	 	 
	Article III. Payments, Fees and Other General Provisions
	 	 	37	 
	 
	 	 	 	 
	Section 3.1. Payments
	 	 	37	 
	Section 3.2. Pro Rata Treatment
	 	 	38	 
	Section 3.3. Sharing of Payments, Etc.
	 	 	38	 
	Section 3.4. Several Obligations
	 	 	39	 
	Section 3.5. Minimum Amounts
	 	 	39	 
	Section 3.6. Fees
	 	 	39	 
	Section 3.7. Computations
	 	 	40	 
	Section 3.8. Usury
	 	 	41	 
	Section 3.9. Agreement Regarding Interest and Charges
	 	 	41	 
	Section 3.10. Statements of Account
	 	 	41	 
	Section 3.11. Defaulting Lenders
	 	 	41	 
	Section 3.12. Taxes
	 	 	43	 
	 
	 	 	 	 
	Article IV. Unencumbered Borrowing Base Properties
	 	 	44	 
	 
	 	 	 	 
	Section 4.1. Eligibility of Properties
	 	 	44	 
	Section 4.2. Reclassification of Properties
	 	 	46	 
	 
	 	 	 	 
	Article V. Yield Protection, Etc.
	 	 	47	 
	 
	 	 	 	 
	Section 5.1. Additional Costs; Capital Adequacy
	 	 	47	 
	Section 5.2. Suspension of LIBOR Loans
	 	 	48	 






 


 









 





	 	 	 	 	 
	Section 5.3. Illegality
	 	 	49	 
	Section 5.4. Compensation
	 	 	49	 
	Section 5.5. Treatment of Affected Loans
	 	 	49	 
	Section 5.6. Change of Lending Office
	 	 	50	 
	Section 5.7. Assumptions Concerning Funding of LIBOR Loans
	 	 	50	 
	Section 5.8. Affected Lenders
	 	 	50	 
	 
	 	 	 	 
	Article VI. Conditions Precedent
	 	 	51	 
	 
	 	 	 	 
	Section 6.1. Initial Conditions Precedent
	 	 	51	 
	Section 6.2. Conditions Precedent to All Loans and Letters of Credit
	 	 	53	 
	Section 6.3. Conditions Subsequent
	 	 	54	 
	 
	 	 	 	 
	Article VII. Representations and Warranties
	 	 	54	 
	 
	 	 	 	 
	Section 7.1. Representations and Warranties
	 	 	54	 
	Section 7.2. Survival of Representations and Warranties, Etc.
	 	 	60	 
	 
	 	 	 	 
	Article VIII. Affirmative Covenants
	 	 	60	 
	 
	 	 	 	 
	Section 8.1. Preservation of Existence and Similar Matters
	 	 	60	 
	Section 8.2. Compliance with Applicable Law and Material Contracts
	 	 	61	 
	Section 8.3. Maintenance of Property
	 	 	61	 
	Section 8.4. Conduct of Business
	 	 	61	 
	Section 8.5. Insurance
	 	 	61	 
	Section 8.6. Payment of Taxes and Claims
	 	 	61	 
	Section 8.7. Visits and Inspections
	 	 	62	 
	Section 8.8. Use of Proceeds; Letters of Credit
	 	 	62	 
	Section 8.9. Environmental Matters
	 	 	62	 
	Section 8.10. Books and Records
	 	 	63	 
	Section 8.11. Further Assurances
	 	 	63	 
	Section 8.12. REIT Status
	 	 	63	 
	Section 8.13. Exchange Listing
	 	 	63	 
	Section 8.14. Additional Guarantors
	 	 	63	 
	Section 8.15. Release of Guarantors
	 	 	64	 
	 
	 	 	 	 
	Article IX. Information
	 	 	64	 
	 
	 	 	 	 
	Section 9.1. Quarterly Financial Statements
	 	 	65	 
	Section 9.2. Year-End Statements
	 	 	65	 
	Section 9.3. Compliance Certificate
	 	 	65	 
	Section 9.4. Other Information
	 	 	66	 
	Section 9.5. Electronic Delivery of Certain Information
	 	 	68	 
	Section 9.6. Public/Private Information
	 	 	69	 
	 
	 	 	 	 
	Article X. Negative Covenants
	 	 	70	 
	 
	 	 	 	 
	Section 10.1. Financial Covenants
	 	 	70	 
	Section 10.2. Restricted Payments
	 	 	71	 
	Section 10.3. Indebtedness
	 	 	71	 
	Section 10.4. Certain Permitted Investments
	 	 	71	 
	Section 10.5. Investments Generally
	 	 	72	 






 


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	Section 10.6. Liens; Negative Pledges; Other Matters
	 	 	72	 
	Section 10.7. Merger, Consolidation, Sales of Assets and Other Arrangements
	 	 	73	 
	Section 10.8. Fiscal Year
	 	 	74	 
	Section 10.9. Modifications to Material Contracts
	 	 	74	 
	Section 10.10. Modifications of Organizational Documents
	 	 	74	 
	Section 10.11. Transactions with Affiliates
	 	 	75	 
	Section 10.12. ERISA Exemptions
	 	 	75	 
	 
	 	 	 	 
	Article XI. Default
	 	 	75	 
	 
	 	 	 	 
	Section 11.1. Events of Default
	 	 	75	 
	Section 11.2. Remedies Upon Event of Default
	 	 	78	 
	Section 11.3. Remedies Upon Default
	 	 	80	 
	Section 11.4. Allocation of Proceeds
	 	 	80	 
	Section 11.5. Collateral Account
	 	 	81	 
	Section 11.6. Performance by Agent
	 	 	82	 
	Section 11.7. Rights Cumulative
	 	 	82	 
	 
	 	 	 	 
	Article XII. The Agent
	 	 	82	 
	 
	 	 	 	 
	Section 12.1. Authorization and Action
	 	 	82	 
	Section 12.2. Agent’s Reliance, Etc.
	 	 	83	 
	Section 12.3. Notice of Defaults
	 	 	83	 
	Section 12.4. Wachovia as Lender
	 	 	84	 
	Section 12.5. Approvals of Lenders
	 	 	84	 
	Section 12.6. Lender Credit Decision, Etc.
	 	 	85	 
	Section 12.7. Indemnification of Agent
	 	 	85	 
	Section 12.8. Successor Agent
	 	 	86	 
	Section 12.9. Titled Agents
	 	 	87	 
	 
	 	 	 	 
	Article XIII. Miscellaneous
	 	 	87	 
	 
	 	 	 	 
	Section 13.1. Notices
	 	 	87	 
	Section 13.2. Expenses
	 	 	88	 
	Section 13.3. Setoff
	 	 	89	 
	Section 13.4. Litigation; Jurisdiction; Other Matters; Waivers
	 	 	89	 
	Section 13.5. Successors and Assigns
	 	 	90	 
	Section 13.6. Amendments
	 	 	92	 
	Section 13.7. Nonliability of Agent and Lenders
	 	 	94	 
	Section 13.8. Confidentiality
	 	 	94	 
	Section 13.9. Indemnification
	 	 	95	 
	Section 13.10. Termination; Survival
	 	 	97	 
	Section 13.11. Severability of Provisions
	 	 	97	 
	Section 13.12. GOVERNING LAW
	 	 	97	 
	Section 13.13. Patriot Act
	 	 	97	 
	Section 13.14. Counterparts
	 	 	98	 
	Section 13.15. Obligations with Respect to Loan Parties
	 	 	98	 
	Section 13.16. Limitation of Liability
	 	 	98	 
	Section 13.17. Entire Agreement
	 	 	98	 






 


- iii -









 





	 	 	 	 	 
	Section 13.18. Construction
	 	 	98	 
	Section 13.19. No Novation
	 	 	99	 






	 	 	 
	SCHEDULE 1.1.(A)

	 	Capitalization Rates
	SCHEDULE 1.1.(B)

	 	List of Loan Parties
	SCHEDULE 4.1.

	 	Initial Unencumbered Borrowing Base Properties
	SCHEDULE 7.1.(b)

	 	Ownership Structure
	SCHEDULE 7.1.(f)

	 	Title to Properties; Liens
	SCHEDULE 7.1.(g)

	 	Indebtedness and Guaranties
	SCHEDULE 7.1.(h)

	 	Material Contracts
	SCHEDULE 7.1.(i)

	 	Litigation
	 
	 	 
	EXHIBIT A

	 	Form of Assignment and Acceptance Agreement
	EXHIBIT B

	 	Form of Guaranty
	EXHIBIT C

	 	Form of Notice of Borrowing
	EXHIBIT D

	 	Form of Notice of Continuation
	EXHIBIT E

	 	Form of Notice of Conversion
	EXHIBIT F

	 	Form of Notice of Swingline Borrowing
	EXHIBIT G

	 	Form of Swingline Note
	EXHIBIT H

	 	Form of Revolving Note
	EXHIBIT I

	 	Form of Opinion of Counsel
	EXHIBIT J

	 	Form of Compliance Certificate







 


- iv -









 







THIS AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of February 28, 2007 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 assignees pursuant to Section 13.5.(d), WACHOVIA
BANK, NATIONAL ASSOCIATION, as Agent, WACHOVIA CAPITAL MARKETS, LLC, as Sole Lead Arranger (the
“Sole Lead Arranger”) and as Book Manager (the “Book Manager”), each of BANK OF AMERICA, N.A.,
CALYON NEW YORK BRANCH and THE ROYAL BANK OF SCOTLAND PLC, as a Syndication Agent (each a
“Syndication Agent”), and CITICORP NORTH AMERICA, INC., as Documentation Agent (the “Documentation
Agent”).



WHEREAS, certain of the Lenders and other financial institutions have made available to
Borrower a revolving credit facility in the amount of $75,000,000, including a $25,000,000 letter
of credit subfacility and a $20,000,000 swingline subfacility, on the terms and conditions
contained in that certain Credit Agreement dated as of July 8, 2005 (as amended and in effect
immediately prior to the date hereof, the “Existing Credit Agreement”) by and among the Borrower,
such Lenders, certain other financial institutions, the Agent and the other parties thereto; and



WHEREAS, the Agent and the Lenders desire to amend and restate the terms of the Existing
Credit Agreement to make available to the Borrower a revolving credit facility in the initial
amount of $200,000,000, which will include a $50,000,000 letter of credit subfacility and a
$25,000,000 swingline subfacility, 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:



“Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the
Guaranty.




“Accommodation Subsidiary” has the meaning given that term in Section 4.1.(d).




“Additional Costs” has the meaning given that term in Section 5.1.



“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 LIBOR” means, with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus the
stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the interest rate on LIBOR
Loans is determined or any applicable category of extensions of credit or other assets which
includes loans by an office of any Lender outside of the United States of America to residents of
the United States of America). Any change in such maximum rate shall result in a change in Adjusted
LIBOR on the date on which such change in such maximum rate becomes effective.



“Adjusted Total Asset Value” means Total Asset Value determined exclusive of assets that are
owned by Excluded Subsidiaries, Foreign Subsidiaries and Unconsolidated Affiliates.



“Administrative Details Form” means an Administrative Details Reply Form in a form supplied by
the Agent to the Lenders from time to time.



“Affiliate” means any Person (other than the Agent or any Lender): (a) directly or indirectly
controlling, controlled by, or under common control with, the Borrower; (b) directly or indirectly
owning or holding ten percent (10.0%) or more of any Equity Interest in the Borrower; or (c) ten
percent (10.0%) or more of whose voting stock or other Equity Interest is directly or indirectly
owned or held by the Borrower. For purposes of this definition, “control” (including with
correlative meanings, the terms “controlling”, “controlled by” and “under common control with”)
means the possession directly or indirectly of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities or by
contract or otherwise. The Affiliates of a Person shall include any officer or director of such
Person. In no event shall the Agent or any Lender be deemed to be an Affiliate of the Borrower.



“Agent” means Wachovia Bank, National Association, as contractual representative for the
Lenders under the terms of this Agreement.




“Agreement Date” means the date as of which this Agreement is dated.



“Applicable Law” means all applicable provisions of constitutions, statutes, rules,
regulations and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.



“Applicable Margin” means the percentage rate set forth below corresponding to the ratio of
Total Indebtedness to Total Asset Value as determined in accordance with Section 10.1. in effect at
such time:


 


- 2 -









 





	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Applicable Margin for	 	 	Applicable Margin for	 
	Level	 	Leverage Ratio	 	LIBOR Loans	 	 	Base Rate Loans	 
	1
	 	Less than or equal to 0.50 to 1.00	 	 	0.95	%	 	 	0.0	%
	2
	 	Greater than 0.50 to 1.00 but less than or equal to 0.55 to 1.00	 	 	1.25	%	 	 	0.25	%
	3
	 	Greater than 0.55 to 1.00 but less than 0.60 to 1.00	 	 	1.45	%	 	 	0.45	%
	4
	 	Greater than or equal to 0.60 to 1.00	 	 	1.55	%	 	 	0.65	%






The Applicable Margin shall be determined by the Agent from time to time, based on the ratio of
Total Indebtedness to Total Asset Value 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 (i) in the case of a Compliance Certificate delivered in connection with quarterly
financial statements of the Borrower delivered pursuant to Section 9.1., as of the date 45 days
following the end of the last day of the applicable fiscal period covered by such Compliance
Certificate, (ii) in the case of a Compliance Certificate delivered in connection with annual
financial statements of the Parent delivered pursuant to Section 9.2., as of the date 120 days
following the end of the last day of the applicable fiscal period covered by such Compliance
Certificate, and (iii) in the case of any other Compliance Certificate, as of the date 5 Business
Days following the Agent’s request for such Compliance Certificate. Notwithstanding the foregoing,
for the period from the Effective Date through but excluding the date on which the Agent first
determines the Applicable Margin as set forth above, the Applicable Margin shall be determined
based on Level 1. Thereafter, the Applicable Margin shall be adjusted from time to time as set
forth above. If the Borrower shall fail to deliver a compliance certificate within the time period
required under Section 9.3., the Applicable Margin shall be determined based on Level 4 until the
Borrower delivers the required Compliance Certificate, in which case the Applicable Margin shall be
determined as provided above effective as of the date of delivery of such Compliance Certificate.



“Approved Fund” means any Person (other than a natural Person) (a) 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 business and (b) that is administered or managed
by a Lender, an affiliate of a Lender or an entity or an affiliate of an entity that administers or
manages a Lender.



“Approved Manager” means Marriott International, Inc., Hilton Hotels Corporation, Starwood
Hotels & Resorts Worldwide, Noble Investment Group, RockResorts International, Hyatt Corporation,
Interstate Hotels & Resorts, Kimpton Group and their respective affiliates.




“Arranger” means Wachovia Capital Markets, LLC.




“Assignee” has the meaning given that term in Section 13.5.(d).



“Assignment and Acceptance Agreement” means an Assignment and Acceptance Agreement among a
Lender, an Assignee and the Agent, substantially in the form of Exhibit A.


 


- 3 -









 





“Base Rate” means the per annum rate of interest equal to the greater of (a) the Prime Rate or
(b) the Federal Funds Rate plus one-half of one percent (0.5%). Any change in the Base Rate
resulting from a change in the Prime Rate or the Federal Funds Rate shall become effective as of
12:01 a.m. on the Business Day on which each such change occurs. The Base Rate is a reference rate
used by the Lender acting as the Agent in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged by the Lender acting as the Agent or any other
Lender on any extension of credit to any debtor.




“Base Rate Loan” means a Revolving Loan bearing interest at a rate based on the Base Rate.



“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.




“Borrower” has the meaning set forth in the introductory paragraph hereof.



“Business Day” means (a) any day other than a Saturday, Sunday or other day on which banks in
Charlotte, North Carolina or New York, New York are authorized or required to close and (b) with
reference to a LIBOR Loan, any such day that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.



“Capitalization Rate” means 9.00% for assets categorized Upscale or below, 8.00% for assets
categorized Upper Upscale and 7.50% for assets categorized Luxury or Resort. Such categorization
shall be as determined by Smith Travel Research or as otherwise requested by the Borrower and
consented to in writing by the Requisite Lenders. Attached hereto as Schedule 1.1.(A) is the
categorization and Capitalization Rates for Properties owned directly or indirectly by the Borrower
as of the date hereof.



“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 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 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 Organization
for Economic Cooperation 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



 


- 4 -









 






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, 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.



“Collateral Account” means a special deposit account established by the Agent pursuant to
Section 11.5. and under its sole dominion and control.



“Commitment” means, as to each Lender (other than the Swingline Lender), such Lender’s
obligation (a) to make Revolving Loans pursuant to Section 2.1., (b) to issue (in the case of the
Lender then acting as Agent) or participate in (in the case of the other Lenders) Letters of Credit
pursuant to Section 2.3.(a) and 2.3.(i), respectively, (but in the case of the Lender acting as the
Agent excluding the aggregate amount of participations in the Letters of Credit held by the other
Lenders), and (c) to participate in Swingline Loans pursuant to Section 2.2.(e), in each case, in
an amount up to, but not exceeding, the amount set forth for such Lender on its signature page
hereto as such Lender’s “Commitment Amount” or as set forth in the applicable Assignment and
Acceptance Agreement, as the same may be reduced from time to time pursuant to Section 2.11. or as
appropriate to reflect any assignments to or by such Lender effected in accordance with
Section 13.5.



“Commitment Percentage” means, as to each Lender, the ratio, expressed as a percentage, of
(a) the amount of such Lender’s Commitment to (b) the aggregate amount of the Commitments of all
Lenders; provided, however, that if at the time of determination the Commitments have terminated or
been reduced to zero, the “Commitment Percentage” of each Lender shall be the Commitment Percentage
of such Lender in effect immediately prior to such termination or reduction.




“Compliance Certificate” has the meaning given that term in Section 9.3.



“Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.8.



“Convert”, “Conversion” and “Converted” each refers to the conversion of a Revolving Loan of
one Type into a Revolving Loan of another Type pursuant to Section 2.9.



“Credit Event” means any of the following: (a) the making (or deemed making) of any Loan,
(b) the Conversion of a Loan and (c) the issuance of a Letter of Credit.



“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” has the meaning given that term in Section 3.11.


 


- 5 -









 





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



“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 Agent or any Lender).



“Development Property” means, as of any date of determination, any Property on which the
existing building or other improvements are undergoing renovation and redevelopment that will
either (a) disrupt the occupancy of at least 15% of the rentable rooms of such Property or
(b) temporarily reduce the Net Operating Income attributable to such Property by more than 15% as
compared to the immediately preceding comparable prior period. A Property shall cease to be a
Development Property once all improvements related to the renovation or redevelopment of such
Property have been substantially completed.




“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; and (v) other non-cash charges
(other than non-cash charges that constitute an accrual of a reserve for future cash payments)


 


- 6 -









 





plus (b) such Person’s pro rata 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 Statement of Financial Accounting Standards number 141.



“Effective Date” means the later of: (a) the Agreement Date; and (b) the date on which all of
the conditions precedent set forth in Section 6.1. shall have been fulfilled (subject to the effect
of Section 6.3.) or waived in writing by the Requisite Lenders.



“Eligible Assignee” means any Person who is: (i) currently a Lender or an affiliate of a
Lender; (ii) an Approved Fund; (iii) a commercial bank, trust, trust company, insurance company,
investment bank or pension fund organized under the laws of the United States of America, or any
state thereof, and having total assets in excess of $5,000,000,000; (iv) a savings and loan
association or savings bank organized under the laws of the United States of America, or any state
thereof, and having a tangible net worth of at least $500,000,000; or (v) a commercial bank
organized under the laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and having total
assets in excess of $10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. Notwithstanding the foregoing, during any period in which
an Event of Default exists under subsections (a), (f) or (g) of Section 11.1., the term “Eligible
Assignee” shall mean any Person that is not an individual.



“Eligible Unencumbered Borrowing Base Property” means a Property which satisfies all of the
following requirements: (a) such Property (i) is a Development Property or (ii) is a full service,
select service or extended stay lodging Property; (b) except in the case of a Development Property,
such Property is currently operating and open for business to the public; (c) such Property is
branded by a nationally recognized hotel company; (d) such Property is located in a State of the
United States of America, in the District of Columbia or in any territories of the United States of
America; (e) the Property is owned in fee simple, or, with the consent of the Agent, leased under a
Ground Lease entirely by, the Borrower, a Subsidiary or an Unconsolidated Affiliate; (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) and (h) of
the definition of Permitted Liens)) or a Negative Pledge; (g) if such Property is owned or leased
by a Subsidiary or an Unconsolidated Affiliate (i) none of the Borrower’s direct or indirect
ownership interest in such Subsidiary or Unconsolidated Affiliate 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 either managed by (i) the Borrower or any of its
Subsidiaries, (ii) an Approved Manager or (iii) a nationally recognized third-party property
management company or any of its affiliates approved by the Agent and Requisite Lenders; and
(i) such Property is free of all structural defects or title defects, environmental conditions or
other adverse matters except for defects, deficiencies, conditions or



 


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other matters individually or collectively which are not material to the profitable operation of
such Property.



“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 and any applicable rule
of common law and any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.



“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 Issuance” means any issuance by a Person of any Equity Interest in such Person and
shall in any event include the issuance of any Equity Interest upon the conversion or exchange of
any security constituting Indebtedness that is convertible or exchangeable, or is being converted
or exchanged, for Equity Interests.



“ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to
time.



“ERISA Group” means the Borrower, any Subsidiary 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 any Subsidiary, are treated as a single employer under Section 414 of
the Internal Revenue Code.



“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 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



 


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agreement evidencing such Secured Indebtedness or (ii) is prohibited from Guarantying the
Indebtedness of any other Person pursuant 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.



“Existing Credit Agreement” has the meaning given such term in the first “WHEREAS” clause of
this Agreement.



“Fair Market Value” means, with respect to (a) a security listed on a national securities
exchange or the NASDAQ National Market, the price of such security as reported on such exchange 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.



“Federal Funds Rate” means, for any day, the rate per annum (rounded upward to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.



“Fees” means the fees and commissions provided for or referred to in Section 3.6. and any
other fees payable by the Borrower hereunder or under any other Loan Document.



“FF&E Reserves” means, for any period and with respect to a Property, an amount equal to 4.0%
of total gross revenues for such Property 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.



“Fixed Charges” means, for any period, the sum of (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, and (c) all Preferred Dividends paid during such period on Preferred Equity Interests not
owned by the Parent or any of its Subsidiaries. The Parent’s pro rata share of the Fixed Charges
of Unconsolidated Affiliates of the Parent shall be included in determinations of Fixed Charges.



“Floating Rate Indebtedness” means all Indebtedness of a Person which bears interest at a
variable rate during the scheduled life of such Indebtedness and for which such Person has not
obtained interest rate swap agreements, interest rate “cap” or “collar” agreements or other



 


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similar Derivatives Contracts which effectively cause such variable rates to be equivalent to fixed
rates or subject to maximum interest rates which, in each case, are reasonably acceptable to the
Agent.




“Foreign Subsidiary” means a Subsidiary that is not a Domestic Subsidiary.



“Funds From Operations” means, with respect to a Person and for a given period, (a) net income
(loss) of such Person determined on a consolidated basis for such period minus (or
plus) (b) gains (or losses) from debt restructuring and sales of property during such
period plus (c) depreciation with respect to such Person’s real estate assets and
amortization of such Person for such period, all after adjustment for unconsolidated partnerships
and joint ventures. Adjustments for Unconsolidated Affiliates will be calculated to reflect funds
from operations on the same basis.



“GAAP” means generally accepted accounting principles 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 or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, 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, 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) or any arbitrator with authority to bind a party at law.



“Ground Lease” means a ground lease containing the following terms and conditions: (a) a
remaining term (exclusive of any unexercised extension options) of 25 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; (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) reasonable transferability of the lessee’s interest
under such lease, including ability to sublease; 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.



“Guarantor” means any Person that is a party to the Guaranty as a “Guarantor” and in any event
shall include each Material Subsidiary (other than Excluded Subsidiaries and Foreign Subsidiaries).


 


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“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. As the context requires, “Guaranty” shall also
mean the Guaranty to which the Guarantors are parties 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, for any period, an amount equal to the annual principal and
interest payment sufficient to amortize in full during a 30-year period the aggregate principal
balance of Loans and the amount of all Letter of Credit Liabilities outstanding during such period
calculated using an interest rate equal to the greater of (i) the yield on a 10 year United States
Treasury Note at such time as determined by the Agent plus 1.50% or (ii) 6.50%.



“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 obligations of such Person, whether or not for money borrowed (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



 


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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 purchase obligation, repurchase obligation, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding 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 existing Indebtedness, 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 of customary exceptions for fraud, misapplication of
funds, environmental indemnities and other similar exceptions to recourse liability (but not
exceptions relating to bankruptcy, insolvency, receivership or other similar events)); (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 pro rata 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 pro rata 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 pro rata portion 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.




“Intellectual Property” has the meaning given that term in Section 7.1.(t).



“Interest Expense” means, for any period, without duplication, (a) total interest expense of
the Parent and its Subsidiaries, including capitalized interest not funded under a construction
loan interest reserve account, determined on a consolidated basis for such period, plus (b) the
Parent’s pro rata share of Interest Expense of Unconsolidated Affiliates for such period. Interest
Expense shall exclude any amortization of deferred financing fees.



“Interest Period” means with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made or the last day of the next preceding Interest Period for such Loan and
ending 1, 2, 3 or 6 months, or if available from all of the Lenders, 9 or 12 months, 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 shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end after the
Termination Date, such Interest Period shall end on the Termination



 


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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).




“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.




“L/C Commitment Amount” equals $50,000,000.



“Lender” means each financial institution from time to time party hereto as a “Lender” and as
the context requires, includes the Swingline Lender.



“Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified as such in such Lender’s Administrative Details Form, or such other office of such Lender
of which such Lender may notify the Agent in writing.




“Letter of Credit” has the meaning given that term in Section 2.3.(a).



“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, a Lender (other than the Lender acting as the Agent) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the related Letter of Credit
under Section 2.3.(i), and the Lender acting as the Agent shall be deemed to hold a Letter of
Credit Liability in an amount equal to its retained interest in the related Letter of Credit after



 


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giving effect to the acquisition by the Lenders other than the Lender acting as the Agent of their
participation interests under such Section.




“Level” has the meaning given that term in the definition of the term “Applicable Margin.”



“LIBOR” means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not available, the term “LIBOR”
shall mean, for any LIBOR Loan for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on the Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates. If for any reason none of the
foregoing rates is available, LIBOR shall be, for any Interest Period, the rate per annum
reasonably determined by the Agent as the rate of interest at which Dollar deposits in the
approximate amount of the LIBOR Loan comprising part of such borrowing would be offered by the
Agent to major banks in the London interbank Eurodollar market at their request at or about 11:00
a.m. (London time) two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period.



“LIBOR Index Rate” means at any time the rate (rounded to the next higher 1/100 of 1%) of
interest for one month U.S. dollar deposits as reported on Telerate page 3750 as of 11:00 a.m.
London time for such day, provided, if such day is not a Business Day, the immediately preceding
Business Day, or if not so reported, then as determined by the Agent from another recognized source
or interbank quotation.




“LIBOR Loan” means a Revolving Loan bearing interest at a rate based on LIBOR.



“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



 


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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 or a Swingline 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.



“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 Agreement 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 Revolving Loans are scheduled to be due and payable in full.



“Marketable Securities” means (a) bank deposits and certificates of deposit from a bank rated
Baa1 or BBB+ or better by a Rating Agency; (b) government obligations; and (c) commercial paper
rated A1 or P1 by a Rating Agency.



“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 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 any Subsidiary (a) that owns in fee simple, or leases pursuant to
a ground lease, an Unencumbered Borrowing Base Property or (b) to which more than 10% of Total
Asset Value is attributable on an individual basis.


 


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“Moody’s” means Moody’s Investors Service, Inc.



“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 to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during such five year
period.



“Negative Pledge” means, with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) 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 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.



“Net Tangible Proceeds” means with respect to any Equity Issuance by a Person, the aggregate
amount of all cash and the Fair Market Value of all other property (other than (a) securities of
such Person being converted or exchanged in connection with such Equity Issuance and (b) assets
separately classified as intangible assets under GAAP) received by such Person in respect of such
Equity Issuance net of investment banking fees, legal fees, accountants’



 


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fees, underwriting discounts and commissions and other customary fees and expenses actually
incurred by such Person in connection with such Equity Issuance.



“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, and other similar exceptions to recourse
liability (but not exceptions relating to bankruptcy, insolvency, receivership or other similar
events)) is contractually limited to specific assets of such Person encumbered by a Lien securing
such Indebtedness or (b) if such Person is a Single Asset Entity, any Indebtedness for borrowed
money of such Person.




“Note” means a Revolving Note or a Swingline Note.



“Notice of Borrowing” means a notice in the form of Exhibit C to be delivered to the Agent
pursuant to Section 2.1.(b) evidencing the Borrower’s request for a borrowing of Revolving Loans.



“Notice of Continuation” means a notice in the form of Exhibit D to be delivered to the Agent
pursuant to Section 2.8. evidencing the Borrower’s request for the Continuation of a LIBOR Loan.



“Notice of Conversion” means a notice in the form of Exhibit E to be delivered to the Agent
pursuant to Section 2.9. evidencing the Borrower’s request for the Conversion of a Loan from one
Type to another Type.



“Notice of Swingline Borrowing” means a notice in the form of Exhibit F to be delivered to the
Agent pursuant to Section 2.2. evidencing the Borrower’s request for a borrowing of Swingline
Loans.



“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 Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of the other Loan
Documents, 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.



“OFAC” means U.S. Department of the Treasury’s Office of Foreign Assets Control and any
successor Governmental Authority.



“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


 


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(or their equivalents) which the Parent is required to file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor).




“Parent” has the meaning given such term in the introductory paragraph hereof.




“Participant” has the meaning given that term in Section 13.5.(c).




“PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.



“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 are not at the time required to be paid or discharged
under Section 8.6.; (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 not
interfering with the ordinary conduct of business of such Person; (e) Liens in favor of the 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 in existence as of the
Agreement Date and set forth in the Part II of Schedule 7.1.(f); (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; and (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).



“Person” means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency or political
subdivision thereof.



“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 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 five 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 other Obligation
that is not paid when due (whether at stated maturity, by acceleration, by mandatory



 


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prepayment or otherwise), a rate per annum equal to the Base Rate as in effect from time to time
plus the Applicable Margin for 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 the rate of interest per annum announced publicly by the Lender then acting
as the Agent as its prime rate from time to time. The Prime Rate is not necessarily the best or
the lowest rate of interest offered by the Lender acting as the Agent or any other Lender.



“Principal Office” means the office of the Agent located at One Wachovia Center, Charlotte,
North Carolina, or such other office of the Agent as the Agent may designate from time to time.



“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 and
which is located in a state of the United States of America or the District of Columbia.



“Qualified REIT Subsidiary” shall have the meaning given to such term in the Internal Revenue
Code.




“Register” has the meaning given that term in Section 13.5.(e).



“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.



“Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse the Agent for any drawing honored by the Agent under a Letter of Credit.


 


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“REIT” means a Person qualifying for treatment as a “real estate investment trust” under the
Internal Revenue Code.



“Requisite Lenders” means, as of any date, Lenders having greater than 50% of the aggregate
amount of the Commitments (not held by Defaulting Lenders who are not entitled to vote), or, if the
Commitments have been terminated or reduced to zero, Lenders holding greater than 50% of the
principal amount of the aggregate outstanding Loans and Letter of Credit Liabilities (not held by
Defaulting Lenders who are not entitled to vote).



“Responsible Officer” means with respect to the Parent, the Borrower or any Subsidiary, the
chief executive officer, the chief financial officer or any other senior executive officer 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 Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.1.(a).




“Revolving Note” has the meaning given that term in Section 2.10.(a).



“Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published from time to time, as
such program may be applicable to such agency, organization or Person.



“Sanctioned Person” means a Person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the OFAC as published from time to time.



“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.



“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 $10,000,000 of the
unallocated gross book value (exclusive of depreciation and amortization) of all real estate assets
of the Parent and its Subsidiaries is attributable.


 


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“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 other Single Asset Entity 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.



“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.




“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.



“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 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 or other entity (without regard to the occurrence of any contingency) is
at the time 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.



“Swingline Commitment” means the Swingline Lender’s obligation to make Swingline Loans
pursuant to Section 2.2. in an amount up to, but not exceeding, $25,000,000, as such amount may be
reduced from time to time in accordance with the terms hereof.




“Swingline Lender” means Wachovia Bank, National Association.



“Swingline Loan” means a loan made by the Swingline Lender to the Borrower pursuant to
Section 2.2.(a).



“Swingline Note” means the promissory note of the Borrower 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, substantially in the form of Exhibit G.


 


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“Tangible Net Worth” means, as of any given time: (a) the unallocated gross book value
(exclusive of depreciation and amortization) of all real estate assets of the Parent and its
Subsidiaries that constitute Properties at such time; plus (b) the book value of other
assets (excluding any real estate assets but including Investments in Unconsolidated Affiliates) of
the Parent and its Subsidiaries; less (c) all amounts appearing on the assets side of a
consolidated balance sheet of the Parent for assets separately classified as intangible assets
under GAAP (except for allocations of property purchase prices pursuant to Statement of Financial
Accounting Standards No. 141 and the like); less (d) all Total Indebtedness of the Parent
and its Subsidiaries (excluding the pro rata share of Indebtedness of any Unconsolidated Affiliate
to the extent included in Total Indebtedness) determined on a consolidated basis; less
(e) all other liabilities of the Parent and its Subsidiaries determined on a consolidated basis
(except liabilities resulting from allocations of property purchase prices pursuant to Statement of
Financial Accounting Standards No. 141 and the like).



“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” has the meaning given that term in Section 3.12.



“Termination Date” means February 28, 2011, or such later date to which the Termination Date
may be extended pursuant to Section 2.12.



“Titled Agents” means each Sole Lead Arranger, the Book Manager, the Syndication Agent and the
Documentation Agent.



“Total Asset Value” means the sum of all of the following of the Borrower and its Subsidiaries
on a consolidated basis determined in accordance with GAAP applied on a consistent basis:
(a) cash, Cash Equivalents and Marketable Securities, plus (b) with respect to each Property owned
by the Borrower or any Subsidiary (other than Unimproved Land) for eighteen (18) months or greater,
(i) the Adjusted EBITDA of such Property for the period of four consecutive fiscal quarters most
recently ending, divided by (ii) the Capitalization Rate, plus (c) the purchase price paid for any
Property owned by the Borrower or any Subsidiary for less than eighteen (18) months (other than
Unimproved Land)(less amounts paid as a purchase price adjustment, held in escrow, retained as a
contingency reserve, or other similar arrangements and prior to allocations of property purchase
prices pursuant to Statement of Financial Accounting Standards No. 141 and the like), plus (d) the
book value of Unimproved Land, Mortgage Receivables and other promissory notes, plus (e) the
Borrower’s pro rata share of the preceding items for its Unconsolidated Affiliates (excluding
assets of the type described in the immediately preceding clause (a)). Notwithstanding the
foregoing, for purposes of determining Total Asset Value, the amount, if any, by which the value of
cash, Cash Equivalents and Marketable Securities included under the immediately preceding clause
(a) would account for more than 10% of Total Asset Value shall be excluded. Borrower shall have
the one time right to have a Property owned for less than eighteen (18) months included in Total
Asset Value under (b) above, as though owned for a period of equal to or greater than eighteen (18)
months at its



 


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discretion. 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.



“Total Indebtedness” means all Indebtedness of the Parent, the Borrower and all other
Subsidiaries of the Parent determined on a consolidated basis.



“Type” with respect to any Revolving Loan, refers to whether such Loan is a LIBOR Loan or Base
Rate Loan.



“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 Borrowing Base Property” means a Property which is to be included in
calculations of the Unencumbered Borrowing Base Value pursuant to Section 4.1. A Property shall
cease to be an Unencumbered Borrowing Base Property if at any time such Property shall cease to be
an Eligible Unencumbered Borrowing Base Property unless otherwise agreed by the Requisite Lenders.
Not more than two Properties that have not been continuously operating for a period of at least
twelve consecutive months may be Unencumbered Borrowing Base Properties without the consent of the
Requisite Lenders.



“Unencumbered Borrowing Base Property NOI” means, for any period, NOI from all Unencumbered
Borrowing Base Properties for such period. For purposes of this definition, to the extent the NOI
attributable to (a) any one Unencumbered Borrowing Base Property would exceed 40.0% of Unencumbered
Borrowing Base Property NOI, such excess shall be excluded and (b) Unencumbered Borrowing Base
Properties located in the same metropolitan statistical area would exceed 40.0% of Unencumbered
Borrowing Base Property NOI, such excess shall be excluded.



“Unencumbered Borrowing Base Value” means the sum of all of the following of the Borrower and
its Subsidiaries on a consolidated basis determined in accordance with GAAP applied on a consistent
basis: (a) with respect to each Unencumbered Borrowing Base Property owned by the Borrower or any
Subsidiary for 18 months or greater, (i) the NOI of such Property for the period of four
consecutive fiscal quarters most recently ending, divided by (ii) the Capitalization Rate, plus
(b) the purchase price paid for any Unencumbered Borrowing Base Property owned by the Borrower or
any Subsidiary for less than 18 months (less amounts paid as a purchase price adjustment, held in
escrow, retained as a contingency reserve, or other similar arrangements and prior to allocations
of property purchase prices pursuant to Statement of Financial Accounting Standards No. 141 and the
like). Notwithstanding the foregoing, for purposes of determining Unencumbered Borrowing Base
Value, the Borrower shall have the one time right, exercisable in its discretion, to have an
Unencumbered Borrowing Base Property owned for less than 18 months included in Unencumbered
Borrowing Base Value under clause (a) above, as though owned for a period of 18 or more months. In
addition, with respect



 


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to any Property owned or leased by an Unconsolidated Affiliate, only the Borrower’s pro rata share
of the NOI of such Property shall be included under clause (a) above or the Borrower’s pro rata
share of the purchase price of such Property shall be included under clause (b) above. For
purposes of this definition, to the extent Unencumbered Borrowing Base Value attributable to
(x) Development Properties would exceed 20% of the Unencumbered Borrowing Base Value, such excess
shall be excluded and (y) Properties that are not owned by Guarantors would exceed 20% of the
Unencumbered Borrowing Base Value, such excess shall be excluded.



“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.



“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
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).




“Wachovia” means Wachovia Bank, National Association.



“Wholly Owned Subsidiary” means any Subsidiary of a Person in respect of which all of the
equity securities or other ownership 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.



Section 1.2. General; References to Times.



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, such
ratio or requirement shall continue to be computed in accordance with GAAP prior to such change
therein and the Borrower shall provide to the 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



 


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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 as of the date of this Agreement and from time to time thereafter to the extent not
prohibited hereby and in effect at any given time. A reference to a Person shall include its
successors and permitted assigns. 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. 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
Charlotte, North Carolina time.



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 pro rata 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.



Article II. Credit Facility




Section 2.1. Revolving Loans.



(a) Generally. Subject to the terms and conditions hereof, during the period from the
Effective Date to but excluding the Termination Date, each Lender severally and not jointly agrees
to make Revolving Loans to the Borrower in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the amount of such Lender’s Commitment. Subject to the terms
and conditions of this Agreement, during the period from the Effective Date to but excluding the
Termination Date, the Borrower may borrow, repay and reborrow Revolving Loans hereunder.



(b) Requesting Revolving Loans. The Borrower shall give the Agent notice pursuant to
a Notice of Borrowing or telephonic notice of each borrowing of Revolving Loans. Each Notice of
Borrowing shall be delivered to the Agent before 11:00 a.m. (i) in the case of LIBOR Loans, on the
date three Business Days prior to the proposed date of such borrowing and (ii) in the case of Base
Rate Loans, on the date one Business Day prior to the proposed date of such borrowing. Any such
telephonic notice shall include all information to be specified in a written Notice of Borrowing
and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Borrowing sent
to the Agent by telecopy on the same day of the giving of such telephonic notice. The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Lender promptly upon receipt by the



 


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Agent. Each Notice of Borrowing or telephonic notice of each borrowing shall be irrevocable once
given and binding on the Borrower.



(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m. on the date
specified in the Notice of Borrowing, each Lender will make available for the account of its
applicable Lending Office to the Agent at the Principal Office, in immediately available funds, the
proceeds of the Revolving Loan to be made by such Lender. With respect to Revolving Loans to be
made after the Effective Date, unless the Agent shall have been notified by any Lender prior to the
specified date of borrowing that such Lender does not intend to make available to the Agent the
Revolving Loan to be made by such Lender on such date, the Agent may assume that such Lender will
make the proceeds of such Revolving Loan available to the Agent on the date of the requested
borrowing as set forth in the Notice of Borrowing and the 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. Subject to satisfaction of the applicable conditions set forth
in Article VI. for such borrowing, the Agent will make the proceeds of such borrowing available to
the Borrower no later than 2:00 p.m. on the date and at the account specified by the Borrower in
such Notice of Borrowing.



(d) Repayment of Loans Outstanding under Existing Credit Agreement. The Borrower and
the Lenders agree that on the Effective Date all Loans (as defined in the Existing Credit
Agreement) outstanding under the Existing Credit Agreement shall be repaid with the proceeds of the
Loans to be made by the Lenders hereunder on the Effective Date.



Section 2.2. Swingline Loans.



(a) Swingline Loans. Subject to the terms and conditions hereof, during the period
from the Effective Date to but excluding the Termination Date, the Swingline Lender agrees to make
Swingline Loans to the Borrower in an aggregate principal amount at any one time outstanding up to,
but not exceeding, the amount of the Swingline Commitment. If at any time the aggregate principal
amount of the Swingline Loans outstanding at such time exceeds the Swingline Commitment in effect
at such time, the Borrower shall immediately pay the 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.



(b) Procedure for Borrowing Swingline Loans. The Borrower shall give the 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 3:00 p.m. on the proposed date of such borrowing. Any such notice
given telephonically 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 by telecopy on the same day of the giving of such
telephonic notice. On the date of the requested Swingline Loan and subject to satisfaction of the
applicable conditions set forth in Article VI. for such borrowing, the Swingline Lender will make
the proceeds of such Swingline Loan available to the Borrower in Dollars, in immediately available
funds, at the account specified by the Borrower in the Notice of Swingline Borrowing not later than
4:00 p.m. on such date.


 


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(c) Interest. Swingline Loans shall bear interest at a per annum rate equal to the
LIBOR Index Rate plus the Applicable Margin for LIBOR Loans. Interest payable on Swingline
Loans is solely for the account of the Swingline Lender. All accrued and unpaid interest on
Swingline Loans shall be payable on the dates and in the manner provided in Section 2.4. 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 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 prior written
notice thereof no later than 10:00 a.m. on 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 on 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
shall not be used to repay any other Swingline Loans. 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 Termination 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 for such purpose), request a borrowing of Base
Rate Loans from the Lenders in an amount equal to the principal balance of such Swingline Loan.
The amount limitations of Section 3.5.(a) shall not apply to any borrowing of Base Rate Loans made
pursuant to this subsection. The Swingline Lender shall give notice to the Agent of any such
borrowing of Base Rate Loans not later than 12:00 noon on the proposed date of such borrowing and
the Agent shall give prompt notice of such borrowing to the Lenders. No later than 2:00 p.m. on
such date, each Lender will make available to the Agent at the Principal Office for the account of
Swingline Lender, in immediately available funds, the proceeds of the Base Rate Loan to be made by
such Lender. The Agent shall pay the proceeds of such Base Rate Loans to the Swingline Lender,
which shall apply such proceeds to repay such Swingline Loan. At the time each Swingline Loan is
made, each Lender shall automatically (and without any further notice or action) be deemed to have
purchased from the Swingline Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender’s Commitment Percentage in such Swingline Loan. If the
Lenders are prohibited from making Loans required to be made under this subsection for any reason,
including without limitation, the occurrence of any Default or Event of Default described in
Section 11.1.(f) or 11.1.(g), upon notice from the Agent or the Swingline Lender, each Lender
severally agrees to pay to the Agent for the account of the Swingline Lender in respect of such
participation the amount of such Lender’s Commitment Percentage of each outstanding Swingline Loan.
If such amount is not in fact made available to the Agent by any Lender, the



 


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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 demand therefor by the Agent or the
Swingline Lender, 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 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 Loans, and any
other amounts due to 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). A Lender’s
obligation to make payments in respect of 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 Agent, the Swingline Lender or any other
Person whatsoever, (ii) the occurrence or continuation 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
11.1.(g)) or the termination of any 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 Agent, any Lender or the Borrower or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.



Section 2.3. Letters of Credit.



(a) Letters of Credit. Subject to the terms and conditions of this Agreement, the
Agent, on behalf of the 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 Termination
Date one or more letters of credit (each a “Letter of Credit”) up to a maximum aggregate Stated
Amount at any one time outstanding not to exceed the L/C Commitment Amount.



(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 Agent and the Borrower. Notwithstanding the foregoing, in no event may the
expiration date of any Letter of Credit extend beyond the earlier of (i) the date one year from its
date of issuance or (ii) the Termination Date; 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 Agent but in no event shall any such provision permit the extension of the
expiration date of such Letter of Credit beyond the Termination Date.



(c) Requests for Issuance of Letters of Credit. The Borrower shall give the Agent
written notice (or telephonic notice promptly confirmed in writing) 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) Stated Amount, (ii) the beneficiary, and
(iii) the expiration



 


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date. The Borrower shall also execute and deliver such customary letter of credit application
forms as requested from time to time by the Agent. Provided the Borrower has given the notice
prescribed by the first sentence of this subsection and subject to the other terms and conditions
of this Agreement, including the satisfaction of any applicable conditions precedent set forth in
Article VI., the Agent shall issue the requested Letter of Credit on the requested date of issuance
for the benefit of the stipulated beneficiary. Upon the written request of the Borrower, the Agent
shall deliver to the Borrower a copy of each issued Letter of Credit 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 the Agent from the beneficiary of a
Letter of Credit of any demand for payment under such Letter of Credit, the Agent shall promptly
notify the Borrower of the amount to be paid by the Agent as a result of such demand and the date
on which payment is to be made by the Agent to such beneficiary in respect of such demand;
provided, however, the Agent’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
unconditionally and irrevocably agrees to pay and reimburse the Agent for the amount of each demand
for payment under such Letter of Credit on or prior to the date on which payment is to be made by
the Agent 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 the Agent of any
payment in respect of any Reimbursement Obligation, the Agent shall promptly pay to each Lender
that has acquired a participation therein under the second sentence of Section 2.3.(i) such
Lender’s 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 Agent whether or not the
Borrower intends to borrow hereunder to finance its obligation to reimburse the Agent 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 Agent, or if the Borrower fails to reimburse the Agent for a demand
for payment under a Letter of Credit by the date of such payment, 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 Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give each Lender prompt
notice of the amount of the Revolving Loan to be made available to the Agent not later than 1:00
p.m. 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 of Section 3.5.(a) shall not apply to
any borrowing of Base Rate Loans under this subsection.



(f) Effect of Letters of Credit on Commitments. Upon the issuance by the Agent of any
Letter of Credit and until such Letter of Credit shall have expired or been terminated, the
Commitment of each 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 Commitment Percentage and (ii) the sum of (A) the
Stated Amount of such Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.


 


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(g) Agent’s 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, the Agent 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, neither the Agent
nor any of the Lenders shall be responsible for (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 it 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, telex, 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 the
proceeds of any drawing under any Letter of Credit; or (viii) any consequences arising from causes
beyond the control of the Agent or the Lenders. None of the above shall affect, impair or prevent
the vesting of any of the Agent’s rights or powers hereunder. Any action taken or omitted to be
taken by the Agent 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 the Agent or any Lender
any liability to the Borrower or any Lender. In this regard, the obligation of the Borrower to
reimburse the Agent for any drawing made under any Letter of Credit 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 the Agent, any Lender, any beneficiary of 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, the Agent, any 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 of the proceeds of any drawing under such Letter of Credit;
(G) payment by the Agent under any Letter of Credit 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



 


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might, but for the provisions of this Section, constitute a legal or equitable defense to or
discharge of 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 the Agent for any drawing made under a Letter of Credit as provided in this
Section, the Borrower shall have no obligation to indemnify the Agent or any Lender in respect of
any liability incurred by the Agent or a Lender arising solely out of the gross negligence or
willful misconduct of the Agent or a Lender in respect of a Letter of Credit as determined by a
court of competent jurisdiction in a final, non-appealable judgment. Except as otherwise provided
in this Section, nothing in this Section shall affect any rights the Borrower may have with respect
to the gross negligence or willful misconduct of the Agent or any Lender with respect to any Letter
of Credit.



(h) Amendments, Etc. The issuance by the Agent of any amendment, supplement or other
modification to any Letter of Credit 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 the Agent), 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 Requisite Lenders 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 3.6.(b).



(i) Lenders’ Participation in Letters of Credit. Immediately upon the issuance by the
Agent of any Letter of Credit each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Agent, without recourse or warranty, an undivided interest and
participation to the extent of such Lender’s Commitment Percentage of the liability of the Agent
with respect to such Letter of Credit, and each Lender thereby shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally
obligated to the Agent to pay and discharge when due, such Lender’s Commitment Percentage of the
Agent’s liability under such Letter of Credit. In addition, upon the making of each payment by a
Lender to the Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Lender shall, automatically and without any further action on the part of the
Agent or such Lender, acquire (i) a participation in an amount equal to such payment in the
Reimbursement Obligation owing to the Agent by the Borrower in respect of such Letter of Credit and
(ii) a participation in a percentage equal to such Lender’s Commitment Percentage in any interest
or other amounts payable by the Borrower in respect of such Reimbursement Obligation (other than
the Fees payable to the Agent pursuant to the third and last sentences of Section 3.6.(b)).



(j) Payment Obligation of Lenders. Each Lender severally agrees to pay to the Agent
on demand in immediately available funds in Dollars the amount of such Lender’s Commitment
Percentage of each drawing paid by the Agent under each Letter of Credit to the extent such amount
is not reimbursed by the Borrower pursuant to Section 2.3.(d); provided, however, that in respect
of any drawing under any Letter of Credit, the maximum amount that any Lender shall be required to
fund, whether as a Revolving Loan or as a participation, shall not exceed such Lender’s Commitment
Percentage of such drawing. If the notice referenced in the second



 


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sentence of Section 2.3.(e) is received by a Lender not later than 11:00 a.m., then such Lender
shall make such payment available to the Agent not later than 2:00 p.m. on the date of demand
therefor; otherwise, such payment shall be made available to the Agent not later than 1:00 p.m. on
the next succeeding Business Day. Each such Lender’s obligation to make such payments to the Agent
under this subsection, and the Agent’s right to receive the same, 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 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
11.1.(g) or (iv) the termination of the Commitments. Each such payment to the Agent shall be made
without any offset, abatement, withholding or deduction whatsoever.



(k) Information to Lenders. The Agent shall periodically deliver to the Lenders
information setting forth the Stated Amount of all outstanding Letters of Credit. In addition,
upon the request of any Lender from time to time, the Agent shall deliver to such Lender
information reasonably requested by such Lender with respect to each Letter of Credit then
outstanding. Other than as set forth in this subsection, the Agent shall have no duty to notify the
Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The
failure of the Agent to perform its requirements under this subsection shall not relieve any Lender
from its obligations under Section 2.3.(j).



Section 2.4. Rates and Payment of Interest on Loans.



(a) Rates. The Borrower promises to pay to the Agent for the account of each Lender
interest on the unpaid principal amount of each Loan made by such Lender for the period from and
including the date of the making of such Loan to but excluding the date such Loan shall be paid in
full, at the following per annum rates:




(i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in
effect from time to time) plus the Applicable Margin; and




(ii) during such periods as such Loan is a LIBOR Loan, at Adjusted LIBOR for such Loan
for the Interest Period therefor plus the Applicable Margin.



Notwithstanding the foregoing, overdue principal, Reimbursement Obligations and (to the extent
permitted by Applicable Law) interest on the Loans and all other overdue amounts payable hereunder
or under any of the other Loan Documents shall bear interest at a rate per annum equal to the
Post-Default Rate until such amount shall be paid in full.



(b) Payment of Interest. Accrued and unpaid interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly in arrears on the first day of each calendar month,
(ii) in the case of a LIBOR Loan, in arrears on the last day of each Interest Period therefor, and,
if such Interest Period is longer than three months, at three-month intervals following the first
day of such Interest Period, and (iii) in the case of any Loan, in arrears upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to a Loan of another Type (but
only on the principal amount so paid, prepaid, Continued or Converted). Interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after the



 


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determination of any interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the Borrower. All
determinations by the Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.



(c) Inaccurate Financial Statements or Compliance Certificates. If any financial
statement or Compliance Certificate delivered pursuant to Section 9.3. is shown to be inaccurate
(regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for
such Applicable Period, then (i) the Borrower shall immediately deliver to the Agent a correct
Compliance Certificate for such Applicable Period, (ii) the Applicable Margin shall be determined
on the basis of such corrected Compliance Certificate for such Applicable Period, and (iii) the
Borrower shall immediately pay to the Agent for the account of the Lenders the accrued additional
interest owing as a result of such increased Applicable Margin for such Applicable Period, which
payment shall be promptly applied by the Agent in accordance with Section 3.2. This subsection
shall not in any way limit the rights of the Agent and Lenders (x) with respect to the last
sentence of the immediately preceding subsection (a) or (y) under Article XI.



Section 2.5. Number of Interest Periods.



There may be no more than 5 different Interest Periods for LIBOR Loans outstanding at the same
time.



Section 2.6. Repayment of Loans.



The Borrower shall repay the entire outstanding principal amount of, and all accrued but
unpaid interest on, the Revolving Loans on the Termination Date.



Section 2.7. 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 Agent at least one Business Day’s prior
written notice of the prepayment of any Revolving Loan.




(b) Mandatory.




(i) Outstandings In Excess of Commitments. If at any time the aggregate
principal amount of all outstanding Revolving Loans, together with the aggregate amount of
all Letter of Credit Liabilities and the aggregate principal amount of all outstanding
Swingline Loans, exceeds the aggregate amount of the Commitments in effect at such time, the
Borrower shall immediately pay to the Agent for the account of the Lenders the amount of
such excess; and




(ii) Outstandings in Excess of Minimum Implied Debt Service Ratio. If at any
time the aggregate outstanding principal balance of Loans, together with the aggregate


 


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amount of all Letter of Credit Liabilities, exceeds the amount which is supported by
the Minimum Implied Debt Service Ratio covenant in Section 10.1.(e), then the Borrower
shall, within 5 days of the occurrence of such excess, pay to the Agent for the account of
the Lenders the amount of such excess.



(c) Application of Prepayments. All payments under this Section shall be applied to
pay all amounts of principal outstanding on the 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 Collateral Account for application to any
Reimbursement Obligations. If the Borrower is required to pay any outstanding LIBOR Loans by
reason of this Section prior to the end of the applicable Interest Period therefor, the Borrower
shall pay all amounts due under Section 5.4.



Section 2.8. Continuation.



So long as no Default or Event of Default shall exist, the Borrower may on any Business Day,
with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR
Loan by selecting a new Interest Period for such LIBOR Loan. 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 Agent a Notice
of Continuation not later than 11:00 a.m. on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans 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 Agent shall notify
each Lender by telecopy, or other similar form of transmission, of the proposed Continuation. If
the Borrower shall fail to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, or if a Default or Event of Default shall exist, 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 2.9. or the Borrower’s failure to comply with
any of the terms of such Section.



Section 2.9. Conversion.



The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to
the Agent, 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 to a LIBOR Loan if a Default or Event of Default
shall exist. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loan and, upon Conversion of a Base Rate Loan
into a LIBOR Loan, the Borrower shall pay accrued interest to the date of Conversion on the
principal amount so Converted. Each such Notice of Conversion shall be given not later than 11:00
a.m. on the Business Day prior to the date of any proposed Conversion into Base Rate Loans and on
the third Business Day prior to the date of any proposed Conversion into LIBOR Loans. Promptly
after receipt of a Notice of Conversion, the Agent



 


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shall notify each Lender by telecopy, or other similar form of transmission, of the proposed
Conversion. Subject to the restrictions specified above, each Notice of Conversion shall be by
telephone (confirmed immediately in writing) or telecopy in the form of a Notice of Conversion
specifying (a) the requested date of such Conversion, (b) the Type 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 LIBOR 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 2.10. Notes.



(a) Revolving Note. The Revolving Loans made by each Lender shall, in addition to
this Agreement, also be evidenced by a promissory note of the Borrower substantially in the form of
Exhibit H (each a “Revolving Note”), payable to the order of such Lender in a principal amount
equal to the amount of its Commitment as originally in effect and otherwise duly completed.



(b) Records. The date, amount, interest rate, Type 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 recorded by such Lender on its books and such entries shall be
binding on the Borrower, absent manifest error; provided, however, that the failure of a Lender to
make any such record shall not affect the obligations of the Borrower under any of the Loan
Documents.



(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 2.11. Voluntary Reductions of the Commitment.



The Borrower shall have the right to terminate or reduce the aggregate unused amount of the
Commitments (for which purpose use of the Commitments shall be deemed to include the aggregate
amount of 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 Agent of each such termination or reduction, which notice
shall specify the effective date thereof and the amount of any such reduction and shall be
irrevocable once given and effective only upon receipt by the Agent; provided, however, if the
Borrower seeks to reduce the aggregate amount of the Commitments below $100,000,000, then the
Commitments shall all automatically and permanently be reduced to zero. The Agent will promptly
transmit such notice to each Lender. The Commitments, once terminated or reduced may not be
increased or reinstated.


 


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Section 2.12. Extension of Termination Date.



The Borrower shall have the right, exercisable one time, to extend the Termination Date by one
year. The Borrower may exercise such right only by executing and delivering to the Agent at least
45 days but not more than 120 days prior to the current Termination Date, a written request for
such extension (an “Extension Request”). The Agent shall forward to each Lender a copy of the
Extension Request delivered to the Agent promptly upon receipt thereof. Subject to satisfaction of
the following conditions, the Termination Date shall be extended for one year: (a) 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 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 on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents and
(b) the Borrower shall have paid the Fees payable under Section 3.6.(c).



Section 2.13. Expiration or Maturity Date of Letters of Credit Past Termination Date.




If on the date the 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 hereunder, the Borrower shall, on such date, pay to the Agent an amount of money equal
to the Stated Amount of such Letter(s) of Credit for deposit into the Collateral Account.



Section 2.14. Amount Limitations.



Notwithstanding any other term of this Agreement or any other Loan Document, no Lender shall
be required to make a Loan, the Agent shall not be required to issue a Letter of Credit and no
reduction of the Commitments pursuant to Section 2.11. shall take effect, if immediately after the
making of such Loan, the issuance of such Letter of Credit or such reduction in the Commitments,
the aggregate principal amount of all outstanding Loans, together with the aggregate amount of all
Letter of Credit Liabilities, would exceed the aggregate amount of the Commitments at such time.



Section 2.15. Increase of Commitments.



With the prior consent of the Agent, the Borrower shall have the right at any time and from
time to time from during the term of this Agreement to request up to 4 increases in the aggregate
amount of the Commitments (provided that after giving effect to any increases in the Commitments
pursuant to this Section, the aggregate amount of the Commitments may not exceed $500,000,000) by
providing written notice to the Agent, which notice shall be irrevocable once given. Each such
increase in the Commitments must be in an aggregate minimum amount of $25,000,000 and integral
multiples of $5,000,000 in excess thereof. No Lender shall be required to increase its Commitment
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 Lender



 


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becomes a party to this Agreement, or if any existing Lender agrees to increase its Commitment,
such Lender shall on the date it becomes a Lender hereunder (or increases its Commitment, in the
case of an existing Lender) (and as a condition thereto) purchase from the other Lenders its
Commitment Percentage (as determined after giving effect to the increase of Commitments) of any
outstanding Revolving Loans, by making available to the Agent for the account of such other Lenders
at the Principal Office, in same day 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 Lender plus (B) the
aggregate amount of payments previously made by the other Lenders under Section 2.3.(j) which 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 Lenders
amounts payable, if any, to such Lenders under Section 5.4. as a result of the prepayment of any
such Revolving Loans. No increase of the Commitments may be effected under this Section if (x) a
Default or Event of Default shall be in existence on the effective date of such increase or (y) any
representation or warranty made or deemed made by the Borrower or any other Loan Party in any Loan
Document to which any such Loan Party is a party is not (or would not be) true or correct in all
material respects on the effective date of such increase (except for representations or warranties
which expressly relate solely to an earlier date). In connection with any increase in the
aggregate amount of the Commitments pursuant to this subsection, (a) any Lender becoming a party
hereto shall execute such documents and agreements as the Agent may reasonably request and (b) the
Borrower shall make appropriate arrangements so that each new Lender, and any existing Lender
increasing its Commitment, receives a new or replacement Note, as appropriate, in the amount of
such Lender’s Commitment within 2 Business Days of the effectiveness of the applicable increase in
the aggregate amount of Commitments.



Article III. Payments, Fees and Other General Provisions




Section 3.1. Payments.



Except to the extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in
Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Agent
at its Principal Office, not later than 2:00 p.m. on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to have been made on the
next succeeding Business Day). Subject to Section 11.4., the Borrower may, at the time of making
each payment under this Agreement or any Note, specify to the Agent the amounts payable by the
Borrower hereunder to which such payment is to be applied. Each payment received by the Agent for
the account of a Lender under this Agreement or any Note shall be paid to such Lender at the
applicable Lending Office of such Lender no later than 5:00 p.m. on the date of receipt. If the
Agent fails to pay such amount to a Lender as provided in the previous sentence, the 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 be payable for the period of such extension.


 


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Section 3.2. Pro Rata Treatment.



Except to the extent otherwise provided herein: (a) each borrowing from the Lenders under
Section 2.1.(a), 2.2.(e) and 2.3.(e) shall be made from the Lenders, each payment of the Fees under
Section 3.6.(a), the first sentence of Section 3.6.(b) and Section 3.6.(c) shall be made for the
account of the Lenders, and each termination or reduction of the amount of the Commitments under
Section 2.11. shall be applied to the respective Commitments of the Lenders, pro rata according to
the amounts of their respective Commitments; (b) each payment or prepayment of principal of
Revolving Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Revolving Loans held by them, provided that 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 Lenders pro rata in
accordance with their respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such 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 Commitments; (c) each payment of interest on Revolving
Loans by the Borrower shall be made for the account of the Lenders pro rata in accordance with the
amounts of interest on such Loans then due and payable to the respective Lenders; (d) the making,
Conversion and Continuation of Revolving Loans of a particular Type (other than Conversions
provided for by Section 5.5.) shall be made pro rata among the Lenders according to the amounts of
their respective Commitments (in the case of making of Loans) or their respective Loans (in the
case of Conversions and Continuations of Loans) and the then current Interest Period for each
Lender’s portion of each Loan of such Type shall be coterminous; (e) the Lenders’ participation in,
and payment obligations in respect of, Letters of Credit under Section 2.3., shall be pro rata in
accordance with their respective Commitments; and (f) the Lenders’ participation in, and payment
obligations in respect of, Swingline Loans under Section 2.2., shall be pro rata in accordance with
their respective Commitments. 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 Lender shall have acquired a participating interest in any such Swingline Loan pursuant
to Section 2.2.(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 Loan made by it to
the Borrower under this Agreement, or shall obtain payment on any other Obligation owing by the
Borrower or a Loan Party through the exercise of any right of set-off, banker’s lien or
counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms of this Agreement
and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2. or
Section 11.4., as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct interests in) the
Loans made by the other Lenders 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 shall share the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance



 


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with Section 3.2. or Section 11.4., as applicable. To such end, all the Lenders 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 so
purchasing a participation (or direct interest) in the Loans or other Obligations owed to such
other Lenders 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 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.



Section 3.5. Minimum Amounts.



(a) Borrowings and Conversions. Except as otherwise provided in Sections 2.2.(e) and
2.3.(e), each borrowing of Base Rate Loans shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess thereof. Each borrowing and each Conversion of LIBOR
Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount.



(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess thereof (or, if
less, the aggregate principal amount of Revolving Loans then outstanding).



(c) Reductions of Commitments. Each reduction of the Commitments under Section 2.11.
shall be in an aggregate minimum amount of $10,000,000 and integral multiples of $5,000,000 in
excess thereof.



(d) Letters of Credit. The initial Stated Amount of each Letter of Credit shall be at
least $100,000.



Section 3.6. Fees.



(a) Unused Fee. During the period from the Effective Date to but excluding the
Termination Date, the Borrower agrees to pay to the Agent for the account of the Lenders an unused
facility fee with respect to the average daily difference between the (i) aggregate amount of the
Commitments and (ii) the aggregate principal amount of all outstanding Loans plus the aggregate
amount of all Letter of Credit Liabilities (the “Unused Amount”). Such fee shall be computed by
multiplying the Unused Amount with respect to such quarter by the corresponding per annum rate set
forth below:


 


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	Unused Amount	 	Unused Fee	 
	< 50% of the aggregate amount of Commitments
	 	 	0.125	%
	> 50% of the aggregate amount of Commitments
	 	 	0.20	%






Such fee shall be payable in arrears on the last day of each March, June, September or December of
each calendar year. Any such accrued and unpaid fee shall also be payable on the Termination Date
or any earlier date of termination of the Commitments or reduction of the Commitments to zero.



(b) Letter of Credit Fees. The Borrower agrees to pay to the Agent for the account of
each Lender a letter of credit fee at a rate per annum equal to the Applicable Margin for LIBOR
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) through and including the date such
Letter of Credit expires or is terminated or (y) to but excluding the date such Letter of Credit is
drawn in full. The fees provided for in the immediately preceding sentence shall be nonrefundable
and payable in arrears on (i) the last day of March, June, September and December in each year,
(ii) the Termination Date, (iii) the date the Commitments are terminated or reduced to zero and
(iv) thereafter from time to time on demand of the Agent. In addition, the Borrower shall pay to
the Agent for its own account and not the account of any Lender, an issuance fee in respect of each
Letter of Credit equal to the greater of (i) $500 or (ii) 0.125% of the Stated Amount of such
Letter of Credit. The fees provided for in the immediately preceding sentence shall be
nonrefundable and payable upon issuance (or in the case of an increase in the Stated Amount of a
Letter of Credit, on the effective date of such increase but only with respect to the amount of
such increase). The Borrower shall pay directly to the Agent from time to time on demand all
commissions, charges, costs and expenses in the amounts customarily charged by the Agent from time
to time in like circumstances with respect to the issuance of each Letter of Credit, drawings,
amendments and other transactions relating thereto.



(c) Extension Fee. If the Borrower exercises its right to extend the Termination Date
in accordance with Section 2.12., the Borrower agrees to pay to the Agent for the account of each
Lender a fee equal to two-tenths of one percent (0.20%) of the amount of such Lender’s Commitment
(whether or not utilized) at the time of such extension. Such fee shall be due and payable in full
on the date the Agent receives the Extension Request pursuant to such Section.



(d) Administrative and Other Fees. The Borrower agrees to pay the administrative and
other fees of the Agent as may be agreed to in writing by the Borrower and the Agent from time to
time.



Section 3.7. 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 365 or 366 days, as
applicable, and the actual number of days elapsed; provided, however, interest on LIBOR Rate Loans
shall be computed on the basis of a year of 360 days and the actual number of day elapsed.


 


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Section 3.8. 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.



Section 3.9. Agreement Regarding Interest and Charges.



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 2.4.(a)(i) and (ii) and in Section 2.2.(c). Notwithstanding the foregoing,
the parties hereto further agree and stipulate that all agency fees, syndication fees, unused 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 Agent or any Lender to third parties or for damages incurred by the 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 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 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.



Section 3.10. Statements of Account.



The Agent will account to the Borrower monthly with a statement of Loans, Letters of Credit,
accrued interest and Fees, charges and payments made pursuant to this Agreement and the other Loan
Documents, and such account rendered by the Agent shall be deemed conclusive upon Borrower absent
manifest error. The failure of the Agent to deliver such a statement of accounts shall not relieve
or discharge the Borrower from any of its obligations hereunder.



Section 3.11. Defaulting Lenders.



(a) Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or
refuse to perform any of its obligations under this Agreement or any other Loan Document to which
it is a party within the time period specified for performance of such obligation or, if no time
period is specified, if such failure or refusal continues for a period of two Business Days after
notice from the Agent, then, in addition to the rights and remedies that may be available to the
Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to
participate in the administration of the Loans, this Agreement and the other Loan Documents,
including without limitation, any right to vote in respect of, to consent to or to direct any
action or inaction of the Agent or to be taken into account in the calculation of the Requisite



 


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Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a
Defaulting Lender because it has failed to make timely payment to the Agent of any amount required
to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Agent or the Borrower may have under the
immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest
from such Defaulting Lender on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to
withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest,
any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan
Document and (iii) to bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest. Any amounts
received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such
Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase
price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the
Defaulting Lender’s curing of its default.



(b) Purchase or Cancellation of Defaulting Lender’s Commitment. Any Lender who is not
a Defaulting Lender shall have the right, but not the obligation, in its sole discretion, to
acquire all of a Defaulting Lender’s Commitment. Any Lender desiring to exercise such right shall
give written notice thereof to the Agent and the Borrower no sooner than 2 Business Days and not
later than 5 Business Days after such Defaulting Lender became a Defaulting Lender. If more than
one Lender exercises such right, each such Lender shall have the right to acquire an amount of such
Defaulting Lender’s Commitment in proportion to the Commitments of the other Lenders exercising
such right. If after such 5th Business Day, the Lenders have not elected to purchase all of the
Commitment of such Defaulting Lender, then the Borrower may, by giving written notice thereof to
the Agent, such Defaulting Lender and the other Lenders, either (i) demand that such Defaulting
Lender assign its Commitment to an Eligible Assignee subject to and in accordance with the
provisions of Section 13.5.(d) for the purchase price provided for below or (ii) terminate the
Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other Loan Documents. The
Agent, the Lenders and the Titled Agents shall have no obligation whatsoever to initiate any such
replacement or to assist in finding an Eligible Assignee. Upon any such purchase or assignment,
the Defaulting Lender’s interest in the Loans and its rights hereunder (but not its liability in
respect thereof or under the Loan Documents or this Agreement to the extent the same relate to the
period prior to the effective date of the purchase) shall terminate on the date of purchase, and
the Defaulting Lender shall promptly execute all documents reasonably requested to surrender and
transfer such interest to the purchaser or assignee thereof, including an appropriate Assignment
and Acceptance Agreement and, notwithstanding Section 13.5.(d), shall pay to the Agent an
assignment fee in the amount of $7,000. The purchase price for the Commitment of a Defaulting
Lender shall be equal to the amount of the principal balance of the Loans outstanding and owed by
the Borrower to the Defaulting Lender. Prior to payment of such purchase price to a Defaulting
Lender, the Agent shall apply against such purchase price any amounts retained by the Agent
pursuant to the last sentence of the immediately preceding subsection (a). The Defaulting Lender
shall be entitled to receive amounts owed to it by the Borrower under the Loan Documents which
accrued prior to the date of the default by the Defaulting Lender, to the extent the same are
received by the Agent



 


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from or on behalf of the Borrower. There shall be no recourse against any Lender or the Agent for
the payment of such sums except to the extent of the receipt of payments from any other party or in
respect of the Loans.



Section 3.12. Taxes.



(a) Taxes Generally. All payments by the Borrower of principal of, and interest on,
the Loans and all other Obligations shall be made free and clear of and without deduction for any
present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes imposed on or measured by any Lender’s assets, net
income, receipts or branch profits, (iii) any taxes (other than withholding taxes) with respect to
the Agent or a Lender that would not be imposed but for a connection between the Agent or such
Lender and the jurisdiction imposing such taxes (other than a connection arising solely by virtue
of the activities of the Agent or such Lender pursuant to or in respect of this Agreement or any
other Loan Document), and (iv) any taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges to the extent imposed as a result of the failure of the Agent or a
Lender, as applicable, to provide and keep current (to the extent legally able) any certificates,
documents or other evidence required to qualify for an exemption from, or reduced rate of, any such
taxes fees, duties, levies, imposts, charges, deductions, withholdings or other charges or required
by the immediately following subsection (c) to be furnished by the Agent or such Lender, as
applicable (such non-excluded items being collectively called “Taxes”). If any withholding or
deduction from any payment to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:




(i) pay directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;




(ii) promptly forward to the Agent an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such Governmental Authority; and




(iii) pay to the Agent for its account or the account of the applicable Lender, as the
case may be, such additional amount or amounts as is necessary to ensure that the net amount
actually received by the Agent or such Lender will equal the full amount that the Agent or
such Lender would have received had no such withholding or deduction been required.



(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Agent, for its account or the account
of the respective Lender, as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and the Lenders for any incremental Taxes,
interest or penalties that may become payable by the Agent or any Lender as a result of any such
failure. For purposes of this Section, a distribution hereunder by the Agent or any Lender to or
for the account of any Lender shall be deemed a payment by the Borrower.



(c) Tax Forms. Prior to the date that any Lender or Participant organized under the
laws of a jurisdiction outside the United States of America becomes a party hereto, such Person



 


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shall deliver to the Borrower and the Agent such certificates, documents or other evidence, as
required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto (including
Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor forms),
properly completed, currently effective and duly executed by such Lender or Participant
establishing that payments to it hereunder and under the Notes are (i) not subject to United States
Federal backup withholding tax and (ii) not subject to United States Federal withholding tax
imposed under the Internal Revenue Code. Each such Lender or Participant shall, to the extent it
may lawfully do so, (x) deliver further copies of such forms or other appropriate certifications on
or before the date that any such forms expire or become obsolete and after the occurrence of any
event requiring a change in the most recent form delivered to the Borrower or the Agent and (y)
obtain such extensions of the time for filing, and renew such forms and certifications thereof, as
may be reasonably requested by the Borrower or the Agent. The Borrower shall not be required to
pay any amount pursuant to the last sentence of subsection (a) above to any Lender or Participant
that is organized under the laws of a jurisdiction outside of the United States of America or the
Agent, if it is organized under the laws of a jurisdiction outside of the United States of America,
if such Lender, Participant or the Agent, as applicable, fails to comply with the requirements of
this subsection. If any such Lender or Participant, to the extent it may lawfully do so, fails to
deliver the above forms or other documentation, then the Agent may withhold from any payments to be
made to such Lender under any of the Loan Documents such amounts as are required by the Internal
Revenue Code. If any Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made to or for the
account of any Lender, such Lender shall indemnify the Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the Agent under this
Section, and costs and expenses (including all reasonable fees and disbursements of any law firm or
other external counsel and the allocated cost of internal legal services and all disbursements of
internal counsel) of the Agent. The obligation of the Lenders under this Section shall survive the
termination of the Commitments, repayment of all Obligations and the resignation or replacement of
the Agent.



Article IV. Unencumbered Borrowing Base Properties




Section 4.1. Eligibility of Properties.



(a) Initial Unencumbered Borrowing Base Properties. As of the date hereof, the
parties agree that the Properties identified on Schedule 4.1. shall be Unencumbered Borrowing Base
Properties, and accordingly, shall be included in calculations of the Unencumbered Borrowing Base
Value initially having the respective Unencumbered Borrowing Base Values set forth on such
Schedule.



(b) Additional Unencumbered Borrowing Base Properties. If, after the Agreement Date,
the Borrower desires that any additional Property become an Unencumbered Borrowing Base Property
and therefore included in calculations of the Unencumbered Borrowing Base Value, the Borrower shall
so notify the Agent in writing. Except as otherwise provided in the immediately following
subsection (c), no Property will become an Unencumbered Borrowing Base Property unless it is an
Eligible Unencumbered Borrowing Base Property, and unless and



 


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until the Borrower delivers to the Agent the following, in form and substance satisfactory to the
Agent:




(i) a description of such Property, such description to include the age, location and
size of such Property;




(ii) an operating statement with respect to such Property for each of the two prior
fiscal years and for the current fiscal year through the fiscal quarter most recently ending
and for the current fiscal quarter, which shall be audited (to the extent available) or
certified by a representative of the Borrower to the best of such representative’s knowledge
as being true and correct in all material respects; provided, that with respect to any
period such Property was not owned by a Loan Party, such information shall only be required
to be delivered to the extent reasonably available to the Borrower;




(iii) a pro forma operating statement or an operating budget for such Property with
respect to the current and immediately following fiscal years;




(iv) a budget for capital expenditures for the immediately following 12-month period
showing funding sources acceptable to the Agent; and




(v) such other information the Agent may reasonably request in order to evaluate such
Property.



A notification from the Borrower to the Agent that the Borrower desires that a Property be included
in calculations of the Unencumbered Borrowing Base Value shall constitute a certification by the
Borrower to the Agent and the Lenders that such Property satisfies all of the requirements
contained in the definition of “Eligible Unencumbered Borrowing Base Property” unless such notice
states otherwise (in which case the provisions of the immediately following subsection (c) shall
apply). Upon the Agent’s receipt of all of the foregoing items with respect to an Eligible
Unencumbered Borrowing Base Property, such Property shall become an Unencumbered Borrowing Base
Property, and accordingly, shall be included in calculations of the Unencumbered Borrowing Base
Value.



(c) Nonconforming Properties. If a Property which the Borrower wants to have included
in the Unencumbered Borrowing Base Value does not satisfy the requirements of an Eligible
Unencumbered Borrowing Base Property, then the Agent, upon written request of the Borrower shall
request that the Lenders determine whether such Property shall be included as an Unencumbered
Borrowing Base Property. In connection therewith, the Borrower shall deliver the information
required by the immediately preceding subsection (b) to each of the Lenders. If such a request is
made by the Agent to the Lenders, within 10 Business Days after the date on which a Lender has
received such request and all of the items referred to in the immediately preceding subsection (b),
such Lender shall notify the Agent in writing whether or not such Lender accepts such Property as
an Unencumbered Borrowing Base Property. If a Lender fails to give such notice within such time
period, such Lender shall be deemed to have approved such Property as an Unencumbered Borrowing
Base Property. A Property shall become an



 


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Unencumbered Borrowing Base Property under this subsection (c) only upon the approval and/or deemed
approval of the Requisite Lenders.



(d) Documents with Respect to Subsidiary or Unconsolidated Affiliate. Upon a Property
owned by a Subsidiary or an Unconsolidated Affiliate that is not a Guarantor becoming an
Unencumbered Borrowing Base Property, the Borrower shall deliver to the Agent an Accession
Agreement executed by such Subsidiary or Unconsolidated Affiliate together with the items that
would have been delivered with respect to such Subsidiary or Unconsolidated Affiliate under
Sections 6.1.(a)(iv) through (viii) and (xii) as if such Subsidiary or Unconsolidated Affiliate had
been a Guarantor on the Effective Date (without taking into account the effect of Section 6.3.).
If the improvements on an Unencumbered Borrowing Base Property or the furniture, fixtures and
equipment utilized in the operation of such Unencumbered Borrowing Base Property are owned or
leased by a Subsidiary (the “Accommodation Subsidiary”) other than the Subsidiary that owns or
leases such Unencumbered Borrowing Base Property, then the Borrower shall also deliver to the Agent
an Accession Agreement executed by such Accommodation Subsidiary. Until such time as the Agent
shall have received the items referred to in the immediately preceding two sentences with respect
to such Subsidiary or Unconsolidated Affiliate and any applicable Accommodation Subsidiary, the
Unencumbered Borrowing Base Value of any Unencumbered Borrowing Base Property owned by such
Subsidiary or Unconsolidated Affiliate shall be $0 and any NOI attributable to such Property shall
not be included in Unencumbered Borrowing Base Property NOI. For the avoidance of doubt, a
Property shall not be included in determinations of Unencumbered Borrowing Base Property NOI or
Unencumbered Borrowing Base Value if the Subsidiary or Unconsolidated Affiliate that owns or leases
such is not a Guarantor.



Section 4.2. Reclassification of Properties.



From time to time the Borrower may request, upon not less than 10 Business Days prior written
notice to the Agent, that an Unencumbered Borrowing Base Property be no longer classified as an
Unencumbered Borrowing Base Property and therefore not included in the calculations of the
Unencumbered Borrowing Base Value, which reclassification (a “Reclassification”) shall be effected
by the Agent if all the following conditions are satisfied as of the date of such Reclassification:



(a) no Default or Event of Default exists or will exist immediately after giving effect to
such Reclassification and the reduction in the Unencumbered Borrowing Base Value by reason of the
release of such Property as of the date of such Reclassification (any such request from the
Borrower shall include a representation regarding no Default or Event of Default to the effect set
forth in the preceding sentence); and



(b) the Borrower shall have delivered a Compliance Certificate showing pro forma compliance
with the covenants set forth in Section 10.1. after giving effect to such Reclassification.



Upon the Borrower’s request and at the Borrower’s sole cost and expense, the Agent agrees to
execute and deliver such instruments, documents, certificates and other agreements as the Borrower
may reasonably request to confirm such Reclassification.


 


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Article V. Yield Protection, Etc.




Section 5.1. Additional Costs; Capital Adequacy.



(a) Additional Costs. The Borrower shall promptly pay to the 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 or maintaining of any LIBOR Loans or its obligation to make any LIBOR 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 Loans or such obligation or the maintenance by such Lender of
capital in respect of its Loans or its Commitment (such increases in costs and reductions in
amounts receivable being herein called “Additional Costs”), to the extent 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 Loans or its
Commitment (other than taxes, fees, duties, levies, imposts, charges, deductions, withholdings or
other charges which are excluded from the definition of Taxes pursuant to the first sentence of
Section 3.12.(a)); or (ii) imposes or modifies any reserve, special deposit or similar requirements
(other than Regulation D of the Board of Governors of the Federal Reserve System or other reserve
requirement to the extent utilized in the determination of Adjusted LIBOR for such Loan) relating
to any extensions of credit or other assets of, or any deposits with or other liabilities of, such
Lender, or any commitment of such Lender (including, without limitation, the Commitment of such
Lender hereunder); or (iii) has or would have the effect of reducing the rate of return on capital
of such Lender to a level below that which such Lender could have achieved but for such Regulatory
Change (taking into consideration such Lender’s policies with respect to capital adequacy).



(b) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions
of the immediately preceding subsection (a), 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 LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender that includes LIBOR 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 Agent),
the obligation of such Lender to make or Continue, or to Convert any other Type of Loans into,
LIBOR Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 5.5. shall apply).



(c) 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, 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 the Agent of issuing (or any Lender of purchasing participations
in) or



 


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maintaining its obligation hereunder to issue (or purchase participations in) any Letter of Credit
or reduce any amount receivable by the Agent or any Lender hereunder in respect of any Letter of
Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay promptly, and in any
event within 3 Business Days of demand, to the Agent for its account or the account of such Lender,
as applicable, from time to time as specified by the Agent or a Lender, such additional amounts as
shall be sufficient to compensate the Agent or such Lender for such increased costs or reductions
in amount.



(d) Notification and Determination of Additional Costs. Each of the Agent and each
Lender agrees to notify the Borrower of any event occurring after the Agreement Date entitling the
Agent or such Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Agent or any Lender to give such
notice shall not release the Borrower from any of its obligations hereunder (and in the case of a
Lender, to the 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 Agent or such Lender agrees to furnish to the Borrower
(and in the case of a Lender, to the Agent) a certificate setting forth in reasonable detail the
basis and amount of each request by the Agent or such Lender for compensation under this Section.
Absent manifest error, determinations by the Agent or any Lender of the effect of any Regulatory
Change shall be conclusive, provided that such determinations are made on a reasonable basis and in
good faith.



Section 5.2. Suspension of LIBOR Loans.



Anything herein to the contrary notwithstanding, if, on or prior to the determination of
Adjusted LIBOR for any Interest Period:




(a) the Agent reasonably determines (which determination shall be conclusive) that by
reason of circumstances affecting the relevant market, adequate and reasonable means do not
exist for ascertaining Adjusted LIBOR for such Interest Period, or




(b) the Agent reasonably determines (which determination shall be conclusive) that
Adjusted LIBOR will not adequately and fairly reflect the cost to the Lenders of making or
maintaining LIBOR Loans for such Interest Period;



then the 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 LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower
shall, on the last day of each current Interest Period for each outstanding LIBOR Loan, either
repay such Loan or Convert such Loan into a Base Rate Loan.


 


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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 LIBOR Loans hereunder, then such Lender
shall promptly notify the Borrower thereof (with a copy to the Agent) and such Lender’s obligation
to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended
until such time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 5.5. shall be applicable).



Section 5.4. Compensation.



The Borrower shall pay to the Agent for the account of each Lender, upon the request of such
Lender through the Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense (excluding lost profits) that such
Lender reasonably determines is attributable to:




(a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or
Conversion of a LIBOR 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 LIBOR Loan from such Lender on the requested date for such borrowing,
or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested
date of such Conversion or Continuation.



Upon the Borrower’s request, any Lender requesting compensation under this Section 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. Absent manifest error,
determinations by any Lender in any such statement shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.



Section 5.5. Treatment of Affected Loans.



If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate
Loans into, LIBOR Loans shall be suspended pursuant to Section 5.1.(b) or 5.3., then such Lender’s
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by
Section 5.1.(b) or 5.3., on such earlier date as such Lender may specify to the Borrower with a
copy to the Agent) and, unless and until such Lender gives notice as provided below that the
circumstances specified in Section 5.1. or 5.3. that gave rise to such Conversion no longer exist:




(a) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans
shall be applied instead to its Base Rate Loans; and


 


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(b) all Loans that would otherwise be made or Continued by such Lender as LIBOR 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 LIBOR Loans shall remain as Base Rate Loans.



If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances
specified in Section 5.1. or 5.3. that gave rise to the Conversion of such Lender’s LIBOR 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 LIBOR 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 LIBOR Loans, to the extent necessary so
that, after giving effect thereto, all Loans held by the Lenders holding LIBOR 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 to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or circumstances described in
Sections 3.12., 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 LIBOR Loans.



Calculation of all amounts payable to a Lender under this Article V. shall be made as though
such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant
market bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount
of the LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided,
however, that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts payable under this Article V.



Section 5.8. Affected Lenders.



If (a) a Lender requests compensation pursuant to Section 3.12. or 5.1., and the Requisite
Lenders are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to
Continue, or to Convert Base Rate Loans into, LIBOR 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, or (c) a Lender does not vote in favor of any amendment, modification or
waiver to this Agreement which, pursuant to Section 13.6., requires the vote of all of the Lenders,
and the Requisite Lenders shall have voted in favor of such amendment, modification or waiver then,
so long as there 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



 


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accordance with the provisions of Section 13.5.(d) for a purchase price equal to the aggregate
principal balance of all Loans then owing to the Affected Lender plus 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 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 Agent, such Affected Lender nor 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 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 3.12., 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
following conditions precedent:



(a) The Agent shall have received each of the following (subject to Section 6.3. in the case
of clauses (iv) and (v)), in form and substance satisfactory to the Agent:




(i) counterparts of this Agreement executed by each of the parties hereto;




(ii) Revolving Notes executed by the Borrower, payable to each Lender and complying
with the applicable provisions of Section 2.10., and the Swingline Note executed by the
Borrower;




(iii) the Guaranty executed by the Parent and each Material Subsidiary (other than an
Excluded Subsidiary or a Foreign Subsidiary) existing as of the Effective Date;




(iv) a copy of the articles of incorporation, articles of organization, certificate of
limited partnership or other comparable organizational instrument (if any) of the Borrower
and each other Loan Party certified (x) by the Secretary of State of the state of formation
of such Loan Party as of a date not more that 6 months prior to the delivery thereof to the
Agent and (y) 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 date of delivery thereof to the Agent;




(v) a copy of a certificate of good standing or certificate of similar meaning with
respect to each Loan Party issued by the Secretary of State of the state of formation of
each such Loan Party and copies of certificates of qualification to transact business or
other comparable certificates issued 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


 


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qualified and where the failure to be so qualified could reasonably be expected to have a
Material Adverse Effect, in each case, issued as of a date not more than 6 months prior to
the date of delivery thereof to the Agent;




(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, and the officers of the
Borrower then authorized to deliver Notices of Borrowing, Notices of Swingline Borrowings,
Notices of Continuation and Notices of Conversion and to request the 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 (i) 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 (ii) 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, addressed to the Agent, the Lenders
and the Swingline Lender, addressing the matters set forth in Exhibit I;




(ix) the Fees then due and payable under Section 3.6., and any other Fees payable to
the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;




(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) evidence that arrangements have been made for the termination and release of the
existing Security Documents (as defined in the Existing Credit Agreement) upon the
occurrence of the Effective Date; and




(xii) such other documents, agreements and instruments as the Agent on behalf of the
Lenders may reasonably request; and




(b) In the good faith and reasonable judgment of the Agent and the Lenders:




(i) there shall not have occurred or become known to the 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 other Subsidiaries delivered to the Agent and the Lenders prior
to the Agreement Date that has had or could reasonably be expected to result in a Material
Adverse Effect;


 


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(ii) 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 (1) result in a Material Adverse Effect or (2) restrain or enjoin, impose
materially burdensome conditions on, or otherwise materially and adversely affect the
ability of any Loan Party to fulfill its obligations under the Loan Documents to which it is
a party; and




(iii) the Parent, the Borrower and its other 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 (1) any Applicable Law or
(2) any agreement, document or instrument to which the Borrower or any other 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, 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.



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.



Section 6.2. Conditions Precedent to All Loans and Letters of Credit.



The obligations of the Lenders to make any Loans, of the Agent to issue Letters of Credit, and
of the Swingline Lender to make any Swingline Loan are all subject to the further condition
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 (b) the representations and warranties made or deemed made by each Loan Party
in the Loan Documents to which any of them is a party, shall be true and correct in all material
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 on and as
of such earlier date) and except for changes in factual circumstances not prohibited under the Loan
Documents. Each Credit Event shall constitute a certification by the Borrower to the effect set
forth 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 Agent prior to the date of such Credit
Event, as of the date of the occurrence of such Credit Event). In addition, if such Credit Event
is the making of a Loan or the issuance of a Letter of Credit, the Borrower shall be deemed to have
represented to the Agent and the Lenders at the time such Loan is made or Letter of Credit issued
that all conditions to the occurrence of such Credit Event contained in Article VI. have been
satisfied.


 


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Section 6.3. Conditions Subsequent.



Notwithstanding the requirements of clauses (iv) and (v) of Section 6.1.(a), the Borrower may
deliver to the Agent each of the following items not later than March 23, 2007:



(a) a copy of the articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of the Borrower and each other
Loan Party certified by the Secretary of State of the state of formation of such Loan Party as of a
date not more that 6 months prior to the delivery thereof to the Agent; and



(b) a copy of a certificate of good standing or certificate of similar meaning with respect to
each Loan Party issued by the Secretary of State of the state of formation of each such Loan Party
and copies of certificates of qualification to transact business or other comparable certificates
issued 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 the failure to be so
qualified could reasonably be expected to have a Material Adverse Effect, in each case, issued as
of a date not more than 6 months prior to the date of delivery thereof to the Agent.



Article VII. Representations and Warranties




Section 7.1. Representations and Warranties.



In order to induce the Agent and each Lender to enter into this Agreement and to make Loans
and issue Letters of Credit, the Parent and the Borrower represent and warrant to the Agent and
each Lender as follows:



(a) Organization; Power; Qualification. Each of the Parent, the Borrower, the other
Loan Parties and each other Subsidiary is a corporation, partnership 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, 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 Agreement 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 or a Significant Subsidiary. Except as
disclosed in such Schedule, as of the Agreement Date (i) 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,
(ii) all of the issued and outstanding capital stock of each such Person organized as a corporation



 


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is validly issued, fully paid and nonassessable and (iii) 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
Agreement 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 Agreement, Etc. 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. Each 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 to which it is a party in
accordance with their respective terms and to consummate the transactions contemplated hereby and
thereby. The Loan Documents 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 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 and the other Loan Documents to which any Loan Party is a
party 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 any 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 any 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.



(e) Compliance with Law; Governmental Approvals. Each Loan Party 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 such Loan Party 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 Agreement Date, Part I of Schedule 7.1.(f)
is a complete and correct listing of all of the real property owned or leased by the Parent, the
Borrower and each other Subsidiary. Each such Person 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 Agreement Date, there are no Liens against any assets of the



 


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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. Schedule 7.1.(g) is, as of December 31, 2006, a complete
and correct listing of all Indebtedness of the Parent and its Subsidiaries, including without
limitation, Guarantees of the Parent and its Subsidiaries, and indicating whether such Indebtedness
is Secured Indebtedness or Unsecured Indebtedness. Except as set forth on Schedule 7.1.(g), during
the period from such date to the Agreement Date, neither the Parent nor any Subsidiary incurred any
material Indebtedness.



(h) Material Contracts. Excluding Material Contracts evidencing Indebtedness listed
on Schedule 7.1.(g), if any, Schedule 7.1.(h) is, as of the Agreement 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 the Parent, are there any actions,
suits or proceedings threatened) against or in any other way relating adversely to or affecting the
Parent or any of its Subsidiaries 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 could reasonably be
expected to have a Material Adverse Effect.



(j) Taxes. Subject to applicable extensions, all federal, state and other tax returns
of the Parent and its Subsidiaries required by Applicable Law to be filed have been duly filed, and
all federal, state and other taxes, assessments and other governmental charges or levies upon the
Parent and its Subsidiaries 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
or any of its Subsidiaries is under audit. All charges, accruals and reserves on the books of the
Parent and each of its Subsidiaries and each other Loan Party in respect of any taxes or other
governmental charges are in accordance with GAAP.



(k) Financial Statements. The Parent has furnished to each Lender copies of (i) the
audited consolidated balance sheet of the Parent and its consolidated Subsidiaries for the fiscal
year ending December 31, 2005, and the related audited consolidated statements of operations, cash
flows and shareholders’ equity for the fiscal year ending 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 ending September 8, 2006, and the related unaudited
consolidated statements of operations, cash flows and shareholders’ equity of the Parent and its
consolidated Subsidiaries for the period of three fiscal quarters ending on such date. Such
financial statements (including in each case related schedules and notes) present fairly, in all
material respects and 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



 


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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 in the notes thereto, except as referred
to or reflected or provided for in said financial statements.



(l) No Material Adverse Change. Since December 31, 2005, 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 Loan Parties is Solvent.



(m) ERISA. Each member of the ERISA Group is in compliance with its obligations under
the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and
is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or
Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting
of a bond or other security under ERISA or the Internal Revenue Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA.



(n) Not Plan Assets; No Prohibited Transaction. None of the assets of the Parent, the
Borrower or any Subsidiary constitutes “plan assets” within the meaning of ERISA, the Internal
Revenue Code and the respective regulations promulgated thereunder. 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 Parent, the Borrower or any other Subsidiary is
in default under its articles of incorporation, 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 or any other Subsidiary under any agreement (other than this
Agreement) or judgment, decree or order to which the Parent, the Borrower or any other Subsidiary
is a party or by which the Parent, the Borrower or any other Subsidiary or any of their 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. Each of the Parent, the Borrower and its other Subsidiaries
has obtained all Governmental Approvals which are required under Environmental Laws and is



 


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in compliance with all terms and conditions of such Governmental Approvals which 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 be reasonably expected to have a Material Adverse
Effect, (i) neither the Parent or the Borrower is aware of, and has received notice of, any past,
present, or future events, conditions, circumstances, activities, practices, incidents, actions, or
plans which, with respect to the Parent, the Borrower or any of its other Subsidiaries, may
interfere with or prevent compliance or continued compliance with Environmental Laws, or may give
rise to any common-law or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or handling or the
emission, discharge, release or threatened release into the environment, of any Hazardous Material;
and (ii) there is no civil, criminal, or administrative action, suit, demand, claim, hearing,
notice, or demand letter, notice of violation, investigation, or proceeding pending or, to the
Borrower’s knowledge after due inquiry, threatened, against the Parent, the Borrower or any of its
other Subsidiaries relating in any way to Environmental Laws.



(q) Investment Company; Etc. None of the Parent, the Borrower 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 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 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 or any other Subsidiary is a party to any transaction with an Affiliate.



(t) Intellectual Property. Each of the Parent, the Borrower and each other Subsidiary
owns or has the right to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark 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 known conflict with any patent,
license, franchise, trademark, 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 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.


 


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(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 or any of its other Subsidiaries ancillary to the transactions contemplated hereby.



(w) Accuracy and Completeness of Information. The written information, reports and
other data (excluding financial projections and other forward looking statements) furnished to the
Agent or any Lender by, on behalf of, or at the direction of, the Parent, the Borrower or any other
Subsidiary in connection with or relating in any way to this Agreement, taken as a whole, do not
contain any untrue statement of a fact material to the creditworthiness of the Parent, the Borrower
or any other Subsidiary and do not omit to state a material fact necessary in order to make such
statements contained therein, in light of the circumstances under which they were made, not
misleading. All financial statements (including in each case all related schedules and notes)
furnished to the Agent or any Lender by, on behalf of, or at the direction of, the Parent, the
Borrower or any other Subsidiary in connection with or relating in any way to this Agreement,
present fairly, in all material respects and in accordance with GAAP consistently applied
throughout the periods involved, 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). All financial projections and other
forward looking statements prepared by or on behalf of the Parent, the Borrower or any other
Subsidiary that have been or may hereafter be made available to the Agent or any Lender were or
will be prepared in good faith based on reasonable assumptions 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 the Parent or the Borrower which has had, or may in the future have (so
far as the Parent or the Borrower 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 other data or otherwise disclosed in writing to the Agent and the Lenders.



(x) REIT Status. For all dates after January 1, 2005, the Parent is organized and
operated in a manner such that upon its election of REIT status, it shall be treated as a REIT for
purposes of the Internal Revenue Code (beginning with the effective date of such election) and each
of its Subsidiaries that are corporations (if any) are organized and operated in a manner such that
upon such election they will qualify as Qualified REIT Subsidiaries or Taxable REIT Subsidiaries
(beginning with the effective date of such election), 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. For all dates thereafter, 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 (beginning with the
effective date of such election), 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 Borrowing Base Properties. Each of the Properties included in
calculations of the Unencumbered Borrowing Base Value satisfies all of the requirements contained
in the definition of “Eligible Unencumbered Borrowing Base Property” (except to the extent such
requirements were waived by the Requisite Lenders pursuant to Section 4.1.(c) at the time such
Property was approved as an Unencumbered Borrowing Base Property).


 


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(z) Foreign Assets Control. None of the Borrower, any Subsidiary or any Affiliate of
the Borrower: (i) is a Sanctioned Person, (ii) has any of its assets in Sanctioned Entities, or
(iii) derives any of its operating income from investments in, or transactions with, Sanctioned
Persons or Sanctioned Entities.



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 the Parent, the Borrower or any other Subsidiary to the Agent 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 the Parent and the Borrower prior to the Agreement Date and delivered to the Agent or any
Lender in connection with the underwriting or closing of the transactions contemplated hereby)
shall constitute representations and warranties made by the Parent and or the Borrower in favor of
the Agent or any of 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 2.12. and the date of the occurrence of any 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 Requisite Lenders (or, if required
pursuant to Section 13.6., all of the 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 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.


 


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Section 8.2. Compliance with Applicable Law and Material Contracts.



The Parent and the Borrower shall, and shall cause each 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 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 its Subsidiaries taken as a whole to, carry
on the business as described in Section 7.1.(u).



Section 8.5. Insurance.



The Parent and the Borrower shall, and shall cause each Subsidiary to, maintain insurance (on
a replacement cost basis) with financially sound and reputable insurance companies (with an A.M.
Best policyholders rating of at least A-IX (with respect to liability) or A-X (with respect to
property damage)) 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, and from time to time deliver to the
Agent upon its request 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; provided, that so
long as Marriott International, Inc. or its affiliates are property managers of any Property,
insurance with respect to such Property may be maintained under the blanket policy provided by
Marriott International, Inc.



Section 8.6. Payment of Taxes and Claims.



The Parent and the Borrower shall, and shall cause each Subsidiary to, pay and discharge
before delinquent (a) all 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; provided,



 


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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 the Parent, the Borrower or such Subsidiary, as applicable, in accordance with GAAP or
(ii) to the extent covered by title insurance.



Section 8.7. Visits and Inspections.



The Parent and the Borrower shall, and shall cause each Subsidiary to, permit representatives
or agents of any Lender or the 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; (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 Agent, the Parent and the Borrower shall
execute an authorization letter addressed to their accountants authorizing the Agent or any Lender
to discuss the financial affairs of the Parent, the Borrower and any other Subsidiary with their
accountants. The Parent may designate a representative to accompany any Lender or Agent in
connection with such visits, inspections and discussion unless a Default or Event of Default
exists. The exercise by a Lender or the Agent of its rights under this Section shall be at the
expense of such Lender or the Agent, as applicable, unless an Event of Default shall exist in which
case such exercise shall be at the expense of the Borrower.



Section 8.8. Use of Proceeds; Letters of Credit.



The Borrower shall use the proceeds of the Loans and the Letters of Credit for general
corporate purposes only, to include, without limitation, acquisitions, repayment of Indebtedness,
capital expenditures, working capital, short-term bridge advances and payment of fees and expenses
related to this Agreement and the other transactions contemplated by this Agreement and the other
Loan Documents. No part of the proceeds of any Loan or Letter of Credit will be used (a) for the
purpose of buying or carrying “margin stock” within the meaning of Regulation U 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 or (b) to fund any operations in, to finance any investments or
activities in, or make any payments to, a Sanctioned Person or Sanctioned Entity.



Section 8.9. Environmental Matters.



The Parent and the Borrower shall, and shall cause all of the Subsidiaries 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 notice that
any violation of any Environmental Law may have been committed or is about to be committed by such
Person, (b) receive notice that any administrative or judicial complaint or



 


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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 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 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 the Subsidiaries to,
take promptly 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 Agent or (iii) which could not reasonably
be expected to have a Material Adverse Effect).



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 Agent,
execute and deliver or cause to be executed and delivered, to the 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 Agent to carry out more effectively the existing 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.



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 the
subject of price quotations in the over-the-counter market as reported by the National Association
of Securities Dealers Automated Quotation System.



Section 8.14. Additional Guarantors.



(a) Within 30 days of any Person (other than an Excluded Subsidiary or a Foreign Subsidiary)
becoming a Material Subsidiary after the Effective Date, the Borrower shall deliver



 


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to the Agent each of the following items, each in form and substance satisfactory to the Agent:
(i) an Accession Agreement executed by such Material Subsidiary and (ii) the items with respect to
such Material Subsidiary that would have been delivered under Sections 6.1.(a)(iv) through (viii)
if such Material Subsidiary had been one on the Effective Date (without taking into account the
effect of Section 6.3.); 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) The Borrower may, at its option, cause any Subsidiary that is not already a Guarantor to
become a Guarantor by executing and delivering to the Agent the items required to be delivered
under Section 4.1.(d) with respect to a Subsidiary that owns or leases an Unencumbered Borrowing
Base Property.



Section 8.15. Release of Guarantors.



The Borrower may request in writing that the Agent release, and upon receipt of such request
the Agent shall release (subject to the terms of the Guaranty), a Guarantor from the Guaranty so
long as: (i) such Guarantor meets, or will meet simultaneously with its release from the Guaranty,
all of the provisions of the definition of the term “Excluded Subsidiary” or has ceased to be, or
simultaneously with its release from the Guaranty will cease to be, a Material Subsidiary or a
Subsidiary, or in the case of a Material Subsidiary that does not own or lease an Unencumbered
Borrowing Base Property, such release will not result in a violation of Section 10.1.(h); (ii) such
Guarantor is not otherwise required to be a party to the Guaranty under the immediately preceding
subsection (a); (iii) no 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.; and (iv) the Agent shall have
received such written request at least 10 Business Days prior to the requested date of release.
Delivery by the Borrower to the 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. If such Guarantor owns an Unencumbered Borrowing Base Property, then the
release of such Guarantor shall also be subject to and in accordance with Section 4.2. The 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.



Article IX. Information




For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 13.6., all of the Lenders) shall otherwise consent in the manner set forth in
Section 13.6., the Borrower shall furnish to each Lender (or to the Agent if so provided below) at
its Lending Office:


 


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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 50 days after the end of
each of the first, second and third fiscal quarters of the Parent), the unaudited consolidated
balance sheet of the Parent and its Subsidiaries as of 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
executive officer, 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 Commission (or any
Governmental Authority substituted therefore) and is publicly available to the 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 executive officer, chief financial officer
or chief accounting officer of the Parent, in his or her opinion, to present fairly, in accordance
with GAAP, 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 independent certified public accountants of recognized
national standing acceptable to the Agent, whose certificate shall be unqualified; 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 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 Sections 11.1.(a),
11.1.(b) and 11.1.(f) or a Default specified in Section 11.1.(g) may occur, then within 10 days of
the Agent’s request with respect to any other fiscal period, a certificate substantially in the
form of Exhibit J (a “Compliance Certificate”) executed by the chief financial officer or chief
accounting officer of the Parent: (a) setting forth in reasonable detail as at the end of such
quarterly accounting period, fiscal year, or other fiscal period, as the case may be, the
calculations required to establish whether or not the Borrower was in compliance with the



 


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covenants contained in Sections 10.1., 10.2. and 10.4., and (b) stating that, to the best of his or
her knowledge, information and belief after due inquiry, no Default or Event of Default 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 report, in form and detail reasonably satisfactory to the Agent,
setting forth a statement of Funds From Operations for the fiscal period then ending; and (B) 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.



Section 9.4. Other Information.



(a) Management Reports. Promptly upon receipt thereof, copies of all management
reports, if any, submitted to the Parent or its Board of Directors by its independent public
accountants;



(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 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, or any other
Subsidiary shall file with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor) or any national securities exchange;



(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
and promptly upon the issuance thereof copies of all press releases issued by the Parent, the
Borrower or any other Subsidiary;



(d) Partnership Information. Promptly upon the mailing thereof to the partners of the
Borrower generally, copies of all financial statements, reports and proxy statements so mailed;



(e) Quarterly Property Schedules. At the time financial statements are furnished
pursuant to Sections 9.1. and 9.2., a schedule of all Properties owned or leased by the Parent, the
Borrower and each other Subsidiary of the Parent as of the fiscal quarter most recently ended, and
the applicable Net Operating Income of each such Property, such schedule certified by the chief
financial officer or chief accounting officer of the Parent as true, correct and complete as of the
date such information is delivered;



(f) Development Property Updates. At the time financial statements are furnished
pursuant to Sections 9.1. and 9.2., a schedule of all Development Properties of the Parent, the
Borrower and each other Subsidiary which are under development as of the fiscal quarter most
recently ended, setting forth for each such Property its percentage of completion, the estimated
completion date, the total amount of development funded and the status of such development against
the development budget;



(g) Litigation. To the extent the Parent, the Borrower or any other Subsidiary is
aware of the same, prompt notice of the commencement of any proceeding or investigation by or



 


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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,
the Parent, the Borrower or any other Subsidiary or any of their 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 or
any of its Subsidiaries are being audited;



(h) 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 or any other
Subsidiary which has had or could reasonably be expected to have a Material Adverse Effect;



(i) 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;



(j) Judgments. Prompt notice of any order, judgment or decree in excess of $5,000,000
having been entered against the Parent, the Borrower or any other Subsidiary of any of their
respective properties or assets;



(k) Notice of Violations 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;



(l) Material Contracts. Promptly upon entering into any Material Contract after the
Agreement Date (other than a Material Contract evidencing Indebtedness), a copy to the Agent of
such Material Contract unless such Material Contract is otherwise publicly available to the 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 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 Agent and the Lenders;



(m) ERISA. If and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to
any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice;


 


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(iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement, and of which has
resulted or could reasonably be expected to result in the imposition of a Lien or the posting of a
bond or other security, 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;



(n) Patriot Act Information. From time to time and promptly upon each request,
information identifying the Borrower as a Lender may request in order to comply with the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001);



(o) Material/Significant Subsidiary. Prompt notice of any Person becoming a Material
Subsidiary or a Significant Subsidiary;



(p) Material Asset Sales. Prompt notice of the sale, transfer or other disposition of
any assets having an undepreciated book value of at least $20,000,000 of the Borrower, any
Subsidiary or any other Loan Party to any Person other than the Borrower, any Subsidiary or any
other Loan Party; and



(q) Other Information. From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further information regarding
the business, assets, liabilities, financial condition, results of operations or business prospects
of the Parent, the Borrower or any of its other Subsidiaries as the 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) The Borrower may deliver documents, materials and other information required to be
delivered pursuant to Article IX. (collectively, “Information”) in an electronic format acceptable
to the Agent by e-mailing any such Information to an e-mail address of the Agent as specified by
the Agent from time to time. The Agent shall promptly notify the Borrower of a change of any such
e-mail address of the Agent. The Agent shall promptly post such Information on the Borrower’s
behalf on an internet or intranet website to which each Lender and the Agent has access, whether a
commercial, third-party website (such as Intralinks or SyndTrak) or a website sponsored by the
Agent (the “Platform”). Such Information shall only be deemed to have been delivered to the
Lenders on the date on which such information is so posted.



(b) In addition, the Borrower may deliver Information required to be delivered pursuant to
Sections 9.1., 9.2., and 9.4.(b) and (c) by posting any such Information to the Parent’s internet
website (as of the Agreement Date, www.diamondrockhospitality.com) or when



 


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such information is available on the website of the Securities and Exchange Commission (or any
Governmental Authority substituted therefore)(as of the Agreement Date, www.sec.gov). Any such
Information provided in such manner shall only be deemed to have been delivered to the Agent or a
Lender (i) on the date on which the Agent or such Lender, as applicable, receives notice from the
Borrower that such Information has been posted to the Borrower’s internet website and (ii) only if
such Information is publicly available without charge on such website. If for any reason, the
Agent or a Lender either did not receive such notice or after reasonable efforts was unable to
access such website, then the Agent or such Lender, as applicable, shall not be deemed to have
received such Information. In addition to any manner permitted by Section 13.1., the Borrower may
notify the Agent or a Lender that Information has been posted to such a website by causing an
e-mail notification to be sent to an e-mail address specified from time to time by the Agent or
such Lender, as applicable.



(c) Notwithstanding anything in this Section to the contrary (i) the Borrower shall deliver
paper copies of Information to the Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given to the Borrower by
the Agent or such Lender and (ii) in every instance the Borrower shall be required to provide to
the Agent a paper original of the Compliance Certificate required by Section 9.3.



(d) The Borrower acknowledges and agrees that the Agent may make Information, as well as any
other written information, reports, data, certificates, documents, instruments, agreements and
other materials relating to the Borrower, any Subsidiary or any other Loan Party or any other
materials or matters relating to this Agreement, any of the other Loan Documents or any of the
transactions contemplated by the Loan Documents, in each case to the extent that the Agent’s
communication thereof to the Lenders is otherwise permitted hereunder (collectively, the
“Communications”) available to the Lenders by posting the same on the Platform. The Borrower
acknowledges that (i) the distribution of material through an electronic medium, such as the
Platform, is not necessarily secure and that there are confidentiality and other risks associated
with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither
the Agent nor any of its affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors or omissions in
the Communications or the Platform.



(e) The Agent shall have no obligation to request the delivery or to maintain copies of any of
the Information or other materials referred to above, and in no event shall have any responsibility
to monitor compliance by the Borrower with any such requests. Each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such Information or other
materials.



Section 9.6. Public/Private Information.



The Borrower will cooperate with the Agent in connection with the publication of certain
materials and/or information provided by or on behalf of the Borrower to the Agent and the Lenders
(collectively, “Information Materials”) pursuant to this Article and will 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



 


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federal and state securities laws, as “Public Information” and (b) that are not Public Information
as “Private Information”.



Article X. Negative Covenants




For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 13.6., all of the Lenders) shall otherwise consent in the manner set forth in
Section 13.6., the Parent and the Borrower shall comply with the following covenants, as
applicable:



Section 10.1. Financial Covenants.




The Parent shall not permit:



(a) Maximum Leverage Ratio. The ratio of (i) Total Indebtedness to (ii) Total Asset
Value, to exceed 0.65 to 1.00 at any time.



(b) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted EBITDA of the
Parent and its Subsidiaries for the fiscal quarter of the Parent most recently ending to (ii) Fixed
Charges for such period, to be less than 1.60 to 1.00 at any time.



(c) Floating Rate Indebtedness. The ratio of (i) Floating Rate Indebtedness of the
Parent and its Subsidiaries determined on a consolidated basis to (ii) Total Indebtedness, to
exceed 0.35 to 1.00 at any time.



(d) Minimum Tangible Net Worth. Tangible Net Worth at any time to be less than
(i) $500,000,000 plus (ii) 75% of the Net Tangible Proceeds of all Equity Issuances
effected by the Parent and its Subsidiaries after September 30, 2006 (other than Equity Issuances
to the Parent, the Borrower or any Subsidiary).



(e) Minimum Implied Debt Service Ratio. The ratio of (i) Unencumbered Borrowing Base
Property NOI for the period of twelve consecutive months most recently ended to
(ii) Implied Debt Service for such period, to be less than 1.50 to 1.00 at any time. If an
Unencumbered Borrowing Base Property has not continuously operated for at least one period of
twelve consecutive months, then the Unencumbered Borrowing Base Property NOI of such Unencumbered
Borrowing Base Property shall be calculated by annualizing the historical Net Operating Income of
such Unencumbered Borrowing Base 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 Agent.



(f) Maximum Unencumbered Leverage Ratio. The ratio of (i) Unsecured Indebtedness of
the Borrower and its Subsidiaries determined on a consolidated basis to (ii) the Unencumbered
Borrowing Base Value, to exceed 0.65 to 1.00 at any time.



(g) Minimum Number and Value of Unencumbered Borrowing Base Properties. The number of
Unencumbered Borrowing Base Properties to be less than 4 or the aggregate



 


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Unencumbered Borrowing Base Values of the Unencumbered Borrowing Base Properties to be less than
$150,000,000.



(h) Adjusted Total Asset Value. 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.



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, 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. If an Event of Default
specified in Section 11.1.(a), Section 11.1.(b), 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 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, a Default or Event of Default resulting from a
violation of any of the covenants contained in Section 10.1.



Section 10.4. Certain Permitted Investments.



The Parent and the Borrower shall not, and shall not permit any Subsidiary to, make any
Investment in or otherwise own the following items which would cause the aggregate value of such
holdings of the Parent, the Borrower and such other Subsidiaries to exceed the applicable limits
set forth below:



(a) Investments in Unconsolidated Affiliates and other Persons that are not Subsidiaries, such
that the aggregate value of such Investments (determined in a manner consistent with the definition
of Total Asset Value or, if not contemplated under the definition of Total Asset Value, as
determined in accordance with GAAP) exceeds 25.0% of Total Asset Value at any time;



(b) Development Properties, such that the aggregate current book value of all such Development
Properties exceeds 20.0% of Total Asset Value at any time;


 


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(c) Unimproved Land, such that the current book value of all Unimproved Land exceeds 10.0% of
Total Asset Value; and



(d) Mortgage Receivables, such that such that the aggregate value of such Mortgage Receivables
exceeds 10.0% of Total Asset Value.



In addition to the foregoing limitations, the aggregate value of all of the items subject to the
limitations in the preceding clauses (a) through (d) shall not exceed 30.0% of Total Asset Value at
any time.



Section 10.5. Investments Generally.



The Parent and the Borrower shall not, and shall not permit any 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 in existence on the Agreement Date and disclosed on Part I of
Schedule 7.1.(b);



(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 permitted under Section 10.4.;




(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) loans and advances to employees for moving, entertainment, travel and other similar
expenses in the ordinary course of business consistent with past practices; and



(g) 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. Liens; Negative Pledges; Other Matters.



(a) The Parent and the Borrower shall not, and shall not permit any 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.


 


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(b) The Parent and the Borrower shall not, and shall not permit any 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 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; or
(ii) 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.



(c) The Parent and the Borrower shall not, and shall not permit any 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) or (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).



Section 10.7. Merger, Consolidation, Sales of Assets and Other Arrangements.



The Parent and the Borrower shall not, and shall not permit any Subsidiary to: (i) enter into
any transaction of merger or consolidation; (ii) liquidate, wind up 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, any of its business or assets, 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, (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. and (z) if such action includes the
disposition of an Unencumbered Borrowing Base Property (regardless of whether such disposition
takes the form of a direct sale of such Unencumbered Borrowing Base Property,



 


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the sale of the Equity Interests of the Subsidiary that owns such Unencumbered Borrowing Base
Property or a merger of such Subsidiary), such Unencumbered Borrowing Base Property can and will be
released in accordance with Section 4.2.;



(b) the Parent, the Borrower 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, (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 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, and (iii) the Borrower shall have given the 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 Borrowing Base Property with and
into a Loan Party but the Borrower shall give the Agent notice of any such merger promptly
following the effectiveness of such merger); and



(d) the Parent, the Borrower and each other Subsidiary may sell, transfer or dispose of assets
among themselves.



Section 10.8. Fiscal Year.



The Parent shall not change its fiscal year from that in effect as of the Agreement Date;
provided, that if Marriot International, Inc. shall change its fiscal year to a calendar fiscal
year, the Parent may change its fiscal year to a calendar fiscal year.



Section 10.9. Modifications to Material Contracts.



The Parent and the Borrower shall not, and shall not permit any Subsidiary 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 Subsidiary to, amend,
supplement, restate or otherwise modify its articles or certificate of incorporation, by-laws,
operating agreement, declaration of trust, partnership agreement or other applicable organizational
document if such amendment, supplement, restatement or other modification could reasonably be
expected to have a Material Adverse Effect.


 


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Section 10.11. Transactions with Affiliates.



The Parent and the Borrower shall not, and shall not permit any 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 in the ordinary course of and
pursuant to the reasonable requirements of the business of the Parent, the Borrower or any of the
other Subsidiaries and upon fair and reasonable terms which are no less favorable to the Parent,
the Borrower or such 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 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.



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 or any other Loan Document, 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) The Borrower or the Parent shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 6.3., Section 9.4.(i) or in
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 such Loan Party obtains knowledge of such failure or (y) the date upon which the
Parent has received written notice of such failure from the 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



 


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furnished or made or deemed made by or on behalf of any Loan Party to the Agent 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 when furnished or made or deemed made.




(e) Indebtedness Cross-Default; Derivatives Contracts.




(i) any Loan Party 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)
having an aggregate outstanding principal amount of $10,000,000 or more (or $20,000,000 or
more in the case of Nonrecourse Indebtedness) (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 or repurchased prior to the
stated maturity thereof;




(iii) any other event shall have occurred and be continuing which permits any holder or
holders of 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 or repurchased prior to its stated
maturity; or




(iv) there occurs under any Derivatives Contract an Early Termination Date (as defined
in such Derivatives Contract) resulting from (A) any event of default under such Derivatives
Contract as to which any Loan Party is the Defaulting Party (as defined in such Derivatives
Contract) or (B) any Termination Event (as so defined) under such Derivatives Contract as to
which any Loan Party is an Affected Party (as so defined) and, in either event, the
Derivatives Termination Value owed by any Loan Party as a result thereof is $10,000,000 or
more.



(f) Voluntary Bankruptcy Proceeding. Any Loan Party or any Significant Subsidiary
shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as amended, 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



 


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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 of 1978, as amended, 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 such Person, and
such case or proceeding shall continue undismissed or unstayed for a period of 60 consecutive
calendar 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) Litigation; Enforceability. Any Loan Party shall disavow, revoke or terminate (or
attempt to terminate) any Loan Document 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 this Agreement, any Note or any other Loan Document or this
Agreement, any Note, the Guaranty or any other Loan Document shall cease to be in full force and
effect (except as a result of the express terms thereof or hereof).



(i) Judgment. A judgment or order for the payment of money or for an injunction shall
be entered against any 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 Party or any
other Subsidiary, $10,000,000 or (B) in the case of an injunction or other non-monetary judgment,
such judgment 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, $10,000,000 in amount in
the case of a Loan Party, or $20,000,000 in amount in the case of any other Subsidiary that is not
a Loan Party and, in each case, such warrant, writ, execution or process shall not be 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 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.


 


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(k) ERISA. Any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $10,000,000 which it shall have become liable to pay under Title
IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities
in excess of $10,000,000 shall be filed under Title IV of ERISA by any member of the ERISA Group,
any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Plan or
Plans having aggregate Unfunded Liabilities in excess of $10,000,000; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan must
be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment obligation in excess
of $10,000,000.



(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), 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:


 


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(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)(i) the principal of, and all accrued interest on, the
Loans and the Notes at the time outstanding, (ii) 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 Collateral Account pursuant to Section 11.5. and (iii) all of the other
Obligations of the Borrower, including, but not limited to, the other amounts owed to the
Lenders, the Swingline Lender and the Agent under this Agreement, the Notes or any of the
other Loan Documents shall become immediately and automatically due and payable by the
Borrower without presentment, demand, protest, or other notice of any kind, all of which are
expressly waived by the Borrower and (B) all of the Commitments, the obligation of the
Lenders to make Revolving Loans, the Swingline Commitment, the obligation of the Swingline
Lender to make Swingline Loans, and the obligation of the Agent to issue Letters of Credit
hereunder, shall all immediately and automatically terminate.




(ii) Optional. If any other Event of Default shall exist, the Agent shall, at
the direction of the Requisite Lenders: (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
other Event of Default for deposit into the 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 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 and (B) terminate the Commitments and the obligation of the Lenders
to make Loans hereunder and the obligation of the Agent to issue Letters of Credit
hereunder. Further, if the Agent has exercised any of the rights provided under the
preceding sentence, the Swingline Lender shall: (x) declare the principal of, and accrued
interest on, the Swingline Loans and the Swingline Note at the time outstanding, and all of
the other Obligations owing to the Swingline Lender, 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 and
(y) terminate the Swingline Commitment and the obligation of the Swingline Lender to make
Swingline Loans.



(b) Loan Documents. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise any and all of its rights under any and all of the other Loan
Documents.



(c) Applicable Law. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise all other rights and remedies it may have under any Applicable Law.


 


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(d) Appointment of Receiver. To the extent permitted by Applicable Law, the Agent and
the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the
Borrower and its 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 business operations of the Borrower and its
Subsidiaries and to exercise such power as the court shall confer upon such receiver.



Section 11.3. Remedies Upon Default.



Upon the occurrence of a Default specified in Section 11.1.(g), the Commitments shall
immediately and automatically terminate.



Section 11.4. Allocation of Proceeds.




If an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the Borrower hereunder
or thereunder, shall be applied in the following order and priority:




(a) amounts due to the Agent in respect of fees and expenses due under Section 13.2.;




(b) amounts due to the Lenders in respect of fees and expenses due under Section 13.2.,
pro rata in the amount then due each Lender;




(c) payments of interest on Swingline Loans;




(d) payments of interest on all other Loans and Reimbursement Obligations, to be
applied for the ratable benefit of the Lenders;




(e) payments of principal of Swingline Loans;




(f) payments of principal of all other Loans, Reimbursement Obligations and other
Letter of Credit Liabilities, to be applied for the ratable benefit of the Lenders;
provided, however, to the extent that any amounts available for distribution pursuant to
this subsection are attributable to the issued but undrawn amount of an outstanding Letters
of Credit, such amounts shall be paid to the Agent for deposit into the Collateral Account);




(g) amounts due the Agent and the Lenders pursuant to Sections 12.7. and 13.9.;




(h) payments of all other Obligations and other amounts due and owing by the Borrower
and the other Loan Parties under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and


 


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(i) any amount remaining after application as provided above, shall be paid to the
Borrower or whomever else may be legally entitled thereto.



Section 11.5. 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 Agent, for the
ratable benefit of the Agent and the Lenders as provided herein, a security interest in all of its
right, title and interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein provided for below).
The balances from time to time in the Collateral Account shall not constitute payment of any Letter
of Credit Liabilities until applied by the Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal
only as provided in this Section.



(b) Amounts on deposit in the Collateral Account shall be invested and reinvested by the Agent
in such Cash Equivalents as the 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
Agent for the ratable benefit of the Lenders. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Collateral Account and shall be deemed to have
exercised such care if such funds are accorded treatment substantially equivalent to that which the
Agent accords other funds deposited with the Agent, it being understood that the 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 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 Agent to use the monies deposited
in the Collateral Account to make payment to the beneficiary with respect to such drawing or the
payee with respect to such presentment.



(d) If an Event of Default exists, the Requisite Lenders may, in their discretion, at any time
and from time to time, instruct the Agent to liquidate any such investments and reinvestments and
apply proceeds thereof to the Obligations in accordance with Section 11.4.



(e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in
the Collateral Account exceed the aggregate amount of the Letter of Credit Liabilities then due and
owing, the Agent shall, from time to time, at the request of the Borrower, deliver to the Borrower
within 10 Business Days after the Agent’s receipt of such request from the Borrower, against
receipt but without any recourse, warranty or representation whatsoever, such of the balances in
the Collateral Account as exceed the aggregate amount of the Letter of Credit Liabilities at such
time.



(f) The Borrower shall pay to the Agent from time to time such fees as the Agent normally
charges for similar services in connection with the Agent’s administration of the Collateral
Account and investments and reinvestments of funds therein.


 


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Section 11.6. Performance by Agent.



If the Borrower shall fail to perform any covenant, duty or agreement contained in any of the
Loan Documents, the Agent may, after notice to the Borrower, perform or attempt to perform such
covenant, duty or agreement on behalf of the Borrower after the expiration of any cure or grace
periods set forth herein. In such event, the Borrower shall, at the request of the Agent, promptly
pay any amount reasonably expended by the Agent in such performance or attempted performance to the
Agent, together with interest thereon at the applicable Post-Default Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, neither the 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 11.7. Rights Cumulative.



The rights and remedies of the Agent and the Lenders under this Agreement and each of the
other Loan Documents 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 Agent and the Lenders may be selective and no failure or delay by the Agent 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.



Article XII. The Agent




Section 12.1. Authorization and Action.



Each Lender hereby appoints and authorizes the 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 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 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 Agent a trustee
or fiduciary for any Lender nor to impose on the Agent duties or obligations other than those
expressly provided for herein. At the request of a Lender, the Agent will forward to such Lender
copies or, where appropriate, originals of the documents delivered to the Agent pursuant to this
Agreement or the other Loan Documents. The Agent will also furnish to any Lender, upon the request
of such Lender, a copy of any certificate or notice furnished to the Agent by the Borrower, any
Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement or any other Loan
Document not already delivered 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 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



 


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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 Agent shall not be required to take
any action which exposes the 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 Agent shall not
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 so directed the Agent to
exercise such right or remedy.



Section 12.2. Agent’s Reliance, Etc.



Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither
the Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any
action taken or omitted to be taken by it or them under or in connection with this Agreement or any
other Loan Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable judgment. Without
limiting the generality of the foregoing, the Agent: (a) may treat the payee of any Note as the
holder thereof until the Agent receives written notice of the assignment or transfer thereof signed
by such payee and in form satisfactory to the Agent; (b) 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; (c) makes no warranty or representation to any Lender or any other Person and shall not
be responsible to any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan Document; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any 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 Parent, the Borrower or other Persons or inspect the property, books or records of the Parent,
the Borrower or any other Person; (e) shall not be responsible to any Lender 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 Agent on behalf of the
Lenders in any such collateral; and (f) shall incur no 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 or telecopy) believed by it to be genuine and
signed, sent or given by the proper party or parties. 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
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 Defaults.



The Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or
Event of Default unless the Agent has received notice from a Lender or the Borrower



 


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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 Agent) becomes aware of any Default or Event of Default, it shall
promptly send to the Agent such a “notice of default.” Further, if the Agent receives such a
“notice of default”, the Agent shall give prompt notice thereof to the Lenders.



Section 12.4. Wachovia as Lender.



Wachovia, as a Lender, shall have the same rights and powers under this Agreement and any
other Loan Document as any other Lender and may exercise the same as though it were not the Agent;
and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include Wachovia in
each case in its individual capacity. Wachovia 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 Parent,
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 other Lenders. Further, the Agent and any affiliate
may accept fees and other consideration from the Loan Parties for services in connection with this
Agreement and otherwise without having to account for the same to the other Lenders. The Lenders
acknowledge that, pursuant to such activities, Wachovia or its affiliates may receive information
regarding the Parent, 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 Agent shall be under no obligation to provide such information to them.



Section 12.5. Approvals of Lenders.



All communications from the Agent to any Lender requesting such Lender’s determination,
consent, approval or disapproval (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,
approval, consent or disapproval 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, (c) shall include, if reasonably requested by such Lender and to the extent
not previously provided to such Lender, written materials and, as appropriate, a brief summary of
all oral information provided to the Agent by the Parent or the Borrower in respect of the matter
or issue to be resolved, and (d) shall include the Agent’s recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in any event within 10
Business Days (or such lesser or greater period as may be specifically required under the Loan
Documents) of receipt of such communication. Except as otherwise provided in this Agreement,
unless a Lender shall give written notice to the Agent that it specifically objects to the
recommendation or determination of the Agent (together with a written explanation of the reasons
behind such objection) within the applicable time period for reply, such Lender shall be deemed to
have conclusively approved of or consented to such recommendation or determination.


 


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Section 12.6. Lender Credit Decision, Etc.



Each Lender expressly acknowledges and agrees that neither the Agent nor any of its officers,
directors, employees, agents, counsel, attorneys-in-fact or other affiliates has made any
representations or warranties as to the financial condition, operations, creditworthiness, solvency
or other information concerning the business or affairs of the Parent, the Borrower, any other Loan
Party, any Subsidiary or any other Person to such Lender and that no act by the Agent hereafter
taken, including any review of the affairs of the Parent, the Borrower, any other Loan Party or any
other Subsidiary, shall be deemed to constitute any such representation or warranty by the Agent to
any Lender. Each Lender 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 Agent, any other Lender or counsel to the Agent, or any of their
respective officers, directors, employees and agents, and based on the financial statements of the
Parent, the Borrower, the other Subsidiaries or any 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 Lender also acknowledges that
it will, independently and without reliance upon the Agent, any other Lender or counsel to the
Agent or any of their respective officers, directors, employees and agents, 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. Except for
notices, reports and other documents and information expressly required to be furnished to the
Lenders by the Agent under this Agreement or any of the other Loan Documents, the Agent shall have
no duty or responsibility to provide any Lender 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 Agent, or any of its officers, directors, employees, agents, attorneys-in-fact or other
affiliates. Each Lender acknowledges that the Agent’s legal counsel in connection with the
transactions contemplated by this Agreement is only acting as counsel to the Agent and is not
acting as counsel to such Lender.



Section 12.7. Indemnification of Agent.



Each Lender agrees to indemnify the 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 Commitment Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by, or asserted against the Agent
(in its capacity as 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
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 Agent’s gross negligence or willful misconduct as determined by a court of competent
jurisdiction in a final, non-appealable judgment or if the Agent fails to follow the written
direction of the Requisite Lenders (or all of the Lenders if expressly required hereunder) unless
such failure results from the Agent following



 


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the advice of counsel to the Agent of which advice the Lenders have received notice. Without
limiting the generality of the foregoing but subject to the preceding proviso, each Lender agrees
to reimburse the 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 ratable share of any
out-of-pocket expenses (including counsel fees of the counsel(s) of the Agent’s own choosing)
incurred by the Agent in connection with the preparation, negotiation, execution, or enforcement
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 Agent to enforce the terms of the Loan Documents
and/or collect any Obligations, any “lender liability” suit or claim brought against the Agent
and/or the Lenders, and any claim or suit brought against the Agent, and/or the Lenders arising
under any Environmental Laws. Such out-of-pocket expenses (including counsel fees) shall be
advanced by the Lenders on the request of the Agent notwithstanding any claim or assertion that the
Agent is not entitled to indemnification hereunder upon receipt of an undertaking by the Agent that
the Agent will reimburse the Lenders if it is actually and finally determined by a court of
competent jurisdiction that the 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 Agent for any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall share such
reimbursement on a ratable basis with each Lender making any such payment.



Section 12.8. Successor Agent.



The Agent may resign at any time as Agent under the Loan Documents by giving written notice
thereof to the Lenders and the Borrower. The Agent may be removed as Agent under the Loan
Documents for gross negligence or willful misconduct upon 30-day’s prior written notice by all
Lenders (other than the Lender then acting as Agent). Upon any such resignation or removal, the
Requisite Lenders shall have the right to appoint a successor 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 its affiliates as a successor Agent). If no
successor 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 Agent’s giving of
notice of resignation or the giving of notice of the removal of the Agent, then the resigning or
removed Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a Lender, if
any Lender shall be willing to serve, and otherwise shall be a commercial bank having total
combined assets of at least $50,000,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents. Such successor Agent
shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or shall make other arrangements satisfactory to the current Agent, in
either case, to assume effectively the obligations of the current Agent with respect to such
Letters of Credit. After any Agent’s resignation or removal hereunder as Agent, 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 Agent under the Loan Documents.


 


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Section 12.9. Titled Agents.



Each of the Titled Agents 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 of “Sole Lead
Arranger”, “Book Manager”, “Syndication Agent” and “Documentation Agent” are solely honorific and
imply no fiduciary responsibility on the part of the Titled Agents to the Agent, the Borrower or
any Lender 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.



Article XIII. Miscellaneous




Section 13.1. Notices.



Unless otherwise provided herein, communications provided for hereunder shall be in writing
and shall be mailed, telecopied or delivered as follows:




If to the Borrower:




DiamondRock Hospitality Limited Partnership

6903 Rockledge Dr., Suite 800

Bethesda, Maryland 20817

Attn: Michael Schecter

Telephone: (240) 744-1170

Telecopy:   (240) 744-1199




With a copy to:




Willkie Farr & Gallagher LLP

787 Seventh Ave.

New York, New York 10019

Attn: Steven D. Klein

Telephone: (212) 728-8221

Telecopy:   (212) 728-8111




If to the Agent:




Wachovia Bank, National Association

301 S. College Street, NC0172

Charlotte, North Carolina 28288

Attn: David M. Blackman

Telephone: (704) 374-6272

Telecopy:   (704) 383-6205


 


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If to a Lender:




To such Lender’s address or telecopy number, as applicable, set forth in its
Administrative Details Form;



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. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered or sent by overnight courier, when delivered.
Notwithstanding the immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually received. Neither the Agent nor
any Lender shall incur any liability to the Borrower (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement which the Agent 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 any other Person.



Section 13.2. Expenses.



The Borrower agrees (a) to pay or reimburse each of the Agent and the Arranger 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 travel expenses relating to closing), and the
consummation of the transactions contemplated thereby, including the reasonable fees and
disbursements of counsel to the Agent and the Arranger and costs and expenses in connection with
the use of IntraLinks, Inc., Syndtrak or other similar information transmission systems in
connection with the Loan Documents, (b) to pay or reimburse the Agent, the Arranger 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, including the reasonable 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 Agent
pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless the Agent, the Arranger
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 Agent, the Arranger and the Lenders for all their costs and expenses incurred in connection
with any bankruptcy or other proceeding of the type described in Sections 11.1.(f) or 11.1.(g),
including the reasonable fees and disbursements of counsel to the Agent, the Arranger and any
Lender, 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 Agent, and/or the
Lenders may pay such amounts on behalf of the Borrower



 


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and either deem the same to be Loans outstanding hereunder or otherwise 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 Agent, each Lender and each
Participant is hereby authorized by the Borrower, at any time or from time to time during the
continuance of an Event of Default, without prior notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, but in the case of a Lender or Participant subject
to receipt of the prior written consent of the Agent exercised in its 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 Agent, such Lender or any affiliate of the
Agent or such Lender, 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.



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 AGENT 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 AGENT, 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, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF
ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT 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 AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, OR, AT THE OPTION OF THE AGENT, ANY STATE
COURT LOCATED IN THE BOROUGH OF MANHATTAN OF NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF
THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE PARENT,
THE BORROWER AND EACH OF THE LENDERS EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS



 


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OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH 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
AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT 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) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, except that neither the
Parent or the Borrower may assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders and any such assignment or other
transfer to which all of the Lenders have not so consented shall be null and void.



(b) Any Lender may make, carry or transfer Loans at, to or for the account of any of its
branch offices or the office of an affiliate of such Lender except to the extent such transfer
would result in increased costs to the Borrower.



(c) Any Lender may at any time grant to one or more banks or other financial institutions
(each a “Participant”) participating interests in its Commitment or the Obligations owing to such
Lender; provided, however, (i) any such participating interest must be for a constant and not a
varying percentage interest, and (ii) after giving effect to any such participation by a Lender,
the amount of its Commitment, or if the Commitments have been terminated, the aggregate outstanding
principal balance of Notes held by it, in which it has not granted any participating interests must
be equal to $10,000,000. Except as otherwise provided in Section 13.3., no Participant shall have
any rights or benefits under this Agreement or any other Loan Document. In the event of any such
grant by a Lender of a participating interest to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided, however, such Lender may agree with the Participant that it will not, without the consent
of the Participant, agree to


 


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(i) increase, or extend the term (to the extent consent is required with respect thereto) or extend
the time or waive any requirement for the reduction or termination of, such Lender’s Commitment,
(ii) extend the date fixed for the payment of principal of or interest on the Loans or portions
thereof owing to such Lender, (iii) reduce the amount of any such payment of principal, (iv) reduce
the rate at which interest is payable thereon or (v) release any Guarantor (except as otherwise
permitted under Section 4.2.). An assignment or other transfer which is not permitted by
subsection (d) or (e) below shall be given effect for purposes of this Agreement only to the extent
of a participating interest granted in accordance with this subsection (c). Upon request from the
Agent, a Lender shall notify the Agent of the sale of any participation hereunder and, if requested
by the Agent, certify to the Agent that such participation is permitted hereunder and that the
requirements of Section 3.12. (c) have been satisfied.



(d) Any Lender may with the prior written consent of the Agent and, so long as no Default or
Event of Default exists, the Borrower (which consent, in each case, shall not be unreasonably
withheld (it being agreed that the Borrower’s withholding of consent to an assignment which would
result in the Borrower having to pay amounts under Section 3.12. shall be deemed to be
reasonable)), assign to one or more Eligible Assignees (each an “Assignee”) all or a portion of its
rights and obligations under this Agreement and the Notes (including all or a portion of its
Commitments and the Loans owing to such Lender); provided, however, (i) no such consent by the
Borrower shall be required in the case of any assignment to another Lender or any affiliate of such
Lender or another Lender and no such consent by the Agent shall be required in the case of any
assignment by a Lender to any affiliate of such Lender; (ii) unless the Borrower and the Agent
otherwise agree, after giving effect to any partial assignment by a Lender, the Assignee shall
hold, and the assigning Lender shall retain, a Commitment, or if the Commitments have been
terminated, Loans having an outstanding principal balance, of at least $10,000,000 and integral
multiples of $1,000,000 in excess thereof; and (iii) each such assignment shall be effected by
means of an Assignment and Acceptance Agreement. Upon execution and delivery of such instrument
and payment by such Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to
this Agreement with respect to the assigned interest as of the effective date of the Assignment and
Acceptance Agreement and shall have all the rights and obligations of a Lender with respect to the
assigned interest as set forth in such Assignment and Acceptance Agreement, and the transferor
Lender shall be released from its obligations hereunder with respect to the assigned interest to a
corresponding extent, and no further consent or action by any party shall be required. An
Assignee, if not already a Lender, shall deliver to the Agent an Administrative Details Form. Upon
the consummation of any assignment pursuant to this subsection, the transferor Lender, the Agent
and the Borrower shall make appropriate arrangements so that new Notes are issued to the Assignee
and such transferor Lender, as appropriate. In connection with any such assignment, the transferor
Lender or the Assignee (and not the Borrower) shall pay to the Agent an administrative fee for
processing such assignment in the amount of $3,500. Anything in this Section to the contrary
notwithstanding, no Lender may assign or participate any interest in its Commitment or any Loan
held by it hereunder to the Borrower or any Subsidiary or Affiliate of the Borrower.



(e) The Agent shall maintain at the Principal Office a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of the



 


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names and addresses of the Lenders and the Commitment of each Lender (including the outstanding
principal balance, accrued and unpaid interest and other fees due thereunder) from time to time
(the “Register”). The Agent shall give each Lender and the Borrower notice of the assignment by
any Lender of its rights as contemplated by this Section. The Borrower, the Agent and the Lenders
shall treat each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register and copies of each Assignment and Acceptance Agreement
shall be available for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice to the Agent. Upon its receipt of an Assignment and
Acceptance Agreement executed by an assigning Lender, together with each Note subject to such
assignment, the Agent shall, if such Assignment and Acceptance Agreement has been completed and if
the Agent receives the processing and recording fee described in subsection (d) above, (i) accept
such Assignment and Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.



(f) In addition to the assignments and participations permitted under the foregoing provisions
of this Section, any Lender may assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from its obligations
hereunder.



(g) A Lender may furnish any information concerning the Borrower, any other Loan Party or any
of their respective Subsidiaries in the possession of such Lender from time to time to Assignees
and Participants (including prospective Assignees and Participants) subject to compliance with
Section 13.8.



(h) Anything in this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to the Borrower, any other Loan Party or
any of their respective Affiliates or Subsidiaries.



(i) Each Lender agrees that, without the prior written consent of the Borrower and the 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.



(a) Except as otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given,
and any term of this Agreement or of any other Loan Document may be amended, and the performance or
observance by the Borrower or any other Loan Party or any Subsidiary of any terms of this Agreement
or such other Loan Document or 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



 


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Lenders (and, in the case of an amendment to any Loan Document, the written consent of each Loan
Party a party thereto).



(b) Notwithstanding the foregoing, without the prior written consent of each Lender adversely
affected thereby, no amendment, waiver or consent shall do any of the following:




(i) increase the Commitments of the Lenders (except for any increase in the Commitments
effectuated pursuant to Section 2.15.) or subject the Lenders to any additional obligations;




(ii) reduce the principal of, or interest rates that have accrued or that will be
charged on the outstanding principal amount of, any Loans or other Obligations;




(iii) reduce the amount of any Fees payable hereunder or postpone any date fixed for
payment thereof;




(iv) modify the definition of the term “Termination Date” (except as contemplated under
Section 2.12.) or otherwise postpone any date fixed for any payment of any principal of, or
interest on, any Loans 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), or
extend the expiration date of any Letter of Credit beyond the Termination Date;




(v) amend or otherwise modify the provisions of Section 3.2.;




(vi) modify the definition of the term “Requisite Lenders” or otherwise 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, including without limitation,
any modification of this Section 13.6. if such modification would have such effect;




(vii) release any Guarantor from the Guaranty other than as provided in Section 8.15.;




(viii) amend or otherwise modify the provisions of Section 2.14.; or




(ix) increase the number of Interest Periods permitted with respect to Loans under
Section 2.5.



(c) No amendment, waiver or consent, unless in writing and signed by the Agent, in such
capacity, in addition to the Lenders required hereinabove to take such action, shall affect the
rights or duties of the Agent under this Agreement or any of the other Loan Documents. Any
amendment, waiver or consent relating to Section 2.2. 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.


 


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(d) 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. Except as otherwise provided in
Section 12.5., no course of dealing or delay or omission on the part of the 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 any 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 any other or
further notice or demand in similar or other circumstances.



Section 13.7. Nonliability of Agent and Lenders.



The relationship between the Borrower and the Lenders and the Agent shall be solely that of
borrower and lender. Neither the Agent nor 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 Agent or any Lender to any Lender, the Borrower, any
Subsidiary or any other Loan Party. Neither the Agent nor 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 Agent and each Lender shall use reasonable efforts to assure that information about the
Parent, Borrower, the other Loan Parties and other Subsidiaries, and the Properties thereof and
their operations, affairs and financial condition, not generally disclosed to the public, which is
furnished to the Agent or any Lender pursuant to the provisions of this Agreement or any other Loan
Document, is used only for the purposes of this Agreement and the other Loan Documents and shall
not be divulged to any Person other than the Agent, the Lenders, and their respective agents who
are actively and directly participating in the evaluation, administration or enforcement of the
Loan Documents and other transactions between the Agent or such Lender, as applicable, and the
Borrower, but in any event the Agent and the Lenders may make disclosure: (a) to any of their
respective affiliates (provided they shall agree to keep such information confidential in
accordance with the terms of this Section 13.8.); (b) as reasonably requested by any bona fide
Assignee, Participant or other transferee in connection with the contemplated transfer of any
Commitment or participations therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as required or
requested by any Governmental Authority or representative thereof or pursuant to legal process or
in connection with any legal proceedings; (d) to the Agent’s or such Lender’s independent auditors
and other professional advisors (provided they shall be notified of the confidential nature of the
information); (e) after the happening and during the continuance of an Event of Default, to any
other Person, in connection with the exercise by the Agent or the Lenders of rights hereunder or
under any of the other Loan Documents; (f) upon Borrower’s prior consent (which consent shall not
be unreasonably withheld), to any contractual



 


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counter-parties to any swap or similar hedging agreement or to any rating agency; and (g) to the
extent such information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Agent or any Lender on a nonconfidential basis from a
source other than the Borrower or any Affiliate.



Section 13.9. Indemnification.



(a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the Agent,
each of the Lenders, any affiliate of the Agent or any Lender, and their respective directors,
officers, shareholders, agents, employees and counsel (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified Costs”):
losses, costs, claims, damages, liabilities, deficiencies, judgments or reasonable expenses of
every kind and nature (including, without limitation, amounts paid in settlement, court costs and
the reasonable fees and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection therewith, but excluding
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses indemnification in
respect of which is specifically covered by Section 3.12. or 5.1. or expressly excluded from the
coverage of such Sections 3.12. or 5.1.) incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any
other Loan Document or the transactions contemplated thereby; (ii) the making of any Loans or
issuance of Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of the
proceeds of the Loans or Letters of Credit; (iv) the Agent’s or any Lender’s entering into this
Agreement; (v) the fact that the Agent and the Lenders have established the credit facility
evidenced hereby in favor of the Borrower; (vi) the fact that the Agent and the Lenders are
creditors of the Borrower and have or are alleged to have information regarding the financial
condition, strategic plans or business operations of the Parent, the Borrower and the Subsidiaries;
(vii) the fact that the Agent and the Lenders are material creditors of the Borrower and are
alleged to influence directly or indirectly the business decisions or affairs of the Parent, the
Borrower and the Subsidiaries or their financial condition; (viii) the exercise of any right or
remedy the Agent or the Lenders may have under this Agreement or the other Loan Documents; (ix) any
civil penalty or fine assessed by the OFAC against, and all reasonable costs and expenses
(including counsel fees and disbursements) incurred in connection with defense thereof by, the
Agent or any Lender as a result of conduct of the Borrower, any other Loan Party or any Subsidiary
that violates a sanction enforced by the OFAC; or (x) any violation or non-compliance by the
Parent, the Borrower or any Subsidiary of any Applicable Law (including any Environmental Law)
including, but not limited to, any Indemnity Proceeding commenced by (A) the Internal Revenue
Service or state taxing authority or (B) any Governmental Authority or other Person under any
Environmental Law, including any Indemnity Proceeding commenced by a Governmental Authority or
other Person seeking remedial or other action to cause the Borrower or its Subsidiaries (or its
respective properties) (or the Agent and/or the Lenders as successors to the Borrower) to be in
compliance with such Environmental Laws; provided, however, that the Borrower shall not be
obligated to indemnify any Indemnified Party for (A) any acts or omissions of such Indemnified
Party in connection with matters described in this subsection to the extent arising from the gross
negligence or willful misconduct of such Indemnified Party, as determined by a court of competent
jurisdiction



 


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in a final, non-appealable judgment or (B) Indemnified Costs to the extent arising directly
out of or resulting directly from claims of one or more Indemnified Parties against another
Indemnified Party.



(b) The Borrower’s indemnification obligations under this Section 13.9. shall apply to all
Indemnity Proceedings arising out of, or related to, the foregoing whether or not an Indemnified
Party is a named party in such Indemnity Proceeding. In this regard, this indemnification shall
cover all Indemnified Costs of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena requesting the production
of documents). This indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by other creditors of the Borrower or any Subsidiary, any shareholder of the Borrower or
any Subsidiary (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the Borrower), any account debtor of the Borrower
or any Subsidiary or by any Governmental Authority. If indemnification is to be sought hereunder by
an Indemnified Party, then such Indemnified Party shall notify the Borrower of the commencement of
any Indemnity Proceeding; provided, however, that the failure to so notify the Borrower shall not
relieve the Borrower from any liability that it may have to such Indemnified Party pursuant to this
Section 13.9. except to the extent such failure to notify materially and adversely affects the
Borrower.



(c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency
of any bankruptcy proceeding filed by or against the Borrower and/or any Subsidiary.



(d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled
to indemnification hereunder, upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to indemnification
hereunder.



(e) An Indemnified Party may conduct its own investigation and defense of, and may formulate
its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as provided
above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed by the
Borrower. No action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way impair the obligations
and duties of the Borrower hereunder to indemnify and hold harmless each such Indemnified Party;
provided, however, that if (i) the Borrower is required to indemnify an Indemnified Party pursuant
hereto and (ii) the Borrower has provided evidence reasonably satisfactory to such Indemnified
Party that the Borrower has the financial wherewithal to reimburse such Indemnified Party for any
amount paid by such Indemnified Party with respect to such Indemnity Proceeding, such Indemnified
Party shall not settle or compromise any such Indemnity Proceeding without the prior written
consent of the Borrower (which consent shall not be unreasonably withheld or delayed).
Notwithstanding the foregoing, an Indemnified Party may settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrower where (x) no monetary relief is sought
against such Indemnified Party in such



 


- 96 -









 






Indemnity Proceeding or (y) there is an allegation of a violation of law by such Indemnified Party.



(f) 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.



(g) 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 other of their obligations set forth in this
Agreement or any other Loan Document to which it is a party.



Section 13.10. Termination; Survival.



At such time as (a) all of the Commitments have been terminated, (b) all Letters of Credit
have terminated, (c) none of the Lenders nor the Swingline Lender is obligated any longer under
this Agreement to make any Loans and (d) all Obligations (other than obligations which survive as
provided in the following sentence) have been paid and satisfied in full, this Agreement shall
terminate. The indemnities to which the Agent, the Lenders and the Swingline Lender are entitled
under the provisions of Sections 3.12., 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 Agent, the Lenders and the Swingline Lender
(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 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 agreement or document evidencing the foregoing termination.



Section 13.11. Severability of Provisions.



Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the remaining provisions
or affecting the validity or enforceability of such provision in any other jurisdiction.



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. Patriot Act.



The Lenders and the Agent each hereby notifies the Borrower that pursuant to the requirements
of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is
required to obtain, verify and record information that identifies the Borrower, which



 


- 97 -









 






information includes the name and address of the Borrower and other information that will allow
such Lender or the Agent, as applicable, to identify the Borrower in accordance with such Act.



Section 13.14. Counterparts.



This Agreement and any amendments, waivers, consents or supplements may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument.



Section 13.15. 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 13.16. Limitation of Liability.



Neither the Agent nor any Lender, nor any affiliate, officer, director, employee, attorney, or
agent of the Agent or any Lender 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 Parent or the
Borrower in connection with, arising out of, or in any way related to, this Agreement or any of the
other Loan Documents, 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 Agent or any Lender or any of the Agent’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 any way related to, this Agreement or any of the other Loan Documents, or any
of the transactions contemplated by this Agreement or financed hereby.



Section 13.17. Entire Agreement.



This Agreement, the Notes, and the other Loan Documents referred to herein 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.



Section 13.18. Construction.



The Parent, the Borrower, the Agent 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



 


- 98 -









 






the other Loan Documents shall be construed as if jointly drafted by the Parent, the Borrower, the
Agent and each Lender.



Section 13.19. 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 BORROWER UNDER OR IN CONNECTION WITH
THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT
AGREEMENT).



[Signatures on Following Pages]




 


- 99 -









 







IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Credit Agreement
to be executed by their authorized officers all as of the day and year first above written.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By: 	 	DiamondRock Hospitality Company, its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	By: 	/s/ Sean M. Mahoney	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	Name:
	 	Sean M. Mahoney	 	 
	 

	 	 	 	 	Title:
	 	Senior Vice President, Chief Accounting	 	 
	 

	 	 	 	 	 	 	 	Officer and Controller	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY COMPANY	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Mark W. Brugger	 	 
	 	 	 	 	 	 	 
	 	 	 	 	Name: 	Mark W. Brugger	 	 
	 	 	 	 	Title: 	Executive Vice President, Chief Financial Officer	 	 
	 	 	 	 	 	 	and Treasurer	 	 






[Signatures Continued on Next Page]




 


 









 







[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as 	 	 
	 	 	Agent, as a Lender and as Swingline Lender	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Dean R. Whitehill	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Dean R. Whitehill	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$35,000,000	 	 






[Signatures Continued on Next Page]




 


 









 







[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Steven P. Renwick	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Steven P. Renwick	 	 
	 

	 	 	 	Title:
	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$30,000,000	 	 





 


 









 





[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	CALYON NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Joseph A. Asciolla	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Joseph A. Asciolla	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David Bowers	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	David Bowers	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$30,000,000	 	 





 


 









 





[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Ricardo James	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Ricardo James	 	 
	 

	 	 	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$30,000,000	 	 





 


 









 





[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Timothy J. McNaught	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Timothy J. McNaught	 	 
	 

	 	 	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$30,000,000	 	 





 


 









 





[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Mark F. Monahan	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Mark F. Monahan	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$30,000,000	 	 





 


 









 





[Signature Page to Amended and Restated Credit Agreement

with DiamondRock Hospitality Limited Partnership]




	 	 	 	 	 	 	 	 	 
	 	 	MERRILL LYNCH BANK USA	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Louis Alder	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Louis Alder	 	 
	 

	 	 	 	Title:
	 	Director	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Commitment Amount:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	$15,000,000	 	 







 


 











 




SCHEDULE 1.1(A)




Capitalization Rates




	 	 	 	 	 	 	 
	Property	 	Cap Rate	 	 	Chain Scale
	 
	 	 	 	 	 	 
	Atlanta Alpharetta Marriott
	 	 	8.00	%	 	Upper Upscale
	Westin Atlanta North Perimeter
	 	 	8.00	%	 	Upper Upscale
	Atlanta Waverly Renaissance
	 	 	8.00	%	 	Upper Upscale
	Austin Renaissance
	 	 	8.00	%	 	Upper Upscale
	Bethesda Marriott Suites
	 	 	8.00	%	 	Upper Upscale
	Buckhead SpringHill Suites
	 	 	9.00	%	 	Upscale
	Chicago Marriott
	 	 	8.00	%	 	Upper Upscale
	Chicago Conrad
	 	 	7.50	%	 	Luxury
	Courtyard Fifth Avenue
	 	 	8.00	%	 	Upscale
	Courtyard Midtown East
	 	 	8.00	%	 	Upscale
	Frenchman’s Reef Marriott Resort
	 	 	7.50	%	 	Luxury
	Griffin Gate Marriott Resort
	 	 	7.50	%	 	Luxury
	Los Angeles Airport Marriott
	 	 	8.00	%	 	Upper Upscale
	Oak Brook Hills Marriott Resort
	 	 	7.50	%	 	Luxury
	Orlando Airport Marriott
	 	 	8.00	%	 	Upper Upscale
	Salt Lake City Marriott
	 	 	8.00	%	 	Upper Upscale
	Sonoma Renaissance Resort & Spa
	 	 	7.50	%	 	Luxury
	Torrance Marriott
	 	 	8.00	%	 	Upper Upscale
	Vail Marriott Resort
	 	 	7.50	%	 	Luxury
	Renaissance Worthington
	 	 	8.00	%	 	Upper Upscale
	Westin Boston
	 	 	8.00	%	 	Upper Upscale







 


 









 




SCHEDULE 1.1(B)




List of Loan Parties




	 	 	 
	DiamondRock Hospitality Limited Partnership

	 	Borrower
	DiamondRock Hospitality Company

	 	Parent
	Bloodstone TRS, Inc.

	 	Guarantor
	DiamondRock Alpharetta Owner, LLC

	 	Guarantor
	DiamondRock Alpharetta Tenant, LLC

	 	Guarantor
	DiamondRock Boston Owner, LLC

	 	Guarantor
	DiamondRock Boston Tenant, LLC

	 	Guarantor
	DiamondRock Buckhead Owner, LLC

	 	Guarantor
	DiamondRock Buckhead Tenant, LLC

	 	Guarantor
	DiamondRock Chicago Conrad Owner, LLC

	 	Guarantor
	DiamondRock Chicago Conrad Tenant, LLC

	 	Guarantor
	DiamondRock Oak Brook Owner, LLC

	 	Guarantor
	DiamondRock Oak Brook Tenant, LLC

	 	Guarantor
	DiamondRock Sonoma Owner, LLC

	 	Guarantor
	DiamondRock Sonoma Tenant, LLC

	 	Guarantor
	DiamondRock Torrance Owner, LLC

	 	Guarantor
	DiamondRock Torrance Tenant, LLC

	 	Guarantor
	DiamondRock Vail Owner, LLC

	 	Guarantor
	DiamondRock Vail Tenant, LLC

	 	Guarantor
	Noble-DiamondRock Perimeter Center Owner, LLC

	 	Guarantor
	Noble-DiamondRock Perimeter Center Tenant, LLC

	 	Guarantor






Accommodation Subsidiaries are noted in italics.


 


 









 





SCHEDULE 4.1




Initial Unencumbered Borrowing Base Properties




	 	 	 	 	 
	 	 	Unencumbered	 
	Property	 	Borrowing Base Value	 
	Atlanta Marriott Alpharetta
	 	$	57,229,867	 
	Conrad Chicago
	 	$	119,000,000	 
	Oak Brook Hills Marriott Resort
	 	$	80,423,920	 
	SpringHill Suites Atlanta Buckhead
	 	$	25,654,161	 
	The Lodge at Sonoma Renaissance Resort & Spa
	 	$	45,699,327	 
	Torrance Marriott
	 	$	55,264,335	 
	Vail Marriott Mountain Resort & Spa
	 	$	81,118,635	 
	Westin Atlanta Perimeter North
	 	$	65,646,343	 
	Westin Boston Waterfront
	 	$	297,300,000	 
	 
	 	 	 
	 
	 	 	 	 
	Total
	 	$	827,036,588	 
	 
	 	 	 







 


 









 







1SCHEDULE 7.1(b)




Ownership Structure




PART I




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Juris-	 	 	 	 	 	 	 	 	 	 
	 	 	diction of	 	 	 	 	 	 	 	Material/ Significant/	 	State
	 	 	Organi-	 	Equity Interest	 	% of	 	and/or Excluded	 	Qualifi-
	Company	 	zation	 	Holders	 	Ownership	 	Subsidiary	 	cation
	DiamondRock Hospitality Limited 

Partnership

	 	Delaware
	 	DiamondRock Hospitality Company

DiamondRock Hospitality, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Material and Significant
	 	MA
	DiamondRock Hospitality, LLC

	 	Delaware
	 	DiamondRock Hospitality Company
	 	 	100	%	 	 	 	N/A
	Bloodstone TRS, Inc.

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	MA
	DiamondRock Alpharetta Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	GA
	DiamondRock Alpharetta Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material (Accommodation Subsidiary)
	 	GA
	DiamondRock Bethesda General, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Excluded
	 	MD
	DiamondRock Bethesda Limited, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Excluded
	 	MD
	DiamondRock Bethesda Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Significant and Excluded
	 	MD
	DiamondRock Boston Owner, LLC

	 	Delaware
	 	Palomar Holding Inc.
	 	 	100	%	 	Material and Significant
	 	MA
	DiamondRock Boston Expansion 

Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited Partnership
	 	 	100	%	 	Significant
	 	MA
	DiamondRock Boston Retail Owner, 

LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Significant
	 	MA
	DiamondRock Boston Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material and Significant
(Accommodation Subsidiary)
	 	MA





 






	 	 	 
	1	 	Accommodation Subsidiaries are noted in italics.





 


 









 







	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Juris-	 	 	 	 	 	 	 	 	 	 
	 	 	diction of	 	 	 	 	 	 	 	Material/ Significant/	 	State
	 	 	Organi-	 	Equity Interest	 	% of	 	and/or Excluded	 	Qualifi-
	Company	 	zation	 	Holders	 	Ownership	 	Subsidiary	 	cation
	DiamondRock Buckhead Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited Partnership
	 	 	100	%	 	Material and Significant
	 	GA
	DiamondRock Buckhead Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material (Accommodation Subsidiary)
	 	GA
	DiamondRock Cayman Islands, Inc.

	 	Cayman Islands
	 	DiamondRock Frenchman’s Holdings,
LLC
	 	 	100	%	 	Excluded
	 	N/A
	DiamondRock Chicago Conrad Owner, 

LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	IL
	DiamondRock Chicago Conrad 

Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material and Significant
(Accommodation Subsidiary)
	 	IL
	DiamondRock Chicago Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Material, Significant and Excluded
	 	IL
	DiamondRock Chicago Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Significant and Excluded
	 	IL
	DiamondRock East 40th Street NYC 

Owner Holdings, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Excluded
	 	NY
	DiamondRock East 40th Street NYC 

Owner, LLC

	 	Delaware
	 	DiamondRock East 40th
Street NYC Owner Holdings, LLC
	 	 	100	%	 	Significant and Excluded
	 	NY
	DiamondRock East 40th Street NYC 

Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	NY
	DiamondRock Frenchman’s Holdings,
LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Excluded
	 	N/A
	DiamondRock Frenchman’s Owner,
Inc.

	 	U.S. Virgin Islands
	 	DiamondRock Cayman Islands, Inc.
	 	 	100	%	 	Significant and Excluded
	 	N/A
	DiamondRock Griffin Gate Owner, 

LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Significant and Excluded
	 	KY
	DiamondRock Griffin Gate Tenant, 

LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Significant and Excluded
	 	KY
	DiamondRock LAX Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited

Partnership
	 	 	100	%	 	Significant and Excluded
	 	CA
	DiamondRock LAX Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Significant and Excluded
	 	CA








 


 











 




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Juris-	 	 	 	 	 	 	 	 	 	 
	 	 	diction of	 	 	 	 	 	 	 	Material/ Significant/	 	State
	 	 	Organi-	 	Equity Interest	 	% of	 	and/or Excluded	 	Qualifi-
	Company	 	zation	 	Holders	 	Ownership	 	Subsidiary	 	cation
	DiamondRock Manhattan/Midtown
East Owner, LLC

	 	Delaware
	 	DiamondRock 
Hospitality Limited

Partnership
	 	 	100	%	 	Significant and Excluded
	 	NY
	DiamondRock Manhattan/Midtown
East Tenant Holdings, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	NY
	DiamondRock Manhattan/Midtown
East Tenant, LLC

	 	Delaware
	 	DiamondRock 
Manhattan/Midtown
 East
Tenant
 Holdings, LLC
	 	 	100	%	 	Significant and Excluded
	 	NY
	DiamondRock Oak Brook Owner, LLC

	 	Delaware
	 	DiamondRock
 Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	IL
	DiamondRock Oak Brook Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material and Significant

(Accommodation 
Subsidiary)
	 	IL
	DiamondRock Orlando Airport
Owner, LLC

	 	Delaware
	 	DiamondRock 
Hospitality Limited

Partnership
	 	 	100	%	 	Significant and Excluded
	 	FL
	DiamondRock Orlando Airport
Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	FL
	DiamondRock Salt Lake Owner, LLC

	 	Delaware
	 	DiamondRock
 Hospitality Limited

Partnership
	 	 	100	%	 	Significant and Excluded
	 	UT
	DiamondRock Salt Lake Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Significant and Excluded
	 	UT
	DiamondRock Sonoma Owner, LLC

	 	Delaware
	 	DiamondRock 
Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	CA
	DiamondRock Sonoma Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material 
(Accommodation 
Subsidiary)
	 	CA
	DiamondRock Torrance Owner, LLC

	 	Delaware
	 	DiamondRock 
Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	CA
	DiamondRock Torrance Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material and Significant

(Accommodation
 Subsidiary)
	 	CA
	DiamondRock Vail Owner, LLC

	 	Delaware
	 	DiamondRock 
Hospitality Limited

Partnership
	 	 	100	%	 	Material and Significant
	 	CA






 


 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Juris-	 	 	 	 	 	 	 	 	 	 
	 	 	diction of	 	 	 	 	 	 	 	Material/ Significant/	 	State
	 	 	Organi-	 	Equity Interest	 	% of	 	and/or Excluded	 	Qualifi-
	Company	 	zation	 	Holders	 	Ownership	 	Subsidiary	 	cation
	DiamondRock Vail Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Material (Accommodation Subsidiary)
	 	CA
	DiamondRock Waverly Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	 	100	%	 	Significant and Excluded
	 	CA
	DiamondRock Waverly Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	CA
	DRH Austin Owner General, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	 	100	%	 	Excluded
	 	CA
	DRH Austin Owner Limited, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	 	100	%	 	Excluded
	 	N/A
	DRH Austin Owner Limited
Partnership

	 	Delaware
	 	DRH Austin Owner General, LLC

DRH Austin Owner Limited, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Significant and Excluded
	 	TX
	DRH Austin Tenant General, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	TX
	DRH Austin Tenant Limited, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	N/A
	DRH Austin Tenant Limited
Partnership

	 	Delaware
	 	DRH Austin Tenant General, LLC

DRH Austin Tenant Limited, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Excluded
	 	TX
	DRH Worthington Owner General, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	 	100	%	 	Excluded
	 	TX
	DRH Worthington Owner Limited, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	 	100	%	 	Excluded
	 	N/A
	DRH Worthington Owner Limited
Partnership

	 	Delaware
	 	DRH Worthington
Owner General, LLC

DRH Worthington
Owner Limited, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Significant and Excluded
	 	TX
	DRH Worthington Tenant General,
LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	 	100	%	 	Excluded
	 	TX








 


 









 








	 	 	 	 	 	 	 	 	 	 	 
	 	 	Juris-	 	 	 	 	 	 	 	 
	 	 	diction of	 	 	 	 	 	Material/ Significant/	 	State
	 	 	Organi-	 	Equity Interest	 	% of	 	and/or Excluded	 	Qualifi-
	Company	 	zation	 	Holders	 	Ownership	 	Subsidiary	 	cation
	DRH Worthington Tenant Limited,
LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	100%	 	Excluded
	 	N/A
	DRH Worthington Tenant Limited
Partnership

	 	Delaware
	 	DRH Worthington Tenant General, LLC

DRH Worthington Tenant Limited, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Excluded
	 	TX
	Noble-DiamondRock Perimeter
Center Owner, LLC

	 	Delaware
	 	DiamondRock Hospitality Limited
Partnership
	 	100%	 	Material and Significant
	 	GA
	Noble-DiamondRock Perimeter
Center Tenant, LLC

	 	Delaware
	 	Bloodstone TRS, Inc.
	 	100%	 	Material (Accommodation Subsidiary)
	 	GA
	Rock Spring Park Hotel Limited
Partnership

	 	Maryland
	 	DiamondRock Bethesda 

General, LLC

DiamondRock Bethesda 

Limited, LLC
	 	1%

(GP interest)

99%

(LP interest)
	 	Significant and Excluded
	 	N/A







 


 











 




SCHEDULE 7.1(b)




Unconsolidated Affiliates




PART II




None




 


 









 







SCHEDULE 7.1(f)




Title to Properties; Liens




PART I




Bethesda Marriott Suites

Chicago Marriott Downtown Magnificent Mile

Courtyard New York Manhattan/Fifth Avenue

Courtyard New York Manhattan/Midtown East

Frenchman’s Reef & Morning Star Marriott Beach Resort

Griffin Gate Marriott Resort

Los Angeles Airport Marriott

Orlando Airport Marriott

Renaissance Austin Hotel

Renaissance Waverly Hotel

Renaissance Worthington Hotel Fort Worth

Salt Lake City Marriott Downtown




PART II




There are liens on the following hotels in favor of the secured lender for such hotel in an amount
as of December 31, 2006, equal to the amounts listed below.



	 	 	 	 	 
	Property	 	Amount	 
	Bethesda Marriott Suites
	 	$	18,741,625	 
	Chicago Marriott Downtown Magnificent Mile
	 	$	220,000,000	 
	Courtyard New York Manhattan/Fifth Avenue
	 	$	51,000,000	 
	Courtyard New York Manhattan/Midtown East
	 	$	43,214,894	 
	Frenchman’s Reef & Morning Star Marriott Beach Resort
	 	$	62,500,000	 
	Griffin Gate Marriott Resort
	 	$	29,805,833	 
	Los Angeles Airport Marriott
	 	$	82,600,000	 
	Orlando Airport Marriott
	 	$	59,000,000	 
	Renaissance Austin Hotel
	 	$	83,000,000	 
	Renaissance Waverly Hotel
	 	$	97,000,000	 
	Renaissance Worthington Hotel Fort Worth
	 	$	57,400,000	 
	Salt Lake City Marriott Downtown
	 	$	36,888,160	 






 


 









 





SCHEDULE 7.1(g)




Indebtedness and Guaranties




	 	 	 	 	 	 	 
	 	 	Amount of Debt as of	 	 	Secured
	Property	 	December 31, 2006	 	 	or Unsecured
	Bethesda Marriott Suites
	 	$	18,741,625	 	 	Secured
	Chicago Marriott Downtown Magnificent
Mile
	 	$	220,000,000	 	 	Secured
	Courtyard New York Manhattan/Fifth Avenue
	 	$	51,000,000	 	 	Secured
	Courtyard New York Manhattan/Midtown East
	 	$	43,214,894	 	 	Secured
	Frenchman’s Reef & Morning Star Marriott Beach Resort
	 	$	62,500,000	 	 	Secured
	Griffin Gate Marriott Resort
	 	$	29,805,833	 	 	Secured
	Los Angeles Airport Marriott
	 	$	82,600,000	 	 	Secured
	Orlando Airport Marriott
	 	$	59,000,000	 	 	Secured
	Renaissance Austin Hotel
	 	$	83,000,000	 	 	Secured
	Renaissance Waverly Hotel
	 	$	97,000,000	 	 	Secured
	Renaissance Worthington Hotel Fort Worth
	 	$	57,400,000	 	 	Secured
	Salt Lake City Marriott Downtown
	 	$	36,888,160	 	 	Secured







 


 









 







SCHEDULE 7.1(h)




Material Contracts





	1.	 	Atlanta Marriott Alpharetta
	 
	 	 	Management Agreement by and between Marriott Hotel Services, Inc. and
BCM/CHI Alpharetta Tenant, Inc., dated September 28, 2008, as assigned
to DiamondRock Alpharetta Tenant, LLC by that certain Assignment and
Assumption of Management Agreement dated June 23, 2005 as such
agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Alpharetta Owner, LLC,
DiamondRock Alpharetta Tenant, LLC and Marriott Hotel Services, Inc.,
dated June 23, 2005
	 
	2.	 	Bethesda Marriott Suites
	 
	 	 	Management Agreement by and between Marriott Hotel Services, Inc. and
Rock Spring Park Hotel Limited Partnership, dated December 15, 2004,
as such agreement may be amended from time to time
	 
	 	 	Assignment, Assumption and Owner Agreement by and among Rock Spring
Park Limited Partnership, DiamondRock Bethesda Tenant, LLC and
Marriott Hotel Services, Inc., dated December 15, 2004
	 
	3.	 	Chicago Marriott Downtown Magnificent Mile
	 
	 	 	Management Agreement by and between DiamondRock Chicago Tenant, LLC
and Marriott Hotel Services, Inc., dated March 24, 2006 as such
agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Chicago Owner, LLC,
DiamondRock Chicago Tenant, LLC and Marriott Hotel Services, Inc.,
dated March 24, 2006
	 
	4.	 	Conrad Chicago
	 
	 	 	Amended and Restated Management Agreement by and between LCP-WB
Chicago Operator, LLC and Conrad Hotels USA, Inc. as assigned to
DiamondRock Chicago Conrad Tenant, LLC by that certain Hotel
Management Agreement Assignment and Assumption, dated November 8, 2006
as such agreement may be amended from time to time
	 
	5.	 	Courtyard New York Manhattan/Fifth Avenue
	 
	 	 	Management Agreement by and between Courtyard Management Corporation
and DiamondRock East 40th Street NYC Tenant, LLC, dated December 20,
2004, as such agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock East 40th Street NYC Owner,
LLC, DiamondRock East 40th Street NYC Tenant, LLC and Courtyard
Management Corporation, dated December 20, 2004




 


 









 





	6.	 	Courtyard New York Manhattan/Midtown East
	 
	 	 	Management Agreement by and between Courtyard Management Corporation
and DiamondRock Manhattan/Midtown East Owner, LLC, dated November 19,
2004, as such agreement may be amended from time to time
	 
	 	 	Assignment, Assumption and Owner Agreement by and among DiamondRock
Manhattan CY Owner, LLC, DiamondRock Manhattan CY Tenant, LLC and
Courtyard Management Corporation, dated November 19, 2004
	 
	7.	 	Frenchman’s Reef & Morning Star Marriott Beach Resort
	 
	 	 	Management Agreement by and between Marriott Hotel Management Company
(Virgin Islands), Inc. and BCM/CHI Frenchman’s Reef, Inc., dated
September 28, 2000
	 
	 	 	International Services Agreement between Marriott International, Inc.
and BCM/CHI Frenchman’s Reef, Inc., dated September 15, 2000
	 
	8.	 	Griffin Gate Marriott Resort
	 
	 	 	Management Agreement between DiamondRock Griffin Gate Owner, LLC and
Marriott Hotel Services, Inc., dated as of December 22, 2004, as such
agreement may be amended from time to time
	 
	 	 	Assignment, Assumption and Owner Agreement by and among DiamondRock
Griffin Gate Owner, LLC, DiamondRock Griffin Gate Tenant, LLC and
Marriott Hotel Services, Inc., dated December 22, 2004
	 
	9.	 	Los Angeles Airport Marriott
	 
	 	 	Management Agreement by and between BCM/CHI LAX Tenant, Inc. and
Marriott Hotel Services, Inc. as assigned to DiamondRock LAX Tenant,
LLC by that certain Assignment of Management Agreement, dated June 23,
2005, as such agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock LAX Owner, LLC, DiamondRock
LAX Tenant, LLC and Marriott Hotel Services, Inc., dated June 23, 2005
	 
	10.	 	Oak Brook Hills Marriott Resort
	 
	 	 	Management Agreement between DiamondRock Oak Brook Tenant, LLC and
Marriott Hotel Services, Inc, dated July 29, 2005, as such agreement
may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Oak Brook Owner, LLC,
DiamondRock Oak Brook Tenant, LLC and Marriott Hotel Services, Inc.,
dated July 29, 2005




 


 









 





	11.	 	Orlando Airport Marriott
	 
	 	 	Management Agreement between DiamondRock Orlando Airport Tenant, LLC
and Marriott Hotel Services, Inc, dated November 23, 2005, as such
agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Orlando Airport Owner, LLC,
DiamondRock Orlando Airport Tenant, LLC and Marriott Hotel Services,
Inc., dated November 23, 2005
	 
	12.	 	Renaissance Austin Hotel
	 
	 	 	Management Agreement between WSRH Austin, L.P. and Renaissance Hotel
Operating Company, dated as of June 23, 2005, as assigned to DRH
Austin Tenant Owner Limited Partnership by that certain Assignment and
Assumption of Management Agreement, dated December 8, 2006, as such
agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DRH Austin Owner Limited Partnership, DRH
Austin Tenant Limited Partnership and Renaissance Hotel Operating
Company, dated December 8, 2006
	 
	13.	 	Renaissance Waverly Hotel
	 
	 	 	Management Agreement between WSRH Atlanta Waverly, L.L.C. and
Renaissance Hotel Operating Company, dated as of June 23, 2005, as
assigned to DiamondRock Waverly Owner, LLC by that certain Assignment
and Assumption Agreement of Management Agreement dated December 8,
2006, as such agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Waverly Owner, LLC,
DiamondRock Waverly Tenant, LLC and Renaissance Hotel Operating
Company, dated December 8, 2006
	 
	14.	 	Renaissance Worthington Hotel Fort Worth
	 
	 	 	Management Agreement by and between Renaissance Hotel Management
Company, LLC and BCM/CHI Worthington Tenant, Inc., dated September 28,
2000, as assigned to DRH Worthington Tenant Limited Partnership by
that certain Assignment and Assumption of Management Agreement, dated
June 23, 2005, as such agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DRH Worthington Owner Limited
Partnership, DRH Worthington Tenant Limited Partnership and
Renaissance Hotel Management Company, LLC, dated June 23, 2005
	 
	15.	 	Salt Lake City Marriott Downtown
	 
	 	 	Amended and Restated Management Agreement by Host Marriott, L.P. and
Marriott Hotel Services, Inc., dated December 29, 2001, as assigned to
DiamondRock Salt Lake Owner, LLC by that certain Assignment and
Assumption of Management Agreement, dated December 15, 2004, as such
agreement may be amended from time to time




 


 









 





	 	 	Assignment, Assumption and Owner Agreement by and among DiamondRock
Salt Lake Owner, LLC, DiamondRock Salt Lake Tenant, LLC and Marriott
Hotel Services, Inc., dated December 15, 2004
	 
	16.	 	SpringHill Suites Atlanta Buckhead
	 
	 	 	Management Agreement between DiamondRock Buckhead Tenant, LLC and
SpringHill SMC Corporation, dated July 23, 2005, as such agreement may
be amended from time to time
	 
	 	 	Owner Agreement between DiamondRock Buckhead Owner, LLC, DiamondRock
Buckhead Tenant, LLC and SpringHill SMC Corporation, dated July 23,
2005
	 
	17.	 	The Lodge at Sonoma Renaissance Resort & Spa
	 
	 	 	Management Agreement between DiamondRock Sonoma Owner, LLC and
Renaissance Hotel Management Company, LLC, dated October 27, 2004, as
such agreement may be amended from time to time
	 
	 	 	Assignment, Assumption and Owner Agreement by and among DiamondRock
Sonoma Owner, LLC, DiamondRock Sonoma Tenant, LLC and Renaissance
Hotel Management Company, LLC dated October 27, 2004
	 
	18.	 	Torrance Marriott
	 
	 	 	Second Amended and Restated Management Agreement between DiamondRock
Torrance Tenant, LLC and Marriott Hotel Services, Inc., dated January
5, 2005, as such agreement may be amended from time to time
	 
	 	 	Owner Agreement by and among DiamondRock Torrance Owner, LLC,
DiamondRock Torrance Tenant, LLC and Marriott Hotel Services, Inc.,
dated January 5, 2005
	 
	19.	 	Vail Marriott Mountain Resort & Spa
	 
	 	 	Hotel Management Agreement between DiamondRock Vail Tenant, LLC and
Vail Management Company, LLC, dated June 24, 2005, as such agreement
may be amended from time to time
	 
	 	 	Owner Agreement by and among Marriott International, Inc., DiamondRock
Vail Tenant, LLC and DiamondRock Vail Owner, LLC, dated June 24, 2005
	 
	 	 	Relicensing Franchise Agreement by Marriott International, Inc. and
DiamondRock Vail Tenant, LLC, dated June 24, 2005
	 
	20.	 	Westin Atlanta Perimeter North
	 
	 	 	Hotel Management Agreement by and between Noble-DiamondRock Perimeter
Center Tenant, LLC and Noble Management Group, dated May 2, 2006, as
such agreement may be amended from time to time
	 
	 	 	(Change of Ownership) License Agreement between Westin Hotel
Management, L.P. and Noble-DiamondRock Perimeter Center Tenant, LLC,
dated May 2, 2006




 


 









 





	21.	 	Westin Boston Waterfront
	 
	 	 	Management Contract by and between Westin Management Company East and
Boston Convention Center Hotel LLC dated May 27, 2004 as assigned to
DiamondRock Boston Tenant, LLC by that certain Management Agreement
Assignment and Assumption, dated January 31, 2007, as such contract
may be amended from time to time
	 
	 	 	Tri-Party Agreement among Westin Hotel Management, L.P.
(successor-in—interest to Westin Management Company East),
DiamondRock Boston Owner, LLC and DiamondRock Tenant, LLC, dated
January 31, 2007




 


 









 










SCHEDULE 7.1(i)




Litigation




None





 


 









 







EXHIBIT A




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT dated as of                     , 200_____ 
(the “Agreement”) by
and among                                          (the “Assignor”),                         
                 (the “Assignee”),
and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the “Agent”) [Include this language only if
Borrower’s consent is required under Section 13.5.(d)] [and agreed and consented to by DiamondRock
Hospitality Limited Partnership].



WHEREAS, the Assignor is a Lender under that certain Amended and Restated Credit Agreement
dated as of February 28, 2007 (as amended, restated, supplemented or otherwise modified from time
to time, the “Credit Agreement”), by and among DiamondRock Hospitality Limited Partnership (the
“Borrower”), the financial institutions party thereto and their assignees under Section 13.5.
thereof (the “Lenders”), the Agent, and the other parties thereto;



WHEREAS, the Assignor desires to assign to the Assignee, among other things, all or a portion
of the Assignor’s Commitment under the Credit Agreement, all on the terms and conditions set forth
herein; and




WHEREAS, the Agent consents to such assignment on the terms and conditions set forth herein;



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
hereby are acknowledged by the parties hereto, the parties hereto hereby agree as follows:




Section 1. Assignment.



(a) Subject to the terms and conditions of this Agreement and in consideration of the payment
to be made by the Assignee to the Assignor pursuant to Section 2 of this Agreement, effective as of
                    , 200_____ 
(the “Assignment Date”), the Assignor hereby irrevocably sells, transfers and
assigns to the Assignee, without recourse, a $                     interest (such interest being the
“Assigned Commitment”) in and to the Assignor’s Commitment and all of the other rights and
obligations of the Assignor under the Credit Agreement, such Assignor’s Revolving Note and the
other Loan Documents (representing _____% in respect of the aggregate amount of all Lenders’
Commitments), including without limitation, a principal amount of outstanding Revolving Loans equal
to $_____ 
and all voting rights of the Assignor associated with the Assigned Commitment, all
rights to receive interest on such amount of Revolving Loans and all commitment and other Fees with
respect to the Assigned Commitment and other rights of the Assignor under the Credit Agreement and
the other Loan Documents with respect to the Assigned Commitment, all as if the Assignee were an
original Lender under and signatory to the Credit Agreement having a Commitment equal to the amount
of the Assigned Commitment. The Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of the Assignor with respect to the Assigned Commitment as if the Assignee
were an original Lender under and signatory to the Credit Agreement having a


 


A-1 









 





Commitment equal to the Assigned Commitment, which obligations shall include, but shall not be
limited to, the obligation of the Assignor to make Revolving Loans to the Borrower with respect to
the Assigned Commitment, the obligation to pay the Agent amounts due in respect of draws under
Letters of Credit as required under Section 2.3.(i) of the Credit Agreement and the obligation to
indemnify the Agent as provided therein (the foregoing enumerated obligations, together with all
other similar obligations more particularly set forth in the Credit Agreement and the other Loan
Documents, collectively, the “Assigned Obligations”). The Assignor shall have no further duties or
obligations with respect to, and shall have no further interest in, the Assigned Obligations or the
Assigned Commitment from and after the Assignment Date.



(b) The assignment by the Assignor to the Assignee hereunder is without recourse to the
Assignor. The Assignee makes and confirms to the Agent, the Assignor, and the other Lenders all of
the representations, warranties and covenants of a Lender under Article XII. of the Credit
Agreement. Not in limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4 below, the Assignor is making no representations or warranties with
respect to, and the Assignee hereby releases and discharges the Assignor for any responsibility or
liability for: (i) the present or future solvency or financial condition of the Borrower, any
Subsidiary or any other Loan Party, (ii) any representations, warranties, statements or information
made or furnished by the Borrower, any Subsidiary or any other Loan Party in connection with the
Credit Agreement or otherwise, (iii) the validity, efficacy, sufficiency, or enforceability of the
Credit Agreement, any other Loan Document or any other document or instrument executed in
connection therewith, or the collectibility of the Assigned Obligations, (iv) the perfection,
priority or validity of any Lien with respect to any collateral at any time securing the
Obligations or the Assigned Obligations under the Notes or the Credit Agreement and (v) the
performance or failure to perform by the Borrower or any other Loan Party of any obligation under
the Credit Agreement or any other Loan Document to which it is a party. Further, the Assignee
acknowledges that it has, independently and without reliance upon the Agent, or on any affiliate or
subsidiary thereof, the Assignor or any other Lender and based on the financial statements supplied
by the Borrower and such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to become a Lender under the Credit Agreement. The Assignee also
acknowledges that it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit Agreement
or any other Loan Documents or pursuant to any other obligation. Except as expressly provided in
the Credit Agreement, the Agent shall have no duty or responsibility whatsoever, either initially
or on a continuing basis, to provide the Assignee with any credit or other information with respect
to the Borrower or any other Loan Party or to notify the Assignee of any Default or Event of
Default. The Assignee has not relied on the Agent as to any legal or factual matter in connection
therewith or in connection with the transactions contemplated thereunder.



Section 2. Payment by Assignee. In consideration of the assignment made pursuant to
Section 1 of this Agreement, the Assignee agrees to pay to the Assignor on the Assignment Date,
such amount as they may agree.


 


A-2 









 





Section 3. Payments by Assignor. The Assignor agrees to pay to the Agent on the
Assignment Date the administration fee, if any, payable under the applicable provisions of the
Credit Agreement.



Section 4. Representations and Warranties of Assignor. The Assignor hereby
represents and warrants to the Assignee that (a) as of the Assignment Date (i) the Assignor is a
Lender under the Credit Agreement having a Commitment under the Credit Agreement (without reduction
by any assignments thereof which have not yet become effective), equal to $                    , and that
the Assignor is not in default of its obligations under the Credit Agreement; and (ii) the
outstanding balance of Revolving Loans owing to the Assignor (without reduction by any assignments
thereof which have not yet become effective) is $                    ; and (b) it is the legal and
beneficial owner of the Assigned Commitment which is free and clear of any adverse claim created by
the Assignor.



Section 5. Representations, Warranties and Agreements of Assignee. The Assignee (a)
represents and warrants that it is (i) legally authorized to enter into this Agreement, (ii) an
“accredited investor” (as such term is used in Regulation D of the Securities Act) and (iii) an
Eligible Assignee; (b) confirms that it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant thereto and such other documents
and information (including without limitation the Loan Documents) as it has deemed appropriate to
make its own credit analysis and decision to enter into this Agreement; (c) appoints and authorizes
the Agent to take such action as contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms thereof together with
such powers as are reasonably incidental thereto; and (d) agrees that it will become a party to and
shall be bound by the Credit Agreement and the other Loan Documents to which the other Lenders are
a party on the Assignment Date and will perform in accordance therewith all of the obligations
which are required to be performed by it as a Lender.



Section 6. Recording and Acknowledgment by the Agent. Following the execution of
this Agreement, the Assignor will deliver to the Agent (a) a duly executed copy of this Agreement
for acknowledgment and recording by the Agent and (b) the Assignor’s Revolving Note. Upon such
acknowledgment and recording, from and after the Assignment Date, the Agent shall make all payments
in respect of the interest assigned hereby (including payments of principal, interest, Fees and
other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement for periods prior to the Assignment Date directly between
themselves.



Section 7. Addresses. The Assignee specifies as its address for notices and its
Lending Office for all Loans, the offices set forth on Schedule 1 attached hereto.



Section 8. Payment Instructions. All payments to be made to the Assignee under this
Agreement by the Assignor, and all payments to be made to the Assignee under the Credit Agreement,
shall be made as provided in the Credit Agreement in accordance with the instructions set forth on
Schedule 1 attached hereto or as the Assignee may otherwise notify the Agent.


 


A-3 









 





Section 9. Effectiveness of Assignment. This Agreement, and the assignment and
assumption contemplated herein, shall not be effective until (a) this Agreement is executed and
delivered by each of the Assignor, the Assignee, the Agent, and if required under Section 13.5.(d)
of the Credit Agreement, the Borrower, and (b) the payment to the Assignor of the amounts, if any,
owing by the Assignee pursuant to Section 2 hereof and (c) the payment to the Agent of the amounts,
if any, owing by the Assignor pursuant to Section 3 hereof. Upon recording and acknowledgment of
this Agreement by the Agent, from and after the Assignment Date, (i) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Agreement, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this
Agreement, relinquish its rights (except as otherwise provided in Section 13.10. of the Credit
Agreement) and be released from its obligations under the Credit Agreement; provided, however, that
if the Assignor does not assign its entire interest under the Loan Documents, it shall remain a
Lender entitled to all of the benefits and subject to all of the obligations thereunder with
respect to its Commitment.



Section 10. 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 11. Counterparts. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one and the same agreement.



Section 12. Headings. Section headings have been inserted herein for convenience
only and shall not be construed to be a part hereof.



Section 13. Amendments; Waivers. This Agreement may not be amended, changed, waived
or modified except by a writing executed by the Assignee and the Assignor; provided, however, any
amendment, waiver or consent which shall affect the rights or duties of the Agent under this
Agreement shall not be effective unless signed by the Agent.



Section 14. Entire Agreement. This Agreement embodies the entire agreement between
the Assignor and the Assignee with respect to the subject matter hereof and supersedes all other
prior arrangements and understandings relating to the subject matter hereof.



Section 15. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted assigns.



Section 16. Definitions. Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.



[Include this Section only if Borrower’s consent is required under Section 13.5.(d) Section
17. Agreements of the Borrower. The Borrower hereby agrees that the Assignee shall be a
Lender under the Credit Agreement having a Commitment equal to the Assigned Commitment. The
Borrower agrees that the Assignee shall have all of the rights and remedies of a Lender under the
Credit Agreement and the other Loan Documents as if the Assignee were an



 


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original Lender under and signatory to the Credit Agreement, including, but not limited to,
the right of a Lender to receive payments of principal and interest with respect to the Assigned
Obligations, and to the Revolving Loans made by the Lenders after the date hereof and to receive
the commitment and other Fees payable to the Lenders as provided in the Credit Agreement. Further,
the Assignee shall be entitled to the indemnification provisions from the Borrower in favor of the
Lenders as provided in the Credit Agreement and the other Loan Documents. The Borrower further
agrees, upon the execution and delivery of this Agreement, to execute in favor of the Assignee
Notes as required by Section 13.5.(d) of the Credit Agreement. Upon receipt by the Assignor of the
amounts due the Assignor under Section 2, the Assignor agrees to surrender to the Borrower such
Assignor’s Notes.]



[Signatures on Following Pages]




 


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IN WITNESS WHEREOF, the parties hereto have duly executed this Assignment and Acceptance
Agreement as of the date and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	ASSIGNOR:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	ASSIGNEE:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	Accepted as of the date first written above.
	 
	 	 	 	 	 	 
	AGENT:
	 
	 	 	 	 	 	 
	WACHOVIA BANK, NATIONAL
 ASSOCIATION, as Agent
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






[Signatures Continued on Following Page]




 


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[Include signature of the Borrower only if required

     under Section 13.5.(d) of the Credit Agreement]

Agreed and consented to as of the

     date first written above.



	 	 	 	 	 	 	 
	BORROWER:	 	 
	 
	 	 	 	 	 	 
	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 
	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	Its sole General Partner	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 


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SCHEDULE 1




Information Concerning the Assignee




	 	 	 	 	 	 	 
	Notice Address:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	Lending Office:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 
	 

	 	Telephone No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Telecopy No.:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 
	 	 	 	 
	Payment Instructions:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 
	 	 	 	 
	 	 	 	 	 







 


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EXHIBIT B




FORM OF GUARANTY




THIS GUARANTY dated as of February 28, 2007, executed and delivered by each of the undersigned
and the other Persons from time to time party hereto pursuant to the execution and delivery of an
Accession Agreement in the form of Annex I hereto (all of the undersigned, together with such other
Persons each a “Guarantor” and collectively, the “Guarantors”) in favor of (a) WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Agent (the “Agent”) for the Lenders under that certain
Amended and Restated Credit Agreement dated as of February 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
DiamondRock Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 13.5. thereof (the “Lenders”), the Agent, and the other
parties thereto, and (b) the Lenders and the Swingline Lender.



WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and the Swingline Lender
have agreed to make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;



WHEREAS, the Borrower and each of the Guarantors, though separate legal entities, are mutually
dependent on each other in the conduct of their respective businesses as an integrated operation
and have determined it to be in their mutual best interests to obtain financing from the Agent, the
Lenders and the Swingline Lender through their collective efforts;



WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent, the Lenders and the Swingline Lender making such financial accommodations available to
the Borrower under the Credit Agreement and, accordingly, each Guarantor is willing to guarantee
the Borrower’s obligations to the Agent, the Lenders and the Swingline Lender on the terms and
conditions contained herein; and



WHEREAS, each Guarantor’s execution and delivery of this Guaranty is a condition to the Agent
and the Lenders making, and continuing to make, such financial accommodations to the Borrower.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor agrees as follows:



Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of all of the following (collectively referred to as the
“Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any
Lender, the Swingline Lender or the Agent under or in connection with the Credit Agreement and any
other Loan Document, including without limitation, the repayment of all principal of the Revolving
Loans, Swingline Loans and the Reimbursement Obligations, and the payment of all interest,



 


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Fees, charges, attorneys’ fees and other amounts payable to any Lender or the Agent thereunder or
in connection therewith; (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all reasonable expenses, including, without limitation,
reasonable attorneys’ fees and disbursements, that are incurred by the Lenders and the Agent in the
enforcement of any of the foregoing or any obligation of such Guarantor hereunder; and (d) all
other Obligations.



Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly,
none of the Lenders, the Swingline Lender or the Agent shall be obligated or required before
enforcing this Guaranty against any Guarantor: (a) to pursue any right or remedy any of them may
have against the Borrower, any other Guarantor or any other Person or commence any suit or other
proceeding against the Borrower, any other Guarantor or any other Person in any court or other
tribunal; (b) to make any claim in a liquidation or bankruptcy of the Borrower, any other Guarantor
or any other Person; or (c) to make demand of the Borrower, any other Guarantor or any other Person
or to enforce or seek to enforce or realize upon any collateral security held by the Lenders, the
Swingline Lender or the Agent which may secure any of the Guarantied Obligations.



Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent, the Lenders or the Swingline Lender with respect thereto.
The liability of each Guarantor under this Guaranty shall be absolute, irrevocable and
unconditional in accordance with its terms and shall remain in full force and effect without regard
to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including without limitation, the following (whether or not
such Guarantor consents thereto or has notice thereof):



(a) (i) any change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or any
portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guarantied Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action
or inaction under or in respect of, the Credit Agreement, any of the other Loan Documents, or any
other documents, instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;



(b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan
Documents, or any other document, instrument or agreement referred to therein or evidencing any
Guarantied Obligations or any assignment or transfer of any of the foregoing;


 


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(c) any furnishing to the Agent, the Lenders or the Swingline Lender of any security for the
Guarantied Obligations, or any sale, exchange, release or surrender of, or realization on, any
collateral securing any of the Obligations;



(d) any settlement or compromise of any of the Guarantied Obligations, any security therefor,
or any liability of any other party with respect to the Guarantied Obligations, or any
subordination of the payment of the Guarantied Obligations to the payment of any other liability of
the Borrower or any other Loan Party;



(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower, any other Loan Party
or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;



(f) any act or failure to act by the Borrower, any other Loan Party or any other Person which
may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;



(g) any nonperfection or impairment of any security interest or other Lien on any collateral,
if any, securing in any way any of the Obligations;



(h) any application of sums paid by the Borrower, any other Guarantor or any other Person with
respect to the liabilities of the Borrower to the Agent, the Lenders or the Swingline Lender,
regardless of what liabilities of the Borrower remain unpaid;



(i) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the
exercise thereof;



(j) any defense, set-off, claim or counterclaim (other than indefeasible payment and
performance in full) which may at any time be available to or be asserted by the Borrower or any
other Person against the Agent or any Lender;




(k) any change in the corporate existence or structure of the Borrower; or



(l) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, a Guarantor hereunder (other than indefeasible payment and performance in full).



Section 4. Action with Respect to Guarantied Obligations. The Lenders and the Agent
may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and
without discharging any Guarantor from its obligations hereunder, take any and all actions
described in Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of any
of the Guarantied Obligations, including, but not limited to, extending or shortening the time of
payment of any of the Guarantied Obligations or changing the interest rate that may accrue on any
of the Guarantied Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any
other Loan Document; (c) sell, exchange, release or otherwise deal with all, or any part, of



 


B-3









 






any collateral securing any of the Obligations; (d) release any other Loan Party or other Person
liable in any manner for the payment or collection of the Guarantied Obligations; (e) exercise, or
refrain from exercising, any rights against the Borrower, any other Guarantor or any other Person;
and (f) apply any sum, by whomsoever paid or however realized, to the Guarantied Obligations in
such order as the Lenders shall elect.



Section 5. Representations and Warranties. Each Guarantor hereby makes to the Agent,
the Lenders and the Swingline Lender all of the representations and warranties made by the Borrower
with respect to or in any way relating to such Guarantor in the Credit Agreement and the other Loan
Documents, as if the same were set forth herein in full.



Section 6. Covenants. Each Guarantor will comply with all covenants which the
Borrower is to cause such Guarantor to comply with under the terms of the Credit Agreement or any
of the other Loan Documents.



Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable
Law, hereby waives notice of acceptance hereof or any presentment, demand, protest or notice of any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.



Section 8. Inability to Accelerate Loan. If the Agent, the Swingline Lender and/or
the Lenders are prevented under Applicable Law or otherwise from demanding or accelerating payment
of any of the Guarantied Obligations by reason of any automatic stay or otherwise, the Agent, the
Swingline Lender and/or the Lenders shall be entitled to receive from each Guarantor, upon demand
therefor, the sums which otherwise would have been due had such demand or acceleration occurred.



Section 9. Reinstatement of Guarantied Obligations. If claim is ever made on the
Agent, any Lender or the Swingline Lender for repayment or recovery of any amount or amounts
received in payment or on account of any of the Guarantied Obligations, and the Agent, such Lender
or the Swingline Lender repays all or part of said amount by reason of (a) any judgment, decree or
order of any court or administrative body of competent jurisdiction, or (b) any settlement or
compromise of any such claim effected by the Agent, such Lender or the Swingline Lender with any
such claimant (including the Borrower or a trustee in bankruptcy for the Borrower), then and in
such event each Guarantor agrees that any such judgment, decree, order, settlement or compromise
shall be binding on it, notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing any liability of the
Borrower, and such Guarantor shall be and remain liable to the Agent, such Lender or the Swingline
Lender for the amounts so repaid or recovered to the same extent as if such amount had never
originally been paid to the Agent, such Lender or the Swingline Lender.



Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account of the Borrower, such Guarantor shall be subrogated to the rights of the payee
against the Borrower; provided, however, that such Guarantor shall not enforce any right or



 


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receive any payment by way of subrogation or otherwise take any action in respect of any other
claim or cause of action such Guarantor may have against the Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and until all of the
Guarantied Obligations have been indefeasibly paid and performed in full. Once the Guarantied
Obligations have been indefeasibly paid and performed in full, the Agent agrees to furnish to such
Guarantor, at such Guarantor’s request and at such Guarantor’s sole cost and expense, any agreement
evidencing the foregoing subrogation as may be reasonably requested by such Guarantor and
reasonably satisfactory to the Agent. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action, such Guarantor shall
hold such amount in trust for the benefit of the Agent, the Lenders and the Swingline Lender and
shall forthwith pay such amount to the Agent to be credited and applied against the Guarantied
Obligations, whether matured or unmatured, in accordance with the terms of the Credit Agreement or
to be held by the Agent as collateral security for any Guarantied Obligations existing.



Section 11. Right of Contribution. The Guarantors hereby agree as among themselves
that, if any Guarantor shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such other Guarantor’s
Contribution Share (as defined below) of such Excess Payment. The payment obligations of any
Guarantor under this Section shall be subordinate and subject in right of payment to the
Obligations until such time as the Obligations have been paid in full and the Commitments have
expired or terminated, and none of the Guarantors shall exercise any right or remedy under this
Section against any other Guarantor until such Obligations have been paid in full and the
Commitments have expired or terminated. This Section shall not be deemed to affect any right of
subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Applicable
Law against the Borrower in respect of any payment of Guarantied Obligations. Notwithstanding the
foregoing, all rights of contribution against any Guarantor shall terminate from and after such
time, if ever, that such Guarantor shall cease to be a Guarantor in accordance with the applicable
provisions of the Loan Documents. For purposes of this Section, the following terms have the
indicated meanings:



(a) “Excess Payment” means the amount paid by any Guarantor in excess of its Ratable Share of
any Guarantied Obligations.



(b) “Ratable Share” means, for any Guarantor in respect of any payment of Obligations, the
ratio (expressed as a percentage) as of the date of such payment of Guarantied Obligations of (i)
the amount by which the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all
assets and other properties of all of the Loan Parties exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Loan Parties hereunder) of the Loan Parties; provided,
however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect
of any payment of Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such payment and the financial
information



 


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for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such
Guarantor in connection with such payment.



(c) “Contribution Share” means, for any Guarantor in respect of any Excess Payment made by any
other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment of (i)
the amount by which the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable value of all
assets and other properties of the Loan Parties other than the maker of such Excess Payment exceeds
the amount of all of the debts and liabilities (including contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Loan Parties) of the Loan Parties
other than the maker of such Excess Payment; provided, however, that, for purposes
of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed
to have been a Guarantor on the date of such Excess Payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment.



Section 12. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full,
without set-off or counterclaim or any deduction or withholding whatsoever (including any Taxes),
and if any Guarantor is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent, the Lenders and the Swingline
Lender such additional amount as will result in the receipt by the Agent, the Lenders and the
Swingline Lender of the full amount payable hereunder had such deduction or withholding not
occurred or been required.



Section 13. Set-off. In addition to any rights now or hereafter granted under any of
the other Loan Documents or Applicable Law and not by way of limitation of any such rights, each
Guarantor hereby authorizes the Agent and each Lender, at any time during the continuance of an
Event of Default, without any prior notice to such Guarantor or to any other Person, any such
notice being hereby expressly waived, but in the case of a Lender or Participant subject to receipt
of the prior written consent of the Agent exercised in its 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 Agent, such Lender, or any affiliate of the Agent or
such Lender, to or for the credit or the account of such Guarantor against and on account of any of
the Guarantied Obligations, although such obligations shall be contingent or unmatured. Each
Guarantor agrees, to the fullest extent permitted by Applicable Law, that any Participant may
exercise rights of setoff or counterclaim and other rights with respect to its participation as
fully as if such Participant were a direct creditor of such Guarantor in the amount of such
participation. Each Lender agrees to notify the Borrower and such Guarantor after any such set off
made by such Lender; provided, that the failure to give such notice shall not affect the validity
of such set off.


 


B-6









 





Section 14. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of the Agent, the Lenders and the Swingline Lender that all obligations and liabilities
of the Borrower to such Guarantor of whatever description, including without limitation, all
intercompany receivables of such Guarantor from the Borrower (collectively, the “Junior Claims”)
shall be subordinate and junior in right of payment to all Guarantied Obligations. If an Event of
Default shall exist, then no Guarantor shall accept any direct or indirect payment (in cash,
property or securities, by setoff or otherwise) from the Borrower on account of or in any manner in
respect of any Junior Claim until all of the Guarantied Obligations have been indefeasibly paid in
full.



Section 15. Avoidance Provisions. It is the intent of each Guarantor, the Agent, the
Lenders and the Swingline Lender that in any Proceeding, such Guarantor’s maximum obligation
hereunder shall equal, but not exceed, the maximum amount which would not otherwise cause the
obligations of such Guarantor hereunder (or any other obligations of such Guarantor to the Agent,
the Lenders and the Swingline Lender) to be avoidable or unenforceable against such Guarantor in
such Proceeding as a result of Applicable Law, including without limitation, (a) Section 548 of the
Bankruptcy Code of 1978, as amended (the “Bankruptcy Code”) and (b) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such Proceeding, whether by virtue of Section
544 of the Bankruptcy Code or otherwise. The Applicable Laws under which the possible avoidance or
unenforceability of the obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent, the Lenders and the Swingline Lender) shall be determined in any such
Proceeding are referred to as the “Avoidance Provisions”. Accordingly, to the extent that the
obligations of any Guarantor hereunder would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Guarantied Obligations for which such Guarantor shall be liable hereunder
shall be reduced to that amount which, as of the time any of the Guarantied Obligations are deemed
to have been incurred under the Avoidance Provisions, would not cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the Agent, the Lenders and the
Swingline Lender), to be subject to avoidance under the Avoidance Provisions. This Section is
intended solely to preserve the rights of the Agent, the Lenders and the Swingline Lender hereunder
to the maximum extent that would not cause the obligations of any Guarantor hereunder to be subject
to avoidance under the Avoidance Provisions, and no Guarantor or any other Person shall have any
right or claim under this Section as against the Agent, the Lenders and the Swingline Lender that
would not otherwise be available to such Person under the Avoidance Provisions.



Section 16. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of the Borrower and the other Guarantors, and of
all other circumstances bearing upon the risk of nonpayment of any of the Guarantied Obligations
and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Agent, the Lenders or the Swingline Lender shall have any duty whatsoever
to advise any Guarantor of information regarding such circumstances or risks.



Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK



 


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APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.




SECTION 18. WAIVER OF JURY TRIAL.



(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY
GUARANTOR, THE AGENT 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 AGENT AND EACH GUARANTOR 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 GUARANTY OR
ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER
BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO
ANY OF THE LOAN DOCUMENTS.



(b) EACH OF THE GUARANTORS, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, AT THE OPTION OF THE AGENT, ANY STATE COURT LOCATED
IN THE BOROUGH OF MANHATTAN OF NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM. EACH GUARANTOR AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS
OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH 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
AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT 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



 


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EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS GUARANTY.



Section 19. Loan Accounts. The Agent, each Lender and the Swingline Lender may
maintain books and accounts setting forth the amounts of principal, interest and other sums paid
and payable with respect to the Guarantied Obligations, and in the case of any dispute relating to
any of the outstanding amount, payment or receipt of any of the Guarantied Obligations or
otherwise, the entries in such books and accounts shall be deemed conclusive evidence of the
amounts and other matters set forth herein, absent manifest error. The failure of the Agent, any
Lender or the Swingline Lender to maintain such books and accounts shall not in any way relieve or
discharge any Guarantor of any of its obligations hereunder.



Section 20. Waiver of Remedies. No delay or failure on the part of the Agent, any
Lender or the Swingline Lender in the exercise of any right or remedy it may have against any
Guarantor hereunder or otherwise shall operate as a waiver thereof, and no single or partial
exercise by the Agent, any Lender or the Swingline Lender of any such right or remedy shall
preclude any other or further exercise thereof or the exercise of any other such right or remedy.



Section 21. Termination. This Guaranty shall remain in full force and effect until
indefeasible payment in full of the Guarantied Obligations and the other Obligations and the
termination or cancellation of the Credit Agreement in accordance with its terms.



Section 22. Successors and Assigns. Each reference herein to the Agent or the
Lenders shall be deemed to include such Person’s respective successors and assigns (including, but
not limited to, any holder of the Guarantied Obligations) in whose favor the provisions of this
Guaranty also shall inure, and each reference herein to each Guarantor shall be deemed to include
such Guarantor’s successors and assigns, upon whom this Guaranty also shall be binding. The
Lenders and the Swingline Lender may, in accordance with the applicable provisions of the Credit
Agreement, assign, transfer or sell any Guarantied Obligation, or grant or sell participations in
any Guarantied Obligations, to any Person without the consent of, or notice to, any Guarantor and
without releasing, discharging or modifying any Guarantor’s obligations hereunder. Subject to
Section 13.8. of the Credit Agreement, each Guarantor hereby consents to the delivery by the Agent
or any Lender to any Assignee or Participant (or any prospective Assignee or Participant) of any
financial or other information regarding the Borrower or any Guarantor. No Guarantor may assign or
transfer its obligations hereunder to any Person without the prior written consent of all Lenders
and any such assignment or other transfer to which all of the Lenders have not so consented shall
be null and void.



Section 23. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE GUARANTORS
HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE
FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF
EACH OF THE OTHER GUARANTORS HEREUNDER.


 


B-9









 





Section 24. Amendments. This Guaranty may not be amended except in writing signed by
the Requisite Lenders (or all of the Lenders if required under the terms of the Credit Agreement),
the Agent and each Guarantor.



Section 25. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent at the Principal
Office, not later than 2:00 p.m. on the date of demand therefor.



Section 26. Notices. All notices, requests and other communications hereunder shall
be in writing (including facsimile transmission or similar writing) and shall be given (a) to each
Guarantor at its address set forth below its signature hereto, (b) to the Agent, any Lender or the
Swingline Lender at its respective address for notices provided for in the Credit Agreement, or (c)
as to each such party at such other address as such party shall designate in a written notice to
the other parties. Each such notice, request or other communication shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand delivered, when
delivered; provided, however, that any notice of a change of address for notices shall not be
effective until received.



Section 27. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



Section 28. Headings. Section headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.



Section 29. Limitation of Liability. Neither the Agent nor any Lender, nor any
affiliate, officer, director, employee, attorney, or agent of the Agent or any Lender, shall have
any liability with respect to, and each Guarantor 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 a Guarantor in connection with, arising out of, or in any way related to,
this Guaranty or any of the other Loan Documents, or any of the transactions contemplated by this
Guaranty, the Credit Agreement or any of the other Loan Documents. Each Guarantor hereby waives,
releases, and agrees not to sue the Agent or any Lender or any of the Agent’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 any way related to, this Guaranty, the Credit
Agreement or any of the other Loan Documents, or any of the transactions contemplated by Credit
Agreement or financed thereby.



Section 30. Release of Guarantor. If expressly permitted by the Credit Agreement, a
Guarantor may be released from this Guaranty in accordance with the terms of the Credit Agreement.




Section 31. Definitions. (a) For the purposes of this Guaranty:



“Proceeding” means any of the following: (i) a voluntary or involuntary case
concerning any Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a



 


B-10









 






custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed
for, or takes charge of, all or any substantial part of the property of any Guarantor; (iii) any
other proceeding under any Applicable Law, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up or composition for adjustment of debts, whether now or hereafter in
effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general assignment for the benefit
of creditors; (vii) any Guarantor shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; (viii) any Guarantor shall call a
meeting of its creditors with a view to arranging a composition or adjustment of its debts; (ix)
any Guarantor shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or (x) any corporate action shall be taken by any Guarantor
for the purpose of effecting any of the foregoing.



(b) Terms not otherwise defined herein are used herein with the respective meanings given them
in the Credit Agreement.



[Signature on Next Page]




 


B-11









 







IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	[GUARANTORS]
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	Address for Notices:
	 	 	c/o DiamondRock Hospitality Limited Partnership
	 	 	6903 Rockledge Dr., Suite 800
	 	 	Bethesda, Maryland 20817
	 	 	Attention: Michael Schecter
	 	 	Telephone:    (240) 744-1170
	 	 	Telecopy:      (240) 744-1199






 


B-12









 





ANNEX I




FORM OF ACCESSION AGREEMENT




THIS ACCESSION AGREEMENT dated as of                     , 200_____, executed and delivered by
                                        , a                      (the “New Guarantor”), in favor of (a) WACHOVIA BANK,
NATIONAL ASSOCIATION, in its capacity as Agent (the “Agent”) for the Lenders under that certain
Amended and Restated Credit Agreement dated as of February 28, 2007 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among
DiamondRock Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 13.5. thereof (the “Lenders”), the Agent, and the other
parties thereto, and (b) the Lenders and the Swingline Lender.



WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and the Swingline Lender
have agreed to make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;



WHEREAS, the Borrower, the New Guarantor, and the existing Guarantors, though separate legal
entities, are mutually dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests to obtain
financing from the Agent, the Lenders and the Swingline Lender through their collective efforts;



WHEREAS, the New Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent, the Lenders and the Swingline Lender making such financial accommodations available to
the Borrower under the Credit Agreement and, accordingly, the New Guarantor is willing to guarantee
the Borrower’s obligations to the Agent, the Lenders and the Swingline Lender on the terms and
conditions contained herein; and



WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to the
Agent, the Lenders and the Swingline Lender continuing to make such financial accommodations to the
Borrower.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:



Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a
“Guarantor” under that certain Guaranty dated as of February 28, 2007 (as amended, supplemented,
restated or otherwise modified from time to time, the “Guaranty”), made by each Subsidiary of the
Borrower a party thereto in favor of the Agent, the Lenders and the Swingline Lender and assumes
all obligations of a “Guarantor” thereunder, all as if the New Guarantor had been an original
signatory to the Guaranty. Without limiting the generality of the foregoing, the New Guarantor
hereby:


 


B-13









 





(a) irrevocably and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all Guarantied Obligations
(as defined in the Guaranty);



(b) makes to the Agent, the Lenders and the Swingline Lender as of the date hereof each of the
representations and warranties contained in Section 5 of the Guaranty and agrees to be bound by
each of the covenants contained in Section 6 of the Guaranty; and




(c) consents and agrees to each provision set forth in the Guaranty.



SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.



Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit Agreement.



[Signatures on Next Page]




 


B-14









 







IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be duly executed
and delivered under seal by its duly authorized officers as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	[NEW GUARANTOR]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 	 	Address for Notices:	 	 
	 	 	c/o DiamondRock Hospitality Limited Partnership	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 
	 	 	Attention:	 	 	 	 
	 	 	Telecopy Number:     (               )                                  	 	 
	 	 	Telephone Number:   (               )                                  	 	 






	 	 	 	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 	 	 
	WACHOVIA BANK, NATIONAL
 ASSOCIATION, as Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 







 


B-15











 





EXHIBIT C




FORM OF NOTICE OF BORROWING




____________, 200_




Wachovia Bank, National Association, as Agent

One Wachovia Center

301 South College Street

Mail Code: NC0166

Charlotte, North Carolina 28288-0166

Attention: ___________



Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement dated as of February
28, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among DiamondRock Hospitality Limited Partnership (the “Borrower”), the
financial institutions party thereto and their assignees under Section 13.5. thereof (the
“Lenders”), Wachovia Bank, National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.




	 	1.	 	Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower hereby
requests that the Lenders make Revolving Loans to the Borrower in an aggregate
principal amount equal to $_____.







	 	2.	 	The Borrower requests that such Revolving Loans be made available to the
Borrower on
 _____, 200_.







	 	3.	 	The Borrower hereby requests that the requested Revolving Loans all be of the
following Type:







[Check one box only]



o Base Rate Loans



o LIBOR Loans, each with an initial Interest Period for a duration of:



	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 month
	 

	 	o
	 	2 months
	 

	 	o
	 	3 months
	 

	 	o
	 	6 months
	 

	 	o
	 	9 months1
	 

	 	o
	 	12 months2





 






	 	 	 
	1	 	If available from all Lenders.

	 
	2	 	If available from all Lenders.




 


C-1









 






	 	4.	 	The proceeds of this borrowing of Revolving Loans will be used for the
following purpose:
                              
                   
                   
                   
                   
                   
               
                   
                   
                     .







	 	5.	 	The Borrower requests that the proceeds of this borrowing of Revolving Loans be
made available to the Borrower by wire transfer in immediately available funds to:
[insert wire instructions for Borrower’s account].






The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof and as
of the date of the making of the requested Revolving Loans and after giving effect thereto, (a) no
Default or Event of Default exists or shall exist, and (b) 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. In addition, the Borrower certifies to the Agent and the Lenders that all conditions to
the making of the requested Revolving Loans contained in Article VI. of the Credit Agreement will
have been satisfied (or waived in accordance with the applicable provisions of the Loan Documents)
at the time such Revolving Loans are made.



If notice of the requested borrowing of Revolving Loans was previously given by telephone,
this notice is to be considered the written confirmation of such telephone notice required by
Section 2.1.(b) of the Credit Agreement.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Borrowing
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	 	 	its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







 


C-2









 








EXHIBIT D




FORM OF NOTICE OF CONTINUATION




____________, 200_




Wachovia Bank, National Association, as Agent

One Wachovia Center

301 South College Street

Mail Code: NC0166

Charlotte, North Carolina 28288-0166

Attention:
 __________





Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement dated as of February
28, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among DiamondRock Hospitality Limited Partnership (the “Borrower”), the
financial institutions party thereto and their assignees under Section 13.5. thereof (the
“Lenders”), Wachovia Bank, National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.



Pursuant to Section 2.8. of the Credit Agreement, the Borrower hereby requests a Continuation
of a borrowing of Loans under the Credit Agreement, and in that connection sets forth below the
information relating to such Continuation as required by such Section of the Credit Agreement:




	 	1.	 	The proposed date of such Continuation is
 _________, 200_.







	 	2.	 	The aggregate principal amount of Loans subject to the requested Continuation
is $________________ 
and was originally borrowed by the Borrower on
 __________, 200_.







	 	3.	 	The portion of such principal amount subject to such Continuation is
$__________.







	 	4.	 	The current Interest Period for each of the Loans subject to such Continuation
ends on
 _________, 200_.







	 	5.	 	The duration of the new Interest Period for each of such Loans or portion
thereof subject to such Continuation is:





 


D-1









 





	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 month
	 

	 	o
	 	2 months
	 

	 	o
	 	3 months
	 

	 	o
	 	6 months
	 

	 	o
	 	9 months1
	 

	 	o
	 	12 months2






The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof, as of
the proposed date of the requested Continuation, and after giving effect to such Continuation, no
Default or Event of Default exists or will exist.



If notice of the requested Continuation was given previously by telephone, this notice is to
be considered the written confirmation of such telephone notice required by Section 2.8. of the
Credit Agreement.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	 	 	its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





 






	 	 	 
	1	 	If available from all Lenders.

	 
	2	 	If available from all Lenders.




 


D-2









 









EXHIBIT E




FORM OF NOTICE OF CONVERSION




____________, 200_




Wachovia Bank, National Association, as Agent

One Wachovia Center

301 South College Street

Mail Code: NC0166

Charlotte, North Carolina 28288-0166

Attention: _________





Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement dated as of February
28, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among DiamondRock Hospitality Limited Partnership (the “Borrower”), the
financial institutions party thereto and their assignees under Section 13.5. thereof (the
“Lenders”), Wachovia Bank, National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.



Pursuant to Section 2.9. of the Credit Agreement, the Borrower hereby requests a Conversion of
a borrowing of Loans of one Type into Loans of another Type under the Credit Agreement, and in that
connection sets forth below the information relating to such Conversion as required by such Section
of the Credit Agreement:




	 	1.	 	The proposed date of such Conversion is
 _________, 200__.







	 	2.	 	The Loans to be Converted pursuant hereto are currently:






	 	 	 	 	 
	[Check one box only]

	 	o
	 	Base Rate Loans
	 

	 	o
	 	LIBOR Loans







	 	3.	 	The aggregate principal amount of Loans subject to the requested Conversion is
$_____
and was originally borrowed by the Borrower on
 ________, 200__.







	 	4.	 	The portion of such principal amount subject to such Conversion is
$_________.





 


E-1









 






	 	5.	 	The amount of such Loans to be so Converted is to be converted into Loans of
the following Type:







[Check one box only]




o Base Rate Loans




o LIBOR Loans, each with an initial Interest Period for a duration of:



	 	 	 	 	 
	[Check one box only]

	 	o
	 	1 month
	 

	 	o
	 	2 months
	 

	 	o
	 	3 months
	 

	 	o
	 	6 months
	 

	 	o
	 	9 months1
	 

	 	o
	 	12 months2






The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof and as
of the date of the requested Conversion and after giving effect thereto, (a) no Default or Event of
Default exists or will exist (provided the certification under this clause (a) shall not be made in
connection with the Conversion of a Loan into a Base Rate Loan), and (b) 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.



If notice of the requested Conversion was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section 2.9. of the Credit
Agreement.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Conversion
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	 	 	its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





 






	 	 	 
	1	 	If available from all Lenders.

	 
	2	 	If available from all Lenders.




 


E-2









 









EXHIBIT F




FORM OF NOTICE OF SWINGLINE BORROWING




____________, 200__




Wachovia Bank, National Association, as Agent

One Wachovia Center

301 South College Street

Mail Code: NC0166

Charlotte, North Carolina 28288-0166

Attention:
 ___________ 





Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement dated as of February
28, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among DiamondRock Hospitality Limited Partnership (the “Borrower”), the
financial institutions party thereto and their assignees under Section 13.5. thereof (the
“Lenders”), Wachovia Bank, National Association, as Agent (the “Agent”), and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.




	 	1.	 	Pursuant to Section 2.2.(b) of the Credit Agreement, the Borrower hereby
requests that the Swingline Lender make a Swingline Loan to the Borrower in an amount
equal to $__________.







	 	2.	 	The Borrower requests that such Swingline Loan be made available to the
Borrower on
 _________, 200__.







	 	3.	 	The proceeds of this Swingline Loan will be used for the following purpose:
                               
                               
                               
                               
                               
                               
                             
                              .







	 	4.	 	The Borrower requests that the proceeds of such Swingline Loan be made
available to the Borrower by wire transfer in immediately available funds to: [insert
wire instructions for Borrower’s account].






The Borrower hereby certifies to the Agent, the Swingline Lender and the Lenders that as of
the date hereof, as of the date of the making of the requested Swingline Loan, and after making
such Swingline Loan, (a) no Default or Event of Default exists or will exist, and (b) 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


 


F-1









 





factual circumstances not prohibited under the Loan Documents. In addition, the Borrower certifies
to the Agent and the Lenders that all conditions to the making of the requested Swingline Loan
contained in Article VI. of the Credit Agreement will have been satisfied at the time such
Swingline Loan is made.



If notice of the requested borrowing of this Swingline Loan was previously given by telephone,
this notice is to be considered the written confirmation of such telephone notice required by
Section 2.2.(b) of the Credit Agreement.



IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Swingline
Borrowing as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	 	 	its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







 


F-2









 







EXHIBIT G




FORM OF SWINGLINE NOTE




			
	 	 	 
	$25,000,000
	 	February 28, 2007






FOR VALUE RECEIVED, the undersigned, DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the State of Delaware (the “Borrower”), hereby promises to pay
to the order of WACHOVIA BANK, NATIONAL ASSOCIATION (the “Swingline Lender”) to its address at One
Wachovia Center, 301 South College Street, Charlotte, North Carolina 28288, or at such other
address as may be specified in writing by the Swingline Lender to the Borrower, the principal sum
of TWENTY FIVE MILLION AND NO/100 DOLLARS ($25,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of Swingline Loans made by the Swingline Lender to the Borrower
under the Credit Agreement), on the dates and in the principal amounts provided in the Credit
Agreement, and to pay interest on the unpaid principal amount owing hereunder, at the rates and on
the dates provided in the Credit Agreement.



The date, amount of each Swingline Loan, and each payment made on account of the principal
thereof, shall be recorded by the Swingline Lender on its books and, prior to any transfer of this
Note, endorsed by the Swingline Lender on the schedule attached hereto or any continuation thereof,
provided that the failure of the Swingline Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower to make a payment when due of any amount owing under the
Credit Agreement or hereunder in respect of the Swingline Loans.



This Note is the Swingline Note referred to in the Amended and Restated Credit Agreement dated
as of February 28, 2007 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement”), by and among the Borrower, the financial institutions party thereto
and their assignees under Section 13.5. thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent, and the other parties thereto, and evidences Swingline Loans made to the
Borrower thereunder. Terms used but not otherwise defined in this Note have the respective
meanings assigned to them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Swingline Loans upon the terms and conditions
specified therein.



THIS NOTE 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.



The Borrower hereby waives presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices.


 


G-1









 






Time is of the essence for this Note.



IN WITNESS WHEREOF, the undersigned has executed and delivered this Swingline Note under seal
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,	 	 
	 	 	 	 	its sole General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







 


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SCHEDULE OF SWINGLINE LOANS




This Note evidences Swingline Loans made under the within-described Credit Agreement to the
Borrower, on the dates and in the principal amounts set forth below, subject to the payments and
prepayments of principal set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal Amount	 	 	Amount Paid or	 	 	Unpaid Principal	 	 	 	 
	Date of Loan	 	of Loan	 	 	Prepaid	 	 	Amount	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 







 


G-3 









 







EXHIBIT H




FORM OF REVOLVING NOTE




			
	 	 	 
	$                    
	 	                    , 200_






FOR VALUE RECEIVED, the undersigned, DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the State of Delaware (the “Borrower”), hereby promises to pay
to the order of
 _____ 
(the “Lender”), in care of Wachovia Bank, National
Association, as Agent (the “Agent”) at Wachovia Bank, National Association, One Wachovia Center,
301 South College Street, Charlotte, North Carolina 28288, or at such other address as may be
specified in writing by the Agent to the Borrower, the principal sum of
 _____ 
AND

 _____/100 DOLLARS ($_____) (or such lesser amount as shall equal the aggregate unpaid
principal amount of Revolving Loans made by the Lender to the Borrower under the Credit Agreement
(as herein defined)), on the dates and in the principal amounts provided in the Credit Agreement,
and to pay interest on the unpaid principal amount owing hereunder, at the rates and on the dates
provided in the Credit Agreement.



The date, amount of each Revolving Loan made by the Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded by the Lender on its books and, prior
to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder in respect of the Revolving Loans made by the
Lender.



This Note is one of the Revolving Notes referred to in the Amended and Restated Credit
Agreement dated as of February 28, 2007 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by and among the Borrower, the financial institutions
party thereto and their assignees under Section 13.5. thereof (the “Lenders”), the Agent, and the
other parties thereto. Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.



The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
therein.



Except as permitted by Section 13.5.(d) of the Credit Agreement, this Note may not be assigned
by the Lender to any other Person.



THIS NOTE 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.


 


H-1 









 





The Borrower hereby waives presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices.




Time is of the essence for this Note.



IN WITNESS WHEREOF, the undersigned has executed and delivered this Revolving Note under seal
as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	DiamondRock Hospitality Company,
	 	 	 	 	its sole General Partner
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 






 


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SCHEDULE OF REVOLVING LOANS




This Note evidences Revolving Loans made under the within-described Credit Agreement to the
Borrower, on the dates, in the principal amounts, bearing interest at the rates and maturing on the
dates set forth below, subject to the payments and prepayments of principal set forth below:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Principal Amount	 	 	Amount Paid or	 	 	Unpaid Principal	 	 	 	 
	Date of Loan	 	of Loan	 	 	Prepaid	 	 	Amount	 	 	Notation Made By	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 






 


H-3 









 





EXHIBIT I




FORM OF OPINION OF COUNSEL




[See attached]





 


 









 









787 Seventh Avenue

New York, NY 10019-6099

Tel: 212 728 8000

Fax: 212 728 8111




February __, 2007




Wachovia Bank, National Association, as Agent

301 S. College Street, NC0172

Charlotte, North Carolina 28288-0166




The Lenders party to the Credit Agreement

referred to below



Ladies and Gentlemen:



We have acted as counsel to DiamondRock Hospitality Limited Partnership, a limited partnership
formed under the laws of the State of Delaware (the “Borrower”), and DiamondRock
Hospitality Company, a corporation incorporated under the laws of the State of Maryland (the
“Parent”), in connection with the negotiation, execution and delivery of that certain
Amended and Restated Credit Agreement, dated as of February ___, 2007 (the “Credit
Agreement”), by and among the Borrower, the Parent, the financial institutions party thereto
and their assignees under Section 13.5(d). thereof (the “Lenders”), Wachovia Bank, National
Association, as Agent (the “Agent”), and the other agents and parties thereto
(collectively, the “Other Agents”) and the other Loan Documents identified below. We have
also acted as counsel to each of (i) the subsidiary guarantors listed on Schedule I attached hereto
(the “Non-Tenant Subsidiary Guarantors” and, together with the Borrower, the “Delaware
Opinion Parties”) and (ii) the subsidiary guarantors listed on Schedule II attached hereto (the
“Tenant Subsidiary Guarantors”), in connection with the Guaranty. This opinion is being
delivered to you pursuant to Section 6.1(a)(viii) of the Credit Agreement.



Capitalized terms not otherwise defined in this opinion are used as defined in the Credit
Agreement. As used herein, “Opinion Parties” refers to the Delaware Opinion Parties and
the Parent, and “Loan Parties” refers to the Opinion Parties and the Tenant Subsidiary
Guarantors.

In connection with this opinion, we have examined copies of:




	1.	 	the Credit Agreement,
	 
	2.	 	the Swingline Note executed by Borrower (the “Swingline Note”),
	 
	3.	 	each Revolving Note executed by Borrower (the “Revolving Note” and, together with the
Swingline Note, the “Notes”),




 


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Wachovia Bank, National Association

The Lenders referred to herein

February ___, 2007

Page 2





	4.	 	the Guaranty, dated as of February ___, 2007 (the “Guaranty”), by the Guarantors (as
defined therein) in favor of the Agent for the Lenders,
	 
	5.	 	the respective certificates of limited partnership, formation and incorporation, as
applicable (the “Charters”), of the Delaware Opinion Parties, each certified by the
Secretary of State of the State of Delaware, the by-laws, limited partnership agreement and
limited liability company agreements, as applicable (the “Operating Documents”), of
the Delaware Opinion Parties, and certain resolutions of the respective boards of directors or
general partner of the Delaware Opinion Parties (the “Resolutions” and, together with
the Charters and the Operating Documents, the “Organizational Documents”), and
	 
	6.	 	the respective certificates of the Secretary of State of the State of Delaware and the
Secretaries of State of the relevant foreign jurisdictions as to the existence and good
standing of the Delaware Opinion Parties (the “Good Standing Certificates”).





We have also examined originals or copies (certified or otherwise identified to our satisfaction)
of such corporate records, agreements, documents and other instruments, and such certificates or
comparable documents of public officials and of officers and representatives of the Borrower, and
have made such inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions and views hereinafter set forth.



The agreements referred to in the foregoing clauses (1) through (4) above are hereinafter referred
to as the “Loan Documents.”



In our examination, we have assumed:




	(i)	 	the genuineness of all signatures of all parties other than the signatures of the Delaware
Opinion Parties,






	(ii)	 	the authenticity of all company and corporate records, agreements, documents, instruments and
certificates submitted to us as originals, the conformity to original documents and agreements
of all documents and agreements submitted to us as conformed, certified or photostatic copies
thereof and the authenticity of the originals of such conformed, certified or photostatic
copies,






	(iii)	 	the due authorization of all documents and agreements by all parties thereto other than the
Delaware Opinion Parties and the execution and delivery of all documents and agreements by all
parties other than the Delaware Opinion Parties,the legal right and power of all such parties
other than the Delaware Opinion Parties under all applicable laws and regulations to enter
into, execute and deliver such agreements and documents,






	(iv)	 	the Parent is duly incorporated, validly existing, and in good standing, under the laws of
the State of Maryland and has the corporate power and authority to own its properties and to
carry on its business as now being conducted,





Wachovia Bank, National Association


 


I-2









 





The Lenders referred to herein

February ___, 2007

Page 3





	(v)	 	each of the Tenant Subsidiary Guarantors is duly incorporated or formed, validly existing,
and in good standing, under the laws of the State of Delaware and has the corporate or limited






	(vi)	 	liability company power and authority to own its properties and to carry on its business as
now being conducted,






	(vii)	 	the Parent, the Tenant Subsidiary Guarantors, the Lenders, the Agent and the Other Agents
have the requisite power and authority to enter into the Loan Documents to which they are a
party and to consummate the transactions contemplated thereby, and each such Person has duly
authorized, executed and delivered each Loan Document to which it is a party,






	(vii)	 	the absence of any requirement of consent, approval or authorization by any Person or by any
Governmental Authority with respect to the Tenant Subsidiary Guarantors, the Lenders, the
Agent and the Other Agents, and






	(viii)	 	that the Loan Documents are legal, valid and binding obligations of the Lenders, the Agent
and the Other Agents parties thereto, enforceable against such Persons in accordance with
their respective terms.





As to questions of fact material to such opinions, we have, when relevant facts were not
independently established by us, relied upon representations of the Loan Parties and their
respective officers made in or pursuant to the Loan Documents and of public officials and, to our
knowledge, there are no contradictory facts as to any such matters on which we have so relied.



As used herein, the term “Applicable Laws” means the Federal laws and the laws of the State
of New York which, in our experience, are normally applicable to transactions of the type
contemplated by the Loan Documents, the Delaware General Corporation Law, and the Delaware Limited
Liability Company Act and the Delaware Revised Uniform Limited Partnership Act. The term
“Governmental Approval” means any consent, approval, license, authorization or validation
of, or filing, recording or registration with, any Governmental Authority pursuant to the
Applicable Laws.



Based upon the foregoing and subject to the assumptions, limitations, qualifications and exceptions
set forth below, we are of the opinion that:




	1.	 	Each Delaware Opinion Party (a) is a corporation, limited liability company or limited
partnership, as applicable, duly incorporated or formed, as applicable, validly existing and
in good standing under the laws of the State of Delaware based on our review of the Charters
and the Good Standing Certificates and (b) has all requisite power and authority to own and
operate its property and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the
consummation of the transactions contemplated by each of the Loan Documents to which it is a
party. Based solely on a review of the Good Standing Certificates of the Secretary of State
of each of the relevant jurisdictions, each Non-Tenant Subsidiary Guarantor is qualified to
transact business as a foreign corporation or limited liability company, as applicable, in
the indicated jurisdictions set forth on Schedule I attached hereto.




 


I-3









 










Wachovia Bank, National Association

The Lenders referred to herein

February ___, 2007

Page 4





	2.	 	Each Delaware Opinion Party has the requisite power and authority to execute and deliver the
Loan Documents to which it is a party and to perform its respective obligations under each
such Loan Document and, in the case of the Borrower, to borrow under the Credit Agreement.
The execution and delivery by each Delaware Opinion Party of the Loan Documents to which it is
a party and the performance by each such Person of its respective obligations under each Loan
Document have been duly authorized by all necessary corporate, limited liability company or
limited partnership action of such Delaware Opinion Party.






	3.	 	Each of the Loan Documents to which each Delaware Opinion Party is a party have been duly
executed and delivered by such Delaware Opinion Party. Each of the Loan Documents to which
any Loan Party is a party constitutes a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms.






	4.	 	The execution, delivery and performance by each Opinion Party of the Loan Documents to which
such Person is a party do not and will not (i) violate, in the case of the Delaware Opinion
Parties only, the Delaware Opinion Parties’ Organizational Documents, (ii) violate any
provision of the Applicable Laws binding on such Person or, to our knowledge, any order or
decree thereunder of any court or government agency or instrumentality binding upon such
Person, (iii) result in a breach of, or give rise to a default under or to any right to
require prepayment, repurchase or redemption of any obligation under any contractual
obligation under any agreement, instrument, indenture or other document evidencing any
indebtedness for money borrowed or any other material agreement, in each case, in respect of
which we have advised the Opinion Parties, to which, to our knowledge, such Opinion Party is a
party or by which any of them or any of their property is or may be bound or (iv) result in or
require the creation or imposition of any Lien upon any of the properties or assets of such
Opinion Party other than the Liens contemplated by the Loan Documents.






	5.	 	The execution, delivery and performance by each Opinion Party of the Loan Documents to which
such Person is a party do not and will not require any Governmental Approval, except (i)
corporate filings required to be made after the date hereof to maintain good standing and to
maintain or renew licenses and permits required for the Opinion Parties to operate their
respective businesses in the ordinary course of business, (ii) Governmental Approvals required
for the exercise by the Agent, the Lenders and the Other Agents of their rights and remedies
under the Loan Documents and (iii) Governmental Approvals which have been obtained, given or
made.






	6.	 	No Opinion Party is (i) an “investment company” within the meaning of the Investment Company
Act of 1940, as amended or (ii) a “holding company”, or a “subsidiary company” of a “holding
company”, or an “affiliate” of a “holding company”, within the meaning of, or is otherwise
subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.





Wachovia Bank, National Association


 


I-4











 





The Lenders referred to herein

February ___, 2007

Page 5





	7.	 	To our knowledge, except as disclosed in the Loan Documents, there are no actions, suits or
proceedings at law or in equity by or before any arbitrator or Governmental Authority now
pending or threatened against or affecting the Opinion Parties (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve any of the Loan Documents.





The foregoing opinions are subject to the following assumptions, qualifications and exceptions:




	A.	 	The opinions expressed in opinion paragraph 3 above are qualified (i) by the effects
of applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to or affecting the enforcement of creditors’
rights generally, (ii) insofar as the remedies of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and the
discretion of the court before which any enforcement thereof may be brought and (iii)
insofar as proceedings therefore may be limited by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law or in
equity), including principles of commercial reasonableness and an implied covenant of
good faith and fair dealing. Such principles of equity are of general application,
and in applying such principles, a court, among other things, might not allow a
creditor to accelerate the maturity of a debt, to realize upon any security for the
payment of such debt upon the occurrence of a default deemed immaterial, or to
exercise any right of set-off with respect to debt which is neither matured nor
accelerated, or might decline to order the applicable Loan Party to specifically
perform covenants. Insofar as provisions provide for indemnification, the enforcement
thereof may be limited by public policy considerations. Such opinions are further
subject to the qualification that certain remedial provisions of the Loan Documents
are or may be unenforceable in whole or in part under the laws of the State of New
York, but the inclusion of such provisions does not affect the validity of any Loan
Document in which any such provision is included, and such Loan Documents contain
adequate provisions for enforcing payment of the obligations thereunder and for the
practical realization of the rights and benefits afforded thereby.
	 






	B.	 	When used in this opinion, the phrase “to our knowledge” means the current actual
knowledge of attorneys within our firm who are actively involved in representing the
Loan Parties in connection with the matters referred to herein.
	 






	C.	 	We express no opinion as to (i) any provisions of the Loan Documents insofar as they
relate to (1) the subject matter jurisdiction of the federal courts to adjudicate any
controversy relating to the Loan Documents, (2) the waiver of defenses and the waiver
of inconvenient forum, (3) the waiver of the right to a jury trial or (4) rights of
set-off or (ii) any provisions of any Loan Document which purport to provide for a
rate of interest after judgment.
	 




 


I-5









 





Wachovia Bank, National Association

The Lenders referred to herein

February ___, 2007

Page 6




This opinion letter is limited to the matters stated herein and no opinion is implied or may be
inferred beyond the matters expressly stated. This opinion letter may not be quoted, distributed
or disclosed, except to your
counsel, to participants or assignees or, to the extent necessary, to an applicable regulatory
authority or pursuant to legal process, without our prior written consent.



This opinion letter speaks only as of the date hereof and is limited to present statutes,
regulations and administrative and judicial interpretations. We undertake no responsibility to
update or supplement this opinion letter after the date hereof, including without limitation with
respect to any action which may be required in the future to create a valid lien on after acquired
property or to perfect or continue the perfection of any security interest, including after a
change in the name, identity, corporate structure or location of any Loan Party.



No person or entity may rely or claim reliance upon this opinion letter other than you and your
permitted successors and assigns and the Lenders from time to time party to the Credit Agreement.



Very truly yours,


 


I-6









 





SCHEDULE I




NON-TENANT SUBSIDIARY GUARANTORS




	 	 	 	 	 
	 	 	JURISDICTION	 	JURISDICTIONS
	 	 	OF	 	OF FOREIGN
	NAME	 	FORMATION	 	QUALIFICATION
	Bloodstone TRS, Inc.
	 	Delaware	 	N/A
	DiamondRock
Alpharetta Owner, LLC
	 	Delaware	 	Georgia
	DiamondRock Boston Owner, LLC
	 	Delaware	 	Massachusetts
	DiamondRock Buckhead Owner, LLC
	 	Delaware	 	Georgia
	DiamondRock Chicago Conrad Owner, LLC
	 	Delaware	 	Illinois
	DiamondRock Oak Brook Owner, LLC
	 	Delaware	 	Illinois
	DiamondRock Sonoma Owner, LLC
	 	Delaware	 	California
	DiamondRock Torrance Owner, LLC
	 	Delaware	 	California
	DiamondRock Vail Owner, LLC
	 	Delaware	 	Colorado
	Noble-DiamondRock Perimeter Center Owner, LLC
	 	Delaware	 	Georgia






 


I-7









 





SCHEDULE II




TENANT SUBSIDIARY GUARANTORS




NAME




DiamondRock Alpharetta Tenant, LLC




DiamondRock Boston Tenant, LLC




DiamondRock Buckhead Tenant, LLC




DiamondRock Chicago Conrad Tenant, LLC




DiamondRock Oak Brook Tenant, LLC




DiamondRock Sonoma Tenant, LLC




DiamondRock Torrance Tenant, LLC




DiamondRock Vail Tenant, LLC




Noble-DiamondRock Perimeter Center Tenant, LLC





 


I-8












 







EXHIBIT J




FORM OF COMPLIANCE CERTIFICATE




                    , 200_




Wachovia Bank, National Association, as Agent

One Wachovia Center

301 South College Street

Mail Code: NC0166

Charlotte, North Carolina 28288-0166




Each of the Lenders Party to the Credit

      Agreement referred to below



Ladies and Gentlemen:



Reference is made to that certain Amended and Restated Credit Agreement dated as of February
28, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among DiamondRock Hospitality Limited Partnership (the “Borrower”), the
financial institutions party thereto and their assignees under Section 13.5. thereof (the
“Lenders”), Wachovia Bank, National Association, as Agent (the “Agent”) and the other parties
thereto. Capitalized terms used herein, and not otherwise defined herein, have their respective
meanings given them in the Credit Agreement.



Pursuant to Section 9.3. of the Credit Agreement, the undersigned hereby certifies, in such
person’s corporate and not individual capacity, to the Agent and the Lenders as follows:




(1) The undersigned is the                                          of the Parent.



(2) The undersigned has examined the books and records of the Parent and the Borrower and has
conducted such other examinations and investigations as are reasonably necessary to provide this
Compliance Certificate.



(3) To the best of my knowledge, information and belief after due inquiry, no Default or Event
of Default exists as of the date of this Compliance Certificate [if such is not the case, specify
such Default or Event of Default and its nature, when it occurred and whether it is continuing and
the steps being taken by the Borrower with respect to such event, condition or failure].



(4) The representations and warranties made or deemed made by the Borrower and the other Loan
Parties in the Loan Documents to which any is a party, are true and correct in all material
respects on and as of the date hereof except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations and



 


J-1 









 






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.



(5) Attached hereto as Schedule 1 are reasonably detailed calculations establishing whether or
not the Borrower and its Subsidiaries were in compliance with the covenants contained in Sections
10.1., 10.2. and 10.4. of the Credit Agreement.



IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first above
written.



	 	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 

	 	 	 	 

	 	 






 


J-2 









 





Schedule 1




[Calculations to be Attached]





 


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