Exhibit 10.2





 


THIRD AMENDMENT TO FIRST AMENDED
AND RESTATED CREDIT AGREEMENT


(Seven Year Term Loan)


 


THIRD
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as of May
7, 2020 among Summit Hotel OP, LP, a Delaware limited partnership
(the “Borrower”), SUMMIT HOTEL PROPERTIES, INC., a Maryland corporation (the “Parent
Guarantor”), the subsidiaries of the Borrower party hereto (the “Subsidiary
Guarantors” and together with the Parent Guarantor, the “Guarantors”), KEYBANK
NATIONAL ASSOCIATION, as administrative agent (the “Administrative Agent”) for the financial
institutions party to the Credit Agreement referred to below (collectively, the “Lender Parties”), and
the Required Lenders (as defined below).


 


PRELIMINARY STATEMENTS:


 


The Borrower, Summit
Hotel Properties, Inc. (the “Parent Guarantor”), the other guarantors named therein, Administrative Agent,
and the Lender Parties have entered into that certain First Amended and Restated Credit Agreement dated as of February 15, 2018,
as amended by that certain First Amendment to First Amended and Restated Credit Agreement dated as of December 6, 2018 and that
certain Second Amendment to First Amended and Restated Credit Agreement dated as of February 18, 2020 (the “Existing
Credit Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified
in the Existing Credit Agreement, as amended hereby;


 


WHEREAS, the Guarantors,
the Administrative Agent, the Borrower and certain Lenders party to the Existing Credit Agreement wish to amend the Existing Credit
Agreement to address certain changes to the terms thereof as set forth below; and


 


WHEREAS, pursuant to
Section 9.01 of the Existing Credit Agreement, and subject to the conditions precedent to the Amendment Effective Date set forth
in Section 12 of this Amendment, the Parent Guarantor, the Borrower, the Subsidiary Guarantors, the Administrative Agent and the
Lenders party hereto (representing the Required Lenders required pursuant to Section 9.01 of the Existing Credit Agreement) (collectively,
the “Required Lenders”), have agreed to amend the Existing Credit Agreement on the terms and subject
to the other conditions set forth herein.


 


SECTION
1. Amendments to the Existing Credit Agreement.
Upon the occurrence of the Amendment Effective Date (as defined in Section 12 below):


 


(a)           The Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the
following example: stricken text) and to add the underlined text (indicated
textually in the same manner as the following example: underlined
text) as set forth in the pages of the Existing Credit Agreement attached as Annex A (as so amended, the
“Amended Credit Agreement”).


 


(b)           The Existing Credit Agreement is hereby amended by adding new Exhibit H thereto in the form of Exhibit H hereto.


 


(c)           The Existing Credit Agreement is hereby amended by adding new Exhibit I thereto in the form of Exhibit I hereto.


 


(d)           The Existing Credit Agreement is hereby amended by replacing Schedules II, 4.01(b), 4.01(n), 4.01(o), and 4.01(p) annexed
thereto with Schedules II, 4.01(b), 4.01(n), 4.01(o), and 4.01(p) attached hereto, respectively.


 






     


     


    

 


SECTION
2. Temporary Modifications During Limited Waiver Period.
For the period from the Amendment Effective Date though the earlier of (i) the Reinstatement Date (as defined below) and (ii) March
31, 2021 (the “Limited Waiver Period”), the Existing Credit Agreement (as amended pursuant to Section
1 of this Amendment) shall be deemed modified and amended as follows:


 


(a)           Limited Waiver. The following provisions (collectively, the “Subject Provisions”) shall
be deemed waived and no Default or Event of Default shall be deemed to result from any violation thereof:


 


(i)               the requirements of clause (d) of the definition of Unencumbered Asset Pool Conditions;


 


(ii)              the requirement that the Borrower make mandatory prepayments under subsections 2.06(b)(i)(A) and 2.06(b)(i)(B);


 


(iii)            
the covenants in Sections 5.04(a)(i) (Maximum Leverage Ratio), 5.04(a)(ii) (Minimum Consolidated Tangible Net Worth), 5.04(a)(iv)
(Minimum Consolidated Fixed Charge Coverage Ratio), 5.04(a)(v) (Maximum Secured Leverage Ratio), 5.04(a)(vi) (Maximum Secured Recourse
Leverage Ratio) and Section 5.04(b) (Unencumbered Asset Pool Financial Covenants);


 


(iv)             the representations in (x) the last sentence of Section 4.01(g) (Financial Condition) and (y) Section 4.01(s) (Force Majeure)
for events or circumstances relating to the COVID-19 pandemic to the extent such events or circumstances have been publicly disclosed
by the Borrower in its securities filings; and


 


(v)              the requirement under Section 3.02 that the Borrower certify, pursuant to clause (z)(iii) thereof in connection with each
Commitment Increase, that (1) the Total Unencumbered Asset Value equals or exceeds the Consolidated Unsecured Indebtedness of the
Parent Guarantor that will be outstanding after giving effect to such Commitment Increase and (2) before and after giving effect
to such Commitment Increase the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04(b).


 


Without limiting the
generality of the provisions of Section 9.01 of the Existing Credit Agreement, the waiver set forth in this subsection 2(a)
shall be limited precisely as written, and nothing herein shall be deemed to (A) constitute a waiver of compliance by the Borrower
or any Guarantor with respect to (1) the Limited Waiver Period Subject Provisions other than during the Limited Waiver Period or
(2) any other term, provision or condition of the Loan Documents or any other instrument or agreement referred to in any of them,
or (B) prejudice any right or remedy that any Lender may now have or may have in the future under or in connection with the Existing
Credit Agreement, the other Loan Documents or any other instrument or agreement referred to in any of them or under applicable
laws. For the avoidance of doubt, the waivers of the Limited Waiver Period Subject Provisions set forth herein shall not extend
beyond the last day of the Limited Waiver Period, and such waivers shall be of no force or effect for any purpose after the last
day of the Limited Waiver Period.


 


(b)           Notices of Borrowing; Pledged Account. Each Notice of Borrowing during the Limited Waiver Period shall be substantially
in the form of Annex B attached hereto. Commitment Increases made to the Borrower during the Limited Waiver Period shall
be deposited into a deposit account (each, a “Pledged Account”) (i) established by the Borrower and maintained
with a bank that is a Lender selected by the Borrower and (ii) in which the Administrative Agent, for the benefit of the Secured
Parties, has been granted a perfected security interest (including in the funds on deposit therein) pursuant to a pledge agreement
substantially similar to the “Pledge Agreement” delivered to the administrative agent under the Revolving Credit Agreement
contemporaneously herewith and with respect to which a deposit account control agreement reasonably satisfactory to the Administrative
Agent has been executed and delivered by all applicable parties. Without limiting the foregoing, no Revolving Credit Advances shall
be made during the Limited Waiver Period unless and until the Borrower has satisfied the requirement in Section 14(b) relating
to the Deposit Account Control Agreement.


 






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(c)           Permitted Uses of Revolving Credit Advances. All proceeds of Revolving Credit Advances made during the Limited Waiver
Period shall be used only to fund (i) operating expenses of the business of the Borrower and its Subsidiaries including, without
limitation, the actual costs and expenses of owning, operating, managing, and maintaining the Assets including, without limitation,
repairs, real estate and chattel taxes, income taxes, principal and interest payments on Debt for Borrowed Money, payments for
FF&E, FF&E reserves and management fees, (ii) costs and expenses relating to the capital projects approved by the administrative
agent under the Revolving Credit Agreement and described in Schedule 2(c) attached hereto, (iii) costs and expenses reasonably
required to comply with applicable legal and franchise requirements pertaining to the ownership of the Assets and the operation
and management of the business of the Borrower and its Subsidiaries, (iv) costs and expenses required on an emergency basis to
avoid damage or injury to persons or property pertaining to the ownership of the Assets and the operation and management of the
business of the Borrower and its Subsidiaries, (v) dividends on Preferred Interests issued prior to the Amendment Closing Date
and otherwise permitted to be paid during the Limited Waiver Period by the terms of the Existing Credit Agreement as amended hereby,
(vi) obligations of the Borrower under (x) the $28,900,000 Mezzanine Construction Loan Agreement between Borrower as mezzanine
lender and C-F Brickell Mezz, LLC as mezzanine borrower dated as of August 15, 2019 and (y) the Equity Purchase Option Agreement
among Borrower, C-F Brickell Mezz, LLC, C-F Brickell, LLC, C-F Brickell Owner, LLC and C-F Brickell Hotel Unit Owner, LLC dated
as of August 15, 2019 (in each case without reference to any amendments thereto unless the same is approved in writing by the Administrative
Agent) and (vii) other reasonable uses approved by the administrative agent under the Revolving Credit Agreement (collectively,
the “Permitted Uses”).


 


(d)           Use of Sale and Equity Offerings Proceeds. So long as no Event of Default has occurred and is continuing, all Net
Cash Proceeds (as defined below) from (i) the sale of any Assets, including, without limitation, pursuant to any sale-leaseback
transaction and (ii) any Equity Offering (as defined below) shall, not later than five (5) Business Days following the applicable
Loan Party’s receipt of such Net Cash Proceeds, be used to repay, in the order determined by the Borrower, (x) the Revolving
Credit Advances on a pro rata basis in accordance with the Revolving Lenders’ Revolving Credit Commitments and (y) both the
Term Loans and the loans under the Other Facilities (as defined below), on a pro rata basis in accordance with the outstanding
principal amounts thereof. Nothing in this subsection (d) shall limit the negative covenants set forth in subsection
(f) below.


 


(e)           Permitted Debt Transactions Proceeds. So long as no Event of Default has occurred and is continuing, all Net Cash
Proceeds from any Permitted Debt Transaction (as defined below), shall, not later than five (5) Business Days following the applicable
Loan Party’s receipt of such Net Cash Proceeds, be applied to pay the respective Obligations (as such term is defined in
each of the Facility and the Other Facilities) of the applicable Loan Parties (as such term is defined in each of the Facility
and the Other Facilities) under the Facility and the Other Facilities on a pro rata basis (in accordance with their respective
outstanding Advances (as such term is defined in each of the Facility and the Other Facilities)). Nothing in this subsection
(e) shall limit the negative covenants set forth in subsection (f) below.





 






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(f)            Enhanced Negative Covenants. Notwithstanding anything to the contrary contained in the Existing Credit Agreement
(as amended pursuant to Section 1 of this Amendment), unless the Administrative Agent and the Required Lenders otherwise
agree in writing, no Loan Party or Subsidiary thereof will:


 



(i)              
incur or assume any additional Secured Indebtedness, Non-Recourse Debt or senior Recourse Debt other than Qualified Government
Debt (as defined below) unless (x) no Event of Default has occurred and is continuing and (y) 100% of the Net Cash Proceeds of
such transaction are applied, no later than five (5) Business Days following the applicable Loan Party’s receipt of such
Net Cash Proceeds, to pay the respective Obligations (as such term is defined in each of the Facility and the Other Facilities)
of the applicable Loan Parties (as such term is defined in each of the Facility and the Other Facilities) under the Facility and
the Other Facilities on a pro rata basis (in accordance with their respective outstanding Advances (as such term is defined in
each of the Facility and the Other Facilities));


 


(ii)             
other than with respect to any Post-Closing Transfer (as defined below), acquire any new Assets or Transfer or encumber
(except pursuant to a Mortgage and Assignment of Leases as contemplated by this Amendment) any Unencumbered Assets (including,
without limitation, pursuant to a ground lease or a Sale and Leaseback Transaction), designate any Unencumbered Asset or Unencumbered
Assets as a non-Unencumbered Asset or non-Unencumbered Assets, or Transfer or encumber any direct or indirect Equity Interests
in the fee owners, lessees under Qualifying Ground Leases or TRS Lessees of the Unencumbered Assets;


 


(iii)            
Transfer or encumber any Asset that is not an Unencumbered Asset (including, without limitation, pursuant to a ground lease
or a Sale and Leaseback Transaction) to a Person that is not a Loan Party or Subsidiary thereof other than on an arms’-length
basis;


 


(iv)            
in the case of the Parent Guarantor and the Borrower only, make or declare any Restricted Payments payable in cash to holders
of the common Equity Interests in the Parent Guarantor or the Borrower, as applicable; provided, however, that (x)
the Parent Guarantor may declare and pay dividends to the holders of common Equity Interests in the Parent Guarantor consisting
of a combination of cash and Equity Interests in the Parent Guarantor only if such dividends (i) are required to maintain the Parent
Guarantor’s status as a REIT and avoid the imposition of excise taxes under Section 4981 of the Internal Revenue Code, (ii)
include a cash component no greater than the minimum percentage allowed under the Internal Revenue Code and any published guidance
from the United States Department of the Treasury or Internal Revenue Service with respect thereto at the time of the declaration
thereof and (iii) are paid no earlier than January 29, 2021 and (y) the Borrower may declare and pay Restricted Payments to the
Parent Guarantor to the extent required to enable the Parent Guarantor to pay those Restricted Payments permitted under the immediately
preceding clause (x);


 


(v)              in the case of the Parent Guarantor and the Borrower only, make or declare any Restricted Payments payable in cash to holders
of Preferred Interests in the Parent Guarantor or the Borrower, as applicable, unless the Loan Parties will be in compliance with
Section 5.04(a)(iii) of the Existing Credit Agreement as amended by this Amendment (Minimum Liquidity) immediately after the payment
thereof;


 


(vi)             make or permit any of its Subsidiaries to make new Investments (including, without limitation, buybacks of common Equity
Interests or Preferred Interests) other than Investments by the Loan Parties and their Subsidiaries in their wholly-owned Subsidiaries;
or


 


(vii)           
engage in or consent to any action or activity that would be expressly prohibited or restricted under Section 5.02 of the
Existing Credit Agreement during a Default or Event of Default; provided, however, that the restriction in this subsection
(vii) shall not apply to any action referred to in Section 5.02(e) of the Existing Credit Agreement that is not otherwise prohibited
under Section 5.02 of the Existing Credit Agreement as modified by this Amendment (including, without limitation, items (i) through
(vi) of this Section 2(f)).


 






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(g)           Qualified Government Debt. Notwithstanding the restrictions in subsection (f) above, consent of the Administrative
Agent and the Required Lenders shall not be required for the Loan Parties or their Subsidiaries to incur Debt for Borrowed Money
to a Governmental Authority under the CARES Act or any other federal or state governmental program intended to mitigate the impact
of the COVID-19 pandemic and negative international, national and industry economic effects resulting therefrom, so long as the
Unencumbered Assets, the Equity Interests in the Initial Grantors (as defined in Section 6 below) and the Pledged Account
and funds deposited therein do not become subject to any Liens in connection with such Debt for Borrowed Money (“Qualified
Government Debt”); provided, however, that (x) 100% of the Net Cash Proceeds of any Qualified Government
Debt shall be used, in the Borrower’s discretion, only (1) for Permitted Uses, (2) to repay the Revolving Credit Advances
on a pro rata basis in accordance with the Revolving Lenders’ Revolving Credit Commitments or (3) to repay both the Term
Loans and the loans under the Other Facilities on a pro rata basis in accordance with the outstanding principal amounts thereof
and (y) Qualified Governmental Debt that is forgivable by its terms (subject to the satisfaction of or compliance with identifiable
statutory and/or documentary conditions) shall be excluded from the calculations of the Section 5.04 financial covenants unless
and to the extent such Qualified Governmental Debt is not forgiven within 180 days after the issuance thereof. Any income from
the forgiveness of any such Qualified Government Debt shall not be included in the calculation of Consolidated EBITDA. The Loan
Parties shall comply with terms of the relevant state or Federal laws and regulations, including the CARES Act (“Applicable
Law”), in relation to the Qualified Government Debt (including regarding the use of proceeds thereof) and, if debt
forgiveness is available under Applicable Law, the Loan Parties shall not act or fail to act in any manner that could impair the
Qualified Government Debt being forgiven in accordance with Applicable Law.


 


For purposes of this Amendment,
the following terms shall have the following meanings:


 


“Reinstatement Date”
shall mean the date that the Agents approve the Reinstatement Compliance Certificate delivered by the Borrower to the Agents along
with the Borrower’s written notice electing to terminate the Limited Waiver Period and/or the Transition Period, as applicable.


 


“Reinstatement Compliance
Certificate” shall mean a certificate of a Responsible Officer of the Parent Guarantor confirming (i) that no Default
or Event of Default then exists and (ii) that the Parent Guarantor is in compliance with the Reinstated Financial Covenants, together
with a schedule of supporting calculations reasonably satisfactory to the Agents.


 


“Reinstated Financial
Covenants” shall mean the Parent Guarantor financial covenants and the Unencumbered Asset Pool financial covenants
set forth in Section 5.04 of the Existing Credit Agreement, as amended by Section 1 of this Amendment (and, for the avoidance
of doubt, without reference to the temporary amendments and waivers set forth in Sections 2 and 3 of this Amendment);
provided, however, that subsection (B) of Section 5.04(a)(i) shall be disregarded for purposes of determining whether
the Parent Guarantor has complied with the Reinstated Financial Covenants for two consecutive quarters in connection with the Collateral
Release Provisions (as defined below).


 


“Net Cash Proceeds”
means, with respect to any transaction, the aggregate amount of all cash proceeds received by the Borrower, the Parent Guarantor
or any of their respective Subsidiaries, net of fees, expenses, costs, underwriting discounts and commissions incurred in connection
therewith and, for the sale of any Asset, payments made to retire any Indebtedness that is secured by such Asset and repaid in
connection with the sale thereof, and net of taxes paid or reasonably estimated by the Borrower to be payable as a result thereof,
excluding any fees, commissions or expenses that are payable to an Affiliate of the Borrower, the Parent Guarantor or any of their
respective Subsidiaries.


 






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“Equity Offering”
means the issuance of any public common Equity Interests, 144A Equity Interests or Preferred Interests (including Preferred Interests
convertible into common Equity Interests) by the Borrower or the Parent Guarantor.


 


“Permitted Debt Transaction”
means the incurrence of Debt for Borrowed Money by any Loan Party or Subsidiary thereof consented to by the Required Lenders or
expressly permitted under this Amendment during the Limited Waiver Period.


 


“Other Facilities”
means, collectively, the term loan facilities under the Revolving Credit Agreement and the 5 Year Term Loan Agreement.


 


“Revolving Credit
Agreement” means that certain Credit Agreement dated as of December 6, 2018, as amended, among the Borrower, the
Parent Guarantor, the Subsidiary Guarantors, Deutsche Bank AG New York Branch (“DB”) as administrative
agent, and the other lenders and agents named therein.


 


“5 Year Term Loan
Agreement” means that certain Credit Agreement dated as of September 26, 2017, as amended, among the Borrower, the
Parent Guarantor, the Subsidiary Guarantors, KeyBank National Association (“KeyBank”) as administrative agent,
and the other lenders and agents named therein.


 


“Letter
of Credit Exposure” shall have the meaning set forth in the Revolving Credit Agreement as of the Amendment
Effective Date.


 


“Revolving
Credit Advances” shall have the meaning set forth in the Revolving Credit Agreement as of the Amendment Effective
Date.


 


“Revolving Credit
Commitments” shall have the meaning set forth in the Revolving Credit Agreement as of the Amendment Effective Date.


 


“Revolving Lenders”
shall have the meaning set forth in the Revolving Credit Agreement as of the Amendment Effective Date.


 


“Swing
Line Advances” shall have the meaning set forth in the Revolving Credit Agreement as of the Amendment Effective
Date.


 


Any breach by any Loan
Party of subsections (c), (d), (e) or (f) of this Section 2 shall be an immediate Event of Default
under the Existing Credit Agreement as amended by this Amendment.


 


SECTION
3. Temporary Modifications During Transition Period. For the period from the April 1, 2021 though the earlier of
(i) the Reinstatement Date and (ii) December 31, 2021 (the “Transition Period”), the Existing Credit
Agreement (as amended pursuant to Section 1 of this Amendment) shall be deemed further modified and amended as follows:


 


(a)           Maximum Leverage Ratio. Subsection 5.04(a)(i)(A) shall be modified so that (x) the Leverage Ratio is calculated based
on Consolidated EBITDA for the applicable quarter calculated on an Annualized Basis (as defined below) and (y) the reference in
the second line to “6.50:1.00” is replaced with (1) for the second quarter of calendar year 2021 ending June 30, 2021,
“8.75:1.00”, (2) for the third quarter of calendar year 2021 ending September 30, 2021, “8.50:1.00” and
(3) for the fourth quarter of calendar year 2021 ending December 31, 2021, “8.25:1.00”.


 






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(b)           Minimum Consolidated Fixed Charge Coverage Ratio. Subsection 5.04(a)(iv) shall be modified so that (x) the Adjusted
Consolidated EBITDA used to calculate the Consolidated Fixed Charge Coverage Ratio is calculated based on Consolidated EBITDA for
the applicable quarter calculated on an Annualized Basis and (y) the reference to “1.50:1.00” is replaced with “1.25:1.00”.


 


(c)           Maximum Secured Leverage Ratio. Subsection 5.04(a)(v) shall be modified so that the Total Asset Value is calculated,
for each Seasoned Property, based on the Adjusted NOI for such Seasoned Property for the applicable quarter calculated on an Annualized
Basis.


 


(d)           Maximum Secured Recourse Leverage Ratio. Subsection 5.04(a)(vi) shall be modified so that the Total Asset Value is
calculated, for each Seasoned Property, based on the Adjusted NOI for such Seasoned Property for the applicable quarter calculated
on an Annualized Basis.


 


(e)           Maximum Unsecured Leverage Ratio. Subsection 5.04(b)(i) shall be modified so that (x) the Unencumbered Asset Value
is deemed to be the Unencumbered Asset Value calculated using the Adjusted NOI for the applicable quarter (calculated on an Annualized
Basis); provided, however, that if the Borrower obtains an Appraisal (as defined below) for any Unencumbered Asset
the Unencumbered Asset Value of such Unencumbered Asset shall be deemed to be the value of such Unencumbered Asset based on such
Appraisal and (y) the reference in the second line of such subsection to “60%” is replaced with “70%”.


 


(f)            Minimum Unsecured Interest Coverage Ratio. Subsection 5.04(b)(ii) shall be modified so that (x) the Unencumbered
Adjusted NOI for the applicable calendar quarter is calculated on an Annualized Basis and (y) the reference in the third line to
“2.00x” is replaced with “1.75x”.


 


For purposes
of this Section 3, the following terms shall have the following meanings:


 


“Appraisal”
shall mean a FIRREA-compliant appraisal for an Unencumbered Asset prepared for the account of the Agents by an appraiser selected
by the Agents. The Appraisals shall be performed at the option of the Borrower and shall be at the Borrower’s cost and expense.


 


“Annualized Basis”
shall mean, (i) for calculations relating to the second quarter of calendar year 2021 ending June 30, 2021, applicable amounts
for such quarter, annualized, (ii) for calculations relating to the third quarter of calendar year 2021 ending September 30, 2021,
the applicable amounts for such quarter and the immediately preceding quarter, annualized and (iii) for calculations relating to
the fourth quarter of calendar year 2021 ending December 31, 2021, the applicable amounts for such quarter and the two immediately
preceding quarters, annualized.


 


SECTION
4. Revolving Credit Advances and the Applicable Margin During Amendment Period. From the Amendment Closing Date through
the earlier of (i) the Reinstatement Date and (ii) December 31, 2021 (the “Amendment Period”), (a) the
aggregate outstanding Revolving Credit Advances, Swing Line Advances and Letter of Credit Exposure (collectively, the “Revolving
Exposure”) shall not exceed $330,000,000; provided, however, that during the Amendment Period an additional
$50,000,000 of borrowings of Revolving Credit Advances shall be available from and after the date on which the Loan Parties have
satisfied the Mortgage Requirements (as defined in Section 7 below) for each of the Unencumbered Assets and (b) the Applicable
Margin shall be set at Pricing Level VIII.


 






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SECTION
5. Reporting. Notwithstanding the limited
waivers of the Subject Provisions pursuant to Section 2(a) above, nothing in this Amendment shall modify, affect or waive
the Borrower’s continuing obligation to comply with the reporting requirements set forth in Section 5.03 of the Existing
Credit Agreement during the Limited Waiver Period (as if the Subject Provisions had not been waived) or otherwise (including, without
limitation, the Borrower’s obligation to provide a schedule of the computations used by the Parent Guarantor in determining
compliance with the covenants contained in Section 5.04 (as if the Subject Provisions had not been waived) under Section 5.03(c));
provided, however, that the Borrower shall not be required to furnish to the Administrative Agent and the Lender
Parties notice of Defaults during the Limited Waiver Period relating to (a) the Section 5.04 financial covenants or (b) any Material
Adverse Effect for events or circumstances relating to the COVID-19 pandemic to the extent such events or circumstances have been
publicly disclosed by the Borrower in its securities filings and the scope of such adverse effect is no greater than that which
has been disclosed. 


 


SECTION
6. Equity Interests. Within 30 days after
the date hereof (subject to extension by the administrative agent under the Revolving Credit Agreement in its sole discretion for
up to 30 additional days), the Borrower will cause the applicable Loan Parties to (i) modify the organizational documents of each
of the fee owners (other than the Borrower), lessees under Qualifying Ground Leases and TRS Lessees of each of the existing Unencumbered
Assets described on Schedule 6 hereto (the “Initial Grantors”) to opt-in to Article 8 of the Uniform
Commercial Code as in effect in the state of its jurisdiction of formation in a manner satisfactory to the Agents and (ii) deliver
to the administrative agent under the Revolving Credit Agreement certificated Equity Interests for each of the Initial Grantors
and stock powers and membership interest powers (as the case may be) with respect thereto executed in blank, all in form and substance
reasonably acceptable to the Agents.


 


SECTION
7. Real Property Collateral. On or before
the day during the Amendment Period that outstanding Revolving Exposure will equal or exceed $330,000,000, (a) the Borrower
will cause the Initial Grantors to provide to the Agents, for each Unencumbered Asset, each of the Collateral Deliverables and
those items required under subsections 3.01(a)(v), (vi), (vii), (viii) and (ix) of the Existing Credit Agreement (as amended pursuant
to Section 1 of this Amendment), (b) the Borrower will provide evidence reasonably satisfactory to the Agents of the recordation
in the applicable local recording or filing office of a memorandum of lease for each Operating Lease relating to the Unencumbered
Assets, (c) the Borrower will deliver to the Agents record owner searches, lien and encumbrance searches, UCC searches, bankruptcy
and judgment searches, land surveys (which may be existing surveys) for the Unencumbered Assets, (d) the Borrower will provide
to the Agents reasonably satisfactory evidence of the payment in full of any all title company service charges, record and lien
search charges, filing fees and charges, mortgage recording taxes and intangible taxes incurred in connection with the Collateral
diligence and the recordation of the Mortgages and Assignments of Leases, (e) the Borrower will provide to the Agents satisfactory
evidence of (1) fee and leasehold ownership of the Unencumbered Assets in the proper Loan Parties and (2) no Liens of record affecting
the Unencumbered Assets other than Permitted Liens, (f) in addition to the items required under clause (a) of the definition of
Collateral Deliverables relating to the Flood Laws, the Borrower will provide such other information reasonably requested by the
Lender Parties to complete their flood review and approval process such that the Administrative Agent reasonably concludes that
the Lender Parties have completed their required due diligence in respect of the Flood Laws and (g) the Borrower will cooperate
in all reasonable respects with the Agents to provide all due diligence material relating to the Unencumbered Assets and all other
deliverables required to comply with any applicable law or regulation applicable to the Agents or the Lenders. The requirements
described in items (a) through (g) above (the “Mortgage Requirements”) shall be in form and substance
reasonably satisfactory to the Agents.


 






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Notwithstanding the foregoing, the Liens
created by the Pledge Agreement (as defined below), the Mortgages, the Assignments of Leases and the Security Agreement shall be
promptly released upon the Agents’ confirmation that (i) the aggregate outstanding Revolving Exposure is less than $330,000,000,
(ii) each of the Limited Waiver Period and the Transition Period shall have terminated and the temporary waivers and amendments
set forth in Sections 2 and 3 of this Amendment are of no further force or effect and (iii) the matters set forth
in the following clauses (x) and (y) are true and the Borrower has delivered to the Agents a certificate from a Responsible Officer
of the Parent Guarantor confirming (x) that no Default or Event of Default then exists and (y) that the Parent Guarantor has complied
with the Reinstated Financial Covenants for two consecutive quarters, together with a schedule of supporting calculations reasonably
satisfactory to the Agents((i), (ii) and (iii), collectively, the “Collateral Release Provisions”).


 


SECTION
8. Pledge Agreement. The Administrative
Agent is hereby authorized by the Lender Parties to enter into a Pledge Agreement dated as of the date hereof and in the form attached
as Annex C hereto (the "Pledge Agreement") with the Borrower, KeyBank and DB (in their capacities
as administrative agent for each of the Other Facilities) and the owners of 100% of the direct Equity Interests in each of the
Initial Grantors. The terms and provisions of the Pledge Agreement that refer to the Secured Parties shall be binding on all Secured
Parties to the same extent as if each Secured Party were a party thereto.


 


SECTION
9. Intercreditor Agreement. The Administrative
Agent is hereby authorized by the Lender Parties to enter into an Intercreditor Agreement dated as of the date hereof and in the
form attached as Annex D hereto (the "Intercreditor Agreement") with KeyBank and DB in their capacities
as administrative agent for each of the Other Facilities. The terms and provisions of the Intercreditor Agreement that refer to
the Secured Parties shall be binding on all Secured Parties to the same extent as if each Secured Party were a party thereto. As
among the Lender Parties, the Intercreditor Agreement shall be treated as a Loan Document. The Borrower and each of the Guarantors
acknowledge that the Agents are entering into the Intercreditor Agreement as of the Amendment Effective Date and that the Intercreditor
Agreement, as it may be amended from time to time, governs the relationships among the Agents with respect to the Collateral and
use of the proceeds thereof.


 


SECTION
10. Amendment Fees. The Borrower shall
pay to the Administrative Agent, on the Amendment Closing Date and for the account of each Lender that consents to this Amendment
(each a “Consenting Lender”), a fee of 10 basis points on each Consenting Lender’s Commitments.



 


SECTION
11. Representations and Warranties. Each Loan Party hereby represents and warrants that:


 


(a)           The representations and warranties contained in each of the Loan Documents (as amended or supplemented to date, including
pursuant to this Amendment) to which it is a party are, other than with respect to the Subject Provisions, true and correct in
all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made
on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which
case as of such earlier date).


 


(b)           Such Loan Party has taken all necessary corporate and other organizational action to authorize the execution, delivery and
performance of this Amendment.


 


(c)           This Amendment has been duly executed and delivered by such Loan Party and constitutes such Loan Party's legal, valid and
binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).


 






     9


     


    

 


(d)           The execution and delivery of this Amendment does not (i) contravene any provision of the organizational documents of such
Loan Party or its general partner or managing member or (ii) violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award applicable to such Loan Party.


 


(e)           Other than any Default or Event of Default that would exist absent the limited waiver of the Subject Provisions pursuant
to Sections 2(a) and 3(c) above, no Default or Event of Default has occurred and is continuing, or would result from
the entering into of this Amendment by any Loan Party.


 


SECTION
12. Conditions of Effectiveness. This Amendment shall become effective as of the first date (the “Amendment
Effective Date”) on which, and only if, each of the following conditions precedent shall have been satisfied:


 


(a)           The
Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent (x) counterparts
of this Amendment executed by the Borrower, the Administrative Agent and those Lenders comprising Required Lenders or, as to any
of such Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment, and (y) the
consent attached hereto (the “Consent”) executed by each of the Guarantors.


 


(b)           The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent,
counterparts of each of the Pledge Agreement and the Intercreditor Agreement executed by each of the parties thereto.


 


(c)           The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent
(a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to the matters required
by the certificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each case as of the Amendment Effective
Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner
or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the
names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party,
authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered
hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf
and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment
and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing
other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions
under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.


 


(d)           The Administrative Agent shall have received confirmation from DB as administrative agent under the Revolving Credit Agreement
that DB is satisfied that all filings necessary or desirable in order to perfect and protect the first priority liens and security
interests created under the Pledge Agreement will be made promptly following the Amendment Effective Date (it being acknowledged
that DB as administrative agent under the Revolving Credit Agreement is performing the diligence with respect to the Collateral
and taking the actions necessary or desirable to perfect the security interest therein).


 






     10


     


    

 


(e)           The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) an amendment
of the Revolving Credit Agreement and (ii) an amendment to the 5 Year Term Loan Agreement, in each case modifying the underlying
agreement to account for the terms herein and making certain other corresponding modifications.


 


(f)            (i) the fees provided for in Section 10 and (ii) all of the reasonable out-of-pocket expenses of the Administrative
Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective
Date shall have been paid in full.


 


SECTION
13. Reference to and Effect on the Loan Documents.



 


(a)            On and after the Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Existing Credit Agreement, and each reference
in each of the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words
of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Existing Credit Agreement, as amended
by this Amendment.


 


(b)            The Existing Credit Agreement, as specifically amended by this Amendment, is and shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed.


 


(c)            The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy
of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the
Loan Documents.


 


SECTION
14. Post-Closing Requirements. 


 


(a)            Within 45 days after the Amendment Effective Date (i) the Borrower shall provide evidence reasonably acceptable to the Administrative
Agent that it has transferred its fee interests (collectively, the “Post-Closing Transfers”) in the Unencumbered
Assets known as 092 Courtyard New Orleans Metairie, 101 Hampton Inn & Suites Tampa Ybor City and 103 Residence Inn New Orleans
Metairie to Summit Hospitality 092, LLC, Summit Hospitality 101, LLC and Summit Hospitality 103, LLC, respectively (collectively,
the “Designated Transferees”), (ii) the administrative agent under the Revolving Credit Agreement shall
have received the items required under subsections 3.01(a)(vi), (vii), (viii) and (ix) of the Existing Credit Agreement (as amended
pursuant to Section 1 of this Amendment) relating to each Designated Transferee and shall have determined that each Designated
Transferee has opted-in to Article 8 of the Uniform Commercial Code as in effect in the state of its jurisdiction of formation
in a manner satisfactory to the Administrative Agent, (iii) each Designated Transferee shall execute and deliver to the Administrative
Agent (x) a Guaranty Supplement and (y) a certificate of a Responsible Officer confirming that immediately following such Post-Closing
Transfer the applicable Unencumbered Asset satisfies all Unencumbered Asset Pool Conditions and (iv) the owners of 100% of the
direct Equity Interests in each Designated Transferee shall execute and deliver to the Administrative Agent Pledge Agreement Supplements
(as defined in the Pledge Agreement) and shall deliver to the administrative agent under the Revolving Credit Agreement certificated
Equity Interests for the applicable Designated Transferees and stock powers and membership interest powers (as the case may be)
with respect thereto executed in blank, all in form and substance reasonably acceptable to the Administrative Agent.


 


(b)           Within 30 days after the Amendment Effective Date a Deposit Account Control Agreement relating to the Pledged Account, in
form and substance reasonably satisfactory to the Administrative Agent, shall have been executed and delivered by the parties thereto.


 






     11


     


    

 


Any breach of this Section
14 shall be an immediate Event of Default under the Existing Credit Agreement, as amended by this Amendment.


 


SECTION
15. Costs and Expenses. The Borrower agrees
to pay on demand all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this Amendment (including, for the avoidance of doubt, in
connection with satisfying the Mortgage Requirements, to the extent applicable) and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance
with the terms of Section 9.04 of the Existing Credit Agreement.


 


SECTION
16. Execution in Counterparts; Electronic Signatures.
This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this letter by facsimile or as an attachment to an electronic
mail message in .pdf, .jpeg, .TIFF or similar electronic format shall be effective as delivery of a manually executed counterpart
of this letter for all purposes. The words “execution,” “signed,” “signature,” “delivery,”
and words of like import in or relating to this Amendment and any other Loan Document (including, without limitation, any Assignment
and Acceptance Agreement) to be signed in connection with this Amendment, the other Loan Documents and the transactions contemplated
hereby and thereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each
of which shall be of the same legal effect, validity or enforceability as manually executed signature, physical delivery thereof
or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require
the Administrative Agent to accept electronic signatures in any form or format without its prior written consent. Each of the parties
represents and warrants to the other parties that it has the corporate capacity and authority to execute the Amendment through
electronic means and there are no restrictions for doing so in that party’s constitutive documents.


 


SECTION
17. Governing Law. This Amendment shall
pursuant to New York General Obligations Law Section 5-1401 be governed by, and construed in accordance with, the laws of the State
of New York.


 


SECTION
18. Waiver of Claims. The Borrower acknowledges,
represents and agrees that the Borrower as of the date hereof has no defenses, setoffs, claims, counterclaims or causes of action
of any kind or nature whatsoever with respect to the Loan Documents, the administration or funding of the Term Loan Advances or
with respect to any acts or omissions of the Administrative Agent or any Lender Party, or any past or present officers, agents
or employees of the Administrative Agent or any Lender Party, and the Borrower does hereby expressly waive, release and relinquish
any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.


 


(Signature pages follow)


 






     12


     


    





 


IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the
date first above written.


 


 


	 	BORROWER:
	 	 
	 	SUMMIT HOTEL OP, LP,
	 	a Delaware limited partnership
	 	 
	 	By:	SUMMIT HOTEL GP, LLC,
	 	 	a Delaware limited liability company,
	 	 	its general partner



 


	 	By:	SUMMIT HOTEL PROPERTIES, 
	 	 	INC., a Maryland corporation,
	 	 	its sole member



 


	 	By:	/s/ Christopher Eng
	 	Name: 	Christopher Eng
	 	Title: 	Secretary



 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


Agreed as of the date first above written:


 


KEYBANK
NATIONAL ASSOCIATION,


as Administrative Agent and Lender


 


 


	By:	/s/ Thomas Z. Schmitt	 



Name: Thomas Z. Schmitt


Title: Assistant Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


CAPITAL ONE, NATIONAL ASSOCIATION,


as a Lender


 


 


	By:	/s/ Jessica W.
                                         Phillips	 



Name: Jessica W. Phillips


Title: Authorized Signatory


 


(Signatures continued
on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


PNC BANK, NATIONAL ASSOCIATION,


as a Lender


 


 


	By:	/s/ Andrew T. White	 



Name: Andrew T. White


Title: Senior Vice President


 


(Signatures continued
on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


REGIONS
BANK,


as a Lender


 


 


	By:	/s/ Ghi S. Gavin	 



Name: Ghi S. Gavin


Title: Senior Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


RAYMOND
JAMES BANK, N.A.,


as a Lender


 


 


	By:	/s/ Matt Stein	 



Name: Matt Stein


Title: Senior Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


U.S.
BANK NATIONAL ASSOCIATION,


as a Lender


 


 


	By:	/s/ Matthew K. Mains	 



Name: Matthew K. Mains


Title: Senior Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


TRUIST
BANK f/k/a BRANCH BANKING AND TRUST COMPANY,


as a Lender


 


 


	By:	/s/ Karen Cadiente	 



Name: Karen Cadiente


Title: Assistant Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


AMERICAN
BANK, N.A.,


as a Lender


 


 


	By:	/s/Todd J. Butler	 



Name: Todd J. Butler


Title: Senior Vice President


 


(Signatures continued on next page)


 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)







 






    


     


    

 


CONSENT


 


Dated as of May __, 2020


 


Each of the undersigned,
as a Guarantor under the Guaranty set forth in Article VII of the First Amended and Restated Credit Agreement dated as of February
15, 2018, as amended, in favor of the Lender Parties party to the Existing Credit Agreement referred to in the foregoing Third
Amendment to First Amended and Restated Credit Agreement, hereby consents to such Third Amendment to First Amended and Restated
Credit Agreement and hereby confirms and agrees that notwithstanding the effectiveness of such Third Amendment to First Amended
and Restated Credit Agreement, the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed
in all respects. Without limitation of the foregoing, each Guarantor hereby ratifies the Existing Credit Agreement as amended to
date. Each Guarantor acknowledges, represents and agrees that Guarantors as of the date hereof have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect to the Loan Documents, the administration or funding
of the Term Loan Advances or with respect to any acts or omissions of Administrative Agent or any Lender, or any past or present
officers, agents or employees of Administrative Agent or any Lender, and each Guarantor does hereby expressly waive, release and
relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.


 


	 	SUMMIT HOTEL PROPERTIES, INC., a Maryland corporation
	 	 
	 	 
	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher Eng
	 	Title:	 Secretary
	 	 	 
	 	 	 
	 	CARNEGIE HOTELS, LLC, a Georgia limited liability company
	 	 
	 	 
	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher Eng
	 	Title:	 Secretary
	 	 	 
	 	 	 
	 	SUMMIT GROUP OF SCOTTSDALE, ARIZONA, LLC, a South Dakota limited liability company
	 	 
	 	 
	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher Eng
	 	Title:	 Secretary




 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


	 	SUMMIT HOSPITALITY I,
    LLC,
	 	SUMMIT HOSPITALITY 17,
    LLC,
	 	SUMMIT HOSPITALITY 18,
    LLC,
	 	SUMMIT HOSPITALITY 22,
    LLC,
	 	SUMMIT HOSPITALITY 25,
    LLC,
	 	SUMMIT HOSPITALITY 036,
    LLC,
	 	SUMMIT HOSPITALITY 057,
    LLC,
	 	SUMMIT HOSPITALITY 060,
    LLC,
	 	SUMMIT HOSPITALITY 084,
    LLC,
	 	SUMMIT HOSPITALITY 100,
    LLC,
	 	SUMMIT HOSPITALITY 110,
    LLC,
	 	SUMMIT HOSPITALITY 111,
    LLC,
	 	SUMMIT HOSPITALITY 114,
    LLC,
	 	SUMMIT HOSPITALITY 116,
    LLC,
	 	SUMMIT HOSPITALITY 117,
    LLC,
	 	SUMMIT HOSPITALITY 119,
    LLC,
	 	SUMMIT HOSPITALITY 120,
    LLC,
	 	SUMMIT HOSPITALITY 121,
    LLC,
	 	SUMMIT HOSPITALITY 123,
    LLC,
	 	SUMMIT HOSPITALITY 126,
    LLC,
	 	SUMMIT HOSPITALITY 127,
    LLC,
	 	SUMMIT HOSPITALITY 128,
    LLC,
	 	SUMMIT HOSPITALITY 129,
    LLC,
	 	SUMMIT HOSPITALITY 130,
    LLC,
	 	SUMMIT HOSPITALITY 131,
    LLC,
	 	SUMMIT HOSPITALITY 132,
    LLC,
	 	SUMMIT HOSPITALITY 134,
    LLC,
	 	SUMMIT HOSPITALITY 135,
    LLC,
	 	SUMMIT HOSPITALITY 136,
    LLC,
	 	SUMMIT HOSPITALITY 137,
    LLC,
	 	SUMMIT HOSPITALITY 138,
    LLC,
	 	SUMMIT HOSPITALITY 139,
    LLC,
	 	SUMMIT HOSPITALITY 140,
    LLC,
	 	SUMMIT HOSPITALITY 141,
    LLC,
	 	SUMMIT HOSPITALITY 142,
    LLC,
	 	SUMMIT HOSPITALITY 143,
    LLC,
	 	SUMMIT HOSPITALITY 144,
    LLC,
	 	SUMMIT HOSPITALITY 145,
    LLC, and
	 	SAN FRAN JV, LLC,
	 	each a Delaware limited liability
company



 


	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher Eng
	 	Title:	 Secretary



 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


	 	SUMMIT HOTEL TRS 030, LLC,
	 	SUMMIT HOTEL TRS 036, LLC,
	 	SUMMIT HOTEL TRS 037, LLC,
	 	SUMMIT HOTEL TRS 052, LLC,
	 	SUMMIT HOTEL TRS 053, LLC,
	 	SUMMIT HOTEL TRS 057, LLC,
	 	SUMMIT HOTEL TRS 060, LLC,
	 	SUMMIT HOTEL TRS 062, LLC,
	 	SUMMIT HOTEL TRS 065, LLC,
	 	SUMMIT HOTEL TRS 066, LLC,
	 	SUMMIT HOTEL TRS 084, LLC,
	 	SUMMIT HOTEL TRS 092, LLC,
	 	SUMMIT HOTEL TRS 094, LLC,
	 	SUMMIT HOTEL TRS 099, LLC,
	 	SUMMIT HOTEL TRS 100, LLC,
	 	SUMMIT HOTEL TRS 101, LLC,
	 	SUMMIT HOTEL TRS 102, LLC,
	 	SUMMIT HOTEL TRS 103, LLC,
	 	SUMMIT HOTEL TRS 104, LLC,
	 	SUMMIT HOTEL TRS 105, LLC,
	 	SUMMIT HOTEL TRS 108, LLC,
	 	SUMMIT HOTEL TRS 109, LLC,
	 	SUMMIT HOTEL TRS 110, LLC,
	 	SUMMIT HOTEL TRS 111, LLC,
	 	SUMMIT HOTEL TRS 113, LLC,
	 	SUMMIT HOTEL TRS 114, LLC,
	 	SUMMIT HOTEL TRS 116, LLC,
	 	SUMMIT HOTEL TRS 117, LLC,
	 	SUMMIT HOTEL TRS 119, LLC,
	 	SUMMIT HOTEL TRS 120, LLC,
	 	SUMMIT HOTEL TRS 121, LLC,
	 	SUMMIT HOTEL TRS 123, LLC,
	 	SUMMIT HOTEL TRS 126, LLC,
	 	SUMMIT HOTEL TRS 127, LLC,
	 	SUMMIT HOTEL TRS 128, LLC,
	 	SUMMIT HOTEL TRS 129, LLC,
	 	SUMMIT HOTEL TRS 130, LLC,
	 	SUMMIT HOTEL TRS 131, LLC, and
	 	SUMMIT HOTEL TRS 132, LLC,
	 	each a Delaware limited liability company




 


		By:	Summit Hotel TRS, Inc., a Delaware corporation, the sole member of each of the above referenced
Delaware limited liability companies



 


 


	 	By:	/s/ Christopher Eng
	 	 	     Name:   Christopher
Eng
	 	 	     Title:  Secretary



 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    




 


	 	SUMMIT HOTEL TRS 134, LLC,
	 	SUMMIT HOTEL TRS 135, LLC,
	 	SUMMIT HOTEL TRS 136, LLC,
	 	SUMMIT HOTEL TRS 137, LLC,
	 	SUMMIT HOTEL TRS 138, LLC,
	 	SUMMIT HOTEL TRS 139, LLC,
	 	SUMMIT HOTEL TRS 140, LLC,
	 	SUMMIT HOTEL TRS 141, LLC,
	 	SUMMIT HOTEL TRS 142, LLC,
	 	SUMMIT HOTEL TRS 143, LLC,
	 	SUMMIT HOTEL TRS 144, LLC,
	 	SUMMIT HOTEL TRS 145, LLC, and
	 	SUMMIT HOTEL TRS 146, LLC,
	 	each a Delaware limited liability company




 


		By:	Summit Hotel TRS, Inc., a Delaware corporation, the sole member of each of the above referenced
Delaware limited liability companies



 


 


	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher
Eng
	 	Title: 	 Secretary



 


 


	 	BP WATERTOWN HOTEL LLC, a Massachusetts limited liability company
	 	 	 
	 	By:	/s/ Christopher Eng
	 	Name:	  Christopher Eng
	 	Title: 	 Secretary



 


Summit - Third Amendment to First Amended
and Restated Credit Agreement


(Seven Year Term Loan)


 






    


     


    

 


Annex A


 


AMENDED CREDIT AGREEMENT


 


[See attached.]


 






     Sched.6


     


    

 



 


Composite Credit Agreement


First Amendment dated
December 6, 2018


Second Amendment dated
February 18, 2020


  


CONFORMED
COPY REFLECTING


 


FIRST
AMENDMENT DATED DECEMBER 6, 2018,


 


SECOND
AMENDMENT DATED FEBRUARY 18, 2020 AND


 


THIRD
AMENDMENT DATED AS OF MAY 7, 20201


 


 


FIRST AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of February 15, 2018


 


As
amended by the FIRST AMENDMENT TO FIRST AMENDED AND RESTATED


 


CREDIT
AGREEMENT DATED DECEMBER 6, 2018,


 


SECOND
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT


 


AGREEMENT
DATED FEBRUARY 18, 2020 and


 


THIRD
AMENDMENT TO FIRST 


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


Dated
as of May 7, 2020


 


among


 


SUMMIT HOTEL OP, LP,


 


as Borrower,


 


SUMMIT HOTEL PROPERTIES, INC.,


 


as Parent Guarantor,


 


THE OTHER GUARANTORS NAMED HEREIN,


 


as Subsidiary Guarantors,


 


THE INITIAL LENDERS NAMED HEREIN,


 


as Initial Lenders,


 


KEYBANK NATIONAL ASSOCIATION,


 


as Administrative Agent,


 


REGIONS BANK,


 





 






1
Refer to the Third Amendment to First Amended and Restated Credit Agreement
dated as of May 7, 2020 (the “Amendment”) for additional provisions applicable solely during the Limited Waiver Period
and the Transition Period (as defined in the Amendment). For the avoidance of doubt, Section 2 (Temporary Modifications During
Limited Waiver Period), Section 3 (Temporary Modifications During Transition Period) and Section 4 (Revolving Credit Advances
and the Applicable Margin During Amendment Period) of the Amendment further modify the Credit Agreement. 


 






     1


     


    

 


RAYMOND JAMES BANK, N.A.,


 


PNC BANK, NATIONAL ASSOCIATION,


 


CAPITAL ONE, NATIONAL ASSOCIATION,


 


and


 


BRANCH BANKING AND TRUST COMPANY,


 


as Co-Syndication Agents,


 


and


 


KEYBANC CAPITAL MARKETS, INC.,


 


as Sole Bookrunner,


 


KEYBANC CAPITAL MARKETS, INC.,


 


REGIONS CAPITAL MARKETS,


 


RAYMOND JAMES BANK, N.A.,


 


PNC CAPITAL MARKETS LLC,


 


CAPITAL ONE, NATIONAL ASSOCIATION,

and


 


BRANCH BANKING AND TRUST COMPANY,


 


as Joint Lead Arrangers


 






     


     


    

 





TABLE
OF CONTENTS


 





	 	 	Page
	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	1
	SECTION 1.01	Certain Defined Terms	1
	SECTION 1.02	Computation of Time Periods; Other Definitional Provisions	3643
	SECTION 1.03	Accounting Terms	3643
	ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES	3643
	SECTION 2.01	The Advances	3643
	SECTION 2.02	Making the Advances.	3744
	SECTION 2.03	[Intentionally Omitted.]	3945
	SECTION 2.04	Repayment of Advances	3945
	SECTION 2.05	Termination or Reduction of the Commitments	3945
	SECTION 2.06	Prepayments	3945
	SECTION 2.07	Interest	4047
	SECTION 2.08	Fees	4148
	SECTION 2.09	Conversion of Advances	4148
	SECTION 2.10	Increased Costs, Etc.	4249
	SECTION 2.11	Payments and Computations	4451
	SECTION 2.12	Taxes	4753
	SECTION 2.13	Sharing of Payments, Etc.	5258
	SECTION 2.14	Use of Proceeds	5259
	SECTION 2.15	Evidence of Debt	5359
	SECTION 2.16	[Intentionally Omitted]	5360
	SECTION 2.17	Increase in the Aggregate Commitments	5360
	SECTION 2.18	Effect of Benchmark Transition Event.	5662
	ARTICLE III CONDITIONS OF LENDING	6066
	SECTION 3.01	Conditions Precedent to Initial Extension of Credit	6066
	SECTION 3.02	Conditions Precedent to Each Borrowing and Increase	6370
	SECTION 3.03	Determinations Under Section 3.01 and 3.02	6471
	ARTICLE IV REPRESENTATIONS AND WARRANTIES	6571
	SECTION 4.01	Representations and Warranties of the Loan Parties	6571
	ARTICLE V COVENANTS OF THE LOAN PARTIES	7279


 








    i


     


    

 







	SECTION
    5.01	Affirmative
    Covenants	7279
	SECTION
    5.02	Negative
    Covenants	7885
	SECTION
    5.03	Reporting
    Requirements	8896
	SECTION
    5.04	Financial
    Covenants	9199
	ARTICLE VI EVENTS OF DEFAULT	93101
	SECTION
    6.01	Events
    of Default	93101
	SECTION
    6.02	[Intentionally
    Omitted].	95104
	ARTICLE VII GUARANTY	95104
	SECTION
    7.01	Guaranty;
    Limitation of Liability	95104
	SECTION
    7.02	Guaranty
    Absolute	96105
	SECTION
    7.03	Waivers
    and Acknowledgments	98106
	SECTION
    7.04	Subrogation	98107
	SECTION
    7.05	Guaranty
    Supplements	99108
	SECTION
    7.06	Indemnification
    by Guarantors	99108
	SECTION
    7.07	Subordination	100109
	SECTION
    7.08	Continuing
    Guaranty	101110
	SECTION
    7.09	Keepwell	101110
	ARTICLE VIII THE AGENTS	101110
	SECTION
    8.01	Authorization
    and Action	101110
	SECTION
    8.02	Agents’
    Reliance, Etc.	102111
	SECTION
    8.03	KeyBank
    and Affiliates	102111
	SECTION
    8.04	Lender
    Party Credit Decision	103112
	SECTION
    8.05	Indemnification
    by Lender Parties	103112
	SECTION
    8.06	Successor
    Agent	104113
	SECTION
    8.07	Relationship
    of Agent and Lenders	104113
	SECTION
    8.08	Plan
    Assets	104113
	ARTICLE IX MISCELLANEOUS	104114
	SECTION
    9.01	Amendments,
    Etc.	104114
	SECTION
    9.02	Notices,
    Etc.	106115
	SECTION
    9.03	No
    Waiver; Remedies	108117
	SECTION
    9.04	Costs
    and Expenses	108117
	SECTION
    9.05	Right
    of Set-off	110119
	SECTION
    9.06	Binding
    Effect	110120



 






    ii


     


    

 


	SECTION
    9.07	Assignments
    and Participations; Replacement Notes	111120
	SECTION
    9.08	Execution
    in Counterparts 115; Electronic Signatures	124
	SECTION
    9.09	[Intentionally
    Omitted]	115125
	SECTION
    9.10	Defaulting
    Lenders	115125
	SECTION
    9.11	Confidentiality	116126
	SECTION
    9.12	[Intentionally
    Omitted]	119129
	SECTION
    9.13	Patriot
    Act Notification	119129
	SECTION
    9.14	Jurisdiction,
    Etc.	120129
	SECTION
    9.15	GOVERNING
    LAW	120130
	SECTION
    9.16	WAIVER
    OF JURY TRIAL	120130
	SECTION
    9.17	ACKNOWLEDGEMENT
    AND CONSENT TO BAIL-IN OF EEAAFFECTED
    FINANCIAL INSTITUTIONS	120130
	SECTION
    9.18	Acknowledgment
    Regarding Any Supported QFCs	131
	SECTION
    9.19	Release
    of Collateral	132
	SECTION
    9.20	No
    Fiduciary Duties	133
	SECTION
    9.21	Waiver
    of Claims	121133
	SECTION
    9.199.22	CONSENT
    TO AMENDMENT AND RESTATEMENT; EFFECT OF AMENDMENT AND RESTATEMENT	121134


 


	SCHEDULES	 	 
	 	 	 
	Schedule I	-	Commitments and Applicable Lending Offices
	Schedule II	-	Unencumbered Assets
	Schedule III	-	Approved Managers
	Schedule IV	-	Reserved
	Schedule 4.01(a)	-	Taxpayer Identification Numbers
	Schedule 4.01(b)	-	Subsidiaries
	Schedule 4.01(f)	-	Material Litigation
	Schedule 4.01(n)	-	Existing Debt
	Schedule 4.01(o)	-	Existing Liens
	Schedule 4.01(p)	-	Real Property
	Part I	-	Owned Assets
	Part II	-	Leased Assets
	Part III	-	Management Agreements
	Part IV	-	Franchise Agreements
	Schedule 4.01(q)	-	Environmental Matters
	Schedule 4.01(w)	-	Plans and Welfare Plans



 






    iii


     


    

 


	EXHIBITS	 	 
	 	 	 
	Exhibit A	-	Form of Note
	Exhibit B	-	Form of Notice of Borrowing
	Exhibit C	-	Reserved
	Exhibit D	-	Form of Guaranty Supplement
	Exhibit E	-	Form of Assignment and Acceptance
	Exhibit F-1	-	Form of Opinion of Kleinberg, Kaplan, Wolff & Cohen, P.C.
	Exhibit F-2	-	Form of Opinion of Venable LLP
	Exhibit F-3	-	Form of Opinion of Hagen, Wilka & Archer, LLP
	Exhibit F-4	-	Form of Opinion of Arnall Golden Gregory LLP
	Exhibit F-5	-	Form of Delaware Opinion
	Exhibit G	-	Form of Section 2.12(g) U.S. Tax Compliance Certificate
	Exhibit H	Form of Security Agreement
	Exhibit I	Form of Mortgage


 






    iv


     


    

 






FIRST AMENDED AND RESTATED CREDIT AGREEMENT


 


FIRST AMENDED AND RESTATED
CREDIT AGREEMENT dated as of February 15, 2018 (as amended by the First
Amendment to First Amended and Restated Credit Agreement dated December 6, 2018, by the Second Amendment to First Amended and Restated
Credit Agreement dated February 18 2020, and by the Third Amendment to First Amended and Restated Credit Agreement dated as of
May 7, 2020 and as it may be further amended, modified, renewed, restated, replaced or extended pursuant to the terms hereof, this
“Agreement”) among SUMMIT HOTEL OP, LP, a Delaware limited partnership (the “Borrower”),
SUMMIT HOTEL PROPERTIES, INC., a Maryland corporation (the “Parent” or the “Parent Guarantor”),
the entities listed on the signature pages hereof as the subsidiary guarantors (together with any Additional Guarantors (as hereinafter
defined) acceding hereto pursuant to Section 5.01(j), 5.01(x) or 7.05, the “Subsidiary Guarantors” and, together with
the Parent Guarantor, the “Guarantors”), the banks, financial institutions and other institutional lenders
listed on the signature pages hereof as the initial lenders (the “Initial Lenders”), KEYBANK NATIONAL
ASSOCIATION (“KeyBank”), as administrative agent (together with any successor administrative agent appointed
pursuant to Article VIII, the “Administrative Agent” or “Agent”) for the Lender
Parties (as hereinafter defined), REGIONS BANK, RAYMOND JAMES BANK, N.A., PNC BANK, NATIONAL ASSOCIATION, CAPITAL ONE, NATIONAL
ASSOCIATION AND BRANCH BANKING AND TRUST COMPANY, as co-syndication agents, and KEYBANC CAPITAL MARKETS, INC. (“KCM”),
as Sole Bookrunner, and KCM, REGIONS CAPITAL MARKETS, RAYMOND JAMES BANK, N.A., PNC CAPITAL MARKETS LLC, CAPITAL ONE, NATIONAL
ASSOCIATION and BRANCH BANKING AND TRUST COMPANY, collectively as joint lead arrangers (collectively, the “Joint Lead
Arrangers”).


 


PRELIMINARY STATEMENTS:


 


The Borrower, the Parent
Guarantor, the other guarantors named therein, Administrative Agent, and certain of the Lenders have entered into that certain
Credit Agreement dated as of April 7, 2015, as amended by that certain First Amendment to Credit Agreement dated as of December
21, 2015, that certain Second Amendment to Credit Agreement dated as of January 15, 2016, and that certain Third Amendment to Credit
Agreement dated as of September 26, 2017 (as amended, the “Original Credit Agreement”).


 


The Borrower, the Administrative
Agent and the Lenders have agreed to amend and restate the Original Credit Agreement on the terms and subject to the conditions
hereinafter set forth.


 


ARTICLE
I

DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.01           Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms defined):


 


“2017
Term Loan Agreement” means the Credit Agreement dated as of September 26, 2017 among the Borrower, as borrower, the
lenders named therein and the 2017 TLA Agent, as amended from time to time.


 








     


     


    

 


“2017
Term Loan Facility” means the loans provided for in the 2017 Term Loan Agreement.


 


“2017
TLA Agent” means KeyBank, in its capacity as administrative agent under the 2017 Term Loan Agreement, together with
its successor and assigns. 


 


“2017
TLA Secured Parties” means the 2017 TLA Agent for the ratable benefit of the Lenders and the Hedge Banks (each as
defined in the 2017 Term Loan Agreement).


 


“2018
Revolver/Term Loan Agreement” means the Credit Agreement dated as of December 6, 2018 among the Borrower, as borrower,
the lenders named therein and the 2018 Revolver/Term Agent, as amended from time to time.


 


“2018
Revolver/Term Loan Facility” means the loans provided for in the 2018 Revolver/Term Loan Agreement.


 


“2018
Revolver/Term Agent” means Deutsche Bank AG New York Branch, in its capacity as administrative agent under the 2018
Revolver/Term Loan Agreement, together with its successor and assigns. 


 


“2018
Revolver/Term Secured Parties” means the 2018 Revolver/Term Agent for the ratable benefit of the Lenders and the
Hedge Banks (each as defined in the 2018 Revolver/Term Loan Agreement).


 


“Acceding
Lender” has the meaning specified in Section 2.17(d).


 


“Accession
Agreement” has the meaning specified in Section 2.17(d)(i).


 


“Additional
Margin Amounts” has the meaning specified in the definition of Applicable Margin.


 


“Additional
Guarantor” has the meaning specified in Section 7.05.


 


“Adjusted
Consolidated EBITDA” means Consolidated EBITDA for the consecutive four fiscal quarters of the Parent Guarantor most
recently ended for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be, minus an amount equal to the aggregate Deemed FF&E Reserves for all Consolidated Assets owned by the
Parent Guarantor and its Consolidated Subsidiaries.


 


“Adjusted
Net Operating Income” or “Adjusted NOI” means, with respect to any Unencumbered Asset,
(a) the Net Operating Income attributable to such Unencumbered Asset less (b) the Deemed FF&E Reserve for such Unencumbered
Asset, less (c) the Deemed Management Fee for such Unencumbered Asset, in each case for the consecutive four fiscal quarters most
recently ended for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b) or
(c), as the case may be.


 


“Administrative
Agent” has the meaning specified in the recital of parties to this Agreement.


 






    	 	2	 



     


    

 


“Administrative
Agent’s Account” means such account or accounts as the Administrative Agent shall specify in writing to the
Lender Parties or the Borrower, as applicable.


 


“Administrative
Agent’s Head Office” means the Administrative Agent’s head office located at 127 Public Square, Cleveland,
Ohio 44114-1306, or at such other location as the Administrative Agent may designate from time to time by written notice to the
Borrower and the Lenders.


 


“Advance”
means a Term Loan Advance.


 


“Affected
Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.


 


“Affiliate”
means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of this definition, the term “control” (including
the terms “controlling”, “controlled by” and “under common control with”) of a Person means
the possession, direct or indirect, of the power to vote 35% or more of the Voting Interests of such Person or to direct or cause
the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or
otherwise.


 


“Agents”
means, collectively, the Administrative Agent, the 2018 Revolver/Term Agent and the 2017 TLA Agent.


 


“Agreement”
has the meaning specified in the recital of parties to this Agreement.


 


“Agreement
Value” means, for each Hedge Agreement, on any date of determination, an amount determined by the Administrative
Agent equal to: (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement (Multicurrency-Cross Border) published
by the International Swap and Derivatives Association, Inc. (the “Master Agreement”), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if (i)
such Hedge Agreement was being terminated early on such date of determination, (ii) such Loan Party or Subsidiary was the sole
“Affected Party”, and (iii) the Administrative Agent was the sole party determining such payment amount (with the Administrative
Agent making such determination pursuant to the provisions of the form of Master Agreement); or (b) in the case of a Hedge Agreement
traded on an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss on such Hedge Agreement
to the Loan Party or Subsidiary of a Loan Party party to
such Hedge Agreement determined by the Administrative Agent based on the settlement price of such Hedge Agreement on such date
of determination; or (c) in all other cases, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss
on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party party
to such Hedge Agreement determined by the Administrative Agent as the amount, if any, by which (i) the present value of the future
cash flows to be paid by such Loan Party or Subsidiary exceeds (ii) the present value of the future cash flows to be received by
such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not otherwise defined in this definition
shall have the respective meanings set forth in the above described Master Agreement.


 






    	 	3	 



     


    

 


“Amendment
Period” has the meaning specified in the Third Amendment. 


 


“Anti-Corruption
Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Borrower, the Parent Guarantor
or their Subsidiaries from time to time concerning or relating to bribery, corruption or money laundering including, without limitation,
the United Kingdom Bribery Act of 2010 and the United States Foreign Corrupt Practices Act of 1977, as amended.


 


“Applicable
Law” has the meaning specified in the Third Amendment. 


 


“Applicable
Lending Office” means, with respect to each Lender Party, such Lender Party’s Domestic Lending Office in the
case of a Base Rate Advance and such Lender Party’s Eurodollar Lending Office in the case of a Eurodollar Rate Advance.


 


“Applicable
Margin” means, at any date of determination, a percentage per annum determined by reference to the Leverage Ratio
as set forth below:


 


	Pricing Level	Leverage Ratio	Applicable Margin 

for Base Rate Advances	Applicable Margin 

for Eurodollar Rate Advances
	I	< 3.5:1.0	0.35%	1.35%
	II	 > 3.5:1.0, but < 4.0:1.0	0.40%	1.40%
	III	> 4.0:1.0, but < 4.5:1.0	0.45%	1.45%
	IV	> 4.5:1.0 but < 5.0:1.0	0.50%	1.50%
	V	> 5.0:1.0, but < 5.5:1.0	0.60%	1.60%
	VI	> 5.5:1.0, but < 6.0:1.0	0.75%	1.75%
	VII	> 6.0:1.0, but <6.5:1.0	0.90%	1.90%
	VIII	>6.5:1.0	0.95%	1.95%


 






    	 	4	 



     


    

 


The Applicable Margin for each Base Rate
Advance shall be determined by reference to the Leverage Ratio in effect from time to time and the Applicable Margin for any Interest
Period for all Eurodollar Rate Advances comprising part of the same Borrowing shall be determined by reference to the Leverage
Ratio in effect on the first day of such Interest Period; provided, however, that (a) the Applicable Margin shall initially
be at Pricing Level IV on the Second Amendment Effective Date based on the certificate delivered pursuant to the Second Amendment,
(b) no change in the Applicable Margin resulting from the Leverage Ratio shall be effective until three Business Days after the
date on which the Administrative Agent receives (i) the financial statements required to be delivered pursuant to Section 5.03(b)
or (c), as the case may be, and (ii) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar
functions) of the Borrower demonstrating the Leverage Ratio, (c) the Applicable Margin shall be at Pricing Level VII during any
period that an increase in the maximum ratio of Consolidated Unsecured Indebtedness of the Parent Guarantor to Unencumbered Asset
Value in accordance with the proviso in Section 5.04(b)(i) is in effect, and (d) the Applicable Margin shall be at Pricing Level
VII for so long as the Borrower has not submitted to the Administrative Agent as and when required under Section 5.03(b) or (c),
as applicable, the information described in clause (b) of this proviso. If (i) the Leverage Ratio used to determine the Applicable
Margin for any period is incorrect as a result of any error, misstatement or misrepresentation contained in any financial statement
or certificate delivered pursuant to Section 5.03(b) or (c), and (ii) as a result thereof, the Applicable Margin paid to the Lenders,
at any time pursuant to this Agreement is lower than the Applicable Margin that would have been payable to the Lenders, had the
Applicable Margin been calculated on the basis of the correct Leverage Ratio, the Applicable Margin in respect of such period will
be adjusted upwards automatically and retroactively, and the Borrower shall pay to each Lender such additional amounts (“Additional
Margin Amounts”) as are necessary so that after receipt of such amounts such Lender receives an amount equal to the
amount it would have received had the Applicable Margin been calculated during such period on the basis of the correct Leverage
Ratio. Additional Margin Amounts shall be payable within (10) days after delivery by the Administrative Agent to the Borrower of
a notice (which shall be conclusive and binding absent manifest error) setting forth in reasonable detail the Administrative Agent’s
calculation of the amount of any Additional Margin Amounts owed to the Lenders. The payment of Additional Margin Amounts pursuant
to this Agreement shall be in addition to, and not in limitation of, any other amounts payable by the Borrower pursuant to the
Loan Documents.


 


“Applicable
Ownership Percentage” means (i) for each Unencumbered Asset owned by the Borrower or a wholly owned Subsidiary
(direct or indirect) of the Borrower, 100% and (ii) for each Unencumbered Asset owned by a Subsidiary of the Borrower that is not
wholly owned (directly or indirectly) by the Borrower, the greater of (a) the Borrower’s relative nominal direct and indirect
ownership interest (expressed as a percentage) in such Subsidiary or (b) the Borrower’s relative direct and indirect economic
interest (calculated as a percentage) in such Subsidiary, in each case determined in accordance with the applicable provisions
of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary Guarantor.


 






    	 	5	 



     


    

 


“Approved
Electronic Communications” means each Communication that any Loan Party is obligated to, or otherwise chooses to,
provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including any financial
statement, financial and other report, notice, request, certificate and other information materials required to be delivered pursuant
to Sections 5.03(b), (c), (e), (g), and (k); provided, however, that solely with respect to delivery of any such Communication
by any Loan Party to the Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s
right to effect delivery of such Communication by posting such Communication to the Approved Electronic Platform or the protections
afforded hereby to the Administrative Agent in connection with any such posting, “Approved Electronic Communication”
shall exclude (i) any notice of borrowing, request for delayed draw, notice of conversion or continuation, and any other notice,
demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing,
Borrowing, (ii) any notice pursuant to Section 2.06(a) and any other notice relating to the payment of any principal or other amount
due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv)
any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions
set forth in Article III or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent
to the effectiveness of this Agreement.


 


“Approved
Electronic Platform” has the meaning specified in Section 9.02(c).


 


“Approved
Franchisor” means, with respect to any Hotel Asset, a nationally recognized hotel brand franchisor that has entered
into a written franchise agreement (i) substantially in the form customarily used by such franchisor at such time or (ii) in form
and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent confirms that each of the existing
franchisors of the Hotel Assets shown on Schedule Part IV of Schedule 4.01(p)
hereto are satisfactory to the Administrative Agent and shall be considered an Approved Franchisor.


 


“Approved
Manager” means a nationally recognized hotel manager (a) with (or controlled by a Person or Persons with) at least
ten years of experience in the management of limited service, select service and full service hotels that have been rated “upscale”,
“upper midscale” or “midscale” or better by Smith Travel Research and (b) that is engaged pursuant to a
written management agreement. The Administrative Agent confirms that as of the Closing Date the existing managers of the Hotel
Assets shown on Schedule III hereto are satisfactory to the Administrative Agent and are deemed Approved Managers. For purposes
of this definition, the term “control” (including the term “controlled by”) of a Person means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through
the ownership of Voting Interests, by contract or otherwise.


 






    	 	6	 



     


    

 


“Assets”
means Hotel Assets, Development Assets and Joint Venture Assets.


 


“Assignment
and Acceptance” means an assignment and acceptance entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit E hereto.


 


“Assignment
of Leases” means an assignment of leases and rents reasonably satisfactory in form and substance to the Administrative
Agent, duly executed by the appropriate Loan Parties. 


 


“Assumed
Unsecured Interest Expense” means the greater of (a) the actual Interest Expense on Unsecured Indebtedness of the
Parent Guarantor and its Consolidated Subsidiaries, or (b) the outstanding principal balance of all Unsecured Indebtedness of the
Parent Guarantor and its Consolidated Subsidiaries, multiplied by the greater of (i) the sum of the one month LIBOR as of the last
day of the most recent fiscal quarter plus the Applicable Margin, or (ii) 6.00%, in each case for the consecutive four fiscal quarters
most recently ended for which financial statements are required to be delivered to the Lender Parties pursuant to Section 5.03(b)
or (c).


 


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


 


“Bail-In
Legislation” means, (a) with respect to any
EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule
and (b) with respect to the United Kingdom, Part I of the United Kingdom
Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating
to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than
through liquidation, administration or other insolvency proceedings).


 


“Bankruptcy
Law” means any applicable law governing a proceeding of the type referred to in Section 6.01(f) or Title 11, U.S.
Code, or any similar foreign, federal or state law for the relief of debtors.


 


“Base Rate”
means the greatest of (a) the fluctuating annual rate of interest announced from time to time by the Administrative Agent at the
Administrative Agent’s Head Office as its “prime rate”, (b) one half of one percent (0.5%) above the Federal
Funds Rate, or (c) the then applicable Eurodollar Rate for an Interest Period of one month plus one percent (1%); provided, however,
that for the avoidance of doubt, in no circumstance shall the Base Rate be less than zero percent
(0.00twenty-five basis points (0.25%) per
annum. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer.
Any change in the rate of interest payable hereunder resulting from a change in the Base Rate shall become effective as of the
opening of business on the Business Day on which such change in the Base Rate becomes effective, without notice or demand of any
kind.


 


“Base Rate
Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).


 






    	 	7	 



     


    

 


“Beneficial
Ownership Certification” means, if the Borrower qualifies as a “legal entity customer” within the meaning
of the Beneficial Ownership Regulation, a certification of beneficial ownership as required by the Beneficial Ownership Regulation.


 


“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230, as amended.


 


“BHC
Act Affiliate” has the meaning specified in Section 9.18(b).


 


“Borrower”
has the meaning specified in the recital of parties to this Agreement.


 


“Borrower’s
Account” means the account of the Borrower maintained by the Borrower with U.S. Bank, N.A., 777 East Wisconsin Avenue,
Milwaukee, WI 53202, ABA No. 075000022, Account No. XXXXXXXX3155 or such other account as the Borrower shall specify in writing
to the Administrative Agent.


 


“Borrowing”
means a borrowing consisting of simultaneous Term Loan Advances of the same Type made by the Lenders.


 


“Building”
has the meaning specified in item (a) of the definition of Collateral Deliverables.


 


“Business
Day” means a day of the year on which banks are not required or authorized by law to close in Cleveland, Ohio and,
if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank
market.


 


“Capitalization
Rate” means (i) 7.25% for any Assets located in the central business districts of New York, Washington D.C., San
Francisco, Boston, Chicago, Los Angeles, San Diego or Miami and (ii) 7.75% for all other Assets.


 


“Capitalized
Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.


 


“Cash Equivalents”
means any of the following, to the extent owned by the applicable Loan Party or any of its Subsidiaries free and clear of all Liens
and having a maturity of not greater than 90 days from the date of issuance thereof: (a) readily marketable direct obligations
of the Government of the United States or any agency or instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the Government of the United States, (b) certificates of deposit of or time deposits with any commercial
bank that is a Lender Party or a member of the Federal Reserve System, which issues (or the parent of which issues) commercial
paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined
capital and surplus of at least $1,000,000,000 or (c) commercial paper in an aggregate amount of not more than $50,000,000 per
issuer outstanding at any time, issued by any corporation organized under the laws of any State of the United States and rated
at least “Prime 1” (or the then equivalent grade) by Moody’s or “A 1” (or the then equivalent grade)
by S&P.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.


 






    	 	8	 



     


    

 


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


 


“Change
of Control” means the occurrence of any of the following: (a) any Person or two or more Persons acting in concert
shall have acquired and shall continue to have following the date hereof beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Interests
of the Parent Guarantor (or other securities convertible into such Voting Interests) representing 35% or more of the combined voting
power of all Voting Interests of the Parent Guarantor; or (b) there is a change in the composition of the Parent Guarantor’s
Board of Directors over a period of 24 consecutive months (or less) such that a majority of Board members (rounded up to the nearest
whole number) ceases, by reason of one or more proxy contests for the election of Board members, to be comprised of individuals
who either (i) have been Board members continuously since the beginning of such period or (ii) have been elected or nominated for
election as Board members during such period by at least a majority of the Board members described in clause (i) who were still
in office at the time such election or nomination was approved by the Board; or (c) any Person or two or more Persons acting in
concert shall have acquired and shall continue to have following the date hereof, by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation will result in its or their acquisition of the power to direct, directly
or indirectly, the management or policies of the Parent Guarantor; or (d) the Parent Guarantor ceases to be the sole member of
and the direct legal and beneficial owner of all of the limited liability company interests in, Summit Hotel GP, LLC and/or Summit
Hotel GP, LLC ceases to be the sole general partner of and the direct legal and beneficial owner of all of the general partnership
interests in, the Borrower or (e) the Parent Guarantor ceases to be the direct or indirect beneficial owner of more than 60% of
the limited partnership interests in the Borrower; or (f) the Parent Guarantor shall create, incur, assume or suffer to exist any
Lien on the Equity Interests in the Borrower owned by it; or (g) the Borrower ceases to be the direct or indirect legal and beneficial
owner of all of the Equity Interests in each direct and indirect Subsidiary that owns or leases an Unencumbered Asset; or (h) the
Borrower ceases to be the direct legal and beneficial owner of all of the Equity Interests in TRS Holdco; or (i) TRS Holdco ceases
to be the direct legal and beneficial owner of all of the Equity Interests in each TRS Lessee.


 


“Closing
Date” means February 15, 2018 or such other date as may be agreed upon by the Borrower and the Administrative Agent.


 


“Closing
Authorizing Resolution” has the meaning specified in Section 3.01(a)(v).


 


“Collateral”
means all “Collateral” and all “Mortgaged Property” referred to in the Collateral Documents, the Pledged
Equity, the Pledged Account and all funds therein, and all proceeds thereof, and all other property that is or is intended to be
subject to any Lien in favor of the Agents for the benefit of the Secured Parties. 


 


“Collateral
Deliverables” means, with respect to each Unencumbered Asset during such period that Collateral is required hereunder,
the following items, each in form and substance satisfactory to the Administrative Agent in its reasonable discretion and in sufficient
copies for each Lender:


 






    	 	9	 



     


    

 


(a)           a Mortgage and an Assignment of Leases, together with: 


 


(i)           evidence that counterparts of each Mortgage and Assignment of Leases has
been duly executed, acknowledged and delivered and is in form suitable for filing or recording in all filing or recording offices
that the Agents may deem necessary or desirable in order to create a valid first and subsisting Lien (subject to Permitted Liens
and the other Liens permitted under Section 5.02(a)) on the collateral described therein in favor of the Agents for the benefit
of the Secured Parties and that all required affidavits, tax forms and filings pertaining to any applicable documentary stamp,
intangible and mortgage recordation taxes have been executed and delivered by all appropriate parties and are in form suitable
for filing with all applicable governmental authorities,


 


(ii)           record owner and lien and encumbrance searches or other satisfactory evidence
(A) of fee and leasehold ownership (including under Qualifying Ground Leases) of the Unencumbered Assets in the proper Loan Parties
and (B) of no liens of record affecting the Unencumbered Assets other than Permitted Liens. 


 


(iii)           a legal opinion from local counsel for the applicable Loan Parties (A)
in the state in which such Unencumbered Asset is located in respect of the creation and perfection of the security interest and
the enforceability of the Mortgage and Assignment of Leases and (B) in the states in which the applicable Loan Parties granting
the Mortgage and Assignment of Leases are organized in respect of the Loan Parties’ due authorization, execution and delivery
of the Mortgage and Assignment of Leases;


 


(iv)           evidence as to whether any portion of the applicable Unencumbered Asset
includes a structure with at least two walls and a roof (a “Building”) or a Building in the course of
construction and such Building is in an area designated by the Federal Emergency Management Agency as having special flood or mud
slide hazards (a “Flood Hazard Property”) pursuant to a standard flood hazard determination form ordered
and received by the Agents, and if such Unencumbered Asset is a Flood Hazard Property: 


 


(A)           evidence as to whether the community in which such Unencumbered Asset
is located is participating in the National Flood Insurance Program, 


 


(B)              
the applicable Subsidiary Guarantor’s written acknowledgment
of receipt of written notification from the Agents as to the fact that such Unencumbered Asset is a Flood Hazard Property and as
to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program,
and 


 


(C)              
copies of the applicable Subsidiary Guarantor’s application for
a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or
such other evidence of flood insurance satisfactory to the Agents and naming the Agents as sole loss payee on behalf of the Secured
Parties; 


 






    	 	10	 



     


    

 


(b)           The most recently prepared land survey of such Unencumbered Asset,
prepared by a duly licensed and registered land surveyor, showing all buildings and other improvements, any off-site improvements,
the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the
absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens
and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or
are reasonably acceptable to the Agents;


 


(c)           Copies of the most recently prepared engineering, soils, seismic (for
those Unencumbered Assets located in seismic zones 3 or 4), environmental and other similar reports as to the Unencumbered Assets;


 


(d)           Estoppel and consent agreements, in form and substance reasonably satisfactory
to the Administrative Agent, executed by each of the lessors of any Unencumbered Assets subject to a Qualifying Ground Lease, along
with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner
of the affected Unencumbered Asset, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest
or memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent's reasonable judgment,
to give constructive notice to third-party purchasers of such leasehold interest or (3) if such leasehold interest was acquired
or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged
by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory
to the Administrative Agent;


 


(e)           Reports supplementing Schedules II and 4.01(b) hereto, including descriptions
of such changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete
in all material respects, certified as correct and complete by a Responsible Officer of the Borrower;


 


(f)           Evidence of insurance (which may consist of binders or certificates
of insurance) naming the Agents as loss payee and additional insured with such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as is reasonably satisfactory to the Agents; for the avoidance of doubt,
evidence of insurance satisfying the requirements of insurance in the Security Agreement and the Mortgages shall be deemed to satisfy
this clause (d) with respect to the property described in the Security Agreement and the Mortgages;


 


(g)           A security agreement in substantially the form of Exhibit H hereto
(the “Security Agreement”), duly executed by each Loan Party that owns or leases Unencumbered Assets,
together with:


 


(i)           acknowledgment copies of proper financing statements, duly filed under
the Uniform Commercial Code of all jurisdictions that the Agents may deem reasonably necessary or desirable in order to perfect
and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described
therein;


 


(ii)           completed requests for information dated a recent date, including UCC,
judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches,
listing all effective financing statements filed in the jurisdictions specified by the Agents that name any Loan Party as debtor,
together with copies of such financing statements;


 






    	 	11	 



     


    

 


(iii)            certified copies of the Assigned Agreements referred to in the Security
Agreement (which shall include, without limitation, the Management Agreement and all amendments thereto);


 


(iv)           evidence that all other actions that the Agents may deem reasonably necessary
or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement
have been taken (including, without limitation, receipt of duly executed payoff letters, UCC termination statements and landlords’
and bailees’ waiver and consent agreements);


 


(h)           Such other diligence information related to the Unencumbered Assets
or any Loan Party that owns Unencumbered Assets as any Lender through the Administrative Agent may reasonably request or as reasonably
required by the Administrative Agent to comply with any applicable law or regulations. 


 


“Collateral
Documents” means the Security Agreement, the Mortgages, the Assignments of Leases, the Pledge Agreement and any other
agreement entered into by a Loan Party that creates or purports to create a Lien in favor of the Agents for the benefit of the
Secured Parties. Notwithstanding the foregoing, the Mortgages, Assignments of Leases and the Security Agreement shall be excluded
from the definition of Collateral Documents (x) prior to the Borrower’s satisfaction of the Mortgage Requirements and (y)
from and after the release thereof by the Agents pursuant to the terms and conditions set forth in the Third Amendment. 


 


“Collateral
Release Conditions” has the meaning specified in the Third Amendment.


 


“Commodity
Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any
successor statute.


 


“Commitment”
means a Term Loan Commitment.


 


“Commitment
Date” has the meaning specified in Section 2.17(b).


 


“Commitment
Increase” has the meaning specified in Section 2.17(a).


 


“Communications”
means each notice, demand, communication, information, document and other material provided for hereunder or under any other Loan
Document or otherwise transmitted between the parties hereto relating this Agreement, the other Loan Documents, any Loan Party
or its Affiliates, or the transactions contemplated by this Agreement or the other Loan Documents including, without limitation,
all Approved Electronic Communications.


 


“Consent
Request Date” has the meaning specified in Section 9.01(b).


 


“Consolidated”
refers to the consolidation of accounts in accordance with GAAP.


 






    	 	12	 



     


    

 


“Consolidated
EBITDA” means, for the most recently completed four fiscal quarters, without duplication, for the Parent Guarantor
and its Consolidated Subsidiaries, Consolidated net income or loss for such period, plus (w) the sum of (i) to the extent actually
deducted in determining said Consolidated net income or loss, Consolidated Interest Expense, minority interest and provision for
taxes for such period (excluding, however, Consolidated Interest Expense and taxes attributable to unconsolidated subsidiaries
of the Parent Guarantor and any of its Subsidiaries), (ii) the amount of all amortization of intangibles and depreciation that
were deducted determining Consolidated net income or loss for such period, (iii) any non-cash charges (including one-time non-cash
impairment charges) in such period to the extent that such non-cash charges were deducted in determining Consolidated net income
or loss for such period, and (iv) any other non-recurring charges in such period, minus (x) to the extent included in determining
Consolidated net income or loss for such period, the amount of non-recurring non-cash gains during such period, plus (y) with respect
to each Joint Venture, the JV Pro Rata Share of the sum of (i) to the extent actually deducted in determining said Consolidated
net income or loss, Consolidated Interest Expense, minority interest and provision for taxes for such period, (ii) the amount of
all amortization of intangibles and depreciation that were deducted determining Consolidated net income or loss for such period,
(iii) any non-cash charges (including one-time non-cash impairment charges) in such period to the extent that such non-cash were
deducted in determining Consolidated net income or loss for such period, and (iv) any other non-recurring charges in such period,
minus (z) to the extent included in determining Consolidated net income or loss for such period, the amount of non-recurring non-cash
gains during such period, in each case of such Joint Venture determined on a Consolidated basis and in accordance with GAAP for
such four fiscal quarter period; provided that Consolidated EBITDA shall be determined without giving effect to any extraordinary
gains or losses (including any taxes attributable to any such extraordinary gains or losses) or gains or losses (including any
taxes attributable to such gains or losses) from sales of assets other than from sales of inventory (excluding Real Property) in
the ordinary course of business; provided further that for purposes of this definition, in the case of any acquisition or disposition
of any direct or indirect interest in any Asset (including through the acquisition or disposition of Equity Interests) by the Parent
Guarantor or any of its Subsidiaries during such four fiscal quarter period, Consolidated EBITDA will be adjusted (1) in the case
of an acquisition, by adding thereto an amount equal to (A) in the case of an acquired Asset that is a newly constructed Hotel
Asset with no operating history, the Pro Forma EBITDA, if any, of such Asset, or (B) in the case of any other acquired Asset, such
acquired Asset’s actual Consolidated EBITDA (computed as if such Asset was owned by the Parent Guarantor or one of its Subsidiaries
for the entire four fiscal quarter period) generated during the portion of such four fiscal quarter period that such Asset was
not owned by the Parent Guarantor or such Subsidiary and (2) in the case of a disposition, by subtracting therefrom an amount equal
to the actual Consolidated EBITDA generated by the Asset so disposed of during such four fiscal quarter period; provided further
that in the case of a Hotel Asset that shall be repositioned and where such Asset is fully closed for renovations, upon the re-opening
of such Asset, all Consolidated EBITDA allocable to such Asset prior to the re-opening shall be excluded from the calculation of
Consolidated EBITDA and instead Consolidated EBITDA will be increased by the amount of Pro Forma EBITDA of such Asset, if any,
(it being understood, for the avoidance of doubt, that such Asset’s actual Consolidated EBITDA from (including) and after
the re-opening date shall not be excluded); provided further still that no more than 10% of Consolidated EBITDA shall be Pro Forma
EBITDA (provided, that to the extent such limitation is exceeded, the amount of such Pro Forma EBITDA shall be removed from the
calculation of Consolidated EBITDA to the extent of such excess). For
the avoidance of doubt, any income from the forgiveness of any Qualified Government Debt shall not be included in the calculation
of Consolidated EBITDA.


 






    	 	13	 



     


    

 


“Consolidated
Fixed Charge Coverage Ratio” means, at any date of determination, the ratio of (a) Adjusted Consolidated EBITDA to
(b) Consolidated Fixed Charges, in each case, of the Parent Guarantor and its Subsidiaries for the consecutive four fiscal quarters
of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Lender Parties pursuant
to Section 5.03(b) or (c), as the case may be.


 


“Consolidated
Fixed Charges” means, for the most recently completed four fiscal quarters, for the Parent Guarantor and its Consolidated
Subsidiaries, the sum (without duplication) of (i) Consolidated Interest Expense for such period, plus (ii) the scheduled principal
amount of all amortization payments (but not final balloon payments at maturity) for such period on all Consolidated Indebtedness;
plus (iii) cash distributions on Preferred Interests payable by the Borrower for such period and distributions made by the Borrower
in such period for the purpose of paying dividends on Preferred Interests issued by the Parent Guarantor.


 


“Consolidated
Indebtedness” means, at any time, the Indebtedness of the Parent Guarantor and its Consolidated Subsidiaries; provided,
however, that Consolidated Indebtedness shall also include, without duplication, the JV Pro Rata Share of Indebtedness for
each Joint Venture.


 


“Consolidated
Interest Expense” means, for the most recently completed four fiscal quarters, the sum of (a) the aggregate cash
interest expense of the Parent Guarantor and its Consolidated Subsidiaries for such period, as determined in accordance with GAAP,
including capitalized interest and the portion of any payments made in respect of capitalized lease liabilities allocable to interest
expense, but excluding (i) deferred financing costs, (ii) other non-cash interest expense and (iii) any capitalized interest relating
to construction financing for an Asset to the extent an interest reserve or a loan “holdback” is maintained in respect
of such capitalized interest pursuant to the terms of such financing as reasonably approved by the Administrative Agent, plus (b)
such Persons’ JV Pro Rata Share of the items described in clause (a) above of its Joint Ventures for such period.


 


“Consolidated
Tangible Net Worth” means, as of a given date, the stockholders’ equity of the Parent Guarantor and its Subsidiaries
determined on a Consolidated basis plus accumulated depreciation and amortization, minus (to the extent
included when determining such stockholders’ equity): (a) the amount of any write-up in the book value of any assets reflected
in any balance sheet resulting from revaluation thereof or any write-up in excess of the cost of such assets acquired, and (b)
the aggregate of all amounts appearing on the assets side of any such balance sheet for franchises, licenses, permits, patents,
patent applications, copyrights, trademarks, service marks, trade names, goodwill, treasury stock, experimental or organizational
expenses and other like assets which would be classified as intangible assets under GAAP, all determined on a Consolidated basis.


 


“Consolidated
Unsecured Indebtedness” means, at any time, the Unsecured Indebtedness of Parent Guarantor and its Subsidiaries.


 






    	 	14	 



     


    

 



 


“Contingent
Obligation” means, with respect to any Person, any Obligation or arrangement of such Person to guarantee or intended
to guarantee any Indebtedness, leases, dividends or other payment Obligations (“primary obligations”)
of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, (a) the direct or indirect guarantee, endorsement (other than for collection or deposit in the ordinary course
of business), co-making, discounting with recourse or sale with recourse by such Person of the Obligation of a primary obligor,
(b) the Obligation to make take-or-pay or similar payments, if required, regardless of nonperformance by any other party or parties
to an agreement or (c) any Obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment
of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof.
The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for
which such Person may be liable pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.


 


“Conversion”,
“Convert” and “Converted” each refer to a conversion of Advances of one Type
into Advances of the other Type pursuant to Section 2.07(d), 2.09 or 2.10.


 


“Covered
Entity” has the meaning specified in Section 9.18(b).


 


“Covered
Party” has the meaning specified in Section 9.18(a).


 


“Customary
Carve-Out Agreement” has the meaning specified in the definition of Non-Recourse Debt.


 


“Debt for
Borrowed Money” of any Person means all items that, in accordance with GAAP, would be classified as indebtedness
on a Consolidated balance sheet of such Person; provided, however, that in the case of the Parent Guarantor and its Subsidiaries
“Debt for Borrowed Money” shall also include, without duplication, the JV Pro Rata Share of Debt for Borrowed Money
for each Joint Venture; provided further that as used in the definition of “Consolidated Fixed Charge Coverage Ratio”,
in the case of any acquisition or disposition of any direct or indirect interest in any Asset (including through the acquisition
or disposition of Equity Interests) by the Parent Guarantor or any of its Subsidiaries during the consecutive four fiscal quarters
of the Parent Guarantor most recently ended for which financial statements are required to be delivered to the Lender Parties pursuant
to Section 5.03(b) or (c), as the case may be, the term “Debt for Borrowed Money” (a) shall include, in the case of
an acquisition, any Debt for Borrowed Money directly relating to such Asset existing immediately following such acquisition computed
as if such indebtedness also existed for the portion of such period that such Asset was not owned by the Parent Guarantor or such
Subsidiary, and (b) shall exclude, in the case of a disposition, for such period any Debt for Borrowed Money to which such Asset
was subject to the extent such Debt for Borrowed Money was repaid or otherwise terminated upon the disposition of such Asset.


 






    	 	15	 



     


    

 


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


 


“Debtor
Subsidiary” has the meaning specified in Section 6.01(f).


 


“Deemed
FF&E Reserve” means, with respect to any Asset or Assets for the consecutive four fiscal quarters most recently
ended, an amount equal to 4% of the Gross Hotel Revenues for such fiscal period.


 


“Deemed
Management Fee” means, with respect to any Asset for the consecutive four fiscal quarters most recently ended, the
greater of (i) an amount equal to 3.0% of the Gross Hotel Revenues of such Asset for such fiscal period and (ii) all actual management
fees payable in respect of such Asset during such fiscal period.


 


“Default”
means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given
or time elapse or both.


 


“Default
Rate” means a rate equal to 2% per annum above the highest
of (i) the rate per annum required to be paid on Base Rate Advances pursuant to Section 2.07(a)(i) hereof,
(ii) the rate per annum required to be paid on Base Rate Advances (as defined in the 2017 Term Loan Agreement) pursuant to Section
2.07(a)(i) of the 2017 Term Loan Agreement and (iii) the rate per annum required to be paid on Base Rate Advances (as defined in
the 2018 Revolver/Term Loan Agreement) pursuant to Section 2.07(a)(i) of the 2018 Revolver/Term Loan Agreement.


 


“Defaulting
Lender” means, subject to Section 9.10(b), any Lender that (a) has failed to (i) fund all or any portion of its Commitments
within two Business Days of the date any such Commitment was required to be funded by such Lender hereunder unless such Lender
notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s good faith
determination that one or more conditions precedent to funding the Advance has not been satisfied (which conditions precedent,
together with the applicable default, if any, shall be specifically identified in such notice) or (ii) pay to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b)
has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with its funding obligations
hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’
obligation to fund a Commitment hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified
in such writing or public statement) cannot be satisfied), (c) has failed, within two Business Days after written request by the
Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with
its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct
or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed
for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other
state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action; provided that
a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender
or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result
in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments
or writs of attachment on its assets or permit such Lender (or such Governmental Authority or instrumentality) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Person. Any determination by the Administrative Agent that a Lender
is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender
shall be deemed to be a Defaulting Lender (subject to Section 9.10(a)) upon delivery of written notice of such determination to
the Borrower and each Lender.


 






    	 	16	 



     


    

 


“Delayed
Draw” has the meaning set forth in Section 2.01(a).


 


“Designated
Person” has the meaning specified in Section 4.01(x).


 


“Development
Assets” means all Real Property acquired for development into Hotel Assets that, in accordance with GAAP, would be
classified as development property on a Consolidated balance sheet of the Parent Guarantor and its Subsidiaries.


 


“Division”
and “Divide” each refer to a division of a limited liability company into two or more newly formed or
existing limited liability companies pursuant a plan of division or otherwise.


 


“Domestic
Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “Domestic
Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a
Lender Party, as the case may be, or such other office of such Lender Party as such Lender Party may from time to time specify
to the Borrower and the Administrative Agent.


 


“ECP”
means an eligible contract participant as defined in the Commodity Exchange Act.


 


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


 


“EEA Member
Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.


 






    	 	17	 



     


    

 


“EEA Resolution
Authority” means any public administrative authority or any person entrusted with public administrative authority
of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.


 


“Electronic
Signatures” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record
and adopted by a Person with the intent to sign, authenticate or accept such contract or record.


 


“Eligible
Assignee” means (i) a Lender; (ii) an Affiliate or Fund Affiliate of a Lender; (iii) a commercial bank organized
under the laws of the United States, or any State thereof, respectively, and having total assets in excess of $500,000,000; (iv)
a savings and loan association or savings bank organized under the laws of the United States or any State thereof, and having total
assets in excess of $500,000,000; (v) a commercial bank organized under the laws of any other country that is a member of the OECD
or has concluded special lending arrangements with the International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having total assets in excess of $500,000,000, so long as such bank
is acting through a branch or agency located in the United States; (vi) the central bank of any country that is a member of the
OECD; (vii) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust
or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its
business and having total assets in excess of $500,000,000; and (viii) any other Person approved by the Administrative Agent, and,
unless a Default has occurred and is continuing at the time any assignment is effected pursuant to Section 9.07, approved by the
Borrower, each such approval not to be unreasonably withheld or delayed; provided, however, that neither any Loan Party nor any
Affiliate of a Loan Party shall qualify as an Eligible Assignee under this definition; and provided further that that neither a
Defaulting Lender nor any Affiliate of a Defaulting Lender nor any natural person shall qualify as an Eligible Assignee under this
definition.


 


“Environmental
Action” means any enforcement action, suit, demand, demand letter, claim of liability, notice of non-compliance or
violation, notice of liability or potential liability, investigation, enforcement proceeding, consent order or consent agreement
relating in any way to any Environmental Law, any Environmental Permit or Hazardous Material or arising from alleged injury or
threat to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority
or third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.


 


“Environmental
Law” means any Federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.


 


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


 






    	 	18	 



     


    

 


“Equity
Interests” means, with respect to any Person, shares of capital stock of (or other ownership or profit interests
in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital
stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition
from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are authorized or otherwise existing on any date of determination.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.


 


“ERISA
Affiliate” means any Person that for purposes of Title IV of ERISA is a member of the controlled group of any Loan
Party, or under common control with any Loan Party, within the meaning of Section 414 of the Internal Revenue Code.


 


“ERISA
Event” means (a)(i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect
to any Plan unless the 30-day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements
of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with
respect to such Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to a Plan; (c)
the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have
been met with respect to any Plan; or (g) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042
of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination
of, or the appointment of a trustee to administer, such Plan.


 


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


 


“Eurocurrency
Liabilities” has the meaning specified in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.


 


“Eurodollar
Lending Office” means, with respect to any Lender Party, the office of such Lender Party specified as its “Eurodollar
Lending Office” opposite its name on Schedule I hereto or in the Assignment and Acceptance pursuant to which it became a
Lender Party (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the Administrative Agent.


 






    	 	19	 



     


    

 


“Eurodollar
Rate” means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing, the
greater of (a) zero percent (0twenty-five
basis points (0.25%) and (b) the rate as shown in Reuters Screen LIBOR 01 Page (or any successor service, or if such
Person no longer reports such rate as determined by Administrative Agent, by another commercially available source providing such
quotations approved by Administrative Agent) at which deposits in U.S. dollars are offered by first class banks in the London Interbank
Market at approximately 11:00 a.m. (London time) on the day that is two (2) Business Days prior to the first day of such Interest
Period with a maturity approximately equal to such Interest Period and in an amount approximately equal to the amount to which
such Interest Period relates, adjusted for reserves and taxes if required by future regulations. If such service or such other
Person approved by Administrative Agent described above no longer reports such rate or Administrative Agent determines in good
faith that the rate so reported no longer accurately reflects the rate available to Administrative Agent in the London Interbank
Market, Eurodollar Rate Advances shall subject to Section 2.18 accrue interest at the Base Rate plus the Applicable Margin for
Base Rate Advances. For any period during which a Eurodollar Rate Percentage shall apply, the Eurodollar Rate with respect to Eurodollar
Rate Advances shall be equal to the amount determined above divided by an amount equal to 1 minus the Eurodollar Rate Reserve Percentage.


 


“Eurodollar
Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(ii).


 


“Eurodollar
Rate Reserve Percentage” means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the reserve percentage applicable three Business Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in Cleveland, Ohio with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such Interest Period.


 


“Events
of Default” has the meaning specified in Section 6.01.


 


“Excluded
Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion
of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or
any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity
Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure
for any reason not to constitute an “eligible contract participant”
as defined in the Commodity Exchange Act at the time the Guaranty of such Guarantor or
the grant of such security interest becomes effective with respect to such related Swap Obligation. If
a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion
of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal. 


 


“Excluded
Taxes” has the meaning specified in Section 2.12(a).


 






    	 	20	 



     


    

 


“Existing
Debt” means Indebtedness of each Loan Party and its Subsidiaries outstanding on the Closing Date.


 


“Existing
Credit Agreement” means collectively (i) that certain Credit Agreement, dated as of December 6, 2018, among Borrower,
Parent Guarantor, the other guarantors party thereto, Deutsche Bank AG New York Branch, as administrative agent, and the other
lenders party thereto, as amended, supplemented or otherwise modified to date, and (ii) that certain Credit Agreement, dated as
of September 26, 2017, among Borrower, Parent Guarantor, the other guarantors party thereto, KeyBank, as administrative agent,
and the other lenders party thereto, as amended, supplemented or otherwise modified to date.


 


“Facility”
means the Term Loan Facility.


 


“Facility
Exposure” means, at any date of determination, the sum of (a) the aggregate principal amount of all outstanding Advances,
plus (b) all Obligations of the Loan Parties in respect of Guaranteed Hedge Agreements, valued at the Agreement Value thereof.


 


“FATCA”
means sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with, any current or future regulations or official
interpretations thereof, and any agreement entered into pursuant to section 1471(b) of the Internal Revenue Code).


 


“Federal
Funds Rate” means, for any period, the rate per annum (rounded upward to the nearest one-hundredth of one percent
(1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal
Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers
to as the “Federal Funds Effective Rate.”


 


“Fee Letter”
means collectively (a) the fee letter dated as of January 17, 2018 among the Parent Guarantor, KeyBank and KCM, and (b) each other
fee letter among the Parent Guarantor and a Joint Lead Arranger, as the same may be amended from time to time.


 


“FF&E”
means all “furniture, furnishings and equipment” (as such phrase is commonly understood in the hotel industry) and
all appurtenances and additions thereto and substitutions or replacements thereof owned by the applicable Loan Party and now or
hereafter attached to, contained in or used in connection with the use, occupancy, operation or maintenance of the applicable Hotel
Asset, including, without limitation, any and all fixtures, furnishings, equipment, furniture, and other items of tangible personal
property, appliances, machinery, equipment, signs, artwork (including paintings, prints, sculpture and other fine art), office
furnishings and equipment, guest room furnishings, and specialized equipment for kitchens, laundries, drying, bars, restaurants,
spas, public rooms, health and recreational facilities, linens, dishware, two-way radios, all partitions, screens, awnings, shades,
blinds, rugs, carpets, hall and lobby equipment, heating, lighting, plumbing, ventilating, refrigerating, incinerating, elevators,
escalators, air conditioning and communication plants or systems with appurtenant fixtures, vacuum cleaning systems, call or beeper
systems, security systems, sprinkler systems and other fire prevention and extinguishing apparatus and materials; generators, boilers,
compressors and engines; gas and electric machinery and equipment; facilities used to provide utility services; garbage disposal
machinery or equipment; communication apparatus, including television, radio, music, and cable antennae and systems; attached floor
coverings, window coverings, curtains, drapes and rods; storm doors and windows; stoves, refrigerators, dishwashers and other installed
appliances; attached cabinets; trees, plants and other items of landscaping; visual and electronic surveillance systems; and swimming
pool heaters and equipment, fuel, water and other pumps and tanks; irrigation equipment; reservation system computer and related
equipment; all equipment, manual, mechanical or motorized, for the construction, maintenance, repair and cleaning of, parking areas,
walks, underground ways, truck ways, driveways, common areas, roadways, highways and streets and all equipment, fixtures, furnishings,
and articles of personal property now or hereafter attached to or used in or about any such Hotel Asset which is or may be used
in or related to the planning, development, financing or operation thereof and all renewals of or replacements or substitutions
for any of the foregoing.


 






    	 	21	 



     


    

 


“Fiscal
Year” means a fiscal year of the Parent Guarantor and its Consolidated Subsidiaries ending on December 31 in any
calendar year.


 


“First
Amendment Effective Date” shall have the meaning set forth in the First Amendment to First Amended and Restated Credit
Agreement (Seven Year Term Loan) dated December 6, 2018 among Borrower, Administrative Agent and Lenders and consented to by the
Guarantors.


 


“Fiscal
Year” means a fiscal year of the Parent Guarantor and its Consolidated Subsidiaries ending on December 31 in any
calendar year.


 


“Flood
Hazard Property” has the meaning specified in item (a) of the definition of Collateral Deliverables. 


 


“Flood
Laws” means, collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the
National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor
statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and
(iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto, and
in each case including the regulations issued thereunder.


 


“Franchise
Agreements” means (a) the Franchise Agreements set forth on Part IV of Schedule 4.01(p) hereto, and (b) any written
Franchise Agreement in respect of a Hotel Asset after the First Amendment Effective Date.


 


“Fund Affiliate”
means, with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and is advised
or managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.


 


“GAAP”
has the meaning specified in Section 1.03.


 


“Good Faith
Contest” means the contest of an item as to which: (a) such item is contested in good faith, by appropriate proceedings,
(b) reserves that are adequate are established with respect to such contested item in accordance with GAAP and (c) the failure
to pay or comply with such contested item during the period of such contest could not reasonably be expected to result in a Material
Adverse Effect.


 






    	 	22	 



     


    

 


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


 


“Gross
Hotel Revenues” means all revenues and receipts of every kind derived from operating such Asset or Assets, as the
case may be, and parts thereof, including, without limitation, income (from both cash and credit transactions), before commissions
and discounts for prompt or cash payments, from rentals or sales of rooms, stores, offices, meeting space, exhibit space, or sales
space of every kind (including rentals from timeshare marketing and sales desks); license, lease, and concession fees and rentals
(not including gross receipts of licensees, lessees, and concessionaires); net income from vending machines; health club membership
fees; food and beverage sales; parking; sales of merchandise (other than proceeds from the sale of FF&E no longer necessary
to the operation of such Asset or Assets); service charges, to the extent not distributed to the employees at such Asset or Assets
as, or in lieu of, gratuities; and proceeds, if any, from business interruption or other loss of income insurance, all as determined
in accordance with GAAP; provided, however, that Gross Hotel Revenues shall not include gratuities to employees of such Asset or
Assets; federal, state, or municipal excise, sales, use, or similar taxes collected directly from tenants, patrons, or guests or
included as part of the sales price of any goods or services; insurance proceeds (other than proceeds from business interruption
or other loss of income insurance); condemnation proceeds; or any proceeds from any sale of such Asset or Assets.


 


“Guaranteed
Hedge Agreement” means any Hedge Agreement required or permitted under Article V that is entered into by and between
any Loan Party and any Hedge Bank.


 


“Guaranteed
Obligations” has the meaning specified in Section 7.01.


 


“Guarantor
Deliverables” means each of the items set forth in Section 5.01(j).


 


“Guaranty”
means the Guaranty by the Guarantors pursuant to Article VII, together with any and all Guaranty Supplements required to be delivered
pursuant to Section 5.01(j), Section 5.01(x) or Section 7.05.


 


“Guaranty
Supplement” means a supplement entered into by an Additional Guarantor in substantially the form of Exhibit D hereto.


 


“Hazardous
Materials” means (a) petroleum or petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls, radon gas and mold and (b) any other chemicals, materials or substances designated, classified
or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.


 






    	 	23	 



     


    

 


“Hedge
Agreements” means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other hedging agreements.


 


“Hedge
Bank” means any entity that is a Lender Party or an Affiliate of a Lender Party at the time it enters into a Guaranteed
Hedge Agreement in its capacity as a party to such Guaranteed Hedge Agreement.


 


“Hotel
Asset” means Real Property (other than any Joint Venture Asset) that operates or is intended to be operated as a
hotel, resort or other lodging for transient use of rooms or is a structure from which a hotel, resort or other lodging for transient
use of rooms is operated or intended to be operated.


 


“Increase
Date” has the meaning specified in Section 2.17(a).


 


“Increasing
Lender” has the meaning specified in Section 2.17(b).


 


“Indebtedness”
of any Person means the sum of (without duplication) (i) all Debt for Borrowed Money and for the deferred purchase price of property
or services (excluding ordinary payable and accrued expenses and deferred purchase price which is not yet a liquidated sum), (ii)
the aggregate amount of all Capitalized Leases Obligations, (iii) all indebtedness of the types described in clause (i) or (ii)
of this definition of Persons other than the Parent Guarantor and its Consolidated Subsidiaries secured by any Lien on any property
owned by the Parent Guarantor or any of its Consolidated Subsidiaries, whether or not such indebtedness has been assumed by such
Person (provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness
shall be deemed to be the outstanding principal amount (or maximum principal amount, if larger) of such indebtedness or, if not
stated or if indeterminable, in an amount equal to the fair market value of the property to which such Lien relates, as determined
in good faith by such Person), (iv) all Contingent Obligations, and (v) the net termination value (if negative) of all indebtedness
in respect of Hedge Agreements;


 


“Indemnified
Costs” has the meaning specified in Section 8.05(a).


 


“Indemnified
Party” has the meaning specified in Section 7.06(a).


 


“Indemnified
Taxes” has the meaning specified in Section 2.12(a).


 


“Information”
has the meaning specified in Section 9.11.


 


“Initial
Extension of Credit” means the Borrowing at the Closing Date.


 


“Initial
Grantors” has the meaning specified in the Third Amendment. 


 


“Initial
Lenders” has the meaning specified in the recital of parties to this Agreement.


 


“Insufficiency”
means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.


 






    	 	24	 



     


    

 


“Intercreditor
Agreement” means that certain Pari Passu Intercreditor Agreement dated as of the Third Amendment Date among the Administrative
Agent, the 2017 TLA Agent and the 2018 Revolver/Term Agent, as the same may hereafter be amended, amended and restated, supplemented
or otherwise modified from time to time.


 


“Interest
Expense” means, with respect to a Person for a given period, without duplication, (a) total interest expense of such
Person, including capitalized interest not funded under a construction loan interest reserve account, determined on a consolidated
basis in accordance with GAAP for such period, plus (b) such Person’s JV Pro Rata Share of Interest Expense of its Joint
Venture for such period. Interest Expense shall include the interest component of Obligations in respect of Capitalized Leases
and shall exclude the amortization of any deferred financing fees.


 


“Interest
Period” means for each Eurodollar Rate Advance comprising part of the same Borrowing, (i) the period commencing on
the date of such Eurodollar Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance,
and ending on the first day of the month corresponding to the duration of the Interest Period selected by the Borrower pursuant
to the following sentence, and (ii) thereafter, each subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the first day of the month corresponding to the duration of the Interest Period selected by the Borrower
pursuant to the following sentence. The duration of each such Interest Period shall be one, two, three or six months, as the Borrower
may, upon notice received by the Administrative Agent not later than 12:00 Noon (Cleveland, Ohio time) on the third Business Day
prior to the first day of such Interest Period, select; provided, however, that:


 


(a)       the
Borrower may not select any Interest Period with respect to any such Term Loan Advance that ends after the Termination Date;


 


(b)       Interest
Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Borrowing shall be of the same duration;
and


 


(c)       whenever
the last day of any such Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day; provided, however, that if such extension would cause the
last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and


 


(d)       whenever
the first day of any such Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.


 


“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.


 


“Investment”
means (a) any loan or advance to any Person, any purchase or other acquisition of any Equity Interests or Indebtedness or the assets
comprising a division or business unit or a substantial part or all of the business of any Person, any capital contribution to
any Person or any other direct or indirect investment in any Person, including, without limitation, any acquisition by way of a
merger or consolidation and any arrangement pursuant to which the investor incurs Indebtedness of the types referred to in clause
(iii) or (iv) of the definition of “Indebtedness” in respect of any Person, and (b) the purchase or other acquisition
of any real property.


 






    	 	25	 



     


    

 


“Joint
Lead Arrangers” has the meaning specified in the recital of the parties to this Agreement.


 


“Joint
Venture” means any joint venture (a) in which the Parent Guarantor or any of its Subsidiaries holds any Equity Interest,
(b) that is not a Subsidiary of the Parent Guarantor or any of its Subsidiaries and (c) the accounts of which would not appear
on the Consolidated financial statements of the Parent Guarantor.


 


“Joint
Venture Assets” means, with respect to any Joint Venture at any time, the assets owned by such Joint Venture at such
time.


 


“JV Pro
Rata Share” means, with respect to any Subsidiary of a Person (other than a wholly-owned Subsidiary) or any Joint
Venture of a Person, the greater of (a) such Person’s relative nominal direct and indirect ownership interest (expressed
as a percentage) in such Subsidiary or Joint Venture or (b) such Person’s relative direct and indirect economic interest
(calculated as a percentage) in such Subsidiary or Joint Venture, in each case determined in accordance with the applicable provisions
of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary or Joint Venture.


 


“KCM”
has the meaning specified in the recital of parties to this Agreement.


 


“KeyBank”
has the meaning specified in the recital of parties to this Agreement.


 


“Lender
Party” means any Lender.


 


“Lenders”
means the Initial Lenders, each Acceding Lender that shall become a party hereto pursuant to Section 2.17 and each Person that
shall become a Lender hereunder pursuant to Section 9.07 for so long as such Initial Lender or Person, as the case may be, shall
be a party to this Agreement.


 


“Leverage
Ratio” means, at any date of determination, the ratio of (x)
Total Indebtedness to (y) Consolidated EBITDA
as at the end of the most recently ended fiscal quarter of the Parent Guarantor for which financial statements are required to
be delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be.


 


“Leverage
Ratio Increase Election” means an election by notice from the Borrower to the Administrative Agent to increase the
maximum Leverage Ratio in accordance with the proviso in Section 5.04(a)(i), which election may only be made contemporaneously
with the closing of a Specified Acquisition and shall otherwise be subject to the limitations set forth in such proviso.


 






    	 	26	 



     


    

 


“Lien”
means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including,
without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance
on title to real property.


 


“Loan Documents”
means (a) this Agreement, (b) the Notes, (c) the Fee Letter, (d) each Guaranty Supplement, (e) each Guaranteed Hedge Agreement,
(f) the Collateral Documents and (fg)
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; in each case as the same may be amended, supplemented or otherwise modified from time to time,
specifically including the Third Amendment.


 


“Loan Parties”
means the Borrower and,
the Guarantors, the TRS Lessees and any other Person executing one or
more Collateral Documents in favor of the Agents for the benefit of the Secured Parties.


 


“Management
Agreements” means (a) the Management Agreements set forth on Part III of Schedule 4.01(p) hereto (as supplemented
from time to time in accordance with the provisions hereof), and (b) any Management Agreement in respect of an Unencumbered Asset
entered into after the Closing Date in compliance with Section 5.01(p).


 


“Margin
Stock” has the meaning specified in Regulation U.


 


“Material
Adverse Change” means a material adverse change in the business, assets, properties, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Borrower, the Guarantors and their respective Subsidiaries,
taken as a whole.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business, assets, properties, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the Borrower, the Guarantors and their respective Subsidiaries,
taken as a whole, (b) the rights and remedies of the Administrative Agent or any Lender Party under any Loan Document, (c) the
ability of any Loan Party to perform its Obligations under any Loan Document to which it is or is to be a party, or (d) the value,
use or ability to sell or refinance any Unencumbered Asset.


 


“Material
Contract” means each contract to which the Borrower or any of its Subsidiaries is a party involving aggregate consideration
payable to or by the Borrower or such Subsidiary in an amount of $10,000,000 or more per annum or otherwise material to the business,
condition (financial or otherwise), operations, performance, properties or prospects of the Borrower and its Subsidiaries, taken
as a whole. Without limitation of the foregoing, the Operating Leases, the Management Agreements and the Franchise Agreements shall
be deemed to comprise Material Contracts hereunder.


 






    	 	27	 



     


    

 


“Material
Debt” means (a) Recourse Debt of the Borrower that is outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of $15,000,000 or more, either individually or in the aggregate, (b) any other Indebtedness of any
Loan Party or any Subsidiary of a Loan Party (other than Indebtedness described in clause (c) below) that is outstanding in a principal
amount (or, in the case of any Hedge Agreement, an Agreement Value) of $75,000,000 or more, either individually or in the aggregate,
or (c) any Unsecured Indebtedness (including, without limitation, the indebtedness under the Existing Credit Agreement) of the
Parent Guarantor or any of its Subsidiaries; in each case (i) whether or not the primary obligation of the applicable obligor,
(ii) whether the subject of one or more separate debt instruments or agreements, and (iii) exclusive of Indebtedness outstanding
under this Agreement; provided, however, in any case Material Debt shall not include (x) any guaranty of Debt for Borrowed Money
with an outstanding balance, individually or in the aggregate, of $15,000,000 or less, (y) Non-Recourse Guarantees, unless and
until a claim for payment has been made under any such Non-Recourse Guarantee or (z) unless and until a claim for payment has been
made thereunder, any guarantees or indemnities of payment Obligations under any Qualifying Ground Lease, Franchise Agreements or
other related agreements not constituting Debt for Borrowed Money and approved by the Administrative Agent. For the avoidance of
doubt, Material Debt may include Refinancing Debt to the extent comprising Material Debt as defined herein.


 


“Material
Litigation” has the meaning specified in Section 3.01(e).


 


“Material
Renovation” means any renovation of an Unencumbered Asset the completion of which causes 25% or more of the rooms
located in such Asset to be unavailable for use for a period of forty-five (45) consecutive days or longer.


 


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


 


“Mortgage”
means a deed of trust, trust deed, deed to secure debt or mortgage in substantially the form of Exhibit I hereto with such changes
as may be required to account for local law matters and otherwise reasonably satisfactory in form and substance to the Administrative
Agent.


 


“Mortgage
Requirements” has the meaning specified in the Third Amendment. 


 


“Multiemployer
Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions.


 


“Multiple
Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates
or (b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be terminated.


 


“National
Flood Insurance Program” means the program created pursuant to the Flood Laws.


 


“Negative
Pledge” means, with respect to any asset, any provision of a document, instrument or agreement (other than apursuant
to the Loan DocumentDocuments
and the Other Facilities) 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 (a) 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, and (b) a provision in any agreement governing unsecured Indebtedness
generally prohibiting the encumbrance of assets shall not constitute a Negative Pledge so long as such provision is generally consistent
with a comparable provision of the Loan Documents.


 






    	 	28	 



     


    

 


“Net
Cash Proceeds” has the meaning specified in the Third Amendment. 


 


“Net Operating
Income” means the amount obtained by subtracting Operating Expenses from Operating Income, in each case for consecutive
four fiscal quarters most recently ended.


 


“New Property”
means each Hotel Asset acquired by the Parent Guarantor or any Subsidiary or any Joint Venture (as the case may be) from the date
of acquisition for a period of four full fiscal quarters after the acquisition thereof; provided, however, that, upon the
Seasoned Date for any New Property (or any earlier date selected by the Borrower), such New Property shall be converted to a Seasoned
Property and shall cease to be a New Property.


 


“Non-Consenting
Lender” has the meaning specified in Section 9.01(b).


 


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


 


“Non-Recourse
Debt” means Debt for Borrowed Money with respect to which recourse for payment is limited to (a) any building(s)
or parcel(s) of real property and any related assets encumbered by a Lien securing such Debt for Borrowed Money and/or (b) (i)
the general credit of the Property-Level Subsidiary that has incurred such Debt for Borrowed Money, and/or the direct Equity Interests
therein and/or (ii) the general credit of the immediate parent entity of such Property-Level Subsidiary, provided that such parent
entity’s assets consist solely of Equity Interests in such Property-Level Subsidiary, it being understood that the instruments
governing such Debt for Borrowed Money may include customary carve-outs to such limited recourse (any such customary carve-outs
or agreements limited to such customary carve-outs, being a “Customary Carve-Out Agreement”) such as,
for example, personal recourse to the Parent Guarantor or any Subsidiary of the Parent Guarantor for fraud, misrepresentation,
misapplication or misappropriation of cash, waste, environmental claims, damage to properties, non-payment of taxes or other liens
despite the existence of sufficient cash flow, interference with the enforcement of loan documents upon maturity or acceleration,
voluntary or involuntary bankruptcy filings, violation of loan document prohibitions against transfer of properties or ownership
interests therein and liabilities and other circumstances customarily excluded by lenders from exculpation provisions and/or included
in separate indemnification and/or guaranty agreements in non-recourse financings of real estate. For the avoidance of doubt, Debt
for Borrowed Money that refinances Existing Debt shall be permitted as Non-Recourse Debt, so long as such Debt for Borrowed Money
meets all the requirements of Non-Recourse Debt.


 


“Non-Recourse
Guarantee” shall mean a Customary Carve-Out Agreement consisting of a guaranty or indemnity of Non-Recourse Debt.


 






    	 	29	 



     


    

 


“Note”
shall mean a promissory note of the Borrower payable to the order of any Term Loan Lender, in substantially the form of Exhibit
A hereto, evidencing the indebtedness of the Borrower to such Lender under the Term Loan Facility.


 


“Notice
of Borrowing” has the meaning specified in Section 2.02(a).


 


“NPL”
means the National Priorities List under CERCLA.


 


“Obligation”
means, with respect to any Person, any payment, performance or other obligation of such Person of any kind, including, without
limitation, any liability of such Person on any claim, whether or not the right of any creditor to payment in respect of such claim
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of any Loan Party under the Loan Documents include (a) the obligation
to pay principal, interest, charges, expenses, fees, attorneys’ fees and disbursements, indemnities and other amounts payable
by such Loan Party under any Loan Document and (b) the obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may elect to pay or advance on behalf of such Loan Party, provided
that in no event shall the Obligations of the Loan Parties under the Loan Documents include the Excluded Swap Obligations.


 


“OECD”
means the Organization for Economic Cooperation and Development.


 


“OFAC”
has the meaning specified in Section 4.01(x).


 


“Operating
Expenses” means, with respect to any Unencumbered Asset for any applicable measurement period, the actual costs and
expenses of owning, operating, managing, and maintaining such Unencumbered Asset during such period, including, without limitation,
repairs, real estate and chattel taxes and bad debt expenses, but excluding (i) depreciation or amortization or other noncash items,
(ii) the principal of and interest on Debt for Borrowed Money, (iii) income taxes or other taxes in the nature of income taxes,
(iv) distributions to the shareholders, members or partners of the Unencumbered Asset owner and (v) capital expenditures, payments
(without duplication) for FF&E or into FF&E reserves or management fees actually paid or payable during such period, all
as determined in accordance with GAAP.


 


“Operating
Income” means, with respect to any Unencumbered Asset for any applicable measurement period, all income received
from any Person during such period in connection with the ownership or operation of the Property, including, without limitation,
(i) the Gross Hotel Revenues, (ii) all amounts payable pursuant to any reciprocal easement and/or operating agreements, covenants,
conditions and restrictions, condominium documents and similar agreements affecting such Unencumbered Asset (but excluding any
management agreements), and (iii) condemnation awards to the extent that such awards are compensation for lost rent allocable to
such period, all as determined in accordance with GAAP.


 






    	 	30	 



     


    

 


“Operating
Lease” means any operating lease of an Unencumbered Asset between the applicable Loan Party that owns such Unencumbered
Asset (whether in fee simple or subject to a Qualifying Ground Lease) and the applicable TRS Lessee that leases such Unencumbered
Asset, as each may be amended, restated, supplemented or otherwise modified from time to time.


 


“Original
Credit Agreement” has the meaning specified in the Preliminary Statements to this Agreement.


 


“Original
TL Principal Amount” shall mean the original principal amount of the Term Loan (i.e., $225,000,000).


 


“Other
Facilities” means the 2017 Term Loan Facility and the 2018 Revolver/Term Loan Facility, collectively.


 


“Other
Taxes” has the meaning specified in Section 2.12(b).


 


“Parent”
has the meaning specified in the recital of parties to this Agreement.


 


“Parent
Guarantor” has the meaning specified in the recital of parties to this Agreement.


 


“Participant
Register” has the meaning specified in Section 9.07(g).


 


“Patriot
Act” has the meaning specified in Section 9.13.


 


“PBGC”
means the Pension Benefit Guaranty Corporation (or any successor).


 


“Permitted
Encumbrances” has the meaning specified in the Mortgages.


 


“Permitted
Liens” means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies not yet due and payable; (b) Liens
imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and
other similar Liens arising in the ordinary course of business securing obligations that (i) are not overdue for a period of more
than 30 days or are otherwise subject to a Good Faith Contest and (ii) individually or together with all other Permitted Liens
outstanding on any date of determination do not materially adversely affect the use of the property to which they relate; (c) pledges
or deposits to secure obligations under workers’ compensation or unemployment laws or similar legislation or to secure public
or statutory obligations; (d) easements, zoning restrictions, rights of way and other encumbrances on title to real property that
do not render title to the property encumbered thereby unmarketable or materially adversely affect the use or value of such property
for its present purposes; and (e) Tenancy Leases;
(f) Liens under the Collateral Documents; (g) at any time the Mortgages are in effect, Permitted Encumbrances and (h) such other
encumbrances as may be consented to by the Administrative Agent in its sole discretion.


 


“Permitted
Recourse Debt” means Recourse Debt that is either (a) Unsecured Indebtedness that does not result in a Default or
an Event of Default under the financial covenants set forth in Section 5.04(b) provided that the aggregate principal amount of
any such Unsecured Indebtedness, other than the Unsecured Indebtedness under the Existing Credit Agreement, that has a scheduled
maturity date or commitment termination date prior to the one year anniversary of the latest Termination Date under the Credit
Agreement (taking into account any extensions thereof) shall in no event exceed $125,000,000, or (b) Indebtedness (i) secured by
(x) a Lien on the Equity Interests of a Property-Level Subsidiary that directly or indirectly does not hold any fee or leasehold
interest in any Unencumbered Asset, or (y) a mortgage Lien granted by such Property-Level Subsidiary, as mortgagor, pursuant to
the terms of the loan documents evidencing such Recourse Debt, (ii) in an aggregate principal amount not to exceed 10% of Total
Asset Value at any time outstanding, and (iii) that does not result in Default or Event of Default under the financial covenants
set forth in Sections 5.04(a)(v) and 5.04(a)(vi).


 






    	 	31	 



     


    

 


“Permitted
Uses” has the meaning specified in the Third Amendment.


 


“Person”
means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.


 


“Plan”
means a Single Employer Plan or a Multiple Employer Plan.


 


“Pledge
Agreement” has the meaning specified in the Third Amendment. 


 


“Pledged
Account” has the meaning specified in the Third Amendment. 


 


“Pledged
Equity” has the meaning specified in the Pledge Agreement.


 


“Pledgor”
has the meaning specified in the Pledge Agreement.


 


“Post Petition
Interest” has the meaning specified in Section 7.07(b).


 


“Potential
Unencumbered Asset” means a Hotel Asset that is (i) owned by a Subsidiary Guarantor on the date hereof and (ii) that
meets all of the Unencumbered Asset Pool Conditions other than clause (f) of the definition of Unencumbered Asset Pool Conditions.


 


“Preferred
Interests” means, with respect to any Person, Equity Interests issued by such Person that are entitled to a preference
or priority over any other Equity Interests issued by such Person upon any distribution of such Person’s property and assets,
whether by dividend or upon liquidation.


 


“Prepayment
Consideration” has the meaning specified in Section 2.06(a).


 


“Pro Forma
EBITDA” means, for any Asset, an amount equal to 90% of such Asset’s forecasted EBITDA for the first four full
fiscal quarters of such Asset’s operation (following the fiscal quarter during which such Asset opens, in the case of a newly
built Asset, or re-opens, in the case of a repositioned Asset), as determined by the Parent Guarantor and calculated in a manner
consistent with the definition of Consolidated EBITDA and as reasonably approved by the Administrative Agent; provided, however,
that (a) Pro Forma EBITDA for the fourth full fiscal quarter of such Asset’s operation shall be adjusted to be (x)
the amount of Pro Forma EBITDA for such fourth full fiscal quarter multiplied by (y) a fraction the numerator of which is
the number of days in the fiscal quarter during which such Asset opens or re-opens, as applicable, from and including the first
day of such fiscal quarter to but excluding the opening or re-opening date of such Asset, as applicable, and the denominator of
which is the total number of days in such fiscal quarter during which such Asset opens or re-opens, and (b) Pro Forma EBITDA
shall be adjusted on the last day of each fiscal quarter, beginning with the last day of the first full fiscal quarter of such
Asset’s operation to remove the forecasted EBITDA attributable to such fiscal quarter; and on the last day of the fourth
full fiscal quarter of such Asset’s operation, Pro Forma EBITDA for such Asset shall be equal to zero. For the avoidance
of doubt, until such Asset has four full fiscal quarters of actual Consolidated EBITDA, it is intended that Consolidated EBITDA
include (1) the actual Consolidated EBITDA attributable to such Asset for the period commencing on the opening date or re-opening
date, as applicable, for such Asset and ending on the last date of the fiscal quarter during which such Asset opened or re-opened
and (2) a correspondingly adjusted amount of Pro Forma EBITDA for the fourth full fiscal quarter of such Asset’s operation.


 






    	 	32	 



     


    

 


“Property-Level
Subsidiary” means any Subsidiary of the Borrower or any Joint Venture that holds a direct fee or leasehold interest
in any single building (or group of related buildings, including, without limitation, buildings pooled for purposes of a Non-Recourse
Debt financing) or parcel (or group of related parcels, including, without limitation, parcels pooled for purposes of a Non-Recourse
Debt financing) of real property and related assets and not in any other building or parcel of real property.


 


“Proposed
Unencumbered Asset” has the meaning specified in Section 5.01(k).


 


“Proposed
Increased Commitment” has the meaning specified in Section 2.17(b).


 


“Pro Rata
Share” of any amount means, with respect to any Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender’s Term Loan Commitment at such time (or, if the Term Loan Commitments shall
have expired, been fully funded or been terminated, such Lender’s Facility Exposure at such time with respect to the Term
Loan Facility) and the denominator of which is the aggregate amount of the Lenders’ Term Loan Commitments at such time (or,
if the Term Loan Commitments shall have expired, been fully funded or been terminated, the aggregate Facility Exposure at such
time with respect to the Term Loan Facility).


 


“QFC”
has the meaning specified in Section 9.18(b).


 


“QFC
Credit Support” has the meaning specified in Section 9.18(a).


 


“Qualified
ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000
at the time such Swap Obligation is incurred or such other Person as constitutes an ECP under the Commodity Exchange Act or any
regulations promulgated thereunder.


 


“Qualified
Government Debt” has the meaning specified in the Third Amendment.


 


“Qualifying
Ground Lease” means a ground lease of Real Property that is in full force and effect and not subject to any default
and that the Administrative Agent determines, in its reasonable discretion, to be a financeable ground lease and that contains
the following terms and conditions: (a) a remaining term (exclusive of any unexercised extension options that are subject to terms
or conditions not yet agreed upon and specified in such ground lease or an amendment thereto, other than a condition that the lessee
not be in default under such ground lease) of 30 years or more from the date the related Hotel Asset becomes an Unencumbered Asset;
(b) the right of the lessee to mortgage and encumber its interest in the leased property without the consent of the lessor, provided
however, if the lessor’s consent is received, then this condition shall be deemed satisfied; (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 the ability to sublease;
and (e) such other rights customarily required by mortgagees making a loan secured by the interest of the holder of a leasehold
estate demised pursuant to a ground lease.


 






    	 	33	 



     


    

 


“Real Property”
means all right, title and interest of the Borrower and each of its Subsidiaries in and to any land and any improvements located
thereon, together with all equipment, furniture, materials, supplies, personal property and all other rights and property within
the scope of the definition of Mortgaged Property (as defined in the Form of Mortgage attached hereto as Exhibit I)
in which such Person has an interest now or hereafter located on or used in connection with such land and improvements, and all
appurtenances, additions, improvements, renewals, substitutions and replacements thereof now or hereafter acquired by such Person.


 


“Recourse
Debt” means Indebtedness for which the Parent Guarantor or any of its Subsidiaries has personal or recourse liability
in whole or in part, exclusive of Non-Recourse Debt and any Indebtedness for which such personal or recourse liability is limited
to obligations under Customary Carve-Out Agreements, and provided that no claim shall have been made under such Customary
Carve-Out Agreements.


 


“Reference
Bank” means KeyBank.


 


“Refinancing
Debt” means, with respect to any Indebtedness, any Indebtedness extending the maturity of, or refunding or refinancing,
in whole or in part, such Indebtedness, provided that (a) the terms of any Refinancing Debt, and of any agreement entered
into and of any instrument issued in connection therewith, (i) do not provide for any Lien on any Unencumbered Assets, and (ii)
are not otherwise prohibited by the Loan Documents, (b) the principal amount of such Indebtedness shall not exceed the principal
amount of the Indebtedness being extended, refunded or refinanced plus the amount of any applicable premium and expenses, and (c)
the other material terms, taken as a whole, of any such Indebtedness are no less favorable in any material respect to the Loan
Parties or the Lender Parties than the terms governing the Indebtedness being extended, refunded or refinanced.


 


“Register”
has the meaning specified in Section 9.07(d).


 


“Regulation
U” means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time.


 


“REIT”
means a Person that is qualified to be treated for U.S. federal income tax purposes as a real estate investment trust under Sections
856-860 of the Internal Revenue Code.


 


“Replacement
Lender” has the meaning specified in Section 9.01(b).


 






    	 	34	 



     


    

 


“Required
Lenders” means, at any time, Lenders owed or holding greater than 50% of the aggregate principal amount of the Advances
outstanding at such time; provided that should there be three (3) or fewer Lenders, Required Lenders shall mean all Lenders that
are Non-Defaulting Lenders. For purposes of this definition, any of the foregoing amounts owed to or held by any Defaulting Lender
shall be disregarded in determining Required Lenders at any time.


 


“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution
Authority.


 


“Responsible
Officer” means, with respect to any Loan Party, any officer of, or any officer of any general partner or managing
member of, such Loan Party, which Officer has (a) responsibility for performing the underlying function that is the subject of
the action required of such officer hereunder, or (b) supervisory responsibility for such an officer.


 


“Restricted
Payments” has the meaning specified in Section 5.02(g).


 


“Revolving
Credit Advances” has the meaning specified in the Third Amendment.


 


“Revolving
Credit Commitment” has the meaning specified in the Third Amendment.


 


“Revolving
Lenders” has the meaning specified in the Third Amendment.


 


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


 


“Sale
and Leaseback Transaction” shall mean any arrangement with any Person providing for the leasing by the Parent Guarantor
or any of its Subsidiaries of any Real Property that has been sold or transferred or is to be sold or transferred by the Parent
Guarantor or such Subsidiary, as the case may be, to such Person.


 


“Sanctions”
means any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the
U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant
sanctions authority.


 


“Sanctions
Laws” has the meaning set forth in Section 4.01(x).


 


“Sale
and Leaseback Transaction” shall mean any arrangement with any Person providing for the leasing by the Parent Guarantor
or any of its Subsidiaries of any Real Property that has been sold or transferred or is to be sold or transferred by the Parent
Guarantor or such Subsidiary, as the case may be, to such Person.


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002, as amended.


 


“Seasoned
Date” means, with respect to each Hotel Asset acquired by the Parent Guarantor or any Subsidiary or any Joint Venture
(as the case may be), the date which is four full fiscal quarters after the acquisition date thereof.


 






    	 	35	 



     


    

 


“Seasoned
Property” means each Hotel Asset acquired by the Parent Guarantor or any Subsidiary or any Joint Venture (as the
case may be) which has been owned for a period of more than four full fiscal quarters after the acquisition thereof.


 


“Second
Amendment” shall mean that certain Second Amendment to First Amended and Restated Credit Agreement (Seven Year Term
Loan) dated February 18, 2020 among Borrower, Administrative Agent and Lenders and consented to by the Guarantors.


 


“Second
Amendment Effective Date” shall have the meaning set forth in the Second Amendment.


 


“Secured
Indebtedness” means, with respect to Parent Guarantor and its Subsidiaries as of a given date, the portion of Total
Indebtedness (excluding the Total Indebtedness relating to the Facility,
the Other Facilities and the Summit JV MR 1 Facility) that is secured in any manner by any Lien on any property or any
Equity Interests in any direct or indirect Subsidiary of the Parent Guarantor or any Joint Venture.


 


“Secured
Obligations” means, collectively, the “Secured Obligations” as defined in each of the Security Agreement
and the Pledge Agreement and the “Obligations” as defined in the Mortgages, in each case exclusive of all Excluded
Swap Obligations.


 


“Secured
Parties” means, collectively, the Administrative Agent for the ratable benefit of the Lender Parties and the Hedge
Banks, the 2017 TLA Secured Parties and the 2018 Revolver/Term Secured Parties.


 


“Secured
Recourse Indebtedness” means the portion of Secured Indebtedness that is not Non-Recourse Debt.


 


“Securities
Act” means the Securities Act of 1933, as amended to the date hereof and from time to time hereafter, and any successor
statute.


 


“Securities
Exchange Act” means the Securities Exchange Act of 1934, as amended to the date hereof and from time to time hereafter,
and any successor statute.


 


“Security
Agreement” has the meaning set forth in item (g) of the definition of Collateral Deliverables. 


 


“Single
Employer Plan” means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA Affiliate could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.


 


“Smith
Travel Research” means Smith Travel Research or a substitute lodging industry research company proposed by the Borrower
and approved by the Administrative Agent.


 






    	 	36	 



     


    

 


“Solvent”
means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person, on
a going-concern basis, is greater than the total amount of liabilities, including, without limitation, contingent liabilities,
of such Person, (b) the present fair salable value of the assets of such Person, on a going-concern basis, is not less than the
amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability
to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.
The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time (including, without limitation, after taking into account appropriate discount factors for the present value
of future contingent liabilities), represents the amount that can reasonably be expected to become an actual or matured liability.


 


“Specified
Acquisition” means an acquisition of a portfolio of Hotel Assets (whether by purchasing such properties directly
or by acquiring an entity or entities that owns such properties) with a minimum gross purchase price of $150,000,000.


 


“Specified
Operating Lessees” means those certain Subsidiaries of TRS Holdco which, without a capital contribution, would not
be Solvent; provided, however, the Borrower shall provide notice to the Administrative Agent identifying the name of such
Specified Operating Lessee.


 


“Subordinated
Obligations” has the meaning specified in Section 7.07.


 


“Subsidiary”
of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which)
50% or more of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors
of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in such trust or estate, in each case, is at the time
directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person’s other Subsidiaries.


 


“Subsidiary
Guarantor” has the meaning specified in the recital of parties to this Agreement.


 


“Summit
JV MR 1 Facility” means facility provided pursuant to the Credit Agreement dated as of October 8, 2019 between Summit
JV MR 1, LLC, as borrower, Summit Hospitality JV, LP, as parent, the guarantors party thereto, Bank of America, N.A., as administrative
agent, and the lenders party thereto, as amended by that First Amendment to Credit Agreement dated as of December 9, 2019.


 


“Supported
QFC” has the meaning specified in Section 9.18(a).


 


“Swap Obligation”
means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.


 






    	 	37	 



     


    

 



 


“Taxes”
has the meaning specified in Section 2.12(a).


 


“Tenancy
Leases” means operating leases, subleases, licenses, occupancy agreements and rights-of-use entered into by the Borrower
or any of its Subsidiaries in its capacity as a lessor or a similar capacity in the ordinary course of business that do not materially
and adversely affect the use of the Real Property encumbered thereby for its intended purpose (excluding any lease entered into
in connection with a Sale and Leaseback Transaction).


 


“Term Loan”
shall mean the term loan to the Borrower from the Term Loan Lenders in an amount up to the Original TL Principal Amount, as the
same may be increased as provided in Section 2.17.


 


“Term Loan
Advance” has the meaning specified in Section 2.01(a).


 


“Term Loan
Commitment” means, (a) with respect to any Lender at any time, the amount set forth opposite such Lender’s
name on Schedule I hereto under the caption “Term Loan Commitment” to make the initial advance to Borrower on the Closing
Date (after giving effect to advances outstanding under the Original Credit Agreement) and, subject to the terms hereof, the Delayed
Draw to Borrower, or (b) if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 9.07(d) as such Lender’s “Term Loan Credit Commitment”,
or as such amount may be increased pursuant to Section 2.17, and as such amount may be reduced at or prior to such time pursuant
to Section 2.05. The aggregate Term Loan Commitments of the Lenders on the Closing Date shall be $225,000,000.


 


“Term Loan
Commitment Period” has the meaning specified in Section 2.01(a).


 


“Term Loan
Facility” shall mean, at any time, the aggregate amount of the Term Loan Commitments at such time.


 


“Term Loan
Lender” means a Lender having a Term Loan Commitment, whether funded or unfunded.


 


“Termination
Date” means the earlier of (i) February 14, 2025, and (ii) the date of termination in whole of the Term Loan Commitments
pursuant to Section 6.01.


 


“Test Date”
means (a) the last day of each fiscal quarter of the Parent Guarantor for which financial statements are required to be delivered
pursuant to Sections 5.03(b) or (c), as the case may be, (b) the date of each Advance, (c) the date of the addition of any Proposed
Unencumbered Asset to the Unencumbered Asset Pool pursuant to Section 5.01(k), (d) the effective date of any merger permitted under
Section 5.02(d), and (e) the effective date of any Transfer permitted under Section 5.02(e)(ii)(C).


 


“Third
Amendment” means that certain Third Amendment to First Amended and Restated Credit Agreement among the Borrower,
the Parent Guarantor, the Subsidiary Guarantors, the Administrative Agent and certain Lenders dated as of the Third Amendment Date.


 


“Third
Amendment Date” means May 7, 2020. 


 






    	 	38	 



     


    

 


“Total
Asset Value” means, without duplication, the sum of (a) the following amounts with respect to the following assets
owned by the Parent Guarantor or any of its Subsidiaries: (i) for each Seasoned Property, (x) (1) the Adjusted NOI for such Seasoned
Property for the four quarters most recently ended prior to such date of determination divided by (2) the applicable Capitalization
Rate, and (y) for each New Property, the acquisition cost of such New Property (until the Seasoned Date, or earlier at the Borrower’s
election); (ii) the amount of all Unrestricted Cash and Cash Equivalents held by the Borrower and all Guarantors; and (iii) the
undepreciated book value of all Development Assets and Unimproved Land; plus (b) (i) the applicable JV Pro Rata Share of
any Joint Venture of the Parent Guarantor of any asset described in clause (a) above and (ii) the gross book value of any Investments
consisting of loans, advances and extensions of credit to any Person permitted under Section 5.02(f)(iv)(C); provided, however,
that the following asset concentration restrictions shall apply to the calculation of Total Asset Value: (A) the maximum value
allocable to Joint Venture Assets shall not exceed 15% of Total Asset Value; (B) the maximum value allocable to Development Assets
shall not exceed 15% of Total Asset Value based on the total budgeted costs attributable to such Development Assets; (C) the maximum
value allocable to Unimproved Land shall not exceed 5% of Total Asset Value; (D) the maximum value allocable to Investments consisting
of loans, advances and extensions of credit to any Person permitted under Section 5.02(f)(iv)(C) shall not exceed 15% of Total
Asset Value; (E) the maximum value allocable to improved Real Property that does not constitute Hotel Assets shall not exceed 5%
of Total Asset Value; and (F) the maximum value allocable to items (A) to (E) above shall not exceed 30% of Total Asset Value (provided
further that in each case, to the extent such limitation is exceeded, the value of such assets shall be removed from the calculation
of the Total Asset Value to the extent of such excess).


 


“Total
Unencumbered Asset Value” means, at any date of determination, the sum of the Unencumbered Asset Values of all Unencumbered
Assets; provided, however, that no less than twenty (20) Hotel Assets must, at all times, qualify as Unencumbered Assets
or the Total Unencumbered Asset Value shall be deemed to be zero ($0.00).


 


“Total
Indebtedness” means, at any date of determination, all Consolidated Indebtedness of the Parent Guarantor and its
Subsidiaries as at the end of the most recently ended fiscal quarter of the Parent Guarantor for which financial statements are
required to be delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be, plus the JV Pro Rata
Share of Indebtedness of any Joint Venture, less the amount by
which the aggregate Unrestricted Cash and Cash Equivalents of the Parent Guarantor, the Borrower and their Subsidiaries at such
time exceeds $25,000,000.


 


“Total
Unencumbered Asset Value” means, at any date of determination, the sum of the Unencumbered Asset Values of all Unencumbered
Assets; provided, however, that no less than twenty (20) Hotel Assets must, at all times, qualify as Unencumbered Assets
or the Total Unencumbered Asset Value shall be deemed to be zero ($0.00).


 


“Trading
with the Enemy Act” means the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), and any other enabling legislation or executive
order relating thereto.


 






    	 	39	 



     


    

 


“Transfer”
has the meaning specified in Section 5.02(e)(i).


 


“TRS Holdco”
means Summit Hotel TRS, Inc.


 


“TRS Lessee”
means a lessee of an Unencumbered Asset pursuant to an Operating Lease.


 


“Type”
refers to the distinction between Advances bearing interest at the Base Rate and Advances bearing interest at the Eurodollar Rate.


 


“UK
Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended
form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of
the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain
credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.


 


“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility
for the resolution of any UK Financial Institution.


 


“Unencumbered
Adjusted NOI” means aggregate Adjusted NOI for all Unencumbered Assets.


 


“Unencumbered
Asset Designation Package” means, with respect to any Proposed Unencumbered Asset, the following items, each in form
and substance satisfactory to the Administrative Agent and in sufficient copies for each Lender: (a) a description of such Asset
in detail satisfactory to the Administrative Agent, (b) a projected cash flow analysis of such Asset, (c) a statement of operating
expenses for such Asset for the immediately preceding 36 consecutive calendar months, or such shorter period that the Asset has
been open for business, (d) an operating expense and capital expenditures budget for such Asset for the next succeeding 12 consecutive
months, (e) the information with respect to such Proposed Unencumbered Asset required pursuant to Section 3.01(a)(iii), and (f)
such other items relating to such Asset as Administrative Agent may reasonably request.


 


“Unencumbered
Assets” means (a) the Hotel Assets listed on Schedule II hereto on the Closing Date, (b) together with those Hotel
Assets which are designated by the Borrower and for which the applicable conditions (as may be determined by the Administrative
Agent in its sole discretion) in Section 3.01 and, if applicable, Section 5.01(k) have been satisfied and as the Administrative
Agent, in its sole discretion, shall have elected to treat as Unencumbered Assets for purposes of this Agreement, (c) but excluding,
in each case, any such Unencumbered Assets removed pursuant to Section 5.02(e)(ii)(C).


 


“Unencumbered
Asset Pool” means all of the Unencumbered Assets.


 






    	 	40	 



     


    

 


“Unencumbered
Asset Pool Conditions” means, with respect to any Unencumbered Asset or Proposed Unencumbered Asset, that such Asset
(a) is a Hotel Asset located in the United States of America; (b) is a limited service, select service or full service hotel that
is rated “upscale”, “upper midscale”, “midscale” or better by Smith Travel Research; (c) is
wholly owned, directly or indirectly, by the Borrower or a Subsidiary of the Borrower either in fee simple absolute or subject
to a Qualifying Ground Lease and is leased to the applicable TRS Lessee (which is wholly-owned by TRS Holdco) pursuant to an Operating
Lease; (d) is fully operating, open to the public, and not under significant development, redevelopment or Material Renovation;
(e) is free of all material structural defects or architectural deficiencies, title defects, environmental or other material matters
(including a casualty event or condemnation) that could reasonably be expected to have a material adverse effect on the value,
use or ability to sell or refinance such Asset; (f) is operated by an Approved Manager or any other property manager approved by
the Administrative Agent pursuant to a Management Agreement; (g) other than with respect to Unencumbered Assets for which aggregate
Unencumbered Asset Value accounts for no more than 25% of Total Unencumbered Asset Value, is operated under a nationally recognized
brand subject to a Franchise Agreement with an Approved Franchisor or any other franchisor approved by the Required Lenders; (h)
is not subject to mezzanine Indebtedness financing; (i) is not, and no interest of the Borrower or any of its Subsidiaries therein
is, subject to any Lien (other than Permitted Liens) or any Negative Pledge; and (j) is 100% owned by the Borrower or a Subsidiary
Guarantor that satisfies the requirements of Section 5.02(p) and (1) none of the Borrower’s or the Parent Guarantor’s
direct or indirect Equity Interests in such Subsidiary is subject to any Lien (other than Permitted Liens) or any Negative Pledge
and (2)(x) on or prior to the date such Asset is added to the Unencumbered Asset Pool, such Subsidiary shall have become a Guarantor
hereunder, and (y) 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: (i) to create Liens on such Asset and on the Equity Interests in such Subsidiary
as security for Indebtedness of the Borrower or such Subsidiary, as applicable, and (ii) to sell, transfer or otherwise dispose
of such Asset (provided that any restrictions of the type described in the proviso in the definition of “Negative Pledge”
shall not be deemed to cause a failure to satisfy the conditions set forth in (y)(i) and (ii) above); and (k) is assessed for real
estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting
a part of such lot or lots, and no other land or improvements is assessed and taxed together with such Hotel Asset or any portion
thereof; provided, however, that if two Hotel Assets are located on a single tax lot, the Borrower may elect to treat such Hotel
Assets for all purposes of this Agreement as one Hotel Asset, in which case, such Hotel Asset shall be deemed to comply with this
clause (k) and such two components of such Hotel Asset shall be included in and removed from the Unencumbered Assets simultaneously
and both must meet all Unencumbered Asset Pool Conditions for either component to qualify as an Unencumbered Asset.


 


“Unencumbered
Asset Value” means, with respect to any Unencumbered Asset, at any date of determination,


 


(a)       for
each Seasoned Property, (i) the Applicable Ownership Percentage of the Adjusted NOI for such Seasoned Property for the four quarters
most recently ended prior to such date of determination divided by (ii) the applicable Capitalization Rate, and


 


(b)       for
each New Property, the Applicable Ownership Percentage of the acquisition cost of such New Property (until the Seasoned Date, or
earlier at the Borrower’s election).


 


“Unimproved
Land” means land on which no development (other than improvements that are not material and are temporary in nature)
has occurred.


 






    	 	41	 



     


    

 


“Unrestricted
Cash and Cash Equivalents” means, with respect to any Person, cash and Cash Equivalents of such Person that are free
and clear of all Liens and not subject to any restrictions on the use thereof to pay Indebtedness and other obligations of such
Person.


 


“Unsecured
Indebtedness” means, with respect to a Person, Indebtedness of such Person that is not Secured Indebtedness.


 


“Unsecured
Leverage Ratio” means, at any date of determination, the ratio of Consolidated Unsecured Indebtedness of the Parent
Guarantor to Unencumbered Asset Value.


 


“Unsecured
Leverage Ratio Increase Election” means an election by notice from the Borrower to the Administrative Agent to increase
the maximum Unsecured Leverage Ratio in accordance with the proviso in Section 5.04(b)(i), which election may only be made contemporaneously
with the closing of a Specified Acquisition and shall otherwise be subject to the limitations set forth in such proviso.


 


“U.S.
Special Resolution Regimes” has the meaning specified in Section 9.18.


 


“Voting
Interests” means shares of capital stock issued by a corporation, or equivalent Equity Interests in any other Person,
the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or the election
or appointment of persons performing similar functions) of such Person, even if the right so to vote has been suspended by the
happening of such a contingency.


 


“Voya
Note” means that certain promissory note given by Summit Hospitality I, LLC to Voya Retirement Insurance and Annuity
Company in the amount of $25,726,432.87 in connection with the Amended and Restated Loan Agreement by and among Summit Hospitality
22, LLC, Summit Hospitality I, LLC, Summit Hospitality 116, LLC and Summit Hotel OP, LP as borrowers and Voya Retirement Insurance
and Annuity Company as lender, dated as of September, 24, 2015.


 


“Welfare
Plan” means a welfare plan, as defined in Section 3(1) of ERISA, that is maintained for employees of any Loan Party
or in respect of which any Loan Party could have liability under applicable law.


 


“Withdrawal
Liability” has the meaning specified in Part I of Subtitle E of Title IV of ERISA.


 


“Write-Down
and Conversion Powers” means, (a) with respect
to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under
the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule and (b) with respect to the United Kingdom, any
powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability
of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument
is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of
the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.


 






    	 	42	 



     


    

 


SECTION 1.02                    Computation
of Time Periods; Other Definitional Provisions. In this Agreement and the other Loan Documents in the computation of periods
of time from a specified date to a later specified date, the word “from” means “from and including”
and the words “to” and “until” each mean “to but excluding”. References in the
Loan Documents to any agreement or contract “as amended” shall mean and be a reference to such agreement or
contract as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms.


 


SECTION 1.03                    Accounting
Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(g) (“GAAP”).


 


ARTICLE
II

AMOUNTS AND TERMS OF THE ADVANCES


 


SECTION 2.01                     The
Advances.


 


(a)            Subject
to the terms and conditions set forth in this Agreement, each Term Loan Lender severally agrees, on the terms and conditions hereinafter
set forth, to make advances (each, a “Term Loan Advance”) to the Borrower from time to time up to a
maximum of one (1) advance on the Closing Date (after giving effect to any advances outstanding under the Original Credit Agreement)
and three (3) times thereafter during the period beginning on the day after the Closing Date and ending on May 16, 2018 (the “Term
Loan Commitment Period”), upon notice by the Borrower to the Administrative Agent given in accordance with Section 2.02(a),
such sums as are requested by the Borrower for the purposes set forth in Section 2.14, in an amount (i) following the Closing
Date of an integral multiple of $25,000,000 (or if the remaining unadvanced portion of the Term Loan Commitment is less than $25,000,000,
Borrower shall be permitted to make a single draw in the amount of the remaining unadvanced portion of the Commitment in order
to fully fund the Facility), and (ii) up to a maximum aggregate principal amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Lender’s Term Loan Commitment; provided, however, that all Term Loan Borrowings
shall be subject to the satisfaction of the conditions precedent set forth in Section 3.02. The Term Loan Advance on the Closing
Date shall not be less than $140,000,000.00. Such additional advances made in accordance with this Section 2.01(a) after the Closing
Date is each a “Delayed Draw” and are collectively referred to herein as the “Delayed Draws.” Any amount
of the Term Loan Commitment that is not drawn by Borrower on or before the expiration of the Term Loan Commitment Period will
not be available to be drawn by the Borrower thereafter, and any undrawn portion of the Term Loan Commitment shall terminate,
provided however, that any expiration of the Term Loan Commitment shall not abrogate Borrower’s right to request a Commitment
Increase as set forth in Section 2.17 hereunder.


 


(b)           Each
Borrowing shall consist of Term Loan Advances made simultaneously by the Term Loan Lenders ratably according to their Term Loan
Commitments. The Borrower may prepay Term Loan Advances pursuant to Section 2.06(a). The Borrower shall not have the right to
reborrow any portion of the Term Loan that is repaid or prepaid, provided that such prepayment shall not limit the terms of Section
2.17.


 






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(c)            By
delivery of this Agreement and any Note, there shall not be deemed to have occurred, and there has not otherwise occurred, any
payment, satisfaction or novation of the Indebtedness evidenced by the Original Credit Agreement or the “Notes” described
in the Original Credit Agreement, which Indebtedness under the Original Credit Agreement and such Notes is instead allocated among
the Lenders as of the date hereof ratably in accordance with their respective Term Loan Commitments, and such Indebtedness is
evidenced by this Agreement and any Notes. Lenders shall as of the date hereof make such adjustments to the outstanding Term Loans
of such Lenders so that such outstanding Term Loans are consistent with their ratable share of the Term Loan Commitment.


 


SECTION 2.02                     Making
the Advances. (a)Each Borrowing shall be made on notice, given not later than 12:00 Noon (Cleveland, Ohio time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or
not later than 1:00 P.M. (Cleveland, Ohio time) on the date one Business Day prior to the date of the proposed Borrowing in the
case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telex or telecopier. Each such notice of a Borrowing (a “Notice of Borrowing”)
shall be by telephone, confirmed immediately in writing, or telex or telecopier or e-mail, in each case in substantially the form
of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before 12:00 Noon (Cleveland, Ohio time) on the date of such Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Advances and 1:00 P.M. (Cleveland, Ohio time) on the date of such Borrowing
in the case of a Borrowing consisting of Base Rate Advances, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent’s Account, in same day funds, such Lender’s ratable portion of
such Borrowing in accordance with the respective Commitments of such Lender and the other Lenders. After the Administrative Agent’s
receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower’s Account.


 


(b)            [Intentionally
Omitted.] 


 


(c)            Anything
in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for any Borrowing
if the aggregate amount of such Borrowing is less than $5,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.07(d)(ii), 2.09 or 2.10 and (ii) there may not be more than five (5) separate
Interest Periods in effect hereunder at any time.


 


(d)            Each
Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss, cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such
date.


 






    	 	44	 



     


    

 


(e)            Unless
the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance
with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion
available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender’s Advance as part of such Borrowing for all purposes.


 


(f)             The
failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.


 


SECTION 2.03                     [Intentionally
Omitted.] 


 


SECTION 2.04                    Repayment
of Advances. The Borrower shall repay to the Administrative Agent for the ratable account of the Term Loan Lenders on the
Termination Date in respect of the Term Loan Facility the aggregate outstanding principal amount of the Term Loan Advances then
outstanding.


 


SECTION 2.05                     Termination
or Reduction of the Commitments. The Term Loan Facility shall be permanently reduced from time to time by the amount of each
payment or prepayment of principal made in respect of the Term Loan Facility.


 


SECTION 2.06                     Prepayments.


 


(a)            Optional.
The Borrower may, upon same day notice in the case of Base Rate Advances and two Business Days’ notice in the case of Eurodollar
Rate Advances, in each case to the Administrative Agent stating the proposed date and aggregate principal amount of the prepayment,
and if such notice is given the Borrower shall, prepay the outstanding aggregate principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid and together with a prepayment premium, if applicable, for the benefit of the Lenders in accordance with
their Pro Rata Share in respect of the principal amount of the Advances so prepaid in an amount equal to (i) two percent (2%)
of such principal amount of the Advances prepaid for any prepayment made on or before February 15, 2019, and (ii) one percent
(1%) of such principal amount of the Advances prepaid for any prepayment made after February 15, 2019, and on or before February
15, 2020 (the “Prepayment Consideration”); provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of $2,000,000 or an integral multiple of $250,000 in excess thereof or, if less, the
amount of the Advances outstanding and (ii) if any prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance, the Borrower shall also pay any amounts owing pursuant to Section 9.04(c). No Prepayment
Consideration shall be required pursuant to this paragraph in respect of any prepayment of such Advances made after February 15,
2020. Administrative Agent and the Lenders shall not be obligated to accept any prepayment of the Advances on or prior to February
15, 2020 unless it is accompanied by the applicable Prepayment Consideration. Borrower acknowledges that the Prepayment Consideration
is bargained for consideration and is not a penalty. Borrower recognizes that the Lenders would incur substantial additional costs
and expense in the event of a prepayment of the Advances (including, without limitation, the loss of Lenders’ investment
opportunity during the period from the prepayment date until the Termination Date). Borrower agrees that Lenders shall not, as
a condition to receiving the Prepayment Consideration, be obligated to actually reinvest the amount prepaid in any obligation
or in any other manner whatsoever. If, following the occurrence and during the continuance of any Event of Default, Borrower shall
tender payment of an amount sufficient to pay the Advances in whole or in part on or before February 15, 2020, such tender by
Borrower shall be deemed to be a voluntary prepayment in the amount tendered and in such case Borrower shall also pay to Administrative
Agent, with respect to the amount tendered, the applicable Prepayment Consideration. Administrative Agent shall not be obligated
to accept any such tender unless it is accompanied by all Prepayment Consideration due in connection therewith.


 






    	 	45	 



     


    

 


(b)           Mandatory.


 


(i)          The
Borrower shall, if applicable, on each Business Day, prepay an aggregate principal amount of the Term Loan Advances comprising
part of the same Borrowings in an amount sufficient, and only to the extent necessary to cause (A) the Leverage Ratio not to exceed
the applicable maximum Leverage Ratio set forth in Section 5.04(a)(i) on such Business Day, (B) compliance with the covenants
in Section 5.04(b)(i) and (ii), and (C) the Facility Exposure not to exceed the aggregate Commitments of the Lenders on such Business
Day.


 


(ii)         All
prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal
amount prepaid.


 


(c)            No
Reborrowing. Any amount of Advances prepaid or otherwise repaid under the Loan Documents may not be reborrowed (provided that
such prepayment shall not limit the terms of Section 2.17).


 


SECTION 2.07                     Interest.


 


(a)            Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date
of such Advance until such principal amount shall be paid in full, at the following rates per annum:


 


(i)          Base
Rate Advances. During such periods as such Advance is a Base Rate Advance, a rate per annum equal at all times to the sum
of (A) the Base Rate in effect from time to time plus (B) the Applicable Margin in respect of Base Rate Advances in effect from
time to time, payable in arrears quarterly on the last day of each March, June, September and December during such periods and
on the date such Base Rate Advance shall be Converted or paid in full.


 


(ii)         Eurodollar
Rate Advances. During such periods as such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in respect of Eurodollar Rate Advances in effect on the first day of such Interest Period, payable in arrears
on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar
Rate Advance shall be Converted or paid in full.


 


(b)           Default
Interest. Upon the occurrence and during the continuance of any Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above and on demand, at a rate per annum equal at all times to the lesser of the maximum rate permitted by applicable
law and the Default Rate and (ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount payable
under the Loan Documents that is not paid when due, from the date such amount shall be due until such amount shall be paid in
full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to
the Default Rate.


 


(c)              
Notice of Interest Period and Interest Rate. Promptly after receipt of a Notice of Borrowing pursuant to Section
2.02(a), a notice of Conversion pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant to the definition
of “Interest Period”, the Administrative Agent shall give notice to the Borrower and each Lender of the applicable
Interest Period and the applicable interest rate determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above, and the applicable rate, if any, furnished by each Reference Bank for the purpose of determining the applicable interest
rate under clause (a)(ii) above.


 


(d)              
Interest Rate Determination. Subject to Section 2.18 below, if the Eurodollar Rate is unavailable and the Administrative
Agent is unable to determine the Eurodollar Rate for any Eurodollar Rate Advances, as provided in the definition of Eurodollar
Rate,


 


(A)        the
Administrative Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,


 


(B)         each
such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and


 






    	 	46	 



     


    

 


(C)        the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the Administrative
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.


 


(ii)           [Intentionally
Omitted.]


 


SECTION 2.08                    Fees.
The Borrower shall pay to the Administrative Agent and the Joint Lead Arrangers for their own account the fees, in the amounts
and on the dates, set forth in the Fee Letter and such other fees as may from time to time be agreed between the Borrower and
the Administrative Agent or a Joint Lead Arranger.


 


SECTION 2.09                     Conversion
of Advances.


 


(a)            Optional.
The Borrower may on any Business Day, upon notice given to the Administrative Agent not later than 12:00 Noon (Cleveland, Ohio
time) on the third Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.07 and
2.10, Convert all or any portion of the Advances of one Type comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be
in an amount not less than the minimum amount specified in Section 2.02(c), no Conversion of any Advances shall result in more
separate Borrowings than permitted under Section 2.02(c), each Conversion of Advances comprising part of the same Borrowing shall
be made ratably among the Lenders in accordance with their Commitments, and with respect to any proposed Term Loan Borrowing consisting
a Conversion of Base Rate Advances to Eurodollar Rate Advances, such Conversion must occur only on the first day of an Interest
Period. Each such notice of Conversion shall, within the restrictions specified above, specify (i) the date of such Conversion,
(ii) the Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be irrevocable and binding on the Borrower.


 


(b)           Mandatory.


 


(i)          On
the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically Convert into Base Rate Advances.


 


(ii)         If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance
with the provisions contained in the definition of “Interest Period” in Section 1.01, the Administrative Agent will
forthwith so notify the Borrower and the Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.


 


(iii)        Upon
the occurrence and during the continuance of any Event of Default, (y) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (z) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended.


 






    	 	47	 



     


    

 


SECTION 2.10                     Increased
Costs, Etc.


 


(a)            If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other Governmental Authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender Party of agreeing to make or of making, funding or maintaining Eurodollar
Rate Advances (excluding, for purposes of this Section 2.10, any such increased costs resulting from (y), Taxes described in clauses
(ii) and (iii) of the definition of Excluded Taxes, Indemnified Taxes or Other Taxes (as to which Section 2.12 shall govern) and
(z) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction
or state under the laws of which such Lender Party is organized, has its Applicable Lending Office or otherwise has current or
former connections (other than such connections arising from such Lender Party’s having executed, delivered, became a party
to, performed its obligations under, received or perfected a security interest under, engaged in any other transactions pursuant
to, or enforced any Loan Documents, or sold or assigned any interest in any Obligations or Loan Document) or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender Party additional amounts sufficient to compensate such Lender
Party for such increased cost; provided, however, that a Lender Party claiming additional amounts under this Section 2.10(a)
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the need for, or reduce the amount of, such increased
cost that may thereafter accrue and would not, in the reasonable judgment of such Lender Party, be otherwise disadvantageous to
such Lender Party. A certificate as to the amount of such increased cost, submitted to the Borrower by such Lender Party, shall
be conclusive and binding for all purposes, absent manifest error. Notwithstanding anything to the contrary contained in this Agreement,
the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended, and all requests, rules, guidelines or directives thereunder
or issued in connection therewith, regardless of the date enacted, adopted or issued shall be deemed an introduction or change
of the type referred to in subclause (i) of this Section 2.10(a).


 


(b)           If
any Lender Party determines that compliance with any law or regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects or would affect the amount of capital or liquidity required
or expected to be maintained by such Lender Party or any corporation controlling such Lender Party and that the amount of such
capital or such liquidity requirement is increased by or based upon the existence of such Lender Party’s commitment to lend
hereunder and other commitments of such type (or similar contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the Borrower shall pay to the Administrative Agent for the
account of such Lender Party, from time to time as specified by such Lender Party, additional amounts sufficient to compensate
such Lender Party in the light of such circumstances, to the extent that such Lender Party reasonably determines such increase
in capital or increase in liquidity to be allocable to the existence of such Lender Party’s commitment to lend hereunder.
A certificate as to such amounts submitted to the Borrower by such Lender Party shall be conclusive and binding for all purposes,
absent manifest error.


 






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Notwithstanding anything
to the contrary contained in this Agreement, the Dodd-Frank Wall Street Reform and Consumer Protection Act, as amended, and all
requests, rules, guidelines or directives thereunder or issued in connection therewith, regardless of the date enacted, adopted
or issued, and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements or the Basel
Committee on Banking Supervision (or any successor or similar authority) shall be deemed an introduction or change of the type
referred to in Section 2.10(a) and this Section 2.10(b).


 


(c)            If,
with respect to any Eurodollar Rate Advances, the Required Lenders notify the Administrative Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Rate Advances for such Interest Period, the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (i) each such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the Borrower that such Lenders have determined that the
circumstances causing such suspension no longer exist.


 


(d)           Notwithstanding
any other provision of this Agreement, if the introduction of or any change in or in the interpretation of any law or regulation
shall make it unlawful, or any central bank or other Governmental Authority shall assert that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand therefor by such Lender to the Borrower through
the Administrative Agent, (i) each Eurodollar Rate Advance will automatically, upon such demand, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lender has determined that the circumstances causing such suspension
no longer exist; provided, however, that, before making any such demand, such Lender agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar Lending Office to continue to perform its obligations to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances and would not, in the judgment of such Lender,
be otherwise disadvantageous to such Lender.


 


SECTION 2.11                     Payments
and Computations.


 


(a)            The
Borrower shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim or set-off (except as
otherwise provided in Section 2.13), not later than 12:00 Noon (Cleveland, Ohio time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent’s Account in same day funds, with payments being received by the Administrative
Agent after such time being deemed to have been received on the next succeeding Business Day. The Administrative Agent shall promptly
thereafter cause like funds to be distributed (i) if such payment by the Borrower is in respect of principal, interest, commitment
fees, Prepayment Consideration or any other Obligation then payable hereunder and under the Notes to more than one Lender Party,
to such Lender Parties for the account of their respective Applicable Lending Offices ratably in accordance with the amounts of
such respective Obligations then payable to such Lender Parties and (ii) if such payment by the Borrower is in respect of any
Obligation then payable hereunder to one Lender Party, to such Lender Party for the account of its Applicable Lending Office,
in each case to be applied in accordance with the terms of this Agreement. Upon any Acceding Lender becoming a Lender hereunder
as a result of a Commitment Increase pursuant to Section 2.17 and upon the Administrative Agent’s receipt of such Lender’s
Accession Agreement and recording of information contained therein in the Register, from and after the applicable Increase Date,
the Administrative Agent shall make all payments hereunder and under any Notes issued in connection therewith in respect of the
interest assumed thereby to such Acceding Lender. Upon its acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after the effective date of such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to
the Lender Party assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between themselves.


 






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(b)            The
Borrower hereby authorizes each Lender Party and each of its Affiliates, if and to the extent payment owed to such Lender Party
is not made when due hereunder or, in the case of a Lender, under the Note held by such Lender, to charge from time to time, to
the fullest extent permitted by law, against any or all of the Borrower’s accounts with such Lender Party any amount so
due.


 


(c)            All
computations of interest based on part (a) of the definition of Base Rate shall be made by the Administrative Agent on the basis
of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest rate, fee or commission hereunder shall be conclusive
and binding for all purposes, absent manifest error.


 


(d)            Whenever
any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of
interest or commitment fee, as the case may be; provided, however, that if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.


 


(e)            Unless
the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the Administrative Agent may assume that the Borrower has
made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption,
cause to be distributed to each such Lender Party on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender Party
shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender Party together with interest
thereon, for each day from the date such amount is distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.


 






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(f)             Whenever
any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay
in full all amounts due and payable to the Administrative Agent and the Lender Parties under or in respect of this Agreement and
the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative
Agent and the Lender Parties in the following order of priority:


 


(i)          first,
to the payment of all of the fees, indemnification payments, costs and expenses that are due and payable to the Administrative
Agent (solely in its capacity as Administrative Agent) under or in respect of this Agreement and the other Loan Documents on such
date, ratably based upon the respective aggregate amounts of all such fees, indemnification payments, costs and expenses owing
to the Administrative Agent on such date;


 


(ii)         second,
to the payment of all of the indemnification payments, costs and expenses that are due and payable to the Lenders under Section
9.04, Section 20 of the Security Agreement, Section 17 of the Pledge
Agreement and any similar section of any of the other Loan Documents on such date, ratably based upon the respective
aggregate amounts of all such indemnification payments, costs and expenses owing to the Lenders on such date;


 


(iii)        third,
to the payment of all of the amounts that are due and payable to the Administrative Agent and the Lender Parties under Sections
2.10 and 2.12 on such date, ratably based upon the respective aggregate amounts thereof owing to the Administrative Agent and
the Lender Parties on such date;


 


(iv)        fourth,
to the payment of all of the accrued and unpaid interest on the Obligations of the Borrower under or in respect of the Loan Documents
that is due and payable to the Administrative Agent and the Lender Parties under Section 2.07(b) on such date, ratably based upon
the respective aggregate amounts of all such interest owing to the Administrative Agent and the Lender Parties on such date;


 


(v)         fifth,
to the payment of all of the accrued and unpaid interest on the Advances that is due and payable to the Administrative Agent and
the Lender Parties under Section 2.07(a) on such date or any periodic scheduled payments due under any Guaranteed Hedge Agreement
of which Administrative Agent has received not less than five (5) Business Days prior written notice, ratably based upon the respective
aggregate amounts of all such interest owing to the Administrative Agent and the Lender Parties on such date;


 






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(vi)        sixth,
to the payment of any other accrued and unpaid interest and Prepayment Consideration comprising Obligations that is due and payable
to the Administrative Agent and the Lender Parties on such date, ratably based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on such date;


 


(vii)       seventh,
to the payment of the principal amount of all of the outstanding Advances and any termination payments due under a Guaranteed
Hedge Agreement of which Administrative Agent has received not less than five (5) Business Days prior written notice that are
due and payable to the Administrative Agent and the Lender Parties on such date, ratably based upon the respective aggregate amounts
of all such principal and reimbursement obligations owing to the Administrative Agent and the Lender Parties on such date; and


 


(viii)      eighth,
to the payment of all other Obligations of the Loan Parties owing under or in respect of the Loan Documents that are due and payable
to the Administrative Agent and the other Lender Parties on such date, ratably based upon the respective aggregate amounts of
all such Obligations owing to the Administrative Agent and the other Lender Parties on such date.


 


For
the avoidance of doubt, any proceeds of Collateral received by the Administrative Agent for application to the Facility pursuant
to Section 2.01(a) of the Intercreditor Agreement shall be distributed in accordance with this Section 2.11(f). 


 


SECTION 2.12                     Taxes.


 


(a)            Any
and all payments by any Loan Party to or for the account of any Lender Party or the Administrative Agent hereunder or under any
other Loan Document shall be made, in accordance with Section 2.11 or the applicable provisions of such other Loan Document, if
any, free and clear of and without deduction for any and all present or future taxes, levies, imposts, duties, deductions, withholdings
(including all backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto (collectively, “Taxes”), except as required by applicable
law, excluding (i) in the case of each Lender Party and the Administrative Agent, taxes that are imposed on its overall
net income by the United States and taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender Party or the Administrative Agent, as the case may be,
is organized, has its Applicable Lending Office or otherwise has current or former connections (other than such connections arising
from such Lender Party’s having executed, delivered, became a party to, performed its obligations under, received or perfected
a security interest under, engaged in any other transactions pursuant to, or enforced any Loan Documents, or sold or assigned
any interest in any Obligations or Loan Document) or any political subdivision thereof) or any political subdivision thereof,
in the case of each Lender Party, taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction of such Lender Party’s Applicable Lending Office or any political subdivision thereof,
(ii) any U.S. federal withholding tax imposed on amounts payable to or for the account of any Lender Party with respect to an
applicable interest in an Advance or Commitment pursuant to a law in effect on the date, including the Closing Date, on which
such Lender Party acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower
under Section 9.01(b)) or designates a new Applicable Lending Office, except in each case to the extent that, pursuant to this
Section 2.12(a) or Section 2.12(c), amounts with respect to such Taxes were payable either to such Lender Party’s assignor
immediately before such Person became a party hereto or to such Lender Party immediately before it changed its Applicable Lending
Office, and (iii) in the case of each Lender Party, any U.S. federal withholding tax imposed pursuant to FATCA (all such excluded
Taxes in respect of payments hereunder or under the Notes being referred to as “Excluded Taxes”, and
all Taxes other than Other Taxes and Excluded Taxes being referred to as “Indemnified Taxes”). If any
Loan Party shall be required by law (as determined in the good faith discretion of the applicable Loan Party) to deduct any Indemnified
Taxes from or in respect of any sum payable hereunder or under any other Loan Document to any Lender Party or the Administrative
Agent, and unless such requirement arises from the failure of a Lender to furnish the documentation described and required to
be provided in Section 2.12(f) or (g), (i) the sum payable by such Loan Party shall be increased as may be necessary so that after
such Loan Party and the Administrative Agent have made all required deductions (including deductions applicable to additional
sums payable under this Section 2.12) such Lender Party or the Administrative Agent, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make all such deductions and (iii)
such Loan Party shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable
law.


 






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(b)           In
addition, each Loan Party shall pay any present or future stamp, court or documentary, excise, property, intangible, recording,
filing or similar taxes, charges or levies that arise from any payment made by such Loan Party hereunder or under any other Loan
Documents or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Agreement,
or the other Loan Documents (hereinafter referred to as “Other Taxes”).


 


(c)            Without
duplication of Sections 2.12(a) or 2.12(b), the Loan Parties shall indemnify each Lender Party and the Administrative Agent for
and hold them harmless against the full amount of Indemnified Taxes and Other Taxes, and for the full amount of Indemnified Taxes
and Other Taxes of any kind imposed or asserted by any jurisdiction on amounts payable under this Section 2.12, imposed on or
paid by such Lender Party or the Administrative Agent (as the case may be), or required to be withheld or deducted from a payment
to such Loan Party or the Administrative Agent and any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the
Loan Parties by a Lender Party (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or
on behalf of a Lender Party, shall be conclusive absent manifest error. This indemnification shall be made within 10 days from
the date such Lender Party or the Administrative Agent (as the case may be) makes written demand therefor.


 






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(d)           Each
Lender Party shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified
Taxes attributable to such Lender Party (but only to the extent that any Loan Party has not already indemnified the Administrative
Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable
to such Lender Party’s failure to comply with the provisions of Section 9.07 relating to the maintenance of a Register and
(iii) any Excluded Taxes attributable to such Lender Party, in each case that are payable or paid by the Administrative Agent
in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to any Lender Party by the Administrative Agent shall be conclusive absent manifest error.
Each Lender Party hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such
Lender Party under any Loan Document or otherwise payable by the Administrative Agent to the Lender Party from any other source
against any amount due to the Agent under this paragraph (d).


 


(e)            Within
30 days after the date of any payment of Taxes, the appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt evidencing such payment, to the extent such receipt
is issued therefor, or other evidence of payment thereof reasonably satisfactory to the Administrative Agent. In the case of any
payment hereunder or under the other Loan Documents by or on behalf of a Loan Party through an account or branch outside the United
States or by or on behalf of a Loan Party by a payor that is not a United States person, if such Loan Party determines that no
Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative Agent stating that such payment is exempt from
Taxes. For purposes of subsections (e) and (g) of this Section 2.12, the terms “United States” and “United
States person” shall have the meanings specified in section 7701 of the Internal Revenue Code.


 


(f)            Any
Lender Party that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Loan
Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative
Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender
Party, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative
Agent to determine whether or not such Lender Party is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other
than such documentation set forth in Section 2.12(g) below) shall not be required if in the applicable Lender Party’s reasonable
judgment such completion, execution or submission would subject such Lender Party to any material unreimbursed cost or expense
or would materially prejudice the legal or commercial position of such Lender Party.


 






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(g)             Each Lender Party organized under the laws of a jurisdiction outside the United States shall, on or prior to the date of
its execution and delivery of this Agreement in the case of each Initial Lender Party, and on the date of the Assignment and Acceptance
or Accession Agreement pursuant to which it becomes a Lender Party in the case of each other Lender Party, and from time to time
thereafter as reasonably requested in writing by the Borrower (but only so long thereafter as such Lender Party remains lawfully
able to do so), provide each of the Administrative Agent and the Borrower with two original Internal Revenue Service Forms W-8BEN,
W-8BEN-E or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal Revenue Service, certifying that
such Lender Party is exempt from or entitled to a reduced rate of United States federal withholding tax on payments pursuant to
this Agreement or any other Loan Document or, in the case of a Lender Party claiming the benefit of the exemption for portfolio
interest under section 881(c) of the Internal Revenue Code (x) a certificate in the form of Exhibit G hereto to the effect that
such Lender Party is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B)
a “10 percent shareholder” of any Loan Party within the meaning of section 881(c)(3)(B) of the Internal Revenue Code,
or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) two
duly completed copies of an IRS W-8BEN or W-8BEN-E, as applicable. If the forms provided by a Lender Party at the time such Lender
Party first becomes a party to this Agreement indicate a United States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered an Excluded Tax unless and until such Lender Party provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be considered an Excluded Tax for periods
governed by such forms; provided, however, that if, at the effective date of the Assignment and Acceptance or Accession Agreement
pursuant to which a Lender Party becomes a party to this Agreement, the Lender Party assignor was entitled to payments under subsection
(a) of this Section 2.12 in respect of United States federal withholding tax with respect to interest paid at such date, then,
to such extent, the term Indemnified Taxes shall include (in addition to withholding taxes that may be imposed in the future or
other amounts otherwise includable in Taxes) United States federal withholding tax, if any, applicable with respect to the Lender
Party assignee on such date. Upon the request of the Borrower, any Lender that is a United States person and is not an exempt recipient
for U.S. backup withholding purposes shall deliver to the Borrower two copies of Internal Revenue Service form W-9 (or any successor
form). If a payment made to a Lender Party under any Loan Document would be subject to U.S. federal withholding tax imposed by
FATCA if such Lender Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained
in section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender Party shall deliver to the Borrower and
the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower
or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i)
of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent
as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine
that such Lender Party has complied with such Lender Party’s obligations under FATCA or to determine the amount to deduct
and withhold from such payment. Solely for the purposes of this subsection (g), “FATCA” shall include any amendments
made to FATCA after the date of this Agreement. Each Lender Party shall promptly notify the Borrower and the Administrative Agent
of any change in circumstances that would modify or render invalid any claimed exemption from or reduction of Taxes.


 






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(h)             If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it has received an indemnification payment pursuant to this Section 2.12 (including by the payment
of additional amounts pursuant to this Section 2.12), it shall pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section with respect to the Indemnified Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses (including Indemnified Taxes or Other Taxes) of such indemnified party and without
interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party,
upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this subsection
(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified
party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection
(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this subsection
(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party
would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This subsection shall
not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes
that it deems confidential) to the indemnifying party or any other Person. No party shall have any obligation to pursue, or any
right to assert, any refund of Taxes or Other Taxes that may be paid by another party.


 


(i)              For
any period with respect to which a Lender Party has failed to provide the Borrower with the appropriate form or other document
described, and required to be provided, in subsection (f) or (g) above (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring after the date on which a form or other document originally was
required to be provided or if such form or other document otherwise is not required under subsection (f) or (g) above), such Lender
Party shall not be entitled to indemnification under subsection (a) or (c) of this Section 2.12 with respect to Taxes imposed
by the United States by reason of such failure; provided, however, that should a Lender Party become subject to Taxes because
of its failure to deliver a form or other document required hereunder, the Loan Parties shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.


 


(j)              Any
Lender Party claiming any additional amounts payable pursuant to this Section 2.12 agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Eurodollar Lending Office if
the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be otherwise disadvantageous to such Lender Party.


 






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(k)             In
the event that an additional payment is made under Section 2.12(a) or (c) for the account of any Lender Party and such Lender
Party, in its sole discretion, determines that it has finally and irrevocably received or been granted a credit against or release
or remission for, or repayment of, any tax paid or payable by it in respect of or calculated with reference to the deduction or
withholding giving rise to such payment, such Lender Party shall, to the extent that it determines that it can do so without prejudice
to the retention of the amount of such credit, relief, remission or repayment, pay to the applicable Loan Party such amount as
such Lender Party shall, in its sole discretion, have determined to be attributable to such deduction or withholding and which
will leave such Lender Party (after such payment) in no worse position than it would have been in if the applicable Loan Party
had not been required to make such deduction or withholding. Nothing herein contained shall interfere with the right of a Lender
Party to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender Party to claim any tax credit or to disclose
any information relating to its affairs or any computations in respect thereof, and no Loan Party shall be entitled to review
the tax records of any Lender Party or the Administrative Agent, or require any Lender Party to do anything that would prejudice
its ability to benefit from any other credits, reliefs, remissions or repayments to which it may be entitled.


 


Without prejudice
to the survival of any other agreement of any party hereunder or under any other Loan Document, the agreements and obligations
under this Section 2.12 shall survive the resignation or replacement of the Administrative Agent, the assignment of rights by,
or the replacement of, a Lender, the termination of the Commitments and the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.


 


SECTION 2.13                     
Sharing of Payments, Etc.


 


(a)             [Intentionally Omitted.]


 


(b)             Pro
Rata Sharing. Subject to the provisions of Section 2.11(f), if any Lender Party shall obtain at any time any payment (whether
voluntary, involuntary, through the exercise of any right of set off, or otherwise, other than as a result of an assignment pursuant
to Section 9.07) (a) on account of Obligations due and payable to such Lender Party under the Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender Party at
such time to (ii) the aggregate amount of the Obligations due and payable to all Lender Parties under the Loan Documents at such
time) of payments on account of the Obligations due and payable to all Lender Parties under the Loan Documents at such time obtained
by all the Lender Parties at such time or (b) on account of Obligations owing (but not due and payable) to such Lender Party under
the Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
owing to such Lender Party at such time to (ii) the aggregate amount of the Obligations owing (but not due and payable) to all
Lender Parties under the Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable)
to all Lender Parties under the Loan Documents at such time obtained by all of the Lender Parties at such time, such Lender Party
shall forthwith purchase from the other Lender Parties such interests or participating interests in the Obligations due and payable
or owing to them, as the case may be, as shall be necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered
from such purchasing Lender Party, such purchase from each other Lender Party shall be rescinded and such other Lender Party shall
repay to the purchasing Lender Party the purchase price to the extent of such Lender Party’s ratable share (according to
the proportion of (i) the purchase price paid to such Lender Party to (ii) the aggregate purchase price paid to all Lender Parties)
of such recovery together with an amount equal to such Lender Party’s ratable share (according to the proportion of (i)
the amount of such other Lender Party’s required repayment to (ii) the total amount so recovered from the purchasing Lender
Party) of any interest or other amount paid or payable by the purchasing Lender Party in respect of the total amount so recovered.
The Borrower agrees that any Lender Party so purchasing an interest or participating interest from another Lender Party pursuant
to this Section 2.13(b) may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Lender Party were the
direct creditor of the Borrower in the amount of such interest or participating interest, as the case may be.


 






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(c)             The provisions of this Section 2.13 shall be subject to the provisions of Section 9.10(a)(ii).


 


SECTION 2.14                     
Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such
proceeds) for general corporate purposes of the Borrower and its Subsidiaries, including, without limitation, (i) working capital
purposes, (ii) the payment of capital expenditures, (iii) the acquisition of Assets as permitted by this Agreement, (iv) the repayment
in full (or refinancing) of existing loans, including but not limited to those loans affecting Unencumbered Assets that are added
to the Unencumbered Asset Pool after the Closing Date, and (v) the payment of fees and expenses related to the Facility and the
other transactions contemplated by the Loan Documents.


 


SECTION 2.15                     
Evidence of Debt.


 


(a)             Each Lender Party shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender Party resulting from each Advance owing to such Lender Party from time to time, including the amounts
of principal and interest payable and paid to such Lender Party from time to time hereunder. The Borrower agrees that upon notice
by any Lender Party to the Borrower (with a copy of such notice to the Administrative Agent) to the effect that one or more promissory
notes or other evidence of indebtedness is required or appropriate in order for such Lender Party to evidence (whether for purposes
of pledge, enforcement or otherwise) the Advances owing to, or to be made by, such Lender Party, the Borrower shall promptly execute
and deliver to such Lender Party, with a copy to the Administrative Agent, a Note in substantially the form of Exhibit A hereto,
payable to the order of such Lender Party in a principal amount equal to the Term Loan Commitment of such Lender Party. All references
to Notes in the Loan Documents shall mean Notes, if any, to the extent issued hereunder. To the extent no Note has been issued
to a Lender Party, this Agreement shall be deemed to comprise conclusive evidence for all purposes of the indebtedness resulting
from the Advances and extensions of credit hereunder.


 






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(b)             The Register maintained by the Administrative Agent pursuant to Section 9.07(d) shall include (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each Lender Party hereunder, and (iv) the amount of
any sum received by the Administrative Agent from the Borrower hereunder and each Lender Party’s share thereof.


 


(c)             Entries
made in good faith by the Administrative Agent in the Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be prima facie evidence of the amount of principal and interest due
and payable or to become due and payable from the Borrower to, in the case of the Register, each Lender Party and, in the case
of such account or accounts, such Lender Party, under this Agreement, absent manifest error; provided, however, that the
failure of the Administrative Agent or such Lender Party to make an entry, or any finding that an entry is incorrect, in the Register
or such account or accounts shall not limit or otherwise affect the obligations of the Borrower under this Agreement.


 


SECTION 2.16                     
[Intentionally Omitted].


 


SECTION 2.17                     
Increase in the Aggregate Commitments.


 


(a)             The
Borrower may, at any time by written notice to the Administrative Agent, request an increase in the aggregate amount of the Term
Loan Commitments, in the form of an additional tranche within the Term Loan Facility, by not less than $5,000,000 (each such proposed
increase, a “Commitment Increase”) to be effective prior to the Termination Date (the “Increase Date”)
as specified in the related notice to the Administrative Agent; provided, however, that (i) in no event shall the aggregate amount
of the Commitments at any time exceed $375,000,000 in the aggregate, (ii) on the date of any request by the Borrower for a Commitment
Increase and on the related Increase Date, the applicable conditions set forth in Article III shall be satisfied and such Commitment
Increase shall not constitute or give rise to a default or event of default (whether with the giving of notice, passage of time
or otherwise) under any agreement (including, without limitation, the Existing Credit Agreement) to which the Parent Guarantor
or any of its Subsidiaries are bound or subject, and Borrower shall have delivered to Administrative Agent a certification of
the foregoing signed by a Responsible Officer together with such supporting information demonstrating compliance with the foregoing
as Administrative Agent may reasonably request, (iii) with respect to any Term Loan Borrowing in connection with any Commitment
Increase consisting of Eurodollar Rate Advances, such Borrowing must occur only on the first day of an Interest Period, and (iv)
the Borrower may not request a Commitment Increase in the event that all Advances that had been outstanding prior to such requested
increase have been prepaid.


 


(b)             The
Administrative Agent shall promptly notify the Lenders of each request by the Borrower for a Commitment Increase, which notice
shall include (i) the proposed amount of such requested Commitment Increase, (ii) the proposed Increase Date and (iii) the date
by which Lenders wishing to participate in the Commitment Increase must commit to an increase in the amount of their respective
Commitments (the “Commitment Date”). Each Lender that is willing to participate in such requested Commitment
Increase (each, an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative
Agent on or prior to the Commitment Date of the amount by which it is willing to increase its Commitment in respect of the Facility
(the “Proposed Increased Commitment”). If the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested
Commitment Increase, the requested Commitment Increase shall be allocated to each Lender willing to participate therein in an
amount equal to the Commitment Increase multiplied by the ratio of each Lender’s Proposed Increased Commitment to the aggregate
amount of Proposed Increased Commitments.


 






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(c)           Promptly
following each Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Lenders
are willing to participate in the requested Commitment Increase. If the aggregate amount by which the Lenders are willing to participate
in any requested Commitment Increase on any such Commitment Date is less than the requested Commitment Increase, then the Borrower
may extend offers to one or more Eligible Assignees to participate in any portion of the requested Commitment Increase that has
not been committed to by the Lenders as of the applicable Commitment Date; provided, however, that the Commitment of each
such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.


 


(d)           On
each Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Commitment Increase in accordance
with Section 2.17(c) (an “Acceding Lender”) shall become a Lender party in respect of the applicable
Increasing Facility to this Agreement as of such Increase Date and the Commitment of each Increasing Lender for such requested
Commitment Increase shall be so increased by such amount (or by the amount allocated to such Lender pursuant to the last sentence
of Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received at or
before 12:00 Noon (Cleveland, Ohio time) on such Increase Date the following, each dated such date:


 


(i)              an
accession agreement from each Acceding Lender, if any, in form and substance reasonably satisfactory to the Borrower and the Administrative
Agent (each, an “Accession Agreement”), duly executed by such Acceding Lender, the Administrative Agent
and the Borrower;


 


(ii)             confirmation
from each Increasing Lender of the increase in the amount of its Commitment in a writing reasonably satisfactory to the Borrower
and the Administrative Agent, together with an amended Schedule I hereto as may be necessary for such Schedule I to be accurate
and complete, certified as correct and complete by a Responsible Officer of the Borrower;


 


(iii)            a
new Note for each Increasing Lender or Acceding Lender so that the principal amount of such Lender’s Note shall equal its
Term Loan Commitment. The Agent shall deliver such replacement Note to the respective Acceding Lender or Increasing Lenders (with
respect to an Increasing Lender, in exchange for the Notes replaced thereby which shall be surrendered by such Increasing Lender).
Such new Notes shall provide that they are replacements for the surrendered Notes, and that they do not constitute a novation,
shall be dated as of the applicable Increase Date and shall otherwise be in substantially the form of the replaced Notes. Simultaneously
with such increase, the Borrower shall deliver an opinion of counsel, addressed to the Lenders and the Agent, relating to the
due authorization, execution and delivery of such new Notes and the enforceability thereof, in form and substance substantially
similar to the opinion delivered in connection with the closing under this Agreement. Any surrendered Notes shall be cancelled
and returned to the Borrower; and


 






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(iv)            such
certificates or other information as may be required pursuant to Section 3.02.


 


On each Increase Date, upon fulfillment
of the conditions set forth in the immediately preceding sentence of this Section 2.17(d), the Administrative Agent shall notify
the Lenders (including, without limitation, each Acceding Lender) and the Borrower, at or before 1:00 P.M. (Cleveland, Ohio time),
by telecopier or telex, of the occurrence of the Commitment Increase to be effected on such Increase Date and shall record in the
Register the relevant information with respect to each Increasing Lender and each Acceding Lender on such date.


 


(e)           On
the Increase Date, each Increasing Lender or Acceding Lender, as applicable, shall fund to Administrative Agent in immediately
available funds their respective Commitment Increase as an Advance, and Administrative Agent shall make such Advance available
to Borrower as an additional Term Loan.


 


SECTION 2.18                        Effect
of Benchmark Transition Event.


 


(a)           Benchmark
Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, (i) upon the determination of
the Administrative Agent (which shall be conclusive absent manifest error) that a Benchmark Transition Event has occurred or (ii)
upon the occurrence of an Early Opt-in Election, as applicable, the Administrative Agent and the Borrower may amend this Agreement
to replace the Eurodollar Rate with a Benchmark Replacement, by a written document executed by the Borrower and the Administrative
Agent, subject to the requirements of this Section 2.18. Notwithstanding the requirements of Section 9.01 or anything else to
the contrary herein or in any other Loan Document, any such amendment with respect to a Benchmark Transition Event will become
effective and binding upon the Administrative Agent, the Borrower and the Lenders at 5:00 p.m. on the fifth (5th) Business Day
after the Administrative Agent has posted such proposed amendment to all Lenders and the Borrower so long as the Administrative
Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders,
and any such amendment with respect to an Early Opt-in Election will become effective and binding upon the Administrative Agent,
the Borrower and the Lenders on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent
written notice that such Required Lenders accept such amendment. No replacement of the Eurodollar Rate with a Benchmark Replacement
pursuant to this Section 2.18 will occur prior to the applicable Benchmark Transition Start Date.


 


(b)           Benchmark
Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrative Agent
will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary
herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective
without any further action or consent of any other party to this Agreement or the other Loan Documents.


 






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(c)           Notices;
Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders in
writing of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark
Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness
of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.
Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.18,
including, without limitation, any determination with respect to a tenor, comparable replacement rate or adjustment, or implementation
of any Benchmark Replacement Rate Conforming Changes, or of the occurrence or non-occurrence of an event, circumstance or date
and any decision to take or refrain from taking any action, will be conclusive and binding on all parties hereto or to the other
Loan Documents absent manifest error and may be made in its or their sole discretion and without consent from any other party
hereto, except, in each case, as expressly required pursuant to this Section 2.18 and shall not be a basis of any claim of liability
of any kind or nature by any party hereto or thereto, all such claims being hereby waived individually by each party hereto and
thereto.


 


(d)           Benchmark
Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period,
the Borrower may revoke any request for a borrowing of Advances that are to be Eurodollar Rate Advances, conversion to or continuation
of Eurodollar Rate Advances to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the
Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Advances.
During any Benchmark Unavailability Period, the components of Base Rate based upon the Eurodollar Rate will not be used in any
determination of Base Rate.


 


(e)           Certain
Defined Terms. As used in this Section 2.18:


 


“Benchmark Replacement”
means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent
and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining
such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate
of interest as a replacement to the Eurodollar Rate for U.S. dollar-denominated syndicated credit facilities at such time and (b)
the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zerotwenty-five
basis points (0.25%), the Benchmark Replacement will be deemed to be zerotwenty-five
basis points (0.25%) for the purposes of this Agreement.


 


“Benchmark Replacement
Adjustment” means, with respect to any replacement of the Eurodollar Rate with an Unadjusted Benchmark Replacement for each
applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be
a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration
to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment,
for the replacement of the Eurodollar Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body
or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining
such spread adjustment, for the replacement of the Eurodollar Rate with the applicable Unadjusted Benchmark Replacement for U.S.
dollar-denominated syndicated credit facilities at such time.


 






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“Benchmark Replacement
Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes
(including changes to the definition of “Base Rate,” the definition of “Interest Period,” timing and frequency
of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides, in
its reasonable discretion, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit
the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative
Agent decides that adoption of any portion of such market practice is not administratively feasible, in its reasonable discretion,
or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in
such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration
of this Agreement).


 


“Benchmark Replacement
Date” means the earlier to occur of the following events with respect to the Eurodollar Rate:


 


(1) in the case of clause (1)
or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication
of information referenced therein and (b) the date on which the administrator of the Eurodollar Rate permanently or indefinitely
ceases to provide the Eurodollar Rate; or


 


(2) in the case of clause (3)
of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced
therein.


 


“Benchmark Transition
Event” means the occurrence of one or more of the following events with respect to the Eurodollar Rate:


 


(1) a public statement or publication
of information by or on behalf of the administrator of the Eurodollar Rate announcing that such administrator has ceased or will
cease to provide the Eurodollar Rate, permanently or indefinitely, provided that, at the time of such statement or publication,
there is no successor administrator that will continue to provide the Eurodollar Rate;


 


(2) a public statement or publication
of information by the regulatory supervisor for the administrator of the Eurodollar Rate, the U.S. Federal Reserve System, an insolvency
official with jurisdiction over the administrator for the Eurodollar Rate, a resolution authority with jurisdiction over the administrator
for the Eurodollar Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the
Eurodollar Rate, which states that the administrator of the Eurodollar Rate has ceased or will cease to provide the Eurodollar
Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator
that will continue to provide the Eurodollar Rate (as determined by Administrative Agent); or


 


(3) a public statement or publication
of information by the regulatory supervisor for the administrator of the Eurodollar Rate or a Relevant Governmental Body announcing
that the Eurodollar Rate is no longer representative.


 






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“Benchmark Transition
Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement
Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the
90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected
date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication)
and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable,
by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.


 


“Benchmark Unavailability
Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the
Eurodollar Rate and solely to the extent that the Eurodollar Rate has not been replaced with a Benchmark Replacement, the period
(x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced
the Eurodollar Rate for all purposes hereunder in accordance with this Section 2.18 and (y) ending at the time that a Benchmark
Replacement has replaced the Eurodollar Rate for all purposes hereunder pursuant to this Section 2.18.


 


“Early Opt-in
Election” means the occurrence of:


 


(1) a determination by the Administrative
Agent that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to
that contained in this Section 2.18 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest
rate to replace the Eurodollar Rate, and


 


(2) the election by the Administrative
Agent to declare that an Early Opt-in Election has occurred and the provision by the Administrative Agent of written notice of
such election to the Borrower and the Lenders.


 


“Federal Reserve
Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org,
or any successor source.


 


“Relevant Governmental
Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or
convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto, including without limitation
the Alternative Reference Rates Committee.


 


“SOFR”
with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York,
as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.


 


“Term SOFR”
means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.


 


“Unadjusted Benchmark
Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.


 






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(f)           Administrative
Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration,
submission or any other matter related to the London interbank offered rate or other rates in the definition of the “Eurodollar
Rate” or with respect to any alternative or successor rate thereto, or replacement rate therefor or thereof, including,
without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate,
as it may or may not be adjusted pursuant to Section 2.18, will be similar to, or produce the same value or economic equivalence
of, the Eurodollar Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance
or unavailability.


 


ARTICLE
III

CONDITIONS OF LENDING


 


SECTION 3.01                   Conditions Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance on the occasion
of the Initial Extension of Credit hereunder is subject to the satisfaction of the following conditions precedent before or concurrently
with the Initial Extension of Credit:


 


(a)           The Administrative Agent shall have received on or before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes, as to which one original of each shall be sufficient) in sufficient copies for each Lender Party:


 


(i)           A
Note duly executed by the Borrower and payable to the order of each Lender that has requested the same.


 


(ii)          [Intentionally Omitted].


 


(iii)         As
to each Unencumbered Asset:


 


(A)            
[Intentionally Omitted]; and


 


(B)              evidence
satisfactory to the Administrative Agent that the applicable owner or lessee, as applicable, of such Unencumbered Asset shall
be in compliance with the requirements of Section 5.02(p).


 


(iv)         This
Agreement duly executed by the Loan Parties and the other parties hereto.


 


(v)          Certified
copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for
which it is the ultimate signatory approving the transactions contemplated by the Loan Documents and each Loan Document to which
it or such Loan Party is or is to be a party (the “Closing Authorizing Resolution”), and of all documents
evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect
to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a party.


 






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(vi)          A
copy of a certificate of the Secretary of State (or equivalent authority) of the jurisdiction of incorporation, organization or
formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near
(but prior to) the Closing Date, certifying, if and to the extent such certification is generally available for entities of the
type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability
company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be,
and each amendment thereto on file in such Secretary’s office, (B) that such amendments are the only amendments to the charter,
certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such
Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, and (C) such Loan
Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing
or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.


 


(vii)         
A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party
or any general partner or managing member of a Loan Party owns or leases property or in which the conduct of its business requires
it to qualify or be licensed as a foreign corporation except where the failure to so qualify or be licensed could not reasonably
be expected to result in a Material Adverse Effect, dated reasonably near (but prior to) the Closing Date, stating, with respect
to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case
may be, is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company in such
State and has filed all annual reports required to be filed to the date of such certificate.


 


(viii)       
A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf
of such Loan Party, general partner or managing member, as applicable, by its President, a Vice President, Executive Chairman or
Chief Manager and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable),
dated the Closing Date (the statements made in which certificate shall be true on and as of the date of the Initial Extension of
Credit), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or
managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and correct copy
of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing
member, as applicable, as in effect on the date on which the resolutions referred to in Section 3.01(a)(v) were adopted and on
the date of the Initial Extension of Credit, (C) the due incorporation, organization or formation and good standing or valid existence
of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership
organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding
for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the truth of the
representations and warranties contained in the Loan Documents as though made on and as of the date of the Initial Extension of
Credit and (E) the absence of any event occurring and continuing, or resulting from the Initial Extension of Credit, that constitutes
a Default.


 






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(ix)           A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner
or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the
names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party,
authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and
thereunder.


 


(x)            Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall
have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental
matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements
with employees, historical operating statements (if any), audited annual financial statements for the year ending December 31,
2016 of the Parent Guarantor, interim financial statements dated the end of the most recent fiscal quarter for which financial
statements are available and for the three months then ended and financial projections for the Parent Guarantor’s consolidated
operations.


 


(xi)           [Intentionally Omitted.]


 


(xii)         
An opinion of Kleinberg, Kaplan, Wolff & Cohen, P.C., New York counsel for the Loan Parties, with respect to the matters
(and in substantially the form) set forth in Exhibit F-1 hereto and as to such other matters as any Lender Party through the Administrative
Agent may reasonably request.


 


(xiii)       
An opinion of local counsel for the Loan Parties (A) from Venable LLP in substantially the form of Exhibit F-2 hereto, (B)
from Hagen, Wilka & Archer, LLP in substantially the form of Exhibit F-3 hereto, (C) from Arnall Golden Gregory LLP in substantially
the form of Exhibit F-4 hereto, and (D) a Delaware opinion in the form of Exhibit F-5 hereto, in each case covering such other
matters as any Lender Party through the Administrative Agent may reasonably request.


 


(xiv)         A
Notice of Borrowing relating to the Initial Extension of Credit and dated and delivered not less than three (3) Business Days
prior to the date of the Initial Extension of Credit.


 


(xv)          A
certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, stating that after giving effect to the Initial
Extension of Credit the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04, together with supporting
information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such
covenants.


 






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(b)           The
Lender Parties shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and its Subsidiaries,
including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document
of each of them.


 


(c)           The
Lender Parties shall be satisfied that all Existing Debt shall be on terms and conditions reasonably satisfactory to the Lender
Parties.


 


(d)           Before
and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no material adverse
change in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise)
or prospects of the Loan Parties since December 31, 2016.


 


(e)           There
shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material
Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Material Litigation”)
or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions
contemplated thereby, and there shall have been no material adverse change in the status, or financial effect on any Loan Party
or any of its Subsidiaries, of the Material Litigation from that described on Schedule 4.01(f) hereto.


 


(f)            All
governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents
shall have been obtained (without the imposition of any conditions that are not acceptable to the Lender Parties) and shall remain
in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lender Parties that restrains, prevents
or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.


 


(g)           Each
Subsidiary Guarantor shall have complied with the requirements of Section 5.02(p) and provided evidence of such compliance satisfactory
to the Administrative Agent.


 


(h)           The Borrower shall have paid all accrued fees of the Administrative Agent and the Lender Parties and all reasonable, out-of-pocket
expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent).


 


(i)            The
Borrower and each Guarantor shall have provided to the Administrative Agent and the Lenders the documentation and other information
requested by the Administrative Agent or any Lender to comply with its “know your customer” requirements and to confirm
compliance with all applicable Sanctions, Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act, and (ii) if
the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, the
Borrower shall have provided to the Administrative Agent (for further delivery by the Administrative Agent to the Lenders in accordance
with its customary practice) a Beneficial Ownership Certification for the Borrower; in each case delivered at least five Business
Days prior to the Closing Date.


 






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SECTION 3.02                     
Conditions Precedent to Each Borrowing and Increase. The obligation of each Lender to make an Advance on the occasion
of each Borrowing (including the initial Borrowing and any Delayed Draw) and the right of the Borrower to request a Commitment
Increase shall be subject to the satisfaction of the conditions set forth in Section 3.01 (to the extent not previously satisfied
pursuant to that Section) and such further conditions precedent that on the date of such Borrowing or increase (a), the following
statements shall be true and the Administrative Agent shall have received for the account of such Lender, (w) a Notice of Borrowing
dated the date of such Borrowing or increase, (x) all items described in the definition of “Unencumbered Asset Designation
Package” herein (to the extent not previously delivered with respect to each Unencumbered Asset pursuant to Section 5.01(k)
or this Section 3.02), (y) in the case of an addition of any Person as an Additional Guarantor, all Guarantor Deliverables (to
the extent not previously delivered pursuant to Section 5.01(k), Section 5.01(x) or this Section 3.02), all
Collateral Deliverables (to the extent required by but not previously delivered pursuant to the Third Amendment or otherwise),
and (z) a certificate signed by a Responsible Officer of the Borrower, dated the date of such Borrowing or increase,
stating that:


 


(i)            the
representations and warranties contained in each Loan Document are true and correct on and as of such date, before and after giving
effect to (A) such Borrowing or increase, and (B) in the case of any Borrowing, the application of the proceeds therefrom, as
though made on and as of such date;


 


(ii)           no
Default or Event of Default has occurred and is continuing, or would result from (A) such Borrowing or increase or (B) in the
case of any Borrowing from the application of the proceeds therefrom; and


 


(iii)          for
each Advance, (A) the Total Unencumbered Asset Value equals or exceeds Consolidated Unsecured Indebtedness of the Parent Guarantor
that will be outstanding after giving effect to such Advance, and (B) before and after giving effect to such Advance, the Parent
Guarantor shall be in compliance with the covenants contained in Section 5.04(b), together with supporting information in form
satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants; and


 


(b)           the
Administrative Agent shall have received such other approvals or documents as any Lender Party through the Administrative Agent
may reasonably request in order to confirm (i) the accuracy of the Loan Parties’ representations and warranties contained
in the Loan Documents, (ii) the Loan Parties’ timely compliance with the terms, covenants and agreements set forth in the
Loan Documents, (iii) the absence of any Default and (iv) the rights and remedies of the Lender Parties or the ability of the
Loan Parties to perform their Obligations.


 


SECTION 3.03                     Determinations
Under Section 3.01 and 3.02. For purposes of determining compliance with the conditions specified in Sections 3.01 and 3.02,
each Lender Party shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or satisfactory to the Lender Parties unless an officer of
the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such
Lender Party prior to the Initial Extension of Credit specifying its objection thereto and, if the Initial Extension of Credit
consists of a Borrowing, such Lender Party shall not have made available to the Administrative Agent such Lender Party’s
ratable portion of such Borrowing.


 






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ARTICLE
IV

REPRESENTATIONS AND WARRANTIES


 


SECTION 4.01                     
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:


 


(a)           Organization
and Powers; Qualifications and Good Standing. Each Loan Party and each of its Subsidiaries and each general partner or managing
member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized
or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation,
(ii) is duly qualified and in good standing as a foreign corporation, limited liability company or partnership in each other jurisdiction
in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where
the failure to so qualify or be licensed could not reasonably be expected to result in a Material Adverse Effect and (iii) has
all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental
licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted
and as proposed to be conducted. All of the outstanding Equity Interests in the Borrower have been validly issued, are fully paid
and non-assessable. The Parent Guarantor directly or indirectly owns all of the general partnership interests and more than 60%
of the limited partnership interests in the Borrower. All Equity Interests in the Borrower that are directly or indirectly owned
by the Parent Guarantor are owned free and clear of all Liens. The Parent Guarantor is organized in conformity with the requirements
for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to meet the requirements for
qualification and taxation as a REIT under the Internal Revenue Code. The taxpayer identification number for each Loan Party as
of the date of this Agreement is set forth on Schedule 4.01(a) hereto.


 


(b)           Subsidiaries. Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan
Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation,
the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized, and the number outstanding,
on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party
and the number of shares (or the equivalent thereof) covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries has been
validly issued, are fully paid and non-assessable and to the extent owned by such Loan Party or one or more of its Subsidiaries,
and with respect to the Subsidiary Guarantors, TRS Holdco and the TRS Lessees, are owned by such Loan Party or Subsidiaries free
and clear of all Liens, except for Liens created under the Loan Documentsrelating
to the Facility and the Other Facilities pursuant to the Pledge Agreement.


 






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(c)           Due
Authorization; No Conflict. The execution and delivery by each Loan Party and of each general partner or managing member (if
any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder
and the other transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership
powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability
company or partnership action, and do not (i) contravene the charter or bylaws, operating agreement, partnership agreement or
other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment
to be made under, any Material Contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their properties, or any general partner or managing member
of any Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of
its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation
or breach of which could reasonably be expected to result in a Material Adverse Effect.


 


(d)           Authorizations
and Consents. No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority
or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance
by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be
a party or for the consummation the transactions contemplated by the Loan Documents, or (ii) the exercise by the Administrative
Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings
which have been duly obtained, taken, given or made and are in full force and effect.


 


(e)           Binding Obligation. This Agreement has been, and each other Loan Document when delivered hereunder will have been,
duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party thereto. This
Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan
Party and general partner or managing member (if any) of each Loan Party thereto, enforceable against such Loan Party, general
partner or managing member, as the case may be, in accordance with its terms.


 


(f)            Litigation. There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of
its Subsidiaries or any general partner or managing member (if any) of any Loan Party, including any Environmental Action, pending
or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to result in a Material
Adverse Effect (other than the Material Litigation) or (ii) purports to affect the legality, validity or enforceability of any
Loan Document or the transactions contemplated by the Loan Documents, and there has been no material adverse change in the status,
or financial effect on any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan
Party, of the Material Litigation from that described on Schedule 4.01(f) hereto.


 






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(g)           Financial
Condition. The Consolidated balance sheets of the Parent Guarantor as at December 31, 2016 and the related Consolidated statements
of income and Consolidated statements of cash flows of the Parent Guarantor for the fiscal year then ended, accompanied by unqualified
opinions of Ernst & Young, LLP, independent public accountants, copies of which have been furnished to each Lender Party,
fairly present the Consolidated financial condition of the Parent Guarantor as at such date and the Consolidated results of operations
of the Parent Guarantor for the periods ended on such date, all in accordance with generally accepted accounting principles applied
on a consistent basis. Since December 31, 2016 there has been no Material Adverse Change.


 


(h)           Forecasts.
The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its
Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(x) or 5.03 were prepared in good faith on the basis of
the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Parent Guarantor’s best estimate of its future financial performance.


 


(i)            Full Disclosure. No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of
the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the
statements made therein not misleading. The Loan Parties have disclosed to the Administrative Agent, in writing, any and all existing
facts that have or may have (to the extent any of the Loan Parties can now reasonably foresee) a Material Adverse Effect, provided
however, that the Loan Parties are not obligated to report on the potential Material Adverse Effect of any general economic condition.


 


(j)            Margin
Regulations. No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.


 


(k)           Certain Governmental Regulations. Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing
member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter”
or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company
Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each
general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly-owned
subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading
in securities or (B) issuing face-amount certificates of the installment type; (ii) is not engaged in, does not propose to engage
in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities
or (B) issuing face-amount certificates of the installment type; (iii) does not own or propose to acquire investment securities
(as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such
company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the
past been engaged in the business of issuing face-amount certificates of the installment type; and (v) does not have any outstanding
face-amount certificates of the installment type. Neither the making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision
of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.


 






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(l)            Materially Adverse Agreements. Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan
or credit agreement or any lease or other agreement or instrument or subject to any charter, corporate, partnership, membership
or other governing restriction that could reasonably be expected to result in a Material Adverse Effect (absent a material default
under a Material Contract).


 


(m)          [Intentionally Omitted].


 


(n)           Existing
Debt. Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Existing Debt, showing as of the date hereof
the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor.


 


(o)           Liens. Set forth on Schedule 4.01(o) hereto is a complete and accurate list of (i) all Liens on the property or assets
of any Loan Party or any of its Subsidiaries that directly or indirectly own any Unencumbered Asset, and (ii) all Liens with a
principal balance in excess of $250,000 on the property or assets of any Loan Party or any of its Subsidiaries securing Debt for
Borrowed Money; in each case showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured
thereby and the property or assets of such Loan Party or such Subsidiary subject thereto, provided however, that (x)
Liens securing the Facility and the Other Facilities as contemplated by the Third Amendment and (y) easements and other
real property restrictions, covenants and conditions of record (exclusive of Liens securing Debt) shall not be listed on Schedule
4.01(o).


 


(p)           Real Property. (i) Set forth on Part I of Schedule 4.01(p) hereto is a complete and accurate list of all Real Property
owned in fee by any Loan Party or any of its Subsidiaries, showing as of the date hereof, and as of each other date such Schedule
4.01(p) is required to be supplemented hereunder, the street address, state, record owner and book value thereof. Each such Loan
Party or Subsidiary has good, marketable and insurable fee simple title to such Real Property, free and clear of all Liens, other
than existing Liens and Liens permitted under Section 5.02(a).


 


(ii)            Set
forth on Part II of Schedule 4.01(p) hereto is a complete and accurate list of all leases of Real Property under which any Loan
Party or any of its Subsidiaries is the lessee, including, without limitation, the Operating Leases, showing as of the date hereof,
and as of each other date such Schedule 4.01(p) is required to be supplemented hereunder, the street address, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.


 






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(iii)            Each
Unencumbered Asset is operated and managed by an Approved Manager pursuant to a Management Agreement listed on Part III of Schedule
4.01(p).


 


(iv)            Each
Unencumbered Asset is subject to a Franchise Agreement with an Approved Franchisor as listed on Part IV of Schedule 4.01(p); provided
that this representation shall not be deemed made or reaffirmed in connection with any Commitment Increase after the First Amendment
Effective Date.


 


(v)            
Each Unencumbered Asset satisfies all Unencumbered Asset Pool Conditions.


 


(q)          Environmental Matters. (i) Except as otherwise set forth on Part I of
Schedule 4.01(q) hereto, the operations and properties of each Loan Party and each of its Subsidiaries comply in all material
respects with all applicable Environmental Laws and Environmental Permits, all past material non-compliance with such
Environmental Laws and Environmental Permits has been resolved without ongoing material obligations or costs, and, to the
knowledge of each Loan Party and its Subsidiaries, no circumstances exist that could be reasonably likely to (A) form the
basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could have
a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law.


 


(ii)             Except as otherwise set forth on Part II of Schedule 4.01(q) hereto, none of the properties currently or formerly owned
or operated by any Loan Party or any of its Subsidiaries is listed or, to the knowledge of each Loan Party and its Subsidiaries,
proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such listed
property; there are no underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by
any Loan Party or any of its Subsidiaries; there is no asbestos or asbestos-containing material on any property currently owned
or operated by any Loan Party or any of its Subsidiaries except for any non-friable asbestos-containing material that is being
managed pursuant to, and in compliance with, an operations and maintenance plan and that does not currently require removal, remediation,
abatement or encapsulation under Environmental Law; and, to the knowledge of each Loan Party and its Subsidiaries, Hazardous Materials
have not been released, discharged or disposed of in any material amount or in violation of any Environmental Law or Environmental
Permit on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the knowledge of each Loan
Party and its Subsidiaries, during the period of their ownership or operation thereof, on any property formerly owned or operated
by any Loan Party or any of its Subsidiaries.


 


(iii)            Except as otherwise set forth on Part III of Schedule 4.01(q) hereto, neither any Loan Party nor any of its Subsidiaries
is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation
or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials
at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or
the requirements of any Environmental Law; all Hazardous Materials generated, used, treated, handled or stored at, or transported
to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed
of in a manner not reasonably expected to result in a Material Adverse Effect; and, with respect to any property formerly owned
or operated by any Loan Party or any of its Subsidiaries, all Hazardous Materials generated, used, treated, handled, stored or
transported by or, to the knowledge of each Loan Party and its Subsidiaries, on behalf of any Loan Party or any of its Subsidiaries
have been disposed of in a manner that could not reasonably be expected to result in a Material Adverse Effect.


 






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(r)            
Compliance with Laws. Each Loan Party and each Subsidiary is in compliance with the requirements of all laws, rules
and regulations (including, without limitation, the Securities Act and the Securities Exchange Act, and the applicable rules and
regulations thereunder, state securities law and “Blue Sky” laws) applicable to it and its business, where the failure
to so comply could reasonably be expected to result in a Material Adverse Effect.


 


(s)             Force
Majeure. Neither the business nor the Assets of any Loan Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy
or other casualty (whether or not covered by insurance) that could reasonably be expected to result in a Material Adverse Effect.


 


(t)              Loan
Parties’ Credit Decisions. Each Loan Party has, independently and without reliance upon the Administrative Agent or
any other Lender Party and based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement (and in the case of the Guarantors, to give the guaranty under this Agreement) and each
other Loan Document to which it is or is to be a party, and each Loan Party has established adequate means of obtaining from each
other Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise), operations, performance, properties and prospects of such other Loan Party.


 


(u)           
Solvency. Each Specified Operating Lessee is, after capital contributions by parent companies, Solvent. Each other
Loan Party is, individually and together with its Subsidiaries, Solvent. As of the Closing Date, there are no Specified Operating
Lessees.


 


(v)           
Sarbanes-Oxley. No Loan Party has made any extension of credit to any of its directors or executive officers in contravention
of any applicable restrictions set forth in Section 402(a) of Sarbanes-Oxley.


 


(w)          
ERISA Matters. (i) Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all Plans and Welfare
Plans.


 






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(ii)             No
ERISA Event has occurred within the preceding five plan years or is reasonably expected to occur with respect to any Plan that
has resulted in or is reasonably expected to result in a material liability of any Loan Party or any ERISA Affiliate.


 


(iii)            Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan as of
the date of such Schedule B, and since the date of such Schedule B there has been no material adverse change in such funding status.


 


(iv)            Neither
any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan.


 


(v)             Neither
any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.


 


(x)            
Sanctioned Persons. None of the Loan Parties or any of their respective Subsidiaries nor, to the knowledge any Responsible
Officer of the Borrower, any director, officer, agent, employee or Affiliate of any Loan Party or any of its respective Subsidiaries
is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) or any successor to OFAC carrying out similar function or any sanctions under similar laws or requirements
administered by the United States Department of State, the United States Treasury, the United Nations Security Council, the European
Union or Her Majesty’s Treasury (collectively, “Sanctions Laws”); and the Borrower will not directly or indirectly
use the proceeds of the Loans or otherwise make available such proceeds to any person, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC or other Sanctions Laws (each such person a “Designated
Person”). Neither Borrower, any Guarantor, nor any Subsidiary, director or officer of Borrower or Guarantor or, to the knowledge
of Borrower, any Affiliate, agent or employee of Borrower or any Guarantor, has engaged in any activity or conduct which would
violate any applicable anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable jurisdiction,
including without limitation, any Sanctions Laws.


 


(y)            Anti-Corruption
Laws. The Loan Parties and their respective Subsidiaries and, to the knowledge of any Responsible Officer of the Borrower,
all directors, officers, employees, agents or Affiliates of any Loan Party or any of its respective Subsidiaries, are in
compliance in all material respects with applicable Anti-Corruption Laws, the Trading with the Enemy Act and the Patriot Act.


 


(z)          
EEAAffected
Financial Institution. Neither anyNo
Loan Party nor any of its SubsidiariesSubsidiary
of any Loan Party nor any general partner or managing member of any Loan Party, as applicable, is an EEAAffected
Financial Institution.


 






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(aa)          Beneficial
Ownership. The Borrower is in compliance in all material respects with any applicable requirements of the Beneficial Ownership
Regulation. The information included in the most recent Beneficial Ownership Certification, if any, delivered by the Borrower
is true and correct in all respects.


 


(bb)        
Perfection and Priority of Security Interests. All filings and other actions
customarily necessary to perfect and protect the security interest in the Collateral created under the Collateral Documents have
been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Administrative Agent
for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security
interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable
to perfect and protect such security interest have been duly taken; subject to the Permitted Liens and other Liens permitted under
Section 5.02(a). The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for
Permitted Liens and the liens and security interests created under the Loan Documents and permitted under Section 5.02(a).


 


ARTICLE
V

COVENANTS OF THE LOAN PARTIES


 


SECTION 5.01                 Affirmative
Covenants. So long as any Advance or any other Obligation of any Loan Party under any Loan Document shall remain unpaid, or
any Lender Party shall have any Commitment hereunder, each Loan Party will:


 


(a)           
Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970.


 


(b)           
Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the
Loan Parties nor any of their Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that
is the subject of a Good Faith Contest, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors.


 


(c)           
Compliance with Environmental Laws. Comply, and cause each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew and cause each of its Subsidiaries to obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct, and cause each of its Subsidiaries to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials from any of its
properties in material compliance with the requirements of all Environmental Laws; provided, however, that neither the Loan
Parties nor any of their Subsidiaries shall be required to undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is the subject of a Good Faith Contest.


 






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(d)          
Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas in which such Loan Party or such Subsidiaries operate.


 


(e)           
Preservation of Partnership or Corporate Existence, Etc. Preserve and maintain, and cause each of its Subsidiaries
to preserve and maintain, its existence (corporate or otherwise), legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises, except, in the case of Subsidiaries of the Borrower that are not Loan
Parties only, if in the reasonable business judgment of such Subsidiary it is in its best economic interest not to preserve and
maintain such existence, legal structure, legal name, rights, permits, licenses, approvals, privileges and franchises and such
failure is not reasonably likely to result in a Material Adverse Effect (it being understood that the foregoing shall not prohibit,
or be violated as a result of any transaction by or involving any Loan Party or Subsidiary thereof otherwise permitted under Section
5.02(d) or (e) below).


 


(f)             Visitation Rights. At any reasonable time and from time to time, permit any of the Administrative Agent or Lender
Parties, or any agent or representatives thereof, to examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, any Loan Party (but, in each case not more frequently than one time per year unless an Event of
Default shall have occurred and be continuing), and to discuss the affairs, finances and accounts of any Loan Party and any of
its Subsidiaries with any of their general partners, managing members, officers or directors and with their independent certified
public accountants.


 


(g)            Keeping
of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and business of such Loan Party and each such Subsidiary in
accordance with GAAP.


 


(h)            Maintenance
of Properties, Etc. Maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted and
will from time to time make or cause to be made all appropriate repairs, renewals and replacement thereof except where failure
to do so could not reasonably be expected to result in a Material Adverse Effect.


 


(i)              Transactions
with Affiliates. Conduct, and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under the Loan
Documents with any of their Affiliates (other than transactions exclusively among or between the Borrower and/or one or more of
the Guarantors) on terms that are fair and reasonable and no less favorable to such Loan Party or such Subsidiary than it would
obtain in a comparable arm’s-length transaction with a Person not an Affiliate, provided however, that all transactions
pursuant to any operating leases that are in the standard form of operating lease used by the Borrower’s Subsidiaries, shall
be deemed fair and reasonable.


 






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(j)            
Covenant to Guarantee Obligations. (A) Concurrently with the delivery of Unencumbered Asset Designation Package pursuant
to Section 5.01(k) with respect to a Proposed Unencumbered Asset owned or leased (including pursuant to an Operating Lease) by
a Subsidiary of a Loan Party or (B) within 10 days after the formation or acquisition of any new direct or indirect Subsidiary
of a Loan Party which Subsidiary directly owns or leases an Unencumbered Asset (including pursuant to an Operating Lease), cause
to be delivered to Administrative Agent with respect to such Subsidiary and any member, manager or general partner thereof as Administrative
Agent may request the items described in Section 3.01(a)(v)-(ix) with respect to such Persons, and cause each such Subsidiary to
duly execute and deliver to the Administrative Agent a Guaranty Supplement in substantially the form of Exhibit D hereto, or such
other guaranty supplement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the other Loan
Parties’ Obligations under the Loan Documents (collectively, the “Guarantor Deliverables”).


 


(k)           
Unencumbered Asset Pool Additions. With the Borrower’s written notice to the Administrative Agent that any
Asset (a “Proposed Unencumbered Asset”) be added as an Unencumbered Asset, deliver (or cause to be delivered)
to the Administrative Agent, at the Borrower’s expense, an Unencumbered Asset Designation Package with respect to such Proposed
Unencumbered Asset. Provided that the Proposed Unencumbered Asset satisfies the Unencumbered Asset Pool Conditions and the Borrower,
at its expense, delivers all applicable Guarantor Deliverables, the Proposed Unencumbered Asset shall be deemed added as an Unencumbered
Asset to the Unencumbered Asset Pool.


 


(l)            
Further Assurances.


 


(i)             
Promptly upon request by the Administrative Agent, or any Lender Party through the Administrative Agent, correct, and cause
each Loan Party to promptly correct, any material defect or error that may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof.


 


(ii)            
Promptly upon request by the Administrative Agent, or any Lender Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, and re-file such certificates,
assurancesdeeds, pledge
agreements, account control agreements, mortgages, deeds of trust, deeds to secure debt, assignments of leases and rents, financing
statements and continuations thereof, assurances and other instruments and take such other actions as the Administrative
Agent, or any Lender Party through the Administrative Agent, may reasonably require from time to time,
to the extent required by the Loan Documents, in order (A) to carry out more effectively the purposes of the Loan Documents,
and (B) to the fullest
extent permitted by applicable law, to subject any Loan Party’s or any of its Subsidiaries’ properties, assets, rights
or interests to the Liens intended to be covered by the Collateral Documents, (C) to perfect and maintain the validity, effectiveness
and priority of the Collateral Documents and any of the Liens to be created thereunder and (D) to assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto the LenderSecured
Parties the rights granted or now or hereafter intended to be granted to the LenderSecured
Parties under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party
or any of its Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.


 






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(m)           
Performance of Material Contracts. Perform and observe, and cause each of its Subsidiaries to perform and observe,
all the material terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material
Contract in full force and effect, enforce each such Material Contract in material accordance with its terms, take all such action
to such end as may be from time to time reasonably requested by the Administrative Agent, and, upon reasonable request of the Administrative
Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action
as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries
to do so. Notwithstanding the above, nothing in this subsection (m) shall prohibit or reduce the rights of any Loan Party or any
of their Subsidiaries to enter into, terminate, modify, amend, renew or otherwise deal with any Material Contract to the extent
the same does not cause an Unencumbered Asset to not meet the Unencumbered Asset Pool Conditions and, in the aggregate, could not
be reasonably be expected to result in a Material Adverse Effect.


 


(n)           
Compliance with Leases.


 


(i)            
Make all payments and otherwise perform all material obligations in respect of all leases of real property to which the
Borrower or any of its Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to lapse or
be terminated or any rights to renew such leases to be forfeited or cancelled (except, in the case of the Borrower and Subsidiaries
of the Borrower only, if in the reasonable business judgment of such Subsidiary it is in its best economic interest not to maintain
such lease or prevent such lapse, termination, forfeiture or cancellation and such failure to maintain such lease or prevent such
lapse, termination, forfeiture or cancellation is not in respect of a Qualifying Ground Lease or an Operating Lease of an Unencumbered
Asset and could not otherwise reasonably be expected to result in a Material Adverse Effect), notify the Administrative Agent of
any default by any party with respect to such leases and cooperate with the Administrative Agent in all respects to cure any such
default, and cause each of its Subsidiaries to do so.


 


(ii)            
With respect to any Qualifying Ground Lease related to any Unencumbered Asset:


 


(A)          pay
when due the rent and other amounts due and payable thereunder (subject to applicable cure or grace periods);


 


(B)           timely
perform and observe all of the material terms, covenants and conditions required to be performed and observed by it as tenant
thereunder (subject to applicable cure or grace periods);


 






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(C)           do
all things necessary to preserve and keep unimpaired such Qualifying Ground Lease and its rights thereunder;


 


(D)           diligently and continuously enforce the material obligations of the lessor or other obligor thereunder;


 


(E)            deliver to the Administrative Agent all default and other material notices received by it or sent by it under the applicable
Qualifying Ground Lease;


 


(F)            upon the Administrative Agent’s reasonable written request and at reasonable intervals, unless an Event of Default
shall have occurred and be continuing, in which case, upon written request at any time, provide to the Administrative Agent any
information or materials relating to such Qualifying Ground Lease and evidencing the applicable Subsidiary Guarantor’s due
observance and performance of its material obligations thereunder;


 


(G)            in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, ratify the legality,
binding effect and enforceability of the applicable Qualifying Ground Lease within the applicable time period therefor in such
proceedings, notwithstanding any rejection by such ground lessor or obligor or trustee, custodian or receiver related thereto;


 


(H)           at
reasonable times and at reasonable intervals, deliver to the Administrative Agent (or, subject to the requirements of the subject
Qualifying Ground Lease, cause the applicable lessor or other obligor to deliver to the Administrative Agent), an estoppel certificate
and consent agreement in relation to such Qualifying Ground Lease in form and substance reasonably acceptable to the Administrative
Agent, in its discretion, and, in the case of the estoppel certificate, setting forth (i) the name of lessee and lessor under
the Qualifying Ground Lease (if applicable); (ii) that such Qualifying Ground Lease is in full force and effect and has not been
modified except to the extent the Administrative Agent has received notice of such modification; (iii) that no rental and other
payments due thereunder are delinquent as of the date of such estoppel; and (iv) whether such Person knows of any actual or alleged
defaults or events of default under the applicable Qualifying Ground Lease;


 


provided,
that each Loan Party hereby agrees to execute and deliver to the Administrative Agent, within ten (10) days of any request therefor,
such documents, instruments, agreements, assignments or other conveyances reasonably requested by the Administrative Agent in connection
with or in furtherance of any of the provisions set forth above or the rights granted to the Administrative Agent in connection
therewith.


 






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(o)            [Intentionally Omitted]Qualified
Government Debt. The Loan Parties shall comply with terms of the Applicable Law in relation to the Qualified Government Debt (including
regarding the use of proceeds thereof) and, if debt forgiveness is available under Applicable Law, the Loan Parties shall not act
or fail to act in any manner that could impair the Qualified Government Debt being forgiven in accordance with Applicable Law.


 


(p)            Management Agreements. At all times cause each Unencumbered Asset to be managed and operated by an Approved Manager.


 


(q)            [Intentionally Omitted]Flood
Hazard Properties. If any Unencumbered Asset subject to a Mortgage is at any time a Flood Hazard Property, then the Borrower shall,
or shall cause each applicable Loan Party, to provide to the Administrative Agent such information as the Lenders may reasonably
request in order to comply with the Flood Laws including, without limitation, evidence of flood insurance and written acknowledgement
of receipt of notice from the Administrative Agent that such Unencumbered Asset is a Flood Hazard Property and as to whether the
community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program.


 


(r)            
Maintenance of REIT Status. In the case of the Parent Guarantor, at all times be organized in conformity with the
requirements for qualification as a REIT under the Internal Revenue Code, and at all times continue to qualify as a REIT and elect
to be treated as a REIT under all applicable laws, rules and regulations.


 


(s)            
Exchange Listing. In the case of the Parent Guarantor, at all times (i) cause its common shares to be duly listed
on the New York Stock Exchange, the NYSE MKT or NASDAQ and (ii) timely file all reports required to be filed by it in connection
therewith.


 


(t)              Sarbanes-Oxley. Comply at all times with all applicable provisions of Section 402(a) of Sarbanes-Oxley.


 


(u)             Sanctions
and Anti-Corruption Laws. Maintain in effect policies and procedures designed to promote compliance by the Loan Parties and
their respective Subsidiaries and their respective directors, officers, employees and agents with applicable Sanctions and Anti-Corruption
Laws, the Trading with the Enemy Act and the Patriot Act, and promptly upon the written request of the Administrative Agent,
furnish to the Administrative Agent and the Lenders any information that the Administrative Agent or any Lender deems reasonably
necessary from time to time in order to ensure compliance with all applicable Sanctions and Anti-Corruption Laws, the Trading
with the Enemy Act and the Patriot Act.


 


(v)           
Beneficial Ownership. Promptly following any change in beneficial ownership of the Borrower that would render any
statement in existing Beneficial Ownership Certification untrue or inaccurate, furnish to the Administrative Agent (for
further delivery by the Administrative Agent to the Lenders in accordance with its customary practice) an updated Beneficial Ownership
Certification for the Borrower.


 


(w)          
Operating Leases. Promptly (i) perform and observe all of the covenants and agreements required to be performed and
observed under the Operating Leases and do all things necessary to preserve and to keep unimpaired the Loan Parties’ rights
thereunder; (ii) notify the Administrative Agent of any default under the Operating Leases of which any Loan Party is aware; (iii)
deliver to the Administrative Agent a copy of any notice of default or other notice received by the Loan Parties under the Operating
Leases; and (iv) enforce in all respects the performance and observance of all of the covenants and agreements required to be performed
or observed by the applicable lessor under each Operating Lease.


 






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(x)            
Equal Treatment. (i) Cause the Facility to have equal support as the Existing Credit Facility and any other Unsecured
Indebtedness of any of the Loan Parties (whether as borrower, co-borrower, guarantor or otherwise). Without limiting the generality
of the foregoing, the Loan Parties shall cause any other Subsidiary or Joint Venture of any Loan Party that is a borrower or co-borrower,
guarantees, or otherwise becomes obligated in respect of any Unsecured Indebtedness of any of the Loan Parties, whether as a borrower,
co-borrower, guarantor or otherwise (including, without limitation, pursuant to the Existing Credit Agreement), to simultaneously
duly execute and deliver to Administrative Agent a Guaranty Supplement in substantially the form of Exhibit D hereto or such other
guaranty supplement in form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the Loan Parties’
Obligations under the Loan Documents. Furthermore, Borrower shall cause any such Person to satisfy all other representations, covenants
and conditions in this Agreement with respect to Guarantors. Furthermore, no Lien may be granted, suffered or incurred on any property,
assets or revenue in favor of the lenders, trustees or holders under any Unsecured Indebtedness of any of the Loan Parties (including,
without limitation, the Existing Credit Agreement) without effectively providing that all Obligations under the Loan Documents
shall be secured equally and ratably with such Unsecured Indebtedness pursuant to agreements in form and substance reasonably satisfactory
to Administrative Agent.


 


(ii)             The
Borrower may request in writing that the Administrative Agent release, and upon receipt of such request the Administrative Agent
shall promptly release, a Person which has become a Guarantor solely pursuant to this Section 5.01(x) from the Guaranty so long
as: (a) no Default or Event of Default shall then be in existence or would occur as a result of such release, (b) Administrative
Agent shall receive such written request at least five (5) Business Days prior to the requested date of such release (or such shorter
period as may be acceptable to the Administrative Agent in its sole discretion), and (c) such Person is no longer required to be
a Guarantor pursuant to the terms of Section 5.01(x)(i) or any other provision of this Agreement. Delivery by the Borrower to the
Administrative Agent of any such request for a release shall constitute a representation by the Borrower that the matters set forth
in the preceding sentence (both as of the date of such request and as of the date of the effectiveness of such request) are true
and correct with respect to such request. Notwithstanding the foregoing, the foregoing provisions shall not apply to Parent Guarantor
or any owner or lessee of an Unencumbered Asset, which may only be released as otherwise provided in this Agreement.


 


SECTION 5.02                
Negative Covenants. So long as any Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid or any Lender Party shall have any Commitment hereunder, no Loan Party will, at any time:


 


(a)            
Liens, Etc. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any Lien on or with respect to any of its assets of any character (including, without limitation, accounts)
whether now owned or hereafter acquired, or sign or file or suffer to exist, or permit any of its Subsidiaries to sign or file
or suffer to exist, under the Uniform Commercial Code of any jurisdiction, a financing statement that names such Loan Party or
any of its Subsidiaries as debtor, or sign or suffer to exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such financing statement, or assign, or permit any of its Subsidiaries
to assign, any accounts or other right to receive income, except, in the case of the Loan Parties (other than the Parent Guarantor)
and their respective Subsidiaries:


 






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(i)              Liens created under the Loan Documents;


 


(ii)             Permitted
Liens;


 


(iii)            Liens described on Schedule 4.01(o) hereto;


 


(iv)           
purchase money Liens upon or in equipment acquired or held by such Loan Party or any of its Subsidiaries in the ordinary
course of business to secure the purchase price of such equipment or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of any such equipment to be subject to such Liens, or Liens existing on any such equipment at the time
of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price),
or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, that
no such Lien shall extend to or cover any property other than the equipment being acquired, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the Lien being extended, renewed or replaced; provided further
that the aggregate principal amount of the Indebtedness secured by Liens permitted by this clause (iv) shall not exceed the amount
permitted under Section 5.02(b)(iii)(A);


 


(v)             Liens
arising in connection with Capitalized Leases permitted under Section 5.02(b)(iii)(B), provided that no such Lien shall
extend to or cover any Unencumbered Assets or assets other than the assets subject to such Capitalized Leases;


 


(vi)            Liens on property of a Person existing at the time such Person is acquired by, merged into or consolidated with any Loan
Party or any Subsidiary of any Loan Party or becomes a Subsidiary of any Loan Party, provided that such Liens were not created
in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so
merged into or consolidated with such Loan Party or such Subsidiary or so acquired by such Loan Party or such Subsidiary;


 


(vii)           Liens
securing Non-Recourse Debt permitted under Section 5.02(b)(iii)(E)
provided, however, that no such Lien shall extend to or cover any Unencumbered Asset or other Collateral (other than pursuant
to the Collateral Documents);


 


(viii)         
the replacement, extension or renewal of any Lien permitted by clause (iii) above upon or in the same property theretofore
subject thereto in connection with any Refinancing Debt permitted under Section 5.02(b)(iii)(C);


 






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(ix)             Liens
securing Permitted Recourse Debt permitted under Section 5.02(b)(vi), which Liens do not affect any direct or indirect ownership
interest in any Unencumbered Asset; and


 


(x)              Liens
securing Debt of the Borrower and its Subsidiaries not expressly permitted by clauses (i) through (viii) above, provided
that such Liens do not affect any Unencumbered Asset and the amount of Debt secured by such Liens shall not exceed $5,000,000
in the aggregate outstanding at any one time.


 


(b)             Indebtedness. Create, incur, assume or suffer to exist, or permit any of its Subsidiaries to create, incur, assume
or suffer to exist, any Indebtedness, except:


 


(i)              
Indebtedness under the Loan Documents; and
the Other Facilities; 


 


(ii)             
in the case of any Loan Party or any Subsidiary of a Loan Party, Indebtedness owed to any Loan Party or any wholly owned
Subsidiary of any Loan Party, provided that, in each case, such Indebtedness (y) shall be on terms reasonably acceptable
to the Administrative Agent and (z) shall be evidenced by promissory notes in form and substance reasonably satisfactory to the
Administrative Agent, which promissory notes shall (unless payable to the Borrower) by their terms be subordinated to the Obligations
of the Loan Parties under the Loan Documents;


 


(iii)            
in the case of each Loan Party (other than the Parent Guarantor) and its Subsidiaries,


 


(A)          
Indebtedness secured by Liens permitted by Section 5.02(a)(iv) not to exceed in the aggregate $5,000,000 at any time outstanding,


 


(B)           
(1) Capitalized Leases not to exceed in the aggregate $5,000,000 at any time outstanding, and (2) in the case of any Capitalized
Lease to which any Subsidiary of a Loan Party is a party, any Contingent Obligation of such Loan Party guaranteeing the Obligations
of such Subsidiary under such Capitalized Lease,


 


(C)          
the Existing Debt described on Schedule 4.01(n) hereto and any Refinancing Debt extending, refunding or refinancing such
Existing Debt,


 


(D)          
Indebtedness in respect of Hedge Agreements entered into by the Borrower and designed to hedge against fluctuations in interest
rates or foreign exchange rates incurred as required by this Agreement or incurred in the ordinary course of business and consistent
with prudent business practices, and


 






    	 	85	 



     


    

 


(E)          
Non-Recourse Debt (including, without limitation, the JV Pro Rata Share of Non-Recourse Debt of any Joint Venture) in respect
of Assets, the incurrence of which would not result in a Default under Section 5.04 or any other provision of this Agreement;


 


(iv)            
in the case of the Parent Guarantor and the Borrower, Indebtedness under Customary Carve-Out Agreements;


 


(v)              endorsements
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business;


 


(vi)             Permitted
Recourse Debt;


 


(vii)            in the case of the Parent Guarantor and the Borrower, any Contingent Obligations consisting of guarantees or indemnities
of payment Obligations under any Qualifying Ground Lease, any Franchise Agreements or other agreements related to franchise licenses,
management agreements or other agreements related to hotel management contracts, title insurance indemnifications or guarantees,
or under any other documents, agreements or contracts approved by the Administrative Agent;



 


(viii)         
Qualified Government Debt so long as (A) 100% of the Net Cash Proceeds thereof
is used, in the Borrower’s discretion, only (1) for Permitted Uses, (2) to repay any outstanding Revolving Credit Advances
on a pro rata basis in accordance with the Revolving Lenders’ Revolving Credit Commitments or (3) to repay both the Term
Loans and the loans under the Other Facilities on a pro rata basis in accordance with the outstanding principal amounts thereof
and (B) the Unencumbered Assets, the Equity Interests in the Initial Grantors and the Pledged Account and the funds therein do
not become subject to any Liens in connection therewith; and


 


(ix)            
(viii) any other Indebtedness not to exceed $10,000,000 in the aggregate
at any time outstanding in respect of all Loan Parties and their Subsidiaries and which is not secured by any Lien on any Unencumbered
Asset.


 


(c)             Change
in Nature of Business. Make, or permit any of its Subsidiaries to make, any material change in the nature of its business
as carried at the Closing Date (after giving effect to the transactions contemplated by the Loan Documents); or engage in, or
permit any of its Subsidiaries to engage in, any business other than ownership, development, licensing and management of Hotel
Assets in the United States consistent with the requirements of the Loan Documents, and other business activities incidental thereto.


 






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(d)             Mergers,
Etc. Merge or consolidate with or into, or convey, transfer (except as permitted by Section 5.02(e)), lease (but not including
entry into Operating Leases between Subsidiary Guarantors and TRS Lessees) or otherwise dispose of (whether in one transaction
or in a series of transactions or pursuant to a Division) all or substantially all of its assets (whether now owned or hereafter
acquired) to, any Person, or Divide, or permit any of its Subsidiaries to do so; provided, however, that (i) any Subsidiary of
a Loan Party may merge or consolidate with or into, or dispose of assets to (including pursuant to a Division), any other Subsidiary
of such Loan Party (provided that if one or more of such Subsidiaries is also a Loan Party, a Loan Party shall be the surviving
entity) or any other Loan Party other than the Parent Guarantor (provided that such Loan Party or, in the case of any Loan Party
other than the Borrower, another Loan Party shall be the surviving entity), and (ii) any Loan Party may merge with any Person
that is not a Loan Party so long as such Loan Party is the surviving entity or (except in the case of a merger with the Borrower
or the Parent Guarantor, which shall always be the surviving entity) such other Person is the surviving party and shall promptly
become a Loan Party (provided further that the Parent Guarantor shall not merge with a Person that is not a Loan Party unless
such merger is with a Person that would be in compliance with Section 5.01(r), and which is the general partner or other owner
of a Person simultaneously merging with Borrower or a Subsidiary of Borrower, and the Parent Guarantor is the surviving entity),
provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would
result therefrom and the requirements in Sections 5.01(x) and 5.02(p) shall still be complied with. Notwithstanding any other
provision of this Agreement, (y) any Subsidiary of a Loan Party (other than the Borrower and any Subsidiary that is the direct
owner of an Unencumbered Asset) may liquidate, dissolve or Divide if the Borrower determines in good faith that such liquidation,
dissolution or Division is in the best interests of the Borrower and the assets or proceeds from the liquidation, dissolution
or Division of such Subsidiary are transferred to the Borrower or a Guarantor, provided that no Default or Event of Default shall
have occurred and be continuing at the time of such proposed transaction or would result therefrom, and (z) any Loan Party or
Subsidiary of a Loan Party shall be permitted to effect any Transfer of Assets through the sale or transfer of direct or indirect
Equity Interests in the Person (other than the Borrower or the Parent Guarantor) that owns such Assets so long as Section 5.02(e)
would otherwise permit the Transfer of all Assets owned by such Person at the time of such sale or transfer of such Equity Interests.
Upon the sale or transfer of Equity Interests in any Person that is a Guarantor permitted under clause (z) above, provided that
no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Administrative Agent shall,
upon the request of the Borrower, release such Guarantor from the Guaranty.


 


(e)           
Sales, Etc. of Assets. (i) In the case of the Parent Guarantor, sell, lease, transfer or otherwise dispose of (including
pursuant to a Division), or grant any option or other right to purchase, lease or otherwise acquire any assets and (ii) in the
case of the Loan Parties (other than the Parent Guarantor), sell, lease (other than by entering into Tenancy Leases), transfer
or otherwise dispose of (including pursuant to a Division), or grant any option or other right to purchase, lease (other
than any option or other right to enter into Tenancy Leases) or otherwise acquire, or permit any of its Subsidiaries to sell, lease,
transfer or otherwise dispose of (including pursuant to a Division), or grant any option or other right to purchase, lease or otherwise
acquire (each action described in clauses (i) and (ii) of this subsection (e), including, without limitation, any Sale and Leaseback
Transaction, being a “Transfer”), any Asset or Assets (or any direct or indirect Equity Interests in the owner thereof
or any TRS Lessee), in each case other than the following
Transfers, which shall be permitted hereunder only so long as no Default or Event of Default shall exist or would result therefrom:


 






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(A)       the
Transfer of any Asset or Assets, including unimproved land, that are not Unencumbered Assets from any Loan Party to another Loan
Party (other than the Parent Guarantor) or from a Subsidiary of a Loan Party to another Subsidiary of such Loan Party or any other
Loan Party (other than the Parent Guarantor),


 


(B)       the
Transfer of any Asset or Assets that are not direct or indirect interests
in Unencumbered Assets to any Person that is not a Loan Party, provided that the Loan Parties shall be in compliance
with the covenants contained in Section 5.04 both immediately prior to and on a pro forma basis immediately after giving effect
to such Transfer, on or prior to the date of such Transfer or designation, as the case may be,


 


(C)       the
Transfer of any Unencumbered Asset or Unencumbered Assets to any Person, or the designation of an Unencumbered Asset or Unencumbered
Assets as a non-Unencumbered Asset or non-Unencumbered Assets, in each case with the intention that such Unencumbered Asset or
Unencumbered Assets, upon consummation of such Transfer or designation, shall no longer constitute an Unencumbered Asset or Unencumbered
Assets, provided that:


 


(1)       such
Transfer does not constitute a Sale and Leaseback Transaction, and immediately after giving effect to such Transfer
or designation, as the case may be, the remaining Unencumbered Assets shall continue to satisfy the requirements set forth in clauses
(a) through (k) of the definition of Unencumbered Asset Pool Conditions,


 


(2)       the
Loan Parties shall be in compliance with the covenants contained in Section 5.04 on a pro forma basis immediately after giving
effect to such Transfer or designation, and


 


(3)       on
or prior to the date of such Transfer or designation, as the case may be, the Borrower shall have delivered to the Administrative
Agent (A) a certificate signed by a Responsible Officer of the Borrower, stating that before and after giving effect to such Transfer
or designation, as the case may be, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04(b),
together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining
compliance with such covenants, and (B) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar
functions) of the Borrower demonstrating compliance with the foregoing clauses (1) through (3) and confirming that
such Transfer does not constitute a Sale and Leaseback Transaction and that no Default or Event of Default shall exist
on the date of such Transfer or will result therefrom, together with supporting information in detail reasonably satisfactory to
the Administrative Agent, or


 






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(D)       the
Transfer of (1) obsolete or worn out FF&E in the ordinary course of business or (2) inventory in the ordinary course of business,
which FF&E or inventory, as the case may be, is used or held in connection with an Unencumbered Asset.


 


Following (x) a Transfer
of a portion of or all Unencumbered Assets owned or leased
by a Subsidiary Guarantor in accordance with Section 5.02(e)(ii)(C) or (y) the designation by a Subsidiary Guarantor of a
portion of or all Unencumbered Assets owned or leased by it as non-Unencumbered Assets pursuant to Section 5.02(e)(ii)(C),
the Administrative Agent shall, upon the request of the Borrower and at the Borrower’s expense, promptly release such
Subsidiary Guarantor from the Guarantyits interest in
any mortgages, deeds of trust, deeds to secure debt, security agreement and UCC financing statements from such transferred Unencumbered
Assets or assets designated as non-Unencumbered Assets provided that the other Agents shall simultaneously release their interests
as well. Further, following a Transfer of all Unencumbered Assets owned or leased by a Subsidiary Guarantor in accordance with
Section 5.02(e)(ii)(C), the Agents shall, upon the request of the Borrower and at the Borrower’s expense, promptly (A) release
such Subsidiary Guarantor and the TRS Lessee that has leased such Unencumbered Asset from the Guaranty, Pledge Agreement and Security
Agreement, as applicable, and (B) release each Pledgor of any Equity Interests issued by such Subsidiary Guarantor and/or by such
TRS Lessee from the Pledge Agreement (but solely to the extent of its obligations thereunder with respect to such Equity Interests).


 


(f)             
Investments. Make or hold, or permit any of its Subsidiaries to make or hold, any Investment other than:


 


(i)              
Investments by the Loan Parties and their Subsidiaries in their Subsidiaries outstanding on the date hereof and additional
Investments (including pursuant to a Division) in Subsidiaries and, in the case of the Loan Parties (other than the Parent Guarantor)
and their Subsidiaries (and Joint Ventures in which such Loan Parties and Subsidiaries hold any direct or indirect interest), Investments
in Assets (including by asset or Equity Interest acquisitions, investments in Joint Ventures or Divisions), in each case subject,
where applicable, to the limitations set forth in Section 5.02(f)(iv);


 


(ii)             
Investments in Cash Equivalents;


 


(iii)            
Investments consisting of intercompany Indebtedness permitted under Section 5.02(b)(ii);


 


(iv)             Investments consisting of the following items:


 


(A)          
Investments in unimproved land, Real Property that does not constitute Hotel Assets, and Development Assets (including such
assets that such Person has contracted to purchase for development with or without options to terminate the purchase agreement),


 


(B)           
Investments in Joint Ventures of any Loan Party, and


 






    	 	89	 



     


    

 


(C)           
Loans, advances and extensions of credit (including, without limitation, mezzanine loans) to any Person;


 


(v)             
Investments outstanding on the date hereof in Subsidiaries that are not wholly-owned by any Loan Party;


 


(vi)            
Investments by the Borrower in Hedge Agreements permitted under Section 5.02(b)(iii)(D);


 


(vii)          
To the extent permitted by applicable law, loans or other extensions of credit to officers, directors and employees of any
Loan Party or any Subsidiary of any Loan Party in the ordinary course of business, for travel, entertainment, relocation and analogous
ordinary business purposes, which Investments shall not exceed at any time $1,000,000 in the aggregate for all Loan Parties;


 


(viii)         
Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit extended in the ordinary course of business in an aggregate amount for all Loan Parties not to exceed at
any time $5,000,000; and


 


(ix)            
Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss.


 


(g)           
Restricted Payments. In the case of the Parent Guarantor and the Borrower, without the prior consent of the Required
Lenders, declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests
now or hereafter outstanding, return any capital to its stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such, including, in each case, by way of a Division (collectively, “Restricted Payments”),
subject to certain redemption rights of the holders of Equity Interests in the Borrower as more particularly described in the constitutive
documents of the Borrower and certain redemption rights of the holders of certain preferred Equity Interests in the Parent Guarantor
as described in the articles supplementary that authorize the issuance of the respective classes of such preferred shares, in each
case as in effect on the date hereof; provided, however, that so long as no Default or Event of Default shall have occurred and
be continuing, the Parent Guarantor and the Borrower may make Restricted Payments without the prior consent of the Required Lenders
to holders of Equity Interests in the Parent Guarantor and the Borrower, as applicable, to the extent the same would not result
in a Default under any provision of this Agreement.


 






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(h)           
Amendments of Constitutive Documents. Amend, or permit any of its Subsidiaries to amend, in each case in any material
respect, its limited liability company agreement, partnership agreement, certificate of incorporation or bylaws or other constitutive
documents, provided that (1) any amendment to any such constitutive document that would be adverse to any of the Lender
Parties shall be deemed “material” for purposes of this Section; (2) any amendment to any such constitutive document
that would designate such Subsidiary that is not a Loan Party as a “special purpose entity” or otherwise confirm such
Subsidiary’s status as a “special purpose entity” shall be deemed “not material” for purposes of
this Section; and (3) in the case of Subsidiaries of the Borrower only, a Subsidiary may amend its constitutive documents if in
the reasonable business judgment of such Subsidiary it is in its best economic interest to do so and such amendment is not otherwise
prohibited by this Agreement and could not reasonably be expected to result in a Material Adverse Effect.


 


(i)            
Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in (i) accounting
policies or reporting practices, except as required or permitted by generally accepted accounting principles, or (ii) Fiscal Year.


 


(j)            
Speculative Transactions. Engage, or permit any of its Subsidiaries to engage, in any transaction involving commodity
options or futures contracts or any similar speculative transactions.


 


(k)           
Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter into or suffer to exist, or permit any
of its Subsidiaries to enter into or suffer to exist, any agreement or arrangement limiting the ability of any of its Subsidiaries
to declare or pay dividends or other distributions in respect of its Equity Interests or repay or prepay any Indebtedness owed
to, make loans or advances to, or otherwise transfer assets to or invest in, the Borrower or any Subsidiary of the Borrower (whether
through a covenant restricting dividends, loans, asset transfers or investments, a financial covenant or otherwise), except (i)
the Loan Documents, (ii) any agreement or instrument evidencing Non-Recourse Debt or Permitted Recourse Debt, provided that the
terms of such Indebtedness, and of such agreement or instrument, do not restrict distributions in respect of Equity Interests in
Subsidiaries directly or indirectly owning Unencumbered Assets, and (iii) any agreement in effect at the time such Subsidiary becomes
a Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation of such Person becoming a
Subsidiary of the Borrower.


 


(l)            
Amendment, Etc. of Material Contracts. Cancel or terminate any Material Contract or consent to or accept any cancellation
or termination thereof, amend or otherwise modify any Material Contract or give any consent, waiver or approval thereunder, waive
any default under or breach of any Material Contract, agree in any manner to any other amendment, modification or change of any
term or condition of any Material Contract or take any other action in connection with any Material Contract that would impair
in any material respect the value of the interest or rights of any Loan Party thereunder or that would impair or otherwise adversely
affect in any material respect the interest or rights, if any, of the Administrative Agent or any Lender Party, or permit any
of its Subsidiaries to do any of the foregoing, in each case taking into account the effect of any agreements that supplement
or serve to substitute for, in whole or in part, such Material Contract, and in the case of (i) a Material Contract not affecting
any Unencumbered Asset, in a manner that could reasonably be expected to have a Material Adverse Effect, and (ii) a Material Contract
affecting any Unencumbered Asset, in a manner that could reasonably be expected to result in a breach of the Unencumbered Asset
Pool Conditions.


 


(m)          
Negative Pledge. Enter into or suffer to exist, or permit any of its Subsidiaries (x)
that directly or indirectly own (including pursuant to a Qualifying Ground Lease) any Unencumbered Assets or lease any Unencumbered
Assets pursuant to an Operating Lease to enter into or suffer to exist, any Negative Pledge upon any of its property
or assets, (including,
without limitation, any Unencumbered Assets), except pursuant to the Loan Documents and the Other Facilities or (y) that do not
directly or indirectly own any Unencumbered Assets to enter into or suffer to exist, any Negative Pledge upon any of its property
or assets except (i) in connection with any Existing Debt, (ii) pursuant to the Loan Documents or (iii) in connection
with (A) any Non-Recourse Debt or Permitted Recourse Debt, provided that the terms of such Indebtedness, and of any agreement entered
into and of any instrument issued in connection therewith, do not provide for or prohibit or condition the creation of any Lien
on any Unencumbered Assets and are otherwise permitted by the Loan Documents (provided further that any restriction of the type
described in the proviso in the definition of “Negative Pledge” shall not be deemed to violate the foregoing restriction),
(B) any purchase money Indebtedness permitted under Section 5.02(b)(iii)(A) solely to the extent that the agreement or instrument
governing such Indebtedness prohibits a Lien on the property acquired with the proceeds of such Indebtedness, (C) any Capitalized
Lease permitted by Section 5.02(b)(iii)(B) solely to the extent that such Capitalized Lease prohibits a Lien on the property subject
thereto, or (D) any Indebtedness outstanding on the date any Subsidiary of the Borrower becomes such a Subsidiary (so long as such
agreement was not entered into solely in contemplation of such Subsidiary becoming a Subsidiary of the Borrower).


 






    	 	91	 



     


    

 


(n)           
Parent Guarantor as Holding Company. In the case of the Parent Guarantor, enter into or conduct any business, or
engage in any activity (including, without limitation, any action or transaction that is required or restricted with respect to
the Borrower and its Subsidiaries under Sections 5.01 and 5.02 without regard to any of the enumerated exceptions to such covenants),
other than (i) the holding of the Equity Interests of the Borrower; (ii) the performance of its duties as sole general partner
of the Borrower; (iii) the performance of its Obligations (subject to the limitations set forth in the Loan Documents) under each
Loan Document to which it is a party; (iv) the making of equity or subordinate debt Investments in the Borrower and its Subsidiaries,
provided each such Investment shall be on terms acceptable to the Administrative Agent; (v) sales of Equity Interests of
the Parent Guarantor not otherwise prohibited by this Agreement and (vi) activities incidental to each of the foregoing.


 


(o)          
Development Assets Cap. If the aggregate budgeted costs attributable to all Development Assets exceeds 15% of Total
Asset Value, commence the development of any Development Asset as to which development has not yet commenced.


 


(p)           
Subsidiary Guarantor Requirements. Cause or permit any Subsidiary Guarantor to (i) incur Indebtedness other than
trade payables in the ordinary course of business or otherwise permitted by Section 5.02(b); or (ii) own any Real Property other
than Unencumbered Assets, provided, however, that during any period in which Summit Hospitality
I, LLC is a Subsidiary Guarantor or an Additional Guarantor, the total outstanding Non-Recourse Debt of Summit Hospitality I, LLC
shall, until the Voya Note is repaid, (A) consist only of Indebtedness outstanding on the date hereof and (B) not at any time exceed
$25,000,000 in the aggregate.


 


(q)          
Multiemployer Plans. Neither any Loan Party nor any ERISA Affiliate will contribute to or be required to contribute
to any Multiemployer Plan.


 






    	 	92	 



     


    

 



 


(r)          
Ground Leases. With respect to any Qualifying Ground Lease related to any Unencumbered Asset:


 


(i)             
waive, excuse or discharge any of the material obligations of the lessor or other obligor thereunder;


 


(ii)            
do, permit or suffer (1) any act, event or omission which would be likely to result in a default or permit the applicable
lessor or other obligor to terminate or exercise any other remedy with respect to the applicable Qualifying Ground Lease or (2)
any act, event or omission which, with the giving of notice or the passage of time, or both, would constitute a default or permit
the lessor or such other obligor to exercise any other remedy under the applicable Qualifying Ground Lease;


 


(iii)            
cancel, terminate, surrender, modify or amend any of the provisions of any such Qualifying Ground Lease or agree to any
termination, amendment, modification or surrender thereof without the prior written consent of the Administrative Agent;


 


(iv)            
permit or consent to the subordination of such Qualifying Ground Lease to any mortgage or other leasehold interest of the
premises related thereto; or


 


(v)             
treat, in connection with the bankruptcy or other insolvency proceedings of any ground lessor or other obligor, any Qualifying
Ground Lease as terminated, cancelled or surrendered pursuant to Bankruptcy Law without the Administrative Agent’s prior
written consent.


 


(s)          
Transactions with Affiliates. Enter into any transaction with its Affiliates except (i) with respect to Assets which
are not Unencumbered Assets, transactions occurring in the ordinary course of the business of owning and operating hotels, the
Lender Parties agree that operating leases, loans, and guaranties of indebtedness are all in the ordinary course of business and
(ii) with respect to Unencumbered Assets, subject to the consent of the Administrative Agent, not to be unreasonably withheld,
transactions occurring in the ordinary course of the business of owning and operating hotels, and in each case in accordance with
Section 5.01(i).


 


(t)          
TRS Holdco and TRS Lessees. Permit TRS Holdco to enter into or conduct any business, or engage in any activity (including,
without limitation, any action or transaction that is required or restricted with respect to the Borrower and its Subsidiaries
under Sections 5.01 and 5.02 without regard to any of the enumerated exceptions to such covenants), other than (i) the holding
of the Equity Interests of the TRS Lessees; (ii) the performance of its duties as sole member of the TRS Lessees; (iii) the performance
of its Obligations (subject to the limitations set forth in the Loan Documents) under each Loan Document to which it is a party;
(iv) the making of equity or subordinate debt Investments in the TRS Lessees, provided each such Investment shall be on
terms reasonably acceptable to the Administrative Agent; and (v) activities incidental to each of the foregoing.


 






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(u)            
Sanctioned Persons. Directly or indirectly use or permit or allow any of its Subsidiaries to directly or indirectly
use the proceeds of the Loans or otherwise make available such proceeds to any person, for the purpose of financing the activities
of any Designated Person or in any manner that would cause any of such persons to violate the United States Foreign Corrupt Practices
Act. None of the funds or assets of the Loan Parties that are used to pay any amount due pursuant to this Agreement or the other
Loan Documents shall constitute funds obtained from transactions with or relating to Designated Persons or countries which are
themselves the subject of territorial sanctions under applicable Sanctions Laws.


 


(v)            
More Restrictive Agreements. Enter into or modify any agreements or documents or permit or allow any of its Subsidiaries
to enter into or modify any agreements or documents in each case pertaining to any existing or future Unsecured Indebtedness of
such Loan Party or such Subsidiaries (including, without limitation, the Existing Credit Agreement), if such agreements or documents
include covenants, whether affirmative or negative (or any other provision which may have the same practical effect as any of the
foregoing), which are individually or in the aggregate more restrictive against the Loan Parties or their respective Subsidiaries
than those set forth in Sections 5.01(o), 5.02(f)(iv), 5.02(g), 5.02(m), 5.02(o) or 5.04 (and including for the purposes hereof,
all definitions used in or relating to such sections or definitions) of this Agreement, unless the Loan Parties, the Administrative
Agent and the Required Lenders shall have simultaneously amended this Agreement to include such more restrictive provisions. Each
of the Loan Parties agrees to deliver to the Administrative Agent copies of any agreements or documents (or modifications thereof)
pertaining to existing or future Unsecured Indebtedness of the Loan Parties and their respective Subsidiaries as the Administrative
Agent from time to time may request.


 


SECTION 5.03                  
Reporting Requirements. So long as any Advance or any other Obligation of any Loan Party under any Loan Document
shall remain unpaid or any Lender Party shall have any Commitment hereunder, the Borrower will furnish to the Administrative Agent
and the Lender Parties in accordance with Section 9.02(b):


 


(a)           
Default Notice. As soon as possible and in any event within five Business Days after the occurrence of each Default
or any event, development or occurrence reasonably expected to result in a Material Adverse Effect continuing on the date of such
statement, a statement of the Chief Financial Officer (or other Responsible Officer) of the Parent Guarantor setting forth details
of such Default or such event, development or occurrence and the action that the Parent Guarantor has taken and proposes to take
with respect thereto.


 


(b)          
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year, a copy
of the annual audit report for such year for the Parent Guarantor and its Consolidated Subsidiaries, including therein Consolidated
and consolidating balance sheets of the Parent Guarantor and its Subsidiaries as of the end of such Fiscal Year and Consolidated
and consolidating statements of income and a Consolidated and consolidating statement of cash flows of the Parent Guarantor and
its Subsidiaries for such Fiscal Year (it being acknowledged that a copy of the annual audit report filed by the Parent Guarantor
with the Securities and Exchange Commission shall satisfy the foregoing requirements), in each case accompanied by (x) an unqualified
opinion acceptable to the Required Lenders of KPMG LLP, Ernst & Young LLP or other independent public accountants of recognized
standing reasonably acceptable to the Administrative Agent, and (y) a report of such independent public accountants as to the Borrower’s
internal controls required under Section 404 of the Sarbanes-Oxley Act of 2002, but only to the extent the Borrower is subject
to Section 404, in each case certified in a manner to which the Required Lenders have not objected, together with (i) a schedule
in form reasonably satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of
the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change
in GAAP used in the preparation of such financial statements, the Parent Guarantor shall also provide, if necessary for the determination
of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (ii) a certificate
of the Chief Financial Officer (or other Responsible Officer) of the Parent Guarantor stating that no Default has occurred and
is continuing or, if a Default has occurred and is continuing, a statement as to the nature thereof and the action that the Parent
Guarantor has taken and proposes to take with respect thereto.


 






    	 	94	 



     


    

 


(c)          
Quarterly Financials. As soon as available and in any event within 45 days after the end of each of the first three
quarters of each Fiscal Year, Consolidated and consolidating balance sheets of the Parent Guarantor and its Subsidiaries as of
the end of such quarter and Consolidated and consolidating statements of income and a Consolidated and consolidating statement
of cash flows of the Parent Guarantor and its Subsidiaries for the period commencing at the end of the previous fiscal quarter
and ending with the end of such fiscal quarter and Consolidated and consolidating statements of income and a Consolidated and consolidating
statement of cash flows of the Parent Guarantor and its Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding Fiscal Year, all in reasonable detail and duly certified (subject to normal year-end
audit adjustments) by the Chief Executive Officer, Chief Financial Officer or Treasurer (or other Responsible Officer performing
similar functions) of the Parent Guarantor as having been prepared in accordance with GAAP (it being acknowledged that a copy of
the quarterly financials filed by the Parent Guarantor with the Securities and Exchange Commission shall satisfy the foregoing
requirements), together with (i) a certificate of such officer stating that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature thereof and the action that the Parent Guarantor has taken
and proposes to take with respect thereto and (ii) a schedule in form reasonably satisfactory to the Administrative Agent of the
computations used by the Parent Guarantor in determining compliance with the covenants contained in Section 5.04, provided that
in the event of any change in GAAP used in the preparation of such financial statements, the Parent Guarantor shall also provide,
if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements
to GAAP.


 


(d)          
[Intentionally Omitted].


 


(e)          
Unencumbered Asset Financials. As soon as available and in any event within 45 days after the end of each quarter,
financial information in respect of all Unencumbered Assets, in form and detail reasonably satisfactory to the Administrative Agent.


 


(f)          
Annual Budgets. As soon as available and in any event within than 45 days after the end of each Fiscal Year, forecasts
prepared by management of the Parent Guarantor, in form reasonably satisfactory to the Administrative Agent, of balance sheets,
income statements and cash flow statements on a quarterly basis for the then current Fiscal Year and on an annual basis for each
Fiscal Year thereafter until the Termination Date.


 






    	 	95	 



     


    

 


(g)          
Material Litigation. Promptly after the commencement thereof, notice of all actions, suits, investigations, litigation
and proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting any Loan Party or any of its Subsidiaries of the type described in Section 4.01(f), and promptly after the occurrence
thereof, notice of any material adverse change in the status or the financial effect on any Loan Party or any of its Subsidiaries
of the Material Litigation from that described on Schedule 4.01(f) hereto.


 


(h)          
[Intentionally Omitted].


 


(i)           
Real Property. As soon as available and in any event within 45 days after the end of each fiscal quarter of each
Fiscal Year, a report supplementing Schedule 4.01(p) hereto, including an identification of all owned and leased real property
acquired or disposed of by any Loan Party or any of its Subsidiaries during such fiscal quarter and a description of such other
changes in the information included in Section 4.01(p) as may be necessary for such Schedule to be accurate and complete.


 


(j)           
[Intentionally Omitted].


 


(k)          
Environmental Conditions. Notice to the Administrative Agent (i) promptly upon obtaining knowledge of any material
violation of any Environmental Law affecting any Asset or the operations thereof or the operations of any of its Subsidiaries,
(ii) promptly upon obtaining knowledge of any known release, discharge or disposal of any Hazardous Materials at, from, or into
any Asset which it reports in writing or is legally required to report in writing to any Governmental Authority and which is material
in amount or nature or which could reasonably be expected to materially adversely affect the value of such Asset, (iii) promptly
upon its receipt of any written notice of material violation of any Environmental Laws or of any material release, discharge or
disposal of Hazardous Materials in violation of any Environmental Laws or any matter that could reasonably be expected to result
in an Environmental Action, including a notice or claim of liability or potential responsibility from any third party (including
without limitation any federal, state or local governmental officials) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) such Loan Party’s or any other Person’s operation of any Asset
in compliance with Environmental Laws, (B) Hazardous Materials contamination on, from or into any Asset, or (C) investigation or
remediation of off-site locations at which such Loan Party or any of its predecessors are alleged to have directly or indirectly
disposed of Hazardous Materials, or (iv) upon such Loan Party’s obtaining knowledge that any expense or loss has been incurred
by such Governmental Authority in connection with the assessment, containment, removal or remediation of any Hazardous Materials
with respect to which such Loan Party or any Joint Venture could reasonably be expected to incur material liability or for which
a Lien may be imposed on any Asset, provided that notice is required only for any of the events described in clauses (i) through
(iv) above that could reasonably be expected to result in a Material Adverse Effect, could reasonably be expected to result in
a material Environmental Action with respect to any Unencumbered Asset or could reasonably be expected to result in a Lien against
any Unencumbered Asset.


 






    	 	96	 



     


    

 


(l)            
Unencumbered Asset Value. Promptly after discovery of any setoff, claim, withholding or defense asserted or effected
against any Loan Party, or to which any Unencumbered Asset is subject, which could reasonably be expected to (i) have a material
adverse effect on the value of an Unencumbered Asset, (ii) have a Material Adverse Effect or (iii) result in the imposition or
assertion of a Lien against any Unencumbered Asset which is not a Permitted Lien, notice to the Administrative Agent thereof.


 


(m)          
Compliance with Unencumbered Asset Conditions. Promptly after obtaining actual knowledge of any condition or event
which causes any Unencumbered Asset to fail to satisfy any of the Unencumbered Asset Pool Conditions (other than those Unencumbered
Asset Pool Conditions, if any, that have theretofore been waived by the Administrative Agent and the Required Lenders with respect
to any particular Unencumbered Asset, to the extent of such waiver), notice to the Administrative Agent thereof.


 


(n)            
[Intentionally Omitted].


 


(o)            
Reconciliation Statements. If, as a result of any change in accounting principles and policies from those used in
the preparation of the audited financial statements referred to in Section 4.01(g) and forecasts referred to in Section 4.01(h),
the Consolidated and consolidating financial statements and forecasts of the Parent Guarantor and its Subsidiaries delivered pursuant
to Section 5.03(b), (c) or (f) will differ in any material respect from the Consolidated and consolidating financial statements
that would have been delivered pursuant to such Section had no such change in accounting principles and policies been made, then
(i) together with the first delivery of financial statements or forecasts pursuant to Section 5.03(b), (c) or (f) following such
change, Consolidated and consolidating financial statements and forecasts of the Parent Guarantor and its Subsidiaries for the
fiscal quarter immediately preceding the fiscal quarter in which such change is made, prepared on a pro forma basis as if
such change had been in effect during such fiscal quarter, and (ii) if requested by Administrative Agent, a written statement of
the Chief Executive Officer, Chief Financial Officer or Treasurer (or other Responsible Officer performing similar functions) of
the Parent Guarantor setting forth the differences (including any differences that would affect any calculations relating to the
financial covenants set forth in Section 5.04) which would have resulted if such financial statements and forecasts had been prepared
without giving effect to such change.


 


(p)            
[Intentionally Omitted.]


 


(q)           
 Other Information. Promptly, such other information respecting, and which is reasonably foreseeable to be material
to, the business, condition (financial or otherwise), operations, performance, properties or prospects of any Loan Party or any
of its Subsidiaries as the Administrative Agent, or any Lender Party through the Administrative Agent, may from time to time reasonably
request.


 


SECTION 5.04                     
Financial Covenants. So long as any Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid or any Lender Party shall have, at any time after the Initial Extension of Credit, any Commitment hereunder, the
Parent Guarantor will:


 






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(a)          
Parent Guarantor Financial Covenants.


 


(i)          
Maximum Leverage Ratio. Maintain


 


(A)            
Other than as set forth in subsection (B) below, maintain
as of each Test Date a Leverage Ratio of not greater than 6.50:1.00; provided, however, that on and after the date of any
Leverage Ratio Increase Election, the Parent Guarantor shall maintain as of each Test Date occurring during the period ending not
later than the last day of the third (3rd) consecutive fiscal quarter ending after the date of such Leverage Ratio Increase Election,
a Leverage Ratio of not greater than 7.00:1.00; provided further that (A) such Leverage Ratio Increase Elections may only occur
(1) prior to the Termination Date and (2) not more than two times during the term of the Facility, and (B) such Leverage Ratio
Increase Elections may not be consecutive.


 


(B)             
Maintain as of each Test Date (1) from the first day following the Amendment
Period through March 31, 2022, a Leverage Ratio of not greater than 7.25:1.00, (2) for the second quarter of calendar year 2022
ending June 30, 2022, a Leverage Ratio of not greater than 7.25:1.00, (3) for the third quarter of the calendar year 2022 ending
September 30, 2022, a Leverage Ratio of not greater than 7.00:1.00 and (4) for the fourth quarter of calendar year 2022 ending
December 31, 2022, a Leverage Ratio of not greater than 6.75:1.00.


 


(ii)         
Minimum Consolidated Tangible Net Worth. Maintain at all times a Consolidated Tangible Net Worth of not less than
the sum of (aA)
$1,149,979,129.00 plus (bB)
an amount equal to 75% of the net cash proceeds of all issuances or sales of Equity Interests of the Parent Guarantor or any of
its Subsidiaries consummated after September 30, 2018.


 


(iii)        
Maximum Dividend Payout Ratio. [Intentionally Omitted.]Minimum
Liquidity. Maintain not less than an aggregate of $75,000,000 in (A) Unrestricted Cash and Cash Equivalents of the Parent Guarantor,
the Borrower and their Subsidiaries and (B) available Revolving Credit Commitments; provided, however, that such required minimum
liquidity shall be reduced to $50,000,000 at such time as the Mortgage Requirements are satisfied. . For the avoidance of doubt,
during the Amendment Period the amount of available Revolving Credit Commitments referred to in the immediately preceding clause
(B) will be determined under Section 4 of the Third Amendment. 


 


(iv)        
Minimum Consolidated Fixed Charge Coverage Ratio. Maintain as of each Test Date a Consolidated Fixed Charge Coverage
Ratio of not less than 1.50:1.00.


 


(v)         
Maximum Secured Leverage Ratio. Maintain as of each Test Date a ratio of Secured Indebtedness to Total Asset Value
equal to not more than 45%.


 






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(vi)         
Maximum Secured Recourse Leverage Ratio. Maintain as of each Test Date a ratio of Secured Recourse Indebtedness to
Total Asset Value equal to not more than 10%.


 


(b)         
Unencumbered Asset Pool Financial Covenants.


 


(i)           
Maximum Unsecured Leverage Ratio. Maintain at all times an Unsecured Leverage Ratio equal to or less than 60%; provided,
however, that on and after the date of any Unsecured Leverage Ratio Increase Election, the Parent Guarantor shall maintain
as of each Test Date occurring during the period ending not later than the last day of the third (3rd) consecutive fiscal
quarter ending after the date of such Unsecured Leverage Ratio Increase Election, an Unsecured Leverage Ratio equal to or less
than 65%; provided further that (A) such Unsecured Leverage Ratio Increase Elections may only occur (1) prior to the Termination
Date and (2) not more than two times during the term of the Facility, and (B) such Unsecured Leverage Ratio Increase Elections
may not be consecutive.


 


(ii)           Minimum
Unsecured Interest Coverage Ratio. Maintain as of each Test Date a ratio of Unencumbered Adjusted NOI to Assumed Unsecured
Interest Expense equal to or greater than 2.00x.


 


(iii)          Minimum
Unencumbered Properties. Maintain at all times at least twenty (20) Unencumbered Assets in the Unencumbered Asset Pool.


 


To the extent any calculations
described in Sections 5.04(a) or 5.04(b) are required to be made on any date of determination other than the last day of a fiscal
quarter of the Parent Guarantor, such calculations shall be made on a pro forma basis to account for any acquisitions or
dispositions of Assets (including in respect of revenues generated by such acquired or disposed of Assets), and the incurrence
or repayment of any Debt for Borrowed Money relating to such Assets, that have occurred since the last day of the fiscal quarter
of the Parent Guarantor most recently ended. To the extent any calculations described in Sections 5.04(a) or 5.04(b) are required
to be made on a Test Date relating to an Advance, a merger permitted under Section 5.02(d), or a Transfer permitted under Section
5.02(e)(ii)(C), such calculations shall be made on a pro forma basis after giving effect to such Advance, merger, Transfer
or such other event, as applicable. Qualified Government Debt shall
be excluded from Debt for Borrowed Money for purposes of the calculations made under this Section 5.04 unless and to the extent
such Qualified Governmental Debt is not forgiven within 180 days after the issuance thereof. All such calculations shall
be reasonably acceptable to the Administrative Agent.


 


ARTICLE
VI

EVENTS OF DEFAULT


 


SECTION 6.01                     
Events of Default. If any of the following events (“Events of Default”) shall occur and
be continuing:


 


(a)         
Failure to Make Payments When Due. (i) The Borrower shall fail to pay any principal of any Advance when the same
shall become due and payable, (ii) the Borrower shall fail to pay any interest on any Advance within three Business Days after
the same becomes due and payable or (iii) any Loan Party shall fail to make any other payment under any Loan Document within five
Business Days after the same becomes due and payable.


 






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(b)         
Breach of Representations and Warranties. Any representation or warranty made by any Loan Party (or any of its officers
or the officers of its general partner or managing member, as applicable) under or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made or deemed repeated; or


 


(c)         
Breach of Certain Covenants. (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained
in Section 2.14, 5.01(d), (e), (f), (i), (j), (n) (to the extent such failure would permit the lessor under the applicable Qualifying
Ground Lease or Operating Lease to terminate such lease), (r), (s), (t), (u), (v) or (x), 5.02, 5.03(a), (g), (k), (l), (m), (n),
or 5.04, or (ii) the Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.03(b), (c),
(e), (f), (i), or (o) if such failure described in this clause (ii) shall remain unremedied for 15 days after the earlier of the
date on which (A) a Responsible Officer becomes aware of such failure or (B) written notice thereof shall have been given to the
Borrower by Administrative Agent or any Lender Party; or


 


(d)        
Other Defaults under Loan Documents. Any Loan Party shall fail to perform or observe any other term, covenant or
agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30
days after the earlier of the date on which (i) a Responsible Officer becomes aware of such failure or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent or any Lender Party; or


 


(e)         
Cross Defaults. (i) Any Loan Party or any Subsidiary thereof shall fail to pay any principal of, premium or interest
on or any other amount payable in respect of any Material Debt when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); or (ii) any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Material Debt, if (A) the effect of such event or condition is to permit the acceleration
of the maturity of such Material Debt or otherwise permit the holders thereof to cause such Material Debt to mature, and (B) only
with respect to Material Debt described in clause (a) or (b) of the definition thereof, such event or condition shall remain unremedied
or otherwise uncured for a period of 30 days; or (iii) the maturity of any such Material Debt shall be accelerated or any such
Material Debt shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Material Debt
shall be required to be made, in each case prior to the stated maturity thereof; or (iv) without limiting the foregoing, the occurrence
of any “Event of Default” (as defined in any Existing Credit Agreement) under any Existing Credit Agreement; or


 


(f)         
Insolvency Events. Any Loan Party or any Subsidiary thereof shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan Party or any Subsidiary thereof seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or any
Loan Party or any Subsidiary thereof shall take any corporate action to authorize any of the actions set forth above in this subsection
(f); provided, however, that, if any of the events or circumstances described in this subsection (f) occur or exist with
respect to a Subsidiary of the Borrower that is not a Loan Party (a “Debtor Subsidiary”), such event(s)
or circumstance(s) shall not constitute a Default or an Event of Default so long as (i) such Debtor Subsidiary has no other Debt
other than Non-Recourse Debt, (ii) such event(s) or circumstance(s) have not resulted in, and will not result in, any material
liability, either individually or in the aggregate, to the Parent, the Borrower or any of their Subsidiaries (exclusive of the
Debtor Subsidiary), and (iii) the total assets of such Debtor Subsidiary do not exceed $10,000,000 as of the date such event(s)
occur or such circumstance(s) first exist; and (iv) no court of competent jurisdiction has issued an order substantively consolidating
the assets and liabilities of such Debtor Subsidiary with those of any other Person; or


 






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(g)          
Monetary Judgments. Any judgments or orders, either individually or in the aggregate, for the payment of money in
excess of $10,000,000 shall be rendered against any Loan Party or any Subsidiary thereof and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
provided, however, that any such judgment or order shall not give rise to an Event of Default under this Section 6.01(g)
if and so long as (A) the amount of such judgment or order which remains unsatisfied is covered by a valid and binding policy of
insurance between the respective Loan Party or Subsidiary and the insurer covering full payment of such unsatisfied amount and
(B) such insurer, which shall be rated at least “A” by A.M. Best Company, has been notified, and has not disputed the
claim made for payment, of the amount of such judgment or order; or


 


(h)          
Non-Monetary Judgments. Any non-monetary judgment or order shall be rendered against any Loan Party or Subsidiary
thereof that could reasonably be expected to result in a Material Adverse Effect, and there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or


 


(i)           
Unenforceability of Loan Documents. Any material provision of any Loan Document after delivery thereof pursuant to
Section 3.01, 5.01(j) or 5.01(x) shall for any reason (other than pursuant to the terms thereof) cease to be valid and binding
on or enforceable against any Loan Party which is party to it, or any such Loan Party shall so state in writing; or


 


(j)           
[Intentionally Omitted].


 


(k)          
Change of Control. A Change of Control shall occur; or


 






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(l)           
ERISA Events. Any ERISA Event shall have occurred with respect to a Plan and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect
to which an ERISA Event shall have occurred and then exist (or the liability of the Loan Parties and the ERISA Affiliates related
to such ERISA Event) exceeds $10,000,000; or


 


(m)         
Security Failure. Ten (10) Business Days after the earlier of (i) a Loan Party
obtaining actual knowledge that, or (ii) receipt of written notice by the Administrative Agent that, any Collateral Document or
financing statement required by this Agreement, as amended, shall for any reason (other than pursuant to the terms thereof) cease
to create a valid and perfected first priority lien on and security interest in the Collateral purported to be covered thereby,
which failure is not corrected within such ten (10) Business Day period;


 


then, and in any such event, the Administrative
Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Commitments
of each Lender Party and the obligation of each Lender Party to make Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare
the Advances, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith
due and payable, whereupon the Advances, all such interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief with respect to any Loan Party under any Bankruptcy
Law, (y) the Commitments of each Lender Party and the obligation of each Lender Party to make Advances shall automatically be terminated
and (z) the Advances, all such interest and all such amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly waived by the Loan Parties. Each
Lender acknowledges that the ability of the Administrative Agent to take any such action requested by or consented to by the Required
Lenders in respect of the Collateral will be subject to the terms and provisions of the Intercreditor Agreement. 


 


SECTION 6.02                     
[Intentionally Omitted].


 


ARTICLE
VII

GUARANTY


 


SECTION 7.01                     
Guaranty; Limitation of Liability.


 


(a)         
Each Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably guarantees the punctual payment
when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all
Obligations of each other Loan Party now or hereafter existing under or in respect of the Loan Documents (including, without limitation,
any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct
or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action,
costs, expenses or otherwise, in each case exclusive of all Excluded Swap Obligations (such guaranteed Obligations being the “Guaranteed
Obligations”), and agrees to pay any and all expenses (including, without limitation, fees and expenses of counsel)
incurred by the Administrative Agent or any other Lender Party in enforcing any rights under this Agreement or any other Loan Document.
Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be owed by any other Loan Party to any Lender Party under or in respect of the Loan
Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such other Loan Party. This Guaranty is and constitutes a guaranty of payment and not merely of collection.
Notwithstanding anything to the contrary herein, the Lender Parties shall immediately release the guaranty of any Guarantor at
such time as the Guarantor has completed Transfers and/or designations in compliance with Section 5.02(e) such that the Guarantor
does not own, directly or indirectly any one or more Unencumbered Assets.


 






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(b)         
Each Guarantor, the Administrative Agent and each other Lender Party and, by its acceptance of the benefits of this Guaranty,
each other Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Voidable Transactions Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state
law to the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention,
the Guarantors, the Administrative Agent, the other Lender Parties and, by their acceptance of the benefits of this Guaranty, the
other Lender Parties hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer
or conveyance.


 


(c)          
Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made
to any Lender Party under this Guaranty or any other guaranty, such Guarantor will contribute, to the maximum extent permitted
by law, such amounts to each other Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Lender
Parties under or in respect of the Loan Documents.


 


SECTION 7.02                     
Guaranty Absolute. Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of this Agreement and the other Loan Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Administrative Agent or any other Lender Party with respect
thereto. The Obligations of each Guarantor under or in respect of this Guaranty are independent of the Guaranteed Obligations or
any other Obligations of any other Loan Party under or in respect of this Agreement or the other Loan Documents, and a separate
action or actions may be brought and prosecuted against each Guarantor to enforce this Guaranty, irrespective of whether any action
is brought against the Borrower or any other Loan Party or whether the Borrower or any other Loan Party is joined in any such action
or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of,
and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all
of the following:


 






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(a)         
any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;


 


(b)         
any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under or in respect of the Loan Documents, or any other amendment or waiver of
or any consent to departure from any Loan Document, including, without limitation, any increase in the Guaranteed Obligations resulting
from the extension of additional credit to the Borrower, any other Loan Party or any of their Subsidiaries or otherwise;


 


(c)         
any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the Guaranteed Obligations;


 


(d)         
any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner
of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other Obligations of any Loan
Party under the Loan Documents or any other assets of any Loan Party or any of its Subsidiaries;


 


(e)         
any change, restructuring or termination of the corporate structure or existence of any Loan Party or any of its Subsidiaries;


 


(f)         
any failure of the Administrative Agent or any other Lender Party to disclose to any Loan Party any information relating
to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Loan Party now
or hereafter known to the Administrative Agent or such other Lender Party (each Guarantor waiving any duty on the part of the Administrative
Agent and each other Lender Party to disclose such information);


 


(g)         
the failure of any other Person to execute or deliver this Agreement, any other Loan Document, any Guaranty Supplement or
any other guaranty or agreement or the release or reduction of liability of any Guarantor or other guarantor or surety with respect
to the Guaranteed Obligations; or


 


(h)         
any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any other Lender Party that might otherwise constitute a defense available to, or
a discharge of, any Loan Party or any other guarantor or surety.


 


This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations is rescinded or must otherwise
be returned by any Lender Party or any other Person upon the insolvency, bankruptcy or reorganization of the Borrower or any other
Loan Party or otherwise, all as though such payment had not been made.


 


SECTION 7.03                     
Waivers and Acknowledgments.


 


(a)         
Each Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand
for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any
of the Guaranteed Obligations and this Guaranty and any requirement that the Administrative Agent or any other LenderSecured
Party protect, secure, perfect or insure any Lien or any property subject thereto or exhaust any right or take any action against
any Loan Party or any other Person or any collateral.


 






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(b)         
Each Guarantor hereby unconditionally and irrevocably waives any right (including
without limitation any such right arising under California Civil Code Section 2815) to revoke this Guaranty and acknowledges
that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.


 


(c)         
Each Guarantor hereby unconditionally and irrevocably waives (i) any and
all rights and defenses available to it by reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California Civil Code,
including without limitation any and all rights or defenses such Guarantor may have by reason of protection afforded to the principal
with respect to any of the Guaranteed Obligations, or to any other guarantor of any of the Guaranteed Obligations with respect
to any of such guarantor's obligations under its guaranty, in either case pursuant to the antideficiency or other laws of the State
of California limiting or discharging the principal's indebtedness or such guarantor's obligations, including without limitation
Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure, (ii) any defense arising by reason of any
claim or defense based upon an election of remedies by the Administrative Agent or any other LenderSecured
Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any of the other
Loan Parties, any other guarantor or any other Person or any collateral and (iiiii)
any defense based on any right of set-off or counterclaim against or in respect of the Obligations of such Guarantor hereunder.
As provided below, this Guaranty shall be governed by, and shall be
construed and enforced in accordance with, the laws of the State of New York. This Section 7.03(c) is included solely out of an
abundance of caution, and shall not be construed to mean that any of the above referenced provisions of California law are in any
way applicable to this Guaranty or to any of the Guaranteed Obligations.


 


(d)         
[Intentionally Omitted.]Each
Guarantor acknowledges that the Administrative Agent may, without notice to or demand upon such Guarantor (except as required by
applicable law) and without affecting the liability of such Guarantor under this Guaranty, foreclose under any Mortgage by nonjudicial
sale, and each Guarantor hereby waives any defense to the recovery by the Administrative Agent and the other Secured Parties against
such Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable law.


 


(e)         
Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Administrative Agent or any other
Lender Party to disclose to such Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower, any other Loan Party or any of their Subsidiaries now or hereafter
known by the Administrative Agent or such other Lender Party.


 


(f)         
Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements
contemplated by this Agreement and the other Loan Documents and that the waivers set forth in Section 7.02 and this Section 7.03
are knowingly made in contemplation of such benefits.


 






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SECTION 7.04                     
Subrogation. Each Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may
now have or hereafter acquire against the Borrower, any other Loan Party that arise from the existence, payment, performance or
enforcement of such Guarantor’s Obligations under or in respect of this Guaranty, this Agreement or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right
to participate in any claim or remedy of any Lender Party against the Borrower, any other Loan Party or any other insider guarantor
or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other Loan Party, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash, all Guaranteed
Hedge Agreements shall have expired or been terminated and the Commitments shall have expired or been terminated. If any amount
shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the payment
in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the termination in whole of
the Commitments and (c) the latest date of expiration or termination of all Guaranteed Hedge Agreements, such amount shall be received
and held in trust for the benefit of the Lender Parties, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement
or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether
matured or unmatured, in accordance with the terms of the Loan Documents. If (i) any Guarantor shall make payment to any Lender
Party of all or any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other amounts payable under
this Guaranty shall have been paid in full in cash, (iii) the termination in whole of the Commitments shall have occurred and (iv)
all Guaranteed Hedge Agreements shall have expired or been terminated, the Administrative Agent and the other Lender Parties will,
at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment made by such Guarantor pursuant to this Guaranty.


 


SECTION 7.05                     
Guaranty Supplements. Upon the execution and delivery by any Person of a Guaranty Supplement, (i) such Person shall
be referred to as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference
in this Agreement to a “Guarantor” or a “Loan Party” shall also mean and be a reference to such Additional
Guarantor, and each reference in any other Loan Document to a “Guarantor” shall also mean and be a reference to such
Additional Guarantor, and (ii) each reference herein to “this Agreement”, “this Guaranty”, “hereunder”,
“hereof” or words of like import referring to this Agreement and this Guaranty, and each reference in any other Loan
Document to the “Loan Agreement”, “Guaranty”, “thereunder”, “thereof” or words
of like import referring to this Agreement and this Guaranty, shall mean and be a reference to this Agreement and this Guaranty
as supplemented by such Guaranty Supplement.


 






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SECTION 7.06                     
Indemnification by Guarantors.


 


(a)          
Without limitation on any other Obligations of any Guarantor or remedies of the Administrative Agent or the Lender Parties
under this Agreement, this Guaranty or the other Loan Documents, each Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless the Administrative Agent, the Joint Lead Arrangers, each other Lender Party and each
of their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “Indemnified
Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and
binding obligations of any Loan Party enforceable against such Loan Party in accordance with their terms.


 


(b)          
Each Guarantor hereby also agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract,
tort or otherwise) to any of the Guarantors or any of their respective Affiliates or any of their respective officers, directors,
employees, agents and advisors, and each Guarantor hereby agrees not to assert any claim against any Indemnified Party on any theory
of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Facility, the
actual or proposed use of the proceeds of the Advances, the Loan Documents or any of the transactions contemplated by the Loan
Documents.


 


SECTION 7.07                   
Subordination. Each Guarantor hereby subordinates any and all debts, liabilities and other Obligations owed to such
Guarantor by each other Loan Party (the “Subordinated Obligations”) to the Guaranteed Obligations to
the extent and in the manner hereinafter set forth in this Section 7.07.


 


(a)         
Prohibited Payments, Etc. Except during the continuance of a Default (including the commencement and continuation
of any proceeding under any Bankruptcy Law relating to any other Loan Party), each Guarantor may receive regularly scheduled payments
or payments made in the ordinary course of business from any other Loan Party on account of the Subordinated Obligations. After
the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any
Bankruptcy Law relating to any other Loan Party), however, unless required pursuant to Section 7.07(d), no Guarantor shall demand,
accept or take any action to collect any payment on account of the Subordinated Obligations.


 


(b)         
Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to any other Loan Party,
each Guarantor agrees that the Lender Parties shall be entitled to receive payment in full in cash of all Guaranteed Obligations
(including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting
an allowed claim in such proceeding (“Post Petition Interest”)) before such Guarantor receives payment
of any Subordinated Obligations.


 


(c)         
Turn-Over. After the occurrence and during the continuance of any Default (including the commencement and continuation
of any proceeding under any Bankruptcy Law relating to any other Loan Party), each Guarantor shall, if the Administrative Agent
so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Lender Parties
and deliver such payments to the Administrative Agent on account of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the
liability of such Guarantor under the other provisions of this Guaranty.


 






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(d)         
Administrative Agent Authorization. After the occurrence and during the continuance of any Default (including the
commencement and continuation of any proceeding under any Bankruptcy Law relating to any other Loan Party), the Administrative
Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each Guarantor,
to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon
to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to require each Guarantor (A) to collect
and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations
to the Administrative Agent for application to the Guaranteed Obligations (including any and all Post Petition Interest).


 


SECTION 7.08                    
Continuing Guaranty. This Guaranty is a continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the termination in whole of the Commitments and (iii) the latest date of expiration or termination of all Guaranteed Hedge Agreements,
(b) be binding upon the Guarantors, their successors and assigns and (c) inure to the benefit of and be enforceable by the Administrative
Agent and the other Lender Parties and their successors, transferees and assigns.


 


SECTION 7.09                    
Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes
to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its Guaranteed
Obligations in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under
this Section 7.09 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under
this Section 7.09, or otherwise in respect of the Guaranteed Obligations, as it relates to such other Loan Party, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each
Qualified ECP Guarantor under this Section shall remain in full force and effect until a discharge of the Guaranteed Obligations.
Each Qualified ECP Guarantor intends that this Section 7.09 constitute, and this Section 7.09 shall be deemed to constitute, a
“keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II)
of the Commodity Exchange Act.


 


ARTICLE
VIII

THE AGENTS


 


SECTION 8.01                     
Authorization and Action. Each Lender Party (in its capacity as a Lender and on behalf of itself and its Affiliates
as potential Hedge Banks) hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any
matters not expressly provided for by the Loan Documents (including, without limitation, enforcement or collection of the Notes),
the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lender Parties and all holders of Notes; provided, however, that
the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or
that is contrary to this Agreement or applicable law, including without limitation, for the avoidance of doubt, any action that
may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination
of property of a Defaulting Lender in violation of any Debtor Relief Law. The Administrative Agent agrees to give to each Lender
Party prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement. Notwithstanding anything
to the contrary in any Loan Document, no Person identified as a joint-syndication agent, documentation agent, senior manager, joint-lead
arranger or book-running manager, in such Person’s capacity as such, shall have any obligations or duties to any Loan Party,
the Administrative Agent or any other Lender Party under any of such Loan Documents. In its capacity as the Lender Parties’
contractual representative, the Administrative Agent is a “representative” of the Lender Parties as used within the
meaning of “Secured Party” under Section 9-102 of the Uniform Commercial Code.


 






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SECTION 8.02                     
Agents’ Reliance, Etc. Neither the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents, except
for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative
Agent: (a) may treat the payee of any Note as the holder thereof until the Administrative Agent receives and accepts an Accession
Agreement entered into by an Acceding Lender as provided in Section 2.17 or an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07; (b) may consult
with legal counsel (including counsel for any 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 Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or oral) made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants
or conditions of any Loan Document on the part of any Loan Party or the existence at any time of any Default under the Loan Documents
or to inspect the property (including the books and records) of any Loan Party; (e) shall not be responsible to any Lender Party
for the due execution, legality, validity, enforceability, genuineness, existence,
sufficiency or value of, or the creation, perfection
or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document
or any other instrument or document furnished pursuant thereto; and (f) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or
telex or other electronic communication) believed by it to be genuine and signed or sent by the proper party or parties.


 


SECTION 8.03                     
KeyBank and Affiliates. With respect to its Commitments, the Advances made by it and the Notes issued to it, KeyBank
shall have the same rights and powers under the Loan Documents as any other Lender Party and may exercise the same as though it
were not an Agent; and the term “Lender Party” or “Lender Parties” shall, unless otherwise expressly indicated,
include KeyBank in its individual capacity. KeyBank and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, accept investment banking engagements from and generally engage in any kind of business with, any Loan Party,
any Subsidiary of any Loan Party and any Person that may do business with or own securities of any Loan Party or any such Subsidiary,
all as if KeyBank were not the Administrative Agent and without any duty to account therefor to the Lender Parties.


 






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SECTION 8.04                     
Lender Party Credit Decision. Each Lender Party acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender Party and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other
Lender Party 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 this Agreement. Nothing in this Agreement or any other Loan Document shall require
the Administrative Agent or any of its respective directors, officers, agents or employees to carry out any “know your customer”
or other checks in relation to any Person on behalf of any Lender Party and each Lender Party confirms to the Administrative Agent
that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation
to such checks made by the Administrative Agent or any of its respective directors, officers, agents or employees.


 


SECTION 8.05                     
Indemnification by Lender Parties.


 


(a)          
Each Lender Party severally agrees to indemnify the Administrative Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party’s ratable share (determined as provided below) of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may
be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by the Administrative Agent under the Loan Documents (collectively, the “Indemnified
Costs”); provided, however, that no Lender Party shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s
gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse the Administrative Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that the Administrative Agent is not promptly reimbursed for such costs and expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any
such investigation, litigation or proceeding is brought by any Lender Party or any other Person.


 






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(b)              
[Intentionally Omitted.]


 


(c)              
For purposes of this Section 8.05, the Lender Parties’ respective ratable shares of any amount shall be determined,
at any time, according to their respective Commitments at such time. The failure of any Lender Party to reimburse the Administrative
Agent promptly upon demand for its ratable share of any amount required to be paid by the Lender Parties to the Administrative
Agent as provided herein shall not relieve any other Lender Party of its obligation hereunder to reimburse the Administrative Agent
for its ratable share of such amount, but no Lender Party shall be responsible for the failure of any other Lender Party to reimburse
the Administrative Agent for such other Lender Party’s ratable share of such amount. Without prejudice to the survival of
any other agreement of any Lender Party hereunder, the agreement and obligations of each Lender Party contained in this Section
8.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the other Loan
Documents.


 


SECTION 8.06                      Successor
Agent. The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lender
Parties and the Borrower. Upon any such resignation, the Required Lenders shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf of the Lender Parties,
appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof
and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as an Agent hereunder
by a successor Agent, such successor Agent shall succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents.
If within 45 days after written notice is given of the retiring Agent’s resignation under this Section 8.06 no successor
Agent shall have been appointed and shall have accepted such appointment, then on such 45th day (i) the retiring Agent’s
resignation shall become effective, (ii) the retiring Agent shall thereupon be discharged from its duties and obligations under
the Loan Documents and (iii) the Required Lenders shall thereafter perform all duties of the retiring Agent under the Loan Documents
until such time, if any, as the Required Lenders appoint a successor Agent as provided above. After any retiring Agent’s
resignation hereunder as an Agent shall have become effective, the provisions of this Article VIII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement.


 


SECTION 8.07                      Relationship
of Agent and Lenders. The relationship between the Administrative Agent and the Lenders, and the relationship among the Lenders,
is not intended by the parties to create, and shall not create, any trust, joint venture or partnership relation between them.


 


SECTION 8.08                       Plan
Assets. Each Lender represents and warrants, for the benefit of, the Administrative Agent, the Joint Lead Arrangers and their
respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that
such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42)
of ERISA) of one or more Benefit Plans in connection with the Term Loans or the Commitments. For the purposes of this Section
8.08, “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject
to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for
purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such
“employee benefit plan” or “plan”.


 






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ARTICLE
IX

MISCELLANEOUS


 


SECTION 9.01                      Amendments,
Etc.


 


(a)               No
amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, nor consent to any departure by
any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all of the Lenders, do any
of the following at any time: (i) modify the definition of Required Lenders or otherwise change the percentage vote of the Lenders
required to take any action under this Agreement or any other Loan Document, (ii) release the Borrower with respect to the Obligations
or, except to the extent expressly permitted under this Agreement, reduce or limit the obligations of any Guarantor under Article
VII or release all or substantially all of the Guarantors or otherwise limit all or substantially all of the Guarantor’s
liability with respect to the Guaranteed Obligations, (iii) permit the Loan Parties to encumber the Unencumbered Assets, except
as expressly permitted in the Loan Documents, (iv) amend this Section 9.01, (v) increase the Commitments of the Lenders or subject
the Lenders to any additional obligations (except as set forth in Section 2.17), (vi) forgive or reduce the principal of, or interest
(other than default interest) on, the Obligations of the Loan Parties under the Loan Documents or any fees or other amounts payable
thereunder, (vii) postpone or extend any date fixed for any payment of principal of, or interest on, any of the Advances or any
fees or other amounts payable hereunder, or (viii) extend the Termination Date in respect of the Facility; provided further
that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the other
Loan Documents.


 


(b)               In
the event that any Lender (a “Non-Consenting Lender”) shall refuse to consent to a waiver or amendment
to, or a departure from, the provisions of this Agreement which requires the consent of all Lenders and that has been consented
to by the Administrative Agent and the Required Lenders, then the Borrower shall have the right, upon written demand to such Non-Consenting
Lender and the Administrative Agent given within 30 days after the first date on which such consent was solicited in writing from
the Lenders by the Administrative Agent (a “Consent Request Date”), to cause such Non-Consenting Lender
to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Advances
owing to it and the Note or Notes, if any, held by it) to an Eligible Assignee designated by the Borrower and approved by the
Administrative Agent (such approval not to be unreasonably withheld) (a “Replacement Lender”), provided
that (i) as of such Consent Request Date, no Default or Event of Default shall have occurred and be continuing, and (ii) as
of the date of the Borrower’s written demand to replace such Non-Consenting Lender, no Default or Event of Default shall
have occurred and be continuing other than a Default or Event of Default that resulted solely from the subject matter of the waiver
or amendment for which such consent was being solicited from the Lenders by the Administrative Agent. The Replacement Lender shall
purchase such interests of the Non-Consenting Lender and shall assume the rights and obligations of the Non-Consenting Lender
under this Agreement upon execution by the Replacement Lender of an Assignment and Acceptance delivered pursuant to Section 9.07.
Any Lender that becomes a Non-Consenting Lender agrees that, upon receipt of notice from the Borrower given in accordance with
this Section 9.01(b) it shall promptly execute and deliver an Assignment and Acceptance with a Replacement Lender as contemplated
by this Section. If such Non-Consenting Lender does not execute and deliver to the Administrative Agent a duly completed Assignment
and Acceptance and/or any other documentation necessary to reflect such replacement within a period of time deemed reasonable
by the Administrative Agent after the later of (i) the date on which the Replacement Lender executes and delivers such Assignment
and Acceptance and/or such other documentation and (ii) the date on which the Non-Consenting Lender receives all payments required
to be paid to it by this Section 9.01(b), then such Non-Consenting Lender shall be deemed to have executed and delivered such
Assignment and Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated)
to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such assigning Lender.


 






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SECTION 9.02                       Notices, Etc.


 


(a)               All
notices and other communications provided for hereunder shall be either (x) in writing (including telecopier communication) and
mailed, telecopied or delivered by hand or by overnight courier service, (y) as and to the extent set forth in Section 9.02(b)
and in the proviso to this Section 9.02(a), in an electronic medium and delivered as set forth in Section 9.02(b) or (z) as and
to the extent expressly permitted in this Agreement, transmitted by e-mail, provided that such e-mail shall in all cases include
an attachment (in PDF format or similar format) containing a legible signature of the person providing such notice, if to the
Borrower, at its address at 13215 Bee Cave Parkway, Suite B-300, Austin, Texas 78738, Attention: Christopher Eng and to Hagen,
Wilka & Archer, LLP, 600 South Main Avenue, Suite 102, Sioux Falls, SD 57104, Attention: Jennifer L. Larsen or, if applicable,
at ceng@shpreit.com and jlarsen@hwalaw.com (and in the case of transmission by e-mail, with a copy by U.S. mail to 13215 Bee Cave
Parkway, Suite B-300, Austin, Texas 78738, Attention: Christopher Eng and to Hagen, Wilka & Archer, LLP, 600 South Main Avenue,
Suite 102, Sioux Falls, SD 57104, Attention: Jennifer L. Larsen); if to any Initial Lender, at its Domestic Lending Office or,
if applicable, at the telecopy number or e-mail address specified opposite its name on Schedule I hereto (and in the case of a
transmission by e-mail, with a copy by U.S. mail to its Domestic Lending Office); if to any other Lender Party, at its Domestic
Lending Office or, if applicable, at the telecopy number or e-mail address specified in the Assignment and Acceptance or Accession
Agreement pursuant to which it became a Lender Party (and in the case of a transmission by e-mail, with a copy by U.S. mail to
its Domestic Lending Office); if to the Administrative Agent, at its address at 1200 Abernathy Road, Suite 1550, Atlanta, Georgia
30328, Attention: Tom Schmitt, telecopier number (770) 510-2195, or, if applicable, at Tom_Schmitt@KeyBank.com (and in the case
of a transmission by e-mail, with a copy by U.S. mail to 1200 Abernathy Road, N.E., Suite 1550, Atlanta, Georgia 30328, Attention:
Tom Schmitt) or, as to the Borrower or the Administrative Agent, at such other address as shall be designated by such party in
a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Administrative Agent. All notices, demands, requests, consents and other communications
described in this clause (a) shall be effective (i) if delivered by hand, including any overnight courier service, upon personal
delivery, (ii) if delivered by mail, when deposited in the mails, (iii) if delivered by posting to an Approved Electronic Platform,
an Internet website or a similar telecommunication device requiring that a user have prior access to such Approved Electronic
Platform, website or other device (to the extent permitted by Section 9.02(b) to be delivered thereunder), when such notice, demand,
request, consent and other communication shall have been made generally available on such Approved Electronic Platform, Internet
website or similar device to the class of Person being notified (regardless of whether any such Person must accomplish, and whether
or not any such Person shall have accomplished, any action prior to obtaining access to such items, including registration, disclosure
of contact information, compliance with a standard user agreement or undertaking a duty of confidentiality) and such Person has
been notified in respect of such posting that a communication has been posted to the Approved Electronic Platform, provided that
if requested by any Lender Party, the Administrative Agent shall deliver a copy of the Communications to such Lender Party by
e-mail or telecopier and (iv) if delivered by electronic mail or any other telecommunications device, when receipt is confirmed
by electronic mail as provided in this clause (a); provided, however, that notices and communications to the Administrative Agent
pursuant to Article II, III or VIII shall not be effective until received by the Administrative Agent. Delivery by telecopier
of an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or the Notes or of
any exhibit hereto to be executed and delivered hereunder shall be effective as delivery of an original executed counterpart thereof.
Each Lender Party agrees (i) to notify the Administrative Agent in writing of such Lender Party’s e-mail address to which
a notice may be sent by electronic transmission (including by electronic communication) on or before the date such Lender Party
becomes a party to this Agreement (and from time to time thereafter to ensure that the Administrative Agent has on record an effective
e-mail address for such Lender Party) and (ii) that any notice may be sent to such e-mail address. Notwithstanding
the foregoing, from the Amendment Effective Date and until the Administrative Agent notifies the parties otherwise, the parties
agree that in order for any notice to be effective under the Loan Documents, in lieu of the requirements set forth above, notice
must be given as a .pdf attachment to an e-mail to the notice parties set forth above and any notice shall be deemed to have been
received either (x) as of the date of the e-mail, if such e-mail was sent prior to 4:00 P.M. (New York City time) on a Business
Day (and, in the case of any notice to the Administrative Agent, so long as such notice was acknowledged as received by at least
one representative of the Administrative Agent whose email address is set forth above), or (y) on the Business Day immediately
succeeding the date of the e-mail, if such e-mail was sent on a day that is not a Business Day or after 4:00 P.M. (New York City
Time) on a Business Day (and, in the case of any notice to the Administrative Agent, so long as such notice was acknowledged as
received by at least one representative of the Administrative Agent whose email address is set forth above). 


 






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(b)              
Notwithstanding clause (a) (unless the Administrative Agent requests that the provisions of clause (a) be followed) and
any other provision in this Agreement or any other Loan Document providing for the delivery of any Approved Electronic Communication
by any other means, the Loan Parties shall deliver all Approved Electronic Communications to the Administrative Agent by properly
transmitting such Approved Electronic Communications in an electronic/soft medium in a format acceptable to the Administrative
Agent to Tom_Schmitt@KeyBank.com or such other electronic mail address (or similar means of electronic delivery) as the Administrative
Agent may notify to the Borrower. Nothing in this clause (b) shall prejudice the right of the Administrative Agent or any Lender
Party to deliver any Approved Electronic Communication to any Loan Party in any manner authorized in this Agreement or to request
that the Borrower effect delivery in such manner.


 


(c)              
Each of the Lender Parties and each Loan Party agrees that the Administrative Agent may, but shall not be obligated to,
make the Approved Electronic Communications available to the Lender Parties by posting such Approved Electronic Communications
on IntralinksTM, Syndtrak, DebtDomain® or a substantially similar electronic platform chosen by the Administrative Agent
to be its electronic transmission system (the “Approved Electronic Platform”). Although the Approved Electronic Platform
and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the
Administrative Agent from time to time and the Approved Electronic Platform is secured through a single-user-per-deal authorization
method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lender Parties and
each Loan Party acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such distribution. In consideration for the convenience and
other benefits afforded by such distribution and for the other consideration provided hereunder, the receipt and sufficiency of
which is hereby acknowledged, each of the Lender Parties and each Loan Party hereby approves distribution of the Approved Electronic
Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.


 


(d)              THE
APPROVED ELECTRONIC PLATFORM AND THE APPROVED ELECTRONIC COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
NONE OF THE ADMINISTRATIVE AGENT NOR ANY OF ITS DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS
OF THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY FOR ERRORS
OR OMISSIONS IN THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES IN CONNECTION WITH THE APPROVED ELECTRONIC COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM.


 


(e)               Each
of the Lender Parties and each Loan Party agrees that the Administrative Agent may, but (except as may be required by applicable
law) shall not be obligated to, store the Approved Electronic Communications on the Approved Electronic Platform in accordance
with the Administrative Agent’s generally-applicable document retention procedures and policies.


 






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SECTION 9.03                       No
Waiver; Remedies. No failure on the part of any Lender Party or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


SECTION 9.04                       Costs and Expenses.


 


(a)               Each
Loan Party agrees jointly and severally to pay on demand (i) all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery, administration, modification and amendment of the Loan Documents
(including, without limitation, (A) all due diligence, collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and expenses, (B) the reasonable fees and expenses
of counsel for the Administrative Agent with respect thereto (including, without limitation, with respect to reviewing and advising
on any matters required to be completed by the Loan Parties on a post-closing basis), with respect to advising the Administrative
Agent as to their rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims
in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’
rights generally and any proceeding ancillary thereto and (C) the reasonable fees and expenses of counsel for the Administrative
Agent with respect to the preparation, execution, delivery and review of any documents and instruments at any time delivered pursuant
to Sections 3.01, 3.02, 5.01(j), 5.01(k) or 5.01(x) and (ii) all reasonable out-of-pocket costs and expenses of the Administrative
Agent, the Joint Lead Arrangers and each Lender Party in connection with any work-out or the enforcement (whether through negotiations,
legal proceedings or otherwise) of the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency
or other similar proceeding affecting creditors’ rights generally (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent and each Lender Party with respect thereto).


 


(b)              
Each Loan Party agrees to indemnify, defend and save and hold harmless each Indemnified Party from and against, and shall
pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in connection with any investigation, litigation or proceeding
or preparation of a defense in connection therewith) (i) the Facility, the actual or proposed use of the proceeds of the Advances,
the Loan Documents or any of the transactions contemplated thereby or (ii) the actual or alleged presence of Hazardous Materials
on any property of any Loan Party or any of its Subsidiaries or any Environmental Action relating in any way to any Loan Party
or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b) applies,
such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party, whether or not any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated by the Loan Documents are consummated. Each Loan Party also agrees not to assert
any claim against the Administrative Agent, any Lender Party or any of their Affiliates, or any of their respective officers, directors,
employees, agents and advisors, on any theory of liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facility, the actual or proposed use of the proceeds of the Advances, the Loan Documents or any
of the transactions contemplated by the Loan Documents.


 






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(c)              
If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by the Borrower to or for the account
of a Lender Party other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant
to Section 2.06, 2.09(b)(i), 2.10(d) or 2.17(e), acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an Advance for which a notice of prepayment has been
given or that is otherwise required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall,
upon demand by such Lender Party (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender Party for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion or such failure to pay or prepay, as the case may be, including,
without limitation, any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.


 


(d)              
If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of such Loan Party by the Administrative
Agent or any Lender Party, in its sole discretion.


 


(e)                Without
prejudice to the survival of any other agreement of any Loan Party hereunder or under any other Loan Document, the agreements
and obligations of the Borrower and the other Loan Parties contained in Sections 2.10 and 2.12, Section 7.06 and this Section
9.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under any of the other
Loan Documents. The obligations and liabilities of each Loan Party
under this Section 9.04 shall fully survive indefinitely notwithstanding the exercise of any of Indemnified Party’s rights
pursuant to Section 726.5 of the California Code of Civil Procedure. This Section 9.04 is intended by the parties to constitute
an “environmental provision” as defined in Section 736 of the California Code of Civil Procedure, and the Indemnified
Parties shall have all rights and remedies in such section.


 






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SECTION 9.05                      Right
of Set-off. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Administrative Agent to declare the Notes due and payable
pursuant to the provisions of Section 6.01, the Administrative Agent and each Lender Party and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply
any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any
time owing by the Administrative Agent, such Lender Party or such Affiliate to or for the credit or the account of the Borrower
or any other party to a Loan Document against any and all of the Obligations of the Borrower or such other party now or hereafter
existing under the Loan Documents, irrespective of whether the Administrative Agent or such Lender Party shall have made any demand
under this Agreement or any Note or Notes and although such obligations may be unmatured; provided, however, that in the
event that any Defaulting Lender shall exercise any such right of set-off hereunder, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the provisions of Section 9.10 and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent and the Lenders, and (y) the Defaulting Lender shall promptly provide to the Administrative Agent a written
notice describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of
setoff. If such deposits are not pledged pursuant to a valid security
agreement, the prior written consent of the Administrative Agent shall be obtained before any right of set-off shall be exercised.
The Administrative Agent and each Lender Party agrees promptly to notify the Borrower or such other party after any
such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each Lender Party and their respective Affiliates under
this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) that the
Administrative Agent, such Lender Party and their respective Affiliates may have. Notwithstanding the above, the Administrative
Agent and Lender Parties shall have no right to set off against deposits which are subject to a security interest or rights of
another lender, or which are held for the benefit of any Person, including any Subsidiary, that is not party to a Loan Document.


 


SECTION 9.06                      Binding
Effect. This Agreement shall become effective when it shall have been executed by the Borrower, each Guarantor named on the
signature pages hereto and the Administrative Agent shall have been notified by each Initial Lender that such Initial Lender has
executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Guarantors named on the signature
pages hereto and the Administrative Agent and each Lender Party and their respective successors and assigns, except that neither
the Borrower nor any other Loan Party shall have the right to assign its rights hereunder or any interest herein without the prior
written consent of the Lender Parties.


 


SECTION 9.07                       Assignments
and Participations; Replacement Notes.


 


(a)               Each
Lender may (and, if demanded by the Borrower in accordance with Section 9.01(b) will) assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment
or Commitments, the Advances owing to it and the Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and obligations under and in respect of the Facility, (ii)
except in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or a Fund Affiliate of any Lender or an assignment of all of a Lender’s rights and obligations under this Agreement,
the aggregate amount of the Commitments being assigned to such Eligible Assignee pursuant to such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof (or such lesser amount as shall be approved by the Administrative Agent and, so long
as no Default shall have occurred and be continuing at the time of effectiveness of such assignment, the Borrower), (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment made as a result of a demand by the Borrower pursuant
to Section 9.01(b) shall be an assignment of all rights and obligations of the assigning Lender under this Agreement, (v) except
in the case of an assignment to a Person that, immediately prior to such assignment, was a Lender, an Affiliate of any Lender
or a Fund Affiliate of any Lender in which case notice of such assignment shall be provided to the Administrative Agent and the
Borrower, no such assignments shall be permitted without the consent of the Administrative Agent (which consent shall not be unreasonably
withheld) and (vi) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and, except
if such assignment is being made by a Lender to an Affiliate or Fund Affiliate of such Lender, a processing and recordation fee
of $3,500; provided, however, that for each such assignment made as a result of a demand by the Borrower pursuant to Section
9.01(b), the Borrower shall pay to the Administrative Agent the applicable processing and recordation fee.


 






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(b)               Upon
such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (ii) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.12, 7.06, 8.05 and 9.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).


 


(c)               By
executing and delivering an Assignment and Acceptance, each Lender Party assignor thereunder and each assignee thereunder confirm
to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment
and Acceptance, such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender Party makes no representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any Loan Party of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant thereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender Party or any other Lender
Party 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 this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion
under the Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers
and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.


 






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(d)               The
Administrative Agent shall maintain at its address referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and addresses of the Lender Parties and the Commitment of,
and principal amount of the Advances owing to, each Lender Party from time to time (the “Register”).
In addition, the Administrative Agent shall maintain information in the Register regarding the designation, and revocation of
designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the Lender Parties may treat each Person whose name is recorded
in the Register as a Lender Party hereunder for all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or the Administrative Agent or any Lender Party at any reasonable time and from time to time upon reasonable prior
notice.


 


(e)               Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially
the form of Exhibit E hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. In the case of any assignment by a Lender, within five Business
Days after its receipt of such notice, the Borrower, at its own expense, shall, if requested by the applicable Lender, execute
and deliver to the Administrative Agent in exchange for the surrendered Note or Notes a substitute Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it under each Facility pursuant to such Assignment and Acceptance and,
if any assigning Lender has retained a Commitment hereunder under such Facility, a substitute Note to the order of such assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such substitute Note or Notes, if any, shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the effective date
of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.


 


(f)               
[Intentionally Omitted.]


 






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(g)               Each
Lender Party may sell participations to one or more Persons (other than any Loan Party or any of its Affiliates or any Defaulting
Lender or any of its Affiliates) in or to all or a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and the Note or Notes (if any) held by it) in a minimum
gross amount of $5,000,000; provided, however, that (i) such Lender Party’s obligations under this Agreement (including,
without limitation, its Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lender Parties shall continue to deal solely
and directly with such Lender Party in connection with such Lender Party’s rights and obligations under this Agreement,
(v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any
Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case
to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. The Borrower agrees
that each participant shall be entitled to the benefits of Sections 2.10 and 2.12 (subject to the requirements and limitation
therein, including the requirements under Sections 2.12(f) and (g) (it being understood that the documentation required under
Sections 2.12(f) and (g) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired
its interest by assignment, provided that, such participant shall not be entitled to receive any greater payment under Section
2.10 or 2.12 than the applicable Lender would have been entitled to receive, except to the extent such entitlement to receive
a greater payment results from a change in law that occurs after the participant acquired the applicable participation. Each Lender
Party that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which
it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s
interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided
that no Lender Party shall have any obligation to disclose all or any portion of the Participant Register (including the identity
of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit
or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish
that such commitment, loan, or other obligation is in registered form under section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender Party shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative
Agent) shall have no responsibility for maintaining a Participant Register.


 


(h)               Any
Lender Party may, in connection with any assignment or participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee or participant any information relating to the Loan
Parties (or any of them) furnished to such Lender Party by or on behalf of any Loan Party; provided, however, that prior
to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality
of any Information received by it from such Lender Party on the same terms as provided in Section 9.11.


 


(i)                Notwithstanding
any other provision set forth in this Agreement, any Lender Party may at any time create a security interest in all or any portion
of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it),
including in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve
System or any central bank of any other applicable jurisdiction.


 


(j)                Upon
notice to the Borrower from the Administrative Agent or any Lender of the loss, theft, destruction or mutilation of any Lender’s
Note, the Borrower will execute and deliver, in lieu of such original Note, a replacement promissory note, identical in form and
substance to, and dated as of the same date as, the Note so lost, stolen or mutilated, subject to delivery by such Lender to the
Borrower of an affidavit of lost note and indemnity in customary form. Upon the execution and delivery of the replacement Note,
all references herein or in any of the other Loan Documents to the lost, stolen or mutilated Note shall be deemed references to
the replacement Note.


 






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(k)               In
connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such
additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which
may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of the Defaulting Lender
of Advances not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent),
to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent and each
other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro Rata Share of all
Advances in accordance with the Defaulting Lender’s Pro Rate Share. Notwithstanding the foregoing, in the event that any
assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance
with the provisions of this Section 9.07(k), then the assignee of such interest shall be deemed to be a Defaulting Lender for
all purposes of this Agreement until such compliance occurs.


 


SECTION 9.08                       Execution
in Counterparts; Electronic Signatures.


 


(a)               This
Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.


 


(b)               The
words “execution,” “signed,” “signature,” “delivery,” and words of like import
in or relating to this Agreement and any other Loan Document (including, without limitation, any Assignment and Acceptance Agreement)
to be signed in connection with this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby
shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall
be of the same legal effect, validity or enforceability as manually executed signature, physical delivery thereof or the use of
a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or
any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the
Administrative Agent to accept electronic signatures in any form or format without its prior written consent. Without limiting
the generality of the foregoing, the Borrower hereby (i) agrees that, for all purposes, including without limitation, in connection
with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among any of the Lender Parties
and any of the Loan Parties, electronic images of this Agreement or any other Loan Document (in each case, including with respect
to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii)
waives any argument, defense or right to contest the validity or enforceability of any Loan Document based solely on the lack
of paper original copies of such Loan Document, including with respect to any signature pages thereto.


 






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SECTION 9.09                       [Intentionally Omitted].


 


SECTION 9.10                       Defaulting
Lenders.


 


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


 


(i)             such
Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Required Lenders.


 


(ii)            any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article VI or otherwise) or received by the Administrative Agent
from a Defaulting Lender pursuant to Section 9.05 shall be applied at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
second, [reserved]; third, [reserved]; fourth, as the Borrower may request (so long as no Default exists), to the funding of any
Advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account
and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to
Advances under this Agreement; sixth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court
of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s
breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to
the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances
were made at a time when the conditions set forth in Section 3.01 and 3.02, as applicable, were satisfied (or waived in writing),
such payment shall be applied solely to pay the Advances of all Non-Defaulting Lenders on a pro rata basis prior to being applied
to the payment of any the Advances of such Defaulting Lender until such time as all Advances are held by the Lenders pro rata
in accordance with the Commitments under the Facility. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 9.10(a)(ii) shall be deemed
paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.


 






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(iii)          [Intentionally
Omitted.]


 


(iv)          [Intentionally Omitted.]


 


(v)           [Intentionally Omitted.]


 


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


 


(c)           [Intentionally Omitted.]


 


(d)           [Intentionally Omitted.]


 


(e)           [Intentionally Omitted.]


 






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SECTION 9.11                      
Confidentiality.


 


(a)           Each
of the Administrative Agent and the Lender Parties agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (i) to its Affiliates and to its and its Affiliates’ respective managers, administrators,
trustees, partners, directors, officers, employees, agents, advisors, consultants and other representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (ii) to the extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (iii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing
provisions at least as restrictive as those of this Section, (vii) to any assignee of or participant in, or any prospective assignee
of or participant in, any of its rights or obligations under this Agreement, (viii) to any actual or prospective party (or its
managers, administrators, trustees, partners, directors, officers, employees, agents, advisors and other representatives) to any
swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this
Agreement or payments hereunder, (ix) to any rating agency, (x) the CUSIP Service Bureau or any similar organization, (xi) with
the consent of the Borrower or (xii) to the extent such Information (A) becomes publicly available other than as a result of a
breach of this Section, (B) is independently developed by a Lender or its Affiliate or (C) becomes available to the Administrative
Agent, such Lender Party or any of their respective Affiliates on a non-confidential basis from a source other than the Parent
Guarantor or any of its Subsidiaries without the Administrative Agent, such Lender Party or any of their respective Affiliates
having knowledge that a duty of confidentiality to the Parent Guarantor or any of its Subsidiaries has been breached. In addition,
the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to
market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and
the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments. For purposes
of this Section, “Information” means all information received from the Parent Guarantor or any of its Subsidiaries
(including the Fee Letter and any information obtained based on a review of the books and records of the Parent Guarantor or any
of its Subsidiaries) relating to the Parent Guarantor or any of its Subsidiaries or any of their respective businesses. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with
its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information
as such Person would accord to its own confidential information.


 


(b)           Certain
of the Lender Parties may enter into this Agreement and take or not take action hereunder or under the other Loan Documents on
the basis of information that does not contain material non-public information with respect to any of the Parent Guarantor, any
or its Subsidiaries or their respective securities (“Restricting Information”). Other Lender Parties
may enter into this Agreement and take or not take action hereunder or under the other Loan Documents on the basis of information
that may contain Restricting Information. Each Lender Party acknowledges that United States federal and state securities laws
prohibit any person from purchasing or selling securities on the basis of material, non-public information concerning the issuer
of such securities or, subject to certain limited exceptions, from communicating such information to any other Person. None of
the Administrative Agent or any of its respective directors, officers, agents or employees shall, by making any Communications
(including Restricting Information) available to a Lender Party, by participating in any conversations or other interactions with
a Lender Party or otherwise, make or be deemed to make any statement with regard to or otherwise warrant that any such information
or Communication does or does not contain Restricting Information nor shall the Administrative Agent or any of its respective
directors, officers, agents or employees be responsible or liable in any way for any decision a Lender Party may make to limit
or to not limit its access to Restricting Information. In particular, none of the Administrative Agent or any of its respective
directors, officers, agents or employees (i) shall have, and the Administrative Agent, on behalf of itself and each of its directors,
officers, agents and employees, hereby disclaims, any duty to ascertain or inquire as to whether or not a Lender Party has or
has not limited its access to Restricting Information, such Lender Party’s policies or procedures regarding the safeguarding
of material, nonpublic information or such Lender Party’s compliance with applicable laws related thereto or (ii) shall
have, or incur, any liability to any Loan Party, any Lender Party or any of their respective Affiliates, directors, officers,
agents or employees arising out of or relating to the Administrative Agent or any of its respective directors, officers, agents
or employees providing or not providing Restricting Information to any Lender Party, other than as found by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or any of its respective
directors, officers, agents or employees.


 






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(c)            Each
Loan Party agrees that (i) all Communications it provides to the Administrative Agent intended for delivery to the Lender Parties
whether by posting to the Approved Electronic Platform or otherwise shall be clearly and conspicuously marked “PUBLIC”
if such Communications are determined by the Loan Parties in good faith not to contain Restricting Information which, at a minimum,
shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Communications
“PUBLIC,” each Loan Party shall be deemed to have authorized the Administrative Agent and the Lender Parties to treat
such Communications as either publicly available information or not material information (although such Communications shall remain
subject to the confidentiality undertakings of Section 9.11(a)) with respect to such Loan Party or its securities for purposes
of United States Federal and state securities laws, (iii) all Communications marked “PUBLIC” may be delivered to all
Lender Parties and may be made available through a portion of the Approved Electronic Platform designated “Public Side Information”
and (iv) the Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as Restricting
Information and may post such Communications to a portion of the Approved Electronic Platform not designated “Public Side
Information” (and shall not post such Communications to a portion of the Approved Electronic Platform designated “Public
Side Information”). Neither the Administrative Agent nor any of its Affiliates shall be responsible for any statement or
other designation by a Loan Party regarding whether a Communication contains or does not contain material non-public information
with respect to any of the Loan Parties or their securities nor shall the Administrative Agent or any of its Affiliates incur
any liability to any Loan Party, any Lender Party or any other Person for any action taken by the Administrative Agent or any
of its respective Affiliates based upon such statement or designation, including any action as a result of which Restricting Information
is provided to a Lender Party that may decide not to take access to Restricting Information. Nothing in this Section 9.11(c) shall
modify or limit a Person’s obligations under Section 9.11 with regard to Communications and the maintenance of the confidentiality
of or other treatment of Information.


 


(d)           Each
Lender Party acknowledges that circumstances may arise that require it to refer to Communications that might contain Restricting
Information. Accordingly, each Lender Party agrees that it will nominate at least one designee to receive Communications (including
Restricting Information) on its behalf and identify such designee (including such designee’s contact information) in writing
to the Administrative Agent. Each Lender Party agrees to notify the Administrative Agent from time to time of such Lender Party’s
designee’s e-mail address to which notice of the availability of Restricting Information may be sent by electronic transmission.


 


(e)           Each
Lender Party acknowledges that Communications delivered hereunder and under the other Loan Documents may contain Restricting Information
and that such Communications are available to all Lender Parties generally. Each Lender Party that elects not to take access to
Restricting Information does so voluntarily and, by such election, acknowledges and agrees that the Administrative Agent and other
Lender Parties may have access to Restricting Information that is not available to such electing Lender Party. Each such electing
Lender Party acknowledges the possibility that, due to its election not to take access to Restricting Information, it may not
have access to any Communications (including, without being limited to, the items required to be made available to the Administrative
Agent in Section 5.03 unless or until such Communications (if any) have been filed or incorporated into documents which have been
filed with the Securities and Exchange Commission by the Parent). None of the Loan Parties, the Administrative Agent or any Lender
Party with access to Restricting Information shall have any duty to disclose such Restricting Information to such electing Lender
Party or to use such Restricting Information on behalf of such electing Lender Party, and shall not be liable for the failure
to so disclose or use, such Restricting Information.


 






    	 	125	 



     


    

 


(f)               Sections
9.11(b), (c), (d) and (e) are designed to assist the Administrative Agent, the Lender Parties and the Loan Parties, in complying
with their respective contractual obligations and applicable law in circumstances where certain Lender Parties express a desire
not to receive Restricting Information notwithstanding that certain Communications hereunder or under the other Loan Documents
or other information provided to the Lender Parties hereunder or thereunder may contain Restricting Information. None of the Administrative
Agent or any of its respective directors, officers, agents or employees warrants or makes any other statement with respect to
the adequacy of such provisions to achieve such purpose nor does the Administrative Agent or any of its respective directors,
officers, agents or employees warrant or make any other statement to the effect that a Loan Party’s or Lender Party’s
adherence to such provisions will be sufficient to ensure compliance by such Loan Party or Lender Party with its contractual obligations
or its duties under applicable law in respect of Restricting Information and each of the Lender Parties and each Loan Party assumes
the risks associated therewith.


 


SECTION 9.12                       [Intentionally
Omitted].


 


SECTION 9.13                       Patriot
Act Notification. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the
Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (as amended, the “Patriot Act”), it is required to obtain, verify and record information that identifies each
Loan Party, which information includes the name and address of such Loan Party and other information that will allow such Lender
or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the Patriot Act. The Parent Guarantor
and the Borrower shall, and shall cause each of their Subsidiaries to, provide, to the extent commercially reasonable, such information
and take such actions as are reasonably requested by the Administrative Agent or any Lender in order to assist the Administrative
Agent and the Lenders in maintaining compliance with the Patriot Act.


 


SECTION 9.14                       Jurisdiction, Etc.


 


(a)               Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction
of any New York State court or Federal court of the United States of America sitting in City, County and State of New York and
any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other
Loan Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined
in any such New York State court or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the other Loan Documents in the courts of any jurisdiction.


 






    	 	126	 



     


    

 


(b)               Each
of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents to which it is a party in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


SECTION 9.15                     GOVERNING
LAW. THIS AGREEMENT AND THE NOTES SHALL PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW 5-1401 BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


SECTION 9.16                     WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE OTHER LOAN PARTIES, THE ADMINISTRATIVE AGENT AND THE LENDER PARTIES
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


SECTION 9.17                       ACKNOWLEDGEMENT
AND CONSENT TO BAIL-IN OF EEAAFFECTED
FINANCIAL INSTITUTIONS. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement
or understanding among any such parties, each party hereto acknowledges that any liability of any EEAAffected
Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to
the write-down and conversion powers of an EEAthe
applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:


 


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


 


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


 


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


 






    	 	127	 



     


    

 


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


 


(iii)            the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any
EEAthe applicable Resolution Authority.


 


SECTION
9.18                      Acknowledgment
Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee
or otherwise, for Guaranteed Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC
Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree
as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder,
the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with
the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed
by the laws of the State of New York and/or of the United States or any other state of the United States):


 


(a)           In
the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject
to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit
Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property
securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer
would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest,
obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event
a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime,
Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be
exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised
under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States
or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of
the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported
QFC or any QFC Credit Support. 


 


(b)           As
used in this Section 9.18, the following terms have the following meanings:


 


(i)             “BHC Act Affiliate” of a party means an “affiliate”
(as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.


 






    	 	128	 



     


    

 


(ii)          
“Covered Entity” means any of the following:


 


(A)             
a “covered entity” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 252.82(b);


 


(B)             
a “covered bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b); or


 


(C)             
a “covered FSI” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 382.2(b).


 


(iii)         
“Default Right” has the meaning assigned to that
term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.


 


(iv)         
“QFC” has the meaning assigned to the term “qualified
financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. § 5390(c)(8)(D).


 


SECTION
9.19                     Release
of Collateral. (a) Upon (i) the sale, lease, transfer or other disposition of any item of Collateral
of any Loan Party (including, without limitation (x) as the result of a sale of the Equity Interests in the Loan Party that owns
such Collateral and (y) any Transfer in compliance with Section 5.02(e)(C)) that is permitted by the terms of the Loan Documents
(including without limitation the Third Amendment) or (ii) any designation of any Unencumbered Asset as a non-Unencumbered Asset
that is permitted by Section 5.02(e)(C) and the Third Amendment or (iii) satisfaction of the Collateral Release Conditions, then,
in any such event, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignments,
pledges and security interests granted under the Collateral Documents in accordance with the terms of the Loan Documents provided
that the other Agents simultaneously do the same.


 


(b)           Upon
the earlier to occur of (i) satisfaction of the Collateral Release Conditions or (ii) the latest to occur of (x) the payment in
full in cash of the Secured Obligations, (y) the termination in whole of the Commitments and (z) the termination or expiration
of all Guaranteed Hedge Agreements, the Liens granted by the Collateral Documents shall terminate and all rights to the Collateral
shall revert to the applicable Loan Party. Upon any such termination, the Administrative Agent will, at the Borrower’s expense,
execute and deliver to the applicable Loan Parties such documents as such Loan Parties shall reasonably request to evidence such
termination.


 


Each
of the Loan Parties and the Lender Parties acknowledges and agrees that the ability of the Administrative Agent to release Collateral
pursuant to this Section 9.19 will be subject to the terms and provisions of the Intercreditor Agreement. 


 


(c)           Other
than as expressly provided in this Section 9.19, this Agreement shall not be amended or modified to release all or substantially
all of the Collateral (other than pursuant to Section 5.02(e) or Section 9.19) or permit the Loan Parties to encumber the Collateral
or any portion thereof, except as expressly permitted in the Loan Documents, without the consent of each Lender.


 






    	 	129	 



     


    

 


SECTION
9.20                      No
Fiduciary Duties. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed
to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Administrative Agent, any
Lender Party or any Affiliate thereof, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other.
The Loan Parties agree that the transactions contemplated by the Loan Documents (including the exercise of rights and remedies
hereunder and thereunder) are arm’s-length commercial transactions. Each Loan Party agrees that it has consulted its own
legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. Each of the Loan Parties acknowledges that the Administrative
Agent, the Lender Parties and their respective Affiliates may have interests in, or may be providing or may in the future provide
financial or other services to other parties with interests which a Loan Party may regard as conflicting with its interests and
may possess information (whether or not material to the Loan Parties) other than as a result of (x) the Administrative Agent acting
as administrative agent hereunder or (y) the Lender Parties acting in their respective capacities as such hereunder, that the
Administrative Agent or any such Lender Party may not be entitled to share with any Loan Party. Without prejudice to the foregoing,
each of the Loan Parties agrees that the Administrative Agent, the Lender Parties and their respective Affiliates may (a) deal
(whether for its own or its customers’ account) in, or advise on, securities of any Person, and (b) accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind
of business with other Persons in each case, as if the Administrative Agent were not the Administrative Agent and as if the Lender
Parties were not Lender Parties, and without any duty to account therefor to the Loan Parties. Each of the Loan Parties hereby
irrevocably waives, in favor of the Administrative Agent, the co-syndication agents, and/or the Lender Parties and the Arrangers,
any conflict of interest which may arise by virtue of the Administrative Agent, the Arrangers, the co-syndication agents, and/or
the Lender Parties acting in various capacities under the Loan Documents or for other customers of the Administrative Agent, any
Arranger or any Lender Party as described in this Section 9.20.


 


SECTION
9.21                       SECTION
9.18 Waiver of Claims. Borrower and Guarantors acknowledge, represent and agree that neither Borrower
nor any Guarantor as of the date hereof has any defenses, setoffs, claims, counterclaims or causes of action of any kind or nature
whatsoever with respect to the Loan Documents or the “Loan Documents” (as defined with Original Credit Agreement),
the administration or funding of the Term Loan Advances or the “Term Loan Advances” (as defined in the Original Credit
Agreement), or with respect to any acts or omissions of Administrative Agent or any Lender (whether under the Loan Documents or
the “Loan Documents” (as defined in the Original Credit Agreement)),
or any past or present officers, agents or employees of Administrative Agent or any Lender, and Borrower does hereby expressly
waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.


 


SECTION
9.22                      SECTION
9.19 CONSENT TO AMENDMENT AND RESTATEMENT; EFFECT OF AMENDMENT AND RESTATEMENT. Pursuant to Section
9.01 of the Original Credit Agreement, KeyBank as Administrative Agent under, and as defined in, the Original Credit Agreement
and each Lender under, and as defined in, the Original Credit Agreement hereby consents to the amendment and restatement of the
Original Credit Agreement pursuant to the terms of this Agreement, and the execution of the other Loan Documents. The Lenders
authorize Administrative Agent to enter into the other Loan Documents. The parties hereto acknowledge and agree that entering
into this Agreement, and the other Loan Documents, does not constitute a novation of the Original Credit Agreement or the other
Loan Documents (as defined in the Original Credit Agreement) or a novation, termination, extinguishment or discharge of the “Obligations”
under the Original Credit Agreement or such other Loan Documents, which remain outstanding as of the Closing Date. All interest
and fees accrued and unpaid under the Original Credit Agreement as of the date of this Agreement shall be due and payable in the
amount determined pursuant to the Original Credit Agreement for periods prior to the Closing Date on the next payment date for
such interest or fee set forth in this Agreement.


 


[Balance of page intentionally left blank]


 






    	 	130	 



     


    





 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the
date first above written.


 


	 	BORROWER:
	 	 	 	 	 
	 	SUMMIT HOTEL OP, LP,
	 	a Delaware limited partnership
	 	 	 	 	 
	 	By:	SUMMIT HOTEL GP, LLC,
	 	 	a Delaware limited liability company,
	 	 	its general partner
	 	 	 	 	 
	 	 	By:	SUMMIT HOTEL PROPERTIES, INC.,
	 	 	 	a Maryland corporation,
	 	 	 	its sole member
	 	 	 	 	 
	 	 	 	By:	 
	 	 	 	 	Name: 	Christopher Eng
	 	 	 	 	Title:	 Secretary




 


	 	PARENT GUARANTOR:
	 	 	 	 
	 	SUMMIT HOTEL PROPERTIES, INC.,
	 	a Maryland corporation,
	 	 	 	 
	 	By:	 
	 	 	Name: 	Christopher Eng
	 	 	Title: 	Secretary




 


Summit
– Credit Agreement


 






    


     


    

 


	
        SUBSIDIARY GUARANTORS:

         

        Summit Hospitality
        I, LLC,

        Summit Hospitality
        17, LLC,

        Summit Hospitality
        18, LLC,

        Summit Hospitality
        22, LLC,

        Summit Hospitality
        25, LLC,

        Summit Hospitality
        036, LLC

        Summit Hospitality
        057, LLC,

        Summit Hospitality
        060, LLC,

        Summit Hospitality
        084, LLC,

        Summit Hospitality
        100, LLC,

        Summit Hospitality
        110, LLC,

        Summit Hospitality
        111, LLC,

        Summit Hospitality
        114, LLC,

        Summit Hospitality
        116, LLC,

        Summit Hospitality
        117, LLC,

        Summit Hospitality
        119, LLC,

        Summit Hospitality
        120, LLC,

        Summit Hospitality
        121, LLC,

        Summit Hospitality
        123, LLC,

        Summit Hospitality
        126, LLC,

        Summit Hospitality
        127, LLC,

        Summit Hospitality
        128, LLC,

        Summit Hospitality
        129, LLC,

        Summit Hospitality
        130, LLC,

        Summit Hospitality
        131, LLC,

        Summit Hospitality
        132, LLC,

        Summit Hospitality
        134, LLC,

        Summit Hospitality
        135, LLC,

        Summit Hospitality
        136, LLC,

        Summit Hospitality
        137, LLC,

        Summit Hospitality
        138, LLC,

        Summit Hospitality
        139, LLC,

        Summit Hospitality
        140, LLC,

        Summit Hospitality
        141, LLC,

        Summit Hospitality
        142, LLC,

        Summit Hospitality
        143, LLC,

        Summit Hospitality
        144, LLC,

        Summit Hospitality
        145, LLC,

        San Fran JV, LLC,

        each a Delaware limited
        liability company

         

         

        By: __________________________

        Name:
        Christopher Eng

        Title:
        Secretary

         

        Carnegie Hotels, LLC,
        

        a Georgia limited liability
        company

         

         

        By:__________________________

        Name: Christopher Eng

        Title: Secretary

         
	
        Summit Hotel TRS 030, LLC,

        Summit Hotel TRS 036, LLC,

        Summit Hotel TRS 037, LLC,

        Summit Hotel TRS 052, LLC,

        Summit Hotel TRS 053, LLC,

        Summit Hotel TRS 057, LLC,

        Summit Hotel TRS 060, LLC,

        Summit Hotel TRS 062, LLC,

        Summit Hotel TRS 065, LLC,

        Summit Hotel TRS 066, LLC,

        Summit Hotel TRS 084, LLC,

        Summit Hotel TRS 092, LLC,

        Summit Hotel TRS 094, LLC,

        Summit Hotel TRS 099, LLC,

        Summit Hotel TRS 100, LLC,

        Summit Hotel TRS 101, LLC,

        Summit Hotel TRS 102, LLC,

        Summit Hotel TRS 103, LLC,

        Summit Hotel TRS 104, LLC,

        Summit Hotel TRS 105, LLC,

        Summit Hotel TRS 108, LLC,

        Summit Hotel TRS 109, LLC,

        Summit Hotel TRS 110, LLC,

        Summit Hotel TRS 111, LLC,

        Summit Hotel TRS 113, LLC,

        Summit Hotel TRS 114, LLC,

        Summit Hotel TRS 116, LLC,

        Summit Hotel TRS 117, LLC,

        Summit Hotel TRS 119, LLC,

        Summit Hotel TRS 120, LLC,

        Summit Hotel TRS 121, LLC,

        Summit Hotel TRS 123, LLC,

        Summit Hotel TRS 126, LLC,

        Summit Hotel TRS 127, LLC,

        Summit Hotel TRS 128, LLC,

        Summit Hotel TRS 129, LLC,

        Summit Hotel TRS 130, LLC,

        Summit Hotel TRS 131, LLC,

        Summit Hotel TRS 132, LLC,

        Summit Hotel TRS 134, LLC,

        Summit Hotel TRS 135, LLC,

        Summit Hotel TRS 136, LLC,

        Summit Hotel TRS 137, LLC,

        Summit Hotel TRS 138, LLC,

        Summit Hotel TRS 139, LLC,

        Summit Hotel TRS 140, LLC,

        Summit Hotel TRS 141, LLC,

        Summit Hotel TRS 142, LLC,

        Summit Hotel TRS 143, LLC,

        Summit Hotel TRS 144, LLC,

        Summit Hotel TRS 145, LLC

        Summit Hotel TRS 146, LLC

         

        By:Summit Hotel TRS, Inc.,

        a Delaware corporation, the sole

        member of each of the above referenced Delaware limited liability companies

         

        By:

        Name: Christopher
        Eng

        Title: Secretary

        



 


BP
Watertown Hotel LLC, a Massachusetts limited liability company


 


	 	PARENT GUARANTOR:




 


	 	SUMMIT HOTEL PROPERTIES, INC.,




	 	a Maryland corporation,




 


	 	By:	 



 





Summit
– Credit Agreement






 






    


     


    

 


	 	Name: Christopher Eng




	 	Title: Secretary




 





Summit
– Credit Agreement


 







    


     


    

 


	 	 
	 	 
	 	SUBSIDIARY GUARANTORS:
	 	 
	 	CARNEGIE HOTELS, LLC, a Georgia limited  liability company
	 	 
	 	By:	 
	 	Name: 	Christopher Eng
	 	Title:	 Secretary
	 	 
	 	Summit Group of Scottsdale, ArizonaSUMMIT GROUP 

OF SCOTTSDALE, ARIZONA, LLC, a South Dakota 

limited liability company
	 	 
	 	By:	 
	 	Name: 	Christopher Eng
	 	Title:	 Secretary
	 	 
	 	SUMMIT HOSPITALITY I, LLC,
	 	SUMMIT HOSPITALITY 17, LLC,
	 	SUMMIT HOSPITALITY 18, LLC,
	 	SUMMIT HOSPITALITY 22, LLC,
	 	SUMMIT HOSPITALITY 25, LLC,
	 	SUMMIT HOSPITALITY 036, LLC,
	 	SUMMIT HOSPITALITY 057, LLC,
	 	SUMMIT HOSPITALITY 060, LLC,
	 	SUMMIT HOSPITALITY 084, LLC,
	 	SUMMIT HOSPITALITY 100, LLC,
	 	SUMMIT HOSPITALITY 110, LLC,
	 	SUMMIT HOSPITALITY 111, LLC,
	 	SUMMIT HOSPITALITY 114, LLC,
	 	SUMMIT HOSPITALITY 116, LLC,
	 	SUMMIT HOSPITALITY 117, LLC,
	 	SUMMIT HOSPITALITY 119, LLC,
	 	SUMMIT HOSPITALITY 120, LLC,
	 	SUMMIT HOSPITALITY 121, LLC,
	 	SUMMIT HOSPITALITY 123, LLC,
	 	SUMMIT HOSPITALITY 126, LLC,
	 	SUMMIT HOSPITALITY 127, LLC,
	 	SUMMIT HOSPITALITY 128, LLC,
	 	SUMMIT HOSPITALITY 129, LLC,
	 	SUMMIT HOSPITALITY 130, LLC,
	 	SUMMIT HOSPITALITY 131, LLC,
	 	SUMMIT HOSPITALITY 132, LLC,
	 	SUMMIT HOSPITALITY 134, LLC,
	 	SUMMIT HOSPITALITY 135, LLC,
	 	SUMMIT HOSPITALITY 136, LLC,
	 	SUMMIT HOSPITALITY 137, LLC,
	 	SUMMIT HOSPITALITY 138, LLC,
	 	SUMMIT HOSPITALITY 139, LLC,
	 	SUMMIT HOSPITALITY 140, LLC,
	 	SUMMIT HOSPITALITY 141, LLC,
	 	SUMMIT HOSPITALITY 142, LLC,
	 	SUMMIT HOSPITALITY 143, LLC,
	 	SUMMIT HOSPITALITY 144, LLC,
	 	SUMMIT HOSPITALITY 145, LLC, and
	 	SAN FRAN JV, LLC,
	 	each a Delaware limited liability company
	 	 
	 	By:
	 	Name: Christopher Eng
	 	Title: Secretary


 





Summit
– Credit Agreement


 







    


     


    

 


	 	SUMMIT HOTEL TRS 030, LLC,
	 	SUMMIT HOTEL TRS 036, LLC,
	 	SUMMIT HOTEL TRS 037, LLC,
	 	SUMMIT HOTEL TRS 052, LLC,
	 	SUMMIT HOTEL TRS 053, LLC,
	 	SUMMIT HOTEL TRS 057, LLC,
	 	SUMMIT HOTEL TRS 060, LLC,
	 	SUMMIT HOTEL TRS 062, LLC,
	 	SUMMIT HOTEL TRS 065, LLC,
	 	SUMMIT HOTEL TRS 066, LLC,
	 	SUMMIT HOTEL TRS 084, LLC,
	 	SUMMIT HOTEL TRS 092, LLC,
	 	SUMMIT HOTEL TRS 094, LLC,
	 	SUMMIT HOTEL TRS 099, LLC,
	 	SUMMIT HOTEL TRS 100, LLC,
	 	SUMMIT HOTEL TRS 101, LLC,
	 	SUMMIT HOTEL TRS 102, LLC,
	 	SUMMIT HOTEL TRS 103, LLC,
	 	SUMMIT HOTEL TRS 104, LLC,
	 	SUMMIT HOTEL TRS 105, LLC,
	 	SUMMIT HOTEL TRS 108, LLC,
	 	SUMMIT HOTEL TRS 109, LLC,
	 	SUMMIT HOTEL TRS 110, LLC,
	 	SUMMIT HOTEL TRS 111, LLC,
	 	SUMMIT HOTEL TRS 113, LLC,
	 	SUMMIT HOTEL TRS 114, LLC,
	 	SUMMIT HOTEL TRS 116, LLC,
	 	SUMMIT HOTEL TRS 117, LLC,
	 	SUMMIT HOTEL TRS 119, LLC,
	 	SUMMIT HOTEL TRS 120, LLC,
	 	SUMMIT HOTEL TRS 121, LLC,
	 	SUMMIT HOTEL TRS 123, LLC,
	 	SUMMIT HOTEL TRS 126, LLC,
	 	SUMMIT HOTEL TRS 127, LLC,
	 	SUMMIT HOTEL TRS 128, LLC,
	 	SUMMIT HOTEL TRS 129, LLC,
	 	SUMMIT HOTEL TRS 130, LLC,
	 	SUMMIT HOTEL TRS 131, LLC, and
	 	SUMMIT HOTEL TRS 132, LLC,
	 	each a Delaware limited liability company


 


		By:	Summit Hotel TRS, Inc., a Delaware corporation, 

the
sole member of each of the above referenced

 Delaware limited liability companies



 


	 	 	By:	 
	 	 	Name: 	Christopher
    Eng
	 	 	Title: 	Secretary




 








Summit
– Credit Agreement


 







    


     


    

 


	 	SUMMIT HOTEL TRS 134, LLC,
	 	SUMMIT HOTEL TRS 135, LLC,
	 	SUMMIT HOTEL TRS 136, LLC,
	 	SUMMIT HOTEL TRS 137, LLC,
	 	SUMMIT HOTEL TRS 138, LLC,
	 	SUMMIT HOTEL TRS 139, LLC,
	 	SUMMIT HOTEL TRS 140, LLC,
	 	SUMMIT HOTEL TRS 141, LLC,
	 	SUMMIT HOTEL TRS 142, LLC,
	 	SUMMIT HOTEL TRS 143, LLC,
	 	SUMMIT HOTEL TRS 144, LLC,
	 	SUMMIT HOTEL TRS 145, LLC, and

SUMMIT HOTEL TRS 146, LLC, 
	 	each a Delaware limited liability company




 


		By:	Summit Hotel TRS, Inc., a Delaware corporation, 

the
sole member of each of the above referenced

 Delaware limited liability companies



 


	 	 	By:
	 	 	Name: Christopher Eng
	 	 	Title: Secretary




 





	 	 
	 	BP WATERTOWN HOTEL LLC, a Massachusetts limited liability company
	 	 
	 	By:
	 	Name: Christopher Eng
	 	Title: Secretary




 








Summit
– Credit Agreement


 







    


     


    

 


	 	ADMINISTRATIVE AGENT AND INITIAL LENDER:
	 	 
	 	KEYBANK NATIONAL ASSOCIATION
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 




 






    


     


    

 


	 	INITIAL LENDERS:
	 	 
	 	REGIONS BANK, as a Lender
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	RAYMOND JAMES BANK, N.A., as a Lender
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY, as a Lender
	 	 	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 
	 	CAPITAL ONE, NATIONAL ASSOCIATION, as a Lender
	 	 
	 	By:	 
	 	 	Name:	
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	AMERICAN BANK, N.A., as a Lender
	 	 
	 	By:	 
	 	 	Name:	
	 	 	Title:	 
	 	 	 	 
	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title: