Exhibit 10.1


 


Execution Version


 


FIRST AMENDMENT TO CREDIT AGREEMENT


 


FIRST
AMENDMENT TO 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”),
Deutsche Bank AG New York Branch, 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:


 


WHEREAS, the Borrower,
the Guarantors, the Administrative Agent, and the Lender Parties entered into that certain Credit Agreement dated as of December 6,
2018 (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, 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.


 


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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)(B) and 2.06(b)(i)(C);


 


(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
Revolving Credit Advance, 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 Advance, issuance or renewal, respectively and (2) before
and after giving effect to such Advance 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. Revolving Credit Advances 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 the Pledge Agreement
and with respect to which a Deposit Account Control Agreement (as defined in the Pledge Agreement) 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 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 (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 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.


 


(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:


 


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(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 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 7 Year Term Loan Agreement and the 5 Year Term Loan Agreement.


 


“7 Year Term Loan
Agreement” means that certain Credit Agreement dated as of February 15, 2018, 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.


 


“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 as administrative agent, and the other lenders and agents named therein.


 


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”.


 


(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 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 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 third line of such subsection to “60%” is replaced with “70%”.


 


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(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 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 VII.


 


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 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 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.


 


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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.


 


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 (in its capacity 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.


 


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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 in its 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).


 


(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.


 


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    9


     


    

 


(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 be 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.


 


(e)            The
Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, (i) an amendment
of the 7 Year Term Loan 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 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
Credit Agreement, shall mean and be a reference to the Existing Credit Agreement, as amended by this Amendment.


 


(b)            The
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.


 


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    10


     


    

 


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 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 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.


 


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.


 


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    11


     


    

 


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 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.


 


SECTION 19.
Pre-Negotiation Agreement. The parties hereto acknowledge and agree that upon the Amendment Effective Date this
Amendment shall constitute a Restructuring Agreement, as such term is defined in the Pre-Negotiation Agreement dated as of April 7,
2020 among the Administrative Agent, the Borrower, and the Guarantors (the “Pre-Negotiation Agreement”).


 


(Signature pages follow)


 


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    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)


 


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Agreed as of the date first above written:


 


DEUTSCHE
BANK AG NEW YORK BRANCH,


as Administrative Agent, Initial Issuing Bank,


Swing Line Bank and Initial Lender


 


	By:	/s/ Darrell L. Gustafson	 
	Name: Darrell L. Gustafson
	Title: Managing Director
	 
	By:	/s/ Annie Chung	 
	Name: Annie Chung
	Title: Director




 


(Signatures continued on next page)


 


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BANK
OF AMERICA, N.A.,


as a Lender


 


	By:	/s/ Kyle Pearson	 






		Name: Kyle Pearson	 
		Title: Vice President	 




 


(Signatures continued on next page)


 


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KEYBANK
NATIONAL ASSOCIATION,


as a Lender


 


	By:	/s/ Thomas Z. Schmitt	 
		Name: Thomas Z. Schmitt	 
		Title: Assistant Vice President	 




 


(Signatures continued on next page)


 


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REGIONS
BANK,


as a Lender


 


	By:	/s / Ghi S. Gavin	 
		Name: Ghi S. Gavin	 
		Title: Senior Vice President	 




 


(Signatures continued on next page)


 


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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)


 


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ROYAL BANK OF CANADA,


as a Lender


 


	By:	/s/ Brian Gross	 
		Name: Brian Gross	 
		Title: Authorized Signatory	 




 


(Signatures continued on next page)


 


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PNC BANK, NATIONAL ASSOCIATION,


as a Lender


 


	By:	/s/ Andrew T. White	 
		Name: Andrew T. White	 
		Title: Senior Vice President	 




 


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	CAPITAL ONE, NATIONAL ASSOCIATION,	 
	as a Lender	 
	 	 
	 	 
	By:	/s/ Jessica W. Phillips	 
	 	Name: Jessica W. Phillips	 
	 	Title: Authorized Signatory	 




 


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	BMO HARRIS BANK, NA,	 
	as a Lender	 
	 	 
	 	 
	By:	/s/ Gwendolyn Gatz	 
	 	Name: Gwendolyn Gatz	 
	 	Title: Director	 




 


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	RAYMOND JAMES BANK, N.A.,	 
	as a Lender	 
	 	 
	 	 
	By:	 /s/ Matt Stein	 
	 	Name: Matt Stein	 
	 	Title: Senior Vice President	 




 


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	BBVA USA, an Alabama banking corporation,	 
	f/k/a/Compass Bank, as a Lender	 
	 	 
	 	 
	By:	/s/ Don Byerly	 
	 	Name: Don Byerly	 
	 	Its: Executive Vice President	 




 


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	TRUIST BANK f/k/a BRANCH BANKING AND TRUST COMPANY,	 
	as a Lender	 
	 	 
	 	 
	By:	/s/ Karen Cadiente	 
	Name:	Karen Cadiente	 
	Title:	Assistant Vice President	 




 


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CONSENT


 


Dated as of May 7, 2020


 


Each of the undersigned,
as a Guarantor under the Guaranty set forth in Article VII of the Credit Agreement dated as of December 6, 2018, in favor
of the Lender Parties party to the Credit Agreement referred to in the foregoing First Amendment to Credit Agreement, hereby consents
to such First Amendment to Credit Agreement and hereby confirms and agrees that notwithstanding the effectiveness of such First
Amendment to 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 such Credit Agreement as amended to date.


 


 


	 	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




 


(signatures continue on following page)


 


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	 	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




 


(signatures continue on following page)


 


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 – First Amendment to 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:	/s/ Christopher Eng
	 	 	Name:	Christopher Eng
	 	 	Title:	Secretary




 


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 – First Amendment to 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:	/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




 


(Signatures end.)


 


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 – First Amendment to Credit Agreement


 






    	 	 	 



     


    

 


Annex A


 


AMENDED CREDIT AGREEMENT


 


[See attached.]


 


	 	Sched. 6 	Summit – First Amendment to Credit Agreement



 






    	 	 	 



     


    

 



 





CONFORMED
COPY REFLECTING





FIRST
AMENDMENT DATED AS OF May 7, 20201





Execution Version


 


CREDIT AGREEMENT


 


Dated as of December 6, 2018


 


As
amended by FIRST AMENDMENT TO CREDIT AGREEMENT


 


Dated
as of May 7, 2020


 


amongAmong


 


SUMMIT HOTEL OP, LP,


 


as Borrower,


 


SUMMIT HOTEL PROPERTIES, INC.,


 


as Parent Guarantor,


 


THE OTHER GUARANTORS NAMED HEREIN,


 


as Subsidiary Guarantors,


 


THE INITIAL LENDERS, INITIAL ISSUING
BANKS AND SWING LINE BANKS NAMED HEREIN,


 


as Initial Lenders, Initial
Issuing Banks and Swing Line Banks,


 


DEUTSCHE BANK AG NEW YORK BRANCH,


 


as Administrative Agent,


 


with


 


BANK OF AMERICA, N.A.,


 


REGIONS BANK,


 


and


 


U.S. BANK NATIONAL ASSOCIATION,


 


as Co-Syndication Agents,


 


and


 


DEUTSCHE BANK SECURITIES INC.,


 





MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED,


 


BOFA
SECURITIES, INC.,


 


REGIONS CAPITAL MARKETS,


 


and


 


U.S. BANK NATIONAL ASSOCIATION,


 


as Joint Lead Arrangers and as Joint
Bookrunners


 


 


 






1 Refer
to the First Amendment to the 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.


 






     


     


    

  


T A B L E O F C O N T E N T S


 








	Section	 	Page
	 	 	 
	Article I
	DEFINITIONS AND ACCOUNTING TERMS
	 
	Section 1.01.	Certain Defined Terms	1
	Section 1.02.	Computation of Time Periods; Other Definitional Provisions	3540
	Section 1.03.	Accounting Terms	3540
	 	 	 
	Article II
	AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
	 
	Section 2.01.	The Advances and the Letters of Credit	3540
	Section 2.02.	Making the Advances	3641
	Section 2.03.	Issuance of and Drawings and Reimbursement Under Letters of Credit	3843
	Section 2.04.	Repayment of Advances	4045
	Section 2.05.	Termination or Reduction of the Commitments	4146
	Section 2.06.	Prepayments	4147
	Section 2.07.	Interest	4248
	Section 2.08.	Fees	4449
	Section 2.09.	Conversion of Advances	4550
	Section 2.10.	Increased Costs, Etc.	4551
	Section 2.11.	Payments and Computations	4752
	Section 2.12.	Taxes	4955
	Section 2.13.	Sharing of Payments, Etc.	5358
	Section 2.14.	Use of Proceeds	5460
	Section 2.15.	Evidence of Debt	5460
	Section 2.16.	Extension of Revolving Credit Facility Termination Date	5561
	Section 2.17.	Increase in the Aggregate Commitments	5561
	Section 2.18.	Cash Collateral Account	5763
	 	 	 
	Article III
	CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT
	 
	Section 3.01.	Conditions Precedent to Initial Extension of Credit	5864
	Section 3.02.	Conditions Precedent to Each Borrowing, Issuance, Renewal, Extension and Increase	6268
	Section 3.03.	Determinations Under Section 3.01 and 3.02	6369
	 	 	 
	Article IV
	REPRESENTATIONS AND WARRANTIES
	 
	Section 4.01.	Representations and Warranties of the Loan Parties	6369
	 
	Article V
	COVENANTS OF THE LOAN PARTIES
	 
	Section 5.01.	Affirmative Covenants	6975
	Section 5.02.	Negative Covenants	7480
	Section 5.03.	Reporting Requirements	8389
	Section 5.04.	Financial Covenants	8692



 






    i


     


    

 


	Article VI
	EVENTS OF DEFAULT
	 
	Section 6.01.	Events of Default	8794
	Section 6.02.	Actions in Respect of the Letters of Credit upon Default	8996
	 
	Article VII
	GUARANTY
	 
	Section 7.01.	Guaranty; Limitation of Liability	9097
	Section 7.02.	Guaranty Absolute	9097
	Section 7.03.	Waivers and Acknowledgments	9198
	Section 7.04.	Subrogation	9299
	Section 7.05.	Guaranty Supplements	92100
	Section 7.06.	Indemnification by Guarantors	93100
	Section 7.07.	Subordination	93101
	Section 7.08.	Continuing Guaranty	94101
	Section 7.09.	Keepwell	94101
	 
	Article VIII
	THE AGENTS
	 
	Section 8.01.	Authorization and Action	94102
	Section 8.02.	Agents’ Reliance, Etc.	95102
	Section 8.03.	DBNY and Affiliates	95103
	Section 8.04.	Lender Party Credit Decision	95103
	Section 8.05.	Indemnification by Lender Parties	96103
	Section 8.06.	Successor Agents	96104
	Section 8.07.	Relationship of Agent and Lenders	97105
	 
	Article IX
	MISCELLANEOUS
	 
	Section 9.01.	Amendments, Etc.	97105
	Section 9.02.	Notices, Etc.	98106
	Section 9.03.	No Waiver; Remedies	100108
	Section 9.04.	Costs and Expenses	101108
	Section 9.05.	Right of Set-off	102110
	Section 9.06.	Binding Effect	102110
	Section 9.07.	Assignments and Participations; Replacement Notes	103110
	Section 9.08.	Execution
in Counterparts ;
Electronic Signatures	106114
	Section 9.09.	No Liability of the Issuing Banks	106114
	Section 9.10.	Defaulting Lenders	107115
	Section 9.11.	Confidentiality	110118
	Section 9.12.	Certain ERISA Matters	112120
	Section 9.13.	Patriot Act Notification	113121
	Section 9.14.	Jurisdiction, Etc.	113121
	Section 9.15.	Governing Law	113121
	Section 9.16.	WAIVER OF JURY TRIAL	113121
	Section 9.17.	Acknowledgment and Consent to Bail-In of EEAAffected Financial Institutions	114122
	Section 9.18.	Acknowledgement Regarding Any Supported QFCs	122
	Section 9.19.	Release of Collateral	123
	Section 9.20.	No Fiduciary Duties	124







 






    ii


     


    

 





	SCHEDULES	 	 
	 	 	 
	Schedule I	-	Commitments and Applicable Lending Offices
	Schedule II	-	Unencumbered Assets
	Schedule III	-	Approved Managers
	Schedule IV	-	Existing Letters of Credit
	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 Concerns
	Schedule 4.01(w)	-	Plans and Welfare Plans
	 	 	 
	EXHIBITS	 	 
	 	 	 
	Exhibit A-1	-	Form of Revolving Note
	Exhibit A-2	-	Form of Term Note
	Exhibit B	-	Form of Notice of Borrowing
	Exhibit C	-	Form of Notice of Issuance of Letter of Credit
	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 G	-	Form of Section 2.12(e) U.S. Tax Compliance Certificate
	Exhibit H	 	Form of Security Agreement
	Exhibit I	 	Form of Mortgage




 






     iii


     


    

 


CREDIT AGREEMENT


 


CREDIT AGREEMENT dated as of December 6,
2018 (as amended by the First Amendment to 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”),
the Swing Line Banks (as hereinafter defined), DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), BANK OF AMERICA,
N.A., REGIONS BANK and U.S. BANK NATIONAL ASSOCIATION, as the initial issuers of Letters of Credit (as hereinafter defined) (the
 “Initial Issuing Banks”), DBNY, as administrative agent (together with any successor administrative agent
appointed pursuant to Article VIII, the “Administrative Agent”) for the Lender Parties (as hereinafter
defined), BANK OF AMERICA, N.A., REGIONS BANK and U.S. BANK NATIONAL ASSOCIATION, as co-syndication agents, with DEUTSCHE BANK
SECURITIES INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATEDBOFA
SECURITIES, INC., REGIONS CAPITAL MARKETS and U.S. BANK NATIONAL ASSOCIATION as joint lead arrangers (the “Arrangers”)
and as joint bookrunners.


 


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 National Association, 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
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 TLA Agent, as amended from time to time.


 


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


 


“2018
TLA Agent” means KeyBank National Association, in its capacity as administrative agent under the 2018 Term Loan Agreement,
together with its successor and assigns.


 


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


 


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


 






    1


     


    

 


“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.


 


“Administrative Agent’s
Account” means the account of the Administrative Agent maintained by the Administrative Agent at its office at 60
Wall Street, New York, New York 10005, ABA No. 021-001-033, for further credit to Commercial Loan Division, Account No. 60200119,
Reference: Summit Hotel OP, LP, or such other account as the Administrative Agent shall specify in writing to the Lender Parties.


 


“Advance”
means a Revolving Credit Advance, a Term Loan Advance, a Swing Line Advance or a Letter of Credit 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 2017 TLA Agent and the 2018 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.


 






    2


     


    

  


“Amendment
Period” has the meaning specified in the First 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 First 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”
for Revolving Credit Advances 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	 	0.40	%	1.40%
	II	 	≥ 3.5:1.0, but < 4.0:1.0	 	0.45	%	1.45%
	III	 	≥ 4.0:1.0, but < 4.5:1.0	 	0.55	%	1.55%
	IV	 	≥ 4.5:1.0, but < 5.0:1.0	 	0.65	%	1.65%
	V	 	≥ 5.0:1.0, but < 5.5:1.0	 	0.75	%	1.75%
	VI	 	≥ 5.5:1.0, but < 6.0:1.0	 	0.95	%	1.95%
	VII	 	≥6.0:1.0, but < 6.5:1.0	 	1.15	%	2.15%
	VIII	 	≥ 6.5:1.0	 	1.20	%	2.20%



 


The Applicable Margin for a Term Loan Advance shall
be five basis points less than the Applicable Margin for a Revolving Credit Advance as of the applicable date of determination.


 



    3


     


    

 





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 Closing Date, (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 and/or the Issuing
Bank, as the case may be, at any time pursuant to this Agreement is lower than the Applicable Margin that would have been payable
to the Lenders and/or the Issuing Bank, as the case may be, 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 and/or the Issuing Bank, as the case may be, such additional amounts (“Additional
Margin Amounts”) as are necessary so that after receipt of such amounts such Lender and/or the Issuing Bank, as the
case may be, 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
and/or the Issuing Bank. 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.


 


“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, letter of credit request, swing loan request, 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.


 






    4


     


    

 





“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 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 (i) in form and substance reasonably satisfactory to the Administrative Agent or (ii) substantially
similar, in form and substance, to the management agreements entered into by the Loan Parties in effect as of the Closing Date.
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.


 


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


 


“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).


 


“Available Amount”
of any Letter of Credit means, at any time, the maximum amount available to be drawn under such Letter of Credit at such time (assuming
compliance at such time with all conditions to drawing).


 


“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.


 






    5


     


    

 


“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 a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the
highest of (a) the rate of interest announced publicly by DBNY in New York, New York, from time to time, as DBNY’s
 “prime rate”, (b) 1⁄2 of 1% per annum above the Federal Funds Rate and (c) the one-month Eurodollar
Rate plus 1% per annum; provided, however, that for the avoidance of doubt, in no circumstance shall the Base Rate
be less than zero percent twenty-five
basis points (0.25%) per annum (0.00%).


 


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


 


“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.


 


“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”.


 


“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. 182380523155 or such other account as the Borrower shall specify
in writing to the Administrative Agent.


 


“Borrowing”
means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type or Term Loan Advances of the same Type
made by the Lenders or a Swing Line Borrowing.


 


“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 New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.


 






    6


     


    

 


“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 Collateral Account”
means an interest-bearing account of the Borrower maintained with the Administrative Agent, in each case in the name of the Administrative
Agent and under the sole control and dominion of the Administrative Agent and subject to the terms of this Agreement.


 


“Cash Collateralize”
means, in respect of an Obligation, provide and pledge (as a first priority perfected security interest) U.S. Dollars, (a) in
the Cash Collateral Account (or with respect to a Defaulting Lender, a Defaulting Lender Cash Collateral Account) or, (b) in
such other account as may be otherwise required by the Administrative Agent, at a location and pursuant to documentation in form
and substance satisfactory to the Administrative Agent and the Issuing Bank (and “Cash Collateralization”
has a corresponding meaning).


 


“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.


 


“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.


 






    7


     


    

  


“Closing Date”
means the date hereof.


 


“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:


 


(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:


 






    8


     


    




 


(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;


 


(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;


 






    9


     


    

 





(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;


 


(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 First Amendment.


 


“Collateral
Release Conditions” has the meaning specified in the First 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 Revolving Credit Commitment, a Term Loan Commitment, a Swing Line Commitment or a Letter of Credit Commitment.


 


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


 


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


 



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“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.


 


“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 of 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.


 






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“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.


 


“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.


 






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“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.


 


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


 


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


 


“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.


 


“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.


 






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“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 Term Loan Agreement)
pursuant to Section 2.07(a)(i) of the 2018 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, any Issuing Bank, any Swing Line Bank or any other Lender any other amount required to be paid by it hereunder (including
in respect of its participation in Letters of Credit or Swing Line Advances) within two Business Days of the date when due, (b) has
notified the Borrower, the Administrative Agent, any Issuing Bank or any Swing Line Bank 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, each Issuing Bank, each Swing Line Bank and each Lender.


 


“Defaulting Lender
Cash Collateral Account” means the interest-bearing account of a Defaulting Lender maintained with the Administrative
Agent, in each case in the name of the Administrative Agent and under the sole control and dominion of the Administrative Agent
and subject to the terms of this Agreement.


 






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“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.


 


“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 (a) with respect to the Revolving Credit Facility or the Term Loan Facility, (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 each Issuing Bank, 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, and (b) with respect to the Letter of Credit Facility, a Person that is an Eligible
Assignee under subclause (iii) or (v) of this definition and is 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.


 






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“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.


 


“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.


 






    16


     


    

 


“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.


 


“Eurodollar Rate”
means, for any Interest Period for all Eurodollar Rate Advances comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the rate per annum (rounded upward, if necessary, to the nearest 1/100
of 1%) determined by the Administrative Agent to be the offered rate that appears on the Reuters Screen LIBOR01 Page (or any
successor thereto) as the London interbank offered rate for deposits in U.S. Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period, or, if for any reason such rate is not available, then the “Eurodollar
Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Advance being made, continued or converted by Deutsche Bank AG and with a term equivalent to such Interest Period would be
offered by Deutsche Bank AG’s principal London office to prime banks in the London or other offshore interbank market for
Dollars at their request at approximately 11:00 A.M. (London time) two Business Days before the first day of such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period; provided
that in no circumstance shall the Eurodollar Rate be less than 00.25%
per annum.


 


“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 two 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 New York City 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.


 






    17


     


    

 


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


 


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


 


“Existing Letters
of Credit” means the letters of credit and bank guarantees listed on Schedule IV hereto issued under the Existing
Credit Agreement.


 


“Existing Credit Agreement”
means that certain Credit Agreement, dated as of January 15, 2016, among Borrower, Parent Guarantor, the Subsidiary Guarantors
party thereto, DBNY, as administrative agent, and the other Lender Parties party thereto, as amended, supplemented or otherwise
modified to date.


 


“Extension Date”
has the meaning specified in Section 2.16.


 


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


 


“Facility”
means the Revolving Credit Facility, the Term Loan Facility, the Swing Line Facility or the Letter of Credit Facility.


 


“Facility Exposure”
means, at any date of determination, the sum of (a) the aggregate principal amount of all outstanding Advances, plus (b) the
amount of the Letter of Credit Exposure, plus (c) 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, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such
day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected
by it.


 


“Fee Letter”
means any separate letter agreement executed and delivered by the Borrower or an Affiliate of the Borrower and to which the Administrative
Agent or an Arranger is a party, as the same may be amended, restated or replaced 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.


 






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


 


“First
Amendment Date” means May 7, 2020.


 


“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 Closing Date.


 


“Fronting Exposure”
means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Bank, such Defaulting Lender’s Pro
Rata Share of the outstanding Letter of Credit Exposure with respect to Letters of Credit issued by such Issuing Bank other than
Letter of Credit Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders
or Cash Collateralized in accordance with Section 9.10 and (b) with respect to any Swing Line Bank, such Defaulting Lender’s
Pro Rata Share of outstanding Swing Line Advances made by such Swing Line Bank other than Swing Line Advances as to which such
Defaulting Lender’s participation obligation has been reallocated to other Lenders.


 






    19


     


    

 


“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.


 


“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.


 






    20


     


    

 


“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.


 


“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 earlier to occur of the initial Borrowing and the initial issuance of a Letter of Credit hereunder.


 


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


 


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


 


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


 






    21


     


    

 


“Initial Maturity
Date” means March 31, 2023 for the Revolving Credit Facility.


 


“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.


 


“Intercreditor
Agreement” means that certain Pari Passu Intercreditor Agreement dated as of the First Amendment Date among the Administrative
Agent, the 2017 TLA Agent and the 2018 TLA 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 (a) for each Eurodollar Rate Advance comprising part of the same Borrowing consisting of Term Loan Advances, (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 (New
York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however,
that:


 


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


 


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


 


(iii)           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


 


(iv)           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.


 


(b) for each Eurodollar Rate
Advance comprising part of the same Borrowing consisting of Revolving Credit Advances, 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 last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing
on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. 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 (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided, however, that:


 






    22


     


    

 


(i)             the
Borrower may not select any Interest Period with respect to any such Revolving Credit Advance that ends after the Termination Date;


 


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


 


(iii)           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


 


(iv)           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.


 


“Issuing Bank”
means the Initial Issuing Banks and any other Lender approved as an Issuing Bank by the Administrative Agent and the Borrower and
any Eligible Assignee to which a Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 so long
as each such Lender or each such Eligible Assignee expressly agrees to 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 an Issuing Bank and notifies the Administrative Agent
of its Applicable Lending Office and the amount of its Letter of Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register) for so long as such Initial Issuing Bank, Lender or Eligible Assignee, as the case may be,
shall have a Letter of Credit Commitment.


 


“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.


 






    23


     


    

 


“KeyBank Facilities”
means, collectively, the term loan facilities established pursuant to (i) that certain First Amended and Restated Credit Agreement,
dated as of February 15, 2018, 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, 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.


 


“L/C Related Documents”
has the meaning specified in Section 2.04(b)(ii)(A).


 


“L/C Account Collateral”
has the meaning specified in Section 2.18(a).


 


“Lender Party”
means any Lender, any Swing Line Bank or any Issuing Bank.


 


“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.


 


“Letter of Credit
Advance” means an advance made by any Issuing Bank or any Lender pursuant to Section 2.03(c).


 


“Letter of Credit
Agreement” has the meaning specified in Section 2.03(a).


 


“Letter of Credit
Commitment” means, with respect to any Issuing Bank at any time, the amount set forth opposite such Issuing Bank’s
name on Schedule I hereto under the caption “Letter of Credit Commitment” or, if such Issuing Bank has entered
into one or more Assignment and Acceptances, set forth for such Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as such Issuing Bank’s “Letter of Credit Commitment”, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.


 


“Letter of Credit
Exposure” means, at any time, the sum of (a) the aggregate Available Amount of all outstanding Letters of Credit
at such time plus (b) the aggregate amount of all payments or disbursements made by an Issuing Bank pursuant to a Letter of
Credit Advance that have not yet been reimbursed at such time.


 


“Letter of Credit
Facility” means, at any time, an amount equal to the lesser of (a) the aggregate amount of the Issuing Banks’
Letter of Credit Commitments at such time, and (b) $50,000,000, as such amount may be reduced at or prior to such time pursuant
to Section 2.05.


 


“Letters of Credit”
has the meaning specified in Section 2.01(b).


 


“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.


 






    24


     


    

 


“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.


 


“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 Letter of Credit Agreement, (e) each
Guaranty Supplement (f) each Guaranteed Hedge Agreement, and (g) the
Collateral Documents and (h) 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 First 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.


 


“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 or (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 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.


 






    25


     


    

 


“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.


 


“Minimum Collateral
Amount” means, at any time, (i) with respect to collateral consisting of cash or deposit account balances posted
or to be posted under Section 9.10, an amount equal to 105% of the Fronting Exposure of all Issuing Banks with respect to
Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Administrative Agent
and the Issuing Banks in their sole discretion.


 


“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 First 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.


 






    26


     


    

 


“Net
Cash Proceeds” has the meaning specified in the First 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.


 


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


 


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


 


“Notice of Issuance”
has the meaning specified in Section 2.03(a).


 


“Notice of Renewal”
has the meaning specified in Section 2.01(c).


 


“Notice of Swing Line
Borrowing” has the meaning specified in Section 2.02(b).


 


“Notice of Termination”
has the meaning specified in Section 2.01(c).


 






    27


     


    

 


“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, Letter of Credit commissions, 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 the definition of Sanctions.


 


“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.


 


“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.


 


“Other
Facilities” means the 2017 Term Loan Facility and the 2018 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.


 






    28


     


    

 


“Participant”
has the meaning specified in Section 2.03(c)(i).


 


“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 KeyBank Facilities, 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).


 


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


 


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


 


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


 






    29


     


    

 


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


 


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


 


“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.


 


“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 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.


 


“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, (a) in the case of the Revolving Credit Facility, the product
of such amount times a fraction the numerator of which is the amount of such Lender’s Revolving Credit Commitment
at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such Lender’s Revolving
Credit Commitment as in effect immediately prior to such termination) and the denominator of which is the Revolving Credit Facility
at such time (or, if the Commitments shall have been terminated pursuant to Section 2.05 or 6.01, the Revolving Credit Facility
as in effect immediately prior to such termination), and (b) in the case of the Term Loan Facility, 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).


 






    30


     


    

 



 


“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from
time to time.


 


“Purchasing Lender”
has the meaning specified in Section 2.17(e).


 


“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 First 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.


 


“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.


 






    31


     


    

 


“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).


 


“Required Lenders”
means, at any time, Lenders owed or holding greater than 50% of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Available Amount of all Letters of Credit outstanding at such time and (c) the
aggregate Unused Revolving Credit Commitments at such time. For purposes of this definition, (x) the aggregate principal amount
of Swing Line Advances owing to any Swing Line Bank and of Letter of Credit Advances owing to any Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to the Revolving Lenders ratably in accordance with their respective
Revolving Credit Commitments and (y) 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
Advance” has the meaning specified in Section 2.01(a).


 


“Revolving Credit
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 “Revolving Credit Commitment” 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 “Revolving Credit Commitment”, as such amount may be reduced at
or prior to such time pursuant to Section 2.05. The aggregate Revolving Credit Commitments of the Lenders on the Closing Date
shall be $400,000,000.


 






    32


     


    

 


“Revolving Credit
Facility” means, at any time, the aggregate amount of the Lenders’ Revolving Credit Commitments at such time,
and, where the context requires, shall include reference to the subfacilities thereof.


 


“Revolving Lender”
means a Lender having a Revolving Credit Commitment, whether funded or unfunded.


 


“Revolving Note”
shall mean a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender under the Revolving Credit Facility.


 


“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.


 


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


 


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


 


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


 


“Screen Rate”
has the meaning specified in Section 2.07(d)(i).


 


“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.


 


“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.


 


“Secured Indebtedness”
means, with respect to the 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 andfor
the ratable benefit of the Lender Parties and the Hedge Banks,
the 2017 TLA Secured Parties and the 2018 TLA Secured Parties.


 






    33


     


    

 


“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.


 


“Selling Lender”
has the meaning specified in Section 2.17(e).


 


“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.


 


“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.


 






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


 


“Successor Rate Conforming
Changes” means, with respect to any proposed successor benchmark rate pursuant to clause (ii) of Section 2.07(d),
any conforming changes to (a) the definitions of Base Rate and Interest Period, (b) timing and frequency of determining
rates and making payments of interest and (c) other administrative matters as may be appropriate, in the discretion of the
Administrative Agent, to (i) reflect the adoption of such successor benchmark rate and (ii) permit the administration
thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent
determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for
the administration of such successor benchmark rate exists, in such other manner of administration as the Administrative Agent
determines in consultation with the Borrower).


 


“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.


 


“Supplemental Agent”
has the meaning specified in Section 8.01(b).


 


“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.


 


“Swing Line Advance”
means an advance made by (a) the Swing Line Banks pursuant to Section 2.01(d) or (b) any Lender pursuant to
Section 2.02(b).


 


“Swing Line Bank”
means each of DBNY, Bank of America, N.A., Regions Bank and U.S. Bank National Association, in its capacity as the Lender of Swing
Line Advances, and its successors and permitted assigns in such capacity.


 


“Swing Line Borrowing”
means a borrowing consisting of a Swing Line Advance made by the Swing Line Banks pursuant to Section 2.01(d) or the
Lenders pursuant to Section 2.02(b).


 


“Swing Line Commitment”
means, with respect to (i) DBNY, $6,250,000, (ii) Bank of America, N.A., $6,250,000, (iii) U.S. Bank National Association,
$6,250,000 and (iv) Regions Bank, $6,250,000, as each such amount may be reduced at or prior to such time pursuant to Section 2.05.
The aggregate Swing Line Commitments shall not exceed $25,000,000.


 


“Swing Line Facility”
has the meaning specified in Section 2.01(d).


 


“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 aggregate principal amount equal to $200,000,000 on the
Closing Date, as the same may be increased as provided in Section 2.17.


 






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


 


“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” 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”, 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 $200,000,000.


 


“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.


 


“Term 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-2
hereto, evidencing the indebtedness of the Borrower to such Lender under the Term Loan Facility.


 


“Termination Date”
means (a) with respect to the Revolving Credit Facility, the earlier of (i) March 31, 2023, subject to the extension
thereof pursuant to Section 2.16 and (ii) the date of termination in whole of the Revolving Credit Commitments, the Swing
Line Commitment and the Letter of Credit Commitments pursuant to Section 2.05 or 6.01, and (b) with respect to the Term
Loan Facility, the earlier of (i) April 1, 2024, 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 or the issuance or renewal of any
Letter of Credit, (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), (e) the effective
date of any Transfer permitted under Section 5.02(e)(ii)(C), and (f) with respect to an extension of the Termination
Date pursuant to Section 2.16, the Extension Date.


 


“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).


 






    36


     


    

 


“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.


 


“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.


 






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


 


“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.


 


“Unencumbered Asset
Pool Amount” means, at any date of determination, the maximum total amount available under the Facility, which shall
at all times be the lowest of (i) the aggregate Commitments of the Lenders, (ii) the Total Unencumbered Asset Value times
60%, less all Consolidated Unsecured Indebtedness (exclusive of the Facility Exposure) and (iii) the principal amount that
when drawn under the Facility would result in Assumed Unsecured Interest Expense, calculated on a pro forma basis for the
next consecutive four fiscal quarters of the Parent Guarantor after taking such draws into account, equal to 50% of Unencumbered
Adjusted NOI.


 


“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 approved by the Required Lenders; (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.


 






    38


     


    

 


“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, and (e) if such Asset is then the subject of an acquisition transaction, a copy of the purchase
agreement with respect thereto and a schedule of the proposed sources and uses of funds for such transaction.


 


“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.


 


“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 Increase Election” means an election by notice from the Borrower to the Administrative Agent to increase 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), 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.


 


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


 


“Unused Revolving
Credit Commitment” means, with respect to any Lender at any date of determination, (a) such Lender’s Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Revolving Credit
Advances, Swing Line Advances and Letter of Credit Advances made by such Lender (in its capacity as a Lender) and outstanding at
such time plus (ii) such Lender’s Pro Rata Share of (A) the aggregate Available Amount of all Letters of
Credit outstanding at such time, (B) the aggregate principal amount of all Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.03(c) and outstanding at such time and (C) the aggregate principal amount of all Swing Line
Advances made by the Swing Line Banks pursuant to Section 2.01(c) and outstanding at such time.


 






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“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.


 


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”).


 


Section 1.04.     Eurodollar
Rate. The Administrative Agent does not warrant, nor accept responsibility for, nor shall the Administrative Agent have any liability
with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurodollar
Rate” or any rate that is an alternative or replacement for or successor to any such rate or the effect of any of the foregoing,
or of any LIBOR Successor Rate Conforming Changes.


 






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Article II

AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT


 


Section 2.01.     The
Advances and the Letters of Credit. (a)  The Revolving Credit Advances. Each Revolving Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances (each, a “Revolving Credit Advance”)
to the Borrower from time to time on any Business Day during the period from the date hereof until the Termination Date in an
amount for each such Revolving Credit Advance not to exceed such Lender’s Unused Revolving Credit Commitment at such time.
Each Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple of $250,000 in excess thereof and shall consist
of Revolving Credit Advances made simultaneously by the Revolving Lenders ratably according to their Revolving Credit Commitments.
Within the limits of each such Lender’s Unused Revolving Credit Commitment in effect from time to time and prior to the
Termination Date, the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(a).


 


(b)            The
Term Loan Advances. 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 in an amount equal to such Lender’s Term Loan Commitment.
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). Subject to the terms and conditions
of this Agreement, including Section 2.17, the Term Loan shall be funded to the Borrower on the Closing Date. The Borrower
shall not have the right to reborrow any portion of the Term Loan that is repaid or prepaid.


 


(c)            Letters
of Credit. Each Issuing Bank severally agrees, on the terms and conditions hereinafter set forth, to issue (or cause its Affiliate
that is a commercial bank to issue on its behalf) letters of credit and to continue any Existing Letters of Credit (set forth
on Schedule IV hereto) (collectively, the “Letters of Credit”), for the account of the Borrower from
time to time on any Business Day during the period from the date hereof until 60 days before the Termination Date in an aggregate
Available Amount (i) for all Letters of Credit not to exceed at any time the Letter of Credit Facility at such time, (ii) for
all Letters of Credit issued by such Issuing Bank not to exceed such Issuing Bank’s Letter of Credit Commitment at such
time, and (iii) for each such Letter of Credit not to exceed the Unused Revolving Credit Commitments of the Lenders at such
time. No Letter of Credit shall have an expiration date (including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of 60 days before the Termination Date and one year after the date of issuance thereof, but may by its
terms be renewable annually upon notice (a “Notice of Renewal”) given to the Issuing Bank that issued
such Letter of Credit and the Administrative Agent on or prior to any date for notice of renewal set forth in such Letter of Credit
but in any event at least three Business Days prior to the date of the proposed renewal of such Letter of Credit and upon fulfillment
of the applicable conditions set forth in Article III unless such Issuing Bank has notified the Borrower (with a copy to
the Administrative Agent) on or prior to the date for notice of termination set forth in such Letter of Credit but in any event
at least 30 Business Days prior to the date of automatic renewal of its election not to renew such Letter of Credit (a “Notice
of Termination”); provided, however, that the terms of each Letter of Credit that is automatically
renewable annually shall (x) require the Issuing Bank that issued such Letter of Credit to give the beneficiary named in
such Letter of Credit notice of any Notice of Termination, (y) permit such beneficiary, upon receipt of such notice, to draw
under such Letter of Credit prior to the date such Letter of Credit otherwise would have been automatically renewed and (z) not
permit the expiration date (after giving effect to any renewal) of such Letter of Credit in any event to be extended to a date
later than 60 days before the Termination Date. If either a Notice of Renewal is not given by the Borrower or a Notice of Termination
is given by the relevant Issuing Bank pursuant to the immediately preceding sentence, such Letter of Credit shall expire on the
date on which it otherwise would have been automatically renewed; provided, however, that even in the absence of
receipt of a Notice of Renewal the relevant Issuing Bank may in its discretion, unless instructed to the contrary by the Administrative
Agent or the Borrower, deem that a Notice of Renewal had been timely delivered and in such case, a Notice of Renewal shall be
deemed to have been so delivered for all purposes under this Agreement. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrower may request the issuance of Letters of Credit under this Section 2.01(c),
repay any Letter of Credit Advances resulting from drawings thereunder pursuant to Section 2.04(d) and request the issuance
of additional Letters of Credit under this Section 2.01(c).


 






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(d)            Swing
Line Advances. The Borrower may request the Swing Line Banks to make, and each Swing Line Bank severally agrees to make, on
the terms and conditions hereinafter set forth, its ratable share of a Swing Line Advance to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination Date (i) in an aggregate amount not to exceed
at any time outstanding $25,000,000 (the “Swing Line Facility”) and (ii) in an amount for each such
Swing Line Borrowing not to exceed the aggregate of the Unused Revolving Credit Commitments of the Lenders at such time. No Swing
Line Advance shall be used for the purpose of funding the payment of principal of any other Swing Line Advance. Each Swing Line
Borrowing shall be in an amount of $1,000,000 or an integral multiple of $250,000 in excess thereof and shall be made as a Base
Rate Advance. Within the limits of the Swing Line Facility and within the limits referred to in clause (ii) above, the Borrower
may borrow under this Section 2.01(d), repay pursuant to Section 2.04(c) or prepay pursuant to Section 2.06(a) and
reborrow under this Section 2.01(d).


 


Section 2.02.     Making
the Advances. (a)  Except as otherwise provided in Section 2.03, each Borrowing (other than a Swing Line
Borrowing) shall be made on notice, given not later than 12:00 Noon (New York City 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. (New York City 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) Facility to which such Borrowing relates, (iii) Type
of Advances comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) 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 (New York City
time) on the date of such Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances and 1:00 P.M. (New
York City 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 in respect of such
applicable Facility 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; provided, however, that in the case of advances under
the Revolving Credit Facility, the Administrative Agent shall first make a portion of such funds equal to the aggregate principal
amount of any Swing Line Advances and Letter of Credit Advances made by any Swing Line Bank or Issuing Bank, as the case may be,
and by any other Lender and outstanding on the date of such Borrowing, plus interest accrued and unpaid thereon to and as of such
date, available to such Swing Line Bank or Issuing Bank, as the case may be, and such other Lenders for repayment of such Swing
Line Advances and Letter of Credit Advances.


 


(b)            Each
Swing Line Borrowing shall be made on notice, given not later than 12:00 Noon (New York City time) on the date of the proposed
Swing Line Borrowing, by the Borrower to each Swing Line Bank and the Administrative Agent. Each such notice of a Swing Line Borrowing
(a “Notice of Swing Line Borrowing”) shall be by telephone, confirmed immediately in writing or by telecopier
or e-mail, in each case specifying therein the requested (i) date of such Borrowing, (ii) amount of such Borrowing and
(iii) maturity of such Borrowing (which maturity shall be no later than the earlier of (A) the fifth Business Day after
the requested date of such Borrowing and (B) the Termination Date). Each Swing Line Bank shall, before 1:00 P.M. (New
York City time) on the date of such Swing Line Borrowing, make its ratable share thereof available to the Administrative Agent
at the Administrative Agent’s Account, in same day funds. 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. Upon written demand by the Swing Line Banks, with a copy of such demand
to the Administrative Agent, each other Revolving Lender shall purchase from the Swing Line Banks on a ratable basis, and the
Swing Line Banks shall sell and assign to each such other Revolving Lender, on a ratable basis, such other Revolving Lender’s
Pro Rata Share of such outstanding Swing Line Advance as of the date of such demand, by making available for the account of its
Applicable Lending Office to the Administrative Agent for the account of the Swing Line Banks, by deposit to the Administrative
Agent’s Account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Swing Line
Advance to be purchased by such Revolving Lender. The Borrower hereby agrees to each such sale and assignment. Each Revolving
Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line Advance on (i) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that notice of such demand is given not later than 12:00 Noon (New York
City time) on such Business Day or (ii) the first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by the Swing Line Banks to any other Revolving Lender of a portion of a Swing Line Advance,
each Swing Line Bank severally represents and warrants to such other Revolving Lender that such Swing Line Bank is the legal and
beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility
with respect to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent that any Revolving Lender
shall not have so made the amount of such Swing Line Advance available to the Administrative Agent, such Revolving Lender agrees
to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date
of demand by the Swing Line Banks until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate. If
such Revolving Lender shall pay to the Administrative Agent such amount for the account of the Swing Line Banks on any Business
Day, such amount so paid in respect of principal shall constitute a Swing Line Advance made by such Revolving Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Advance made by the Swing Line Banks
shall be reduced by such amount on such Business Day.


 






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(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 seven separate Interest Periods in effect hereunder at any time.


 


(d)            Each
Notice of Borrowing and Notice of Swing Line 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.


 


(e)            Unless
the Administrative Agent shall have received notice from a Lender prior to (x) the date of any Borrowing consisting of Eurodollar
Rate Advances or (y) 12:00 Noon (New York City time) on the date of any Borrowing consisting of Base Rate Advances 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.


 






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(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.     Issuance
of and Drawings and Reimbursement Under Letters of Credit. (a)  Request for Issuance. Each Letter of Credit
shall be issued upon notice, given not later than 12:00 Noon (New York City time) on the fifth Business Day prior to the
date of the proposed issuance of such Letter of Credit, by the Borrower to any Issuing Bank, which shall give to the Administrative
Agent and each Lender prompt notice thereof by telex, telecopier or e-mail or by means of the Approved Electronic Platform. Each
such notice of issuance of a Letter of Credit (a “Notice of Issuance”) shall be by telephone, confirmed
immediately in writing, telex, telecopier or e-mail, in each case in substantially in the form of Exhibit C hereto, specifying
therein the requested (i) date of such issuance (which shall be a Business Day), (ii) Available Amount of such Letter
of Credit, (iii) expiration date of such Letter of Credit, (iv) name and address of the beneficiary of such Letter of
Credit and (v) form of such Letter of Credit, and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to the Borrower for use in connection with such requested Letter of Credit (a “Letter
of Credit Agreement”). If (y) the requested form of such Letter of Credit is acceptable to such Issuing Bank
in its sole discretion and (z) it has not received notice of objection to such issuance from the Required Lenders, such Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article III, make such Letter of Credit available to
the Borrower at its office referred to in Section 9.02 or as otherwise agreed with the Borrower in connection with such issuance.
In the event and to the extent that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the provisions
of this Agreement shall govern. All Existing Letters of Credit shall be deemed to have been issued pursuant to this Section 2.03(a).


 


(b)            Letter
of Credit Reports. Each Issuing Bank shall furnish to the Administrative Agent (i) on the first Business Day of each month
a written report summarizing issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the preceding
month and drawings during such month under all Letters of Credit issued by such Issuing Bank and (ii) on the first Business
Day of each calendar quarter a written report setting forth the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit issued by such Issuing Bank. The Administrative Agent shall collect and furnish such reports to
each Lender.


 


(c)            Letter
of Credit Participations; Drawing and Reimbursement.


 


(i)            Immediately
upon the issuance by the Issuing Bank of any Letter of Credit, the Issuing Bank shall be deemed to have sold and transferred to
each Revolving Lender, and each Revolving Lender (in its capacity under this Section 2.03(c), a “Participant”)
shall be deemed irrevocably and unconditionally to have purchased and received from the Issuing Bank, without recourse or warranty,
an undivided interest and participation in such Letter of Credit, to the extent of such Participant’s Pro Rata Share of the
Available Amount of such Letter of Credit, each drawing or payment made thereunder and the obligations of the Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining thereto. Upon any change in the Revolving Credit
Commitments or the Revolving Lenders’ respective Pro Rata Shares pursuant to Section 9.07, it is hereby agreed that,
with respect to all outstanding Letters of Credit and unpaid drawings relating thereto, there shall be an automatic adjustment
to the participations pursuant to this Section 2.03(c) to reflect the new Pro Rata Shares of the assignor and assignee
Revolving Lenders, as the case may be.


 


(ii)            In
determining whether to pay under any Letter of Credit, the Issuing Bank shall not have any obligation with respect to the other
Revolving Lenders other than to confirm that any documents required to be delivered under such Letter of Credit appear to have
been delivered and that they appear to substantially comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by the Issuing Bank under or in connection with any Letter of Credit issued by it shall not create
for the Issuing Bank any resulting liability to the Borrower, any other Loan Party, any Revolving Lender or any other Person unless
such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of the Issuing Bank (as determined
by a court of competent jurisdiction in a final non-appealable judgment).


 






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(iii)            The
payment by any Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the
making by such Issuing Bank of a Letter of Credit Advance, which shall be a Base Rate Advance, in the amount of such draft. In
the event that the Issuing Bank makes any payment under any Letter of Credit issued by it and the Borrower shall not have reimbursed
such amount in full to the Issuing Bank pursuant to Section 2.04(c), the Issuing Bank shall promptly notify the Administrative
Agent, which shall promptly notify each Participant of such failure, and each Participant shall promptly and unconditionally pay
to the Administrative Agent for the account of the Issuing Bank the amount of such Participant’s Pro Rata Share of such unreimbursed
payment in U.S. dollars and in same day funds. Upon such notification by the Administrative Agent to any Participant required to
fund a payment under a Letter of Credit, such Participant shall make available to the Administrative Agent for the account of the
Issuing Bank its Pro Rata Share of an outstanding Letter of Credit Advance on (i) the Business Day on which demand therefor
is made by the Issuing Bank which made such Advance, provided that notice of such demand is given not later than 11:00 A.M. (New
York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand
is given after such time. If such Revolving Lender shall pay to the Administrative Agent such amount for the account of such Issuing
Bank on any Business Day, such amount so paid in respect of principal shall constitute a Letter of Credit Advance made by such
Revolving Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount on such Business Day. If and to the extent that any Revolving
Lender shall not have so made the amount of such Letter of Credit Advance available to the Administrative Agent, such Revolving
Lender agrees to pay to the Administrative Agent forthwith on demand such amount together with interest thereon, for each day from
the date of demand by such Issuing Bank until the date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable.


 


(iv)            Whenever
the Issuing Bank receives a payment of a reimbursement obligation as to which it has received any payments from the Participants
pursuant to clause (iii) above, the Issuing Bank shall pay to the Administrative Agent for the account of each such Participant
that has paid its Pro Rata Share thereof, in same day funds, an amount equal to such Participant’s share (based upon the
proportionate aggregate amount originally funded by such Participant to the aggregate amount funded by all Participants) of the
principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.


 


(d)            Failure
to Make Letter of Credit Advances. The failure of any Revolving Lender to make the Letter of Credit Advance to be made by it
on the date specified in Section 2.03(c) shall not relieve any other Revolving Lender of its obligation hereunder to
make its Letter of Credit Advance on such date, but no Revolving Lender shall be responsible for the failure of any other Revolving
Lender to make the Letter of Credit Advance to be made by such other Revolving Lender on such date.


 


Section 2.04.     Repayment
of Advances. (a)  Revolving Credit Advances. The Borrower shall repay to the Administrative Agent for the
ratable account of the Revolving Lenders on the Termination Date in respect of the Revolving Credit Facility the aggregate outstanding
principal amount of the Revolving Credit Advances then outstanding.


 






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(b)            Term
Loan 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.


 


(c)            Swing
Line Advances. The Borrower shall repay to the Administrative Agent for the account of (i) the Swing Line Bank and (ii) each
other Revolving Lender that has made a Swing Line Advance by purchase from the Swing Line Bank pursuant to Section 2.02(b),
the outstanding principal amount of each Swing Line Advance made by each of them on the earlier of the maturity date specified
in the applicable Notice of Swing Line Borrowing (which maturity shall be no later than the fifth Business Day after the requested
date of such Swing Line Borrowing) and the Termination Date in respect of the Revolving Credit Facility.


 


(d)            Letter
of Credit Advances.


 


(i)            The
Borrower shall repay to the Administrative Agent for the account of each Issuing Bank and each other Revolving Lender that has
made a Letter of Credit Advance on the same day on which such Advance was made the outstanding principal amount of each Letter
of Credit Advance made by each of them.


 


(ii)            The
Obligations of the Borrower under this Agreement, any Letter of Credit Agreement and any other agreement or instrument relating
to any Letter of Credit (and the obligations of each Revolving Lender to reimburse the Issuing Bank with respect thereto) shall
be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances:


 


(A)            any
lack of validity or enforceability of any Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement
or instrument relating thereto (all of the foregoing being, collectively, the “L/C Related Documents”);


 


(B)            any
change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of the Borrower in respect
of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;


 


(C)            the
existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction;


 


(D)            any
statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;


 


(E)            payment
by any Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;


 


(F)            any
exchange, release or non-perfection of any collateral in any material respect, or any release or amendment or waiver of or consent
to departure from the Guaranties or any other guarantee, for all or any of the Obligations of the Borrower in respect of the L/C
Related Documents; or


 






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(G)            any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any other Loan Party.


 


Section 2.05.     Termination
or Reduction of the Commitments. (a)  Optional. The Borrower may, upon at least three Business Days’
notice to the Administrative Agent, terminate in whole or reduce in part the unused portions of the Swing Line Facility, the Letter
of Credit Facility and the Unused Revolving Credit Commitments; provided, however, that each partial reduction of
any such Facility (i) shall be in an aggregate amount of $5,000,000 (or, in the case of the Swing Line Facility, $250,000)
or an integral multiple of $250,000 in excess thereof and (ii) shall be made ratably among the Lenders in accordance with
their Commitments with respect to such Facility.


 


(b)            Mandatory.
(i)  The Letter of Credit Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving
Credit Facility by the amount, if any, by which the amount of the Letter of Credit Facility exceeds the Revolving Credit Facility
after giving effect to such reduction of the Revolving Credit Facility.


 


(ii)            The
Swing Line Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving Credit Facility
by the amount, if any, by which the amount of the Swing Line Facility exceeds the Revolving Credit Facility after giving effect
to such reduction of the Revolving Credit Facility.


 


(iii)            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 such 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; 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).


 


(b)            Mandatory.
(i)  The Borrower shall, if applicable, on each Business Day, prepay an aggregate principal amount of the Revolving Credit
Advances, to the extent applicable, and the Term Loan Advances comprising part of the same Borrowings, the Swing Line Advances
and the Letter of Credit Advances, in each case in an amount sufficient, and only to the extent necessary to cause (A) the
sum of the Revolving Credit Advances, the Swing Line Advances and the Letter of Credit Exposure not to exceed the Revolving Credit
Facility on such Business Day, (B) the Leverage Ratio not to exceed the applicable maximum Leverage Ratio set forth in Section 5.04(a)(i) on
such Business Day, (C) Consolidated Unsecured Indebtedness of the Parent Guarantor not to exceed the Unencumbered Asset
Pool Amount on such Business Day, and (D) the Facility Exposure not to exceed the aggregate Commitments of the Lenders on
such Business Day. If all Advances have been prepaid and are not sufficient to cause the Borrower to comply with each of (A), (B),
(C) and (D), the Borrower shall make a deposit in the Cash Collateral Account in an amount sufficient to do the same.


 






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(ii)            The
Borrower shall, on each Business Day, pay to the Administrative Agent for deposit in the Cash Collateral Account an amount sufficient
to cause the aggregate amount on deposit in the Cash Collateral Account to equal the amount by which the aggregate Available Amount
of all Letters of Credit then outstanding exceeds the Letter of Credit Facility on such Business Day. To the extent the funds on
deposit in the Cash Collateral Account shall at any time exceed the total amount required to be deposited therein pursuant to the
terms of this Agreement, the Administrative Agent shall, promptly upon request by the Borrower and provided that no Default
or Event of Default shall then have occurred or be continuing or would result therefrom, return such excess amount to the Borrower.


 


(iii)            Any
prepayments of the Facilities made pursuant to clauses (i) and (ii) above shall be first applied to prepay Letter
of Credit Advances then outstanding until such Advances are paid in full, second applied to prepay Swing Line Advances then
outstanding until such Advances are paid in full, third applied to prepay Revolving Credit Advances then outstanding comprising
part of the same Borrowings until such Advances are paid in full, fourth deposited in the Cash Collateral Account to Cash
Collateralize 100% of the Available Amount of the Letters of Credit then outstanding and fifth applied to prepay the Term
Loan then outstanding until the Term Loan is paid in full. Upon the drawing of any Letter of Credit for which funds are on deposit
in the Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank or Revolving Lenders, as applicable.


 


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


 


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.


 






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(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 in respect of the applicable Facility
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.


 


(d)            Interest
Rate Determination. (i)  Subject to clause (ii) below, if the Reuters Screen LIBOR01 Page (or a successor page)
(the “Screen 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


 


(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)            Notwithstanding
clause (a)(ii) or (d)(i) of this Section 2.07 or any other provision of this Agreement, if the Administrative Agent
reasonably determines (which determination shall be conclusive absent manifest error) or the Borrower or the Required Lenders notify
the Administrative Agent (with, in the case of the Required Lenders, a copy to the Borrower) that the Borrower or the Required
Lenders (as applicable) have reasonably determined, that (A) adequate and reasonable means do not exist for ascertaining the
Screen Rate for any requested Interest Period, including because the Screen Rate is not available or published on a current basis
and such circumstances are unlikely to be temporary; or (B) the administrator of the Screen Rate or a Governmental Authority
having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the Screen
Rate shall no longer be made available, or be used for determining interest rates for loans; or (C) the Eurodollar Rate is
no longer a widely recognized benchmark rate for newly originated loans in U.S. dollars; or (D) syndicated loans currently
being executed, or that include language similar to that contained in this Section 2.07(d), are being executed or amended
(as applicable) to incorporate or adopt a new benchmark interest rate to replace the Eurodollar Rate, then reasonably promptly
after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the
Administrative Agent and the Borrower shall negotiate in good faith and endeavor to establish an alternate rate of interest to
the Screen Rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due
consideration to the then prevailing market convention for determining a rate of interest for similar syndicated loans denominated
in U.S. dollars at such time, and shall, notwithstanding anything to the contrary in Section 9.01, enter into an amendment
to this Agreement to reflect such alternate rate of interest, any proposed Successor Rate Conforming Changes, any adjustment to
the Applicable Margin and such other related changes to this Agreement as the Administrative Agent and the Borrower may determine
to be appropriate. Such amendment shall become effective without any further action or consent of any party to this Agreement other
than the Administrative Agent and the Borrower so long as the Administrative Agent shall not have received, within five Business
Days after the date that a copy of such amendment is provided to the Lenders, a written notice from the Required Lenders stating
that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with
this clause (d)(ii) (but, in the case of the circumstances described in clause (B) of the first sentence of this clause
(d)(ii), only to the extent the Screen Rate is not available or published at such time on a current basis), the interest rate applicable
to all outstanding Eurodollar Loans shall be determined in accordance with clause (a)(ii) or (d)(i) of this Section 2.07,
as applicable. Notwithstanding the foregoing, if any alternate rate of interest established pursuant to this clause (d)(ii) shall
be less than zero percenttwenty-five
basis points (0.25%) per annum (0.00%), such rate shall be deemed to
be zero percenttwenty-five
basis points (0.25%) per annum (0.00%) for the purposes of this Agreement.


 






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Section 2.08.     Fees.
(a)  Unused Fee. The Borrower shall pay to the Administrative Agent for the account of the Revolving Lenders an unused
commitment fee (the “Unused Fee”), from the date hereof in the case of each Initial Lender that is a
Revolving Lender and from the effective date specified in the Assignment and Acceptance or the Accession Agreement, as the case
may be, pursuant to which it became a Revolving Lender in the case of each other Revolving Lender until the Termination Date in
respect of the Revolving Credit Facility, payable in arrears quarterly on the last day of each March, June, September and
December, commencing on the date hereof, and on the Termination Date in respect of the Revolving Credit Facility. The Unused Fee
payable for the account of each Revolving Lender shall be calculated for each period for which the Unused Fee is payable on the
average daily Unused Revolving Credit Commitment of such Revolving Lender during such period at the per annum equal to:


 


(i)            0.25%
if the amount of the average daily aggregate Unused Revolving Credit Commitments is greater than 50% of the aggregate Revolving
Credit Commitments; or


 


(ii)            0.20%
if the amount of the average daily aggregate Unused Revolving Credit Commitments is equal to or less than 50% of the aggregate
Revolving Credit Commitments.


 


The aggregate principal amount of Swing
Line Advances then owing to any Swing Line Bank shall be considered excluded from the definition of aggregate Unused Revolving
Credit Commitments for purposes of the calculation of the Unused Fee.


 


(b)            Letter
of Credit Fees, Etc. (i)  The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender
a commission, payable in arrears, without duplication, (a) quarterly on the last day of each March, June, September and
December commencing December 31, 2018, (b) on the earliest to occur of the full drawing, expiration, termination
or cancellation of any Letter of Credit, and (c) on the Termination Date in respect of the Revolving Credit Facility, on such
Lender’s Pro Rata Share of the average daily aggregate Available Amount during such quarter of all Letters of Credit outstanding
from time to time for the applicable period at the rate per annum equal to the Applicable Margin for Eurodollar Rate Advances in
effect from time to time.


 


(ii)            The
Borrower shall pay to each Issuing Bank, for its own account, (A) a fronting fee for each Letter of Credit issued by such
Issuing Bank in an amount equal to the greater of (x) $1,500 and (y) 0.125% of the Available Amount of such Letter of
Credit on the date of issuance of such Letter of Credit, payable on such date and (B) such other commissions, issuance fees,
transfer fees and other fees and charges in connection with the issuance or administration of each Letter of Credit as the Borrower
and such Issuing Bank shall agree.


 


(c)            Other
Fees. The Borrower shall pay to the Administrative Agent and the 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 any Arranger.


 


(d)            Extension
Fee. If the term of the Revolving Credit Facility is extended pursuant to Section 2.16, the Borrower shall pay to the
Administrative Agent on the applicable Extension Date, for the account of each Revolving Lender, a Facility extension fee (the
 “Extension Fee”), in an amount equal to 0.075% of each Revolving Lender’s Revolving Credit Commitment
then outstanding.


 






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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 (New York City 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 under any Facility shall be made ratably among the Lenders in accordance with
their Commitments under such Facility, 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 the Facility to which such Advances relate 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.


 


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 or of agreeing to issue or of issuing or maintaining or participating
in Letters of Credit or of agreeing to make or of making or maintaining Letter of Credit 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).


 



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(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
or to issue or participate in Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of
or participation in the Letters of Credit (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 or to issue
or participate in Letters of Credit hereunder or to the issuance or maintenance of or participation in any Letters of Credit.
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.


 


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.


 



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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 (New York City
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 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.


 


(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 and Letter of Credit commissions 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 fees, indemnification payments, costs and expenses that are due and payable to the Issuing Banks
(solely in their respective capacities as such) 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
Issuing Banks on such date;


 


(iii)           third,
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;


 


(iv)            fourth,
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;


 


(v)             fifth,
to the payment of all of the fees that are due and payable to the Lenders under Section 2.08(a), (b)(i) and (d) on
such date, ratably based upon the respective aggregate Commitments of the Lenders under the Facilities on such date;


 


(vi)           sixth,
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;


 


(vii)          seventh,
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;


 


(viii)         eighth,
to the payment of any other accrued and unpaid interest 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;


 






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(ix)            ninth,
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 to deposit into the Cash Collateral Account any contingent reimbursement obligations in respect of outstanding Letters of
Credit to the extent required by Section 6.02; and


 


(x)            tenth,
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 the 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.


 


(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.


 






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(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.


 


(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 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. 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.


 


(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.


 






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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)  Sharing Within Each Facility. Subject to the provisions of Section 2.11(f), if, in connection
with any particular Facility, 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 with respect to such Facility 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 applicable Lender Parties
with respect to such Facility under the Loan Documents at such time) of payments on account of the Obligations due and payable
to all such applicable Lender Parties under the Loan Documents at such time obtained by all such applicable 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 such applicable
Lender Parties hereunder at such time) of payments on account of the Obligations owing (but not due and payable) to all such applicable
Lender Parties under the Loan Documents at such time obtained by all of such applicable Lender Parties at such time, such Lender
Party shall forthwith purchase from such other applicable 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
applicable 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(a) 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.


 


(b)            Pro
Rata Sharing Following Event of Default. Notwithstanding Section 2.13(a), following the occurrence and during the continuance
of any Event of Default and the notional conversion of all Advances denominated in Eurodollars into Dollars pursuant to Section 2.11(f),
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 and issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) for general corporate purposes of the Borrower and its Subsidiaries, including,
without limitation, (i) working capital and general corporate 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 FacilitiesFacility
and the other transactions contemplated by the Loan Documents. The Borrower will not directly or indirectly use the
Letters of Credit or the proceeds of the Advances, or lend, contribute or otherwise make available to any Subsidiary, joint venture
partner or other Person such extensions of credit or proceeds, (A) to fund any activities or businesses of or with any Person,
or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (B) in
any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Facility,
whether as underwriter, advisor, investor, or otherwise) or any Anti-Corruption Laws.


 


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 or Notes,
in substantially the form of Exhibit A-1 or Exhibit A-2 (as applicable) hereto, payable to the order of such Lender
Party in a principal amount equal to the Revolving Credit Commitment or Term Loan Commitment, respectively, 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 a control account, and a subsidiary
account for each Lender Party, in which accounts (taken together) shall be recorded (i) the date and amount of each Borrowing
made hereunder, the Facility to which such Borrowing relates, 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.      Extension
of Revolving Credit Facility Termination Date. At least 90 days but not more than 120 days prior to the Termination Date in
respect of the Revolving Credit Facility, the Borrower, by written notice to the Administrative Agent, may request, with respect
to the Revolving Credit Commitments then outstanding, up to two consecutive six-month extensions of the Termination Date. The
Administrative Agent shall promptly notify each Lender of such request and the Termination Date in respect of the Revolving Credit
Facility in effect at such time shall, effective as at such Termination Date (the “Extension Date”),
be extended for an additional six-month period, provided that the Borrower shall have paid the Extension Fees as described
in Section 2.08(d), and on the applicable Extension Date the following statements shall be true and the Administrative Agent
shall have received for the account of each Lender Party a certificate signed by a Responsible Officer of the Borrower, dated
the Extension Date, stating that: (a) the representations and warranties contained in Section 4.01 are true and correct
on and as of the Extension Date, (b) no Default or Event of Default has occurred and is continuing or would result from such
extension, and (c) the Loan Parties are in compliance with the covenants contained in Section 5.04 immediately before
and, on a pro forma basis, immediately after such extension, together with supporting information demonstrating such compliance.
In the event that an extension of the Revolving Credit Facility is effected pursuant to this Section 2.16 (but subject to
the provisions of Sections 2.05, 2.06 and 6.01), the aggregate principal amount of all Revolving Credit Advances shall be repaid
in full ratably to the Lenders on the Termination Date as so extended. As of an Extension Date, any and all references in this
Agreement, the Revolving Notes, if any, or any of the other Loan Documents to the “Termination Date” with respect
to the Revolving Credit Commitments or the Revolving Credit Facility, shall refer to the Termination Date in respect of the Revolving
Credit Facility as so extended.


 


Section 2.17.      Increase
in the Aggregate Commitments. (a)  The Borrower may, at any time (but no more than once in any consecutive 12-month period),
by written notice to the Administrative Agent, request either (i) an increase in the aggregate amount of the Revolving Credit
Commitments, (ii) an increase in the aggregate amount of the Term Loan Commitments, in the form of an additional tranche
within the Term Loan Facility, or (iii) an increase in the aggregate amount of the Revolving Credit Commitments and an increase
in the aggregate amount of the Term Loan Commitments, in each case by not less than $5,000,000 (each such proposed increase, a
 “Commitment Increase”) to be effective as of a date that is at least 90 days prior to the scheduled
Termination Date then in effect (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 in respect of
all Facilities at any time exceed $900,000,000 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 (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.


 






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(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 Facility to which such Commitment
Increase relates, (iii) the proposed Increase Date and (iv) 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 applicable 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.


 


(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 (New York City 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 applicable 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; and


 


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


 






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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. (New York City 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, to the extent the Advances in respect of the Increasing Facility then outstanding and owed to any Lender immediately
prior to the effectiveness of the Commitment Increase shall be less than such Lender’s pro rata share (calculated immediately
following the effectiveness of the Commitment Increase) of all Advances in respect of such Facility then outstanding and owed
to all Lenders in respect of such Facility (each such Lender, including any Acceding Lender, a “Purchasing Lender”),
then such Purchasing Lender, without executing an Assignment and Acceptance, shall be deemed to have purchased an assignment of
a pro rata portion of the Advances in respect of such Facility then outstanding and owed to each Lender in respect of such
Facility that is not a Purchasing Lender (a “Selling Lender”) in an amount sufficient such that following
the effectiveness of all such assignments the Advances outstanding and owed to each Lender in respect of such Facility shall equal
such Lender’s pro rata share (calculated immediately following the effectiveness of the Commitment Increase on the Increase
Date) of all Advances in respect of such Facility then outstanding and owed to all Lenders in respect of such Facility. The Administrative
Agent shall calculate the net amount to be paid by each Purchasing Lender and received by each Selling Lender in connection with
the assignments effected hereunder on the Increase Date. Each Purchasing Lender shall make the amount of its required payment
available to the Administrative Agent, in same day funds, at the office of the Administrative Agent not later than 12:00 P.M. (New
York time) on the Increase Date. The Administrative Agent shall distribute on the Increase Date the proceeds of such amount to
each of the Selling Lenders entitled to receive such payments at its Applicable Lending Office. If in connection with the transactions
described in this Section 2.17 any Lender shall incur any losses, costs or expenses of the type described in Section 9.04(c),
then the Borrower shall, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such Lender for such losses, costs or expenses reasonably
incurred.


 


Section 2.18.      Cash
Collateral Account. (a)  Grant of Security. The Borrower hereby pledges to the Administrative Agent, as collateral
agent for the ratable benefit of the Lenders, and hereby grants to the Administrative Agent, for the ratable benefit of the Lender
Parties, a security interest in, the Borrower’s right, title and interest in and to the Cash Collateral Account and all
(i) funds and financial assets from time to time credited thereto (including, without limitation, all Cash Equivalents),
interest, dividends, distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such funds and financial assets, and all certificates and instruments, if any,
from time to time representing or evidencing the Cash Collateral Account, (ii) promissory notes, certificates of deposit,
deposit accounts, checks and other instruments from time to time delivered to or otherwise possessed by the Administrative Agent
in substitution for or in addition to any or all of the then existing L/C Account Collateral and (iii) interest, dividends,
distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the then existing L/C Account Collateral, in each of the cases set forth in clauses (i), (ii) and
(iii) above, whether now owned or hereafter acquired by the Borrower, wherever located, and whether now or hereafter existing
or arising (all of the foregoing, collectively, the “L/C Account Collateral”).


 


(b)            Maintaining
the L/C Account Collateral. So long as any Advance or any other Obligation of any Loan Party under any Loan Document shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have any Commitment:


 


(i)            the
Borrower will maintain all L/C Account Collateral only with the Administrative Agent;


 






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(ii)            the
Administrative Agent shall have the sole right to direct the disposition of funds with respect to the Cash Collateral Account
subject to the provisions of this Agreement, and it shall be a term and condition of such Cash Collateral Account that, except
as otherwise provided herein, notwithstanding any term or condition to the contrary in any other agreement relating to the Cash
Collateral Account, as the case may be, that no amount (including, without limitation, interest on Cash Equivalents credited thereto)
will be paid or released to or for the account of, or withdrawn by or for the account of, the Borrower or any other Person from
the Cash Collateral Account; and


 


(iii)           the
Administrative Agent may (with the consent of the Required Lenders and shall at the request of the Required Lenders), at any time
and without notice to, or consent from, the Borrower, transfer, or direct the transfer of, funds from the L/C Account Collateral
to satisfy the Borrower’s Obligations under the Loan Documents if an Event of Default shall have occurred and be continuing.


 


(c)            Investing
of Amounts in the Cash Collateral Account. The Administrative Agent will, from time to time (i) invest (A) amounts
received with respect to the Cash Collateral Account in such Cash Equivalents credited to the Cash Collateral Account as the Borrower
may select and the Administrative Agent may approve in its reasonable discretion, and (B) interest paid on the Cash Equivalents
referred to in clause (i)(A) above, and (ii) reinvest other proceeds of any such Cash Equivalents that may mature or
be sold, in each case in such Cash Equivalents credited in the same manner. Interest and proceeds that are not invested or reinvested
in Cash Equivalents as provided above shall be deposited and held in the Cash Collateral Account. In addition, the Administrative
Agent shall have the right at any time to exchange such Cash Equivalents for similar Cash Equivalents of smaller or larger determinations,
or for other Cash Equivalents, credited to the Cash Collateral Account.


 


(d)            Release
of Amounts. So long as no Event of Default shall have occurred and be continuing or would result therefrom, the Administrative
Agent will pay and release to the Borrower or at its order or, at the request of the Borrower, to the Administrative Agent to
be applied to the Obligations of the Borrower under the Loan Documents such amount, if any, as is then on deposit in the Cash
Collateral Account.


 


(e)            Remedies.
Upon the occurrence and during the continuance of any Event of Default, in addition to the rights and remedies available pursuant
to Article VI hereof and under the other Loan Documents, (i) the Administrative Agent may exercise in respect of the
L/C Account Collateral all the rights and remedies of a secured party upon default under the UCC (whether or not the UCC applies
to the affected L/C Account Collateral), and (ii) the Administrative Agent may, without notice to the Borrower (except as
required by law) and at any time or from time to time, charge, set-off and otherwise apply all or any part of the Obligations
of the Borrower under the Loan Documents against any funds held with respect to the L/C Account Collateral or in any other deposit
account.


 


Article III

CONDITIONS OF LENDING AND ISSUANCES OF LETTERS OF CREDIT


 


Section 3.01.      Conditions
Precedent to Initial Extension of Credit. The obligation of each Lender to make an Advance or of any Issuing Bank to
issue a Letter of Credit 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:


 






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(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],


 


(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),


 


(C)            [Intentionally
Omitted],


 


(D)            [Intentionally
Omitted],


 


(E)             [Intentionally
Omitted],


 


(F)             certified
copies of each Management Agreement, Franchise Agreement, and, to the extent applicable, Qualifying Ground Lease, in each case
together with all amendments thereto, entered into with respect to each of the Unencumbered Assets,


 


(G)             copies
of all leases (including, without limitation, all leases with Affiliates and Operating Leases) and Material Contracts relating
to each of the Unencumbered Assets, and


 


(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.


 


(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
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 (1) 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, (2) such
Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate
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.
Notwithstanding the foregoing, if the information required in this subsection (vi) shall have previously been delivered to
the Administrative Agent, the Administrative Agent will accept, in lieu of such materials (other than with respect to evidence
of good standing and current payment of franchise taxes), a certificate from the applicable Loan Party that there has been no
change to such materials since the date most recently provided to the Administrative Agent.


 






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(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. Notwithstanding the foregoing,
if the information required in this subsection (vii) shall have previously been delivered to the Administrative Agent, the
Administrative Agent will accept, in lieu of such materials (other than with respect to evidence of good standing and current
required annual reports), a certificate from the applicable Loan Party that there has been no change to such materials since the
date most recently provided to the Administrative Agent.


 


(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.


 


(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, 2017 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 nine months then ended and financial projections for the Parent Guarantor’s consolidated operations.


 



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(xi)            Evidence
of insurance (which may consist of binders or certificates of insurance) with such responsible and reputable insurance companies
or associations, and in such amounts and covering such risks, as is satisfactory to the Lender Parties.


 


(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,
and (B) from Hagen, Wilka & Archer, LLP in substantially the form of Exhibit F-3 hereto, in each case covering
such other matters as any Lender Party through the Administrative Agent may reasonably request.


 


(xiv)         A
Notice of Borrowing or Notice of Issuance, as applicable, 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.


 


(xvi)         A
breakage indemnity letter agreement executed by the Borrower in form and substance satisfactory to the Administrative Agent and
dated and delivered to the Administrative Agent at least three (3) Business Days prior to the Closing Date.


 


(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 September 30, 2018.


 


(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.


 



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(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)            (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.


 


(j)            The
Existing Credit Agreement shall have been, or substantially simultaneously with the effectiveness hereof shall be, terminated
and all Obligations thereunder paid in full.


 


Section 3.02.      Conditions
Precedent to Each Borrowing, Issuance, Renewal, Extension and Increase. The obligation of each Lender to make
an Advance (other than a Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section 2.03(c) and
a Swing Line Advance made by a Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing (including the initial
Borrowing) and the obligation of each Issuing Bank to issue a Letter of Credit (including the initial issuance) or renew a Letter
of Credit, the extension of Commitments pursuant to Section 2.16, and the right of the Borrower to request a Swing Line Borrowing
or 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, issuance,
renewal, extension or increase (a), the following statements shall be true and the Administrative Agent shall have received for
the account of such Lender, the Swing Line Bank or such Issuing Bank (w) a Notice of Borrowing or Notice of Issuance, as
applicable, dated the date of such Borrowing, issuance, renewal, extension 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 First Amendment or otherwise), and (z) a certificate
signed by a Responsible Officer of the Borrower, dated the date of such Borrowing, issuance, renewal, extension 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, issuance, renewal, extension or increase, and (B) in the case of any Borrowing or issuance
or renewal, the application of the proceeds therefrom, as though made on and as of such date;


 



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


 


(iii)            for
each Revolving Credit Advance, or Swing Line Advance made by the Swing Line Bank or issuance or renewal of any Letter of Credit,
(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, issuance or renewal, respectively, and (B) before and after giving
effect to such Advance, issuance or renewal, 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.


 


In the event that there shall exist a Defaulting Lender, the
obligations of each Issuing Bank to issue a Letter of Credit and each Swing Line Bank to make a Swing Line Advance shall also
be subject to the provisions of Section 9.10.


 


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.


 


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.


 






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(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.


 


(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.


 






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(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 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.


 


(g)           Financial
Condition. The Consolidated balance sheets of the Parent Guarantor as at December 31, 2017 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, and the Consolidated balance
sheets of  the Parent Guarantor as at September 30, 2018, and the related Consolidated statements of income
and Consolidated statements of cash flows of  the Parent Guarantor for the nine months then ended, copies of which
have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheets as at September 30, 2018,
and such statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated
financial condition of  the Parent Guarantor as at such dates and the Consolidated results of operations of  the
Parent Guarantor for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on
a consistent basis.  Since December 31, 2017 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 or drawings under any Letter of Credit 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.


 


 



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(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 issuance of any Letters of Credit, 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.


 


(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 First 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).


 






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(i)            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.


 


(ii)           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).


 


(iii)          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.


 


(i)            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.


 


(ii)           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.


 


(i)            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.


 


(ii)           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 and furnished to the Lender Parties, 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.


 


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


 


(iv)          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.


 






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(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.


 


(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, any
Letter of Credit shall be outstanding 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.


 






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(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.


 


(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, but in no event
shall such amounts be lower or coverages be less comprehensive than the respective insurance amounts and coverages maintained by
the Borrower and its Subsidiaries on the Closing Date approved by the Administrative Agent.


 


(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.


 






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(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.


 


(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 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, deeds,
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);


 


(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;


 






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(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.


 


(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, NYSE MKT or NASDAQ and (ii) timely file all reports required to be filed by it in connection therewith.


 






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(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 the 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.


 


(x)           Equal
Treatment. (i)  Cause the Facility to have equal support as 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, 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, the 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 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 the 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) the
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 the Parent Guarantor or any owner or lessee of an Unencumbered Asset, which may only be released as otherwise
provided in this Agreement.


 






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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, any
Letter of Credit shall be outstanding 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:


 


(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);


 






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(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);


 


(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


 


(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;


 






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(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; and


 


(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 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.


 


(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.


 






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(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:


 


(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,


 






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(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


 


(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 any
interest in 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);


 






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(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


 


(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).


 






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(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.


 


(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;


 






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(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.


 


(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, 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 Section 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.


 






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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,
any Letter of Credit shall be outstanding 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.


 


(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.


 






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(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.


 


(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.


 






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(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)            Material
Contract. As soon as available, a copy of any Material Contract entered into with respect to any Unencumbered Asset after the
date hereof.


 


(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.


 






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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, any Letter of Credit shall be outstanding or any Lender Party shall have, at any time after the Initial Extension of
Credit, any Commitment hereunder, the Parent Guarantor will:


 


(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 Initial Maturity Date and (2) not more than two times during the term of the Facilities, 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)            [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 First 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%.


 


(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.


 






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(i)            Maximum
Unsecured Leverage Ratio. Maintain at all times a ratio of Consolidated Unsecured Indebtedness of the Parent Guarantor to Unencumbered
Asset Value 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,
a ratio of Consolidated Unsecured Indebtedness of the Parent Guarantor to Unencumbered Asset Value of equal to or less than 65%;
provided further that (A) such Unsecured Leverage Ratio Increase Elections may only occur (1) prior to the Initial
Maturity Date and (2) not more than two times during the term of the Facilities, 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) or 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.


 


(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


 






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(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) or (v), 5.02, 5.03(a), (g), (k), (l), (m), (n), 5.04
or 9.10(d), or (ii) the Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 5.03(b),
(c), (d), (e), (f), (h), (i), (j), (o), or (p) 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 any 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.


 


(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 (including
any Bail-In Action), 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


 


(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 (other than Letter of Credit Advances by an Issuing Bank or a Lender
pursuant to Section 2.03(c) and Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of each Issuing
Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request,
or may with the consent, of the Required Lenders, (A) 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, and (B) by notice to each party required
under the terms of any agreement in support of which a Letter of Credit is issued, request that all Obligations under such agreement
be declared to be due and payable; 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 (other than Letter of Credit Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Lender pursuant to Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit 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.


 


 






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Section 6.02.     Actions
in Respect of the Letters of Credit upon Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders, irrespective of whether it is taking any of the actions
described in Section 6.01 or 2.18(e) or otherwise, make demand upon the Borrower to, and forthwith upon such demand
the Borrower will, pay to the Administrative Agent on behalf of the Lender Parties in same day funds at the Administrative Agent’s
office designated in such demand, for deposit in the Cash Collateral Account, an amount equal to the aggregate Available Amount
of all Letters of Credit then outstanding; 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, such amount shall be automatically due and payable
by the Borrower to the Cash Collateral Account, without presentment, demand, protest, or any notice of any kind. If at any time
the Administrative Agent or the Issuing Bank determines that any funds held in the Cash Collateral Account are subject to any
right or claim of any Person other than the Administrative Agent and the Lender Parties with respect to the Obligations of the
Loan Parties under the Loan Documents, or that the total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional
funds to be deposited and held in the Cash Collateral Account, an amount equal to the excess of (a) such aggregate Available
Amount over (b) the total amount of funds, if any, then held in the Cash Collateral Account that the Administrative Agent,
as the case may be, determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit in the Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank
or Lenders, as applicable, to the extent permitted by applicable law.


 


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:


 


(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;


 






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(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.


 


(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.


 






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(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.


 


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 Letters of Credit shall
have expired or been terminated, 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 Letters of Credit and 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 Letters
of Credit and 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 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 Facilities, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, 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 Letters of Credit and
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 capacities as a Lender, the Swing Line Bank (if applicable) and as an Issuing
Bank (if applicable) 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 co-syndication
agent, documentation agent, senior manager, joint lead arranger or joint bookrunner, 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, 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; 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.
      DBNY and Affiliates. With respect to its Commitments,
the Advances made by it and the Notes issued to it, DBNY 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 DBNY in its individual capacity. DBNY 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 DBNY were not the Administrative Agent or the Administrative
Agent and without any duty to account therefor to the Lender Parties.


 


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.


 



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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.


 


(b)            Each
Lender Party severally agrees to indemnify each Issuing Bank (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 such Issuing Bank in any way relating to or arising out of the Loan Documents or any action taken
or omitted by such Issuing Bank under the Loan Documents; 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 such Issuing Bank’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 such Issuing Bank
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 such Issuing Bank is not promptly reimbursed for such costs
and expenses by the Borrower.


 


(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
or any Issuing Bank, as the case may be, promptly upon demand for its ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or such Issuing Bank, as the case may be, as provided herein shall not relieve any other Lender
Party of its obligation hereunder to reimburse the Administrative Agent or such Issuing Bank, as the case may be, 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 or such Issuing Bank, as the case may be, 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.


 






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Section 8.06.     Successor
Agents. The Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the
Lender Parties and the Borrower and may be removed at any time with or without cause by the Required Lenders; provided,
however, that any removal of the Administrative Agent will not be effective until it has been replaced as Administrative
Agent and it (or its Affiliate) has been replaced as an Issuing Bank and released from all obligations in respect thereof. Upon
any such resignation or removal, 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 or the Required Lenders’ removal of the retiring Agent, 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 or removal 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 or removal 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 or removal 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. In addition to the foregoing, if a Lender becomes, and during any
period such Lender remains, a Defaulting Lender, any Issuing Bank or Swing Line Bank may resign at any time by giving 30 days’
prior notice to the Administrative Agent, the Lenders and the Borrower. After the resignation of an Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to such resignation, but
shall not be required to issue additional Letters of Credit or to extend, renew or increase any existing Letter of Credit. After
the resignation of a Swing Line Bank hereunder, the retiring Swing Line Bank shall remain a party hereto and shall continue to
have all the rights and obligations of a Swing Line Bank under this Agreement and the other Loan Documents with respect to Swing
Line Advances issued by it prior to such resignation, but shall not be required to issue additional Swing Line Advances or to
extend, renew or increase any existing Swing Line Advances.


 


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.


 


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 such Guarantor or otherwise limit such 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 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 either Facility (except
as provided by Section 2.16); provided further that (A) no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or each Issuing Bank, as the case may be, in addition to the Lenders required above to take
such action, affect the rights or obligations of the Swing Line Bank or of the Issuing Banks, as the case may be, under this Agreement;
and (B) 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.


 






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(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 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 DBNY in its capacity as an Initial
Issuing Bank, at its address at 60 Wall Street, 23rd Floor, New York, New York 10005-2858, Attention: Melissa Reeves,
Trade Finance & Lending—Loan Operations, Standby Letter of Credit, telecopier number (646) 350-3183, or, if applicable,
at melissa.reeves@db.com and sblc_unit_ny@list.db.com (and in the case of a transmission by e-mail, with a copy by U.S. mail to
60 Wall Street, 23rd Floor, New York, New York 10005-2858, Attention: Melissa Reeves, Trade Finance & Lending—Loan
Operations, Standby Letter of Credit) with a copy to DBNY at its address at 5022 Gate Parkway, Suite 200, Jacksonville, FL
32256, Attention: Sara Pelton, telecopier number (904)746-4860, sara.pelton@db.com; if to Bank of America, N.A in its capacity
as an Initial Issuing Bank, at its address at One Fleet Way, 2nd Floor, Mail Code PA6-580-02-30, Scranton PA 18507,
Attention: Global Trade Operations, telephone number 1 (800) 370-7519, telecopier number 1 (800) 755-8743, or, if applicable,
at Scranton_standby_lc@bankofamerica.com (and in the case of a transmission by e-mail, with a copy by U.S. mail to One Fleet Way,
2nd Floor, Mail Code PA6-580-02-30, Scranton PA 18507, Attention: Global Trade Operations); if to Regions Bank in its
capacity as an Initial Issuing Bank, at its address at 1900 5th Avenue North, 15th Floor, Birmingham, AL
35203, Attention: Jule Ann Martin, telephone number (205) 326-5651, telecopier number (205) 261-7939, or, if applicable, at juleann.martin@regions.com
or cast@regions.com (and in the case of a transmission by e-mail, with a copy by U.S. mail to 1900 5th Avenue North,
15th Floor, Birmingham, AL 35203, Attention: Jule Ann Martin); if to U.S. Bank National Association in its capacity
as Initial Issuing Bank, at its address at 13737 Noel Road Suite 800, Dallas, Texas 75240, Attention Patrick A. Trowbridge,
telephone number (972) 581-1618, Patrick.trowbridge@usbank.com, with a copy to 1100 Abernathy Road, Suite 1250, Atlanta,
GA 30328, Attention: Charlene Anderson, telephone number (770)512-3123, charlene.anderson@usbank.com; if to the Administrative
Agent with respect to any Notice of Borrowing or DBNY in its capacity as a Swing Line Bank, agency.transactions@db.com, with a
copy to DBNY at its address at 5022 Gate Parkway, Suite 200, Jacksonville, FL 32256, Attention: Sara Pelton, telecopier number
(904)746-4860, sara.pelton@db.com; and if to the Administrative Agent with respect to any other matter, to Deutsche Bank AG New
York Branch, 60 Wall Street, 2nd Floor, New York, New York 10005, Attention: Philip Tancorra, email: Philip.tancorra@db.com
and ldcm.loanmgmt@db.com; Phone No.: (212) 250-6576, with required
copies to jonathan.jacobs@db.com, robert.pettinato@db.com, james.rolison@db.com, alison.lugo@db.com and annie.chung@db.com;
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 Philip.tancorra@db.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 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 (including, as of the Closing Date, a dual firewall and a User ID/Password Authorization System) 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 and the Arrangers 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 or any Arranger 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) or 5.01(k), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, extension, reinstatement
or renewal of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket costs and
expenses of the Administrative Agent, the 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 Facilities, the actual or proposed use of the proceeds of the Advances or the Letters
of Credit, 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 Facilities, the actual or proposed use of the proceeds of the Advances or the Letters of Credit,
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.


 


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, the Issuing Bank, the Swing Line Bank 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. TheIf
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.


 






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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 and each Initial
Issuing Bank that such Initial Lender or such Initial Issuing Bank, as the case may be, 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 one or more of the Facilities, (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 under each Facility
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, each Issuing Bank and the Borrower, no such assignments shall be permitted (A) until the Administrative
Agent shall have notified the Lender Parties that syndication of the Commitments hereunder has been completed, without the consent
of the Administrative Agent, and (B) at any other time without the consent of the Administrative Agent and each Issuing Bank
(which consent, in each case, shall not be unreasonably withheld or delayed), provided, however, that (1) Merrill
Lynch, Pierce, Fenner & Smith Incorporated may, without prior notice to the Borrower, assign its rights and obligations
under this Agreement to any other registered broker-dealer owned by Bank of America Corporation to which all or substantially
all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or
related businesses may be transferred following the date of this Agreement, and (2) each Issuing Bank confirms
that its consent (in such capacity as an Issuing Bank) shall not be required for any assignment by a Lender to Compass Bank (or
any of its affiliates) as assignee pursuant to this Section 9.07, 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.


 


(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 or Issuing Bank, as the case may
be, hereunder and (ii) the Lender or Issuing Bank 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 or Issuing Bank’s rights and obligations under this Agreement, such Lender or Issuing Bank
shall cease to be a party hereto).


 






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(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 or Issuing Bank, as the case may be.


 


(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 under
each Facility of, and principal amount of the Advances owing under each Facility 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 and each other Agent. 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-1 or Exhibit A-2 (as applicable) hereto.


 






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(f)             Each
Issuing Bank may assign to one or more Eligible Assignees all or a portion of its rights and obligations under the undrawn portion
of its Letter of Credit Commitment at any time; provided, however, that (i) except in the case of an assignment
to a Person that immediately prior to such assignment was an Issuing Bank or an assignment of all of an Issuing Bank’s rights
and obligations under this Agreement, the amount of the Letter of Credit Commitment of the assigning Issuing Bank being assigned
pursuant to each 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 and shall be in an integral multiple of $1,000,000 in excess thereof, (ii) each such assignment
shall be to an Eligible Assignee and (iii) 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 a processing and recordation
fee of $3,500, provided that such fee shall not be payable if the assigning Issuing Bank is making such assignment simultaneously
with the assignment in its capacity as a Lender of all or a portion of its Revolving Credit Commitment to the same Eligible Assignee.


 


(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.
To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.05 as though such Participant
were a Lender; provided, that such Participant shall be deemed to be subject to Section 2.13 as though it were a Lender.
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, letter of credit or other obligation is in registered form under section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender
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.


 






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(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.


 


(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, each Issuing Bank,
each Swing Line Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate)
its full Pro Rata Share of all Advances and participations in Letters of Credit and Swing Line 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(l),
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.


 






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(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.


 


Section 9.09.           No
Liability of the Issuing Banks. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee
of any Letter of Credit with respect to its use of such Letter of Credit. Neither any Issuing Bank nor any of its officers or
directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions
of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or
forged; (c) payment by such Issuing Bank against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Borrower shall
have a claim against such Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the extent of any direct, but
not consequential, damages suffered by the Borrower that the Borrower proves were caused by (i) such Issuing Bank’s
willful misconduct or gross negligence as determined in a final, non-appealable judgment by a court of competent jurisdiction
in determining whether documents presented under any Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank’s willful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.


 


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.


 






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(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,
to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Bank or Swing Line Bank hereunder;
third, to Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender in accordance with
Section 9.10(d); 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 (A) satisfy such Defaulting Lender’s potential future funding obligations with respect to Advances under
this Agreement and (B) Cash Collateralize the Issuing Banks’ future Fronting Exposure with respect to such Defaulting
Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 9.10(d); sixth, to
the payment of any amounts owing to the Lenders, the Issuing Banks or the Swing Line Banks as a result of any judgment of a court
of competent jurisdiction obtained by any Lender, the Issuing Banks or the Swing Line Banks 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 or drawn under any Letter of Credit in respect of which
such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters
of Credit were issued 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, and amounts drawn on Letters of Credit owed to,
all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any the Advances of, and amounts drawn
on Letters of Credit owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in
the Letter of Credit Exposure and Swing Line Advances are held by the Lenders pro rata in accordance with the Commitments under
the applicable Facility without giving effect to Section 9.10(a)(iv). Any payments, prepayments or other amounts paid or payable
to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant
to this Section 9.10(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.


 


(iii)           (A)           No
Defaulting Lender shall be entitled to receive any Unused Fee or Extension Fee for any period during which that Lender is a Defaulting
Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to
that Defaulting Lender).


 


(B)            Each
Defaulting Lender shall be entitled to receive its Pro Rata Share of fees to be paid pursuant to Section 2.08(b) for
any period during which that Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount
of Letters of Credit for which it has provided Cash Collateral pursuant to Section 9.10(d).


 


(C)            With
respect to any letter of credit fees under Section 2.08(b) not required to be paid to any Defaulting Lender pursuant
to clause (B) above, the Borrower shall (x) pay to the Administrative Agent that portion of any such fee otherwise payable
to such Defaulting Lender with respect to such Defaulting Lender’s participation in the Letter of Credit Exposure or Swing
Line Advances that has been reallocated to any Non-Defaulting Lenders pursuant to Section 9.10(a)(iv), (y) pay to each
Issuing Bank and Swing Line Bank, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the
extent allocable to such Issuing Bank’s or Swing Line Bank’s Fronting Exposure to such Defaulting Lender, and (z) not
be required to pay the remaining amount of any such fee.


 






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(iv)            all
or any part of such Defaulting Lender’s participation in Letter of Credit Exposure and Swing Line Advances shall be reallocated
among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting
Lender’s Commitments) but only to the extent that (x) the conditions set forth in Section in Section 3.01
and 3.02, as applicable, are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified
the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are
satisfied at such time), and (y) such reallocation does not cause the aggregate Facility Exposure allocable to any Non-Defaulting
Lender to exceed such Non-Defaulting Lender’s Commitments. No reallocation hereunder shall constitute a waiver or release
of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including
any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.


 


(v)            if
the reallocation described in Section 9.10(a)(iv) cannot, or can only partially be effected, the Borrower shall, without
prejudice to any right or remedy available to it hereunder or under law, (x) first prepay Swing Line Advances in an amount
equal to the Swing Line Banks’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’ Fronting
Exposure in accordance with the procedures set forth in Section 9.10(d).


 


(b)            If
the Borrower, the Administrative Agent and each Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject
to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), 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 and funded and unfunded participations in Letters
of Credit and Swing Line Advances to be held pro rata by the Lenders in accordance with Pro Rata Share of the Commitments under
the applicable Facility (without giving effect to Section 9.10(a)(iv)), 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)            So
long as any Lender is a Defaulting Lender, (i) the Swing Line Bank shall not be required to fund any Swing Line Advances unless
it is satisfied that the participation therein will be fully allocated among non-Defaulting Lenders in a manner consistent with
clause Section 9.10(a)(iv) and the Defaulting Lender shall not participate therein and (ii) no Issuing Bank shall
be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that the participations in the Letter
of Credit Exposure related to any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit
has been or will be fully allocated among the non-Defaulting Lenders in a manner consistent with Section 9.10(a)(iv) and
such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been
or will be fully Cash Collateralized in a Defaulting Lender Cash Collateral Account accordance with Section 9.10(d).


 


(d)            Not
in limitation of the Cash Collateralization provisions of Section 2.06(b) and Section 6.02:


 


(i)            at
any time that there shall exist a Defaulting Lender, within one Business Day following the written request of the Administrative
Agent or any Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the Issuing Banks’
Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 9.10(a)(iv) and any
Cash Collateral deposited in a Defaulting Lender Cash Collateral Account by such Defaulting Lender) in an amount not less than
the Minimum Collateral Amount.


 






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(ii)            the
Borrower, and to the extent provided by any Defaulting Lender in a Defaulting Lender Cash Collateral Account, such Defaulting Lender,
hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security
interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect
of the Letter of Credit Exposure, to be applied pursuant to Section 9.10(d)(iii). If at any time the Administrative Agent
determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Issuing
Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower
will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in
an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral deposited in a Defaulting Lender
Cash Collateral Account by the Defaulting Lender).


 


(iii)            notwithstanding
anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 9.10(d) or Section 9.10(a)(v) in
respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations
in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such
obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be
provided for herein.


 


(iv)            Cash
Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this Section 9.10(d) following (1) the elimination of the applicable
Fronting Exposure (including by the termination of Defaulting Lender status of the applicable), or (2) the determination by
the Administrative Agent and the Issuing Banks that there exists excess Cash Collateral; provided, however, that,
subject to Section 9.10(a)(ii), the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral
shall not be released and shall be held to support future anticipated Fronting Exposure or other obligations.


 


(e)            The
Borrower may terminate the Unused Revolving Credit Commitment of any Lender that is a Defaulting Lender upon not less than five
Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), and in such event
the provisions of Section 9.10(a)(ii) will apply to all amounts thereafter paid by the Borrower for the account of such
Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts); provided
that (i) no Event of Default shall have occurred and be continuing, and (ii) such termination shall not be deemed to
be a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank, any Swing Line Bank or any Lender
may have against such Defaulting Lender.


 






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Section 9.11.          Confidentiality.
(a)  Each of the Administrative Agent, the Lender Parties and the Issuing Bank 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,
the Issuing Bank or any of their respective Affiliates on a non-confidential basis from a source other than the Parent or any
of its Subsidiaries without the Administrative Agent, such Lender Party, the Issuing Bank or any of their respective Affiliates
having knowledge that a duty of confidentiality to the Parent 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 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 or any of its Subsidiaries) relating to the Parent 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, 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.


 


(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.


 






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Section 9.12.          Certain
ERISA Matters. (a) Each Lender (x) represents and warrants, as of the date such Person became a Lender Party,
and (y) covenants, from the date such Person became a Lender Party to the date such Person ceases being a Lender Party, for
the benefit of the Administrative Agent, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other
Loan Party, that at least one of the following is and will be true:


 


(i)            such
Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit
Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Advances, the
Letters of Credit, the Commitments or this Agreement,


 


(ii)            the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts),
PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into,
participation in, administration of and performance of the Obligations of such Lender in respect of the Advances, the Letters of
Credit, the Commitments and this Agreement, or


 


(iii)            (A) such
Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI
of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter
into, participate in, administer and perform the Obligations of such Lender in respect of the Advances, the Letters of Credit,
the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Obligations
of such Lender in respect of the Advances, the Letters of Credit, the Commitments and this Agreement satisfies the requirements
of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements
of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation
in, administration of and performance of the Obligations of such Lender in respect of the Advances, the Letters of Credit, the
Commitments and this Agreement.


 


(b)            In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender, such Lender
further (x) represents and warrants, as of the date such Person became a Lender Party, and (y) covenants, from the date
such Person became a Lender Party to the date such Person ceases being a Lender Party, for the benefit of the Administrative Agent,
and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent
is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration
of and performance of the Advances, the Letters of Credit, the Commitments and this Agreement (including in connection with the
reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related
to hereto or thereto) SECTION 1.01. .


 


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.


 






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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.


 


(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 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, THE LETTERS OF CREDIT OR THE ACTIONS OF THE ADMINISTRATIVE AGENT
OR ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


Section 9.17.          Acknowledgment
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;


 


(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


 






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(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.          Acknowledgement
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.


 


(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).


 






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(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 First Amendment), (ii) any designation of any Unencumbered Asset as a non-Unencumbered Asset that is permitted by Section 5.02(e)(C) and
the First 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 Letters of Credit and 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.


 


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.


 


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