exv10w1






Exhibit 10.1




 




FIRST AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT




Dated as of July 10, 2009




Among




INTERSTATE OPERATING COMPANY, LP,




as the Borrower,




BANK OF AMERICA, N.A.,




as the Administrative Agent,




BANC OF AMERICA SECURITIES LLC




as Sole Lead Arranger and Sole Book Runner,




and




VARIOUS LENDERS




 





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	Section 1.01 Certain Defined Terms
	 	 	1	 
	Section 1.02 Computation of Time Periods
	 	 	27	 
	Section 1.03 Accounting Terms; Changes in GAAP
	 	 	27	 
	Section 1.04 Classes and Types of Advances
	 	 	27	 
	Section 1.05 Letters of Credit
	 	 	27	 
	Section 1.06 Miscellaneous
	 	 	27	 
	ARTICLE II THE ADVANCES AND THE LETTERS OF CREDIT
	 	 	28	 
	Section 2.01 The Advances
	 	 	28	 
	Section 2.02 Method of Borrowing/Treatment of Advances
	 	 	28	 
	Section 2.03 Fees
	 	 	31	 
	Section 2.04 Reduction of the Revolving Commitments
	 	 	32	 
	Section 2.05 Repayment of Obligations; Maturity Date
	 	 	32	 
	Section 2.06 Interest, Late Payment Fee
	 	 	33	 
	Section 2.07 Prepayments
	 	 	34	 
	Section 2.08 Breakage Costs
	 	 	37	 
	Section 2.09 Increased Costs
	 	 	37	 
	Section 2.10 Payments and Computations
	 	 	38	 
	Section 2.11 Taxes
	 	 	39	 
	Section 2.12 Illegality
	 	 	41	 
	Section 2.13 Letters of Credit
	 	 	41	 
	Section 2.14 Intentionally Omitted
	 	 	44	 
	Section 2.15 Lender Replacement
	 	 	44	 
	Section 2.16 Sharing of Payments, Etc.
	 	 	45	 
	ARTICLE III CONDITIONS OF LENDING
	 	 	45	 
	Section 3.01 Conditions Precedent to the Initial Advance
	 	 	45	 
	Section 3.02 Conditions Precedent for Each Borrowing or Letter of Credit
	 	 	47	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	48	 
	Section 4.01 Existence; Qualification; Partners; Subsidiaries
	 	 	48	 
	Section 4.02 Partnership and Corporate Power
	 	 	49	 
	Section 4.03 Authorization and Approvals
	 	 	49	 
	Section 4.04 Enforceable Obligations
	 	 	49	 
	Section 4.05 Financial Statements
	 	 	49	 
	Section 4.06 True and Complete Disclosure
	 	 	49	 
	Section 4.07 Litigation
	 	 	50	 
	Section 4.08 Use of Proceeds and Letters of Credit
	 	 	50	 
	Section 4.09 Investment Company Act
	 	 	50	 
	Section 4.10 Taxes
	 	 	50	 
	Section 4.11 Pension Plans
	 	 	51	 
	Section 4.12 Insurance
	 	 	51	 
	Section 4.13 No Burdensome Restrictions; No Defaults
	 	 	51	 
	Section 4.14 Environmental Condition
	 	 	52	 
	Section 4.15 Legal Requirements, Zoning
	 	 	52	 
	Section 4.16 Existing Indebtedness and Interest Rate Agreements; Solvency
	 	 	52	 
	Section 4.17 Leasing Arrangements
	 	 	53	 
	Section 4.18 Management Agreements
	 	 	53	 
	Section 4.19 [Intentionally Omitted]
	 	 	53	 
	Section 4.20 Franchise Agreements
	 	 	53	 
	Section 4.21 Title; Liens
	 	 	53	 
	Section 4.22 Approved Inter-Company Indebtedness
	 	 	53	 
	Section 4.23 Insurance Business
	 	 	54	 
	Section 4.24 Owned Hospitality Properties
	 	 	55	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	56	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page	 
	Section 5.01 Compliance with Laws
	 	 	56	 
	Section 5.02 Preservation of Existence; Separateness, Etc.
	 	 	56	 
	Section 5.03 Payment of Taxes, Etc.
	 	 	57	 
	Section 5.04 Visitation Rights; Lender Meeting
	 	 	57	 
	Section 5.05 Reporting Requirements
	 	 	57	 
	Section 5.06 Maintenance of Property
	 	 	60	 
	Section 5.07 Insurance
	 	 	60	 
	Section 5.08 Use of Proceeds and Letters of Credit
	 	 	60	 
	Section 5.09 Collateral; Releases
	 	 	60	 
	Section 5.10 New Subsidiaries
	 	 	61	 
	Section 5.11 Insurance Business
	 	 	61	 
	Section 5.12 Interest Rate Agreements
	 	 	61	 
	Section 5.13 Property Marketing and Sales
	 	 	62	 
	Section 5.14 Budget Updates
	 	 	62	 
	Section 5.15 Appraisal
	 	 	63	 
	Section 5.16 Extension of Mortgage Indebtedness
	 	 	63	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	63	 
	Section 6.01 Liens, Etc.
	 	 	63	 
	Section 6.02 Indebtedness
	 	 	64	 
	Section 6.03 Agreements Restricting Distributions From Subsidiaries
	 	 	64	 
	Section 6.04 Restricted Payments
	 	 	65	 
	Section 6.05 Fundamental Changes; Asset Dispositions
	 	 	65	 
	Section 6.06 Investments and other Property
	 	 	66	 
	Section 6.07 Affiliate Transactions
	 	 	67	 
	Section 6.08 Sale or Discount of Receivables
	 	 	67	 
	Section 6.09 Changes in Fiscal Periods
	 	 	67	 
	Section 6.10 Activities of Parent
	 	 	67	 
	Section 6.11 Sales and Leasebacks
	 	 	68	 
	Section 6.12 Material Documents
	 	 	68	 
	Section 6.13 No Further Negative Pledges
	 	 	68	 
	Section 6.14 Limitation on Capital Expenditures and Other Costs and Expenses
	 	 	68	 
	Section 6.15 Limitation on Hedge Agreements
	 	 	68	 
	Section 6.16 Prepayment of Other Indebtedness
	 	 	68	 
	ARTICLE VII FINANCIAL COVENANTS
	 	 	68	 
	Section 7.01 Debt Service Coverage Ratio
	 	 	69	 
	Section 7.2 Prepayment of Other Indebtedness
	 	 	69	 
	ARTICLE VIII EVENTS OF DEFAULT; REMEDIES
	 	 	69	 
	Section 8.01 Events of Default
	 	 	69	 
	Section 8.02 Optional Acceleration of Maturity; Other Actions
	 	 	71	 
	Section 8.03 Automatic Acceleration of Maturity
	 	 	72	 
	Section 8.04 Cash Collateral Account
	 	 	72	 
	Section 8.05 Non-exclusivity of Remedies
	 	 	72	 
	Section 8.06 Right of Set-off
	 	 	72	 
	ARTICLE IX THE ADMINISTRATIVE AGENT
	 	 	73	 
	Section 9.01 Appointment
	 	 	73	 
	Section 9.02 Delegation of Duties
	 	 	73	 
	Section 9.03 Exculpatory Provisions
	 	 	73	 
	Section 9.04 Reliance by the Administrative Agent
	 	 	74	 
	Section 9.05 Notice of Default
	 	 	74	 
	Section 9.06 Non-Reliance on the Administrative Agent and Other Lenders
	 	 	74	 
	Section 9.07 Indemnification
	 	 	75	 
	Section 9.08 The Administrative Agent in Its Individual Capacity
	 	 	75	 
	Section 9.09 Successor Administrative Agent
	 	 	75	 
	Section 9.10 Authorization to Release Liens and Guarantees
	 	 	76	 
	Section 9.11 The Arranger, Syndication Agent and Documentation Agents
	 	 	76	 
	Section 9.12 Administrative Agent May File Proofs of Claim
	 	 	76	 






ii









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE X MISCELLANEOUS
	 	 	77	 
	Section 10.01 Amendments, Etc.
	 	 	77	 
	Section 10.02 Notices, Etc.
	 	 	78	 
	Section 10.03 No Waiver; Remedies
	 	 	79	 
	Section 10.04 Costs and Expenses
	 	 	80	 
	Section 10.05 Binding Effect
	 	 	80	 
	Section 10.06 Successors and Assigns; Participations and Assignments
	 	 	80	 
	Section 10.07 Indemnification
	 	 	83	 
	Section 10.08 Execution in Counterparts
	 	 	84	 
	Section 10.09 Survival of Representations, Indemnifications, etc.
	 	 	84	 
	Section 10.10 Severability
	 	 	84	 
	Section 10.11 Usury Not Intended
	 	 	84	 
	Section 10.12 GOVERNING LAW
	 	 	85	 
	Section 10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL
	 	 	85	 
	Section 10.14 Knowledge of Borrower
	 	 	86	 
	Section 10.15 Lenders Not in Control
	 	 	86	 
	Section 10.16 Headings Descriptive
	 	 	86	 
	Section 10.17 Time is of the Essence
	 	 	86	 
	Section 10.18 Lender Interest Rate Agreements
	 	 	86	 
	Section 10.19 NO CONSEQUENTIAL DAMAGES
	 	 	87	 
	Section 10.20 USA PATRIOT Act Notice
	 	 	87	 
	Section 10.21 Reliance on Professional Advisors
	 	 	87	 
	Section 10.22 Delivery of Lender Addenda
	 	 	87	 
	Section 10.23 Acknowledgments
	 	 	87	 
	Section 10.24 No Advisory or Fiduciary Responsibility
	 	 	87	 
	Section 10.25 Confidentiality
	 	 	88	 
	Section 10.26 Replacement of Existing Credit Facility; Replacement of
Lehman Commercial Paper Inc. as “Administrative Agent”
	 	 	88	 







iii









 








EXHIBITS:




	 	 	 	 	 
	Exhibit A-1

	 	-
	 	Form of Revolving Note
	Exhibit A-2

	 	-
	 	Form of Term Note
	Exhibit A-3

	 	-
	 	Form of PIK Obligation Note
	Exhibit B

	 	-
	 	Form of Administrative Questionnaire
	Exhibit C

	 	-
	 	Form of Assignment and Assumption
	Exhibit D

	 	-
	 	Form of Compliance Certificate
	Exhibit E

	 	-
	 	Form of Environmental Indemnity
	Exhibit E-2

	 	-
	 	Form of Affirmation and Amendment of Environmental Indemnification Agreement
	Exhibit F

	 	-
	 	Form of Guaranty
	Exhibit F-2

	 	-
	 	Form of Affirmation and Amendment of Guaranty and Contribution Agreement
	Exhibit G

	 	-
	 	Form of Notice of Borrowing
	Exhibit H

	 	-
	 	Form of Notice of Conversion or Continuation
	Exhibit I

	 	-
	 	Form of Security Agreement
	Exhibit I-2

	 	-
	 	Form of Affirmation and Amendment of Security Agreement
	Exhibit J

	 	-
	 	Form of Lender Addendum






SCHEDULES:




	 	 	 	 	 
	Schedule 1.01-1

	 	-
	 	Schedule of Lenders and Commitments
	Schedule 1.01(a)

	 	-
	 	Approved Inter-Company Indebtedness
	Schedule 1.01(b)

	 	-
	 	Non-Pledged Ownership Interests
	Schedule 1.01(c)

	 	-
	 	Existing Management Agreements
	Schedule 1.01(d)

	 	-
	 	Existing Owned Hospitality Property Investments
	Schedule 1.01(e)(i)

	 	-
	 	Certain Non-Guarantors
	Schedule 1.01(e)(ii)

	 	-
	 	Guarantors
	Schedule 4.01

	 	-
	 	Subsidiaries
	Schedule 4.07

	 	-
	 	Litigation
	Schedule 4.11

	 	-
	 	Pension Plans
	Schedule 4.14

	 	-
	 	Environmental Condition
	Schedule 4.15

	 	-
	 	Legal Requirements; Zoning; Utilities; Access
	Schedule 4.16(a)

	 	-
	 	Existing Indebtedness and Interest Rate Agreements
	Schedule 4.16(b)

	 	-
	 	Existing Letters of Credit
	Schedule 4.21

	 	-
	 	Owned Hospitality Properties
	Schedule 4.23(a)

	 	-
	 	Insurance Companies, Insurance Licenses and Deposited Securities
	Schedule 4.23(e)

	 	-
	 	Insurance Contracts and Reinsurance Contracts
	Schedule 5.07

	 	-
	 	Required Insurance Coverage
	Schedule 6.06-1

	 	-
	 	Existing Investments
	Schedule 6.06-2

	 	-
	 	Existing Committed Investments
	Schedule 10.02

	 	-
	 	Borrower/Administrative Agent Notice Addresses







iv









 









FIRST AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT




     THIS FIRST AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT (as the same may be, from time
to time, further amended, restated, supplemented or modified, this “Agreement”), dated as
of July 10, 2009, is among INTERSTATE OPERATING COMPANY, LP, a Delaware limited partnership (the
“Borrower”), BANK OF AMERICA, N.A. (the “Administrative Agent”) and the Lenders (as
defined below).



PRELIMINARY STATEMENTS:




     WHEREAS, the Borrower is a party to the Existing Credit Facility (as defined herein);



     WHEREAS, the Borrower has requested that the Lenders amend and restate the Existing Credit
Facility;



     WHEREAS, the Lenders are willing to do so on the terms and conditions set forth herein;



     WHEREAS, this Agreement is an amendment and restatement of the Existing Credit Facility, all
documents, instruments or agreements creating security interests or liens in favor of the
“Administrative Agent” or “Lenders” as defined in the Existing Credit Facility and securing the
obligations thereunder continue to secure the Obligations under this Agreement (though Bank of
America, N.A. shall constitute a successor to Lehman Commercial Paper Inc. for purposes of
determining the identity of the Administrative Agent referenced in such documents), this amendment
and restatement does not represent a novation with respect to the “Obligations” under the Existing
Credit Facility and the outstanding balance of the obligations under the Existing Credit Facility
remain outstanding and constitute Obligations hereunder (though some of such obligations have been
converted from revolving credit obligations to Term Advances);



     WHEREAS, effective upon the Effective Date (and subject to the other terms and conditions set
forth herein) (a) Lehman Commercial Paper Inc. is resigning as Administrative Agent under the
Existing Credit Facility and the other Credit Documents and is assigning to Bank of America, N.A.
(and Bank of America, N.A. is assuming from Lehman Commercial Paper Inc.), all of Lehman Commercial
Paper Inc.’s rights and obligations as Administrative Agent hereunder and under the other Credit
Documents and (b) Lehman Brothers Inc. is resigning as Sole Lead Arranger and Sole Book Manager
under the Existing Credit Facility and is assigning to Banc of America Securities LLC (and Banc of
America Securities LLC is assuming from Lehman Brothers, Inc.) all of Lehman Brothers, Inc.’s
rights and obligations as Sole Lead Arranger and Sole Book Manager hereunder;



     NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto covenant and agree as follows:



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 (unless otherwise indicated, such meanings to be equally
applicable to both the singular and plural forms of the terms defined):



     “Acceptable Lien” means a Lien which (a) exists in favor of the Administrative Agent
for its benefit and the ratable benefit of the Lenders, (b) secures the Obligations and (c) is
perfected and enforceable against all Persons in preference to any rights of any Person in the
property encumbered thereby and superior to all other Liens except for Permitted Encumbrances;
provided that the Lien on any Ownership Interests in an Unconsolidated Entity may be
subordinate to the Liens securing any Indebtedness of such Unconsolidated Entity.



     “Accession Agreement” means an Accession Agreement in the form attached respectively
to the Guaranty, Environmental Indemnity and Security Agreement as Annex 1 thereto, which
agreement causes the Person



1









 







executing and delivering the same to the Administrative Agent to become a party, respectively,
to the Guaranty, Environmental Indemnity and Security Agreement.



     “Act” has the meaning set forth in Section 10.20.



     “ADA” means the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., as
amended from time to time, or any successor statute.



     “Adjusted Base Rate” means for any day a fluctuating rate per annum equal to the
highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the
Eurodollar Rate plus 1.0%.  “Prime Rate” means the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.”  The “prime rate” is a
rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.  Any change in
such rate announced by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.



     “Adjusted Base Rate Advance” means an Advance which bears interest as provided in
Section 2.06(a)(i).



     “Adjusted Net Worth” means, for the Parent as of any date, the sum of (a) the Parent’s
Net Worth on such date plus (b) the minority interest reflected as a liability on the
Parent’s balance sheet on such date determined in accordance with GAAP (excluding that portion of
the minority interest attributable to Ownership Interests in any Subsidiary of the Borrower which
is not a Guarantor).



     “Administrative Agent” means Bank of America, N.A., in its capacity as Administrative
Agent for the Lenders pursuant to Article IX and any successor Administrative Agent appointed
pursuant to Section 9.09.



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



     “Advance” means a Revolving Advance, a Term Advance or a PIK Accrual Advance.



     “Affected Lender” has the meaning set forth in Section 2.15(a).



     “Affiliate” means, as to any Person, any other Person that, directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under common control with,
such Person or any Subsidiary of such Person. The term “control” (including the terms “controlled
by” or “under common control with”) means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person, whether through ownership
of a Control Percentage, by contract or otherwise.



     “Aggregate Facility Amount” means, as of any date, an amount equal to (a) the
Revolving Exposure plus the then-unfunded Revolving Commitments; plus (b) the then-outstanding
amount of Term Advances; plus (c) the then-outstanding amount of the PIK Obligations.



     “Agreement” has the meaning given such term in the initial paragraph of this
agreement.



     “Applicable Lending Office” means, with respect to each Lender, (a) in the case of an
Adjusted Base Rate Advance, such Lender’s Domestic Lending Office, (b) in the case of all
Eurodollar Rate Advances, such Lender’s Eurodollar Lending Office, and (c) in the case of any other
notice or request under the Credit Documents, the office of such Lender specified as its “Credit
Contact” in the questionnaire such Lender provided to the Administrative Agent, or such other
office of such Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.



     “Applicable Margin” means, (a) with respect to any Advance at any date, the applicable
percentage per annum set forth below under the column for such Class and Type of Advance, and (b)
with respect to the letter of credit fee payable under Section 2.03(b) at any date, the applicable
percentage per annum set forth below under the



2









 







column for Eurodollar Rate Advances (in each case, subject to adjustment in connection with
the continuance of any Rate Increase Period as outlined below):



	 	 	 	 	 	 	 	 	 	 
	Period	 		Adjusted Base Rate Advances	 	Eurodollar Rate Advances
	(all Classes)	 		(all Classes)	 	(all Classes)
	Not During a Rate Increase Period
	 		 	4.50	%	 	 	5.50	%
	During a Rate Increase Period
	 		 	6.00	%	 	 	7.00	%






     “Appraisal” shall mean an appraisal prepared in accordance with the requirements of
FIRREA, prepared by an independent third party appraiser holding an MAI designation, who is State
licensed or State certified if required under the laws of the State where the Property is located,
who meets the requirements of FIRREA and who is otherwise satisfactory to the Administrative Agent.



     “Approved Annual Budget” means the Effective Date Budget and each annual budget of the
Borrower and its Subsidiaries that is approved by the Administrative Agent pursuant to and in
accordance with the terms of Section 5.14(a), in each case as the same may be revised or updated
pursuant to the terms of Section 5.14(b).



     “Approved Inter-Company Indebtedness” means the Indebtedness described on Schedule
1.01(a) or Indebtedness in an amount not to exceed $16,000,000 entered into between the Borrower
and a wholly-owned Foreign Subsidiary subject to the Borrower’s corporate organizational plans that
have been approved by the Administrative Agent (in its reasonable discretion), which Indebtedness
is, in each case (a) in the amount set forth on such Schedule 1.01(a), (b) unsecured, (c)
subordinated to the Obligations in a manner acceptable to the Administrative Agent, and (d)
Collateral.



     “Approved Inter-Company Indebtedness Loan Documents” means the documents described on
Schedule 1.01(a), together with any additional promissory notes or other documents evidencing
Approved Inter-Company Indebtedness.



     “Arlington Property” means the Arlington Hilton in Arlington, Texas.



     “Arranger” means Banc of America Securities LLC, together with its successors and
assigns in such capacity.



     “Asset Disposition” means any conveyance, exchange, transfer, assignment, or
condemnation of any Investment or Non-Replaced Property by the Borrower, a Guarantor or any
Subsidiary to a Person other than the Borrower or a Guarantor; provided, however,
that (a) the termination of any Permitted Property Agreement or similar agreement shall not
constitute an Asset Disposition and (b) the conveyance, exchange or transfer or any real property
interests held by a wholly-owned Subsidiary of the Borrower to another wholly-owned Subsidiary of
the Borrower in connection with the consummation of a mortgage financing otherwise permitted
hereunder shall not constitute an Asset Disposition.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially the
form of the attached Exhibit C.



     “Assignment of Leases” means an assignment of leases, rents and security deposits
executed by the Borrower or any Guarantor to secure the Obligations, each in form reasonably
approved by the Administrative Agent with such modifications as may be necessary and appropriate in
the opinion of counsel to the Administrative Agent to comply with the state law of the filing
jurisdiction and as may be reasonably satisfactory to the Administrative Agent, as the same may be
amended or terminated in accordance with its terms.



     “Beverage Entity” means any Subsidiary or Unconsolidated Entity of the Parent for
which substantially all of such Person’s Property is directly related to the sale of beverages at a
Hospitality Property, and “Beverage Entities” means all such Persons.



     “Borrower” means Interstate Operating Company, LP, a Delaware limited partnership.



3









 





     “Borrowing” means a borrowing consisting of simultaneous Advances of the same Type (a)
made by each Lender pursuant to Section 2.01(a) or 2.01(b) or accrued as a PIK Accrual Advance
pursuant to Section 2.01(c) or (b) Converted by each Lender to Advances of a different Type
pursuant to Section 2.02(b).



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the laws of, or are in fact closed in, the state
where the Administrative Agent’s office is located or in New York City, New York and, if such day
relates to any Eurodollar Rate Advance (or any other calculation based on the Eurodollar Rate),
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.



     “Capital Expenditure” means any payment made directly or indirectly for the purpose of
acquiring or constructing fixed assets, real property, improvements, equipment, or other personal
property, or for replacements or substitutions therefore or additions thereto, which in accordance
with GAAP would be capitalized in the fixed asset accounts of such Person making such expenditure,
including, without limitation, amounts paid or payable for such purpose under any conditional sale
or other title retention agreement or under any Capital Lease, but excluding repairs or maintenance
of any Hospitality Property in the normal and ordinary course of business in keeping with the past
practices of the Borrower or the Parent.



     “Capital Lease” means, for any Person, any lease of any Property (whether real,
personal or mixed) by that Person as lessee which, in accordance with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.



     “Capitalization Event” means any sale or issuance by the Parent or any of its
Subsidiaries of equity securities except for (a) the issuance of the Borrower’s limited partnership
interests in accordance with the provisions of Section 6.05(e)(ii), (b) the issuance by the Parent
of equity securities within 90 days after the Effective Date and (c) the sale or issuance by the
Parent of any of its equity securities pursuant to the exercise of options granted pursuant to the
Parent’s stock option plans for employees and directors.



     “Capitalized Lease Obligations” means, as to any Person, the capitalized amount of all
obligations of such Person or any of its Subsidiaries under any Capital Lease, as determined on a
consolidated basis in conformity with GAAP.



     “Cash Collateral Account” means a special cash collateral account containing cash
deposited pursuant to the terms of this Agreement to be maintained at the Administrative Agent’s
office in accordance with Section 8.04.



     “CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, all rules and regulations and requirements thereunder in each case as now
or hereafter in effect.



     “Change in Control” means for any Person a change in ownership or control of such
Person effected through either of the following transactions:




     (a) any Person or related group of Persons (other than such Person or an Affiliate of
such Person) directly or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of securities possessing
more than fifty percent (50%) of the total combined voting power of such Person’s
outstanding securities; or




     (b) there is a change in the composition of such Person’s Board of Directors over a
period of thirty-six (36) 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.



     “Class” has the meaning set forth in Section 1.04.



4









 





     “Code” means the Internal Revenue Code of 1986, as amended, and any successor statute.



     “Collateral” means all of the Parent’s and its Subsidiaries’ interests in the
following, whether owned on or acquired after the Effective Date: (a) the Ownership Interests of
all existing Subsidiaries and Unconsolidated Entities of the Parent and the Borrower and any future
Material Subsidiary or Material Unconsolidated Entity except for (i) the Ownership Interests in
Beverage Entities and (ii) the Ownership Interests in Excepted Foreign Subsidiaries (the Ownership
Interests required to be Collateral pursuant to this definition being referred to herein as the
“Ownership Interests Collateral”), (b) the rights to receive payments for its account
(including the right to receive termination payments) under all Permitted Property Agreements, (c)
Owned Hospitality Properties, (d) the Approved Inter-Company Indebtedness and the Approved
Inter-Company Indebtedness Loan Documents, and (e) any other collateral described in the Security
Agreement or other Security Documents; provided that the pledge of such Property is not
prohibited by the terms of (i) Permitted Property Agreements, joint venture agreements,
organizational documents and other contractual arrangements to which the Borrower or a Subsidiary
is a party and which are in effect on the Effective Date, in each case as approved by the
Administrative Agent; (ii) with respect to any Ownership Interests in or Property of a Permitted
Other Subsidiary, the loan documentation for any Permitted Other Indebtedness incurred by such
Permitted Other Subsidiary; and (iii) with respect to any Ownership Interests in an Unconsolidated
Entity, the loan documentation for Indebtedness incurred by such Unconsolidated Entity or joint
venture agreements or other contractual arrangements for such Unconsolidated Entity;
provided that if at any time such prohibition no longer exists with respect to any
Property, such Property shall be pledged and/or mortgaged as Collateral pursuant to Sections 5.09
and 5.10. The Ownership Interests which cannot be pledged as of the date of this Agreement are
those certain Ownership Interests designated in Schedule 1.01(b) as Non-Pledgable.



     “Columbia Property” means the Sheraton Columbia Hotel in Columbia, Maryland.



     “Commitment” means, as to any Lender, its Revolving Commitment and its Term
Commitment.



     “Compliance Certificate” means a certificate of the Borrower setting forth detailed
calculations of the financial covenants set forth herein, a calculation of whether a Rate Increase
Period is then-continuing and detailed calculations of the Borrower’s Leverage Ratio and Adjusted
Net Worth, in substantially the form of the attached Exhibit D.



     “Consolidated” refers, with respect to any Person, to the consolidation of the
accounts of such Person with such Person’s Subsidiaries in accordance with GAAP.



     “Control Investment Affiliate”: means, with respect to any Person, any other Person
that (a) directly or indirectly, is in control of, is controlled by, or is under common control
with, such Person and (b) is organized by such Person primarily for the purpose of making equity or
debt investments in one or more companies. For purposes of this definition, “control” of a Person
means the power, directly or indirectly, to direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.



     “Control Percentage” means, with respect to any Person, the percentage of the
outstanding capital stock of such Person having ordinary voting power which gives the direct or
indirect holder of such stock the power to elect a majority of the Board of Directors of such
Person.



     “Controlled Group” means all members of the controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control which, together with the
Borrower or any Guarantor, are treated as a single employer under Section 414 of the Code.



     “Convert”, “Conversion”, and “Converted” each refers to a conversion
of Advances of one Type into Advances of another Type pursuant to Section 2.02(b).



     “Credit Documents” means this Agreement, the Notes, the Guaranties, the Environmental
Indemnities, the Security Documents, the Fee Letter, and each other agreement, instrument or
document executed by the Borrower or any of its Subsidiaries at any time in connection with this
Agreement.



5









 





     “Currency Agreements” means all swaps, caps or collar agreements or similar
arrangements providing for protection against fluctuations in currency exchange rates, either
generally or under specific contingencies.



     “Current Pay Interest” means interest that accrues from time to time pursuant to
Section 2.06(a) hereof.



     “Customary Management Agreement” means a management agreement for a Hospitality
Property by and between a Person, as owner, and Borrower or Parent’s Subsidiary or Unconsolidated
Entity, as manager, which (a) has a term and early termination payment provisions, if any, which
are reasonable based upon the amount of any Investment made to obtain such management agreement and
(b) is in substantially the form of an Existing Management Agreement, a form which does not include
materially adverse provisions which are not customary for management agreements of Hospitality
Properties or such other form as is approved by the Administrative Agent in writing (which approval
shall not be unreasonably withheld).



     “Customary Participating Lease” means a lease (except for a Ground Lease) for a
Hospitality Property by and between a Person, as lessor, and Borrower or Parent’s Subsidiary, as
lessee, which (a) has expected economics and a term and early termination payment provisions which
are reasonable based upon the amount of any Investment made to obtain such lease and (b) are in a
form which does not include materially adverse provisions which are not customary for participating
leases of Hospitality Properties or such other form as is approved by the Administrative Agent in
writing (which approval shall not be unreasonably withheld).



     “Customary Property Agreement” means a Customary Management Agreement or a Customary
Participating Lease, and “Customary Property Agreements” means all such agreements and
leases.



     “Debt Service Coverage Ratio” means, as of the end of any Rolling Period, a ratio of
(a) the Parent’s EBITDA to (b) the sum of (i) the Parent’s Interest Expense, for such Rolling
Period and (ii) scheduled payments made during such period on account of principal of Indebtedness
of the Parent and its Subsidiaries (other than (A) principal payments required pursuant to the
terms hereof, (B) payments made under the Existing Credit Facility and (C) balloon payments of
principal due upon the stated maturity of any such Indebtedness or similar principal payment which
repays or discharges such Indebtedness in full).



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



     “Default” means (a) an Event of Default or (b) any event or condition which with
notice or lapse of time or both would, unless cured or waived, become an Event of Default.



     “Defaulting Lender” means any Lender that, as of any date on or following the
Effective Date hereof: (a) fails to fund any portion of the Advances or participations in Letter of
Credit Obligations required to be funded by it hereunder within one Business Day of the date
required to be funded by it hereunder unless such failure has been cured or is the subject of a
good faith dispute or (b) fails to pay over to the Administrative Agent or any other Lender any
other amount required to be paid by it hereunder within one Business Day of the date when due,
unless the subject of a good faith dispute or unless such failure has been cured.



     “Dollar Equivalent” means the equivalent in another currency of an amount in Dollars
to be determined by reference to the rate of exchange quoted by Bank of America, N.A. at 10:00 a.m.
(New York City time) on the date of determination, for the spot purchase in the foreign exchange
market of such amount of Dollars with such other currency.



     “Dollars” and “$” means lawful money of the United States of America.



     “Domestic Lending Office” means, with respect to any Lender, the office of such Lender
specified as its “Operations Contact” for Adjusted Base Rate Advances in the Administrative
Questionnaire such Lender provided to the Administrative Agent, or such other office of such Lender
as such Lender may from time to time specify to the Borrower and the Administrative Agent.



6









 





     “Domestic Subsidiary” means any Subsidiary of the Borrower that is organized under the
laws of any political subdivision of the United States.



     “EBITDA” means for any Person or Hospitality Property, as applicable, for any period
for which such amount is being determined, an amount equal to (a) the Net Income for such Person or
Hospitality Property, as applicable, for such period plus (b) to the extent deducted in
determining Net Income, interest expense, income taxes, depreciation, and amortization, as
determined on a Consolidated basis in accordance with GAAP plus (c) to the extent deducted
in determining Net Income, deductions for minority interest attributable to the Ownership Interests
in the Borrower not owned (directly or indirectly) by the Parent; provided that, to the
extent included in determining Net Income, the EBITDA from any Unconsolidated Entity or
Minority-Owned Fund (but not the EBITDA from any Permitted Property Agreement with such Person to
the extent such EBITDA is attributable to the ownership interest of the Borrower or one of its
Subsidiaries in such Unconsolidated Entity or Minority-Owned Fund) shall be excluded from the
calculation of EBITDA.



     “Effective Date” means the date all of the conditions precedent set forth in Section
3.01 have been satisfied.



     “Effective Date Budget” has the meaning assigned to such term in Section 3.01(l).



     “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related
Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes
hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity
that is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933) and
which extends credit or buys loans as one of its businesses; provided that no Affiliate of
Parent shall be an Eligible Assignee.



     “Engineering Report” means with respect to any Owned Hospitality Property, an
engineering report which (a) is prepared for, or is accompanied by a reliance letter for the
Lenders and the Administrative Agent by a Person reasonably satisfactory to the Administrative
Agent, (b) is prepared in accordance with a scope of services reasonably satisfactory to the
Administrative Agent, (c) is prepared within three (3) months of the date of acquisition of such
Owned Hospitality Property, and (d) reflects no material concerns pertaining to the physical
condition of the Owned Hospitality Property, including without limitation the structural,
electrical, plumbing, mechanical and other essential components of the Owned Hospitality Property
other than such concerns as may be addressed by a renovation or repair plan reasonably satisfactory
to the Administrative Agent.



     “Environment” or “Environmental” shall have the respective meanings set forth
in 42 U.S.C. ‘9601(8), as amended.



     “Environmental Claim” means any third party (including governmental agencies and
employees) action, lawsuit, claim, demand, regulatory action or proceeding, order, decree, consent
agreement or notice of potential or actual responsibility or violation (including claims or
proceedings under the Occupational Safety and Health Acts or similar laws or requirements relating
to health or safety of employees) which seeks to impose liability under any Environmental Law.



     “Environmental Indemnity” means one or more environmental indemnity agreements in
substantially the form of the attached Exhibit E executed or to be executed by the Borrower, the
Parent and all Guarantors, the affirmation and amendment thereof entered into by the parties to
such agreement(s) as of the Effective Date in substantially the form of the attached Exhibit E-2,
and any future environmental indemnities executed in connection with any Hospitality Property, as
any of such environmental indemnities may be amended hereafter in accordance with the terms of such
agreements.



     “Environmental Law” means all Legal Requirements arising from, relating to, or in
connection with the Environment, health, or safety, including without limitation CERCLA, relating
to (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation or
restoration of the air, surface water, groundwater, land surface or subsurface strata, or other
natural resources; (b) solid, gaseous or liquid waste generation, treatment, processing, recycling,
reclamation, cleanup, storage, disposal or transportation; (c) exposure to pollutants,
contaminants, hazardous, medical, infectious, or toxic substances, materials or wastes; (d) the
safety or health of



7









 







employees; or (e) the manufacture, processing, handling, transportation, distribution in
commerce, use, storage or disposal of hazardous, medical, infectious, or toxic substances,
materials or wastes.



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



     “Environmental Report” means with respect to any Owned Hospitality Property, an
environmental report which (a) is prepared for, or is accompanied by a reliance letter for, the
Lenders and the Administrative Agent by a Person reasonably satisfactory to the Administrative
Agent, (b) is prepared in accordance with a scope of services reasonably satisfactory to the
Administrative Agent, (c) is prepared within three (3) months of the date of acquisition of such
Owned Hospitality Property, and (d) certifies to the Administrative Agent and the Lenders that the
Owned Hospitality Property and the soil and the groundwater thereunder do not contain Hazardous
Substances except for Permitted Hazardous Substances.



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



     “Eurodollar Base Rate” has the meaning assigned to such term in the definition of the
term “Eurodollar Rate.”



     “Eurodollar Lending Office” means, with respect to any Lender, the office or offices
of such Lender specified as its “Operations Contact” for each type of Eurodollar Rate Advance in
the Administrative Questionnaire such Lender provided to the Administrative Agent, or such other
office of such Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent for each type of Eurodollar Rate Advance.



     “Eurodollar Rate” means, with respect to each day during each Interest Period (which
shall be deemed to be one day for purposes of clause (c) of the definition of “Adjusted Base Rate”
and for all calculations of interest related to the Accrued PIK Advances), a rate per annum
determined for such day in an amount equal to the greater of (a) two percent (2.0%) and (b) the per
annum rate calculated in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):



Eurodollar Base Rate



 



1.00 - Eurodollar Reserve Requirements




     Where,




     “Eurodollar Base Rate” means:




     (i) For any Interest Period with respect to a Eurodollar Rate Advance other
than as set forth in items (ii) and (iii) below, the rate per annum equal to (A) the
British Bankers Association LIBOR Rate as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) (“BBA LIBOR”), at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period,
for Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period or (B) if such published rate is not
available at such time for any reason, the rate 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 Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the commencement
of such Interest Period.




     (ii) For any interest rate calculation with respect to the calculation of
Adjusted Base Rate, the rate per annum equal to (A) BBA LIBOR, at approximately
11:00 a.m., London time on the date of determination (provided that if such day is
not a London Business Day, the next preceding London Business Day) for Dollar
deposits being delivered in the London interbank



8









 







market for a term of one month commencing that day or (B) if such published
rate is not available at such time for any reason, the rate determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the
date of determination in same day funds in the approximate amount of the Base Rate
Loan being made, continued or converted by Bank of America and with a term equal to
one month would be offered by Bank of America’s London Branch to major banks in the
London interbank Eurodollar market at their request at the date and time of
determination.




     (iii) For any calculation of the Eurodollar Rate with respect to Accrued PIK
Advances, the rate per annum equal to (A) BBA LIBOR, at approximately 11:00 a.m.,
London time on the first London Business Day of the then-current calendar month for
Dollar deposits being delivered in the London interbank market for a term of one
month commencing on such day or (B) if such published rate is not available at such
time for any reason, the rate determined by the Administrative Agent to be the rate
at which deposits in Dollars for delivery on the first London Business Day of the
then-current calendar month in same day funds in the approximate amount of the PIK
Obligations and with a term equal to one month would be offered by Bank of America’s
London Branch to major banks in the London interbank Eurodollar market at their
request at the date and time of determination.




     “Eurodollar Reserve Requirement” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five decimal
places) in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the Federal Reserve Board for determining
the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Advance shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.



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



     “Eurodollar Reserve Requirement” has the meaning assigned to such term in the
definition of the term “Eurodollar Rate.”



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



     “Excepted Foreign Subsidiary” means any Subsidiary of the Borrower or the Parent which
is a Foreign Subsidiary, which is wholly-owned (directly) by another wholly-owned (directly or
indirectly) Foreign Subsidiary of the Borrower or the Parent and which is required, pursuant to its
organizational documents or contractual arrangements with its parent, to upstream all of its net
cash flow to its parent; provided, that, for purposes of clarification, a Foreign
Subsidiary of the Borrower or Parent which is not owned by another Foreign Subsidiary of the
Borrower or Parent shall not, in any case, constitute an Excepted Foreign Subsidiary.



     “Excess Free Cash Flow” means, for any period,




     (a) EBITDA of the Parent and its Subsidiaries for such period, plus




     (b) in each case to the extent such amount has not already been added to EBITDA as part
of Net Income, all Net Cash Proceeds received by the Parent or any of its Subsidiaries from
or with respect to any Repayment Event, less




     (c) cash interest payments of the Parent and its Subsidiaries for such period,
less




     (d) cash taxes paid by the Parent and its Subsidiaries for such period, less




     (e) amounts paid during such period with respect to Investments permitted hereunder;
less



9









 






     (f) amounts paid during such period with respect to unfinanced Capital Expenditures (to
the extent the same do not exceed the amount provided for in the most-recent Approved
Budget), less




     (g) refinancing fees and expenses paid in cash with respect to Permitted New
Indebtedness, less




     (h) the amount of:




     (i)  all principal amortization payments made by the Parent and its
Subsidiaries during such period with respect to the Obligations,




     (ii) all mandatory principal prepayments on Indebtedness made by the Parent and
its Subsidiaries during such period, and




     (iii) the amount of non-voluntary scheduled fixed principal payments made by
the Parent and its Subsidiaries during such period with respect to Indebtedness not
evidenced by the Loan Documents.



     “Exchange Act” means the Securities Exchange Act of 1934, 15 U.S.C., as amended, and
the rules and regulations promulgated thereunder.



     “Existing Credit Facility” means the Senior Secured Credit Agreement dated as of March
9, 2007 among the Borrower, Lehman Commercial Paper Inc., as administrative agent, and the lenders
from time to time party thereto, as amended by that certain Amendment No. 1 dated as of May 24,
2007, that certain Amendment No. 2 dated as of July 2, 2008 and that certain Waiver No. 2 and
Amendment No. 3 dated as of March 30, 2009 and as the same may have been otherwise amended,
restated, supplemented or otherwise modified from time to time prior to the Effective Date.



     “Existing Letter of Credit” and “Existing Letters of Credit” means the Letters
of Credit issued under the Existing Credit Facility and listed on Schedule 4.16(b);
provided, that, for purposes of clarification, that portion of the exposure represented by
Letters of Credit issued under the Existing Credit Facility and previously allocable to the pro
rata share held by Lehman Commercial Paper Inc. in the revolving commitments thereunder have not
been continued hereunder as “Existing Letters of Credit” and have been issued outside the credit
facilities evidenced hereby.



     “Existing Management Agreements” means the management agreements for the properties
listed on Schedule 1.01(c).



     “Expiration Date” means, with respect to any Letter of Credit, the date on which such
Letter of Credit will expire or terminate in accordance with its terms.



     “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 which is
a Business Day, the average of the quotations for any such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System or
any of its successors.



     “Fee Letter” means a collective reference to (a) the letter agreement dated as of
March 11, 2009 among the Borrower, Bank of America, N.A. and Banc of America Securities LLC and (b)
the letter agreement dated as of May, 2009 among the Borrower, Bank of America, N.A. and Banc of
America Securities LLC.



10









 





     “FF&E” means Furniture, Fixtures & Equipment in accordance with GAAP.



     “Financial Covenants” mean the financial covenants set forth Article VII.



     “Financial Statements” means the financial statements of the Parent and its
Subsidiaries delivered to the Lenders pursuant to Section 3.01(j).



     “Financing Statement” means any Uniform Commercial Code — Financing Statement — Form
UCC-1 to be executed (if necessary or desirable) and delivered by the Parent or any of its
Subsidiaries in connection with perfecting the security interest assigned by any Security Document,
and any extension, renewal, or amendment thereof.



     “First Extended Maturity Date” has the meaning specified in Section 2.05(c).



     “Fiscal Quarter” means each of the three-month periods ending on March 31, June 30,
September 30 and December 31.



     “Fiscal Year” means the twelve-month period ending on December 31.



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



     “Fund” means the Hazardous Substance Response Trust Fund, established pursuant to 42
U.S.C. ‘9631 (1988) and the Post-closure Liability Trust Fund, established pursuant to 42 U.S.C.
‘9641 (1988), which statutory provisions have been amended or repealed by the Superfund Amendments
and Reauthorization Act of 1986, and the “Fund,” “Trust Fund,” or “Superfund” that are now
maintained pursuant to 42 U.S.C. ‘9507.



     “Fully Satisfied” means, with respect to the Obligations as of any date, that, as of
such date, (a) all principal of and interest accrued to such date which constitute Obligations
shall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then due
and payable which constitute Obligations shall have been irrevocably paid in cash, (c) all
outstanding Letters of Credit shall have been (i) terminated, (ii) fully irrevocably cash
collateralized or (iii) secured by one or more letters of credit on terms and conditions, and with
one or more financial institutions, reasonably satisfactory to the Issuing Bank and (d) the
Commitments shall have expired or been terminated in full (in each case, other than inchoate
indemnification liabilities arising under the Loan Documents).



     “GAAP” means United States generally accepted accounting principles as in effect from
time to time, applied on a basis consistent with the requirements of Section 1.03.



     “Governmental Authority” means any foreign governmental authority, the United States
of America, any state of the United States of America and any subdivision of any of the foregoing,
and any agency, department, commission, board, authority or instrumentality, bureau or court having
jurisdiction over any Lender, the Parent, the Borrower, any Subsidiaries of the Borrower or the
Parent or any of their respective Properties.



     “Ground Lease” means a lease by and between a Person, as lessor, and Borrower or
Parent’s Subsidiary, as lessee, where the term of such lease is in excess of twenty (20) years.



     “Guarantor” means each of the Parent, each Subsidiary of the Parent (except (a) the
Permitted Other Subsidiaries, (b) the Beverage Entities, (c) certain other non-Material
Subsidiaries so long as such Subsidiary is prohibited from acting as a Guarantor because of joint
venture agreements, organizational documents and other contractual arrangements to which such
non-Material Subsidiary is a party and which are in effect on the Effective Date and set forth on
Schedule 1.01(e)(i), in each case as approved by the Administrative Agent and (d) Subsidiaries with
assets and revenues less than $100,000) existing as of the Effective Date, and any future Material
Subsidiary, and “Guarantors” means all of such Persons. The Guarantors on the Effective
Date are identified on Schedule 1.01(e)(ii).



11









 





     “Guaranty” means one or more Guaranty and Contribution Agreements in substantially the
form of the attached Exhibit F executed by the Guarantors, evidencing the joint and several
guaranty by the signatories thereto of the obligations of Borrower in respect of the Credit
Documents, the affirmation and amendment thereof entered into by the parties to any such Guaranty
and Contribution Agreements existing as of the Effective Date in substantially the form of the
attached Exhibit F-2, and any future guaranty and contribution agreement executed to secure
Advances, as any of such agreements may be amended hereafter in accordance with the terms of such
agreements.



     “Hazardous Substance” or “Hazardous Material” means the substances identified
as such pursuant to CERCLA and those regulated under any other Environmental Law, including without
limitation pollutants, contaminants, petroleum, petroleum products, radio nuclides, radioactive
materials, mold or other fungi, and medical and infectious waste.



     “Hazardous Waste” means the substances regulated as such pursuant to any Environmental
Law.



     “Hospitality Management Business” shall mean the management, operation or leasing as
lessee of any Hospitality Property, including timeshare and condominium sales and brokerage.



     “Hospitality Property” shall mean a full service or limited service hotel or resort, a
condominium or timeshare hotel or resort, an extended stay property, or a conference center, and
other facilities incidental to, or in support of such property, including without limitation,
restaurants and other food-service facilities, spas, golf facilities or other entertainment
facilities or club, conference or meeting facilities and Intellectual Property related thereto;
provided that such property shall not include any casino or other gaming property
(even if only a part of a Hospitality Property) or senior living property.



     “Impacted Lender” means any Lender as to which (a) Issuing Bank has a good faith
belief that the Lender has defaulted in fulfilling its obligations under one or more other
syndicated credit facilities, provided, that all conditions to such obligations have been satisfied
or waived and such failure is not the subject of a good faith dispute or (b) an entity that
controls the Lender has been deemed insolvent or become subject to a bankruptcy or other similar
proceeding.



     “Improvements” for any Owned Hospitality Property means all buildings, structures,
fixtures, tenant improvements and other improvements of every kind and description now or hereafter
located in or on or attached to the Land for such Owned Hospitality Property; and all additions and
betterments thereto and all renewals, substitutions and replacements thereof.



     “Indebtedness” means (without duplication), at any time and with respect to any
Person, (a) indebtedness of such Person for borrowed money (whether by loan or the issuance and
sale of debt securities) or for the deferred purchase price of property or services purchased
(other than amounts constituting trade payables or bank drafts arising in the ordinary course of
business); (b) indebtedness of others in the amount which such Person has directly or indirectly
assumed or guaranteed or otherwise provided credit support therefore or for which such Person is
liable as a partner of such Person; (c) indebtedness of others in the amount secured by a Lien on
assets of such Person, whether or not such Person shall have assumed such indebtedness unless the
validity of such Lien is being contested in good faith and with due diligence by appropriate
proceedings, provided that such Lien is subordinate to the Liens created by the Security
Documents and such Person shall have delivered a bond or other security acceptable to the
Administrative Agent equal to 125% of the contested amount; (d) obligations of such Person in
respect of letters of credit, acceptance facilities, or drafts or similar instruments issued or
accepted by banks and other financial institutions for the account of such Person (other than trade
payables or bank drafts arising in the ordinary course); (e) Capitalized Lease Obligations of such
Person; (f) all obligations, contingent or otherwise, of such Person under any synthetic lease, tax
retention operating lease, off balance sheet loan or similar off balance sheet financing
arrangement if the transaction giving rise to such obligation (1) is considered indebtedness for
borrowed money for U.S. federal income tax purposes but is classified as an operating lease under
GAAP and (2) does not (and is not required pursuant to GAAP to) appear as a liability on the
balance sheet of such Person; (g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock issued by such
Person or any other Person, valued at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; (h) all obligations of such Person in respect of any
take-



12









 







out commitment or forward equity commitment (excluding, in the case of the Borrower and its
Subsidiaries, any such obligation that can be satisfied solely by the issuance of Ownership
Interests (other than Mandatorily Redeemable Stock)); and (i) to the extent treated as a liability
under GAAP, obligations under interest rate swap agreements, interest rate cap agreements, interest
rate collar agreements or other similar agreements or arrangements designed to protect against
fluctuations in interest rates.



     “Initial Maturity Date” has the meaning specified in Section 2.05(b) hereof.



     “Insurance Annual Statement” means the annual statutory financial statements of each
Insurance Company required to be filed with the insurance commissioner (or similar Governmental
Authority) of its jurisdiction of incorporation, which statement shall be in the form required by
the jurisdiction of incorporation of such Insurance Company or, if no specific form is so required,
in the form of financial statements permitted by such insurance commissioner (or such similar
Governmental Authority) to be used for filing annual statutory financial statements and shall
contain the type of information permitted by such insurance commissioner (or such similar
Governmental Authority) to be disclosed therein, together with all exhibits or schedules filed
therewith.



     “Insurance Contract” means each outstanding insurance contract of each Insurance
Company.



     “Insurance Company” means each of the Borrower, the Parent or their respective
Subsidiaries that is or acts as an insurance company or provides a guaranty for a Person acting as
an insurance company.



     “Insurance License” means any license, certificate of authority, permit or other
authorization which is required to be obtained from any Governmental Authority in connection with
the operation, ownership or transaction of insurance business.



     “Insurance Reserve Liabilities” means all reserves and other liabilities with respect
to insurance and for claims and benefits incurred but not reported.



     “Insurance Surplus” means an estimate of the amount by which an insurance plan’s
assets exceed its expected current and future liabilities, including the amount expected to be
needed to fund future benefit payments.



     “Intellectual Property” shall have the meaning given such term in the Security
Agreement.



     “Interest Expense” means, for any Person for any period for which such amount is being
determined, the total interest expense (including that properly attributable to Capital Leases in
accordance with GAAP) and all charges incurred with respect to letters of credit determined on a
Consolidated basis in conformity with GAAP, plus capitalized interest of such Person and
its Subsidiaries; provided, however, that “Interest Expense” shall not include any portion of
interest accrued hereunder that is added to the PIK Obligations as part of a PIK Accrual Advance.



     “Interest Period” means, for each Eurodollar Rate Advance comprising part of the same
Borrowing, the period commencing on the date of such Advance or the date of the Conversion of any
Adjusted Base Rate Advance into such an Advance and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and Section 2.02 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 and Section 2.02.
To the extent available for a Eurodollar Rate Advance, the duration of each such Interest Period
shall be one, two, three or six months for all other Eurodollar Rate Advances, in each case as the
Borrower may select, upon notice received by the Administrative Agent not later than 12:00 noon
(New York, New York time) on the third Business Day prior to the first day of such Interest Period,
provided, however, that:




     (a) Interest Periods for Advances of the same Borrowing shall be of the same duration;




     (b) whenever the last day of any 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 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 preceding Business Day;



13









 






     (c) any Interest Period which begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month in
which it would have ended if there were a numerically corresponding day in such calendar
month;




     (d) each successive Interest Period shall commence on the day on which the next
preceding Interest Period expires; and




     (e) no Interest Period with respect to any portion of any Advance shall extend beyond
the Maturity Date.



     “Interest Rate Agreements” means any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement or other similar agreement or arrangement pertaining to
the fluctuations in interest rates.



     “Investment” means, with respect to any Person, (a) any loan or advance to any other
Person, (b) the ownership, purchase or other acquisition of any Ownership Interests or Ownership
Interest Equivalents in any other Person, (c) any joint venture or partnership with, or any capital
contribution to, or other investment in, any other Person, including by way of merger, (d) any
Capital Expenditure, and (e) any payment, whether capitalized or not, to acquire a management
agreement or lease (including, without limitation, any Permitted Property Agreement).



     “Investment Amount” means (a) for any Owned Hospitality Property the sum of (i) the
aggregate purchase price paid by the Borrower or its Subsidiary for such Owned Hospitality
Property, and (ii) the actual cost of any Capital Expenditures for such Owned Hospitality Property
made by the Borrower or its Subsidiaries after the acquisition of such Owned Hospitality Property
(or, without duplication, the amount of any reserve for such Capital Expenditures established from
time to time), and (b) for any other Investment or Property the aggregate purchase price paid by
the Borrower or its Subsidiary for such other Investment or Property. The Investment Amount shall
include any Ownership Interests or Ownership Interest Equivalents used to purchase such Investment
at their fair market value at the time of purchase; provided that any such Ownership
Interests or Ownership Interest Equivalents which are convertible into the Parent’s common stock
shall be valued at the price at which they could be exchanged into the Parent’s common stock
assuming such exchange occurred on the date of acquiring such Investment. Investment Amount shall
not include Indebtedness incurred in connection with an Investment, or any refinancing of such
Indebtedness, unless such Indebtedness was provided by the Parent, the Borrower or one of their
respective Subsidiaries.



     “Issuing Bank” means Bank of America, N.A. or any Lender acting as a successor Issuing
Bank pursuant to Section 10.06, and “Issuing Banks” means, collectively, all of such
Lenders.



     “Land” for any Owned Hospitality Property means the real property upon which the Owned
Hospitality Property is located, together with all rights, title and interests appurtenant to such
real property, including without limitation all rights, title and interests to (a) all strips and
gores within or adjoining such property, (b) the streets, roads, sidewalks, alleys, and ways
adjacent thereto, (c) all of the tenements, hereditaments, easements, reciprocal easement
agreements, rights-of-way and other rights, privileges and appurtenances thereunto belonging or in
any way pertaining thereto, (d) all reversions and remainders, (e) all air space rights, and all
water, sewer and wastewater rights, (e) all mineral, oil, gas, hydrocarbon substances and other
rights to produce or share in the production of anything related to such property, and (f) all
other appurtenances appurtenant to such property, including without limitation, any now or
hereafter belonging or in anywise appertaining thereto.



     “Legal Requirement” means any law, statute, ordinance, decree, requirement, order,
judgment, rule, regulation (or official interpretation of any of the foregoing) of, and the terms
of any license or permit issued by, any Governmental Authority.



     “Lender Addendum” means, with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit J, to be executed and delivered by such Lender on the
Effective Date as provided in Section 10.22.



14









 





     “Lenders” means the lenders who have a Revolving Commitment or a Term Commitment as of
the Effective Date and each Eligible Assignee that shall become a party to this Agreement pursuant
to Section 10.06, and “Lender” means any such Person.



     “Letter of Credit” means, individually, any letter of credit issued by the Issuing
Bank in accordance with the provisions of Section 2.13 of this Agreement, including any Existing
Letter of Credit, and “Letters of Credit” means all such letters of credit, collectively.



     “Letter of Credit Documents” means, with respect to any Letter of Credit, such Letter
of Credit and any reimbursement or other agreements, documents, and instruments entered into in
connection with or relating to such Letter of Credit.



     “Letter of Credit Exposure” means, at any time, the sum of (a) the aggregate undrawn
maximum face amount of each Letter of Credit and (b) the aggregate unpaid amount of all Letter of
Credit Obligations at such time. If the Letter of Credit has an automatic increase schedule, the
maximum amount shall be deemed the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in effect at such time.



     “Letter of Credit Obligations” means all obligations of the Borrower arising in
respect of the Letter of Credit Documents, including without limitation the aggregate drawn amounts
of Letters of Credit which have not been reimbursed by the Borrower or converted into an Adjusted
Base Rate Advance pursuant to the provisions of Section 2.13(c).



     “Leverage Ratio” means the ratio on any date of (a) the Total Indebtedness on such
date to (b) the Parent’s EBITDA for the Rolling Period immediately preceding such date.



     “Lien” means any mortgage, deed of trust, lien, pledge, charge, security interest,
encumbrance or other type of preferential arrangement to secure or provide for the payment of any
obligation of any Person, whether arising by contract, operation of law or otherwise (including,
without limitation, the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other title retention agreement).



     “Liquid Investments” means:




     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States;




     (b) (i) negotiable or nonnegotiable certificates of deposit, time deposits, or other
similar banking arrangements maturing within 180 days from the date of acquisition thereof
(“bank debt securities”), issued by (A) any Lender with a Revolving Commitment or (B) any
other bank or trust company which has a combined capital surplus and undivided profit of not
less than $250,000,000 or the Dollar Equivalent thereof, if at the time of deposit or
purchase, such bank debt securities are rated not less than “A” (or the then equivalent) by
the rating service of S&P or of Moody’s, and (ii) commercial paper issued by (A) any Lender
with a Revolving Commitment or (B) any other Person if at the time of purchase such
commercial paper is rated not less than “A-2” (or the then equivalent) by the rating service
of S&P or not less than “P-2” (or the then equivalent) by the rating service of Moody’s, or
upon the discontinuance of both of such services, such other nationally recognized rating
service or services, as the case may be, as shall be selected by the Borrower with the
consent of the Administrative Agent;




     (c) repurchase agreements relating to investments described in clauses (a) and (b)
above with a market value at least equal to the consideration paid in connection therewith,
with any Person who regularly engages in the business of entering into repurchase agreements
and has a combined capital surplus and undivided profit of not less than $250,000,000 or the
Dollar Equivalent thereof, if at the time of entering into such agreement the debt
securities of such Person are rated not less than “A” (or the then equivalent) by the rating
service of S&P or of Moody’s; and



15









 






     (d) such other instruments (within the meaning of New York’s Uniform Commercial Code)
as the Borrower may request and the Administrative Agent may approve in writing, which
approval will not be unreasonably withheld.



     “Loan Party” means, the Borrower and the Guarantors.



     “Management Business EBITDA” means, for the Borrower and its Subsidiaries for any
Rolling Period, EBITDA for such Rolling Period less EBITDA generated by any Owned
Hospitality Properties for such Rolling Period.



     “Mandatorily Redeemable Stock” means, with respect to any Person, any Ownership
Interest of such Person which by the terms of such Ownership Interest (or by the terms of any
security into which it is convertible or for which it is exchangeable or exercisable), upon the
happening of any event or otherwise (a) matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise (other than an Ownership Interest which is redeemable solely in
exchange for common stock or Ownership Interests Equivalent thereof), (b) is convertible into or
exchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable
at the option of the holder thereof, in whole or in part (other than an Ownership Interest which is
redeemable solely in exchange for common stock or Ownership Interests Equivalent thereof), in each
case on or prior to the Maturity Date.



     “Margin Stock” shall have the meaning provided in Regulation U.



     “Material Adverse Change” shall mean a material adverse change (a) in the business,
property, condition (financial or otherwise), prospects or results of operations of the Borrower,
the Parent and the other Guarantors taken as a whole, in each case since December 31, 2008, or (b)
in the validity or enforceability of this Agreement or any of the other Credit Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.



     “Material Subsidiary” means any Subsidiary of the Parent having assets or annual
revenues in excess of $1,000,000.



     “Material Unconsolidated Entity” means any Unconsolidated Entity of the Parent for
which the Investment Amount is in excess of $1,000,000.



     “Materials” has the meaning set forth in Section 5.05.



     “Maturity Date” means the later to occur of (a) the Initial Maturity Date; and (b) to
the extent maturity is extended pursuant to Section 2.05(c) and/or (d), the First Extended Maturity
Date or the Second Maturity Date, as applicable; provided, however, that, in each
case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business
Day.



     “Maximum Rate” means the maximum nonusurious interest rate under applicable law.



     “Minority-Owned Fund” shall be defined as any fund for which the Parent and its
Subsidiaries collectively own less than 50% of the Ownership Interests of such fund, but whose
financial results are consolidated with the financial results of the Parent and the Parent’s
Subsidiaries under GAAP.



     “Moody’s” means Moody’s Investor Service Inc.



     “Mortgages” means, collectively, the deeds of trust and mortgages executed by the
Borrower or any Guarantor to secure the Obligations, each in form reasonably acceptable to the
Administrative Agent with such modifications as may be necessary and appropriate in the opinion of
counsel to the Administrative Agent to comply with the state law of the filing jurisdiction and as
may be reasonably satisfactory to the Administrative Agent, as the same may be amended or
terminated in accordance with their terms, and “Mortgage” means any of such instruments.



16









 





     “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Parent, the Borrower or any member of the Controlled Group is making or has an
obligation to make contributions.



     “Net Cash Proceeds” means (a) the aggregate cash proceeds (including, without
limitation, insurance and condemnation proceeds) received by the Parent, the Borrower or any of
their respective Subsidiaries (as applicable) in connection with any Indebtedness incurrence on or
after the Effective Date (excluding the Obligations and the incurrence of other Indebtedness which
does not trigger a Repayment Event), Asset Disposition, Capitalization Event or casualty,
minus (b) the reasonable expenses of such Person in connection with such Indebtedness
incurrence, Asset Disposition, Capitalization Event or casualty, minus (c) to the extent
that assets disposed of in connection with an Asset Disposition secure Indebtedness permitted
pursuant to the provisions of Section 6.02(a), the amount of such Indebtedness which is required to
be repaid pursuant to the terms of such Indebtedness in connection with such Asset Disposition, as
reasonably evidenced by the Borrower to the Administrative Agent.



     “Net Income” means, for any Person or Hospitality Property, as applicable, for any
period for which such amount is being determined, the net income or net loss of such Person (on a
Consolidated basis) or Hospitality Property, as applicable, after taxes, as determined on a
Consolidated basis in accordance with GAAP, excluding, however, (a) non-recurring expenses and (b)
extraordinary items, including but not limited to (i) any net gain or loss during such period
arising from the sale, exchange, or other disposition of capital assets (such term to include all
fixed assets and all securities) other than in the ordinary course of business, and (ii) any
write-up or write-down of assets.



     “Net Worth” means, for any Person, stockholders equity of such Person determined in
accordance with GAAP.



     “New Service Fees” means management fees and other service fees payable to the
Borrower or a Subsidiary thereof (to the extent allocable to the Borrower’s ownership interest
therein) and related to contracts executed and delivered post-May 1, 2009; provided, that “New
Service Fees” shall be calculated as of the end of the calendar quarters ended on the dates
referenced in items (b)(i)-(iv) of the definition of the term “Rate Increase Period” and shall (y)
for applicable contract(s) related to properties which are not yet open, but which are scheduled
for opening within the following 12 month period, equal reasonably-projected revenues from
management fees to be received with respect to such contract for the 12-month period immediately
following the opening of the applicable property, (z) for all other applicable contract(s), equal
actual revenues from management fees derived from such contract(s) during the immediately preceding
12 calendar months (except to the extent the applicable property was not open or such contract was
not in effect during the entirety of such 12 month period, in which case, such amount shall be
based on actual revenues from management fees received to date since the opening of such property
or the effectiveness of such contract and reasonably-projected revenues to be received for the
remainder of the 12 month period following such opening or effectiveness), in each case as
calculated by the Borrower and approved by the Administrative Agent in its reasonable discretion



     “Non-Defaulting Lender” shall mean and include each Lender other than a Defaulting
Lender.



     “Non-Replaced Property” means any Property owned by the Borrower or any of the
Guarantors which (a) was used in the ownership, operation or management of any Hospitality
Property, (b) has been conveyed, exchanged, transferred, or assigned by the Borrower or a Guarantor
to a Person other than the Borrower or a Guarantor, (c) has not been replaced in the ordinary
course of business by Property of equal or better quality, and (d) was not included within the
definition of “Investments”.



     “Note” means any of the Revolving Notes, PIK Obligation Notes or the Term Notes, and
“Notes” means all of such promissory notes.



     “Notice of Borrowing” means a notice of borrowing in the form of the attached Exhibit
G signed by a Responsible Officer of the Borrower.



     “Notice of Conversion or Continuation” means a notice of conversion or continuation in
the form of the attached Exhibit H signed by a Responsible Officer of the Borrower.



17









 





     “Obligations” means a collective reference to (i) all Advances, Letter of Credit
Obligations, and all other advances to, and debts, liabilities, obligations, covenants and duties
of, Borrower or any Guarantor arising under any Credit Document or otherwise with respect to any
Advance or Letter of Credit, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against Borrower or any Guarantor or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding, (ii) any Interest Rate Agreements of any Borrower or any Guarantor to which a Lender or
any Affiliate of such Lender is a party and (iii) all obligations under any Treasury Management
Agreement between any Borrower or any Guarantor and any Lender or Affiliate of a Lender.



     “Other Taxes” has the meaning set forth in Section 2.11(b).



     “Owned Hospitality Property” means a Hospitality Property owned by the Parent or one
of the Parent’s Subsidiaries or leased by the Parent or one of the Parent’s Subsidiaries pursuant
to a Ground Lease.



     “Owned Hospitality Property Investments” shall mean Investments in (a) Owned
Hospitality Properties or (b) in Persons for which Hospitality Properties are substantially all of
such Person’s Property which results in the Parent directly or indirectly owning 50% or more of the
applicable Hospitality Property.



     “Owned Hospitality Property Security Documents” for any Owned Hospitality Property
(other than one owned by a Permitted Other Subsidiary), means collectively (a) a Mortgage, (b) an
Assignment of Leases, and (c) such other security agreements, pledge agreements, assignments,
mortgages, financing statements, stock powers, and other collateral documentation as the
Administrative Agent may reasonably request.



     “Ownership Interests” means shares of stock, other securities, partnership interests,
member interests, beneficial interests or other interests in any Person, whether voting or
nonvoting, and participations or other equivalents (regardless of how designated) of or in a
Person.



     “Ownership Interests Collateral” has the meaning given such term in the definition of
“Collateral.”



     “Ownership Interest Equivalents” means all securities (other than Ownership Interests)
convertible into or exchangeable for Ownership Interests and all warrants, options or other rights
to purchase or subscribe for any Ownership Interests, whether or not presently convertible,
exchangeable or exercisable.



     “Parent” means Interstate Hotels & Resorts, Inc., a Delaware corporation.



     “Parent’s Other Subsidiaries” means the direct Subsidiaries of the Parent on the
Effective Date, other than the Borrower.



     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.



     “Permitted Asset Disposition” means any Asset Disposition completed in accordance with
the provisions of Section 5.13 and any other Asset Disposition which (a) occurs at a time in which
no Default has occurred and is continuing, and (b) would not cause a Default to occur upon the
consummation of such Asset Disposition.



     “Permitted Encumbrances” means the Liens permitted to exist pursuant to Section 6.01.



     “Permitted Hazardous Substances” means (a) Hazardous Substances that are (i) used in
the ordinary course of business and in typical quantities for a Hospitality Property and (ii)
generated, used and disposed of in accordance with all Legal Requirements (including Environmental
Laws) and good industry practice, and (b) non-friable asbestos to the extent (i) that no applicable
Legal Requirements require removal of such asbestos from the Hospitality Property and (ii) such
asbestos is encapsulated in accordance with all applicable Legal Requirements and



18









 







maintained pursuant to a reasonable operations and maintenance program as may be required by
the Administrative Agent.



     “Permitted New Investments” means the following Investments made after the Effective
Date:




     (a) Investments (i) to acquire Permitted Property Agreements and (ii) in Persons for
which Permitted Property Agreements are substantially all of such Person’s Property;




     (b) Sliver Investments;




     (c) Owned Hospitality Property Investments, provided that:




     (i) at least five (5) Business Days prior to acquiring an Owned Hospitality
Property Investment the Borrower shall have delivered to the Administrative Agent
for its review and approval (such approval not to be unreasonably withheld or
delayed) the Property Information set forth in clauses (a) through (h) of the
definition of Property Information for the applicable Hospitality Property,




     (ii) any Ground Lease for an Owned Hospitality Property must be financable in
the reasonable opinion of the Administrative Agent,




     (iii) no more than twenty percent (20%) of the hotel rooms in the applicable
Hospitality Property may be subject to a timeshare regime, and




     (iv) to the extent that such Investment would be included in the definition of
Collateral, the provisions of Section 5.09(a) are satisfied;




     (d) Equity Investments in Persons that provide services to current or future
Hospitality Properties for which either (i) the Parent or its direct or indirect Subsidiary
has a Permitted Property Agreement or (ii) the Parent directly or indirectly owns 50% or
more of the applicable Hospitality Property; and




     (e) Investments in Persons that have Permitted Property Agreements which meet the
requirements of the foregoing paragraph (a), but are not majority owned Subsidiaries of the
Borrower.



     “Permitted Non-Recourse Designated Entity Indebtedness” means Indebtedness of an
Unconsolidated Entity or a Minority-Owned Fund which (a) is incurred by an Unconsolidated Entity or
a Minority-Owned Fund to acquire or develop a Hospitality Property or Hospitality Management
Business or refinance such acquisition Indebtedness, and (b) is non-recourse to the Parent, the
Borrower and their respective Subsidiaries except for the Property of or the Ownership Interests in
such Unconsolidated Entity or Minority-Owned Fund, as applicable, and customary recourse
“carve-outs”.



     “Permitted Other Indebtedness” means:




     (a) Indebtedness existing as of the Effective Date which (i) was incurred by a
Permitted Other Subsidiary to (A) acquire an Owned Hospitality Property Investment which
qualifies as a Permitted New Investment, or (B) refinance Indebtedness incurred to acquire a
Permitted New Investment, and (ii) is non-recourse to the Parent, the Borrower and their
respective Subsidiaries except for the Property of or the Ownership Interests in such
Permitted Other Subsidiary and customary recourse “carve-outs” (it being agreed that the
Indebtedness currently secured by the Arlington Property, the Westchase Property and the
Columbia Property are Permitted Other Indebtedness within the meaning of this paragraph
(a));




     (b) refinance Indebtedness incurred following the Effective Date with respect to any of
the Indebtedness permitted pursuant to clause (a) above; provided, that (i) the all-in cost
of funds with respect to such refinance Indebtedness must be less than those related to the
Current Pay Interest applicable to the Obligations hereunder; (ii) the amount financed
remains the same or higher than the Indebtedness



19









 







refinanced thereby; (iii) the term of such refinance Indebtedness is equal to or longer
than the Indebtedness refinanced thereby; (iv) the terms of such indebtedness shall not
include any cash trap/sweep or other provisions (other than as currently-existing with
respect thereto, standard lock-box arrangements or standard debt service coverage-triggered
cash trap requirements (provided such debt service coverage-triggered cash trap requirements
are determined to be based on then-applicable market standards by the Administrative Agent
in its reasonable discretion)) requiring additional payments based on project cash flow, net
income or other variable factors and (v) required payments under such refinance Indebtedness
do not result in higher periodic payments than required with respect to the Indebtedness
refinanced thereby and the terms of such indebtedness shall not include any cash trap/sweep
or other provisions requiring additional payments based on project cash flow, net income or
other variable factors;




     (c) mortgage Indebtedness incurred with respect to




     (i) the Westin Atlanta Airport Hotel; provided, that (A) such mortgage
Indebtedness shall be in an aggregate amount of no less than $18,000,000 and no more
than $40,000,000; (B) such Indebtedness must be non-recourse to the Borrower and its
Subsidiaries subject only to standard carve-outs; (C) the all-in cost of funds with
respect to such Indebtedness must be less than those related to the Current Pay
Interest applicable to the Obligations hereunder; (D) the terms of such indebtedness
shall not include any cash trap/sweep or other provisions (other than standard
lock-box arrangements or standard debt service coverage-triggered cash trap
requirements (provided such debt service coverage-triggered cash trap requirements
are determined to be based on then-applicable market standards by the Administrative
Agent in its reasonable discretion)) requiring additional payments based on project
cash flow, net income or other variable factors; (E) amortization of such
Indebtedness must be on a minimum 25 year schedule (with such payments being made
either mortgage-style or on a straight-line basis); (F) the provisions of such
Indebtedness shall not require any escrowing of funds other than for standard items
such as taxes, insurance and FF&E (capped at 5.0%); and (G) such Indebtedness shall,
in the reasonable judgment of the Borrower and Administrative Agent, include no
additional materially adverse terms or conditions other than those that have been
approved by the Administrative Agent in its reasonable judgment;




     (ii) any other Owned Hospitality Properties that, as of the Effective Date,
constitute Collateral for the Obligations; provided, that (A) such mortgage
Indebtedness shall be in an aggregate amount satisfactory to the Required Lenders;
(B) such Indebtedness must be non-recourse to the Borrower and its Subsidiaries
subject only to standard carve-outs; (C) the all-in cost of funds with respect to
such Indebtedness must be less than those related to the Current Pay Interest
applicable to the Obligations hereunder; (D) the terms of such indebtedness shall
not include any cash trap/sweep or other provisions (other than standard lock-box
arrangements or standard debt service coverage-triggered cash trap requirements
(provided such debt service coverage-triggered cash trap requirements are determined
to be based on then-applicable market standards by the Administrative Agent in its
reasonable discretion)) requiring additional payments based on project cash flow,
net income or other variable factors; (E) amortization of such Indebtedness must be
on a minimum 25 year schedule (with such payments being made either mortgage-style
or on a straight-line basis); (F) the provisions of such Indebtedness shall not
require any escrowing of funds other than for standard items such as taxes,
insurance and FF&E (capped at 5.0%); and (G) such Indebtedness shall, in the
reasonable judgment of the Borrower and Administrative Agent, include no additional
materially adverse terms or conditions other than those that have been approved by
the Administrative Agent in its reasonable judgment;




     (d) the Approved Inter-Company Indebtedness;




     (e) Permitted Non-Recourse Designated Entity Indebtedness; and




     (f) minority Ownership Interests reflected on the Parent’s financial statements as
Indebtedness;



20









 





     provided, however, that except with respect to the Indebtedness currently
secured by the Arlington Property, the Westchase Property and the Columbia Property, the maturity
or termination date of any Permitted Other Indebtedness (without regard to any extensions provided
for with respect to same, except to the extent such extensions are at the sole option of the
obligor thereunder) shall occur after the Second Extended Maturity Date.



     “Permitted Other Subsidiary” means a Subsidiary of the Parent which (a) is a
single-purpose Person, (b) has never been a Guarantor, nor owned any Collateral, and (c) only owns
Permitted New Investments acquired in whole or in part with the proceeds of Permitted Other
Indebtedness and other Property ancillary to such Permitted New Investments.



     “Permitted Property Agreements” means (a) Existing Management Agreements and (b)
Customary Property Agreements related to Hospitality Properties entered into after the Effective
Date.



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



     “PIK Accrual Advance” has the meaning assigned to such term in Section 2.01(c) hereof.



     “PIK Interest” means all interest accrued from time to time pursuant to Section
2.06(b) hereof prior to the addition of such interest to the PIK Obligation or, if earlier, payment
of such interest.



     “PIK Obligations” means the sum of the unpaid PIK Accrual Advances from time to time
existing hereunder pursuant to Section 2.01(c), as the same may be from time to time repaid in
accordance with the terms hereof.



     “PIK Obligation Note” means a promissory note of the Borrower payable to the order of
any Lender in substantially the form of the attached Exhibit A-3, evidencing Indebtedness of the
Borrower to such Lender resulting from any PIK Accrual Advances related to such Lender, and
“PIK Obligation Notes” means all such PIK Obligation Notes.



     “PIK Rate” means a per annum rate of (a) for all dates prior to and including March 9,
2011, 2.00% and (b) for all dates thereafter, 3.00%.



     “PIK Share” means, at any time with respect to any Lender, the ratio (expressed as a
percentage) of such Lender’s PIK Obligations at such time to the aggregate PIK Obligations of all
Lenders at such time.



     “Plan” means an employee benefit plan (other than a Multiemployer Plan) to which the
Parent, the Borrower or any member of the Controlled Group has any obligation or liability
(contingent or otherwise) and covered by Title I of ERISA.



     “Platform” has the meaning set forth in Section 5.05.



     “Prescribed Forms” means such duly executed form(s) or statement(s), and in such
number of copies, which may, from time to time, be prescribed by law and which, pursuant to
applicable provisions of (a) an income tax treaty between the United States and the country of
residence of the Lender providing the form(s) or statement(s), (b) the Code, or (c) any applicable
rule or regulation under the Code, permit the Borrower to make payments hereunder for the account
of such Lender free of (or, upon written request of the Borrower specifying the applicable form, at
a reduced rate of) deduction or withholding of income or similar taxes (except for any deduction or
withholding of income or similar taxes as a result of any change in or in the interpretation of any
such treaty, the Code or any such rule or regulation).



     “Property” of any Person means any property or assets (whether real, personal, or
mixed, tangible or intangible) of such Person, including without limitation, the Permitted Property
Agreements and all Owned Hospitality Properties.



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     “Property Information” for any Owned Hospitality Property means the following
information and documentation for such Owned Hospitality Property:




     (a) an Engineering Report;




     (b) an Environmental Report;




     (c) a commitment for a Title Policy, together with a legible copy of all documents
referred to in such commitment;




     (d) a current Appraisal satisfactory to the Administrative Agent;




     (e) a copy of the agreements pursuant to which the Owned Hospitality Property is being
acquired;




     (f) a ALTA/ASCM survey reasonably satisfactory to the Administrative Agent;




     (g) all financial statements reasonably required by the Administrative Agent;




     (h) copies of any third party property management and/or franchise agreements or
comparable agreements relating to the Owned Hospitality Property; and




     (i) such other information regarding the acquisition, ownership, operation, maintenance
and leasing of an Owned Hospitality Property as the Administrative Agent may reasonably
request from time-to-time.



     “Pro Rata Share” means, at any time with respect to any Lender, the ratio (expressed
as a percentage) of (a) such Lender’s Commitments, plus, to the extent any Class of Commitment has
been terminated, such Lender’s outstanding Advances for such Class (and participation interest in
the Letter of Credit Exposure if the Revolving Commitments have been terminated), plus, the amount
of such Lender’s outstanding PIK Accrual Advances to (b) all Lenders’ aggregate Commitments, plus,
to the extent any Class of Commitment has been terminated, all Lenders’ aggregate outstanding
Advances for such Class (and participation interest in the Letter of Credit Exposure if the
Revolving Commitments have been terminated), plus, the amount of all Lenders’ outstanding PIK
Accrual Advances.



     “Public Lender” has the meaning set forth in Section 5.05.



     “Rate Increase Period” means any period during which the Borrower has failed to meet
any of the following conditions: (a) maintenance of a Management Business EBITDA (calculated on a
trailing four quarter basis) of $10,500,000 or greater as of the end of any calendar quarter; or
(b) achieving annual revenues from New Service Fees in the following aggregate amounts, in each
case for the period commencing on the date hereof: (i) $1.0 million by June 30, 2010; (ii) $1.5
million by December 30, 2010; (iii) $2.0 million by June 30, 2011; and (iv) $3.0 million by
December 30, 2011; provided that any such “Rate Increase Period” shall commence as of the date on
which the Borrower delivers to the Administrative Agent the quarterly reporting information
indicating its failure to meet such conditions and shall end as of any following date on which it
delivers quarterly information indicating that it meets all such criteria.



     “Register” has the meaning set forth in paragraph (d) of Section 10.06.



     “Regulation U” shall mean Regulation U of the Federal Reserve Board as from time to
time in effect and any successor to all or a portion thereof.



     “Reinsurance Contract” means each outstanding reinsurance, coinsurance and other
similar contract of each Insurance Company.



22









 





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



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



     “Release” shall have the meaning set forth in CERCLA or under any other Environmental
Law.



     “Repayment Amount” means, with respect to any Repayment Event, 100% of the Net Cash
Proceeds from such event.



     “Repayment Event” means any of the following events on or after the Effective Date by
the Parent, the Borrower or one of their respective Subsidiaries:




     (a) the incurrence of any Indebtedness excluding the Obligations;




     (b) a Capitalization Event;




     (c) an Asset Disposition; and



     (d) A casualty to or condemnation of an Owned Hospitality Property other than a
casualty or condemnation for which the aggregate Net Cash Proceeds are utilized for the
restoration of the Owned Hospitality Property affected by such casualty within one year of
the date of such casualty.



     “Reportable Event” means any of the events set forth in Section 4043(b) or 4043(c) of
ERISA.



     “Required Lenders” means Non-Defaulting Lenders the sum of whose outstanding Term
Advances (and, prior to the termination thereof, Term Commitments), Revolving Commitments (or after
the termination thereof, outstanding Revolving Advances and participations in Letter of Credit
Exposure) and PIK Accrual Advances represent at least 66 2/3% of the sum of all outstanding Term
Advances (and, if prior to the termination thereof, Term Commitments) of Non-Defaulting Lenders,
plus, the sum of all Revolving Commitments of Non-Defaulting Lenders (or after the termination of
the Revolving Commitments, the sum of the then total outstanding Revolving Advances of
Non-Defaulting Lenders, and the aggregate participations of all Non-Defaulting Lenders of Letter of
Credit Exposure at such time), plus, the sum of all then-existing PIK Accrual Advances;
provided that with respect to a vote which only involves a certain Class or Classes, only
the Commitments and Advances for the applicable Class or Classes shall be used in the calculation
of Required Lenders.



     “Response” shall have the meaning set forth in CERCLA or under any other Environmental
Law.



     “Responsible Officer” means the Chairman of the Board, Chief Executive Officer,
President, Executive Vice President, Chief Financial Officer, Chief Accounting Officer, Corporate
Controller or Treasurer of any Person, or, with respect to a partnership, the general partner of
such Person.



     “Restricted Payment” means (a) any direct or indirect payment, prepayment, redemption,
purchase, or deposit of funds or Property for the payment (including any sinking fund or
defeasance), prepayment, redemption or purchase of any Indebtedness not permitted by this Agreement
or any Subordinate Indebtedness, and (b) the making by any Person of any dividends or other
distributions (in cash, property, or otherwise) on, or payment for the purchase, redemption or
other acquisition of, any Ownership Interests of such Person, other than dividends or distributions
payable in such Person’s Ownership Interests.



     “Revolving Advance” means any advance by a Lender to the Borrower in Dollars pursuant
to such Lender’s Revolving Commitment or a continuation of an existing Revolving Advance, and
refers to an Adjusted Base Rate Advance or a Eurodollar Rate Advance.



23









 





     “Revolving Commitment” means, for each Lender, the Revolving Commitment set forth for
such Lender as its Revolving Commitment in the Register maintained by the Administrative Agent
pursuant to Section 10.06(d). As of the Effective Date, the aggregate amount of the Revolving
Commitments under this Agreement is $8,000,000.00.



     “Revolving Exposure” at any time shall mean the sum of (i) the aggregate principal
amount of all Revolving Advances and (ii) the aggregate amount of all Letter of Credit Exposure at
such time.



     “Revolving Note” means a promissory note of the Borrower payable to the order of any
Lender, in substantially the form of the attached Exhibit A-1, evidencing Indebtedness of the
Borrower to such Lender resulting from Revolving Advances from such Lender, and “Revolving
Notes” means all of such promissory notes.



     “Revolving Required Lenders” means Non-Defaulting Lenders the sum of whose Revolving
Commitments (or after the termination thereof, outstanding Revolving Advances and participations in
Letter of Credit Exposure) represent at least 66 2/3% of the sum of all Revolving Commitments of
Non-Defaulting Lenders (or after the termination of the Revolving Commitments, the sum of the then
total outstanding Revolving Advances of Non-Defaulting Lenders, and the aggregate participations of
all Non-Defaulting Lenders of Letter of Credit Exposure at such time).



     “Revolving Share” means, at any time with respect to any Lender with a Revolving
Commitment or outstanding Revolving Advance, the ratio (expressed as a percentage) of such Lender’s
Revolving Commitment at such time to the aggregate Revolving Commitments at such time, or, if the
Revolving Commitments have been terminated, the ratio (expressed as a percentage) of such Lender’s
Revolving Advances at such time to the aggregate Revolving Advances at such time.



     “Rolling Period” means, as of any date, the four Fiscal Quarters ending immediately
preceding such date.



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



     “SAP” means, with respect to each Insurance Company, the statutory accounting
practices prescribed or permitted by the insurance commissioner (or other similar Governmental
Authority) in the jurisdiction of such Insurance Company for the preparation of Insurance Annual
Statements and other financial reports by insurance companies of the same type in effect from time
to time, applied in a manner consistent with those used in preparing the SAP Financial Statements.



     “SAP Financial Statements” means the audited annual and unaudited quarterly convention
statements filed with the domiciliary state insurance departments of each Insurance Company.



     “Second Extended Maturity Date” has the meaning specified in Section 2.05(d).



     “Security Agreement” means the Security Agreement in favor of the Administrative Agent
from the Borrower, the Parent and the other Guarantors, granting a Lien in all existing and future
Collateral of the Borrower and its Subsidiaries in substantially the form of the attached Exhibit I
and, as applicable, the affirmation and amendment thereof entered into by the parties to such
agreement as of the Effective Date in substantially the form of the attached Exhibit I-2.



     “Security Documents” means the Security Agreement, all Owned Hospitality Property
Security Documents, all Financing Statements and each other document, instrument or agreement
executed in connection therewith or otherwise executed in order to secure all or a portion of the
Obligations; and any “Security Document” means any one of the foregoing.



     “Senior Indebtedness” means the Total Indebtedness minus the Subordinate Indebtedness.



     “Sliver Investments” shall mean debt and equity investments in partnerships, companies
or limited liability companies (a) for which the Borrower’s direct or indirect ownership interest
is less than 50% and (b) that own



24









 







hospitality properties for which the Borrower or its wholly-owned subsidiary will have a
Customary Property Agreement.



     “Status Reset Date” means the date following the end of any Fiscal Quarter which is
the earlier of (a) the 50th day following the end of such Fiscal Quarter and (b) the date which is
five (5) days following the delivery of the reports and other documents required by (i) the
provisions of Section 5.05(a) for such Fiscal Quarter (except for the Fiscal Quarter which ends on
the date the Fiscal Year ends) or (ii) the provisions of Section 5.05(b) for the Fiscal Quarter
which ends on the date the Fiscal Year ends; provided that the documents contemplated by
the preceding clause (ii) shall never be deemed delivered prior to the 40th day
following the end of the Fiscal Year.



     “Subordinate Indebtedness” means Indebtedness of the Borrower, the Parent and their
respective Subsidiaries which (a) shall not mature, become payable or require the payment of any
principal amount thereof (or any amount in lieu thereof) or be mandatorily redeemable, pursuant to
a sinking fund or otherwise redeemable at the option of the holder thereof, in any case in whole or
in part, before the date that is 181 days after the Maturity Date and (b) shall be junior and
subordinate to the Obligations and subject to an intercreditor agreement or subordination
provisions and other terms and provisions which are acceptable to the Administrative Agent.



     “Subsidiary” means, with respect to any Person, at any date, any other Person in whom
such Person holds an Investment and whose financial results would be consolidated under GAAP with
the financial results of such Person if such statements were prepared as of such date.



     “Supermajority Lenders” means Non-Defaulting Lenders the sum of whose outstanding Term
Advances (and, prior to the termination thereof, Term Commitments), Revolving Commitments (or after
the termination thereof, outstanding Revolving Advances and participations in Letter of Credit
Exposure) and PIK Accrual Advances represent at least 80% of the sum of all outstanding Term
Advances (and, if prior to the termination thereof, Term Commitments) of Non-Defaulting Lenders,
plus, the sum of all Revolving Commitments of Non-Defaulting Lenders (or after the termination of
the Revolving Commitments, the sum of the then total outstanding Revolving Advances of
Non-Defaulting Lenders, and the aggregate participations of all Non-Defaulting Lenders of Letter of
Credit Exposure at such time), plus, the sum of all then-existing PIK Accrual Advances;
provided that with respect to a vote which only involves a certain Class or Classes, only
the Commitments and Advances for the applicable Class or Classes shall be used in the calculation
of Supermajority Lenders.



     “Taxes” has the meaning set forth in Section 2.11(a).



     “Term Advance” means the term advance made by any Lender on the Effective Date.



     “Term Commitment” means, for each Lender, the Term Commitment set forth for such
Lender as its Term Commitment in the Register maintained by the Administrative Agent pursuant to
Section 10.06(d). As of the Effective Date, the aggregate amount of the Term Commitments under
this Agreement is $161,183,088.



     “Term Note” means a promissory note of the Borrower payable to the order of any Lender
in substantially the form of the attached Exhibit A-2, evidencing Indebtedness of the Borrower to
such Lender resulting from any Term Advance from such Lender, and “Term Notes” means all
such Term Notes.



     “Term Required Lenders” means Non-Defaulting Lenders the sum of whose outstanding Term
Advances (and, prior to the termination thereof, Term Commitments) represent at least 66 2/3% of
the sum of all outstanding Term Advances (and, if prior to the termination thereof, Term
Commitments) of Non-Defaulting Lenders.



     “Term Share” means, at any time with respect to any Lender with a Term Commitment or
outstanding Term Advance, the ratio (expressed as a percentage) of such Lender’s Term Commitment at
such time to the aggregate Term Commitments at such time, or, if the Term Commitments have been
terminated, the ratio (expressed as a percentage) of such Lender’s Term Advances at such time to
the aggregate Term Advances at such time.



     “Termination Event” means (a) a reportable event described in Section 4043(b) of ERISA
and Section 4043(c) of ERISA with respect to a Title IV Plan, (b) the withdrawal of the Borrower,
the Parent or any member of the Controlled Group from a Title IV Plan subject to Section 4063 of
ERISA during a plan year in which it was a



25









 







substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partial
withdrawal of the Borrower, the Parent or any member of the Controlled Group from any Multiemployer
Plan, (d) with respect to any Multiemployer Plan, the filing of a notice of reorganization,
insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of
ERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan
amendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings to
terminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any required
contribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien
under Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights to
property, whether real or personal) of the Borrower, the Parent or any member of the Controlled
Group, (i) the failure of a Plan or any trust thereunder intended to qualify for tax exempt status
under Section 401 or 501 of the Code or other requirements of Law to qualify thereunder and (j) any
other event or condition that might reasonably be expected to constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan
or Multiemployer Plan or for the imposition of any liability upon the Borrower, the Parent or any
member of the Controlled Group under Title IV of ERISA other than for PBGC premiums due but not
delinquent.



     “Threshold Amount” means (a) with respect to Indebtedness which is either Subordinate
Indebtedness or Indebtedness which is non-recourse to the Borrower and the Guarantors (except for
customary recourse “carve-outs”) which is outstanding in a principal amount of at least $10,000,000
individually or when aggregated with all such Indebtedness and (b) with respect to any other
Indebtedness which is outstanding in a principal amount of at least $5,000,000 individually or when
aggregated with all such Indebtedness; provided, however, in either such case, such
amounts shall not include Indebtedness secured by the Arlington Property as of the Effective Date.



     “Title IV Plan” mean any Plan that is subject to Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code.



     “Title Policy” means a Mortgagee Policy of Title Insurance which (a) is in the form of
American Land Title Association Standard Loan Policy — 1970 (without modification, revision or
amendment) (or such other form as approved by the Administrative Agent) with endorsements
reasonably requested by the Administrative Agent, (b) is issued by an underwriter reasonably
acceptable to the Administrative Agent, (c) insures that the grantor of the Lien insured by such
policy owns the Owned Hospitality Property subject to such Lien in fee simple or pursuant to a
leasehold estate and that the Mortgage covering such Owned Hospitality Property is a valid lien on
such Owned Hospitality Property in favor of the Administrative Agent for the benefit of the Lenders
(subject only to Permitted Encumbrances), (d) does not contain any exceptions for rights of parties
in possession, or unpaid delinquent installments of taxes, special assessments or subsequent
assessments due to changes in ownership or usage, or any other exceptions to coverage other than
Permitted Encumbrances.



     “Total Indebtedness” means all Indebtedness of the Borrower, the Parent and their
respective Subsidiaries on a Consolidated basis, provided that “Total Indebtedness”:




     (a) shall not include any Permitted Non-Recourse Designated Entity Indebtedness;




     (b) shall include, without duplication, any Indebtedness of an Unconsolidated Entity or
a Minority-Owned Fund which does not qualify under the foregoing clause (a); and




     (c) shall not include the amount of any minority interests.



     “Treasury Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer, automated
clearinghouse, zero balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services.



     “Type” has the meaning set forth in Section 1.04.



     “Unconsolidated Entity” means, with respect to any Person, at any date, any other
Person in whom such Person holds an Investment and whose financial results would not be
consolidated under GAAP with the financial results of such Person if such statements were prepared
as of such date.



26









 





     “Units” means apartment or condominium units.



     “Unsecured Indebtedness” of any Person means the Indebtedness of such Person for which
the obligations thereunder are not secured by a Lien on any assets of such Person or its
Subsidiaries.



     “Unused Fee Rate” means, with respect to the commitment fee payable under Section
2.03(a) at any date, 1.00% percent per annum.



     “Westchase Property” means Westchase Hilton in Houston, Texas.



     “Westin Atlanta Airport Hotel” means Westin Atlanta Airport hotel located in Atlanta,
Georgia.



     Section 1.02 Computation of Time Periods. In this Agreement 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 means “to but excluding”.



     Section 1.03 Accounting Terms; Changes in GAAP.




     (a) All accounting terms not specifically defined in this Agreement shall be construed
in accordance with GAAP applied on a consistent basis.




     (b) Unless otherwise indicated, all financial statements of the Borrower and the
Parent, all calculations for compliance with covenants in this Agreement, and all
calculations of any amounts to be calculated under the definitions in Section 1.01 shall be
based upon the Consolidated accounts of the Borrower, the Parent and their respective
Subsidiaries (as applicable) in accordance with GAAP.




     (c) If any changes in accounting principles after December 31, 2008 required by GAAP or
the Financial Accounting Standards Board of the American Institute of Certified Public
Accountants or similar agencies results in a change in the method of calculation of, or
affects the results of such calculation of, any of the financial covenants, standards or
terms found in this Agreement, then the parties shall enter into and diligently pursue
negotiations in order to amend such financial covenants, standards or terms so as to
equitably reflect such change, with the desired result that the criteria for evaluating the
financial condition of Borrower and its Subsidiaries (determined on a Consolidated basis)
shall be the same after such change as if such change had not been made. It is understood
and agreed that the financial covenants shall be calculated without giving effect to any
election under FAS 159.



     Section 1.04 Classes and Types of Advances. Advances are distinguished by “Class” and
“Type”. The “Class” of an Advance refers to the determination whether such Advance is a
Term Advance, a Revolving Advance or a PIK Accrual Advance, each of which constitutes a Class. The
“Type” of an Advance refers to the determination whether such Advance is a Eurodollar Rate
Advance or an Adjusted Base Rate Advance, each of which constitutes a Type.



     Section 1.05 Letters of Credit. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any Letter of Credit Document related thereto, provides for one
or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.



     Section 1.06 Miscellaneous. Article, Section, Schedule and Exhibit references are to
Articles and Sections, of and Schedules and Exhibits, to this Agreement, unless otherwise
specified.



27









 





ARTICLE II




THE ADVANCES AND THE LETTERS OF CREDIT




     Section 2.01 The Advances.




     (a) Term Advances. Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to continue such Lender’s Term Advance to the
Borrower on the Effective Date (or to convert, as of the Effective Date, from revolving
loans outstanding under the Existing Credit Facility to part of the Term Advance of such
Lender hereunder, as applicable), in an aggregate amount equal to such Lender’s Term
Commitment as set forth on Schedule 1.01-1 (provided, that, for purposes of clarification,
all amounts of such Lender’s Term Commitment hereunder in excess of the amount of such
Lender’s commitment with respect to term loans under the Existing Credit Agreement
constitutes the amount of such Lender’s outstanding revolving loans under the Existing
Credit Agreement that are hereby converted to Term Advances hereunder). No amount of any
Term Advance that has been repaid or prepaid may be reborrowed. Term Advances may, at the
Borrower’s option, be either Adjusted Base Rate Advances or Eurodollar Rate Advances;
provided, however that any Term Advances made on the Effective Date shall be Adjusted Base
Rate Advances.




     (b) Revolving Advances. Subject to and upon the terms and conditions set forth
herein, each Lender severally agrees at any time and from time to time on any Business Day
up to fifteen (15) days prior to the Maturity Date to make Revolving Advances;
provided that Revolving Advances shall not be made (or be required to be made) by
any Lender on any date if, after giving effect thereto, (i) such Lender’s Revolving Share of
the Revolving Exposure would exceed such Lender’s Revolving Commitment at such time as set
forth on Schedule 1.01-1, or (ii) the Revolving Exposure would exceed the aggregate
Revolving Commitments of the Lenders at such time. Within the limits of each Lender’s
Revolving Commitment, the Borrower may from time to time prepay Revolving Advances pursuant
to the provisions of Section 2.07 and reborrow Revolving Advances under this Section
2.01(b). Revolving Advances may, at the Borrower’s option, be either Adjusted Base Rate
Advances or Eurodollar Rate Advances.




     (c) PIK Accrual Advances. Subject to and upon the terms and conditions set
forth herein, (i) as of the first Business Day of each calendar quarter, (A) all accrued and
unpaid PIK Interest with respect to the Term Advances; (B) all accrued and unpaid PIK
Interest with respect to the Revolving Advances, (C) all accrued and unpaid PIK Interest
with respect to the PIK Obligations and (D) all accrued and unpaid Current Pay Interest with
respect to the PIK Obligations and (ii) as of any date on which accrued PIK Interest is
required, pursuant to Section 2.07(c)(vi) hereof, to be added to the PIK Obligations, shall
be added to the PIK Obligations (each such added amount constituting a “PIK Accrual
Advance”). The Lenders shall not be required to fund any portion of the PIK Accrual
Advances (as such PIK Accrual Advances represent accrued and unpaid obligations of the
Borrower hereunder) and shall not have any continuing commitments with respect to such PIK
Accrual Advances or the PIK Obligations. The Lenders’ respective shares of the PIK
Obligations from time to time outstanding shall be equal to that portion of the interest
constituting the PIK Accrual Advances from time to time added to the PIK Obligations that is
allocable to the outstanding Advances of such Lender (whether related to the Revolving
Advances, Term Advances or prior PIK Accrual Advances of or allocable to such Lender). No
amount of any PIK Accrual Advance that has been repaid or prepaid may be reborrowed. The
repayment of PIK Accrual Advances added to the PIK Obligations from time to time shall be
absolute obligations of the Borrower hereunder and the Borrower shall be responsible for the
repayment of all PIK Obligations in accordance with the terms hereof. PIK Accrual Advances
shall be Eurodollar Rate Advances and bear interest as specifically set forth for such PIK
Accrual Advances in the definition of the term “Eurodollar Rate.”



     Section 2.02 Method of Borrowing/Treatment of Advances.




     (a) Notice.




     (i) Each Borrowing (other than in respect of PIK Accrual Advances) shall be
made pursuant to a Notice of Borrowing, given not later than 12:00 noon (New York,
New York time)



28









 







(A) on the third Business Day before the date of the proposed Borrowing, in the
case of a Borrowing consisting of Eurodollar Rate Advances, or (B) on the Business
Day before the date of the proposed Borrowing, in the case of a Borrowing consisting
of Adjusted Base Rate Advances, by the Borrower to the Administrative Agent, which
shall give each Lender prompt notice on the day of receipt of such timely Notice of
Borrowing of such proposed Borrowing by telecopier. Each Notice of Borrowing shall
be in writing or by telecopier specifying the requested (A) date of such Borrowing,
(B) Type and Class of Advance comprising such Borrowing, (C) aggregate amount of
such Borrowing, and (D) if such Borrowing is to be comprised of Eurodollar Rate
Advances, the Interest Period for each such Advance. In the case of a proposed
Borrowing comprised of Eurodollar Rate Advances, the Administrative Agent shall
promptly notify each Lender of the applicable interest rate under Section
2.06(a)(ii). With respect to all Advances (other than in respect of PIK Accrual
Advances), each Lender shall, before 12:00 noon (New York, New York time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at its address referred to in Section 10.02, or
such other location as the Administrative Agent may specify by notice to the
Lenders, in same day funds, such Lender’s Revolving Share or Term Share, as
applicable, of such Borrowing. 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 at its
account with the Administrative Agent.




     (ii) Notwithstanding the foregoing, the Borrower may for Adjusted Base Rate
Advances requested on the Effective Date only request that such Advances be made on
the same day as the Notice of Borrowing, provided that such Notice of
Borrowing shall be given not later than 9:00 a.m. (New York, New York time) on the
Effective Date. If such Notice of Borrowing on the Effective Date is delivered to
the Administrative Agent by such time, (A) the Administrative Agent will promptly
notify each Lender who is obligated to fund an Advance under such Notice of
Borrowing of such Notice of Borrowing not later than 12:00 noon (New York, New York
time) on the Effective Date and (B) each Lender shall, before 3:00 p.m. (New York,
New York time) on the Effective Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at its address referred to in
Section 10.02, or such other location as the Administrative Agent may specify by
notice to the Lenders, in same day funds, such Lender’s Revolving Share or Term
Share, as applicable, of such Borrowing.




     (b) Conversions and Continuations. In order to elect to Convert or continue
Advances comprising part of the same Borrowing under this Section, the Borrower shall
deliver an irrevocable Notice of Conversion or Continuation to the Administrative Agent at
the Administrative Agent’s office no later than 12:00 noon (New York, New York time) (i) on
the date which is at least three (3) Business Days in advance of the proposed Conversion or
continuation date in the case of a Conversion to or a continuation of a Borrowing comprised
of Eurodollar Rate Advances and (ii) on the Business Day prior to the proposed conversion
date in the case of a Conversion to a Borrowing comprised of Adjusted Base Rate Advances.
Each such Notice of Conversion or Continuation shall be in writing or by telecopier,
specifying (i) the requested Conversion or continuation date (which shall be a Business
Day), (ii) the Borrowing amount, Type and Class of the Advances to be Converted or
continued, (iii) whether a Conversion or continuation is requested, and if a Conversion,
into what Type of Advances, and (iv) in the case of a Conversion to, or a continuation of,
Eurodollar Rate Advances, the requested Interest Period. Promptly after receipt of a Notice
of Conversion or Continuation under this paragraph, the Administrative Agent shall provide
each Lender with a copy thereof and, in the case of a Conversion to or a continuation of
Eurodollar Rate Advances, notify each Lender of the applicable interest rate under Section
2.06(a)(ii). If the Borrower shall fail to specify an Interest Period for a Eurodollar Rate
Advance including the continuation of a Eurodollar Rate Advance, the Borrower shall be
deemed to have selected an Adjusted Base Rate Advance.




     (c) Certain Limitations. Notwithstanding anything in paragraphs (a) and (b)
above:




     (i) in the case of Eurodollar Rate Advances, each Borrowing shall be in an
aggregate amount of not less than $500,000 or greater multiples of $100,000;



29









 






     (ii) in the case of Adjusted Base Rate Advances, each Borrowing shall be in an
aggregate amount of not less than $500,000 or greater multiples of $100,000;




     (iii) the Borrower may not request Borrowings on more than four (4) days in any
calendar month;




     (iv) at no time shall there be more than five (5) Interest Periods applicable
to outstanding Eurodollar Rate Advances;




     (v) the Borrower may not select Eurodollar Rate Advances for any Borrowing to
be made, Converted or continued if a Default has occurred and is continuing;




     (vi) if any Lender shall, at any time prior to the making of any requested
Borrowing comprised of Eurodollar Rate Advances, notify the Administrative Agent
that the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Applicable Lending
Office to perform its obligations under this Agreement to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances, then such Lender’s
Revolving Share or Term Share, as applicable, of such Borrowing shall be made as an
Adjusted Base Rate Advance, provided that such Adjusted Base Rate Advance
shall be considered part of the same Borrowing and interest on such Adjusted Base
Rate Advance shall be due and payable at the same time that interest on the
Eurodollar Rate Advances comprising the remainder of such Borrowing shall be due and
payable; and such Lender agrees to use commercially reasonable efforts (consistent
with its internal policies and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such designation would avoid
the effect of this paragraph and would not, in the reasonable judgment of such
Lender, be otherwise materially disadvantageous to such Lender;




     (vii) if the Administrative Agent is unable to determine the applicable
Eurodollar Rate for Eurodollar Rate Advances comprising any requested Borrowing, the
right of the Borrower to select Eurodollar Rate Advances for such Borrowing or for
any subsequent Borrowing shall be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such suspension
no longer exist, and each Advance comprising such Borrowing shall be an Adjusted
Base Rate Advance;




     (viii) if the Required Lenders shall, at least one Business Day before the date
of any requested Borrowing, notify the Administrative Agent that the Applicable
Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will not
adequately reflect the cost to such Lenders of making or funding their respective
Eurodollar Rate Advances, as the case may be, for such Borrowing, the right of the
Borrower to select Eurodollar Rate Advances for such Borrowing or for any subsequent
Borrowing shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no longer
exist, and each Advance comprising such Borrowing shall be an Adjusted Base Rate
Advance; and




     (ix) if the Borrower shall fail to select the duration or continuation 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 and paragraph (a)
or (b) above, the Administrative Agent will forthwith so notify the Borrower and the
Lenders and such Advances will be made available to the Borrower on the date of such
Borrowing as Adjusted Base Rate Advances or, if an existing Advance, Converted into
Adjusted Base Rate Advances.




     (d) Notices Irrevocable. Each Notice of Borrowing and Notice of Conversion or
Continuation shall be irrevocable and binding on the Borrower. In the case of any Borrowing
which the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss, out-of-pocket cost or
expense incurred by such Lender as a result of any condition precedent for Borrowing set
forth in Article III not being satisfied for any reason,



30









 







including, without limitation, any loss, cost or expense actually 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) Administrative Agent Reliance. Unless the Administrative Agent shall have
received notice from a Lender before the date of any Borrowing relating to the Revolving
Commitments or Term Commitments that such Lender will not make available to the
Administrative Agent such Lender’s Revolving Share or Term Share, as applicable, of the
Borrowing, the Administrative Agent may assume that such Lender has made its Revolving Share
or Term Share, as applicable, of such Borrowing available to the Administrative Agent on the
date of such Borrowing in accordance with paragraph (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 its Revolving Share or Term Share, as applicable, of such Borrowing available to the
Administrative Agent, such Lender and the Borrower severally agree to immediately repay to
the Administrative Agent on demand such corresponding amount, together with interest on such
amount, for each day from the date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at (i) in the case of the Borrower,
the interest rate applicable on each such day to Advances comprising such Borrowing and (ii)
in the case of such Lender, the Federal Funds Rate for each such day. If such Lender shall
repay to the Administrative Agent such corresponding amount and interest as provided above,
such corresponding amount so repaid shall constitute such Lender’s Advance as part of such
Borrowing for purposes of this Agreement even though not made on the same day as the other
Advances comprising such Borrowing.




     (f) Lender Obligations Several. The failure of any Lender to make any Advance
to be made by it as part of any Borrowing constituting a Revolving Advance or Term Advance
shall not relieve any other Lender of its obligation, if any, to make its Advance on the
date of such Borrowing. No Lender shall be responsible for the failure of any other Lender
to make any Advance to be made by such other Lender on the date of any Borrowing.




     (g) Notes. The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will promptly execute and deliver to such Lender a
promissory note of the Borrower evidencing any Revolving Advances, Term Advances or PIK
Accrual Advances, as the case may be, of such Lender, substantially in the forms of Exhibit
A-1, A-2 or A-3, as the case may be, with appropriate insertions as to date and, if
applicable, principal amount; provided, that delivery of Notes shall not be a
condition precedent to the occurrence of the Effective Date or the making of Advances.



     Section 2.03 Fees.




     (a) Unused Fees. For the period from the Effective Date until the Maturity
Date the Borrower agrees to pay to the Administrative Agent for the account of each Lender
(other than a Defaulting Lender) an unused fee on the average daily amount by which such
Lender’s Revolving Commitment exceeds the sum of such Lender’s Revolving Share of the
Revolving Exposure at a rate per annum equal to the Unused Fee Rate (computed on the actual
number of days elapsed, including the first day and excluding the last, based upon a 360-day
year). Such fees shall be due and payable quarterly in arrears (i) on the date which is
fifteen (15) days following the last Business Day of each calendar quarter and (ii) on the
Maturity Date.




     (b) Letter of Credit Fees. The Borrower agrees to pay to the Administrative
Agent for the benefit of the Lenders (other than Defaulting Lenders), fees in respect of all
Letters of Credit outstanding at a rate per annum equal to the Applicable Margin in effect
with respect to the Eurodollar Rate Advances (computed on the actual number of days elapsed,
including the first day and excluding the last, based upon a 360-day year) on the average
daily amount of the aggregate undrawn maximum amount of each Letter of Credit outstanding,
payable in arrears (i) on the date which is fifteen (15) days following the last Business
Day of each calendar quarter and (ii) on the Maturity Date. In addition, the Borrower
agrees to pay to the Issuing Bank for its own account a fee on the daily amount of the
aggregate undrawn maximum face amount of each Letter of Credit issued by such Issuing Bank
at a rate per annum to be agreed upon by the



31









 







Borrower and the Issuing Bank, such fees due and payable quarterly in arrears on the
date which is fifteen (15) days following the last day of each fiscal quarter and (ii) on
the Maturity Date. In addition, the Borrower shall pay directly to the Issuing Bank for its
own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of the Issuing Bank relating to letters of credit that
from time to time are in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.




     (c) Administrative Agent’s Fees. The Borrower agrees to pay to the
Administrative Agent for its benefit the fees set forth in the Fee Letter for acting as
Administrative Agent, as and when the same are due and payable pursuant to the terms of the
Fee Letter.



     Section 2.04 Reduction of the Revolving Commitments. The Borrower may, upon at least
three (3) Business Days’ prior notice to the Administrative Agent, permanently terminate in whole
or permanently reduce ratably in part the Revolving Commitments of the Lenders; provided,
however, that (a) each partial reduction shall either be (i) in the aggregate amount of not
less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof or (2) in an amount
equal to the remainder of the Revolving Commitments and (b) no such reduction shall result in an
overdraft status as provided in Section 2.07(c)(v).



     Section 2.05 Repayment of Obligations; Maturity Date.




     (a) Repayment of Obligations. The Borrower shall repay the outstanding
principal amount of each Advance, all accrued interest thereon and all of the other
then-outstanding Obligations on the Maturity Date, as extended from time to time in
accordance with the terms of this Section 2.05.




     (b) Initial Maturity Date. Subject to extension pursuant to the terms and
conditions set forth in clauses (c) and (d) of this Section 2.05 and subject to the
provisions otherwise set forth in this Section 2.05, the Borrower shall, on March 9, 2010
(the “Initial Maturity Date”), cause the Obligations (including, without limitation,
all outstanding Term Advances, Revolving Advances, PIK Obligations and all fees, costs and
expenses due and owing under the Credit Documents) to be Fully Satisfied.




     (c) First Extended Maturity Date Option. Not more than 90 days and not less
than 30 days prior to the Initial Maturity Date, the Borrower may notify the Lenders in
writing that the Borrower intends to extend the term of this Agreement to March 9, 2011 (the
end of such period being the “First Extended Maturity Date”); provided, that
the Borrower’s right to such extension shall be subject to the satisfaction of the following
requirements:




     (i) at the Initial Maturity Date, there shall not exist any Default or Event of
Default (including, without limitation, under the mandatory prepayment provisions
set forth in Section 2.07(c)(iv) hereof);




     (ii) the representations and warranties contained herein and the other Credit
Documents, as such representations and warranties may change based upon events or
activities permitted by this Agreement and the Credit Documents, are true and
correct in all material respects (to the extent not otherwise qualified by
materiality) on and as of the Initial Maturity Date; and




     (iii) the Borrower shall, at the Initial Maturity Date, deliver to the
Administrative Agent (for the pro rata benefit of the Lenders based on their
respective shares of the Aggregate Facility Amount) an extension fee equal to one
half of one percent (0.50%) of the then-existing Aggregate Facility Amount.




     (d) Second Extended Maturity Date Option. Not more than 90 days and not less
than 30 days prior to the First Extended Maturity Date, the Borrower may notify the Lenders
in writing that the Borrower intends to extend the term of this Agreement to March 9, 2012
(the end of such period being the “Second Extended Maturity Date”);
provided, that the Borrower’s right to such extension shall be subject to the
satisfaction of the following requirements:



32









 






     (i) at the First Extended Maturity Date, there shall not exist any Default or
Event of Default (including, without limitation, under the mandatory prepayment
provisions set forth in Section 2.07(c)(iv) hereof);




     (ii) the representations and warranties contained herein and the other Credit
Documents, as such representations and warranties may change based upon events or
activities permitted by this Agreement and the Credit Documents, are true and
correct in all material respects (to the extent not otherwise qualified by
materiality) on and as of the First Extended Maturity Date; and




     (iii) the Borrower shall, at the First Extended Maturity Date, deliver to the
Administrative Agent (for the pro rata benefit of the Lenders based on their
respective shares of the Aggregate Facility Amount) an extension fee equal to one
half of one percent (0.50%) of the then-existing Aggregate Facility Amount.




     (e) Satisfaction of Obligations Upon Acceleration. Notwithstanding anything
contained herein or in any other Credit Document to the contrary, to the extent any of the
Obligations are accelerated pursuant to the terms hereof, the Borrower shall, immediately
upon the occurrence of such acceleration, cause such accelerated Obligations to be Fully
Satisfied.




     (f) Conflicting Provisions. This Section 2.05 shall supersede any provisions
contained elsewhere in this Agreement to the contrary.



     Section 2.06 Interest, Late Payment Fee.




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




     (i) Adjusted Base Rate Advances. If such Advance is an Adjusted Base
Rate Advance, a rate per annum (computed in accordance with Section 2.10(b)) equal
at all times to the lesser of (A) the Adjusted Base Rate in effect from time to time
plus the Applicable Margin and (B) the Maximum Rate, provided that
during the continuance of an Event of Default, Adjusted Base Rate Advances shall
bear interest at a rate per annum equal at all times to the lesser of (Y) the rate
required to be paid on such Advance had such Event of Default not occurred
plus two percent (2%) and (Z) the Maximum Rate. Such interest accrued on
Adjusted Base Rate Advances shall be payable in arrears on the first Business Day of
each calendar month and on the date such Adjusted Base Rate Advance is paid in full.




     (ii) Eurodollar Rate Advances. If such Advance is




     (A) a Eurodollar Rate Advance relating to a Revolving Advance or a Term
Advance, a rate per annum (computed in accordance with Section 2.10(b))
equal at all times during the Interest Period for such Advance to the lesser
of (1) the applicable Eurodollar Rate for such Advance for such Interest
Period plus the Applicable Margin and (2) the Maximum Rate;
provided, however that during the continuance of an Event of
Default, Eurodollar Rate Advances shall bear interest at a rate per annum
equal at all times to the lesser of (1) the rate required to be paid on such
Advance had such Event of Default not occurred plus two percent (2%)
and (2) the Maximum Rate. Such interest accrued on Eurodollar Rate Advances
shall be payable in arrears on the last day of such Interest Period, and on
the date such Eurodollar Rate Advance shall be paid in full, and, with
respect to Eurodollar Rate Advances having an Interest Period in excess of
thirty (30) days, the first Business Day of each calendar month during such
Interest Period excluding the month in which such Eurodollar Rate Advance
shall be paid in full; or



33









 






     (B) a Eurodollar Rate Advance relating to any Accrued PIK Advance
(which shall include all of the then-outstanding PIK Obligations), a rate
per annum (computed in accordance with Section 2.10(b)) equal to the lesser
of (1) the applicable Eurodollar Rate for such Advance plus the
Applicable Margin and (2) the Maximum Rate; provided,
however that during the continuance of an Event of Default,
Eurodollar Rate Advances relating to any Accrued PIK Advance shall bear
interest at a rate per annum equal at all times to the lesser of (1) the
rate required to be paid on such Advance had such Event of Default not
occurred plus two percent (2%) and (2) the Maximum Rate. All such
interest accrued pursuant to this item (B) shall be periodically added to
the PIK Obligations in accordance with Section 2.01(c) hereof and be payable
as of the Maturity Date together with all other PIK Obligations in
accordance with Section 2.05 hereof.




     (b) PIK Interest. Regardless of whether an Advance is an Adjusted Base Rate
Advance or a Eurodollar Rate Advance, all Advances shall, in addition to the interest
payable pursuant to subclauses (a)(i) and (ii) above, bear interest at a per annum rate
equal to the then-applicable PIK Rate. All such interest, whether accrued with respect to
the Revolving Advances, the Term Advances or the PIK Obligations, shall be added to the PIK
Obligations in accordance with Section 2.01(c) hereof and be payable as of the Maturity Date
together with all other PIK Obligations in accordance with Section 2.05 hereof.




     (c) Usury Recapture. In the event the rate of interest chargeable under this
Agreement or the Notes at any time is greater than the Maximum Rate, the unpaid principal
amount of the Notes shall bear interest at the Maximum Rate until the total amount of
interest paid or accrued on the Notes equals the amount of interest which would have been
paid or accrued on the Notes if the stated rates of interest set forth in this Agreement had
at all times been in effect. In the event, upon payment in full of the Notes, the total
amount of interest paid or accrued under the terms of this Agreement and the Notes is less
than the total amount of interest which would have been paid or accrued if the rates of
interest set forth in this Agreement had, at all times, been in effect, then the Borrower
shall, to the extent permitted by applicable law, pay the Administrative Agent for the
account of the Lenders an amount equal to the difference between (i) the lesser of (A) the
amount of interest which would have been charged on the Notes if the Maximum Rate had, at
all times, been in effect and (B) the amount of interest which would have accrued on the
Notes if the rates of interest set forth in this Agreement had at all times been in effect
and (ii) the amount of interest actually paid or accrued under this Agreement on the Notes.
In the event the Lenders ever receive, collect or apply as interest any sum in excess of the
Maximum Rate, such excess amount shall, to the extent permitted by law, be applied to the
reduction of the principal balance of the Notes, and if no such principal is then
outstanding, such excess or part thereof remaining shall be paid to the Borrower.




     (d) Other Amounts Overdue. Subject to the provisions of Section 10.11, if any
amount payable under this Agreement other than the Advances is not paid when due and
payable, including without limitation, accrued interest and fees, then such overdue amount
shall accrue interest hereon due and payable on demand at a rate per annum equal to the
Adjusted Base Rate plus two percent (2%), from the date such amount became due until
the date such amount is paid in full.




     (e) Late Payment Fee. Subject to the provisions of Section 10.11, if any
interest payable under this Agreement is not paid when due and payable (after taking into
account any applicable grace period), then the Borrower will pay to the Lenders
contemporaneously with the payment of such past due interest a late payment fee equal to an
amount equal to the product of (i) such overdue interest times (ii) two percent
(2%).



     Section 2.07 Prepayments.




     (a) Right to Prepay. The Borrower shall have no right to prepay any principal
amount of any Advance except as provided in this Section 2.07.



34









 






     (b) Optional Prepayments. The Borrower may elect to prepay any of the Advances
(subject to the restrictions set forth below), after giving by 12:00 noon (New York, New
York time) (i) in the case of Eurodollar Rate Advances, at least three (3) Business Days’,
or (ii) in case of Adjusted Base Rate Advances, at least one (1) Business Day’s prior
written notice to the Administrative Agent, stating the proposed date and aggregate
principal amount of such prepayment, and if applicable, the relevant Interest Period for the
Advances to be prepaid. If any such notice is given, the Borrower shall prepay Advances
comprising part of the same Borrowing in whole or ratably in part in an aggregate principal
amount equal to the amount specified in such notice, and shall also pay accrued interest to
the date of such prepayment on the principal amount prepaid and amounts, if any, required to
be paid pursuant to Sections 2.07(c)(iii) or 2.08 as a result of such prepayment being made
on such date; provided, however, that (A) each partial prepayment shall be
in an aggregate principal amount not less than $500,000 and in integral multiples of
$100,000, (B) prepayments made under this Section 2.07(b) may be applied to outstanding Term
Advances or outstanding Revolver Advances at the discretion of the Borrower and (C) no
prepayment of the PIK Obligations may be made unless the outstanding balance of both the
Revolving Advances and the Term Advances have been reduced to zero as of the date of such
prepayment.




     (c) Mandatory Prepayments.




     (i) Excess Cash Flow Term Prepayments. Within thirty (30) days
following the end of each calendar quarter, the Borrower shall make a payment
against the outstanding principal balance of the Term Advances in an amount equal to
(A) all Excess Free Cash Flow for such calendar quarter, less (B) the amount
necessary to provide the Borrower and its Subsidiaries with $6,500,000 (or, to the
extent (x) the Borrower has made at least $45,000,000 in aggregate principal
payments against the outstanding principal balance of the Term Advances since the
Effective Date and (y) at such time the Borrower is not in a Rate Increase Period,
$10,000,000) of cash working capital as of the end of such calendar quarter.




     (ii) Excess Cash Flow Revolver Prepayments. Immediately following any
prepayment of the Term Advances required pursuant to clause (c)(i) above for a given
calendar quarter, the Borrower shall prepay any outstanding principal balance of the
Revolving Advances (and, thereafter, cash collateralize outstanding Letter of Credit
Exposure) in an amount equal to (A) all Excess Free Cash Flow for such calendar
quarter, less (B) the amount necessary to provide the Borrower and its Subsidiaries
with $6,500,000 (or, to the extent (x) the Borrower has made at least $45,000,000 in
aggregate principal payments against the outstanding principal balance of the Term
Advances since the Effective Date and (y) at such time the Borrower is not in a Rate
Increase Period, $10,000,000) of cash working capital as of the end of such calendar
quarter; less (C) the amount of such Excess Free Cash Flow used to repay Term
Advances pursuant to clause (c)(i) above.




     (iii) Repayment Events. In addition to the prepayments required
pursuant to clauses (c)(i) and (ii) above, upon the occurrence of any Repayment
Event, the Borrower shall prepay Advances on the next Business Day after the Net
Cash Proceeds from such Repayment Event are received by the Borrower or the Parent
or one of their respective Subsidiaries, as applicable, in an amount equal to the
lesser of (A) the amount of the outstanding Advances on such Business Day and (B)
the Repayment Amount for such Repayment Event. Prepayments made pursuant to this
clause (c)(iii) shall be applied (A) first, to outstanding Term Advances (and
accrued Current Pay Interest related thereto), (B) second, to outstanding PIK
Obligations (and accrued Current Pay Interest related thereto), (C) third, to
accrued PIK Interest on all Advances and (C) fourth, to Revolving Advances (and
accrued Current Pay Interest related thereto) and, thereafter, to the cash
collateralization of outstanding Letter of Credit Exposure.




     (iv) Additional Required Term Prepayments. Regardless of whether any
prepayments of the Term Advances are from time to time required pursuant to clauses
(c)(ii) and (iii) above, the Borrower shall make aggregate principal payments
(counting any payments made pursuant to such clauses (c)(i) and (iii) above) against
the outstanding Term Advances: (A) on or prior to March 9, 2010 in an aggregate
amount (counting all such payments made since the



35









 







Effective Date) equal to or greater than $20,000,000; and (B) on or prior to
March 9, 2011 in an aggregate amount (counting all such payments made since the
Effective Date) equal to or greater than $40,000,000; provided, that proceeds
derived from Repayment Events relating to the financing or refinancing of owned
assets of the Borrower shall account for no more than $20,000,000 of the prepayments
required pursuant to items (A) and (B) above (though the Borrower shall be required
to make such prepayments to the extent otherwise required herein regardless of
whether they are counted for purposes of the calculations related to this clause
(c)(iv)).




     (v) Overdraft. On any date on which the Revolving Exposure exceeds the
aggregate Revolving Commitments, the Borrower agrees to make a prepayment of the
Revolving Advances in the amount of such excess, and if all the Revolving Advances
have been then repaid, then to deposit with the Administrative Agent into the Cash
Collateral Account an amount equal to the lesser of (A) the Letter of Credit
Exposure or (B) the amount of such excess less the amount of Revolving Advances then
repaid.




     (vi) Accrued Interest. Except as specifically noted above, each
prepayment pursuant to this Section 2.07(c) shall be accompanied by accrued Current
Pay Interest on the amount prepaid to the date of such prepayment and amounts, if
any, required to be paid pursuant to Section 2.08 as a result of such prepayment
being made on such date. Accrued PIK Interest with respect to the prepaid amount
shall be added to the then-outstanding PIK Obligations.




     (vii) Avoidance of Breakage Costs. In the event that the amount of any
mandatory prepayment of Advances under this Section 2.07(c) exceeds the aggregate
principal amount of Advances which consist of Adjusted Base Rate Advances (the
amount of such excess being the “Excess Amount”), the Borrower shall have
the right, in lieu of making such prepayment in full, to prepay such outstanding
Advances which are Adjusted Base Rate Advances and to deposit an amount equal to the
Excess Amount with the Administrative Agent in the Cash Collateral Account
maintained by and in the sole dominion and control of the Administrative Agent for
the ratable benefit of the Lenders. Any amount so deposited shall be held by the
Administrative Agent as collateral for the Obligations, earn interest on behalf of
the Borrower and be applied to the prepayment of Advances which are Eurodollar Rate
Advances at the end of the current Interest Period(s) applicable thereto (if any).
On any day on which amounts collected in the Cash Collateral Account remain on
deposit in or to the credit of the Cash Collateral Account after giving effect to
the payment made on such day pursuant to this Section 2.07(c), and the Borrower
shall have delivered to the Administrative Agent a written request or a telephonic
request (which shall be promptly confirmed in writing) prior to 12:00 noon (New
York, New York time) that such remaining collected amounts be invested in cash
equivalents specified in such request, the Administrative Agent shall invest such
funds, to the extent the Administrative Agent is reasonably able to do so, in such
cash equivalents as are acceptable to, and with no risk to, the Administrative Agent
on an overnight basis or with maturities such that amounts will be available to pay
the Obligations secured thereby as they become due, whether at maturity, by
acceleration or otherwise; provided, however, that any loss
resulting from such investments shall be charged to and be immediately payable by
the Borrower on demand by the Administrative Agent.




     (viii) Repayment of Revolving Advances. Any mandatory repayments of
Revolving Advances pursuant to this Section 2.07(c) shall be applied (A) if no
Default or Event of Default exists, then to Revolving Advances comprising the same
Borrowing or Borrowings, at the Borrower’s option, and (B) if a Default or Event of
Default exists, then to all Revolving Advances pro rata based upon the amount of
outstanding Revolving Advances.




     (d) Ratable Payments. Each payment of any Advance pursuant to this Section
2.07 or any other provision of this Agreement shall be made in a manner such that all
Advances comprising part of the same Borrowing are paid in whole or ratably in part.



36









 






     (e) Effect of Notice. All notices given pursuant to this Section 2.07 shall be
irrevocable and binding upon the Borrower.




     (f) Payments with respect to Liens on an Owned Hospitality Property.
Notwithstanding anything in this Agreement or any other Credit Document to the contrary,
except in connection with the release of Liens on an Owned Hospitality Property contemplated
by the provisions of Section 5.09, each payment of any Advance pursuant to this Section 2.07
or any other provision of this Agreement shall be made in a manner such that all Advances
secured by a Lien on an Owned Hospitality Property shall be deemed the last Advances repaid.



     Section 2.08 Breakage Costs. If (a) any payment of principal of any Eurodollar Rate
Advance is made other than on the last day of the Interest Period (if any) for such Advance as a
result of any payment pursuant to Section 2.07 or the acceleration of the maturity of the Notes
pursuant to Article VIII or otherwise; (b) any Conversion of a Eurodollar Rate Advance is made
other than on the last day of the Interest Period (if any) for such Advance pursuant to Section
2.02(b) or Section 2.12 or otherwise; or (c) the Borrower fails to make a principal or interest
payment with respect to any Eurodollar Rate Advance on the date such payment is due and payable,
the Borrower shall, within ten (10) days of any written demand sent by any Lender to the Borrower
through the Administrative Agent, pay to the Administrative Agent for the account of such Lender
any amounts (without duplication of any other amounts payable in respect of breakage costs)
required to compensate such Lender for any additional losses, out-of-pocket costs or expenses which
it may reasonably incur as a result of such payment or nonpayment, 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 to fund or maintain such Advance.



     Section 2.09 Increased Costs.




     (a) Eurodollar Rate Advances. If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation (except with respect to Taxes or
Other Taxes) following the date of this Agreement 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) not complied with prior to the date of this Agreement, there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time to time, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), immediately pay to the
Administrative Agent for the account of such Lender additional amounts (without duplication
of any other amounts payable in respect of increased costs) sufficient to compensate such
Lender for such increased cost; provided, however, that, before making any
such demand, each Lender agrees to use commercially 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 and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such increased
cost and detailing the calculation of such cost submitted to the Borrower and the
Administrative Agent by such Lender at the time such Lender demands payment under this
Section shall be conclusive and binding for all purposes, absent manifest error.




     (b) Capital Adequacy. If any Lender or the Issuing Bank determines in good
faith 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)
implemented or effective after the date of this Agreement affects or would affect the amount
of capital required or expected to be maintained by such Lender or the Issuing Bank and that
the amount of such capital is increased by or based upon the existence of such Lender’s
commitment to lend or the Issuing Bank’s commitment to issue Letters of Credit or any
Lender’s commitment to risk participate in Letters of Credit and other commitments of this
type, then, upon thirty (30) days prior written notice by such Lender or the Issuing Bank
(with a copy of any such demand to the Administrative Agent), the Borrower shall immediately
pay to the Administrative Agent for the account of such Lender or to the Issuing Bank, as
the case may be, from time to time as specified by such Lender or the Issuing Bank,
additional amounts (without duplication of any other amounts payable in respect of increased
costs) sufficient to compensate such Lender or the Issuing Bank, in light of such
circumstances, (i) with respect to such Lender, to the extent that such Lender reasonably
determines such increase in



37









 







capital to be allocable to the existence of such Lender’s commitment to lend under this
Agreement or its commitment to risk participate in Letters of Credit and (ii) with respect
to the Issuing Bank, to the extent that such Issuing Bank reasonably determines such
increase in capital to be allocable to the issuance or maintenance of the Letters of Credit.
A certificate as to such amounts and detailing the calculation of such amounts submitted to
the Borrower and the Administrative Agent by such Lender or the Issuing Bank shall be
conclusive and binding for all purposes, absent manifest error.




     (c) Letters of Credit. If any change in any law or regulation (except with
respect to Taxes or Other Taxes) or in the interpretation thereof by any court or
administrative or Governmental Authority charged with the administration thereof following
the date of this Agreement shall either (i) impose, modify, or deem applicable any reserve,
special deposit, or similar requirement against letters of credit issued by, or assets held
by, or deposits in or for the account of, Issuing Bank or any Lender or (ii) impose on
Issuing Bank or any Lender any other condition regarding the provisions of this Agreement
relating to the Letters of Credit or any Letter of Credit Obligations, and the result of any
event referred to in the preceding clause (i) or (ii) shall be to increase the cost to
Issuing Bank of issuing or maintaining any Letter of Credit, or increase the cost to such
Lender of its risk participation in any Letter of Credit (which increase in cost shall be
determined by Issuing Bank’s or such Lender’s reasonable allocation of the aggregate of such
cost increases resulting from such event), then, upon demand by Issuing Bank or such Lender
(with a copy sent to the Administrative Agent), as the case may be, the Borrower shall pay
to the Administrative Agent for the account of Issuing Bank or Lender, as the case may be,
from time to time as specified by Issuing Bank or such Lender, additional amounts which
shall be sufficient to compensate such Issuing Bank or such Lender for such increased cost.
Issuing Bank and each Lender agrees to use commercially reasonable efforts (consistent with
internal policy and legal and regulatory restrictions) to designate a different Applicable
Lending Office for the booking of its Letters of Credit or risk participations if the making
of such designation would avoid the effect of this paragraph and would not, in the
reasonable judgment of Issuing Bank or such Lender, be otherwise disadvantageous to Issuing
Bank or such Lender, as the case may be. A certificate as to such increased cost incurred
by Issuing Bank or such Lender, as the case may be, as a result of any event mentioned in
clause (i) or (ii) above, and detailing the calculation of such increased costs submitted by
Issuing Bank or such Lender to the Borrower and the Administrative Agent, shall be
conclusive and binding for all purposes, absent manifest error.



     Section 2.10 Payments and Computations.




     (a) Payment Procedures. Except if otherwise set forth herein, the Borrower
shall make each payment under this Agreement and under the Notes not later than 12:00 noon
(New York, New York time) on the day when due in Dollars to the Administrative Agent at the
location referred to in the Notes (or such other location as the Administrative Agent shall
designate in writing to the Borrower) in same day funds without set-off, deduction or
counterclaim. Except for amounts payable solely to the Administrative Agent, the Issuing
Banks, or a specific Lender pursuant to Section 2.03(b), 2.03(c), 2.08, 2.09, 2.11, 2.12, or
2.13(c) but after taking into account payments effected pursuant to Section 10.04, the
Administrative Agent will on the same day cause to be distributed like funds relating to the
payment of principal, interest or fees ratably to the Lenders in accordance with, in the
case of a payment made in respect of a Borrowing, each Lender’s Revolving Share or Term
Share, as applicable, for the account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable to any Lender or Issuing Bank
for the account of its Applicable Lending Office, in each case to be applied in accordance
with the terms of this Agreement.




     (b) Computations. All computations of interest based on the Adjusted Base Rate
(except to the extent calculated pursuant to clause (c) of the definition thereof) shall be
made by the Administrative Agent on the basis of a year of 365 days and all computations of
fees and interest based on the Eurodollar Rate, the Adjusted Base Rate, to the extent
calculated pursuant to clause (c) of the definition thereof, and the Federal Funds Rate
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 or fees are payable. Each determination by
the Administrative Agent of an interest rate shall be conclusive and binding for all
purposes, absent manifest error.



38









 






     (c) Non-Business Day Payments. Whenever any payment 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 fees, 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.




     (d) Administrative Agent Reliance. Unless the Administrative Agent shall have
received written notice from the Borrower prior to the date on which any payment is due to
the Lenders 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 Lender on such date an amount equal to the amount then due such Lender.
If and to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender, together with interest, for each day from the
date such amount is distributed to such Lender until the date such Lender repays such amount
to the Administrative Agent, at the Federal Funds Rate for each such day.




     (e) Application of Payments. Unless otherwise specified in Section 2.07
hereof, whenever any payment received by the Administrative Agent under this Agreement is
insufficient to pay in full all amounts then due and payable under this Agreement and the
Notes, such payment shall be distributed and applied by the Administrative Agent and the
Lenders in the following order: first, to the payment of fees and expenses due and
payable to the Administrative Agent, in its capacity as such, under and in connection with
this Agreement or any other Credit Document; second, to the payment of all expenses
due and payable under Section 2.11(c), to all fees due and payable to the Issuing Bank
pursuant to Section 2.03(b), and to all other fees due and payable under Section 2.03,
ratably among the Lenders and the Issuing Bank in accordance with the aggregate amount of
such payments owed to each such Lender and the Issuing Bank; third, to the payment
of the Current Pay Interest accrued on all Advances (other than the PIK Obligations) and all
Letter of Credit Obligations, regardless of whether any such amount is then due and payable,
ratably among the Lenders in accordance with the aggregate accrued interest owed to such
Lenders; fourth, to the payment of the principal amount of all Advances, all PIK
Interest, all Current Pay Interest with respect to the PIK Obligations and all Letter of
Credit Obligations, regardless of whether any such amount is then due and payable, ratably
among the Lenders in accordance with the aggregate principal amount owed to such Lenders;
and fifth, if applicable, to the payment of all amounts due and payable under
Interest Rate Agreements or Treasury Management Agreements provided by any Lender or any
Affiliate of a Lender.




     (f) Register. The Administrative Agent shall record in the Register the
Commitment and the Advances from time to time of each Lender and each repayment or
prepayment in respect to the principal amount of such Advances of each Lender. Any such
recordation shall be conclusive and binding on the Borrower and each Lender, absent manifest
error; provided however, that failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower’s obligations hereunder in respect
of such Advances.



     Section 2.11 Taxes.




     (a) No Deduction for Certain Taxes. Any and all payments by the Borrower shall
be made, in accordance with Section 2.10, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, (i) in the case of each Lender, Issuing
Bank, and the Administrative Agent, taxes imposed on its income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender, Issuing Bank, or the
Administrative Agent (as the case may be) is organized or carries on business (other than as
a result of a connection arising primarily from the Lender, Issuing Bank, or the
Administrative Agent, as the case may be, having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement) or any political
subdivision or taxing authority of such jurisdictions (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as
“Taxes”) and, (ii) in the case of each Lender and Issuing Bank, Taxes by the
jurisdiction of



39









 







such Lender’s Applicable Lending Office or any political subdivision of such
jurisdiction. If the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable to any Lender, Issuing Bank, or the Administrative Agent, (x) the
sum payable shall be increased as may be necessary so that, after making all required
deductions (including deductions applicable to additional sums payable under this Section
2.11), such Lender, Issuing Bank, 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;
provided, however, that if the Borrower’s obligation to deduct or withhold
Taxes is caused solely by such Lender’s, Issuing Bank’s, or the Administrative Agent’s
failure to provide the forms described in paragraph (e) of this Section 2.11 and such
Lender, Issuing Bank, or the Administrative Agent could lawfully have provided such forms,
no such increase shall be required; (y) the Borrower shall make such deductions; and (z) the
Borrower shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Legal Requirements.




     (b) Other Taxes. In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, the Notes, or the other Credit Documents
(hereinafter referred to as “Other Taxes”).




     (c) Indemnification. The Borrower will indemnify each Lender, Issuing Bank,
and the Administrative Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental Authority on amounts
payable under this Section 2.11) paid by such Lender, Issuing Bank, or the Administrative
Agent (as the case may be) and any liability (including interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Each payment required to be made by the Borrower in respect of this
indemnification shall be made to the Administrative Agent for the benefit of any party
claiming such indemnification within thirty (30) days from the date the Borrower receives
written demand detailing the calculation of such amounts therefore from the Administrative
Agent on behalf of itself as Administrative Agent, Issuing Bank, or any such Lender. If any
Lender, the Administrative Agent, or Issuing Bank determines in its sole discretion
(exercised in good faith) that is has received a refund or offset in respect of any Taxes or
Other Taxes paid by the Borrower under this paragraph (c), such Lender, the Administrative
Agent, or Issuing Bank, as the case may be, shall promptly pay to the Borrower, but only up
to the amount paid by the Borrower, the Borrower’s share of such refund or offset as
determined in the sole discretion, exercised in good faith, of such Lender, the
Administrative Agent, or Issuing Bank, as the case may be (reduced by any reasonable
out-of-pocket expenses and any Taxes imposed on the Lender, the Administrative Agent, or
Issuing Bank, as the case may be, by reason of the receipt of such refund or offset,
provided, however, that the Borrower upon the request of such Lender, the
Administrative Agent or Issuing Bank agrees to repay the amount paid over to the Borrower to
such Lender, the Administrative Agent or Issuing Bank in the event such Lender, the
Administrative Agent, or Issuing Bank is required to repay such refund or offset to a taxing
authority). Nothing in this Section 2.11(c) shall obligate any Lender, the Administrative
Agent or Issuing Bank to apply for any such refund or offset.




     (d) Evidence of Tax Payments. The Borrower will pay prior to delinquency all
Taxes and Other Taxes payable in respect of any payment. Within thirty (30) days after the
date of any payment of Taxes, the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 10.02, the original or a certified copy of a receipt
evidencing payment of such Taxes or Other Taxes.




     (e) Foreign Lender Withholding Exemption. Each Lender and Issuing Bank that is
not incorporated under the laws of the United States of America or a state thereof agrees
that it will deliver to the Borrower and the Administrative Agent on the date of this
Agreement or upon the effectiveness of any Assignment and Assumption pursuant to which such
Lender first becomes a Lender hereunder, two duly completed copies of the Prescribed Forms,
as the case may be, certifying in each case that such Lender is entitled to receive payments
under this Agreement and any Notes payable to it, without deduction or withholding of any
United States federal income taxes. Each Lender which delivers to the Borrower and the
Administrative Agent a Prescribed Form further undertakes to deliver, to the extent it may
lawfully do so, to the Borrower and the Administrative Agent on or before the date that any
such form expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form



40









 







previously delivered by it to the Borrower and the Administrative Agent two further
copies of a replacement Prescribed Form. If an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any delivery
required by the preceding sentence would otherwise be required which renders all such forms
inapplicable or which would prevent any Lender from duly completing and delivering any such
letter or form with respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax, and in the case of a Prescribed Form
establishing an exemption from, or a reduced rate of, United States backup withholding tax,
such Lender shall not be required to deliver such forms. The Borrower shall withhold tax at
the rate and in the manner required by the laws of the United States with respect to
payments made to a Lender that may lawfully provide the Prescribed Forms and fails to do so
in a timely manner.




     (f) Nothing in this Section 2.11 shall require any Lender or the Administrative Agent
to make available any of its tax returns (or any other information that it deems to be
confidential or proprietary, in its sole discretion).




     (g) If the Issuing Bank or any Lender claims any additional amounts payable pursuant to
this Section 2.11, then such Issuing Bank or Lender (as the case may be) shall use its
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if the making of
such a change would avoid the need for, or reduce the amount of, any such additional amounts
that would be payable or may thereafter accrue and would not, in the sole discretion of such
Issuing Bank or Lender, be otherwise disadvantageous to such Issuing Bank or Lender.




     (h) If any Governmental Authority asserts that the Administrative Agent did not
properly withhold or backup withhold, as the case may be, any tax or other amount from
payments made to or for the account of any Lender, that Lender shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes imposed by
any jurisdiction on the amounts payable to the Administrative Agent under this Section, and
costs and expenses (including attorney fees) of the Administrative Agent. The obligation of
the Lenders under this Section shall survive the termination of the Commitments, repayment
of all other Obligations hereunder and the resignation of the Administrative Agent.



     Section 2.12 Illegality. If any Lender shall notify the Administrative Agent and the
Borrower that the introduction of or any change in or in the interpretation of any Legal
Requirement makes it unlawful, or that any central bank or other Governmental Authority asserts
that it is unlawful for such Lender or its Applicable Lending Office to perform its obligations
under this Agreement to maintain any Eurodollar Rate Advances of such Lender then outstanding
hereunder, then, notwithstanding anything herein to the contrary, the Borrower shall, if demanded
by such Lender by notice to the Borrower and the Administrative Agent no later than 12:00 noon (New
York, New York time), (a) if not prohibited by Legal Requirement to maintain such Eurodollar Rate
Advances for the duration of the Interest Period, on the last day of the Interest Period for each
outstanding Eurodollar Rate Advance of such Lender or (b) if prohibited by Legal Requirement to
maintain such Eurodollar Rate Advances for the duration of the Interest Period, on the second
Business Day following its receipt of such notice from such Lender, Convert all such affected
Eurodollar Rate Advances of such Lender then outstanding to Adjusted Base Rate Advances, and pay
accrued interest on the principal amount Converted to the date of such Conversion and amounts, if
any, required to be paid pursuant to Section 2.08 as a result of such Conversion being made on such
date. Each Lender agrees to use commercially reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such designation would avoid the effect of this paragraph and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.



     Section 2.13 Letters of Credit.




     (a) Issuance. From time to time from the date of this Agreement until three
months before the Maturity Date, at the request of the Borrower, the Issuing Bank shall, on
any Business Day and on the terms and conditions hereinafter set forth, issue, increase,
decrease, amend, or extend the expiration date of Letters of Credit for the account of the
Borrower (for its own benefit or for the benefit of the Parent or any of the Borrower’s
Subsidiaries). Promptly after issuance by the Issuing Bank of a Letter of Credit, such
Issuing Bank shall furnish a copy of such Letter of Credit to the Borrower. Each Issuing
Bank shall



41









 







promptly give notice to the Administrative Agent of the issuance of each Letter of
Credit issued by such Issuing Bank (including the amount thereof). Upon the Effective Date,
but subject to the limitations contained in the following sentence, each Existing Letter of
Credit shall be automatically converted to a Letter of Credit. No Letter of Credit will be
issued, increased, or extended and no Existing Letter of Credit will be converted to a
Letter of Credit:




     (i) if such issuance, increase, extension or conversion would cause the Letter
of Credit Exposure to exceed the lesser of (x) $5,000,000 or (y) an amount equal to
(A) the aggregate Revolving Commitments less (B) the sum of the aggregate
Revolving Exposure at such time;




     (ii) unless such Letter of Credit has an Expiration Date not later than the
earlier of (A) one year after the date of issuance thereof and (B) fifteen (15) days
prior to the Maturity Date;




     (iii) unless such Letter of Credit is a standby letter of credit not supporting
the repayment of indebtedness for borrowed money of any Person;




     (iv) unless such Letter of Credit is in form and substance acceptable to the
Issuing Bank;




     (v) unless the Borrower has delivered to the Issuing Bank (with a copy to the
Administrative Agent) the completed and executed Letter of Credit Documents (other
than the Letter of Credit) on such Issuing Bank’s standard form, which shall contain
terms no more restrictive than the terms of this Agreement;




     (vi) if a default of any Lender’s obligations to fund under Section 2.13(c)
exists or any Lender is at such time a Defaulting Lender or an Impacted Lender
hereunder, unless the applicable Issuing Bank has entered into arrangements
satisfactory to the Issuing Bank with the Borrower or such Lender to eliminate the
Issuing Bank’s risk with respect to such Lender; and




     (vii) unless no Default has occurred and is continuing or would result from the
issuance of such Letter of Credit.




If the terms of any of the Letter of Credit Documents referred to in the foregoing clause
(v) conflicts with the terms of this Agreement, the terms of this Agreement shall control.




     (b) Participations. On the date of the issuance or increase of any Letter of
Credit on or after the Effective Date or the conversion of any Existing Letter of Credit to
a Letter of Credit in accordance with provisions of the preceding Section 2.13(a), Issuing
Bank shall be deemed to have sold to each other Lender with a Revolving Commitment and each
other Lender with a Revolving Commitment shall have been deemed to have purchased from such
Issuing Bank a participation in the Letter of Credit Exposure related to the Letters of
Credit issued by such Issuing Bank equal to such Lender’s Revolving Share at such date and
such sale and purchase shall otherwise be in accordance with the terms of this Agreement.
Upon receiving notification from the Issuing Bank, the Administrative Agent shall promptly
notify each such participant Lender by telex, telephone, or telecopy of each Letter of
Credit of such Issuing Bank issued, increased or decreased, and the actual dollar amount of
such Lender’s participation in such Letter of Credit. Each Lender’s obligation to purchase
participating interests pursuant to this Section and to reimburse the Issuing Bank for such
Lender’s Revolving Share of any payment under a Letter of Credit by such Issuing Bank not
reimbursed in full by the Borrower shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any of the circumstances
described in paragraph (d) below, (ii) the occurrence and continuance of a Default, (iii) an
adverse change in the financial condition of the Borrower or any Guarantor, or (iv) any
other circumstance, happening or event whatsoever, whether or not similar to any of the
foregoing, except for any such circumstance, happening or event that is determined by a
court of competent jurisdiction by a final and non-appealable judgment to have resulted from
the gross negligence or willful misconduct on the part of such Issuing Bank.



42









 






     (c) Reimbursement. The Borrower shall have the obligation (subject to its
right to draw on the Revolving Commitments as noted below) to pay promptly on demand to
Issuing Bank in respect of each Letter of Credit issued by such Issuing Bank an amount equal
to any amount paid by such Issuing Bank under or in respect of such Letter of Credit. In
the event any Issuing Bank makes a payment pursuant to a request for draw presented under a
Letter of Credit and such payment is not promptly reimbursed by the Borrower upon demand,
such Issuing Bank shall give notice of such payment to the Administrative Agent, and upon
the receipt of such notice, the Administrative Agent shall give notice of such payment to
the Lenders, and each Lender shall promptly reimburse such Issuing Bank through the
Administrative Agent for such Lender’s Revolving Share of such payment, and such
reimbursement shall be deemed for all purposes of this Agreement to constitute an Adjusted
Base Rate Advance to the Borrower from such Lender. If such reimbursement is not made by
any Lender to any Issuing Bank on the same day on which such Issuing Bank shall have made
payment on any such draw, such Lender shall pay interest thereon to such Issuing Bank for
each such day from the date such payment should have been made until the date repaid at a
rate per annum equal to the Federal Funds Rate for each such day. The Borrower hereby
unconditionally and irrevocably authorizes, empowers, and directs the Administrative Agent
and the Lenders to record and otherwise treat each payment under a Letter of Credit not
immediately reimbursed by the Borrower as a Borrowing comprised of Adjusted Base Rate
Advances to the Borrower. Nothing contained herein shall limit the Borrower’s absolute
obligation to reimburse an Issuing Bank for any draw made on any Letter of Credit hereunder.




     (d) Obligations Unconditional. The obligations of the Borrower (including,
without limitation, the reimbursement obligations provided for in clause (c) above) under
this Agreement in respect of each Letter of Credit shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, notwithstanding the following circumstances:




     (i) any lack of validity or enforceability of any Letter of Credit Documents;




     (ii) any amendment or waiver of or any consent to departure from any Letter of
Credit Documents;




     (iii) the existence of any claim, set-off, defense or other right which the
Borrower or any Lender or any other Person may have at any time against any
beneficiary or transferee of such Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or any other
Person or entity, whether in connection with this Agreement, the transactions
contemplated in this Agreement or in any Letter of Credit Documents or any unrelated
transaction;




     (iv) any statement or any other document presented under such 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 to the extent the
Issuing Bank would not be liable therefore pursuant to the following paragraph (e);




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




     (vi) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.




     (e) Liability of 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. No Issuing Bank, nor any other Lender, nor any of their
respective officers or directors shall be liable or responsible for:




     (i) the use which may be made of any Letter of Credit or any acts or omissions
of any beneficiary or transferee in connection therewith;



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     (ii) 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;




     (iii) payment by such Issuing Bank against presentation of documents which 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 relevant Letter of Credit; or




     (iv) any other circumstances whatsoever in making or failing to make payment
under any Letter of Credit (including such Issuing Bank’s own negligence),




except that the Borrower shall have a claim against such Issuing Bank, and
such Issuing Bank shall be liable to, and shall promptly pay to, the Borrower, to
the extent of any direct, as opposed to consequential, damages suffered by the
Borrower that are determined by a court of competent jurisdiction by a final and
non-appealable judgment to have resulted from (A) such Issuing Bank’s willful
misconduct or gross negligence in determining whether documents presented under a
Letter of Credit comply with the terms of such Letter of Credit or (B) such Issuing
Bank’s gross negligence in failing to make lawful payment under any Letter of Credit
after the presentation to it of a draft and certificate strictly complying with the
terms and conditions of such Letter of Credit. In furtherance and not in limitation
of the foregoing, any Issuing Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation.



     Section 2.14 Intentionally Omitted.



     Section 2.15 Lender Replacement.




     (a) Right to Replace. The Borrower shall, at the Borrower’s own expense, have
the right to replace each Lender affected by a condition under Section 2.02(c)(vi), 2.09,
2.11, or 2.12 for more than 60 days (each such affected Lender, an “Affected
Lender”) in accordance with the procedures in this Section 2.15 and provided
that no reduction of the total Commitments occurs as a result thereof.




     (b) Replacement Allocation.




     (i) Upon the occurrence of any condition permitting the replacement of a
Lender, the Administrative Agent in its sole discretion shall have the right to
reallocate the amount of the Commitments of the Affected Lenders, including without
limitation to Persons which are not already party to this Agreement but which
qualify as Eligible Assignees, which election shall be made by written notice within
thirty (30) days after the date such condition occurs.




     (ii) If the aggregate amount of the reallocated Commitments is less than the
Commitments of the Affected Lenders, (A) the respective Commitments of the Lenders
which have received such reallocated Commitments shall be increased by the
respective amounts of their proposed reallocations, and (B) the Borrower shall have
the right to add additional Lenders which are Eligible Assignees to this Agreement
to replace such Affected Lenders, which additional Lenders would have aggregate
Commitments no greater than those of the Affected Lenders minus the amounts
of the Commitments already reallocated.




     (iii) Notwithstanding any provision in this Section 2.15 to the contrary, no
Lender may have such Lender’s Commitment increased pursuant to the provisions of
this Section 2.15 without such Lender’s written consent.




     (c) Procedure. Any assumptions of Commitments pursuant to this Section 2.15
shall be (i) made by the purchasing Lender or Eligible Assignee and the selling Lender
entering into an Assignment and Assumption and by following the procedures in Section 10.06
for adding a Lender; provided that no processing fee shall be charged by the
Administrative Agent in connection with such assignment. In



44









 







connection with the reallocation of the Commitments of any Lender pursuant to the
foregoing paragraph (b), each Lender with a reallocated Commitment shall purchase from the
Affected Lenders at par such Lender’s Revolving Share or Term Share, as applicable, of the
outstanding Advances of the Affected Lenders and assume such Lender’s Revolving Share of the
Affected Lenders’ Letter of Credit Exposure. The Borrower shall pay each such Affected
Lender any fees, compensatory or other amounts due to it in connection with the foregoing.



     Section 2.16 Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) on
account of the Advances made by it in excess of its Revolving Share, Term Share or PIK Share, as
applicable, of payments or collateral on account of the Advances or Letter of Credit Obligations
obtained by all the Lenders, such Lender shall notify the Administrative Agent and forthwith
purchase from the other Lenders such participations in the Advances, as applicable, made by them or
Letter of Credit Obligations held by them as shall be necessary to cause such purchasing Lender to
share the excess payment or benefits of such collateral or proceeds ratably in accordance with the
requirements of this Agreement with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such Lender’s ratable share (according to the proportion of (a)
the amount of the participation sold by such Lender to the purchasing Lender as a result of such
excess payment to (b) the total amount of such excess payment) of such recovery, together with an
amount equal to such Lender’s ratable share (according to the proportion of (a) the amount of such
Lender’s required repayment to the purchasing Lender to (b) the total amount of all such required
repayments to the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.16 may, to the fullest
extent permitted by Legal Requirement, unless and until rescinded as provided above, exercise all
its rights of payment (including the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such participation.



ARTICLE III




CONDITIONS OF LENDING




     Section 3.01 Conditions Precedent to the Initial Advance. The obligation of each
Lender to make an initial Advance hereunder and of the Issuing Bank to issue any Letter of Credit
are subject to the following conditions precedent being satisfied:




     (a) Documentation. The Administrative Agent shall have received the following:




     (i) counterparts of this Agreement executed by the Borrower and the Lenders in
sufficient copies for each Lender;




     (ii) counterparts of any and all amendments, restatements or modifications of
the Guaranties and the Environmental Indemnities reasonably required by the
Administrative Agent and Lenders to update the same in a manner that reflects the
execution, delivery and effectiveness of this Agreement and the applicability of
such documents to the obligations, duties and responsibilities of the Borrower
contained herein;




     (iii) counterparts of any and all amendments, restatements or modifications of
the Security Documents to the extent applicable executed by the Borrower, the Parent
and the other Guarantors to update the same in a manner that reflects the execution,
delivery and effectiveness of this Agreement and the applicability of such documents
to the obligations, duties and responsibilities of the Borrower contained herein and
otherwise assuring that such documents continue to grant to the Administrative Agent
for the benefit of the Lenders an Acceptable Lien in the Collateral, together with
stock certificates, stock powers executed in blank, UCC-1 financing statements and
any other documents, agreements or instruments reasonably necessary or desirable to
create an Acceptable Lien in the Collateral;



45









 






     (iv) a certificate from a Responsible Officer of the Parent on behalf of the
Borrower dated as of the Effective Date stating that as of the Effective Date (A)
all representations and warranties of the Borrower set forth in this Agreement and
the Credit Documents are true and correct in all material respects; (B) no Default
has occurred and is continuing; (C) the conditions in this Section 3.01 have been
met or waived in writing; and (D) to the best of the Borrower’s knowledge there are
no claims, defenses, counterclaims or offsets against the Lenders under the Credit
Documents;




     (v) a certificate of the Secretary or an Assistant Secretary of the Parent on
behalf of the Borrower and each corporation and limited liability company that is
either a Guarantor or a general partner or manager of a Guarantor dated as of the
date of this Agreement (A) certifying as of the Effective Date the names and true
signatures of officers or authorized representatives of the Parent and such other
Persons authorized to sign the Credit Documents to which such Person is a party in
the capacity therein indicated, (B) attaching and certifying as of the Effective
Date resolutions of the Board of Directors or the members of the Parent and such
other Persons with respect to the transactions herein contemplated, (C) attaching
and certifying as of the Effective Date the copies of the organizational documents
of the Parent, the Borrower and each of the Guarantors, and (D) attaching and
certifying as of the Effective Date a true and correct copy of all partnership,
corporate or limited liability company authorizations necessary or desirable in
connection with the transactions herein contemplated;




     (vi) (A) one or more favorable written opinions of DeCampo, Diamond & Ash,
special counsel for the Borrower, the Parent, and their Subsidiaries, in a form
reasonably acceptable to the Administrative Agent, in each case dated as of the
Effective Date and with such changes as the Administrative Agent may approve, and
(B) such other legal opinions as either of the Administrative Agent shall reasonably
request, in each case dated as of the Effective Date and with such changes as the
Administrative Agent may approve;




     (vii) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each of the Parent, Borrower and each Guarantor
is duly organized or formed;




     (viii) a pro forma Compliance Certificate dated as of the Effective Date, duly
completed and executed by the Chief Financial Officer or Treasurer of the Parent;
and




     (ix) such other documents, governmental certificates, agreements, lien searches
as the Administrative Agent may reasonably request.




     (b) Representations and Warranties. The representations and warranties
contained in Article IV hereof, the Security Agreement, the Guaranties and the Environmental
Indemnities shall be true and correct in all material respects.




     (c) Certain Payments. The Borrower shall have paid or repaid, as applicable
the fees required to be paid as of the execution of this Credit Agreement pursuant to the
Fee Letter.




     (d) Security Documents. The Administrative Agent shall have received all
appropriate evidence required by the Administrative Agent in its reasonable discretion
necessary to determine that the Administrative Agent (on behalf of itself and the Lenders)
has an Acceptable Lien in the Collateral, including, without limitation, lien searches
conducted on the Borrower and the Guarantors and lien releases with respect to any
Collateral currently subject to a Lien other than Permitted Encumbrances.




     (e) Lien Searches. The Administrative Agent shall have received the results of
recent lien searches with respect to the Borrower and the Guarantors and such searches shall
not reveal any liens other than liens permitted by the Credit Documents or liens to be
discharged substantially concurrently with the closing of the Advances pursuant to
documentation satisfactory to the Administrative Agent.



46









 






     (f) Solvency Certificate. The Lenders shall have received a customary solvency
certificate from the Parent’s chief financial officer as to the solvency of the Parent and
its Subsidiaries after giving effect to the transactions contemplated hereby.




     (g) Due Diligence. The Administrative Agent shall have completed and shall be
satisfied with the results of its due diligence investigation of the Borrower and the
Guarantors.




     (h) Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid on or before the Effective Date (including, without limitation, the
upfront fees referenced in that certain upfront fee letter agreement among Administrative
Agent, Arranger and Borrower and dated as of the date hereof and the other fees referenced
in that certain agency fee letter agreement among Administrative Agent, Arranger and
Borrower and dated as of the date hereof), and the Administrative Agent shall have received
reimbursement of all out-of-pocket expenses of the Administrative Agent payable by the
Borrower in connection with the Advances.




     (i) Resignation of Existing Administrative Agent and Related Documentation.
The Administrative Agent shall have received (A) evidence, including any documentation
related thereto, satisfactory to the Administrative Agent that Lehman Commercial Paper, as
administrative agent under the Existing Credit Facility, shall have resigned as such, and is
succeeded by Bank of America, N.A., as Administrative Agent hereunder and (B) any records
and documents in connection with the Existing Credit Agreement that the Administrative Agent
determines in its reasonable discretion are necessary in order for it to perform its duties
hereunder, including but not limited to any records related to interest accrual with respect
to the Existing Credit Agreement.




     (j) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of the Parent for the two most recent fiscal years ended
prior to the Effective Date as to which such financial statements are available, in each
case satisfactory to the Lenders and (ii) unaudited interim consolidated financial
statements of the Parent for each quarterly period ended subsequent to the date of the
latest financial statements delivered pursuant to clause (i) of this paragraph and more than
45 days prior to the Effective Date, in each case satisfactory to the Lenders.




     (k) Balance Sheet. The Lenders shall have received a pro forma
consolidated balance sheet of the Parent satisfactory to the Lenders as at the date of the
most recent consolidated balance sheet delivered pursuant to paragraph (j) above, adjusted
to give effect to the consummation of the transaction and the financings contemplated hereby
as if such transactions had occurred on such date.




     (l) Budget. The Administrative Agent and Lenders shall have received and
approved a detailed budget (the “Effective Date Budget”) of projected cash
expenditures of the Parent, Borrower and their Subsidiaries for calendar year 2009, together
with a reconciliation of the amount of such cash expenditures incurred and/or paid during
calendar year 2009 through May 31, 2009.




     (m) Patriot Act. The Administrative Agent and each Lender shall have received
all documentation and other information required by bank regulatory authorities under
applicable “know your customer” and Anti-Money Laundering rules and regulations, including
without limitation, the Act.



     Without limiting the generality of the provisions of Section 9.04, for purposes of determining
compliance with the conditions specified in this Section 3.01, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received notice from that
Lender prior to the proposed Effective Date specifying its objection thereto.



     Section 3.02 Conditions Precedent for Each Borrowing or Letter of Credit. The
obligation of each Lender to fund an Advance on the occasion of each Borrowing (other than the
Conversion or continuation of any existing Borrowing and other than in respect of PIK Accrual
Advances) and of any Issuing Bank to issue or increase



47









 







or extend any Letter of Credit shall be subject to the further conditions precedent that on
the date of such Borrowing or the issuance, increase or extension of such Letter of Credit:




     (a) the following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing or
the issuance or increase or extension of such Letter of Credit shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing or the
issuance or increase or extension of such Letter of Credit such statements are true):




     (i) the representations and warranties contained in Article IV hereof, the
Security Agreement, the Guaranties, the Environmental Indemnities and the other
Credit Documents, as such representations and warranties may change based upon
events or activities permitted by this Agreement, are correct in all material
respects (to the extent not otherwise qualified by materiality) on and as of the
date of such Borrowing or the issuance or increase or extension of such Letter of
Credit, before and after giving effect to such Borrowing or to the issuance or
increase or extension of such Letter of Credit and to the application of the
proceeds from such Borrowing, as though made on and as of such date; and




     (ii) no Default has occurred and is continuing or would result from such
Borrowing or from the application of the proceeds therefrom, as evidenced by the
Notice of Borrowing; and




     (b) the Administrative Agent shall have received such other approvals, opinions or
documents deemed necessary or desirable by any Lender or the Administrative Agent as such
party may reasonably request.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants as follows:



     Section 4.01 Existence; Qualification; Partners; Subsidiaries.




     (a) The Borrower is a limited partnership duly organized, validly existing, and in good
standing under the laws of Delaware and in good standing and qualified to do business in
each jurisdiction where its ownership or lease of property or conduct of its business
requires such qualification, except where the failure to so qualify would not cause a
Material Adverse Change to the Borrower.




     (b) The Parent is a corporation duly organized, validly existing, and in good standing
under the laws of Delaware and in good standing and qualified to do business in each
jurisdiction where its ownership or lease of property or conduct of its business requires
such qualification, except where the failure to so qualify would not cause a Material
Adverse Change to the Parent.




     (c) The entire authorized capital stock of the Parent consists of (i) 250,000,000
shares of Parent common stock of which approximately 32,138,041 shares of Parent common
stock are duly and validly issued and outstanding, fully paid and nonassessable as of March
31, 2009 and (ii) 5,000,000 shares of Parent preferred stock of which no shares are issued
or outstanding.




     (d) Each Subsidiary of the Borrower or the Parent is a limited partnership, general
partnership, corporation or limited liability company duly organized, validly existing, and
in good standing under the laws of its jurisdiction of formation and in good standing and
qualified to do business in each jurisdiction where conduct of its business requires such
qualification, except where the failure to so qualify would not cause a Material Adverse
Change to such Subsidiary. Except for the Beverage Entities, Schedule 4.01 lists the
jurisdiction of formation, and the address of the principal office of each Subsidiary of the
Borrower or the Parent existing on the date of this Agreement. As of the date of this
Agreement, the



48









 







Parent or the Borrower owns, directly or indirectly, at least the percentage interests
in each such Subsidiary listed on the attached Schedule 4.01.



     Section 4.02 Partnership and Corporate Power. The execution, delivery, and
performance by the Borrower and each Guarantor of the Credit Documents to which it is a party and
the consummation of the transactions contemplated hereby and thereby (a) are within such Persons’
partnership, limited liability company and corporate powers, as applicable, (b) have been duly
authorized by all necessary corporate, limited liability company and partnership action, as
applicable, (c) do not contravene (i) such Person’s certificate or articles, as the case may be,
of incorporation or by-laws, operating agreement or partnership agreement, as applicable, or (ii)
any law or any contractual restriction binding on or affecting any such Person, the contravention
of which could reasonably be expected to cause a Material Adverse Change, and (d) will not result
in or require the creation or imposition of any Lien prohibited by this Agreement. At the time of
each Borrowing, such Borrowing and the use of the proceeds of such Borrowing (as applicable) will
be within the Borrower’s partnership powers, will have been duly authorized by all necessary
partnership action, (a) will not contravene (i) the Borrower’s partnership agreement or (ii) any
law or any contractual restriction binding on or affecting the Borrower, the contravention of which
could reasonably be expected to cause a Material Adverse Change, and (b) will not result in or
require the creation or imposition of any Lien prohibited by this Agreement.



     Section 4.03 Authorization and Approvals. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority (other than the filing of
the Security Documents in the applicable jurisdictions as required to perfect security interests)
is required for the due execution, delivery and performance by the Borrower or any Guarantor of the
Credit Documents to which it is a party or the consummation of the transactions contemplated
thereby, the absence of which could reasonably be expected to cause a Material Adverse Change. At
the time of each Borrowing, no authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority will be required for such Borrowing or the use of the
proceeds of such Borrowing the absence of which could reasonably be expected to cause a Material
Adverse Change.



     Section 4.04 Enforceable Obligations. This Agreement, the Notes, and the other Credit
Documents to which the Borrower is a party have been duly executed and delivered by the Borrower;
each Guaranty and the other Credit Documents to which each Guarantor and the Parent is a party have
been duly executed and delivered by such Guarantor; and the Environmental Indemnity and Security
Agreement have been duly executed and delivered by the respective parties thereto. Each Credit
Document is the legal, valid, and binding obligation of the Borrower, the Parent, and each
Guarantor which is a party to it enforceable against the Borrower, the Parent, and each such
Guarantor in accordance with its terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’
rights generally and by general principles of equity (whether considered in proceeding at law or in
equity).



     Section 4.05 Financial Statements. The respective Consolidated balance sheets,
statements of operations, shareholders’ equity and cash flows of the Parent and its Subsidiaries
contained in the Financial Statements, and the corresponding pro forma financial statements for the
Parent and its Subsidiaries, fairly present the financial condition in all material respects and
reflects the Indebtedness of such Person and such Person’s Subsidiaries on a Consolidated basis as
of the dates indicated in the Financial Statements and the respective results of the operations for
the periods indicated, and such balance sheets and statements were prepared in accordance with
GAAP, subject to year-end adjustments. Since December 31, 2008, no Material Adverse Change has
occurred; provided, however, that the material disruption in the market conditions
as of the Effective Date (both with respect to the hotel industry and the credit capital markets)
as related to the Borrower shall not constitute a Material Adverse Change.



     Section 4.06 True and Complete Disclosure. No representation, warranty, or other
statement made by any Loan Party (or on behalf of any Loan Party) in this Agreement or any other
Credit Document contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements contained therein not misleading in light of the
circumstances in which they were made as of the date of this Agreement. There is no fact known to
any Responsible Officer of the Borrower or the Parent on the date of this Agreement that has not
been disclosed to the Administrative Agent which could reasonably be expected to cause a Material
Adverse Change. All projections, estimates, and pro forma financial information furnished by the
Borrower and/or the Parent or on behalf of the Borrower were prepared on the basis of assumptions,
data, information, tests, or conditions



49









 







believed to be reasonable at the time such projections, estimates, and pro forma financial
information were furnished. No representation, warranty or other statement made in the Parent’s
latest 10K, 10Q or annual report contains any untrue statement of material fact or omits to state
any material fact necessary to make the statements contained therein not misleading in light of the
circumstances in which they were made as of the date same were made. Borrower and/or Parent has
made all filings required by the Exchange Act.



     Section 4.07 Litigation. Except as set forth in the attached Schedule 4.07, there is
no pending or, to the best knowledge of the Borrower, threatened investigation, action or
proceeding affecting the Borrower or the Parent or any of their respective Subsidiaries by or
before any court, Governmental Authority or arbitrator either (a) in which in Borrower’s good faith
judgment the anticipated loss (exclusive of amounts covered by insurance) is over $500,000
(provided that with respect to the giving of this representation after the date of this
Agreement, the representation shall only be deemed to apply to those matters for which
Administrative Agent would have been entitled to notice under Section 5.05(j)) or (b) which in
Borrower’s good faith judgment would result in criminal penalties against the Parent, the Borrower
or their respective Subsidiaries which could reasonably be expected to cause a Material Adverse
Change.



     Section 4.08 Use of Proceeds and Letters of Credit.




     (a) Advances. The proceeds of the Advances shall be used by the Borrower for
(i) working capital and general corporate purposes, (ii) the making of Permitted New
Investments pursuant to the provisions of Section 6.06 and (iii) any refinance and, if
applicable, repayment of the Existing Credit Facility; provided, however that at no time
shall the proceeds of the Advances be used to repay or prepay any Indebtedness other than
the Obligations.




     (b) Regulations. No proceeds of Advances will be used to purchase or carry any
Margin Stock or be used in violation of Regulations T, U or X of the Federal Reserve Board,
as the same is from time to time in effect, and all official rulings and interpretations
thereunder or thereof. The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying Margin Stock.




     (c) Letters of Credit. The Letters of Credit shall be used by the Borrower in
connection with (i) the making of Permitted New Investments pursuant to the provisions of
Section 6.06 and (ii) the Borrower’s Hospitality Management Business and ancillary
activities.



     Section 4.09 Investment Company Act. Neither the Borrower, the Parent nor any of
their respective Subsidiaries is an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.



     Section 4.10 Taxes. All federal, state, local and foreign tax returns, reports and
statements required to be filed (after giving effect to any extension granted in the time for
filing) by the Parent, the Borrower, their respective Subsidiaries, or any member of a Controlled
Group have been filed with the appropriate governmental agencies in all jurisdictions in which such
returns, reports and statements are required to be filed, and where the failure to file could
reasonably be expected to cause a Material Adverse Change, except where contested in good faith and
by appropriate proceedings; and all taxes and other impositions due and payable (which are material
in amount) have been timely paid prior to the date on which any fine, penalty, interest, late
charge or loss (which are material in amount) may be added thereto for nonpayment thereof except
where contested in good faith and by appropriate proceedings with respect to which adequate
reserves in conformity with GAAP have been provided. As of the date of this Agreement, neither the
Parent, the Borrower, any of their respective Subsidiaries nor any member of a Controlled Group has
given, or been requested to give, a waiver of the statute of limitations relating to the payment of
any federal, state, local or foreign taxes or other impositions. None of the Property owned by the
Parent, the Borrower, any of their respective Subsidiaries or any other member of a Controlled
Group is Property which the Parent, the Borrower, any of their respective Subsidiaries or any
member of a Controlled Group is required to be treated as being owned by any other Person pursuant
to the provisions of Section 168(f)(8) of the Code. Proper and accurate amounts have been withheld
by the Parent, the Borrower, their respective Subsidiaries and all members of each Controlled Group
from their employees for all periods to comply in all material respects with the tax, social
security and unemployment withholding provisions of applicable federal, state, local and foreign
law. Timely payment of all material sales and use taxes required by applicable law have been made
by the Parent, the Borrower,



50









 







their respective Subsidiaries and all other members of each Controlled Group, the failure to
timely pay of which could reasonably be expected to cause a Material Adverse Change. The amounts
shown on all tax returns to be due and payable have been paid in full or adequate provision
therefore is included on the books of the appropriate members of the applicable Controlled Group.
None of the Parent, Borrower, their respective Subsidiaries and all members of the each Controlled
Group has entered into, or otherwise participated (directly or indirectly) in, any “reportable
transaction” within the meaning of Treasury Regulation section 1.6011-4(b) or has received a
written tax opinion from a tax advisor that was intended to provide protection against a tax
penalty.



     Section 4.11 Pension Plans. Each Title IV Plan is listed on Schedule 4.11. All Plans
are in compliance in all material respects with its terms all applicable provisions of ERISA, the
Code and all applicable Laws. No Termination Event has occurred, or is reasonably expected to
occur. No “accumulated funding deficiency” (as defined in Section 302 of ERISA) has occurred with
respect to a Title IV Plan and there has been no excise tax imposed under Section 4971 of the Code
with respect to a Title IV Plan. No Reportable Event has occurred, or is reasonably expected to
occur, with respect to a Title IV Plan, and to the Borrower’s actual knowledge no Multiemployer
Plan has failed to comply with or to be administered in all material respects with applicable
provisions of ERISA and the Code. Neither the Borrower, the Parent nor any member of a Controlled
Group has had a complete or partial withdrawal from any Multiemployer Plan for which there is any
material withdrawal liability. As of the most recent valuation date applicable thereto, neither
the Borrower nor any member of a Controlled Group has received notice that any Multiemployer Plan
is insolvent or in reorganization. Neither the Borrower, any Guarantor nor any member of the
Controlled Group would have any liability in excess of $10,000,000 as a result of a complete
withdrawal from any Multiemployer Plan on the date this representation is made. The present value
of the “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA) of each Title IV
Plan (using the actuarial assumptions and methods used by the actuary to that Title IV Plan in its
most recent valuation of that Title IV Plan) does not exceed the fair market value of the assets of
each such Title IV Plan that could reasonably be expected to result in liability to the Borrower or
any of its Subsidiaries in excess of $10,000,000.



     Section 4.12 Insurance. The Borrower and each of its Subsidiaries carry the insurance
required pursuant to the provisions of Section 5.07.



     Section 4.13 No Burdensome Restrictions; No Defaults.




     (a) Except in connection with Indebtedness which is (i) either permitted pursuant to
the provisions of Section 6.02, or (ii) being repaid with the proceeds of the initial
Borrowing, neither the Borrower nor any of its Subsidiaries is a party to any indenture,
loan or credit agreement. Neither the Borrower, the Parent nor any of their respective
Subsidiaries is a party to any agreement or instrument or subject to any charter or
corporate restriction or provision of applicable law or governmental regulation which could
reasonably be expected to cause a Material Adverse Change. Neither the Borrower, nor the
Parent, nor their respective Subsidiaries has entered into or suffered to exist any
agreement (other than this Agreement and the Credit Documents and as set forth in the
Permitted Property Agreements) (i) prohibiting the creation or assumption of any Lien upon
the Properties of the Parent, the Borrower or any of their respective Subsidiaries (except
for Properties of and Ownership Interests in the Permitted Other Subsidiaries), whether now
owned or hereafter acquired, or (ii) requiring an obligation to be secured if some other
obligation is or becomes secured.




     (b) Neither the Borrower, the Parent nor any of their Subsidiaries is in default under
or with respect to any contract or agreement which could reasonably be expected to cause a
Material Adverse Change. Neither the Borrower, the Parent nor any of their Subsidiaries has
received any notice of default under any material contract or agreement which is continuing
and which, if not cured, could reasonably be expected to cause a Material Adverse Change.




     (c) No Default has occurred and is continuing (or with respect to the giving of this
representation after the date of this Agreement, as otherwise disclosed to the
Administrative Agent in writing after the date of this Agreement and prior to the date such
representation is deemed given).



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     Section 4.14 Environmental Condition.




     (a) Except as disclosed in Schedule 4.14 (or with respect to the giving of this
representation after the date of this Agreement, as otherwise disclosed to the
Administrative Agent in writing after the date of this Agreement and prior to the date such
representation is deemed given), to the knowledge of the Borrower, the Borrower, the Parent
and their respective Subsidiaries (i) have obtained all Environmental Permits material for
the operation of their respective Properties and the conduct of their respective businesses;
(ii) have been and are in material compliance with all terms and conditions of such
Environmental Permits and with all other requirements of applicable Environmental Laws;
(iii) have not received notice of any violation or alleged violation of any Environmental
Law or Environmental Permit; and (iv) are not subject to any actual or contingent
Environmental Claim.




     (b) Except as disclosed in Schedule 4.14, and to the knowledge of Borrower with respect
to any Property other than an Owned Hospitality Property, no Property which is presently
owned or leased or was previously owned or leased by the Borrower, the Parent or of any of
their respective present or former Subsidiaries, wherever located, (i) has been placed on or
proposed to be placed on the National Priorities List, the Comprehensive Environmental
Response Compensation Liability Information System list, or their state or local analogs, or
have been otherwise investigated, designated, listed, or identified as a Fund or other
potential site for removal, remediation, cleanup, closure, restoration, reclamation, or
other response activity under any Environmental Laws which could reasonably be expected to
cause a Material Adverse Change; (ii) is subject to a Lien, arising under or in connection
with any Environmental Laws, that attaches to any revenues or to any Property operated by
the Borrower, the Parent or any of their respective Subsidiaries, wherever located; (iii)
has been the site of any Release, use or storage of Hazardous Substances or Hazardous Wastes
from present or past operations except for Permitted Hazardous Substances, which Permitted
Hazardous Substances have not caused at the site or at any third-party site any condition
that has resulted in or could reasonably be expected to result in the need for Response or
(iv) none of the Improvements are constructed on land designated by any Governmental
Authority having land use jurisdiction as wetlands.




     (c) Except as disclosed on Schedule 4.14, there are no Hazardous Materials located on
any property owned or, to the knowledge of the Borrower, operated by the Borrower or Parent
other than Permitted Hazardous Materials or Hazardous Materials, the presence of which would
not reasonably be expected to result in the Borrower or Parent incurring material
liabilities under Environmental Laws.



     Section 4.15 Legal Requirements, Zoning. Except as set forth on Schedule 4.15
attached hereto, the current use and operation of each Property which is presently owned or
operated by the Borrower, the Parent or of any of their respective Subsidiaries, wherever located,
(a) constitutes a legal use under applicable zoning regulations (as the same may be modified by
special use permits or the granting of variances) and (b) complies in all material respects with
all Legal Requirements, and does not violate in any material respect any material approvals,
material restrictions of record or any material agreement affecting any such Property (or any
portion thereof) except for non-legal use or non-compliance which in the aggregate would not cause
a Material Adverse Change. The Borrower, the Parent and their respective Subsidiaries possess all
certificates of public convenience, authorizations, permits, licenses, patents, patent rights or
licenses, trademarks, trademark rights, trade names rights and copyrights (collectively
“Permits”) required by Governmental Authority to own or operate Properties, as applicable,
the Properties they own or operate, except for those Permits that if not obtained would not cause a
Material Adverse Change. The Borrower, the Parent and their respective Subsidiaries own and
operate their business in material compliance with all applicable Legal Requirements except for
non-compliance which in the aggregate would not cause a Material Adverse Change.



     Section 4.16 Existing Indebtedness and Interest Rate Agreements; Solvency.




     (a) Except for the Obligations, the only Indebtedness (including Existing Letters of
Credit) or Interest Rate Agreements of the Borrower or any of its Subsidiaries existing as
of the Effective Date are set forth on Schedule 4.16(a) attached hereto. No “default” or
“event of default”, however defined, has occurred and is continuing under any such
Indebtedness or Interest Rate Agreement (or with respect to the



52









 







giving of this representation after the date of this Agreement, as otherwise disclosed
to the Administrative Agent in writing after the date of this Agreement and prior to the
date such representation is deemed given).




     (b) The only Existing Letters of Credit as of the Effective Date are set forth on
Schedule 4.16(b) attached hereto.




     (c) To the best of the Borrower’s knowledge, (i) the fair value and present fair
saleable value on a going concern basis of the Property of the Parent, the Borrower and
their respective Subsidiaries, on a Consolidated basis, exceeds the amount that will be
required to pay the probable liabilities of such Persons, on a Consolidated basis, on their
Indebtedness, as such Indebtedness becomes absolute and matured, (ii) the Parent, the
Borrower and their respective Subsidiaries, on a Consolidated basis, will have sufficient
cash flow to enable them to pay their debts as they mature, and (iii) the Parent, the
Borrower and their respective Subsidiaries, on a Consolidated basis, are able to pay their
Indebtedness as it matures in the normal course of business.



     Section 4.17 Leasing Arrangements. The only material leases for which either the
Borrower or a Guarantor is a lessee are office leases.



     Section 4.18 Management Agreements. The only management agreements for which either
the Borrower or a Guarantor is a manager are the Existing Management Agreements. The Existing
Management Agreements are in full force and effect; no monetary defaults by the Borrower or any
Guarantor, or to the actual knowledge of the Borrower by any other party thereto, exist thereunder;
and no other defaults by the Borrower or any Guarantor, or to the actual knowledge of the Borrower
by any other party thereto, exist thereunder which could reasonably be expected to cause a Material
Adverse Change (or with respect to the giving of this representation after the date of this
Agreement, as otherwise disclosed to the Administrative Agent in writing after the date of this
Agreement and prior to the date such representation is deemed given). No notice of termination for
any such Existing Management Agreement has been received by the Borrower or any Guarantor other
than as disclosed to the Administrative Agent.



     Section 4.19 [Intentionally Omitted].



     Section 4.20 Franchise Agreements. The only franchise agreements or license
agreements to which the Borrower or a Guarantor are a party are those certain agreements disclosed
to the Administrative Agent in writing. Any such franchise and license agreements are in full
force and effect and no material defaults by the Borrower or any Subsidiary exist thereunder which
could reasonably be expected to cause a Material Adverse Change (or with respect to the giving of
this representation after the date of this Agreement, as otherwise disclosed to the Administrative
Agent in writing after the date of this Agreement and prior to the date such representation is
deemed given).



     Section 4.21 Title; Liens. The Owned Hospitality Properties are set forth on Schedule
4.21 attached hereto. None of the Owned Hospitality Properties have been or are subject to a
condemnation proceeding or a casualty which individually or in the aggregate could cause a Material
Adverse Change. With respect to the Owned Hospitality Properties set forth on Schedule 4.21, the
Borrower, the Parent or its Subsidiaries, as applicable, has good and marketable fee simple title
to such Owned Hospitality Property, free and clear of all Liens other than the Permitted
Encumbrances. None of the Permitted Encumbrances has a Material Adverse Change or otherwise
materially interferes with the current or intended use or operation of any Owned Hospitality
Property or materially impairs the value of any Owned Hospitality Property.



     Section 4.22 Approved Inter-Company Indebtedness. The only inter-company Indebtedness
between the Parent, the Borrower and any of their respective Subsidiaries is the Approved
Inter-Company Indebtedness. The Approved Inter-Company Indebtedness Loan Documents listed on
Schedule 1.01(a) are all of the documents evidencing or securing the Approved Inter-Company
Indebtedness or executed by the applicable parties in connection with the Approved Inter-Company
Indebtedness. The Borrower has provided the Administrative Agent with a true, correct and complete
copy of the Approved Inter-Company Indebtedness Loan Documents and such documents have not been
amended or modified except as set forth in Schedule 1.01(a). The outstanding amount of the
Approved Inter-Company Indebtedness as of the date hereof is set forth on Schedule 1.01(a).



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     Section 4.23 Insurance Business.




     (a) Insurance Companies, Insurance Licenses and Deposited Securities. Each
Insurance Company is listed in Schedule 4.23(a). Schedule 4.23(a) hereto lists all of the
jurisdictions in which each Insurance Company holds an Insurance License and is authorized
to transact insurance business as of the Effective Date and the line or lines of insurance
in which each Insurance Company is engaged. No Insurance License held by any Insurance
Company, the loss of which could reasonably be expected to cause a Material Adverse Change,
is the subject of a proceeding for suspension or revocation. To the knowledge of the
Borrower, the Parent or any of their respective Subsidiaries, there is not a sustainable
basis for such suspension or revocation, and no such suspension or revocation has been
threatened by any Governmental Authority. Each of the Insurance Companies has filed all
reports, statements, documents, registrations, filings or submissions required to be filed
by it with any applicable Governmental Authority, which filings conform in all material
respects to any applicable Legal Requirements, except where the failure to so file or
conform could not, individually or in the aggregate, be reasonably expected to cause a
Material Adverse Change. Schedule 4.23(a) sets forth a true, correct and complete listing
of all securities deposited with state insurance departments and other Governmental
Authority, which deposits have been completed in accordance with the schedule of deposits
set forth in each Insurance Company’s December 31, 2008 Insurance Annual Statement.




     (b) SAP Financial Statements, Examination Reports and Loss Runs. The Borrower
has previously delivered to the Administrative Agent for distribution to each of the Lenders
true and complete copies of the SAP Financial Statements as filed with the domiciliary state
insurance departments of each Insurance Company as of and for the years ended December 31,
2006, 2007 and 2008, prepared in compliance with GAAP. Each of the SAP Financial Statements
fairly presents in all material respects the results of operations of the applicable
Insurance Company for the period therein set forth, in each case in accordance with SAP.
The schedules included in the SAP Financial Statements, when considered in relation to the
basic statutory financial statements included therein, present fairly in all material
respects the information shown therein. Each of the SAP Financial Statements was correct in
all material respects when filed and did not omit to state any material facts required to be
stated or necessary in order to make the SAP Financial Statements not misleading. The
Borrower has previously delivered to the Administrative Agent for distribution to each of
the Lenders true and complete copies of all examination reports of insurance departments and
any insurance regulatory agencies since December 31, 2008 relating to the Insurance
Companies. The loss runs for the years ended December 31, 2006, 2007 and 2008, which the
Borrower has previously delivered to the Administrative Agent for distribution to each of
the Lenders in writing, are true, correct and complete in all material respects.




     (c) Investment Portfolios. The Borrower has previously delivered to the
Administrative Agent for distribution to each of the Lenders true and complete lists as of
December 31, 2008 of all assets held in the investment portfolios of the Insurance
Companies. None of the investments included in such investment portfolios is in default
with respect to the payment of principal, interest or dividends thereon or is materially
impaired. All such investments comply with all applicable Legal Requirements except for
non-compliance which in the aggregate would not cause a Material Adverse Change. Each
Insurance Company owns assets which qualify as admitted assets under applicable state
insurance Legal Requirements in an amount at least equal to the sum of all of its Insurance
Reserve Liabilities and minimum statutory capital and Insurance Surplus reflected on the
latest SAP Financial Statements.




     (d) Insurance Reserve Liabilities and Adequate Provisions. All Insurance
Reserve Liabilities as established or reflected in the SAP Financial Statements (i) were
determined in accordance with generally accepted actuarial standards consistently applied,
(ii) are fairly stated in accordance with sound actuarial principles, (iii) are based on
actuarial assumptions that are in accordance with those called for by the relevant Insurance
Contract and the related Reinsurance Contract and (iv) meet in all material respects the
requirements of all applicable insurance Legal Requirements. Adequate provision for such
Insurance Reserve Liabilities has been made (under generally accepted actuarial principles
consistently applied) to cover the total amount of all reasonably anticipated matured and
unmatured benefits, dividends, claims and other liabilities of the Insurance Companies under
all Insurance Contracts and Reinsurance Contracts on the



54









 







date of such SAP Financial Statement based on then current information that forms a
reasonable basis for such determination. Each of the Insurance Companies owns assets that
qualify as legal reserve assets under applicable insurance Legal Requirements in an amount
at least equal to all of such Insurance Company’s Insurance Reserve Liabilities. Adequate
provision has been made for all estimated losses, settlements, costs and expenses from
pending suits, actions and proceedings contemplated by the SAP Financial Statements.




     (e) Insurance Contracts and Reinsurance Contracts. Each outstanding Insurance
Contract issued, reinsured or underwritten by an Insurance Company is listed in Schedule
4.23(e), together with the maximum amount payable by an Insurance Company thereunder. All
outstanding Reinsurance Contracts with respect to such Insurance Contracts are listed in
Schedule 4.23(e), together with the maximum amount payable by an Insurance Company
thereunder. All Insurance Contracts, Reinsurance Contracts and any and all marketing
materials are, to the extent required under applicable Legal Requirements, on forms approved
by the insurance regulatory authority of the jurisdiction where issued or filed and have not
been objected to by such authority within the period provided for objection and have been
filed or registered as required with all other applicable Governmental Authorities. As to
premium rates established by each Insurance Company and required to be filed or approved,
the premiums charged comply with the applicable Legal Requirements. In addition, there is
no pending or, to the knowledge of the Borrower, the Parent or any of their respective
Subsidiaries, threatened charge by any insurance regulatory authority that any of the
Insurance Companies has violated, nor any pending or, to the knowledge of the Borrower, the
Parent or any of their respective Subsidiaries, threatened investigation by any insurance
regulatory authority with respect to possible violations of, any applicable Legal
Requirements where such violations would, individually or in the aggregate, cause a Material
Adverse Change. All Insurance Contracts and Reinsurance Contracts have been marketed, sold
and issued in compliance with all applicable Legal Requirements, except as could not
reasonably be expected to cause a Material Adverse Change, including, without limitation, in
compliance with (i) all applicable prohibitions against “redlining” or withdrawal of
business lines, (ii) all applicable requirements relating to the disclosure of the nature of
insurance products as policies of insurance and (iii) all applicable requirements relating
to insurance product projections and illustrations.




     (f) Payment of Benefits. All benefits payable with respect to each Insurance
Contract by an Insurance Company or, to the knowledge of the Borrower, the Parent or any of
their respective Subsidiaries, by any other person that is a party to or bound by such
Insurance Contract, have in all material respects been paid in accordance with the terms of
such Insurance Contract. All benefits payable with respect to each Reinsurance Contract,
have in all material respects been paid in accordance with the terms of such Reinsurance
Contract.




     (g) Notice of Likely Defaults. No Insurance Company has received any written,
or to the knowledge of the Borrower, the Parent or any of their respective Subsidiaries,
oral information that would cause it to believe that the financial condition of any other
party to any Insurance Contract or Reinsurance Contract is so impaired as to be reasonably
likely to result in a default by such party under such contract which could reasonably be
expected to cause a Material Adverse Change.



     Section 4.24 Owned Hospitality Properties.




     (a) Except as indicated on a Title Policy previously delivered to the Administrative
Agent, each of the Owned Hospitality Properties is served by water, electric, sewer,
sanitary sewer and storm drain facilities and all other utilities necessary and sufficient
for all current and intended uses, and such utilities enter each of the Owned Hospitality
Properties directly from a public right-of-way abutting such Owned Hospitality Property, and
all such utilities are connected so as to serve each of the Owned Hospitality Properties
without passing over other property.




     (b) No condemnation or eminent domain proceeding has been commenced, or, to Borrower’s
knowledge, is pending or threatened against any Owned Hospitality Property or any roadways
or easements providing access thereto.



55









 





ARTICLE V




AFFIRMATIVE COVENANTS




     So long as any Advance or any other amount under any Credit Document shall remain unpaid, any
Letter of Credit shall remain outstanding, or any Lender shall have any Commitment hereunder, the
Borrower agrees to comply and cause the Parent and the Parent’s Subsidiaries to comply with the
following covenants.



     Section 5.01 Compliance with Laws. The Borrower will comply, and cause the Parent and
each of its Subsidiaries to comply, in all material respects with all Legal Requirements.



     Section 5.02 Preservation of Existence; Separateness, Etc.




     (a) The Borrower will preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its partnership, limited liability company or corporate (as
applicable) existence, rights, franchises and privileges in the jurisdiction of its
formation, and qualify and remain qualified, and cause each such Subsidiary to qualify and
remain qualified, as a foreign partnership, corporation or limited liability company, as
applicable in each jurisdiction in which qualification is necessary or desirable in view of
its business and operations or the ownership of its properties, and, in each case, where
failure to qualify or preserve and maintain its rights and franchises could reasonably be
expected to cause a Material Adverse Change.




     (b) [Intentionally Omitted].




     (c) The Borrower shall cause the Permitted Other Subsidiaries which have Indebtedness
to, (i) maintain financial statements, accounting records and other corporate records and
other documents separate from all non-Permitted Other Subsidiaries, (ii) maintain their own
bank accounts in their own name, separate from all non-Permitted Other Subsidiaries, (iii)
pay their own expenses and other liabilities from their own assets and incur (or endeavor to
incur) obligations to other Persons based solely upon their own assets and creditworthiness
and not upon the creditworthiness of each other or any other Person, and (iv) file their own
tax returns or, if part of a consolidated group, join in the consolidated tax return of such
group as a separate member thereof.




     (d) The Borrower shall, and shall cause the Permitted Other Subsidiaries which have
Indebtedness to, take all actions necessary to keep such Permitted Other Subsidiaries,
separate from the Borrower and the Borrower’s other Subsidiaries, including, without
limitation, (i) the taking of action under the direction of the Board of Directors, members
or partners, as applicable, of such Permitted Other Subsidiaries and, if so required by the
Certificate of Incorporation or the Bylaws, operating agreement or partnership agreement, as
applicable, of such Permitted Other Subsidiaries or by any Legal Requirement, the approval
or consent of the stockholders, members or partners, as applicable, of such Permitted Other
Subsidiaries, (ii) the preparation of corporate, partnership or limited liability company
minutes for or other appropriate evidence of each significant transaction engaged in by such
Permitted Other Subsidiaries, (iii) the observance of separate approval procedures for the
adoption of resolutions by the Board of Directors or consents by the partners, as
applicable, of such Permitted Other Subsidiaries, on the one hand, and of the Borrower and
the Borrower’s other Subsidiaries, on the other hand, and (iv) preventing the cash, cash
equivalents, credit card receipts or other revenues of the Hospitality Properties owned by
such Permitted Other Subsidiaries or any other assets of such Permitted Other Subsidiaries
from being commingled with the cash, cash equivalents, credit card receipts or other
revenues collected by the Borrower or the Borrower’s other Subsidiaries.




     (e) The Borrower shall take all steps reasonably necessary to avoid (i) misleading any
other Person as to the identity of the entity with which such Person is transacting business
or (ii) implying that the Borrower is, directly or indirectly, absolutely or contingently,
responsible for the Indebtedness or other obligations of the Permitted Other Subsidiaries or
any other Person.



56









 





     Section 5.03 Payment of Taxes, Etc. The Borrower will pay and discharge, and cause
each of its Subsidiaries to pay and discharge, before the same shall become delinquent (a) all
taxes, assessments and governmental charges or levies imposed upon it, including employee
withholding taxes, or upon its income or profits or Property that are material in amount, prior to
the date on which penalties attach thereto and (b) all lawful claims that are material in amount
which, if unpaid, might by Legal Requirement become a Lien upon its Property; provided,
however, that neither the Borrower nor any such Subsidiary shall be required to pay or
discharge any such tax, assessment, charge, levy, or claim (i) which is being contested in good
faith and by appropriate proceedings, (ii) with respect to which adequate reserves in conformity
with GAAP have been provided, (iii) such charge or claim does not constitute and is not secured by
any choate Lien on any portion of any Owned Hospitality Property and no portion of any Owned
Hospitality Property is in jeopardy of being sold, forfeited or lost during or as a result of such
contest, (iv) neither the Administrative Agent nor any Lender could become subject to any civil
fine or penalty or criminal fine or penalty, in each case as a result of non-payment of such charge
or claim and (iv) such contest does not, and could not reasonably be expected to, result in a
Material Adverse Change.



     Section 5.04 Visitation Rights; Lender Meeting. Subject to the rights of the owners
of the Hospitality Properties for which there are Permitted Property Agreements, at any reasonable
time and from time to time and so long as any visit or inspection will not unreasonably interfere
with the Borrower’s or any of its Subsidiary’s operations, upon reasonable notice, the Borrower
will permit the Administrative Agent and any Lender or any of its agents or representatives
thereof, to examine and make copies of and abstracts from the records and books of account of, and
visit and inspect at its reasonable discretion the Properties owned or operated by the Borrower and
any of its Subsidiaries, to discuss the affairs, finances and accounts of such Persons with any of
their respective officers or directors. Without in any way limiting the foregoing, the Borrower
will, upon the request of the Administrative Agent, participate in a meeting with the
Administrative Agent and the Lenders once during each calendar year to be held at the Borrower’s
office in the District of Columbia or New York, New York (or such other location as may be agreed
to by the Borrower and the Administrative Agent) at such time as may be agreed to by the Borrower
and the Administrative Agent.



     Section 5.05 Reporting Requirements. The Borrower will furnish to the Administrative
Agent and, with respect to those items set forth in clauses (a)-(d) and (j), (m), (n) and (o), each
Lender:




     (a) Quarterly Financials. As soon as available and in any event not later than
fifty (50) days after the end of each Fiscal Quarter of the Parent (except for the Fiscal
Quarter which ends on the date the Fiscal Year ends), the unaudited Consolidated balance
sheets of the Parent and its Subsidiaries as of the end of such quarter and the related
unaudited statements of income, shareholders’ equity and cash flows of the Parent and its
Subsidiaries for such Fiscal Quarter and the period commencing at the end of the previous
year and ending with the end of such Fiscal Quarter, and the corresponding figures as at the
end of, and for, the corresponding periods in the preceding Fiscal Year, all duly certified
with respect to such statements (subject to reasonable year-end audit adjustments) by a
Responsible Officer of the Parent as having been prepared in accordance with GAAP, together
with (i) property-level operating statements with respect to each of those seven real estate
assets wholly owned by the Borrower and its Subsidiaries on the Effective Date and (ii) a
Compliance Certificate duly executed by a Responsible Officer of the Parent;
provided that the Total Indebtedness used to calculate the Leverage Ratio in such
Compliance Certificate shall be the Total Indebtedness as of the Status Reset Date during
the Fiscal Quarter in which such Compliance Certificate was delivered.




     (b) Annual Financials. As soon as available and in any event not later than
ninety-five (95) days after the end of each Fiscal Year of the Parent, a copy of the
Consolidated balance sheets of the Parent and its Subsidiaries as of the end of such Fiscal
Year and the related Consolidated statements of income, shareholders’ equity and cash flows
of the Parent and its Subsidiaries for such Fiscal Year, and the corresponding figures as at
the end of, and for, the preceding Fiscal Year, and audited and certified by independent
certified public accountants of nationally recognized standing reasonably acceptable to the
Administrative Agent in an opinion, without qualification as to the scope or any other
material qualification or exception (provided, that the failure of such accountant to
deliver such an unqualified opinion based solely on the prospective failure of the Borrower
to comply with the covenants, terms and conditions set forth in the Credit Documents shall
not constitute a Default or Event of Default hereunder), and including, if requested by the
Administrative Agent, any management letters delivered by such accountants to the



57









 







Parent in connection with such audit, together with (i) the unaudited consolidating
financial statements of the Parent and its Subsidiaries as of such date or for such time
period, as applicable, (ii) a Compliance Certificate duly executed by a Responsible Officer
of the Parent, (iii) a certificate duly executed by a Responsible Officer of the Parent
which reflects in detail reasonably acceptable to the Administrative Agent the financial
performance of the applicable Person related to the financial covenants contained in the
documentation for any Permitted Other Indebtedness and (iv) property-level operating
statements with respect to each of the owned real estate assets of the Borrower and its
Subsidiaries. As soon as available and in any event not later than 50 days after the end of
each Fiscal Year of the Parent, the Borrower will furnish to the Administrative Agent a
draft Compliance Certificate duly executed by a Responsible Officer of the Parent for such
end of Fiscal Year financial statements.




     (c) Monthly Summary Financial Statements. Within twenty (20) days following
the end of each calendar month, summary draft financial statements for the Borrower and its
Subsidiaries in form and substance acceptable to the Administrative Agent (subject to final
closing adjustments).




     (d) Securities Law Filings. Promptly and in any event within fifteen (15) days
after the sending or filing thereof, copies of all proxy material, reports and other
information which the Borrower, the Parent or any of their respective Subsidiaries sends to
or files with the United States Securities and Exchange Commission or sends to all of the
shareholders of the Parent or partners of the Borrower.




     (e) Defaults. As soon as possible and in any event within five (5) days after
the occurrence of each Default known to a Responsible Officer of the Parent, the Borrower or
any of their respective Subsidiaries, a statement of an authorized financial officer or
Responsible Officer of the Borrower setting forth the details of such Default and the
actions which the Borrower has taken and proposes to take with respect thereto.




     (f) ERISA Notices. As soon as possible and in any event (i) within thirty (30)
days after the Parent, the Borrower or any member of a Controlled Group knows or has reason
to know that any Termination Event described in clause (a) of the definition of Termination
Event herein with respect to any Plan has occurred, a statement of the Chief Financial
Officer of the Parent describing such Termination Event and the action, if any, which the
Parent, the Borrower or such member of such Controlled Group proposes to take with respect
thereto (ii) within ten (10) days after the Parent, the Borrower or any of a Controlled
Group knows or has reason to know that any other Termination Event with respect to any Plan
or Multiemployer Plan has occurred, a statement of the Chief Financial Officer of the Parent
describing such Termination Event and the action, if any, which the Parent, the Borrower or
such member of such Controlled Group proposes to take with respect thereto; (iii) within ten
(10) days after receipt thereof by the Parent, the Borrower or any of a Controlled Group
from the PBGC, copies of each notice received by the Parent, the Borrower or any such member
of such Controlled Group of the PBGC’s intention to terminate any Plan or to have a trustee
appointed to administer any Plan; and (iv) within ten (10) days after receipt thereof by the
Parent, the Borrower or any member of a Controlled Group from a Multiemployer Plan sponsor,
a copy of each notice received by the Parent, the Borrower or any member of such Controlled
Group concerning the imposition or amount of withdrawal liability pursuant to Section 4202
of ERISA.




     (g) Environmental Notices. Promptly upon the knowledge of any Responsible
Officer of the Borrower of receipt thereof by the Borrower or any of its Subsidiaries, a
copy of any form of notice, summons or citation received from the United States
Environmental Protection Agency, or any other Governmental Authority concerning (i)
violations or alleged violations of Environmental Laws, which seeks to impose liability
therefore, (ii) any action or omission on the part of the Parent or the Borrower or any of
their present or former Subsidiaries in connection with Hazardous Waste or Hazardous
Substances which, based upon information reasonably available to the Borrower, could
reasonably be expected to cause a Material Adverse Change or an Environmental Claim in
excess of $1,000,000 individually or in the aggregate with all other outstanding
Environmental Claims, (iii) any notice of potential responsibility under CERCLA, or (iv)
concerning the filing of a Lien upon, against or in connection with the Parent, Borrower,
their present or former Subsidiaries, or any of their leased, owned or operated Property,
wherever located.



58









 






     (h) Other Governmental Notices or Actions. Promptly and in any event within
five Business Days after receipt thereof by the Parent, Borrower or any of their respective
Subsidiaries, (i) a copy of any notice, summons, citation, or proceeding seeking to
adversely modify in any material respect, revoke, or suspend any license, permit, or other
authorization from any Governmental Authority, which action could reasonably be expected to
cause a Material Adverse Change, and (ii) any revocation or involuntary termination of any
license, permit or other authorization from any Governmental Authority, which revocation or
termination could reasonably be expected to cause a Material Adverse Change.




     (i) [Intentionally Omitted].




     (j) Corporate Activity. Promptly following any merger or dissolution of any
Subsidiary of the Borrower which is permitted hereunder or event which would make any of the
representations in Section 4.01-4.04 untrue, notice thereof.




     (k) Material Litigation. As soon as possible and in any event within five (5)
days of any Responsible Officer of the Borrower, the Parent or any of their respective
Subsidiaries having knowledge thereof, notice of any litigation, claim or any other event
which could reasonably be expected to cause a Material Adverse Change.




     (l) Insurance Information. Within ten (10) days of request by the
Administrative Agent, the Borrower shall provide the Administrative Agent copies of the
unaudited Insurance Annual Statement of each Insurance Company, certified by a Responsible
Officer of the Parent as fairly presenting the financial condition and results of operations
of such Insurance Company in accordance with SAP consistently applied throughout the periods
reflected therein and the most recent examination reports and loss run sheets of the
Insurance Companies.




     (m) Budgets. The Borrower shall deliver to the Administrative Agent and
Lenders budgets and updates/proposed revisions thereto as of the dates required by and
otherwise in accordance with the terms of Section 5.14 hereof.




     (n) New Business Reports. Within ten (10) days following the end of each
calendar month, a new business progress report specifying the Borrower’s or its
Subsidiaries’ progress with respect to the solicitation or negotiation of prospective new
business arrangements.




     (o) Asset Sales Reports. Within ten (10) days following the end of each
calendar month, the Borrower shall provide the Administrative Agent (for distribution to the
Lenders) an asset sales progress report with respect to the assets being marketed pursuant
to Section 5.13 hereof and otherwise with respect to any other prospective asset sales.




     (p) Other Information. Such other information respecting the business or
Properties, or the condition or operations, financial or otherwise, of the Borrower, the
Parent or any of their respective Subsidiaries, as any Lender through the Administrative
Agent may from time to time reasonably request.


The Borrower hereby acknowledges and agrees that (A) the Administrative Agent and/or its Affiliate
will make available to the Lenders and the Issuing Bank materials and/or information provided by or
on behalf of the Parent and/or the Borrower hereunder (collectively, “Materials”) by
posting the Materials on IntraLinks or another similar electronic system (the “Platform”),
(B) neither the Administrative Agent, nor any Affiliate, nor their respective directors, officers,
employees and agents shall be liable for any damages arising from the use by unintended recipients
of the Materials or other materials distributed through the Platform or other electronic,
telecommunications or information transmissions systems, and (C) certain of the Lenders may be
“public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information
with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower
hereby agrees that (W) all Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC”
shall appear prominently on the first page thereof; (X) by marking Materials “PUBLIC”, the Parent
and the Borrower shall be deemed to have authorized the Administrative Agent, its Affiliates, the
Issuing Bank and the Lenders to treat such Materials as either publicly available information or
not material information




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(although it may be sensitive and proprietary) with respect to the Borrower, the Parent or their
respective securities for purposes of United States Federal and state securities laws; (Y) all
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor;” and (Z) the Administrative Agent and its Affiliates shall be entitled
to treat any Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Investor.”




     Section 5.06 Maintenance of Property. The Borrower will, and will cause each of the
Parent and its Subsidiaries to (a) maintain their Owned Hospitality Properties in a manner
consistent for Hospitality Properties and related property of the same quality and character and
shall keep or cause to be kept every part thereof and its other properties in good condition and
repair, reasonable wear and tear excepted, and make all reasonably necessary repairs, renewals or
replacements thereto as may be reasonably necessary to conduct the business of the Borrower and its
Subsidiaries, (b) not knowingly or willfully permit the commission of waste or other injury, or the
occurrence of pollution, contamination or any other condition in, on or about any of their Owned
Hospitality Properties, (c) substantially maintain and repair each of their Owned Hospitality
Properties as required by any franchise agreement, license agreement, management agreement or
ground lease for such Owned Hospitality Property, and (d) perform such Person’s obligations under
the Permitted Property Agreements to which such Person is a party except where the non-performance
thereof in the aggregate would not reasonably be expected to cause a Material Adverse Change.



     Section 5.07 Insurance. The Borrower will maintain, and cause each of its
Subsidiaries to maintain, the insurance required pursuant to Schedule 5.07.



     Section 5.08 Use of Proceeds and Letters of Credit. The Advances and Letters of
Credit shall be used by the Borrower for the purposes set forth in Section 4.08.



     Section 5.09 Collateral; Releases.




     (a) Subject to the time periods set forth in Section 5.10 and Section 6.06(d) for
executing Security Documents in connection with the acquisition of Permitted New
Investments, the Parent, the Borrower and the Subsidiaries (i) will cause at all times the
Administrative Agent to have an Acceptable Lien in the Collateral, (ii) will cause at all
times all material provisions of the Security Documents to be valid and binding on the
Persons executing such Security Documents and (iii) shall execute or re-execute such
Security Documents and take such other actions as the Administrative Agent shall reasonably
request in order for the Administrative Agent to maintain or create an Acceptable Lien in
the Collateral, including without limitation any Collateral acquired by the Borrower, the
Parent, or any of the other Guarantors after the Effective Date. Without limiting the
foregoing, the Parent will, at all times during the term hereof, maintain an Acceptable Lien
in the Parent’s Ownership Interests in the Borrower in favor of the Administrative Agent for
the benefit of the Administrative Agent and Lenders to secure the Obligations.




     (b) Notwithstanding the foregoing, upon request of the Borrower to the Administrative
Agent at any time when no Default or Event of Default exists or would result therefrom and
any repayment of Advances required under this Agreement in connection therewith, the
Administrative Agent will release from the Liens of the Security Documents (i) the Property
which is the subject of a Permitted Asset Disposition at the time of such Permitted Asset
Disposition and (ii) any Owned Hospitality Property and the Ownership Interests in the
Permitted Other Subsidiary which owns such Owned Hospitality Property in connection with the
incurrence of Permitted Other Indebtedness to be secured by such Collateral,
provided that the Administrative Agent shall not be required to release any such
Liens in respect of this clause (ii) to the extent such Owned Hospitality Property is at
such time subject to a Mortgage in favor of the Administrative Agent for the benefit of the
Administrative Agent and Lenders to secure the Obligations except to the extent the
applicable Owned Hospitality Property has been made subject to mortgage Indebtedness in
accordance with the terms of clause (c) of the definition of the term “Permitted Other
Indebtedness” and the proceeds thereof have, as proceeds of a Repayment Event, been used to
prepay the Obligations in accordance with the terms of Section 2.07(c)(iii) hereof;
provided, however that to the extent the liens with respect to such
Permitted Other Indebtedness are, at any time, released or terminated, and such Owned
Hospitality Property remains owned by a Subsidiary of the Borrower, such Owned Hospitality
Property shall, within ten (10) Business Days of such release or termination, again
constitute part of the



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Collateral and be made subject to a Mortgage hereunder in favor of the Administrative
Agent for the benefit of the Administrative Agent and Lenders to secure the Obligations. If
the Property released in connection with any such Permitted Asset Disposition includes all
or substantially all of the Ownership Interests in a Guarantor, or if a Guarantor incurs
Permitted Other Indebtedness, then, upon request of the Borrower to the Administrative
Agent, at the time of such Permitted Asset Disposition or the incurrence of such Permitted
Other Indebtedness, as applicable, the Administrative Agent shall release such Guarantor
from the Guaranty and the other Credit Documents to which such Guaranty is a party. In
addition, the Administrative Agent agrees to take, and the Lenders authorize the
Administrative Agent to take, such actions as are reasonably requested by the Borrower and
at the Borrower’s expense to terminate the Liens and security interests created by the
Credit Documents when all the Obligations are paid in full and all Letters of Credit and
Commitments are terminated. Notwithstanding anything to the contrary contained herein, to
the extent any creditor providing any mortgage indebtedness constituting Permitted Other
Indebtedness pursuant to clause (c) of the definition of such term requires the applicable
Owned Hospitality Property to be held by a special purpose or bankruptcy remote entity, the
Loan Parties shall, to the extent no Default is then-continuing hereunder or under any other
Credit Document, be permitted to cause the transfer of such Owned Hospitality Property from
the then-current owner thereof to another wholly-owned Subsidiary of the Borrower.



     Section 5.10 New Subsidiaries; Additional Guarantors and Collateral. Except with
respect to a Permitted Other Subsidiary that has incurred or issued Permitted Other Indebtedness,
within ten (10) Business Days after either (a) the date that any Subsidiary of the Parent that was
not a Material Subsidiary becomes a Material Subsidiary or such Subsidiary is no longer prohibited
from acting as a Guarantor because of a contractual obligation or any new Material Subsidiary is
created after the Effective Date, or (b) the purchase by the Parent or any of its Subsidiaries of
the Ownership Interests of any Person, which purchase results in such Person becoming a Material
Subsidiary the Parent, shall, in each case, cause (i) such Material Subsidiary to execute and
deliver to the Administrative Agent either (A) a Guaranty, an Environmental Indemnity and a
Security Agreement or (B) an Accession Agreement, (ii) any of the Borrower and any Guarantor who is
a direct owner of the Ownership Interests of such Material Subsidiary to execute and deliver to the
Administrative Agent a Security Agreement, if necessary, and such other documents as are necessary
to create an Acceptable Lien in the Ownership Interests in the Material Subsidiary owned by such
Person (and such other Security Documents as the Administrative Agent may reasonably request) and
(iii) the Persons who are party to the documents delivered pursuant to the provisions of this
Section 5.10 to provide such evidence of authority to enter into such documents as the
Administrative Agent may reasonably request.



     Section 5.11 Insurance Business.




     (a) The Borrower will cause each of the Insurance Companies to (i) carry on and conduct
its business only in substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted, (ii) only engage in the insurance business or the
business of a holding company owning entities engaged in the insurance business or the
business of insurance or reasonably incidental activities, (iii) do all things necessary to
renew, extend and continue in effect all Insurance Licenses which may at any time and from
time to time be necessary for each Insurance Company to conduct business in compliance with
all applicable Legal Requirements, including, if applicable, the filing of all appropriate
Insurance Annual Statements and SAP Financial Statements; provided, that each
Insurance Company may withdraw from one or more states (other than its state of domicile) as
an admitted insurer if such withdrawal is determined by the Insurance Company’s Board of
Directors to be in the best interest of the Insurance Companies and could not reasonably be
expected to cause a Material Adverse Change.




     (b) The Borrower will not permit the Insurance Surplus, as of the last day of each
Fiscal Quarter, to be less than that required by applicable Legal Requirements. The
Borrower will not permit the maximum amount payable by all Insurance Companies under
Insurance Contracts or Reinsurance Contracts, as of the last day of each Fiscal Quarter, to
be greater than $10,000,000.



     Section 5.12 Interest Rate Agreements. Concurrently with the expiration or
termination of the Interest Rate Agreements related to the Existing Credit Facility, the Borrower
shall cause the Parent to obtain and thereafter maintain Interest Rate Agreements reasonably
satisfactory to the Administrative Agent, sufficient to cap



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LIBOR for not less than the lesser of (x) $121.5 million and (y) the aggregate amount of
Obligations outstanding hereunder as of such date of determination at a maximum rate of 4.00% per
annum for the period commencing as of such date and continuing until the Second Extended Maturity
Date. Any such Interest Rate Agreements shall be provided by either a Lender or a bank or other
financial institution whose long-term debt rating is equal to or greater than “A”; provided
that the Lenders will have a right of first refusal, but not an obligation, to provide any Interest
Rate Agreements for the Parent on substantially such terms as the Parent would be able to obtain
from any such non-Lender. To the extent that any Interest Rate Agreement is provided by a Lender,
the obligations of the Parent or its Subsidiary under such Interest Rate Agreement may be secured
by the Collateral pari passu with the Obligations. However, the pledge of any Collateral to secure
any Interest Rate Agreement from any non-Lender shall be subject to the written approval of the
Required Lenders.



     Section 5.13 Property Marketing and Sales. The Borrower shall actively market for
sale with a nationally-recognized and Administrative Agent-approved (such approval not to be
unreasonably withheld or delayed) brokerage firm the Hilton House Westchase property and the Hilton
Garden Inn Baton Rouge property at purchase prices that have been mutually agreed upon in writing
by the Borrower and the Administrative Agent as of the Effective Date; provided, that the
Administrative Agent acknowledges that it has, as of the date hereof, approved Molinaro Koger as
the broker for the Hilton House Westchase property and Jones Lang LaSalle as the broker for the
Hilton Garden Inn Baton Rouge property. On or prior to September 1, 2009, such brokerage firms
shall have provided to the Borrower and Administrative Agent a report concerning any bids received.
To the extent the Borrower receives any bids for sale that will result in gross cash proceeds as
of the closing of such sale in an amount equal to or greater than the amounts required by the
Administrative Agent and Lenders and such closing is reasonably expected to take place within 180
days, the Borrower shall use commercially reasonable efforts to cause the closing of such sale to
the highest bidder with respect to each such property.



     Section 5.14 Budget Updates.




     (a) Annual Budgets. The Borrower shall, within fifteen (15) days prior to the
beginning of each calendar year commencing with the calendar year beginning January 1, 2010,
deliver to the Administrative Agent a detailed draft of a proposed budget of projected cash
expenditures of the Parent, Borrower and their Subsidiaries for the following four calendar
quarter period, broken out by calendar quarter, in a form substantially similar to the form
of the budget delivered on the Effective Date. The Administrative Agent shall have the
right to review such draft budget and shall, on or prior to the date which is 20 days
following its receipt of same, provide Borrower with any comments or requested revisions
with respect to such draft budget based on the criteria set forth below. Thereafter, the
Borrower shall, within fifteen (15) days following the beginning of each calendar year
commencing with the calendar year beginning January 1, 2010, deliver to the Administrative
Agent a detailed final proposed budget of projected cash expenditures of the Parent,
Borrower and their Subsidiaries for the then-current calendar year, broken out by calendar
quarter, in a form substantially similar to the form of the budget delivered on the
Effective Date. The Administrative Agent shall have the right to review and approve such
proposed draft budget in its reasonable discretion and shall, on or prior to the date which
is 20 days following its receipt of same, provide Borrower with notice as to whether it has
approved or rejected such budget, together with reasons for any rejection; provided,
that the Administrative Agent shall not have the right to reject costs or expenses set forth
in proposed budgets (i) to the extent such costs and expenses are necessary to the continued
operation of the Borrower’s business and are not subject to the Borrower’s control, (ii)
based on its objection to revisions set forth in such updates that are not material or (iii)
to the extent such costs and expenses appeared in Borrower’s draft budget for such year but
were not previously objected to by the Administrative Agent. To the extent the
Administrative Agent rejects any proposed budget submitted by the Borrower, the Borrower and
Administrative Agent shall negotiate in good faith to resolve the matters which are deemed
by the Administrative Agent to be objectionable. To the extent the Administrative Agent and
Borrower are unable to agree on a new annual budget as of the Business Day which is
immediately prior to the then-effective Maturity Date, such failure shall constitute a
Default hereunder.




     (b) Budget Updates. On or prior to the date which is 30 days prior to the
beginning of each calendar quarter (but not more than 60 days prior to the beginning of such
calendar quarter), submit to the Administrative Agent for review and approval any proposed
updates or revisions to the most recent



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Approved Annual Budget. The Administrative Agent shall have the right to review and
approve (in its reasonable discretion) such proposed updates and revisions and shall, on or
prior to the date which is 20 days following its receipt of same, provide Borrower with
notice as to whether it has approved or rejected such updates and revisions, together with
reasons for any rejection; provided, that the Administrative Agent shall not have
the right to reject costs or expenses set forth in proposed budgets or updates thereto (i)
to the extent such costs and expenses are necessary to the continued operation of the
Borrower’s business and are not subject to the Borrower’s control or (ii) based on its
objection to revisions set forth in such updates that are not material. If the
Administrative Agent rejects any proposed budget revisions submitted by the Borrower, the
Borrower and Administrative Agent shall negotiate in good faith to resolve the matters which
are deemed by the Administrative Agent to be objectionable. To the extent the
Administrative Agent and Borrower are unable to agree upon revisions to an Approved Annual
Budget, such Approved Annual Budget (as modified to reflect any necessary and uncontrollable
costs and expenses) shall remain effective. To the extent the Administrative Agent approves
any revisions requested by the Borrower to the then-applicable Approved Annual Budget, such
Approved Annual Budget shall be deemed to have been revised as of the date on which the
Administrative Agent communicates such approval.



     Section 5.15 Appraisal. On or before such date as the Borrower exercises the Second
Extended Maturity Date option pursuant to Section 2.05(d), the Borrower shall have delivered to the
Lenders appraisals of certain assets to be specified by the Administrative Agent, including without
limitation, an updated appraisal for each of the Owned Hospitality Properties, by appraisers
satisfactory to the Administrative Agent and in a form in satisfactory to the Administrative Agent;
provided, that the assessed valuations set forth on such appraisals are not required to
show any minimum assessed values.



     Section 5.16 Extension of Mortgage Indebtedness. To the extent the Borrower or any
Subsidiary has any extension option under or with respect to any third-party mortgage Indebtedness
with regard to any of the Owned Hospitality Properties (other than the Arlington Property), and
such option is exercisable (a) without the Borrower or such Subsidiary being required to pay
additional fees in excess of 100 basis points and (b) without the implementation of any material
increase in the pricing of such Indebtedness, the Borrower or such Subsidiary shall exercise such
extension option unless otherwise agreed by the Required Lenders.



ARTICLE VI




NEGATIVE COVENANTS




     So long as any Advance or any other amount under any Credit Document shall remain unpaid, any
Letter of Credit shall remain outstanding, or any Lender shall have any Commitment, the Borrower
agrees to comply and cause the Parent and the Parent’s Subsidiaries to comply with the following
covenants.



     Section 6.01 Liens, Etc. The Borrower, the Parent and their respective Subsidiaries
will not create, assume, incur or suffer to exist, any Lien on or in respect of any of its Property
whether now owned or hereafter acquired, or assign any right to receive income, except that the
Borrower and its Subsidiaries may create, incur, assume or suffer to exist Liens:




     (a) securing the Obligations;




     (b) for taxes, assessments or governmental charges or levies on Property of the
Borrower or any Guarantor to the extent not required to be paid pursuant to Section 5.03;




     (c) imposed by law (such as landlords’, carriers’, warehousemen’s and mechanics’ liens
or otherwise arising from litigation) (i) which are being contested in good faith and by
appropriate proceedings, (ii) with respect to which reserves in conformity with GAAP have
been provided, (iii) which have not resulted in any Collateral being in jeopardy of being
sold, forfeited or lost during or as a result of such contest, (iv) neither the
Administrative Agent nor any Lender could become subject to any civil fine or penalty or
criminal fine or penalty, in each case, as a result of nonpayment of such charge or claim,
and (v) such contest does not, and could not reasonably be expected to, result in a Material
Adverse Change;



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     (d) on leased personal property to secure solely the lease obligations associated with
such property;




     (e) on the Property of or Ownership Interests in a Permitted Other Subsidiary securing
Indebtedness set forth in paragraph (a) of the definition of “Permitted Other Indebtedness”
incurred by such Permitted Other Subsidiary to the extent such Indebtedness is permitted
pursuant to the provisions of Section 6.02;




     (f) on the Ownership Interests in an Unconsolidated Entity or Minority-Owned Fund
securing Permitted Non-Recourse Unconsolidated Entity Indebtedness incurred by such
Unconsolidated Entity or Minority-Owned Fund, as applicable;




     (g) granted to the owner of a Hospitality Property subject to a Permitted Property
Agreement on the accounts receivable, inventory, cash or other property owned by the
Borrower or the Borrower’s Subsidiary in connection with such Hospitality Property; and




     (h) easements, rights of way, covenants, restrictions, zoning and similar restrictions
and other similar charges or encumbrances not interfering with the ordinary conduct of the
business of the Borrower or its Subsidiaries and which do not detract materially from the
value of any of the Owned Hospitality Properties to which they attach or impair materially
the use thereof by the Borrower or the Borrower’s Subsidiaries.



     Section 6.02 Indebtedness. The Borrower, the Parent and their respective Subsidiaries
will not incur or permit to exist any Indebtedness other than the Obligations and the following:




     (a) Permitted Other Indebtedness;




     (b) Capital Leases for personal property;




     (c) Interest Rate Agreements permitted under this Agreement; and




     (d) Any of the following Indebtedness incurred by the Parent or the Borrower:




     (i) guaranties in connection with Permitted Other Indebtedness secured by an
Owned Hospitality Property or interest in a Person owning a Hospitality Property of
(A) if the Hospitality Property is subject to a ground lease, the payment of rent
and performance of obligations under such ground lease, (B) real estate taxes
relating to such Hospitality Property, and (C) capital reserves required under such
Indebtedness, provided that such guaranties do not include guaranties of the
Permitted Other Indebtedness itself or any arrangements that would have the same
effect;




     (ii) guaranties of the payment of rent and performance of obligations under a
ground lease for an Owned Hospitality Property which is Collateral;




     (iii) customary recourse “carve-outs” for Indebtedness permitted under this
Agreement which is otherwise non-recourse to the Parent, the Borrower and their
respective Subsidiaries;




     (iv) guaranties of franchise and license agreements in connection with
Hospitality Properties; and




     (v) guaranties of obligations of the Parent’s Subsidiaries or Unconsolidated
Entities with respect to Permitted Property Agreements.



     Section 6.03 Agreements Restricting Distributions From Subsidiaries. The Borrower
will not, nor will it permit any of its Subsidiaries (other than Permitted Other Subsidiaries) to,
enter into any agreement (other



64









 







than a Credit Document) which limits distributions to or any advance (including by way of the
making of and repayment of Intercompany loans and advances) by any of the Borrower’s Subsidiaries
to the Borrower.



     Section 6.04 Restricted Payments. Neither the Parent, nor the Borrower, nor any of
their respective Subsidiaries, will make any Restricted Payment, except that:




     (a) provided that no Default has occurred and is continuing or would result therefrom,
the Borrower shall be entitled to make cash distributions to its partners, including the
Parent, which distributions for partners other than the Parent and the Parent’s Subsidiaries
do not in the aggregate in any Fiscal Year exceed $100,000;




     (b) a Subsidiary of the Borrower may make a Restricted Payment to the Borrower;




     (c) the limited partners of the Borrower shall be entitled to exchange limited
partnership interests in the Borrower for the Parent’s common stock;




     (d) the Borrower shall be entitled to issue limited partnership interests in the
Borrower in exchange for Ownership Interests in Subsidiaries and Unconsolidated Entities to
the extent such Investment is permitted pursuant to the provisions of Section 6.06 and such
Ownership Interests are pledged to secure the Obligations pursuant to the Security
Documents;




     (e) provided that no Default pursuant to Section 8.01(a), (b) or (f) or Default in the
covenants set forth in Article VII has occurred and is continuing or would result therefrom,
then the Borrower shall be entitled to pay (i) interest, but not principal (except only as
permitted by clause (ii) of this subsection (e)), of Subordinate Indebtedness permitted
pursuant to this Agreement, and (ii) principal of Approved Inter-Company Indebtedness;
provided that any such principal payments (A) are made to a Guarantor, (B) are
either retained by such Guarantor or distributed to the Borrower, the Parent or another
Guarantor and (C) are used in accordance with the provisions of this Agreement.



     Section 6.05 Fundamental Changes; Asset Dispositions. Neither the Parent, the
Borrower, nor any of their respective Subsidiaries (other than the Permitted Other Subsidiaries),
will




     (a) merge or consolidate with or into any other Person, unless (i) either (A) a
Guarantor is merged into the Borrower and the Borrower is the surviving Person, (B) a
Subsidiary (other than a Permitted Other Subsidiary which has Indebtedness other than the
Obligations) is merged into any Subsidiary (other than a Permitted Other Subsidiary which
has Indebtedness other than the Obligations) or (C) a Guarantor other than the Parent is
merged into another Person (other than a Permitted Other Subsidiary which has Indebtedness
other than the Obligations) and the surviving Person is or promptly becomes a Guarantor, and
(ii) immediately prior to and after giving effect to any such proposed transaction, (X) no
Default exists or would exist, (Y) on a pro forma basis the financial covenants set forth in
Article VII would be satisfied and (Z) to the extent a Person who was not a Subsidiary of
the Parent or the Borrower is merged with or into a Guarantor, then the Administrative Agent
shall in its reasonable discretion be entitled to determine the Investment Amount applicable
to such merger;




     (b) sell, transfer, or otherwise dispose of all or any of such Person’s material
Property except for a Permitted Asset Disposition, or dispositions or replacements of
personal property in the ordinary course of business;




     (c) enter into, as lessor, a lease (other than a lease which qualifies as a Permitted
Asset Disposition) of all or substantially all of any Owned Hospitality Property with any
Person without the consent of the Administrative Agent;




     (d) sell or otherwise dispose of any material Ownership Interests of any Subsidiary
(except for a Permitted Other Subsidiary or a sale which qualifies as a Permitted Asset
Disposition);



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     (e) except for (i) Capitalization Events for which the consideration is principally
cash or cash equivalents and for which the Repayment Amount is applied in accordance with
the provisions of Section 2.07(c), (ii) the issuance of limited partnership interests in the
Borrower in exchange for Ownership Interests in Subsidiaries and Unconsolidated Entities to
the extent permitted pursuant to the provisions of Section 6.04, and (iii) transactions
permitted under the preceding clause (a), materially alter the corporate, capital or legal
structure of any such Person (except for a Permitted Other Subsidiary);




     (f) enter into any forward sales of the Parent common stock or Ownership Interests in
the Borrower;




     (g) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)
provided that nothing herein shall prohibit the Borrower from dissolving any
Subsidiary which has no assets on the date of dissolution,




     (h) enter into any leases of Property or management agreements for any Property except
(i) Permitted Property Agreements, (ii) leases of office space for the use of the Parent’s
and the Parent’s Subsidiaries’ employees, and (iii) the leases of personal property
permitted by this Agreement,




     (i) materially alter the character of their respective businesses from that conducted
as of the date of this Agreement or otherwise engage in any material business activity
outside of the Hospitality Management Business or the ownership and operation of Hospitality
Properties, or




     (j) join in, acquiesce in, or consent to any change in any public or private
restrictive covenant, easement, zoning law or any other public or private restriction,
limiting, conditioning, changing, qualifying or defining the uses which may be made of any
Property that would have a material adverse effect on the Property.



     Section 6.06 Investments and other Property. Neither the Parent, the Borrower, nor
any of their respective Subsidiaries, shall acquire by purchase or otherwise any Investments or
other Property, except the following:




     (a) (i) Investments or Properties owned by such Persons as of the Effective Date and
set forth on Schedule 6.06-1; provided, that Borrower shall, during the term hereof, be
permitted to fund any capital calls on such existing Investments and fund commitments with
respect to such Investments to the extent it is contractually required to do so as of the
Effective Date and (ii) capital calls or funding of commitments with respect to the
Investments set forth on Schedule 6.06-2 to which the Borrower or one of its Subsidiaries
has committed (but not yet funded any portion of) prior to the Effective Date;




     (b) Liquid Investments;




     (c) trade and customer accounts receivable which are for goods furnished or services
rendered in the ordinary course of business and are payable in accordance with customary
trade terms, and receivables purchased in connection with the acquisition of an Owned
Hospitality Property;




     (d) Investments in Permitted New Investments or Subsidiaries making Permitted New
Investments; provided that (i) within ten (10) Business Days (and within ninety (90)
Business Days in the case of Security Documents in connection with the acquisition of an
Owned Hospitality Property) of the acquisition by the Parent or any of the Parent’s
Subsidiaries of any Collateral for which the Administrative Agent on behalf of the Lenders
does not already have an Acceptable Lien, the Borrower, the Parent and the other Guarantors
will execute such Security Documents as are necessary or desirable for the Administrative
Agent on behalf of the Lenders to have an Acceptable Lien in such Collateral, (ii) within
ninety (90) Business Days of the acquisition of an Owned Hospitality Property by the Parent
or any of the Parent’s Subsidiaries which is required by the terms of this Agreement to be
Collateral, the Borrower shall deliver to the Administrative Agent a Title Policy for such
Owned Hospitality Property and (iii) the aggregate amount of Permitted New Investments made
pursuant to this clause (d) during the term hereof shall not, in any case, exceed
$5,000,000;



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     (e) to the extent provided for in the then-applicable Approved Annual Budget, Capital
Expenditures, acquired or made in the ordinary course of (i) owning the Parent’s and the
Parent’s Subsidiaries’ existing Investments and Properties and any Permitted New Investments
and (ii) operating a Hospitality Management Business (including, without limitation,
information systems and computers; and




     (f) loans to employees of the Parent or its Subsidiaries which in the aggregate do not
at any time exceed $100,000.


Notwithstanding the foregoing, neither the Borrower, nor the Parent, nor their respective
Subsidiaries shall make an Investment, acquire any other Property, or enter into any Permitted
Property Agreement which would (a) cause a Default, (b) cause or result in the Borrower or the
Parent failing to comply with any of the financial covenants contained herein, or (c) cause or
result in the aggregate EBITDA in any Rolling Period derived from all Permitted Property
Agreements, or other Investments related to Hospitality Properties which are not full-service or
limited service hotels or resorts or conference centers to exceed 35% of the Parent’s EBITDA for
such Rolling Period. In addition, neither the Borrower, nor the Parent, nor their respective
Subsidiaries shall enter into any agreements to purchase Investments or other Property, unless with
respect to such purchase such Person at all times has available sources of funds equal to pay in
full the cost of the purchase of such Investments or other Property (to the extent that the payment
of such cost of purchase constitutes a recourse obligation of the Parent, the Borrower or its
Subsidiary), which available sources of funds may not include Advances hereunder.




     Section 6.07 Affiliate Transactions. Except for certain liquor license agreements,
the Borrower will not, and will not permit any of its Subsidiaries to, make, directly or
indirectly: (a) any transfer, sale, lease, assignment or other disposal of any assets to any
Affiliate of the Borrower which is not a Guarantor or any purchase or acquisition of assets from
any such Affiliate except for purchases of new personal property (i) which in any calendar year do
not exceed $1,000,000 in the aggregate and (ii) for which the sales price is the actual cost to the
party selling; (b) any arrangement or other transaction directly or indirectly with or for the
benefit of any such Affiliate (including without limitation, guaranties and assumptions of
obligations of an Affiliate), other than in the ordinary course of business and at market rates or
as otherwise permitted pursuant to the last sentence of Section 5.09(b).



     Section 6.08 Sale or Discount of Receivables. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, sell with recourse, or discount or
otherwise sell for less than the book value thereof, any of its notes or accounts receivable except
in connection with sale of an Owned Hospitality Property.



     Section 6.09 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end
on a day other than December 31 or change the Borrower’s method of determining fiscal quarters
provided that the Borrower may make one election after the Effective Date to change its
fiscal year end, if the Borrower enters into such amendments to this Agreement as the
Administrative Agent shall request to reflect such change, including modifications to Section 7,
such that the covenants affected by such change shall have the same effect (or, in any case, be
substantively no less favorable to the Lenders, in the determination of the Administrative Agent)
after giving effect thereto as if such change were not made. The Lenders hereby authorize the
Administrative Agent to enter into such amendments to effect such modifications, if any, in
accordance with the provisions of this Section.



     Section 6.10 Activities of Parent. In the case of the Parent, notwithstanding
anything to the contrary in this Agreement or any other Credit Document, other than indirectly
through Subsidiaries, (a) conduct, transact or otherwise engage in, or commit to conduct, transact
or otherwise engage in, any business or operations other than those incidental to its ownership of
the capital stock of the Borrower and Parent’s Other Subsidiaries or otherwise in the form of
Investments set forth on Schedule 6.06, (b) incur, create, assume or suffer to exist any
Indebtedness or other liabilities or financial obligations, except (i) nonconsensual obligations
imposed by operation of law, (ii) pursuant to the Credit Documents to which it is a party, (iii)
obligations with respect to its capital stock, (iv) incur Indebtedness pursuant to (A) Section
6.02(d) or (B) Permitted Other Indebtedness pursuant to clause (a) of the definition thereof so
long as such Permitted Other Indebtedness is permitted by Section 6.02 and the Net Cash Proceeds
are applied as a Repayment Event to prepay the Advances pursuant to Section 2.07 and (v) Permitted
Other Indebtedness that is Approved Intercompany Indebtedness, or (c) own, lease, manage or
otherwise operate



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any properties or assets (including cash and cash equivalents) other than the ownership of
shares of capital stock of the Borrower and Parent’s Other Subsidiaries.



     Section 6.11 Sales and Leasebacks. Neither the Parent, the Borrower or any Subsidiary
will enter into any arrangement with any Person providing for the leasing by Parent, the Borrower
or any Subsidiary of real or personal property which has been or is to be sold or transferred by
the Parent, the Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property or rental
obligations of the Parent, the Borrower or such Subsidiary.



     Section 6.12 Material Documents. The Borrower will not, nor will it permit any of its
Subsidiaries to (a) amend the Borrower’s partnership agreement in any material respect, (b) admit a
new general partner to the Borrower, (c) enter into any termination or material modification or
amendment of Permitted Property Agreements which singly or in the aggregate could reasonably be
expected to cause a Material Adverse Change, or (d) modify the Approved Inter-Company Indebtedness
Loan Documents in any way that is materially adverse to the Lenders. Any termination, modification
or amendment prohibited under this Section 6.12 without the Required Lender’s written consent
shall, to the extent permitted by applicable law, be void and of no force and effect.



     Section 6.13 No Further Negative Pledges. Neither the Borrower, nor the Parent, nor
their respective Subsidiaries shall enter into or suffer to exist any agreement (other than this
Agreement and the Credit Documents and as set forth in the Permitted Property Agreements) (a)
prohibiting the creation or assumption of any Lien upon the Properties of the Parent, the Borrower
or any of their respective Subsidiaries (except for Properties of and Ownership Interests in the
Permitted Other Subsidiaries), whether now owned or hereafter acquired, or (b) requiring an
obligation to be secured if some other obligation is or becomes secured; provided that in
connection with the incurrence of Unsecured Indebtedness which is permitted by this Agreement, the
Parent and its Subsidiaries may enter into such agreements which would require that assets of the
Parent and its Subsidiaries which secure any Indebtedness (other than the Obligations, any
refinancing or increase in the Obligations, or the Indebtedness described in clause (a) of the
definition of Permitted Other Indebtedness) also secure on an equal and ratable basis such
Unsecured Indebtedness and which agreements must be in form and substance reasonably acceptable to
the Administrative Agent.



     Section 6.14 Limitation on Capital Expenditures and Other Costs and Expenses.
Notwithstanding anything to the contrary contained herein, neither the Borrower nor any Subsidiary
shall, for or during any calendar year, incur obligations for the payment of Capital Expenditures
or other material costs and expenses except to the extent set forth for such year in the
then-applicable Approved Annual Budget.



     Section 6.15 Limitation on Hedge Agreements. Neither the Borrower, the Parent, nor
any of their respective Affiliates shall enter into any Interest Rate Agreement or any Currency
Agreement other than the Interest Rate Agreements permitted by the terms of this Agreement and
non-speculative Currency Agreements which are reasonably necessary or desirable in connection with
such Persons’ foreign operations.



     Section 6.16 Prepayment of Other Indebtedness. Neither the Parent, the Borrower or
any Subsidiary shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any
Indebtedness (other than the Obligations), other than Indebtedness secured by a Lien permitted by
Section 6.01 if the asset securing such Indebtedness has been sold or otherwise disposed of in
accordance with Section 6.05.



ARTICLE VII




FINANCIAL COVENANTS




     So long as any Advance or any other amount under any Credit Document shall remain unpaid, any
Letter of Credit shall remain outstanding, or any Lender shall have any Commitment hereunder,
unless the Required Lenders shall otherwise consent in writing, the Borrower agrees to comply and
cause the Parent and the Parent’s Subsidiaries to comply with the following covenants:



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     Section 7.01 Debt Service Coverage Ratio. The Parent shall maintain at the end of
each Rolling Period a Debt Service Coverage Ratio of not less than 1.75 to 1.00.



     Section 7.02 Management Business EBITDA. The Borrower shall maintain at the end of
each Rolling Period a Management Business EBITDA (calculated on a trailing four quarter basis as of
the end of such Rolling Period) of not less than $9,000,000.



ARTICLE VIII




EVENTS OF DEFAULT; REMEDIES




     Section 8.01 Events of Default. The occurrence of any of the following events shall
constitute an “Event of Default” under any Credit Document:




     (a) Principal Payment or Letter of Credit Obligation Payment. The Borrower or
any Guarantor shall fail to pay any principal of any Advance or any Letter of Credit
Obligation (or any other extension of credit under the Credit Documents in the nature of a
principal advance) when the same becomes due and payable as set forth in this Agreement;




     (b) Interest or Other Obligation Payment. The Borrower or any Guarantor shall
fail to pay any interest on any Advance or any fee or other amount payable hereunder or
under any other Credit Document when the same becomes due and payable as set forth in this
Agreement or such other Credit Document, as applicable, provided however
that the Borrower and the Guarantors will have a grace period of three (3) days after the
payments covered by this Section 8.01(b) becomes due and payable for the first two defaults
of such Persons collectively under this Section 8.01(b) in every calendar year;




     (c) Representations and Warranties. Any representation or warranty made or
deemed to be made (i) by the Parent in this Agreement or in any other Credit Document, (ii)
by the Borrower (or any of its officers) in connection with this Agreement or any other
Credit Document, or (iii) by any Guarantor in any Credit Document shall prove to have been
incorrect in any material respect when made or deemed to be made;




     (d) Covenant Breaches. (i) The Borrower shall fail to perform or observe any
covenant contained in Section 5.02, Article VI or Article VII of this Agreement, (ii) the
Borrower shall fail to perform or observe, or shall fail to cause any Guarantor to perform
or observe any covenant in any Credit Document beyond any notice and/or cure period for such
default expressly provided in such Credit Document or (iii) the Borrower or any Guarantor
shall fail to perform or observe any term or covenant set forth in any Credit Document which
is not covered by clause (i) or (ii) above or any other provision of this Section 8.01, in
each case if such failure shall remain unremedied for thirty (30) days after the earlier of
the date written notice of such default shall have been given to the Borrower or such
Guarantor by the Administrative Agent or any Lender or the date a Responsible Officer of the
Borrower or any Guarantor has actual knowledge of such default, unless such default in this
clause (iii) cannot be cured in such thirty (30) day period and the Borrower is diligently
proceeding to cure such default, in which event the cure period shall be extended to ninety
(90) days; provided that the Borrower shall not be entitled to more than the
aforementioned thirty (30) day period to cure a default under Section 5.09 of this
Agreement;




     (e) Cross-Defaults. With respect to any Indebtedness of the Borrower, the
Parent or any of their respective Subsidiaries (but excluding Indebtedness evidenced by the
Notes or hereunder) which exceeds the Threshold Amount, any of the following:




     (i) any such Indebtedness shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof,



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     (ii) such Person shall fail to pay any principal of or premium or interest of
any of such Indebtedness (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument relating
to such Indebtedness, or




     (iii) any other event shall occur or condition shall exist under any agreement
or instrument relating to such Indebtedness, and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect of
such event or condition is to permit the holders of such Indebtedness to accelerate
the maturity of such Indebtedness;




     (f) Insolvency. The Borrower, the Parent or any of their respective Material
Subsidiaries 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 the Borrower, the
Parent or any of their respective Material Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding instituted against
the Borrower, the Parent or any of their respective Material Subsidiaries, either such
proceeding shall remain undismissed for a period of 60 days or any of the actions sought in
such proceeding shall occur; or the Borrower, the Parent or any of their respective Material
Subsidiaries shall take any corporate action to authorize any of the actions set forth above
in this paragraph (f);




     (g) Judgments. Any judgment or order for the payment of money in excess of
$5,000,000 or the Dollar Equivalent thereof (reduced for purposes of this paragraph for the
amount in respect of such judgment or order that a reputable insurer has acknowledged being
payable under any valid and enforceable insurance policy) shall be rendered against the
Borrower, the Parent or any of their respective Subsidiaries which, within thirty (30) days
from the date such judgment is entered, shall not have been discharged or execution thereof
stayed pending appeal;




     (h) ERISA. (i) Any Person shall engage in any “prohibited transaction” (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
“accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, unless such Reportable Event, proceedings or
appointment are being contested by the Borrower in good faith and by appropriate
proceedings, (iv) any Plan or Multiemployer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower, the Parent or any member of a Controlled Group shall incur any
liability in connection with a withdrawal from a Multiemployer Plan or the insolvency
(within the meaning of Section 4245 of ERISA) or reorganization (within the meaning of
Section 4241 of ERISA) of a Multiemployer Plan, unless such liability is being contested by
the Borrower, the Parent or any member of the Controlled Group in good faith and by
appropriate proceedings, (vi) the fair market value of the assets of any Title IV Plan is
not at least equal to the present value of the “benefit liabilities” (within the meaning of
Section 4001(a)(16) of ERISA) under that Title IV Plan using the actuarial assumptions and
methods used by the actuary to that Title IV Plan in its most recent valuation of that Title
IV Plan, (vii) any Termination Event or any other event or condition shall occur or exist,
with respect to a Plan or Multiemployer Plan; and in each case in clauses (i) through (vii)
above, such event or condition, together with all other such events or conditions, if any,
could subject the Borrower or any Guarantor to any tax, penalty or other liabilities in the
aggregate exceeding $10,000,000;




     (i) Guaranty. Any provision of any Guaranty shall for any reason cease to be
valid and binding on any Guarantor or any Guarantor shall so state in writing;



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     (j) Environmental Indemnity. Any Environmental Indemnity shall for any reason
cease to be valid and binding on any Person party thereto or any such Person shall so state
in writing;




     (k) Security Document. The Borrower or any Guarantor shall cause any material
Security Document to be invalid or non-binding on any Person party thereto or any such
Person shall so state in writing;




     (l) Collateral. A Material Adverse Change occurs because all or a portion of
the Collateral shall for any reason cease to be subject to an Acceptable Lien except as
expressly permitted by this Agreement;




     (m) Repayment Event. Upon the receipt by the Parent, the Borrower or any
Subsidiary of any Net Cash Proceeds from a Repayment Event, (i) the Parent fails to
immediately make a capital contribution or advance to the Borrower or a Subsidiary of the
Borrower of the Repayment Amount for such Repayment Event, or otherwise apply the Repayment
Amount for such Repayment Event in accordance with the provisions of this Agreement or (ii)
the Borrower fails to apply such Repayment Amount in accordance with the provisions of this
Agreement;




     (n) Change in Ownership or Control. Any of the following occur without the
written consent of the Required Lenders: (i) a Change in Control occurs for either the
Parent or the Borrower; (ii) the Parent owns less than 99% of the legal or beneficial
interest in the Borrower directly; provided that such percentage may be reduced to
85% to the extent limited partnership interest in the Borrower are exchanged for assets
which are then pledged to secure the Obligations pursuant to the Security Documents; or
(iii) the Parent is no longer the general partner of the Borrower; or




     (o) Permitted Property Agreements. A default by the Parent, the Borrower or
any of their respective Subsidiaries shall occur under sufficient Permitted Property
Agreements that such default could reasonably be expected to cause a Material Adverse
Change;


provided, however, that notwithstanding anything contained herein to the contrary,
the granting of a deed in lieu of foreclosure by the owner of the Arlington Property or the
instigation and/or completion of an acceleration or a foreclosure action by a creditor with respect
to such property shall not, by itself, constitute an Event of Default to the extent recourse with
respect to such creditor is limited to the interest in Arlington Property previously held by the
Borrower or one of its Subsidiaries.




     Section 8.02 Optional Acceleration of Maturity; Other Actions. If any Event of
Default (other than an Event of Default pursuant to paragraph (f) of Section 8.01) shall have
occurred and be continuing, then, and in any such event,




     (a) the Administrative Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make
Advances and participate in Letters of Credit and the obligation of Issuing Bank to issue,
increase, or extend 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,
by notice to the Borrower, declare the Advances, all interest thereon, the Letter of Credit
Obligations, and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the principal in respect of Advances and other extensions of credit made
under this Agreement, all such interest, all such Letter of Credit Obligations and all such
amounts shall become and be forthwith due and payable in full, without presentment, demand,
protest or further notice of any kind (including, without limitation, any notice of intent
to accelerate or notice of acceleration), all of which are hereby expressly waived by the
Borrower,




     (b) the Borrower shall, on demand of the Administrative Agent at the request or with
the consent of the Required Lenders, deposit into the Cash Collateral Account an amount of
cash equal to the Letter of Credit Exposure as security for the Obligations to the extent
the Letter of Credit Obligations are not otherwise paid at such time, and



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     (c) the Administrative Agent shall at the request of, or may with the consent of, the
Required Lenders proceed to enforce its rights and remedies under the Credit Documents for
the ratable benefit of the Lenders by appropriate proceedings.



     Section 8.03 Automatic Acceleration of Maturity. If any Event of Default pursuant to
paragraph (f) of Section 8.01 shall occur,




     (a) the obligation of each Lender to make Advances and purchase participations in
Letters of Credit and the obligation of Issuing Bank to issue, increase, or extend Letters
of Credit shall immediately and automatically be terminated and the principal due in respect
of Advances and any other extensions of credit under this Agreement, all interest on such
Advances, all Letter of Credit Obligations, and all other amounts payable under this
Agreement shall immediately and automatically become and be due and payable in full, without
presentment, demand, protest or any notice of any kind (including, without limitation, any
notice of intent to accelerate or notice of acceleration), all of which are hereby expressly
waived by the Borrower and




     (b) to the extent permitted by law or court order, the Borrower shall deposit with the
Administrative Agent into the Cash Collateral Account an amount of cash equal to the
outstanding Letter of Credit Exposure as security for the Obligations to the extent the
Letter of Credit Obligations are not otherwise paid at such time.



     Section 8.04 Cash Collateral Account.




     (a) Pledge. The Borrower hereby pledges, and grants to the Administrative
Agent for the benefit of the Lenders, a security interest in all funds held in the Cash
Collateral Account maintained with the Administrative Agent from time to time, and all
proceeds thereof, as security for the payment of the Obligations, including without
limitation all Letter of Credit Obligations owing to any Issuing Bank or any other Lender
due and to become due from the Borrower to any Issuing Bank or any other Lender under this
Agreement in connection with the Letters of Credit and the Borrower agrees to execute all
cash management or cash collateral agreements and UCC-1 Financing Statements requested by
the Administrative Agent as needed or desirable for the Administrative Agent to have an
Acceptable Lien in the Cash Collateral Account.




     (b) Application Against Letter of Credit Obligations. The Administrative Agent
may, at any time or from time to time, apply funds then held in the Cash Collateral Account
to the payment of any Letter of Credit Obligations owing to any Issuing Bank, in such order
as the Administrative Agent may elect, as shall have become or shall become due and payable
by the Borrower to any Issuing Bank under this Agreement in connection with the Letters of
Credit.




     (c) Duty of Care. The Administrative Agent shall exercise reasonable care in
the custody and preservation of any funds held in the Cash Collateral Account and the
Administrative Agent shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent accords its own
property, it being understood that the Administrative Agent shall not have any
responsibility for taking any necessary steps to preserve rights against any parties with
respect to any such funds.



     Section 8.05 Non-exclusivity of Remedies. No remedy conferred upon the Administrative
Agent or the Lenders is intended to be exclusive of any other remedy, and each remedy shall be
cumulative of all other remedies existing by contract, at law, in equity, by statute or otherwise.



     Section 8.06 Right of Set-off.




     (a) Upon (i) the occurrence and during the continuance of any Event of Default pursuant
to paragraph (f) of Section 8.01 or (ii) the making of the request or the granting of the
consent, if any, specified by Section 8.02 to authorize the Administrative Agent to declare
the Advances and any other amount payable hereunder due and payable pursuant to the
provisions of Section 8.02 or the automatic



72









 







acceleration of the Advances and all amounts payable under this Agreement pursuant to
Section 8.03, each Lender and Affiliate thereof is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and 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 such Lender or any Affiliate thereof to or for the
credit or the account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement, the Advances held by such Lender, and the
other Credit Documents, irrespective of whether or not such Lender shall have made any
demand under this Agreement, in respect of any Note, or such other Credit Documents, and
although such obligations may be unmatured. Each Lender agrees to promptly notify the
Borrower after any such set-off and application made by such Lender or its Affiliate,
provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section are in addition to
any other rights and remedies (including, without limitation, other rights of set-off) which
such Lender may have.




     (b) The Borrower waives any right of set-off, defense or counterclaim the Borrower has
or may have against any Lender to apply any amounts owed the Borrower by such Lender or any
Affiliate thereof against the Obligations hereunder.



ARTICLE IX




THE ADMINISTRATIVE AGENT




     Section 9.01 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Credit
Documents, and each Lender irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and the other Credit
Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall have no duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.



     Section 9.02 Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Credit Document by or
through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties.  The exculpatory provisions of this Article shall
apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.



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




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




     (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Credit Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Credit Documents),
provided that the Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to liability or
that is contrary to any Credit Document or applicable law; and



73









 






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




The Administrative Agent, in its capacity as such, shall not be liable for any action taken
or not taken by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative
Agent shall believe in good faith shall be necessary, under the circumstances as provided in
this Agreement) or (ii) in the absence of its own gross negligence or willful misconduct.



     Section 9.04 Reliance by the Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice and statements of
legal counsel, independent accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance with Section 10.06 and all actions
required by such Section in connection with such transfer shall have been taken. The
Administrative Agent shall be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing
group of Lenders specified by this Agreement) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from acting, under this
Agreement and the other Credit Documents in accordance with a request of the Required Lenders (or,
if so specified by this Agreement, all Lenders or any other instructing group of Lenders specified
by this Agreement), and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.



     Section 9.05 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent shall have received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a “notice of
default”. In the event that the Administrative Agent shall receive such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructing group
of Lenders specified by this Agreement); provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.



     Section 9.06 Non-Reliance on the Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any representations or
warranties to it and that no act by the Administrative Agent hereafter taken, including any review
of the affairs of the Borrower or any Guarantor or any affiliate of the Borrower or a Guarantor,
shall be deemed to constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness of the Borrower
or any Guarantor and their affiliates and made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Credit
Documents, and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder, the



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Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower or any Guarantor or any affiliate of the
Borrower or any Guarantor that may come into the possession of the Administrative Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates.



     Section 9.07 Indemnification. The Lenders agree to indemnify the Administrative Agent
(in its capacity as such) and its Related Parties (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to their respective
Pro Rata Share in effect on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have terminated and the
Advances shall have been paid in full, ratably in accordance with such Pro Rata Share immediately
prior to such date), for, and to save the Administrative Agent and such Related Parties harmless
from and against, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Advances) be imposed on,
incurred by or asserted against the Administrative Agent or any such Related Party in any way
relating to or arising out of, the Commitments, this Agreement, any of the other Credit Documents
or any documents contemplated by or referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by the Administrative Agent or any of its Related
Parties under or in connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted from the
Administrative Agent’s or such Related Party’s gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other amounts payable
hereunder.



     Section 9.08 The Administrative Agent in Its Individual Capacity. The Administrative
Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind
of business with the Borrower or any Guarantor as though the Administrative Agent were not the
Administrative Agent. With respect to its Loans made or renewed by it and with respect to any
Letter of Credit issued or participated in by it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Credit Documents as any Lender and may
exercise the same as though it were not the Administrative, and the terms “Lender” and “Lenders”
shall include the Administrative in its individual capacity.



     Section 9.09 Successor Administrative Agent.




     (a) In the event that, and during such time as, the Administrative Agent constitutes a
Defaulting Lender, and such Defaulting Lender fails to cure all Lender defaults that caused
it to become a Defaulting Lender within fifteen Business Days from the date it became a
Defaulting Lender, then the Required Lenders may, but shall not be required to, direct such
Administrative Agent to resign as Administrative Agent, and upon the direction of the
Required Lenders such Administrative Agent shall be required to resign in accordance with
the terms set forth in clause (b) of this Section 9.09.




     (b) The Administrative Agent may resign as Administrative Agent upon 10 days’ written
notice to the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Credit Documents, then the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8.01(a) or Section 8.01(f)
with respect to the Borrower shall have occurred and be continuing) be subject to approval
by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon
such successor agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent’s rights, powers and
duties as Administrative Agent shall be terminated, without any other or further act or deed
on the part of such former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. If no successor agent has accepted appointment as Administrative
Agent by the date that is 10 days following a retiring Administrative Agent’s notice of
resignation by the Required Lenders, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the Required



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Lenders appoint a successor agent as provided for above and such Lender so acting shall
have the benefit of all provisions for the benefit of the “Administrative Agent” as if they
were the Administrative Agent hereunder. After the resigning Administrative Agent’s
resignation hereunder and under the other Credit Documents, the provisions of this Article
IX and Section 10.04 shall continue in effect for the benefit of such resigning
Administrative Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



     Section 9.10 Authorization to Release Liens and Guarantees. The Administrative Agent
is hereby irrevocably authorized by each of the Lenders to effect any release of Liens or guarantee
obligations contemplated by Section 5.09.



     Section 9.11 The Arranger. The Arranger shall have no duties or responsibilities, and
shall incur no liability, under this Agreement and the other Credit Documents.



     Section 9.12 Administrative Agent May File Proofs of Claim.  In case of the pendency
of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan
Party, the Administrative Agent (irrespective of whether the principal of any Advance or Letter of
Credit Obligation shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Administrative Agent shall have made any demand on the Borrower)
shall be entitled and empowered, by intervention in such proceeding or otherwise




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Advances, Letter of Credit Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the Issuing Bank and the
Administrative Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Bank and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the Issuing Bank
and the Administrative Agent under Sections 2.03, 9.07, 10.04, 10.07 and/or any other
provision hereof calling for the payment of fees or indemnification of any Lender, the
Issuing Bank or the Administrative Agent) allowed in such judicial proceeding; and




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




and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Lender and the Issuing
Bank to make such payments to the Administrative Agent and, in the event that the
Administrative Agent shall consent to the making of such payments directly to the Lenders
and the Issuing Bank, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 2.03
and 10.04.




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



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ARTICLE X




MISCELLANEOUS




     Section 10.01 Amendments, Etc.




     (a) No amendment or waiver of any provision of this Agreement, the Notes, or any other
Credit Document, nor consent to any departure by the Borrower or any Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed by the
Required Lenders (or by the Administrative Agent with the consent of such Required Lenders),
as specified in the particular provisions of the Credit Documents, and the Borrower, 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 amend, waive or modify any covenant set forth in Article VII hereof
(or any defined term used therein) without the prior written consent of the Supermajority
Lenders; provided, further, that no amendment shall increase the Commitment
of any Lender without the prior written consent of such Lender, and no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders whose Commitments or Advances
are directly modified thereby, do any of the following: (i) increase the aggregate
Commitments of the Lenders, (ii) reduce or forgive the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder or under any other Credit Document
or otherwise release the Borrower from any Obligations, (iii) postpone any date fixed for
any payment of principal of (including any Maturity Date and the payments required by
Section 2.07(c)(iv)), or interest on, the Advances or any fees or other amounts payable
hereunder or change, modify, amend or waive any of the conditions set forth in Section
2.05(c) or (d) or the definitions set forth therein (provided, that this provision
shall not be deemed to require unanimity among the Lenders for waivers of specific Defaults
or Events of Default, except as otherwise required in this Section 10.01), or (iv) extend
the Interest Period beyond six (6) months; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by all the Lenders (i)
amend this Section 10.01, (ii) amend the definition of “Required Lenders,” “Pro Rata Share,”
“Supermajority Lenders,” “Defaulting Lender” or “Impacted Lender,” or amend the ratable
payment provisions of Sections 2.04 or 2.07(d), (iii) release the Parent from its
obligations under the Guaranty or release any other Guarantor which owns or leases an Owned
Hospitality Property from its obligations under any of the Guaranties except as contemplated
by the provisions of Section 5.09, (iv) release all or substantially all of the Collateral
except in accordance with Section 5.09 or (v) release as Collateral all or substantially all
of the Ownership Interests in the Borrower except in accordance with Section 5.09; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent or any Issuing Bank, as applicable, in
addition to the Lenders required above to take such action, affect the rights or duties of
the Administrative Agent or such Issuing Bank, as the case may be, under this Agreement or
any other Credit Document. In addition, the definition of “Revolving Required Lenders”
cannot be amended without the unanimous written consent of all Lenders holding Revolving
Commitments (or, if such Commitments have terminated, outstanding Revolving Advances and
related Letter of Credit Exposure) and no amendment, modification or waiver of Section
3.02 or any other provision of this Agreement shall be effective if the effect of such
amendment, modification or waiver is to require Lenders having a Revolving Credit Commitment
to make Revolving Advances when such Lenders would not otherwise be required to do so
without the prior written consent of the Revolving Required Lenders. In addition, the
definition of “Term Required Lenders” cannot be amended without the unanimous written
consent of all Lenders holding Term Commitments and Term Advances.




     (b) In addition, without the consent of each of the Revolving Required Lenders and the
Term Required Lenders voting as separate Classes no amendment or waiver shall (i) amend or
waive the provisions in Sections 2.07(c) and (b), 2.10(a) and (e) or 2.16 regarding the pro
rata treatment, the order of application of proceeds and the sharing of payments or (ii)
permit other Indebtedness (other than under this Agreement) to have a Lien on any
Collateral.




     (c) Any amendment to a covenant of the Parent or any of its Subsidiaries or amendment
to a definition shall require the Borrower’s written consent.



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     (d) Notwithstanding the foregoing, the Administrative Agent and the Borrower (without
the consent of any other Lender or the Issuing Bank) may enter into amendments of any Credit
Document solely with respect to corrections of formal defects not having any economic
impact.



     Section 10.02 Notices, Etc.




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




     (i) if to the Borrower, the Administrative Agent or the Issuing Bank, to the
address, telecopier number, electronic mail address or telephone number specified
for such Person on Schedule 10.02; and




     (ii) if to any other Lender, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire.


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





     (b) Electronic Communications. Notices and other communications to the Lenders
and the Issuing Bank hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to service of
process or to (i) notices delivered pursuant to Section 5.05(e) and (ii) notices to any
Lender or the Issuing Bank pursuant to Article II if such Lender or the Issuing
Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices or
communications.


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





     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR
OMISSIONS FROM THE MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH THE MATERIALS OR THE PLATFORM. In no event shall
the Administrative Agent or any of its Related Parties (collectively, the



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“Agent Parties”) have any liability to the Borrower, any Lender, the Issuing
Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative
Agent’s transmission of Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however,
that in no event shall any Agent Party have any liability to the Borrower, any Lender, the
Issuing Bank or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).




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




     (e) Reliance by Administrative Agent, Issuing Bank and Lenders. The
Administrative Agent, the Issuing Bank and the Lenders shall be entitled to rely and act
upon any notices (including telephonic Borrowing notices) purportedly given by or on behalf
of the Borrower even if (i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation
thereof. The Borrower shall indemnify the Administrative Agent, the Issuing Bank, each
Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent, and each of the
parties hereto hereby consents to such recording.



     Section 10.03 No Waiver; Remedies. No failure on the part of any Lender, any Agent,
or any Issuing Bank 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
provided in this Agreement and the other Credit Documents are cumulative and not exclusive of any
remedies provided by law. Notwithstanding anything to the contrary contained herein or in any
other Credit Document, the authority to enforce rights and remedies hereunder and under the other
Credit Documents against the Loan Parties or any of them shall be vested exclusively in, and all
actions and proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit
of all the Lenders and the Issuing Bank; provided, however, that the foregoing shall not prohibit
(a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure
to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other
Credit Documents, (b) the Issuing Bank from exercising the rights and remedies that inure to its
benefit (solely in its capacity as Issuing Bank) hereunder and under the other Credit Documents,
(c) any Lender from exercising setoff rights in accordance with the terms of this Agreement, or (d)
any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during
the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder and under
the other Credit Documents, then (i) the Required Lenders shall have the rights otherwise ascribed
to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth
in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.16, any Lender may,
with the



79









 







consent of the Required Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders.



     Section 10.04 Costs and Expenses. The Borrower agrees to pay on demand all
out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution, delivery, due diligence, administration, modification and amendment of this Agreement,
the Notes and the other Credit Documents and syndication of the Obligations including, without
limitation, (a) the reasonable fees and out-of-pocket expenses of Moore & Van Allen PLLC, counsel
for the Administrative Agent, and (b) all reasonable out-of-pocket costs and expenses, if any, of
the Administrative Agent, Issuing Bank, and each Lender (including, without limitation, reasonable
counsel fees and expenses of the Administrative Agent, such Issuing Bank, and each Lender) in
connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement and the other Credit Documents, and (c) to the extent not included in the foregoing,
the costs of any local counsel, travel expenses, Appraisals, Engineering Reports, Environmental
Reports, Title Policies, mortgage and intangible taxes (if any), and any title or Uniform
Commercial Code search costs, any flood plain search costs, insurance consultant costs and other
costs usual and customary in connection with a credit facility of this type.



     Section 10.05 Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower and the Administrative Agent, and when the Administrative Agent
shall have, as to each Lender, either received a counterpart hereof executed by such Lender or been
notified by such Lender that such Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent, Issuing Bank, and each Lender and
their respective successors and assigns, except that the Borrower shall not have the right to
assign its rights or delegate its duties under this Agreement or any interest in this Agreement
without the prior written consent of each Lender.



     Section 10.06 Successors and Assigns; Participations and Assignments.




     (a) This Agreement shall be binding upon and inure to the benefit of Parent, the
Borrower, the Lenders, the Administrative Agent, all future holders of the Advances and
their respective successors and assigns, except that the Borrower may not assign or transfer
any of its rights or obligations under this Agreement without the prior written consent of
the Administrative Agent and each Lender.




     (b) Any Lender may, without the consent of the Borrower or any other Person, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a “Participant”) participating interests in
any Advance owing to such Lender, any Commitment of such Lender or any other interest of
such Lender hereunder and under the other Credit Documents. In the event of any such sale
by a Lender of a participating interest to a Participant, such Lender’s obligations under
this Agreement to the other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such Lender shall remain the
holder of any such Advance for all purposes under this Agreement and the other Credit
Documents, and the Borrower, the Arranger and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement and the other Credit Documents. In no event shall any
Participant under any such participation have any right to approve any amendment or waiver
of any provision of any Credit Document, or any consent to any departure by any Advance
Party therefrom, except to the extent that such amendment, waiver or consent would require
the consent of each “directly modified” Lender pursuant to Section 10.01(a). The Borrower
agrees that if amounts outstanding under this Agreement and the Advances are due or unpaid,
or shall have been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by applicable law,
be deemed to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 8.06(a) as fully as if
such Participant were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.08, 2.09, 2.11 and 10.07 with respect to its
participation in the Commitments and the Advances outstanding from time to time as if such
Participant were a Lender; provided that, in the case of Section 2.11, such
Participant shall have complied with the requirements of said Section, and provided,
further, that no Participant shall be entitled to receive



80









 







any greater amount pursuant to any such Section than the transferor Lender would have
been entitled to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred. In addition, each
transferor Lender selling a participation to a Participant under this Section 10.06(b): (i)
shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c),
of each such Participant, specifying such Participant’s entitlement to payments of principal
and interest with respect to such participation, and (ii) shall collect from each such
Participant the appropriate forms, certificates and statements described in Section 2.11
(and updated as required by Section 2.11) as if such Participant were a Lender under Section
2.11.




     (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon
written notice to the Administrative Agent, at any time and from time to time assign to any
Lender or any affiliate, Related Fund or Control Investment Affiliate thereof or, with the
consent of the Borrower (to the extent no Default or Event of Default is then-continuing),
which consent of the Borrower shall not be unreasonably withheld or delayed, and the
Administrative Agent and, in the case of any assignment of Revolving Commitments, the
written consent of the Issuing Bank (which, in each case, shall not be unreasonably withheld
or delayed) (provided (y) that no such consent need be obtained by the
Administrative Agent or its affiliates and (z) the consent of neither the Administrative
Agent nor the Borrower need be obtained with respect to any assignment of funded Term
Advances), to an additional Eligible Assignee all or any part of its rights and obligations
under this Agreement pursuant to an Assignment and Assumption, substantially in the form of
Exhibit C, executed by such Eligible Assignee and such Assignor (and, where the consent of
the Borrower, the Administrative Agent or the Issuing Bank is required pursuant to the
foregoing provisions, by the Borrower and such other Persons) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided that
(A) no such assignment to an Eligible Assignee (other than, in each case, any Lender or any
affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (in the
case of the Term Loan Facility) or $5,000,000 (in the case of the Revolving Credit
Facility), unless (1) otherwise consented to by the Borrower (so long as no Default or Event
of Default is then-continuing) and the Administrative Agent, which such consents shall not
be unreasonably withheld or delayed or (2) such assignment represents an assignment of all
of a Lender’s interests under this Agreement and (B) if the Assignor shall retain any
Advances or Commitments after giving effect to such assignment such Advances and Commitments
shall, unless otherwise agreed by the Borrower and the Administrative Agent, be in an
aggregate principal amount of not less than $1,000,000 (in the case of the Term Loan
Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Any such
assignment need not be ratable as among the Revolving Credit Facility and Term Loan
Facility. Upon such execution, delivery, acceptance and recording in the Register, from and
after the effective date determined pursuant to such Assignment and Assumption, (x) the
Eligible Assignee thereunder shall be a party hereto (with respect to the interest assigned)
and, to the extent provided in such Assignment and Assumption, have the rights and
obligations of a Lender hereunder with Commitments and/or Advances as set forth therein, in
addition to any rights and obligations theretofore held by it as a Lender, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be
released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of an Assignor’s rights and obligations under this Agreement, such
Assignor shall cease to be a party hereto, except as to Section 2.09, 2.11 and 10.04 and
10.07 in respect of the period prior to such effective date). Notwithstanding any provision
of this Section, the consent of the Borrower shall not be required for any assignment that
occurs at any time when any Event of Default shall have occurred and be continuing. For
purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments
by or to two or more Related Funds shall be aggregated.




     (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address
referred to in Section 10.02 a copy of each Assignment and Assumption delivered to it and a
register (the “Register”) for the recordation of the name and address of each Lender
and each Issuing Bank, each Lender’s Commitment, each Lender’s and each Issuing Bank’s
interest in each Advance, each Letter of Credit and each Letter of Credit Obligation, and in
the right to receive any payments hereunder and any assignment of any such interest or
rights. The entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent, the Lenders and the Issuing Banks shall treat
each Person whose name is recorded in the Register as the owner of the Advances, any Notes
evidencing such Advances and any Reimbursement Obligation recorded therein for all purposes
of this Agreement.



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Any assignment of any Advance, whether or not evidenced by a Note, shall be effective
only upon appropriate entries with respect thereto being made in the Register (and each Note
shall expressly so provide). Any assignment or transfer of all or part of an Advance
evidenced by a Note shall be registered on the Register only upon surrender for registration
of assignment or transfer of the Note evidencing such Advance, accompanied by a duly
executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the designated Eligible Assignee, and the old Notes
shall be returned by the Administrative Agent to the Borrower marked “canceled”. The
Register shall be available for inspection by the Borrower, any Lender (with respect to any
entry relating to such Lender’s Advances) or any Issuing Bank (with respect to any entry
relating to the Borrower’s Letter of Credit Obligations owed to such Issuing Bank) at any
reasonable time and from time to time upon reasonable prior notice.




     (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an
Eligible Assignee (and, in any case where the consent of any other Person is required by
Section 10.06(c), by each such other Person) together with payment to the Administrative
Agent of a registration and processing fee of $3,500 (if required by the Administrative
Agent and, in any case treating multiple, simultaneous assignments by or to two or more
Related Funds as a single assignment), the Administrative Agent shall (i) promptly accept
such Assignment and Assumption and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of such acceptance
and recordation to the Borrower. On or prior to such effective date, the Borrower, at its
own expense, upon request, shall execute and deliver to the Administrative Agent (in
exchange for the Revolving Note, PIK Obligation Notes and/or applicable Term Notes, as the
case may be, of the assigning Lender) a new Revolving Note, PIK Obligation Note and/or
applicable Term Notes, as the case may be, to the order of such Eligible Assignee and its
registered assigns in an amount equal to the Revolving Commitment and/or applicable Term
Advances, as the case may be, assumed or acquired by it pursuant to such Assignment and
Assumption and, if the Assignor has retained a Revolving Commitment, PIK Obligation and/or
Term Advances, as the case may be, upon request, a new Revolving Note, PIK Obligation Note
and/or Term Notes, as the case may be, to the order of the Assignor and its registered
assigns in an amount equal to the Revolving Commitment, PIK Obligation and/or applicable
Term Advances, as the case may be, retained by it hereunder. Such new Note or Notes shall
be dated the Effective Date and shall otherwise be in the form of the Note or Notes replaced
thereby.




     (f) For the avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section concerning assignments of Advances and Notes relate only to
absolute assignments and that such provisions do not prohibit assignments creating security
interests in Advances and Notes, including any pledge or assignment by a Lender of any Loan
or Note to (i) any Federal Reserve Bank in accordance with applicable law, (ii) any holder
of, or trustee for the benefit of, the holders of such Lender’s securities or (iii) any SPC
to which such Lender granted an option pursuant to clause (g) below.




     (g) Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle (an
“SPC”), identified as such in writing from time to time by the Granting Lender to
the Administrative Agent and the Borrower, the option to provide to the Borrower all or any
part of any Advance that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Advance, the
Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The
making of a Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is one year
and one day after the payment in full of all outstanding commercial paper or other
indebtedness of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any state thereof. In
addition, notwithstanding anything to the contrary in this Section 10.06(g), any SPC may (A)
with notice to, but



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without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any
Advances to the Granting Lender, or with the prior written consent of the Borrower and the
Administrative Agent (which consent shall not be unreasonably withheld) to any financial
institutions providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Advances, and (B) disclose on a confidential basis any
non-public information relating to its Advances to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC;
provided that non-public information with respect to the Borrower may be disclosed
only with the Borrower’s consent which will not be unreasonably withheld. This paragraph
(g) may not be amended without the written consent of any SPC with Advances outstanding at
the time of such proposed amendment. In addition, each Granting Lender granting an SPC the
option to provide to the Borrower all or any part of any Advance that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to this Agreement, (i) shall
keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of
each SPC which has funded all or any part of any Advance that such Lender would have
otherwise been obligated to make to the Borrower pursuant to this Agreement, specifying such
SPC’s entitlement to payments of principal and interest with respect to such Advance and
(ii) shall collect, prior to the time such SPC receives payments with respect to such funded
Advance, from each SPC the appropriate forms, certificates and statements described in
Section 2.11 (and updated as required by Section 2.11) as if such SPC were a Lender under
Section 2.11, and each SPC that assigns all or a portion of its interests in any Advance to
any financial institution pursuant to this Section 10.06(g), (i) shall keep a register,
meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such financial
institution, specifying such financial institution’s entitlement to payments of principal
and interest with respect to such Advance and (ii) shall collect, prior to the time such
financial institution receives payments with respect to such funded Advance, from each such
financial institution the appropriate forms, certificates and statements described in
Section 2.11 (and updated as required by Section 2.11) as if such financial institution were
a Lender under Section 2.11.




     (h) For purposes of this Section 10.06, if an Issuing Bank transfers its rights with
respect to the Borrower’s Reimbursement Obligation with respect to a Letter of Credit, (i)
such Issuing Bank shall give the Borrower and the Administrative Agent notice of such
transfer for notation in the Register, (ii) each such transfer may only be made upon
notation of such transfer in Register, and (iii) no such transfer will be effective for
purposes of this Agreement unless it has been recorded in the Register.



     Section 10.07 Indemnification. The Borrower agrees (a) to pay, indemnify, or
reimburse each Lender, the Arranger, the Administrative Agent and their respective Related Parties
for, and hold each Lender, the Arranger, the Administrative Agent and such Related Parties harmless
from, any and all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Commitments, this Agreement,
any of the other Credit Documents or any documents contemplated by or referred to herein or therein
or the transactions, and (b) to pay, indemnify or reimburse each Lender, the Arranger, the
Administrative Agent and their respective Related Parties (each, an “Indemnitee”) for, and
hold each Indemnitee harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of the Commitments, this Agreement, any of the other Credit Documents or any
documents contemplated by or referred to herein or therein or the transactions, including any of
the foregoing relating to the use of proceeds of the Advances or the violation of, noncompliance
with or liability under, any Environmental Law applicable to the operations of the Parent, the
Borrower any of its Subsidiaries or any of the Properties or the use by unauthorized Persons of
information or other materials sent through electronic telecommunications or other information
transmission systems that are intercepted by such Persons and the fees and disbursements and other
charges of legal counsel in connection with claims, actions or proceedings by any Indemnitee
against the Borrower hereunder (all the foregoing in this clause (b), collectively, the
“Indemnified Liabilities”), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities (i) to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee or
(ii) the loss in value to any Lender of any Advance or other



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Obligations held by such Lender unrelated to any actions, penalties, judgments, suits,
noncompliance or violations of law covered by this Section 10.07. No Indemnitee shall be liable
for any damages arising from the use by unauthorized persons of information or other materials sent
through electronic, telecommunications or other information transmission systems that are
intercepted by such persons or for any special, indirect, consequential or punitive damages in
connection with the Revolving Credit Facility or the Term Loan Facility. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so to
waive, all rights for contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature, under or related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section shall be payable not later
than 30 days after written demand therefor. Statements for amounts payable by the Borrower
pursuant to this Section shall be submitted to Christopher L. Bennett (Telephone No. 703-387.3332)
(Fax No. 703-387-3389), at the address of the Borrower set forth in Section 10.02, or to such other
Person or address as may be hereafter designated by the Borrower in a notice to the Administrative
Agent. The agreements in this Section shall survive repayment of the Advances and all other
amounts payable hereunder. Notwithstanding anything contained herein, this Section 10.07 shall not
be construed to expand the obligations of the Borrower for costs and expenses with respect to
counsel for the individual Lenders beyond those set forth in Section 10.04



     Section 10.08 Execution in Counterparts. 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.



     Section 10.09 Survival of Representations, Indemnifications, etc. All representations
and warranties contained in this Agreement or made in writing by or on behalf of the Borrower in
connection herewith shall survive the execution and delivery of this Agreement and the Credit
Documents, the making of the Advances and any investigation made by or on behalf of the Lenders,
none of which investigations shall diminish any Lender’s right to rely on such representations and
warranties. All obligations of the Borrower provided for in Sections 2.08, 2.09, 2.11(c), and
10.07 and the obligations of the Lenders under Section 9.05 shall survive any termination of this
Agreement and repayment in full of the Obligations.



     Section 10.10 Severability. In case one or more provisions of this Agreement or the
other Credit Documents shall be invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of the remaining provisions contained
herein or therein shall not be affected or impaired thereby.



     Section 10.11 Usury Not Intended. It is the intent of the Borrower and each Lender in
the execution and performance of this Agreement and the other Credit Documents to contract in
strict compliance with applicable usury laws, including conflicts of law concepts, governing the
Advances of each Lender including such applicable laws of the State of New York and the United
States of America from time to time in effect. In furtherance thereof, the Lenders and the
Borrower stipulate and agree that none of the terms and provisions contained in this Agreement or
the other Credit Documents shall ever be construed to create a contract to pay, as consideration
for the use, forbearance or detention of money, interest at a rate in excess of the Maximum Rate
and that for purposes hereof “interest” shall include the aggregate of all charges which constitute
interest under such laws that are contracted for, charged or received under this Agreement; and in
the event that, notwithstanding the foregoing, under any circumstances the aggregate amounts taken,
reserved, charged, received or paid on the Advances, include amounts which by applicable law are
deemed interest which would exceed the Maximum Rate, then such excess shall be deemed to be a
mistake and each Lender receiving same shall credit the same on the principal of its Advances (or
if such Advances shall have been paid in full, refund said excess to the Borrower). In the event
that the maturity of the Advances is accelerated by reason of any election of the holder thereof
resulting from any Event of Default under this Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes interest may never
include more than the Maximum Rate and excess interest, if any, provided for in this Agreement or
otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited on the applicable Advances (or, if the applicable Advances
shall have been paid in full, refunded to the Borrower). In determining whether or not the
interest paid or payable under any specific contingencies exceeds the Maximum Rate, the Borrower
and the Lenders shall to the maximum extent permitted under applicable law amortize, prorate,
allocate and spread in equal parts during the period of the full term of the Advances all amounts
considered to be interest under applicable law at any time contracted for, charged, received or



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reserved in connection with the Obligations. The provisions of this Section shall control
over all other provisions of this Agreement or the other Credit Documents which may be in apparent
conflict herewith.



     Section 10.12 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE
GOVERNED BY, CONSTRUED AND ENFORCED, AND ANY DISPUTE BETWEEN THE BORROWER, THE ADMINISTRATIVE
AGENT, ANY LENDER, OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
CREDIT DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK; PROVIDED THAT THE PERFECTION OF THE LIENS OF THE ADMINISTRATIVE AGENT ON THE COLLATERAL
AND THE EXERCISE OF REMEDIES AGAINST THE COLLATERAL SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE APPLICABLE JURISDICTION.



     Section 10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.




     (A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH,
THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN
THE CITY AND COUNTY OF NEW YORK, STATE OF NEW YORK, BUT THE PARTIES HERETO ACKNOWLEDGE THAT
ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK,
NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS
SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE; PROVIDED, HOWEVER (AND NOTWITHSTANDING THE FOREGOING), TO THE
EXTENT ANY OF THE “EXCLUSIVE” COURTS REFERENCED ABOVE REFUSE TO OR ARE UNABLE TO TAKE
JURISDICTION OVER ANY DISPUTES RELATED HERETO, PROCEEDINGS MAY BE BROUGHT IN ANY COURT IN
WHICH JURISDICTION OVER SUCH DISPUTE MAY BE ESTABLISHED.




     (B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT ANY AGENT, ANY LENDER OR ANY
INDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT
IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWER
OR (2) ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON.
THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH
SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).




     (C) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY PROCESS
UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS, PROCESS OR
SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY ANY AGENT OR THE
LENDERS BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER ADDRESSED AS
PROVIDED HEREIN. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY
AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY



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APPLICABLE LAW. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR



     HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY
JURISDICTION SET FORTH ABOVE.




     (D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO VOLUNTARILY AND
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.




     (E) WAIVER OF BOND. THE BORROWER WAIVES THE POSTING OF ANY BOND OTHERWISE
REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO
REALIZE ON THE COLLATERAL ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR
PERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.




     (F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF THIS
SECTION 10.13 AND SECTION 10.20, WITH ITS COUNSEL.



     Section 10.14 Knowledge of Borrower. For purposes of this Agreement, “knowledge of
the Borrower” means the actual knowledge of any of the executive officers and all other Responsible
Officers of the Parent.



     Section 10.15 Lenders Not in Control. None of the covenants or other provisions
contained in the Credit Documents shall or shall be deemed to, give the Lenders the rights or power
to exercise control over the affairs and/or management of the Borrower, any of its Subsidiaries or
any Guarantor, the power of the Lenders being limited to the right to exercise the remedies
provided in the Credit Documents; provided, however, that if any Lender becomes the
owner of any Ownership Interests in any Person, whether through foreclosure or otherwise, such
Lender shall be entitled (subject to requirements of law) to exercise such legal rights as it may
have by being owner of such Ownership Interests in such Person.



     Section 10.16 Headings Descriptive. The headings of the several Sections and
paragraphs of the Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.



     Section 10.17 Time is of the Essence. Time is of the essence under the Credit
Documents.



     Section 10.18 Lender Interest Rate Agreements. As more fully set forth in the
Guaranty and the Security Agreement, if any Lender enters into an Interest Rate Agreement with the
Borrower or the Parent which is permitted by the provisions of Section 5.12, the obligations of
such Person to such Lender under such Interest Rate



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Agreement shall (a) be pari passu with the Obligations and (b) be secured by the Collateral
pursuant to the Security Agreement.



     Section 10.19 NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED TO THE
CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, EACH PERSON PARTY HERETO FOR ITSELF AND ON
BEHALF OF ITS AFFILIATES AGREES THAT THE RECOVERY OF ANY DAMAGES SUFFERED OR INCURRED AS A RESULT
OF ANY BREACH BY ANY PERSON OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED OR INCURRED
AS A RESULT OF THE BREACH BY THE BREACHING PARTY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS
HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT AND IN NO EVENT SHALL THE BREACHING PARTY BE LIABLE TO
ANY NON-BREACHING PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
(INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OR LOST OR
DELAYED PRODUCTION) SUFFERED OR INCURRED BY THE NON-BREACHING PARTY AS A RESULT OF THE BREACH BY
THE BREACHING PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS HEREUNDER OR UNDER ANY
OTHER CREDIT DOCUMENT.



     Section 10.20 USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower hereby agrees to provide such information on request.



     Section 10.21 Reliance on Professional Advisors. It is expressly understood and
agreed that neither the Administrative Agent, nor any Lender, nor any of their respective
Affiliates is undertaking to provide the Borrower or any of its Affiliates with any advice relating
to legal, regulatory, accounting, or tax matters. In furtherance thereof, the Borrower
acknowledges and agree that (a) it and its Affiliates have relied and will continue to rely on the
advice of its and their own legal, regulatory, accounting and tax advisors for all matters relating
to the Credit Documents, the Obligations and otherwise and (b) neither it, nor any of its
Affiliates, has received, or has relied upon, the advice of the Administrative Agent, or any Lender
or any of their respective affiliates or advisors regarding matters of law (including securities
law), regulation, accounting or taxation.



     Section 10.22 Intentionally Omitted.



     Section 10.23 Acknowledgments. Each of the Parent and the Borrower hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;




     (b) neither the Arranger, the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Parent or the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship between the
Arranger, the Administrative Agent and the Lenders, on one hand, and the Parent and the
Borrower, on the other hand, in connection herewith or therewith is solely that of creditor
and debtor; and




     (c) no joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Arranger, the
Administrative Agent and the Lenders or among the Parent, the Borrower and the Lenders.



     Section 10.24 No Advisory or Fiduciary Responsibility. In connection with all aspects
of each transaction contemplated hereby, the Borrower and each other Loan Party acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facilities provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Credit Document)
are an arm’s-length commercial transaction among the



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Borrower, the other Loan Parties and their respective Affiliates, on the one hand, and the
Administrative Agent and the Arranger, on the other hand, and the Borrower and the other Loan
Parties are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated hereby and by the other Credit Documents (including any
amendment, waiver or other modification hereof or thereof); (ii) in connection with the process
leading to such transaction, the Administrative Agent and the Arranger each is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary, for any of the
Borrower, any other Loan Parties or any of their respective Affiliates, stockholders, creditors or
employees or any other Person; (iii) neither the Administrative Agent nor the Arranger has assumed
or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower or any
other Loan Party with respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification hereof or of any
other Credit Document (irrespective of whether the Administrative Agent or the Arranger has advised
or is currently advising any of the Borrower, the other Loan Parties or their respective Affiliates
on other matters) and neither the Administrative Agent nor the Arranger has any obligation to any
of the Borrower, the other Loan Parties or their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Credit Documents; (iv) the Administrative Agent and the Arranger and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrower, the other Loan Parties and their respective Affiliates, and neither the
Administrative Agent nor the Arranger has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the
Arranger have not provided and will not provide any legal, accounting, regulatory or tax advice
with respect to any of the transactions contemplated hereby (including any amendment, waiver or
other modification hereof or of any other Credit Document) and the Borrower and each other Loan
Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate.  The Borrower and each other Loan Party hereby waives and releases, to the
fullest extent permitted by law, any claims that it may have against the Administrative Agent and
the Arranger with respect to any breach or alleged breach of agency or fiduciary duty, other than
with respect to any breach or alleged breach resulting from the gross negligence or willful
misconduct of the Administrative Agent and the Arranger.



     Section 10.25 Confidentiality. Each of the Arranger, the Administrative Agent and the
Lenders agrees to keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as confidential; provided
that nothing herein shall prevent the Arranger, the Administrative Agent or any Lender from
disclosing any such information (a) to the Arranger, the Administrative Agent, any other Lender or
any affiliate of any thereof, (b) to any Participant or Eligible Assignee (each, a
“Transferee”) or prospective Transferee that agrees to comply with the provisions of this
Section or substantially equivalent provisions, (c) to any of its employees, directors, trustees,
agents, attorneys, accountants and other professional advisors who need to know such information in
connection with the performance of their duties and who are advised of the confidential nature
thereof, (d) to any financial institution that is a direct or indirect contractual counterparty in
swap agreements or such contractual counterparty’s professional advisor (so long as such
contractual counterparty or professional advisor to such contractual counterparty agrees to be
bound by the provisions of this Section), (e) upon the request or demand of any Governmental
Authority having jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any Legal Requirement, (g) in
connection with any litigation or similar proceeding, (h) that has been publicly disclosed other
than in breach of this Section, (i) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with respect to such Lender
or (j) in connection with the exercise of any remedy hereunder or under any other Credit Document.



     Section 10.26 Replacement of Existing Credit Facility; Replacement of Lehman Commercial
Paper Inc. as “Administrative Agent”.




     (a) Each of the parties hereto hereby agrees that (a) the outstanding balance of the
obligations under the Existing Credit Facility remain outstanding and constitute Obligations
hereunder (though some of such obligations have been converted from revolving credit
obligations to Term Advances) and (b) this Agreement is an amendment and restatement of the
Existing Credit Facility, all documents, instruments or agreements creating security
interests or liens in favor of the “Administrative Agent” or “Lenders” as defined in the
Existing Credit Facility and securing the obligations thereunder continue to secure the
Obligations under this Agreement (though Bank of America, N.A. shall constitute a



88









 







successor to Lehman Commercial Paper Inc. for purposes of determining the identity of
the Administrative Agent referenced in such documents) and nothing contained herein is
intended to represent a novation of any type with respect to the “Obligations” as defined in
the Existing Credit Facility or with respect to any other Indebtedness evidenced by the
Existing Credit Facility or any documents, instruments or agreements executed in connection
therewith.




     (b) Each of the parties hereto hereby agrees that, effective upon the Effective Date,
(i) Lehman Commercial Paper Inc. is resigning as Administrative Agent under the Existing
Credit Facility and the other Credit Documents and is assigning to Bank of America, N.A.
(and Bank of America, N.A. is assuming from Lehman Commercial Paper Inc.), all of Lehman
Commercial Paper Inc.’s rights and obligations as Administrative Agent hereunder and under
the other Credit Documents and (ii) Lehman Brothers, Inc. is resigning as Sole Lead Arranger
and Sole Book Manager under the Existing Credit Facility and is assigning to Banc of America
Securities LLC (and Banc of America Securities LLC is assuming from Lehman Brothers, Inc.)
all of Lehman Brothers, Inc.’s rights and obligations as Sole Lead Arranger and Sole Book
Manager hereunder; provided that under no circumstances does Bank of America, N.A.
nor Banc of America Securities LLC assume, nor shall any such entity be deemed to assume or
be responsible for (i) any obligations of the Administrative Agent or Sole Lead Arranger or
Sole Book Manager under or pursuant to any credit document under the Existing Credit
Facility arising prior to the Effective Date or (ii) any claim of any nature arising at any
time or from time to time against Lehman Commercial Paper Inc. as Administrative Agent or in
any other capacity under or with respect to this Agreement or any other Credit Document or
the transactions contemplated hereby or thereby or against Lehman Brothers, Inc. as Sole
Lead Arranger or Sole Book Manager or in any other capacity under or with respect to this
Agreement or any other Credit Document or the transactions contemplated hereby or thereby.




     (c) Each of the parties hereto waives any notice requirement provided for under the
Existing Credit Agreement and any other Credit Document (as defined in the Existing Credit
Agreement) in respect of Lehman Commercial Paper Inc.’s resignation as Administrative Agent
and Collateral Agent under the Existing Credit Agreement and any other Credit Document (as
defined in the Existing Credit Agreement).



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SENIOR SECURED CREDIT AGREEMENT




     EXECUTED as of the date first referenced above.



	 	 	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 	 	 
	 	 	INTERSTATE OPERATING COMPANY, LP
	 
	 	 	 	 	 	 
	 	 	By:	 	Interstate Hotels & Resorts, Inc., its
general partner
	 
	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Bruce Riggins
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Bruce Riggins
	 

	 	 	 	Title:
	 	Chief Financial Officer







 









 








SIGNATURE PAGE OF

SENIOR SECURED CREDIT AGREEMENT




	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Anne M. Zeschke
	 

	 	 	 	 
	 

	 	Name:
	 	Anne M. Zeschke
	 

	 	Title:
	 	Vice President






	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Michael D. Brannan
	 

	 	 	 	 
	 

	 	Name:
	 	Michael D. Brannan
	 

	 	Title:
	 	Senior Vice President







 









 








SIGNATURE PAGE OF

SENIOR SECURED CREDIT AGREEMENT




	 	 	 	 	 
	 	 	LEHMAN COMMERCIAL PAPER INC.,

as Debtor and Debtor in Possession in its chapter
11 case in the United States Bankruptcy Court for
the Southern District of New York, Case No. 08-
13555 (JMP)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jeffrey Fitte
	 

	 	 	 	 
	 

	 	Name:
	 	Jeffrey Fitte
	 

	 	Title:
	 	Authorized Signatory






 









 






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SENIOR SECURED CREDIT AGREEMENT




	 	 	 	 	 
	 	 	CALYON NEW YORK BRANCH
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jason Chrein
	 

	 	 	 	 
	 

	 	Name:
	 	Jason Chrein
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Joseph A. Asciolla
	 

	 	 	 	 
	 

	 	Name:
	 	Joseph A. Asciolla
	 

	 	Title:
	 	Managing Director






 









 






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	 	 	Capmark Finance Inc.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ R. Stephen Power
	 

	 	 	 	 
	 

	 	Name:
	 	R. Stephen Power
	 

	 	Title:
	 	Vice President






 









 






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	 	 	Emigrant Realty Finance, LLC
	 
	 	 	 	 
	 

	 	By:
	 	/s/ William E. Schachat
	 

	 	 	 	 
	 

	 	Name:
	 	William E. Schachat
	 

	 	Title:
	 	Managing Director






 









 






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	 	 	GE BUSINESS FINANCIAL SERVICES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Carl C. Jacobson
	 

	 	 	 	 
	 

	 	Name:
	 	Carl C. Jacobson
	 

	 	Title:
	 	Authorized Signatory






 









 






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SENIOR SECURED CREDIT AGREEMENT




	 	 	 	 	 
	 	 	ORIX FINANCE CORP.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Christopher L. Smith
	 

	 	 	 	 
	 

	 	Name:
	 	Christopher L. Smith
	 

	 	Title:
	 	Authorized Representative






 









 






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	 	 	ROYAL BANK OF CANADA
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Daniel LePage
	 

	 	 	 	 
	 

	 	Name:
	 	Daniel LePage
	 

	 	Title:
	 	Authorized Signatory






 









 






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	 	 	SOCIETE GENERALE
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Jerry Parisi
	 

	 	 	 	 
	 

	 	Name:
	 	Jerry Parisi
	 

	 	Title:
	 	Managing Director






 









 






SIGNATURE PAGE OF

SENIOR SECURED CREDIT AGREEMENT




	 	 	 	 	 
	 	 	WACHOVIA BANK, N.A.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stephanie Micua
	 

	 	 	 	 
	 

	 	Name:
	 	Stephanie Micua
	 

	 	Title:
	 	Vice President