**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 
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**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 ofLehman Commercial Paper Inc. as “Administrative Agent”  88 
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**EXHIBITS:**     Exhibit A-1 - Form of Revolving NoteExhibit A-2 - Form of Term NoteExhibit A-3 - Form of PIK Obligation NoteExhibit B - Form of Administrative QuestionnaireExhibit C - Form of Assignment and AssumptionExhibit D - Form of Compliance CertificateExhibit E - Form of Environmental IndemnityExhibit E-2 - Form of Affirmation and Amendment of Environmental Indemnification AgreementExhibit F - Form of GuarantyExhibit F-2 - Form of Affirmation and Amendment of Guaranty and Contribution AgreementExhibit G - Form of Notice of BorrowingExhibit H - Form of Notice of Conversion or ContinuationExhibit I - Form of Security AgreementExhibit I-2 - Form of Affirmation and Amendment of Security AgreementExhibit J - Form of Lender Addendum**SCHEDULES:**     Schedule 1.01-1 - Schedule of Lenders and CommitmentsSchedule 1.01(a) - Approved Inter-Company IndebtednessSchedule 1.01(b) - Non-Pledged Ownership InterestsSchedule 1.01(c) - Existing Management AgreementsSchedule 1.01(d) - Existing Owned Hospitality Property InvestmentsSchedule 1.01(e)(i) - Certain Non-GuarantorsSchedule 1.01(e)(ii) - GuarantorsSchedule 4.01 - SubsidiariesSchedule 4.07 - LitigationSchedule 4.11 - Pension PlansSchedule 4.14 - Environmental ConditionSchedule 4.15 - Legal Requirements; Zoning; Utilities; AccessSchedule 4.16(a) - Existing Indebtedness and Interest Rate AgreementsSchedule 4.16(b) - Existing Letters of CreditSchedule 4.21 - Owned Hospitality PropertiesSchedule 4.23(a) - Insurance Companies, Insurance Licenses and Deposited SecuritiesSchedule 4.23(e) - Insurance Contracts and Reinsurance ContractsSchedule 5.07 - Required Insurance CoverageSchedule 6.06-1 - Existing InvestmentsSchedule 6.06-2 - Existing Committed InvestmentsSchedule 10.02 - Borrower/Administrative Agent Notice Addresses
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**FIRST AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT**     **THIS FIRST AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT**(as the same may be, from timeto time, further amended, restated, supplemented or modified, this “Agreement”), dated asof 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 (asdefined 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 CreditFacility;     **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, alldocuments, 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 theobligations thereunder continue to secure the Obligations under this Agreement (though Bank ofAmerica, N.A. shall constitute a successor to Lehman Commercial Paper Inc. for purposes ofdetermining the identity of the Administrative Agent referenced in such documents), this amendmentand restatement does not represent a novation with respect to the “Obligations” under the ExistingCredit Facility and the outstanding balance of the obligations under the Existing Credit Facilityremain outstanding and constitute Obligations hereunder (though some of such obligations have beenconverted from revolving credit obligations to Term Advances);     **WHEREAS,**effective upon the Effective Date (and subject to the other terms and conditions setforth herein) (a) Lehman Commercial Paper Inc. is resigning as Administrative Agent under theExisting 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 CommercialPaper Inc.’s rights and obligations as Administrative Agent hereunder and under the other CreditDocuments and (b) Lehman Brothers Inc. is resigning as Sole Lead Arranger and Sole Book Managerunder the Existing Credit Facility and is assigning to Banc of America Securities LLC (and Banc ofAmerica Securities LLC is assuming from Lehman Brothers, Inc.) all of Lehman Brothers, Inc.’srights and obligations as Sole Lead Arranger and Sole Book Manager hereunder;     **NOW, THEREFORE, IN CONSIDERATION**of the mutual covenants and agreements herein contained, andother 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 termsshall have the following meanings (unless otherwise indicated, such meanings to be equallyapplicable to both the singular and plural forms of the terms defined):     “Acceptable Lien” means a Lien which (a) exists in favor of the Administrative Agentfor its benefit and the ratable benefit of the Lenders, (b) secures the Obligations and (c) isperfected and enforceable against all Persons in preference to any rights of any Person in theproperty 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 besubordinate to the Liens securing any Indebtedness of such Unconsolidated Entity.     “Accession Agreement” means an Accession Agreement in the form attached respectivelyto the Guaranty, Environmental Indemnity and Security Agreement as Annex 1 thereto, whichagreement causes the Person
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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., asamended from time to time, or any successor statute.     “Adjusted Base Rate” means for any day a fluctuating rate per annum equal to thehighest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for suchday as publicly announced from time to time by Bank of America as its “prime rate” and (c) theEurodollar Rate plus 1.0%.  “Prime Rate” means the rate of interest in effect for such day aspublicly announced from time to time by Bank of America as its “prime rate.”  The “prime rate” is arate set by Bank of America based upon various factors including Bank of America’s costs anddesired return, general economic conditions and other factors, and is used as a reference point forpricing some loans, which may be priced at, above, or below such announced rate.  Any change insuch rate announced by Bank of America shall take effect at the opening of business on the dayspecified in the public announcement of such change.     “Adjusted Base Rate Advance” means an Advance which bears interest as provided inSection 2.06(a)(i).     “Adjusted Net Worth” means, for the Parent as of any date, the sum of (a) the Parent’sNet Worth on such date plus (b) the minority interest reflected as a liability on theParent’s balance sheet on such date determined in accordance with GAAP (excluding that portion ofthe minority interest attributable to Ownership Interests in any Subsidiary of the Borrower whichis not a Guarantor).     “Administrative Agent” means Bank of America, N.A., in its capacity as AdministrativeAgent for the Lenders pursuant to Article IX and any successor Administrative Agent appointedpursuant to Section 9.09.     “Administrative Questionnaire” means an Administrative Questionnaire in substantiallythe 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 “controlledby” or “under common control with”) means the possession, directly or indirectly, of the power todirect or cause the direction of the management and policies of a Person, whether through ownershipof a Control Percentage, by contract or otherwise.     “Aggregate Facility Amount” means, as of any date, an amount equal to (a) theRevolving Exposure plus the then-unfunded Revolving Commitments; plus (b) the then-outstandingamount 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 thisagreement.     “Applicable Lending Office” means, with respect to each Lender, (a) in the case of anAdjusted Base Rate Advance, such Lender’s Domestic Lending Office, (b) in the case of allEurodollar Rate Advances, such Lender’s Eurodollar Lending Office, and (c) in the case of any othernotice or request under the Credit Documents, the office of such Lender specified as its “CreditContact” in the questionnaire such Lender provided to the Administrative Agent, or such otheroffice of such Lender as such Lender may from time to time specify to the Borrower and theAdministrative Agent.     “Applicable Margin” means, (a) with respect to any Advance at any date, the applicablepercentage 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 applicablepercentage per annum set forth below under the
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column for Eurodollar Rate Advances (in each case, subject to adjustment in connection withthe 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 ofFIRREA, prepared by an independent third party appraiser holding an MAI designation, who is Statelicensed 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 theBorrower and its Subsidiaries that is approved by the Administrative Agent pursuant to and inaccordance with the terms of Section 5.14(a), in each case as the same may be revised or updatedpursuant to the terms of Section 5.14(b).     “Approved Inter-Company Indebtedness” means the Indebtedness described on Schedule1.01(a) or Indebtedness in an amount not to exceed $16,000,000 entered into between the Borrowerand a wholly-owned Foreign Subsidiary subject to the Borrower’s corporate organizational plans thathave been approved by the Administrative Agent (in its reasonable discretion), which Indebtednessis, 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 onSchedule 1.01(a), together with any additional promissory notes or other documents evidencingApproved Inter-Company Indebtedness.     “Arlington Property” means the Arlington Hilton in Arlington, Texas.     “Arranger” means Banc of America Securities LLC, together with its successors andassigns in such capacity.     “Asset Disposition” means any conveyance, exchange, transfer, assignment, orcondemnation of any Investment or Non-Replaced Property by the Borrower, a Guarantor or anySubsidiary 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 notconstitute an Asset Disposition and (b) the conveyance, exchange or transfer or any real propertyinterests held by a wholly-owned Subsidiary of the Borrower to another wholly-owned Subsidiary ofthe Borrower in connection with the consummation of a mortgage financing otherwise permittedhereunder shall not constitute an Asset Disposition.     “Assignment and Assumption” means an assignment and assumption entered into by aLender and an Eligible Assignee, and accepted by the Administrative Agent, in substantially theform of the attached Exhibit C.     “Assignment of Leases” means an assignment of leases, rents and security depositsexecuted by the Borrower or any Guarantor to secure the Obligations, each in form reasonablyapproved by the Administrative Agent with such modifications as may be necessary and appropriate inthe opinion of counsel to the Administrative Agent to comply with the state law of the filingjurisdiction and as may be reasonably satisfactory to the Administrative Agent, as the same may beamended or terminated in accordance with its terms.     “Beverage Entity” means any Subsidiary or Unconsolidated Entity of the Parent forwhich substantially all of such Person’s Property is directly related to the sale of beverages at aHospitality Property, and “Beverage Entities” means all such Persons.     “Borrower” means Interstate Operating Company, LP, a Delaware limited partnership.
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     “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 Advancepursuant to Section 2.01(c) or (b) Converted by each Lender to Advances of a different Typepursuant to Section 2.02(b).     “Business Day” means any day other than a Saturday, Sunday or other day on whichcommercial banks are authorized to close under the laws of, or are in fact closed in, the statewhere the Administrative Agent’s office is located or in New York City, New York and, if such dayrelates 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 theLondon interbank eurodollar market.     “Capital Expenditure” means any payment made directly or indirectly for the purpose ofacquiring or constructing fixed assets, real property, improvements, equipment, or other personalproperty, or for replacements or substitutions therefore or additions thereto, which in accordancewith 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 saleor other title retention agreement or under any Capital Lease, but excluding repairs or maintenanceof any Hospitality Property in the normal and ordinary course of business in keeping with the pastpractices 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 beaccounted 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 itsSubsidiaries of equity securities except for (a) the issuance of the Borrower’s limited partnershipinterests in accordance with the provisions of Section 6.05(e)(ii), (b) the issuance by the Parentof equity securities within 90 days after the Effective Date and (c) the sale or issuance by theParent of any of its equity securities pursuant to the exercise of options granted pursuant to theParent’s stock option plans for employees and directors.     “Capitalized Lease Obligations” means, as to any Person, the capitalized amount of allobligations of such Person or any of its Subsidiaries under any Capital Lease, as determined on aconsolidated basis in conformity with GAAP.     “Cash Collateral Account” means a special cash collateral account containing cashdeposited pursuant to the terms of this Agreement to be maintained at the Administrative Agent’soffice in accordance with Section 8.04.     “CERCLA” means the Comprehensive Environmental Response, Compensation, and LiabilityAct of 1980, as amended, all rules and regulations and requirements thereunder in each case as nowor hereafter in effect.     “Change in Control” means for any Person a change in ownership or control of suchPerson effected through either of the following transactions:     (a) any Person or related group of Persons (other than such Person or an Affiliate ofsuch Person) directly or indirectly acquires beneficial ownership (within the meaning ofRule 13d-3 under the Securities Exchange Act of 1934, as amended) of securities possessingmore than fifty percent (50%) of the total combined voting power of such Person’soutstanding securities; or     (b) there is a change in the composition of such Person’s Board of Directors over aperiod 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 forthe election of Board members, to be comprised of individuals who either (i) have been Boardmembers continuously since the beginning of such period or (ii) have been elected ornominated for election as Board members during such period by at least a majority of theBoard members described in clause (i) who were still in office at the time such election ornomination was approved by the Board.     “Class” has the meaning set forth in Section 1.04.
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     “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 thefollowing, whether owned on or acquired after the Effective Date: (a) the Ownership Interests ofall existing Subsidiaries and Unconsolidated Entities of the Parent and the Borrower and any futureMaterial Subsidiary or Material Unconsolidated Entity except for (i) the Ownership Interests inBeverage Entities and (ii) the Ownership Interests in Excepted Foreign Subsidiaries (the OwnershipInterests 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 ApprovedInter-Company Indebtedness Loan Documents, and (e) any other collateral described in the SecurityAgreement or other Security Documents; provided that the pledge of such Property is notprohibited by the terms of (i) Permitted Property Agreements, joint venture agreements,organizational documents and other contractual arrangements to which the Borrower or a Subsidiaryis a party and which are in effect on the Effective Date, in each case as approved by theAdministrative Agent; (ii) with respect to any Ownership Interests in or Property of a PermittedOther Subsidiary, the loan documentation for any Permitted Other Indebtedness incurred by suchPermitted Other Subsidiary; and (iii) with respect to any Ownership Interests in an UnconsolidatedEntity, the loan documentation for Indebtedness incurred by such Unconsolidated Entity or jointventure agreements or other contractual arrangements for such Unconsolidated Entity;provided that if at any time such prohibition no longer exists with respect to anyProperty, such Property shall be pledged and/or mortgaged as Collateral pursuant to Sections 5.09and 5.10. The Ownership Interests which cannot be pledged as of the date of this Agreement arethose 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 TermCommitment.     “Compliance Certificate” means a certificate of the Borrower setting forth detailedcalculations of the financial covenants set forth herein, a calculation of whether a Rate IncreasePeriod is then-continuing and detailed calculations of the Borrower’s Leverage Ratio and AdjustedNet Worth, in substantially the form of the attached Exhibit D.     “Consolidated” refers, with respect to any Person, to the consolidation of theaccounts of such Person with such Person’s Subsidiaries in accordance with GAAP.     “Control Investment Affiliate”: means, with respect to any Person, any other Personthat (a) directly or indirectly, is in control of, is controlled by, or is under common controlwith, such Person and (b) is organized by such Person primarily for the purpose of making equity ordebt investments in one or more companies. For purposes of this definition, “control” of a Personmeans the power, directly or indirectly, to direct or cause the direction of the management andpolicies of such Person, whether by contract or otherwise.     “Control Percentage” means, with respect to any Person, the percentage of theoutstanding capital stock of such Person having ordinary voting power which gives the direct orindirect holder of such stock the power to elect a majority of the Board of Directors of suchPerson.     “Controlled Group” means all members of the controlled group of corporations and alltrades or businesses (whether or not incorporated) under common control which, together with theBorrower or any Guarantor, are treated as a single employer under Section 414 of the Code.     “Convert”, “Conversion”, and “Converted” each refers to a conversionof 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 EnvironmentalIndemnities, the Security Documents, the Fee Letter, and each other agreement, instrument ordocument executed by the Borrower or any of its Subsidiaries at any time in connection with thisAgreement.
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     “Currency Agreements” means all swaps, caps or collar agreements or similararrangements providing for protection against fluctuations in currency exchange rates, eithergenerally or under specific contingencies.     “Current Pay Interest” means interest that accrues from time to time pursuant toSection 2.06(a) hereof.     “Customary Management Agreement” means a management agreement for a HospitalityProperty by and between a Person, as owner, and Borrower or Parent’s Subsidiary or UnconsolidatedEntity, as manager, which (a) has a term and early termination payment provisions, if any, whichare 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 includematerially adverse provisions which are not customary for management agreements of HospitalityProperties or such other form as is approved by the Administrative Agent in writing (which approvalshall not be unreasonably withheld).     “Customary Participating Lease” means a lease (except for a Ground Lease) for aHospitality Property by and between a Person, as lessor, and Borrower or Parent’s Subsidiary, aslessee, which (a) has expected economics and a term and early termination payment provisions whichare reasonable based upon the amount of any Investment made to obtain such lease and (b) are in aform which does not include materially adverse provisions which are not customary for participatingleases of Hospitality Properties or such other form as is approved by the Administrative Agent inwriting (which approval shall not be unreasonably withheld).     “Customary Property Agreement” means a Customary Management Agreement or a CustomaryParticipating Lease, and “Customary Property Agreements” means all such agreements andleases.     “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 RollingPeriod and (ii) scheduled payments made during such period on account of principal of Indebtednessof the Parent and its Subsidiaries (other than (A) principal payments required pursuant to theterms hereof, (B) payments made under the Existing Credit Facility and (C) balloon payments ofprincipal due upon the stated maturity of any such Indebtedness or similar principal payment whichrepays or discharges such Indebtedness in full).     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all otherliquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of theUnited States or other applicable jurisdictions from time to time in effect and affecting therights of creditors generally     “Default” means (a) an Event of Default or (b) any event or condition which withnotice 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 theEffective Date hereof: (a) fails to fund any portion of the Advances or participations in Letter ofCredit Obligations required to be funded by it hereunder within one Business Day of the daterequired to be funded by it hereunder unless such failure has been cured or is the subject of agood faith dispute or (b) fails to pay over to the Administrative Agent or any other Lender anyother 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 Dollarsto 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 exchangemarket 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 Lenderspecified as its “Operations Contact” for Adjusted Base Rate Advances in the AdministrativeQuestionnaire such Lender provided to the Administrative Agent, or such other office of such Lenderas such Lender may from time to time specify to the Borrower and the Administrative Agent.
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     “Domestic Subsidiary” means any Subsidiary of the Borrower that is organized under thelaws of any political subdivision of the United States.     “EBITDA” means for any Person or Hospitality Property, as applicable, for any periodfor which such amount is being determined, an amount equal to (a) the Net Income for such Person orHospitality Property, as applicable, for such period plus (b) to the extent deducted indetermining Net Income, interest expense, income taxes, depreciation, and amortization, asdetermined on a Consolidated basis in accordance with GAAP plus (c) to the extent deductedin determining Net Income, deductions for minority interest attributable to the Ownership Interestsin the Borrower not owned (directly or indirectly) by the Parent; provided that, to theextent included in determining Net Income, the EBITDA from any Unconsolidated Entity orMinority-Owned Fund (but not the EBITDA from any Permitted Property Agreement with such Person tothe extent such EBITDA is attributable to the ownership interest of the Borrower or one of itsSubsidiaries in such Unconsolidated Entity or Minority-Owned Fund) shall be excluded from thecalculation of EBITDA.     “Effective Date” means the date all of the conditions precedent set forth in Section3.01 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 RelatedFund (any two or more Related Funds being treated as a single Eligible Assignee for all purposeshereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entitythat is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933) andwhich extends credit or buys loans as one of its businesses; provided that no Affiliate ofParent shall be an Eligible Assignee.     “Engineering Report” means with respect to any Owned Hospitality Property, anengineering report which (a) is prepared for, or is accompanied by a reliance letter for theLenders and the Administrative Agent by a Person reasonably satisfactory to the AdministrativeAgent, (b) is prepared in accordance with a scope of services reasonably satisfactory to theAdministrative Agent, (c) is prepared within three (3) months of the date of acquisition of suchOwned Hospitality Property, and (d) reflects no material concerns pertaining to the physicalcondition of the Owned Hospitality Property, including without limitation the structural,electrical, plumbing, mechanical and other essential components of the Owned Hospitality Propertyother than such concerns as may be addressed by a renovation or repair plan reasonably satisfactoryto the Administrative Agent.     “Environment” or “Environmental” shall have the respective meanings set forthin 42 U.S.C. ‘9601(8), as amended.     “Environmental Claim” means any third party (including governmental agencies andemployees) action, lawsuit, claim, demand, regulatory action or proceeding, order, decree, consentagreement or notice of potential or actual responsibility or violation (including claims orproceedings under the Occupational Safety and Health Acts or similar laws or requirements relatingto health or safety of employees) which seeks to impose liability under any Environmental Law.     “Environmental Indemnity” means one or more environmental indemnity agreements insubstantially the form of the attached Exhibit E executed or to be executed by the Borrower, theParent and all Guarantors, the affirmation and amendment thereof entered into by the parties tosuch 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, asany of such environmental indemnities may be amended hereafter in accordance with the terms of suchagreements.     “Environmental Law” means all Legal Requirements arising from, relating to, or inconnection with the Environment, health, or safety, including without limitation CERCLA, relatingto (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation orrestoration of the air, surface water, groundwater, land surface or subsurface strata, or othernatural 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) thesafety or health of
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employees; or (e) the manufacture, processing, handling, transportation, distribution incommerce, use, storage or disposal of hazardous, medical, infectious, or toxic substances,materials or wastes.     “Environmental Permit” means any permit, license, order, approval or otherauthorization under Environmental Law.     “Environmental Report” means with respect to any Owned Hospitality Property, anenvironmental report which (a) is prepared for, or is accompanied by a reliance letter for, theLenders and the Administrative Agent by a Person reasonably satisfactory to the AdministrativeAgent, (b) is prepared in accordance with a scope of services reasonably satisfactory to theAdministrative Agent, (c) is prepared within three (3) months of the date of acquisition of suchOwned Hospitality Property, and (d) certifies to the Administrative Agent and the Lenders that theOwned Hospitality Property and the soil and the groundwater thereunder do not contain HazardousSubstances except for Permitted Hazardous Substances.     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended fromtime to time.     “Eurodollar Base Rate” has the meaning assigned to such term in the definition of theterm “Eurodollar Rate.”     “Eurodollar Lending Office” means, with respect to any Lender, the office or officesof such Lender specified as its “Operations Contact” for each type of Eurodollar Rate Advance inthe Administrative Questionnaire such Lender provided to the Administrative Agent, or such otheroffice of such Lender as such Lender may from time to time specify to the Borrower and theAdministrative Agent for each type of Eurodollar Rate Advance.     “Eurodollar Rate” means, with respect to each day during each Interest Period (whichshall 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 annumdetermined for such day in an amount equal to the greater of (a) two percent (2.0%) and (b) the perannum rate calculated in accordance with the following formula (rounded upward to the nearest1/100th 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 otherthan as set forth in items (ii) and (iii) below, the rate per annum equal to (A) theBritish Bankers Association LIBOR Rate as published by Reuters (or othercommercially available source providing quotations of BBA LIBOR as designated by theAdministrative 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 aterm equivalent to such Interest Period or (B) if such published rate is notavailable at such time for any reason, the rate determined by the AdministrativeAgent to be the rate at which deposits in Dollars for delivery on the first day ofsuch Interest Period in same day funds in the approximate amount of the EurodollarRate Loan being made, continued or converted by Bank of America and with a termequivalent to such Interest Period would be offered by Bank of America’s LondonBranch to major banks in the London interbank eurodollar market at their request atapproximately 11:00 a.m. (London time) two Business Days prior to the commencementof such Interest Period.     (ii) For any interest rate calculation with respect to the calculation ofAdjusted Base Rate, the rate per annum equal to (A) BBA LIBOR, at approximately11:00 a.m., London time on the date of determination (provided that if such day isnot a London Business Day, the next preceding London Business Day) for Dollardeposits being delivered in the London interbank
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market for a term of one month commencing that day or (B) if such publishedrate is not available at such time for any reason, the rate determined by theAdministrative Agent to be the rate at which deposits in Dollars for delivery on thedate of determination in same day funds in the approximate amount of the Base RateLoan being made, continued or converted by Bank of America and with a term equal toone month would be offered by Bank of America’s London Branch to major banks in theLondon interbank Eurodollar market at their request at the date and time ofdetermination.     (iii) For any calculation of the Eurodollar Rate with respect to Accrued PIKAdvances, 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 forDollar deposits being delivered in the London interbank market for a term of onemonth commencing on such day or (B) if such published rate is not available at suchtime for any reason, the rate determined by the Administrative Agent to be the rateat which deposits in Dollars for delivery on the first London Business Day of thethen-current calendar month in same day funds in the approximate amount of the PIKObligations and with a term equal to one month would be offered by Bank of America’sLondon Branch to major banks in the London interbank Eurodollar market at theirrequest at the date and time of determination.     “Eurodollar Reserve Requirement” means, for any day during any InterestPeriod, the reserve percentage (expressed as a decimal, carried out to five decimalplaces) in effect on such day, whether or not applicable to any Lender, underregulations issued from time to time by the Federal Reserve Board for determiningthe maximum reserve requirement (including any emergency, supplemental or othermarginal reserve requirement) with respect to Eurocurrency funding (currentlyreferred to as “Eurocurrency liabilities”). The Eurodollar Rate for eachoutstanding Eurodollar Rate Advance shall be adjusted automatically as of theeffective date of any change in the Eurodollar Reserve Percentage.     “Eurodollar Rate Advance” means an Advance which bears interest as provided in Section2.06(a)(ii).     “Eurodollar Reserve Requirement” has the meaning assigned to such term in thedefinition 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 whichis a Foreign Subsidiary, which is wholly-owned (directly) by another wholly-owned (directly orindirectly) Foreign Subsidiary of the Borrower or the Parent and which is required, pursuant to itsorganizational documents or contractual arrangements with its parent, to upstream all of its netcash flow to its parent; provided, that, for purposes of clarification, a ForeignSubsidiary of the Borrower or Parent which is not owned by another Foreign Subsidiary of theBorrower 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 partof Net Income, all Net Cash Proceeds received by the Parent or any of its Subsidiaries fromor 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
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     (f) amounts paid during such period with respect to unfinanced Capital Expenditures (tothe extent the same do not exceed the amount provided for in the most-recent ApprovedBudget), less     (g) refinancing fees and expenses paid in cash with respect to Permitted NewIndebtedness, less     (h) the amount of:     (i)  all principal amortization payments made by the Parent and itsSubsidiaries during such period with respect to the Obligations,     (ii) all mandatory principal prepayments on Indebtedness made by the Parent andits Subsidiaries during such period, and     (iii) the amount of non-voluntary scheduled fixed principal payments made bythe Parent and its Subsidiaries during such period with respect to Indebtedness notevidenced by the Loan Documents.     “Exchange Act” means the Securities Exchange Act of 1934, 15 U.S.C., as amended, andthe rules and regulations promulgated thereunder.     “Existing Credit Facility” means the Senior Secured Credit Agreement dated as of March9, 2007 among the Borrower, Lehman Commercial Paper Inc., as administrative agent, and the lendersfrom 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 andAmendment 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 Lettersof 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 byLetters of Credit issued under the Existing Credit Facility and previously allocable to the prorata share held by Lehman Commercial Paper Inc. in the revolving commitments thereunder have notbeen continued hereunder as “Existing Letters of Credit” and have been issued outside the creditfacilities evidenced hereby.     “Existing Management Agreements” means the management agreements for the propertieslisted on Schedule 1.01(c).     “Expiration Date” means, with respect to any Letter of Credit, the date on which suchLetter of Credit will expire or terminate in accordance with its terms.     “Federal Funds Rate” means, for any period, a fluctuating interest rate per annumequal for each day during such period to the weighted average of the rates on overnight Federalfunds transactions with members of the Federal Reserve System arranged by Federal funds brokers, aspublished 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 isa Business Day, the average of the quotations for any such day on such transactions received by theAdministrative 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 orany of its successors.     “Fee Letter” means a collective reference to (a) the letter agreement dated as ofMarch 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 ofAmerica Securities LLC.
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     “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 itsSubsidiaries delivered to the Lenders pursuant to Section 3.01(j).     “Financing Statement” means any Uniform Commercial Code — Financing Statement — FormUCC-1 to be executed (if necessary or desirable) and delivered by the Parent or any of itsSubsidiaries 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 42U.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 Amendmentsand Reauthorization Act of 1986, and the “Fund,” “Trust Fund,” or “Superfund” that are nowmaintained pursuant to 42 U.S.C. ‘9507.     “Fully Satisfied” means, with respect to the Obligations as of any date, that, as ofsuch date, (a) all principal of and interest accrued to such date which constitute Obligationsshall have been irrevocably paid in full in cash, (b) all fees, expenses and other amounts then dueand payable which constitute Obligations shall have been irrevocably paid in cash, (c) alloutstanding Letters of Credit shall have been (i) terminated, (ii) fully irrevocably cashcollateralized or (iii) secured by one or more letters of credit on terms and conditions, and withone or more financial institutions, reasonably satisfactory to the Issuing Bank and (d) theCommitments shall have expired or been terminated in full (in each case, other than inchoateindemnification liabilities arising under the Loan Documents).     “GAAP” means United States generally accepted accounting principles as in effect fromtime to time, applied on a basis consistent with the requirements of Section 1.03.     “Governmental Authority” means any foreign governmental authority, the United Statesof 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 havingjurisdiction over any Lender, the Parent, the Borrower, any Subsidiaries of the Borrower or theParent or any of their respective Properties.     “Ground Lease” means a lease by and between a Person, as lessor, and Borrower orParent’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) thePermitted Other Subsidiaries, (b) the Beverage Entities, (c) certain other non-MaterialSubsidiaries so long as such Subsidiary is prohibited from acting as a Guarantor because of jointventure agreements, organizational documents and other contractual arrangements to which suchnon-Material Subsidiary is a party and which are in effect on the Effective Date and set forth onSchedule 1.01(e)(i), in each case as approved by the Administrative Agent and (d) Subsidiaries withassets and revenues less than $100,000) existing as of the Effective Date, and any future MaterialSubsidiary, and “Guarantors” means all of such Persons. The Guarantors on the EffectiveDate are identified on Schedule 1.01(e)(ii).
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     “Guaranty” means one or more Guaranty and Contribution Agreements in substantially theform of the attached Exhibit F executed by the Guarantors, evidencing the joint and severalguaranty by the signatories thereto of the obligations of Borrower in respect of the CreditDocuments, the affirmation and amendment thereof entered into by the parties to any such Guarantyand Contribution Agreements existing as of the Effective Date in substantially the form of theattached Exhibit F-2, and any future guaranty and contribution agreement executed to secureAdvances, as any of such agreements may be amended hereafter in accordance with the terms of suchagreements.     “Hazardous Substance” or “Hazardous Material” means the substances identifiedas such pursuant to CERCLA and those regulated under any other Environmental Law, including withoutlimitation pollutants, contaminants, petroleum, petroleum products, radio nuclides, radioactivematerials, mold or other fungi, and medical and infectious waste.     “Hazardous Waste” means the substances regulated as such pursuant to any EnvironmentalLaw.     “Hospitality Management Business” shall mean the management, operation or leasing aslessee of any Hospitality Property, including timeshare and condominium sales and brokerage.     “Hospitality Property” shall mean a full service or limited service hotel or resort, acondominium or timeshare hotel or resort, an extended stay property, or a conference center, andother facilities incidental to, or in support of such property, including without limitation,restaurants and other food-service facilities, spas, golf facilities or other entertainmentfacilities 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 faithbelief that the Lender has defaulted in fulfilling its obligations under one or more othersyndicated credit facilities, provided, that all conditions to such obligations have been satisfiedor waived and such failure is not the subject of a good faith dispute or (b) an entity thatcontrols the Lender has been deemed insolvent or become subject to a bankruptcy or other similarproceeding.     “Improvements” for any Owned Hospitality Property means all buildings, structures,fixtures, tenant improvements and other improvements of every kind and description now or hereafterlocated in or on or attached to the Land for such Owned Hospitality Property; and all additions andbetterments thereto and all renewals, substitutions and replacements thereof.     “Indebtedness” means (without duplication), at any time and with respect to anyPerson, (a) indebtedness of such Person for borrowed money (whether by loan or the issuance andsale 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 ofbusiness); (b) indebtedness of others in the amount which such Person has directly or indirectlyassumed or guaranteed or otherwise provided credit support therefore or for which such Person isliable as a partner of such Person; (c) indebtedness of others in the amount secured by a Lien onassets of such Person, whether or not such Person shall have assumed such indebtedness unless thevalidity of such Lien is being contested in good faith and with due diligence by appropriateproceedings, provided that such Lien is subordinate to the Liens created by the SecurityDocuments and such Person shall have delivered a bond or other security acceptable to theAdministrative Agent equal to 125% of the contested amount; (d) obligations of such Person inrespect of letters of credit, acceptance facilities, or drafts or similar instruments issued oraccepted by banks and other financial institutions for the account of such Person (other than tradepayables or bank drafts arising in the ordinary course); (e) Capitalized Lease Obligations of suchPerson; (f) all obligations, contingent or otherwise, of such Person under any synthetic lease, taxretention operating lease, off balance sheet loan or similar off balance sheet financingarrangement if the transaction giving rise to such obligation (1) is considered indebtedness forborrowed money for U.S. federal income tax purposes but is classified as an operating lease underGAAP and (2) does not (and is not required pursuant to GAAP to) appear as a liability on thebalance 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 suchPerson or any other Person, valued at the greater of its voluntary or involuntary liquidationpreference plus accrued and unpaid dividends; (h) all obligations of such Person in respect of anytake-
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out commitment or forward equity commitment (excluding, in the case of the Borrower and itsSubsidiaries, any such obligation that can be satisfied solely by the issuance of OwnershipInterests (other than Mandatorily Redeemable Stock)); and (i) to the extent treated as a liabilityunder GAAP, obligations under interest rate swap agreements, interest rate cap agreements, interestrate collar agreements or other similar agreements or arrangements designed to protect againstfluctuations 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 eachInsurance Company required to be filed with the insurance commissioner (or similar GovernmentalAuthority) of its jurisdiction of incorporation, which statement shall be in the form required bythe 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 similarGovernmental Authority) to be used for filing annual statutory financial statements and shallcontain the type of information permitted by such insurance commissioner (or such similarGovernmental Authority) to be disclosed therein, together with all exhibits or schedules filedtherewith.     “Insurance Contract” means each outstanding insurance contract of each InsuranceCompany.     “Insurance Company” means each of the Borrower, the Parent or their respectiveSubsidiaries that is or acts as an insurance company or provides a guaranty for a Person acting asan insurance company.     “Insurance License” means any license, certificate of authority, permit or otherauthorization which is required to be obtained from any Governmental Authority in connection withthe operation, ownership or transaction of insurance business.     “Insurance Reserve Liabilities” means all reserves and other liabilities with respectto insurance and for claims and benefits incurred but not reported.     “Insurance Surplus” means an estimate of the amount by which an insurance plan’sassets exceed its expected current and future liabilities, including the amount expected to beneeded to fund future benefit payments.     “Intellectual Property” shall have the meaning given such term in the SecurityAgreement.     “Interest Expense” means, for any Person for any period for which such amount is beingdetermined, the total interest expense (including that properly attributable to Capital Leases inaccordance with GAAP) and all charges incurred with respect to letters of credit determined on aConsolidated basis in conformity with GAAP, plus capitalized interest of such Person andits Subsidiaries; provided, however, that “Interest Expense” shall not include any portion ofinterest 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 sameBorrowing, the period commencing on the date of such Advance or the date of the Conversion of anyAdjusted Base Rate Advance into such an Advance and ending on the last day of the period selectedby the Borrower pursuant to the provisions below and Section 2.02 and, thereafter, each subsequentperiod commencing on the last day of the immediately preceding Interest Period and ending on thelast 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 Periodshall be one, two, three or six months for all other Eurodollar Rate Advances, in each case as theBorrower 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 otherthan a Business Day, the last day of such Interest Period shall be extended to occur on thenext succeeding Business Day, provided that if such extension would cause the lastday of such Interest Period to occur in the next following calendar month, the last day ofsuch Interest Period shall occur on the preceding Business Day;
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     (c) any Interest Period which begins on the last Business Day of a calendar month (oron a day for which there is no numerically corresponding day in the calendar month at theend of such Interest Period) shall end on the last Business Day of the calendar month inwhich it would have ended if there were a numerically corresponding day in such calendarmonth;     (d) each successive Interest Period shall commence on the day on which the nextpreceding Interest Period expires; and     (e) no Interest Period with respect to any portion of any Advance shall extend beyondthe Maturity Date.     “Interest Rate Agreements” means any interest rate swap agreement, interest rate capagreement, interest rate collar agreement or other similar agreement or arrangement pertaining tothe fluctuations in interest rates.     “Investment” means, with respect to any Person, (a) any loan or advance to any otherPerson, (b) the ownership, purchase or other acquisition of any Ownership Interests or OwnershipInterest Equivalents in any other Person, (c) any joint venture or partnership with, or any capitalcontribution to, or other investment in, any other Person, including by way of merger, (d) anyCapital Expenditure, and (e) any payment, whether capitalized or not, to acquire a managementagreement or lease (including, without limitation, any Permitted Property Agreement).     “Investment Amount” means (a) for any Owned Hospitality Property the sum of (i) theaggregate purchase price paid by the Borrower or its Subsidiary for such Owned HospitalityProperty, and (ii) the actual cost of any Capital Expenditures for such Owned Hospitality Propertymade 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 fromtime to time), and (b) for any other Investment or Property the aggregate purchase price paid bythe Borrower or its Subsidiary for such other Investment or Property. The Investment Amount shallinclude any Ownership Interests or Ownership Interest Equivalents used to purchase such Investmentat their fair market value at the time of purchase; provided that any such OwnershipInterests or Ownership Interest Equivalents which are convertible into the Parent’s common stockshall be valued at the price at which they could be exchanged into the Parent’s common stockassuming such exchange occurred on the date of acquiring such Investment. Investment Amount shallnot include Indebtedness incurred in connection with an Investment, or any refinancing of suchIndebtedness, unless such Indebtedness was provided by the Parent, the Borrower or one of theirrespective Subsidiaries.     “Issuing Bank” means Bank of America, N.A. or any Lender acting as a successor IssuingBank pursuant to Section 10.06, and “Issuing Banks” means, collectively, all of suchLenders.     “Land” for any Owned Hospitality Property means the real property upon which the OwnedHospitality Property is located, together with all rights, title and interests appurtenant to suchreal property, including without limitation all rights, title and interests to (a) all strips andgores within or adjoining such property, (b) the streets, roads, sidewalks, alleys, and waysadjacent thereto, (c) all of the tenements, hereditaments, easements, reciprocal easementagreements, rights-of-way and other rights, privileges and appurtenances thereunto belonging or inany way pertaining thereto, (d) all reversions and remainders, (e) all air space rights, and allwater, sewer and wastewater rights, (e) all mineral, oil, gas, hydrocarbon substances and otherrights to produce or share in the production of anything related to such property, and (f) allother appurtenances appurtenant to such property, including without limitation, any now orhereafter 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 termsof 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 theEffective Date as provided in Section 10.22.
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     “Lenders” means the lenders who have a Revolving Commitment or a Term Commitment as ofthe Effective Date and each Eligible Assignee that shall become a party to this Agreement pursuantto Section 10.06, and “Lender” means any such Person.     “Letter of Credit” means, individually, any letter of credit issued by the IssuingBank in accordance with the provisions of Section 2.13 of this Agreement, including any ExistingLetter 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 Letterof Credit and any reimbursement or other agreements, documents, and instruments entered into inconnection with or relating to such Letter of Credit.     “Letter of Credit Exposure” means, at any time, the sum of (a) the aggregate undrawnmaximum face amount of each Letter of Credit and (b) the aggregate unpaid amount of all Letter ofCredit Obligations at such time. If the Letter of Credit has an automatic increase schedule, themaximum amount shall be deemed the maximum stated amount of such Letter of Credit after givingeffect 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 inrespect of the Letter of Credit Documents, including without limitation the aggregate drawn amountsof Letters of Credit which have not been reimbursed by the Borrower or converted into an AdjustedBase 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 suchdate 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 anyobligation 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 areunconditionally guaranteed by, the United States;     (b) (i) negotiable or nonnegotiable certificates of deposit, time deposits, or othersimilar 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) anyother bank or trust company which has a combined capital surplus and undivided profit of notless than $250,000,000 or the Dollar Equivalent thereof, if at the time of deposit orpurchase, such bank debt securities are rated not less than “A” (or the then equivalent) bythe rating service of S&P or of Moody’s, and (ii) commercial paper issued by (A) any Lenderwith a Revolving Commitment or (B) any other Person if at the time of purchase suchcommercial paper is rated not less than “A-2” (or the then equivalent) by the rating serviceof S&P or not less than “P-2” (or the then equivalent) by the rating service of Moody’s, orupon the discontinuance of both of such services, such other nationally recognized ratingservice or services, as the case may be, as shall be selected by the Borrower with theconsent 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 agreementsand has a combined capital surplus and undivided profit of not less than $250,000,000 or theDollar Equivalent thereof, if at the time of entering into such agreement the debtsecurities of such Person are rated not less than “A” (or the then equivalent) by the ratingservice of S&P or of Moody’s; and
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     (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, whichapproval will not be unreasonably withheld.     “Loan Party” means, the Borrower and the Guarantors.     “Management Business EBITDA” means, for the Borrower and its Subsidiaries for anyRolling Period, EBITDA for such Rolling Period less EBITDA generated by any OwnedHospitality Properties for such Rolling Period.     “Mandatorily Redeemable Stock” means, with respect to any Person, any OwnershipInterest of such Person which by the terms of such Ownership Interest (or by the terms of anysecurity into which it is convertible or for which it is exchangeable or exercisable), upon thehappening of any event or otherwise (a) matures or is mandatorily redeemable, pursuant to a sinkingfund obligation or otherwise (other than an Ownership Interest which is redeemable solely inexchange for common stock or Ownership Interests Equivalent thereof), (b) is convertible into orexchangeable or exercisable for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemableat the option of the holder thereof, in whole or in part (other than an Ownership Interest which isredeemable solely in exchange for common stock or Ownership Interests Equivalent thereof), in eachcase 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 therights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.     “Material Subsidiary” means any Subsidiary of the Parent having assets or annualrevenues in excess of $1,000,000.     “Material Unconsolidated Entity” means any Unconsolidated Entity of the Parent forwhich 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) tothe extent maturity is extended pursuant to Section 2.05(c) and/or (d), the First Extended MaturityDate or the Second Maturity Date, as applicable; provided, however, that, in eachcase, if such date is not a Business Day, the Maturity Date shall be the next preceding BusinessDay.     “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 itsSubsidiaries collectively own less than 50% of the Ownership Interests of such fund, but whosefinancial results are consolidated with the financial results of the Parent and the Parent’sSubsidiaries under GAAP.     “Moody’s” means Moody’s Investor Service Inc.     “Mortgages” means, collectively, the deeds of trust and mortgages executed by theBorrower or any Guarantor to secure the Obligations, each in form reasonably acceptable to theAdministrative Agent with such modifications as may be necessary and appropriate in the opinion ofcounsel to the Administrative Agent to comply with the state law of the filing jurisdiction and asmay be reasonably satisfactory to the Administrative Agent, as the same may be amended orterminated in accordance with their terms, and “Mortgage” means any of such instruments.
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     “Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) ofERISA to which the Parent, the Borrower or any member of the Controlled Group is making or has anobligation to make contributions.     “Net Cash Proceeds” means (a) the aggregate cash proceeds (including, withoutlimitation, insurance and condemnation proceeds) received by the Parent, the Borrower or any oftheir respective Subsidiaries (as applicable) in connection with any Indebtedness incurrence on orafter the Effective Date (excluding the Obligations and the incurrence of other Indebtedness whichdoes not trigger a Repayment Event), Asset Disposition, Capitalization Event or casualty,minus (b) the reasonable expenses of such Person in connection with such Indebtednessincurrence, Asset Disposition, Capitalization Event or casualty, minus (c) to the extentthat assets disposed of in connection with an Asset Disposition secure Indebtedness permittedpursuant to the provisions of Section 6.02(a), the amount of such Indebtedness which is required tobe repaid pursuant to the terms of such Indebtedness in connection with such Asset Disposition, asreasonably evidenced by the Borrower to the Administrative Agent.     “Net Income” means, for any Person or Hospitality Property, as applicable, for anyperiod for which such amount is being determined, the net income or net loss of such Person (on aConsolidated basis) or Hospitality Property, as applicable, after taxes, as determined on aConsolidated 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 periodarising from the sale, exchange, or other disposition of capital assets (such term to include allfixed assets and all securities) other than in the ordinary course of business, and (ii) anywrite-up or write-down of assets.     “Net Worth” means, for any Person, stockholders equity of such Person determined inaccordance with GAAP.     “New Service Fees” means management fees and other service fees payable to theBorrower or a Subsidiary thereof (to the extent allocable to the Borrower’s ownership interesttherein) and related to contracts executed and delivered post-May 1, 2009; provided, that “NewService Fees” shall be calculated as of the end of the calendar quarters ended on the datesreferenced 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 scheduledfor opening within the following 12 month period, equal reasonably-projected revenues frommanagement fees to be received with respect to such contract for the 12-month period immediatelyfollowing the opening of the applicable property, (z) for all other applicable contract(s), equalactual revenues from management fees derived from such contract(s) during the immediately preceding12 calendar months (except to the extent the applicable property was not open or such contract wasnot in effect during the entirety of such 12 month period, in which case, such amount shall bebased on actual revenues from management fees received to date since the opening of such propertyor the effectiveness of such contract and reasonably-projected revenues to be received for theremainder of the 12 month period following such opening or effectiveness), in each case ascalculated 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 DefaultingLender.     “Non-Replaced Property” means any Property owned by the Borrower or any of theGuarantors which (a) was used in the ownership, operation or management of any HospitalityProperty, (b) has been conveyed, exchanged, transferred, or assigned by the Borrower or a Guarantorto a Person other than the Borrower or a Guarantor, (c) has not been replaced in the ordinarycourse of business by Property of equal or better quality, and (d) was not included within thedefinition 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 ExhibitG signed by a Responsible Officer of the Borrower.     “Notice of Conversion or Continuation” means a notice of conversion or continuation inthe form of the attached Exhibit H signed by a Responsible Officer of the Borrower.
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     “Obligations” means a collective reference to (i) all Advances, Letter of CreditObligations, and all other advances to, and debts, liabilities, obligations, covenants and dutiesof, Borrower or any Guarantor arising under any Credit Document or otherwise with respect to anyAdvance 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 includinginterest and fees that accrue after the commencement by or against Borrower or any Guarantor or anyAffiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtorin such proceeding, regardless of whether such interest and fees are allowed claims in suchproceeding, (ii) any Interest Rate Agreements of any Borrower or any Guarantor to which a Lender orany Affiliate of such Lender is a party and (iii) all obligations under any Treasury ManagementAgreement 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 oneof the Parent’s Subsidiaries or leased by the Parent or one of the Parent’s Subsidiaries pursuantto a Ground Lease.     “Owned Hospitality Property Investments” shall mean Investments in (a) OwnedHospitality Properties or (b) in Persons for which Hospitality Properties are substantially all ofsuch Person’s Property which results in the Parent directly or indirectly owning 50% or more of theapplicable 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) anAssignment of Leases, and (c) such other security agreements, pledge agreements, assignments,mortgages, financing statements, stock powers, and other collateral documentation as theAdministrative 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 ornonvoting, and participations or other equivalents (regardless of how designated) of or in aPerson.     “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 rightsto 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 theEffective Date, other than the Borrower.     “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to anyor all of its functions under ERISA.     “Permitted Asset Disposition” means any Asset Disposition completed in accordance withthe provisions of Section 5.13 and any other Asset Disposition which (a) occurs at a time in whichno Default has occurred and is continuing, and (b) would not cause a Default to occur upon theconsummation 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 inthe 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 EnvironmentalLaws) and good industry practice, and (b) non-friable asbestos to the extent (i) that no applicableLegal Requirements require removal of such asbestos from the Hospitality Property and (ii) suchasbestos is encapsulated in accordance with all applicable Legal Requirements and
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maintained pursuant to a reasonable operations and maintenance program as may be required bythe Administrative Agent.     “Permitted New Investments” means the following Investments made after the EffectiveDate:     (a) Investments (i) to acquire Permitted Property Agreements and (ii) in Persons forwhich 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 HospitalityProperty Investment the Borrower shall have delivered to the Administrative Agentfor its review and approval (such approval not to be unreasonably withheld ordelayed) the Property Information set forth in clauses (a) through (h) of thedefinition of Property Information for the applicable Hospitality Property,     (ii) any Ground Lease for an Owned Hospitality Property must be financable inthe reasonable opinion of the Administrative Agent,     (iii) no more than twenty percent (20%) of the hotel rooms in the applicableHospitality Property may be subject to a timeshare regime, and     (iv) to the extent that such Investment would be included in the definition ofCollateral, the provisions of Section 5.09(a) are satisfied;     (d) Equity Investments in Persons that provide services to current or futureHospitality Properties for which either (i) the Parent or its direct or indirect Subsidiaryhas a Permitted Property Agreement or (ii) the Parent directly or indirectly owns 50% ormore of the applicable Hospitality Property; and     (e) Investments in Persons that have Permitted Property Agreements which meet therequirements of the foregoing paragraph (a), but are not majority owned Subsidiaries of theBorrower.     “Permitted Non-Recourse Designated Entity Indebtedness” means Indebtedness of anUnconsolidated Entity or a Minority-Owned Fund which (a) is incurred by an Unconsolidated Entity ora Minority-Owned Fund to acquire or develop a Hospitality Property or Hospitality ManagementBusiness or refinance such acquisition Indebtedness, and (b) is non-recourse to the Parent, theBorrower and their respective Subsidiaries except for the Property of or the Ownership Interests insuch 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 aPermitted Other Subsidiary to (A) acquire an Owned Hospitality Property Investment whichqualifies as a Permitted New Investment, or (B) refinance Indebtedness incurred to acquire aPermitted New Investment, and (ii) is non-recourse to the Parent, the Borrower and theirrespective Subsidiaries except for the Property of or the Ownership Interests in suchPermitted Other Subsidiary and customary recourse “carve-outs” (it being agreed that theIndebtedness currently secured by the Arlington Property, the Westchase Property and theColumbia Property are Permitted Other Indebtedness within the meaning of this paragraph(a));     (b) refinance Indebtedness incurred following the Effective Date with respect to any ofthe Indebtedness permitted pursuant to clause (a) above; provided, that (i) the all-in costof funds with respect to such refinance Indebtedness must be less than those related to theCurrent Pay Interest applicable to the Obligations hereunder; (ii) the amount financedremains the same or higher than the Indebtedness
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refinanced thereby; (iii) the term of such refinance Indebtedness is equal to or longerthan the Indebtedness refinanced thereby; (iv) the terms of such indebtedness shall notinclude any cash trap/sweep or other provisions (other than as currently-existing withrespect thereto, standard lock-box arrangements or standard debt service coverage-triggeredcash trap requirements (provided such debt service coverage-triggered cash trap requirementsare determined to be based on then-applicable market standards by the Administrative Agentin its reasonable discretion)) requiring additional payments based on project cash flow, netincome or other variable factors and (v) required payments under such refinance Indebtednessdo not result in higher periodic payments than required with respect to the Indebtednessrefinanced thereby and the terms of such indebtedness shall not include any cash trap/sweepor other provisions requiring additional payments based on project cash flow, net income orother variable factors;     (c) mortgage Indebtedness incurred with respect to     (i) the Westin Atlanta Airport Hotel; provided, that (A) such mortgageIndebtedness shall be in an aggregate amount of no less than $18,000,000 and no morethan $40,000,000; (B) such Indebtedness must be non-recourse to the Borrower and itsSubsidiaries subject only to standard carve-outs; (C) the all-in cost of funds withrespect to such Indebtedness must be less than those related to the Current PayInterest applicable to the Obligations hereunder; (D) the terms of such indebtednessshall not include any cash trap/sweep or other provisions (other than standardlock-box arrangements or standard debt service coverage-triggered cash traprequirements (provided such debt service coverage-triggered cash trap requirementsare determined to be based on then-applicable market standards by the AdministrativeAgent in its reasonable discretion)) requiring additional payments based on projectcash flow, net income or other variable factors; (E) amortization of suchIndebtedness must be on a minimum 25 year schedule (with such payments being madeeither mortgage-style or on a straight-line basis); (F) the provisions of suchIndebtedness shall not require any escrowing of funds other than for standard itemssuch 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 noadditional materially adverse terms or conditions other than those that have beenapproved 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 mortgageIndebtedness shall be in an aggregate amount satisfactory to the Required Lenders;(B) such Indebtedness must be non-recourse to the Borrower and its Subsidiariessubject only to standard carve-outs; (C) the all-in cost of funds with respect tosuch Indebtedness must be less than those related to the Current Pay Interestapplicable to the Obligations hereunder; (D) the terms of such indebtedness shallnot include any cash trap/sweep or other provisions (other than standard lock-boxarrangements or standard debt service coverage-triggered cash trap requirements(provided such debt service coverage-triggered cash trap requirements are determinedto be based on then-applicable market standards by the Administrative Agent in itsreasonable discretion)) requiring additional payments based on project cash flow,net income or other variable factors; (E) amortization of such Indebtedness must beon a minimum 25 year schedule (with such payments being made either mortgage-styleor on a straight-line basis); (F) the provisions of such Indebtedness shall notrequire 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 thereasonable judgment of the Borrower and Administrative Agent, include no additionalmaterially adverse terms or conditions other than those that have been approved bythe 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 asIndebtedness;
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     provided, however, that except with respect to the Indebtedness currentlysecured by the Arlington Property, the Westchase Property and the Columbia Property, the maturityor termination date of any Permitted Other Indebtedness (without regard to any extensions providedfor with respect to same, except to the extent such extensions are at the sole option of theobligor thereunder) shall occur after the Second Extended Maturity Date.     “Permitted Other Subsidiary” means a Subsidiary of the Parent which (a) is asingle-purpose Person, (b) has never been a Guarantor, nor owned any Collateral, and (c) only ownsPermitted New Investments acquired in whole or in part with the proceeds of Permitted OtherIndebtedness 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 EffectiveDate.     “Person” means an individual, partnership, corporation (including a business trust),joint stock company, trust, unincorporated association, limited liability company, joint venture orother 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 Section2.06(b) hereof prior to the addition of such interest to the PIK Obligation or, if earlier, paymentof such interest.     “PIK Obligations” means the sum of the unpaid PIK Accrual Advances from time to timeexisting hereunder pursuant to Section 2.01(c), as the same may be from time to time repaid inaccordance with the terms hereof.     “PIK Obligation Note” means a promissory note of the Borrower payable to the order ofany Lender in substantially the form of the attached Exhibit A-3, evidencing Indebtedness of theBorrower 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 apercentage) of such Lender’s PIK Obligations at such time to the aggregate PIK Obligations of allLenders at such time.     “Plan” means an employee benefit plan (other than a Multiemployer Plan) to which theParent, 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 suchnumber of copies, which may, from time to time, be prescribed by law and which, pursuant toapplicable provisions of (a) an income tax treaty between the United States and the country ofresidence of the Lender providing the form(s) or statement(s), (b) the Code, or (c) any applicablerule or regulation under the Code, permit the Borrower to make payments hereunder for the accountof such Lender free of (or, upon written request of the Borrower specifying the applicable form, ata reduced rate of) deduction or withholding of income or similar taxes (except for any deduction orwithholding of income or similar taxes as a result of any change in or in the interpretation of anysuch treaty, the Code or any such rule or regulation).     “Property” of any Person means any property or assets (whether real, personal, ormixed, tangible or intangible) of such Person, including without limitation, the Permitted PropertyAgreements and all Owned Hospitality Properties.
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     “Property Information” for any Owned Hospitality Property means the followinginformation 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 documentsreferred 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 beingacquired;     (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 orcomparable agreements relating to the Owned Hospitality Property; and     (i) such other information regarding the acquisition, ownership, operation, maintenanceand leasing of an Owned Hospitality Property as the Administrative Agent may reasonablyrequest from time-to-time.     “Pro Rata Share” means, at any time with respect to any Lender, the ratio (expressedas a percentage) of (a) such Lender’s Commitments, plus, to the extent any Class of Commitment hasbeen terminated, such Lender’s outstanding Advances for such Class (and participation interest inthe Letter of Credit Exposure if the Revolving Commitments have been terminated), plus, the amountof 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 outstandingAdvances for such Class (and participation interest in the Letter of Credit Exposure if theRevolving Commitments have been terminated), plus, the amount of all Lenders’ outstanding PIKAccrual 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 meetany of the following conditions: (a) maintenance of a Management Business EBITDA (calculated on atrailing 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 eachcase for the period commencing on the date hereof: (i) $1.0 million by June 30, 2010; (ii) $1.5million by December 30, 2010; (iii) $2.0 million by June 30, 2011; and (iv) $3.0 million byDecember 30, 2011; provided that any such “Rate Increase Period” shall commence as of the date onwhich the Borrower delivers to the Administrative Agent the quarterly reporting informationindicating its failure to meet such conditions and shall end as of any following date on which itdelivers 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 totime in effect and any successor to all or a portion thereof.     “Reinsurance Contract” means each outstanding reinsurance, coinsurance and othersimilar contract of each Insurance Company.
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     “Related Fund” means, with respect to any Lender, any fund that (a) invests incommercial loans and (b) is managed or advised by the same investment advisor as such Lender, bysuch Lender or an Affiliate of such Lender or such investment advisor.     “Related Parties” means, with respect to any Person, such Person’s Affiliates and thepartners, directors, officers, employees, agents, trustees and advisors of such Person and of suchPerson’s Affiliates.     “Release” shall have the meaning set forth in CERCLA or under any other EnvironmentalLaw.     “Repayment Amount” means, with respect to any Repayment Event, 100% of the Net CashProceeds from such event.     “Repayment Event” means any of the following events on or after the Effective Date bythe 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 acasualty or condemnation for which the aggregate Net Cash Proceeds are utilized for therestoration of the Owned Hospitality Property affected by such casualty within one year ofthe date of such casualty.     “Reportable Event” means any of the events set forth in Section 4043(b) or 4043(c) ofERISA.     “Required Lenders” means Non-Defaulting Lenders the sum of whose outstanding TermAdvances (and, prior to the termination thereof, Term Commitments), Revolving Commitments (or afterthe termination thereof, outstanding Revolving Advances and participations in Letter of CreditExposure) and PIK Accrual Advances represent at least 66 2/3% of the sum of all outstanding TermAdvances (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 ofthe Revolving Commitments, the sum of the then total outstanding Revolving Advances ofNon-Defaulting Lenders, and the aggregate participations of all Non-Defaulting Lenders of Letter ofCredit 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, onlythe Commitments and Advances for the applicable Class or Classes shall be used in the calculationof Required Lenders.     “Response” shall have the meaning set forth in CERCLA or under any other EnvironmentalLaw.     “Responsible Officer” means the Chairman of the Board, Chief Executive Officer,President, Executive Vice President, Chief Financial Officer, Chief Accounting Officer, CorporateController or Treasurer of any Person, or, with respect to a partnership, the general partner ofsuch 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 ordefeasance), prepayment, redemption or purchase of any Indebtedness not permitted by this Agreementor any Subordinate Indebtedness, and (b) the making by any Person of any dividends or otherdistributions (in cash, property, or otherwise) on, or payment for the purchase, redemption orother acquisition of, any Ownership Interests of such Person, other than dividends or distributionspayable in such Person’s Ownership Interests.     “Revolving Advance” means any advance by a Lender to the Borrower in Dollars pursuantto such Lender’s Revolving Commitment or a continuation of an existing Revolving Advance, andrefers to an Adjusted Base Rate Advance or a Eurodollar Rate Advance.
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     “Revolving Commitment” means, for each Lender, the Revolving Commitment set forth forsuch Lender as its Revolving Commitment in the Register maintained by the Administrative Agentpursuant to Section 10.06(d). As of the Effective Date, the aggregate amount of the RevolvingCommitments under this Agreement is $8,000,000.00.     “Revolving Exposure” at any time shall mean the sum of (i) the aggregate principalamount of all Revolving Advances and (ii) the aggregate amount of all Letter of Credit Exposure atsuch time.     “Revolving Note” means a promissory note of the Borrower payable to the order of anyLender, in substantially the form of the attached Exhibit A-1, evidencing Indebtedness of theBorrower to such Lender resulting from Revolving Advances from such Lender, and “RevolvingNotes” means all of such promissory notes.     “Revolving Required Lenders” means Non-Defaulting Lenders the sum of whose RevolvingCommitments (or after the termination thereof, outstanding Revolving Advances and participations inLetter of Credit Exposure) represent at least 66 2/3% of the sum of all Revolving Commitments ofNon-Defaulting Lenders (or after the termination of the Revolving Commitments, the sum of the thentotal outstanding Revolving Advances of Non-Defaulting Lenders, and the aggregate participations ofall Non-Defaulting Lenders of Letter of Credit Exposure at such time).     “Revolving Share” means, at any time with respect to any Lender with a RevolvingCommitment or outstanding Revolving Advance, the ratio (expressed as a percentage) of such Lender’sRevolving Commitment at such time to the aggregate Revolving Commitments at such time, or, if theRevolving Commitments have been terminated, the ratio (expressed as a percentage) of such Lender’sRevolving Advances at such time to the aggregate Revolving Advances at such time.     “Rolling Period” means, as of any date, the four Fiscal Quarters ending immediatelypreceding such date.     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-HillCompanies, Inc., and any successor thereto.     “SAP” means, with respect to each Insurance Company, the statutory accountingpractices prescribed or permitted by the insurance commissioner (or other similar GovernmentalAuthority) in the jurisdiction of such Insurance Company for the preparation of Insurance AnnualStatements and other financial reports by insurance companies of the same type in effect from timeto 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 conventionstatements 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 Agentfrom the Borrower, the Parent and the other Guarantors, granting a Lien in all existing and futureCollateral of the Borrower and its Subsidiaries in substantially the form of the attached Exhibit Iand, as applicable, the affirmation and amendment thereof entered into by the parties to suchagreement as of the Effective Date in substantially the form of the attached Exhibit I-2.     “Security Documents” means the Security Agreement, all Owned Hospitality PropertySecurity Documents, all Financing Statements and each other document, instrument or agreementexecuted in connection therewith or otherwise executed in order to secure all or a portion of theObligations; 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, companiesor limited liability companies (a) for which the Borrower’s direct or indirect ownership interestis less than 50% and (b) that own
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hospitality properties for which the Borrower or its wholly-owned subsidiary will have aCustomary Property Agreement.     “Status Reset Date” means the date following the end of any Fiscal Quarter which isthe earlier of (a) the 50th day following the end of such Fiscal Quarter and (b) the date which isfive (5) days following the delivery of the reports and other documents required by (i) theprovisions of Section 5.05(a) for such Fiscal Quarter (except for the Fiscal Quarter which ends onthe date the Fiscal Year ends) or (ii) the provisions of Section 5.05(b) for the Fiscal Quarterwhich ends on the date the Fiscal Year ends; provided that the documents contemplated bythe preceding clause (ii) shall never be deemed delivered prior to the 40th dayfollowing the end of the Fiscal Year.     “Subordinate Indebtedness” means Indebtedness of the Borrower, the Parent and theirrespective Subsidiaries which (a) shall not mature, become payable or require the payment of anyprincipal amount thereof (or any amount in lieu thereof) or be mandatorily redeemable, pursuant toa sinking fund or otherwise redeemable at the option of the holder thereof, in any case in whole orin part, before the date that is 181 days after the Maturity Date and (b) shall be junior andsubordinate to the Obligations and subject to an intercreditor agreement or subordinationprovisions 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 whomsuch Person holds an Investment and whose financial results would be consolidated under GAAP withthe 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 TermAdvances (and, prior to the termination thereof, Term Commitments), Revolving Commitments (or afterthe termination thereof, outstanding Revolving Advances and participations in Letter of CreditExposure) and PIK Accrual Advances represent at least 80% of the sum of all outstanding TermAdvances (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 ofthe Revolving Commitments, the sum of the then total outstanding Revolving Advances ofNon-Defaulting Lenders, and the aggregate participations of all Non-Defaulting Lenders of Letter ofCredit 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, onlythe Commitments and Advances for the applicable Class or Classes shall be used in the calculationof 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 suchLender as its Term Commitment in the Register maintained by the Administrative Agent pursuant toSection 10.06(d). As of the Effective Date, the aggregate amount of the Term Commitments underthis Agreement is $161,183,088.     “Term Note” means a promissory note of the Borrower payable to the order of any Lenderin substantially the form of the attached Exhibit A-2, evidencing Indebtedness of the Borrower tosuch Lender resulting from any Term Advance from such Lender, and “Term Notes” means allsuch Term Notes.     “Term Required Lenders” means Non-Defaulting Lenders the sum of whose outstanding TermAdvances (and, prior to the termination thereof, Term Commitments) represent at least 66 2/3% ofthe sum of all outstanding Term Advances (and, if prior to the termination thereof, TermCommitments) of Non-Defaulting Lenders.     “Term Share” means, at any time with respect to any Lender with a Term Commitment oroutstanding Term Advance, the ratio (expressed as a percentage) of such Lender’s Term Commitment atsuch time to the aggregate Term Commitments at such time, or, if the Term Commitments have beenterminated, the ratio (expressed as a percentage) of such Lender’s Term Advances at such time tothe aggregate Term Advances at such time.     “Termination Event” means (a) a reportable event described in Section 4043(b) of ERISAand 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 ofERISA during a plan year in which it was a
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substantial employer, as defined in Section 4001(a)(2) of ERISA, (c) the complete or partialwithdrawal of the Borrower, the Parent or any member of the Controlled Group from any MultiemployerPlan, (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 ofERISA, (e) the filing of a notice of intent to terminate a Title IV Plan (or treatment of a planamendment as termination) under Section 4041 of ERISA, (f) the institution of proceedings toterminate a Title IV Plan or Multiemployer Plan by the PBGC, (g) the failure to make any requiredcontribution to any Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lienunder Section 412 of the Code or Section 302 or 4068 of ERISA on any property (or rights toproperty, whether real or personal) of the Borrower, the Parent or any member of the ControlledGroup, (i) the failure of a Plan or any trust thereunder intended to qualify for tax exempt statusunder Section 401 or 501 of the Code or other requirements of Law to qualify thereunder and (j) anyother event or condition that might reasonably be expected to constitute grounds under Section 4042of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Planor Multiemployer Plan or for the imposition of any liability upon the Borrower, the Parent or anymember of the Controlled Group under Title IV of ERISA other than for PBGC premiums due but notdelinquent.     “Threshold Amount” means (a) with respect to Indebtedness which is either SubordinateIndebtedness or Indebtedness which is non-recourse to the Borrower and the Guarantors (except forcustomary recourse “carve-outs”) which is outstanding in a principal amount of at least $10,000,000individually or when aggregated with all such Indebtedness and (b) with respect to any otherIndebtedness which is outstanding in a principal amount of at least $5,000,000 individually or whenaggregated with all such Indebtedness; provided, however, in either such case, suchamounts 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 theminimum funding standards under Section 412 of the Code.     “Title Policy” means a Mortgagee Policy of Title Insurance which (a) is in the form ofAmerican Land Title Association Standard Loan Policy — 1970 (without modification, revision oramendment) (or such other form as approved by the Administrative Agent) with endorsementsreasonably requested by the Administrative Agent, (b) is issued by an underwriter reasonablyacceptable to the Administrative Agent, (c) insures that the grantor of the Lien insured by suchpolicy owns the Owned Hospitality Property subject to such Lien in fee simple or pursuant to aleasehold estate and that the Mortgage covering such Owned Hospitality Property is a valid lien onsuch 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 partiesin possession, or unpaid delinquent installments of taxes, special assessments or subsequentassessments due to changes in ownership or usage, or any other exceptions to coverage other thanPermitted Encumbrances.     “Total Indebtedness” means all Indebtedness of the Borrower, the Parent and theirrespective 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 ora 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 oftreasury or cash management services, including deposit accounts, funds transfer, automatedclearinghouse, 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 otherPerson in whom such Person holds an Investment and whose financial results would not beconsolidated under GAAP with the financial results of such Person if such statements were preparedas of such date.
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     “Units” means apartment or condominium units.     “Unsecured Indebtedness” of any Person means the Indebtedness of such Person for whichthe obligations thereunder are not secured by a Lien on any assets of such Person or itsSubsidiaries.     “Unused Fee Rate” means, with respect to the commitment fee payable under Section2.03(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 ofperiods of time from a specified date to a later specified date, the word “from” means “from andincluding” 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 construedin accordance with GAAP applied on a consistent basis.     (b) Unless otherwise indicated, all financial statements of the Borrower and theParent, all calculations for compliance with covenants in this Agreement, and allcalculations of any amounts to be calculated under the definitions in Section 1.01 shall bebased upon the Consolidated accounts of the Borrower, the Parent and their respectiveSubsidiaries (as applicable) in accordance with GAAP.     (c) If any changes in accounting principles after December 31, 2008 required by GAAP orthe Financial Accounting Standards Board of the American Institute of Certified PublicAccountants or similar agencies results in a change in the method of calculation of, oraffects the results of such calculation of, any of the financial covenants, standards orterms found in this Agreement, then the parties shall enter into and diligently pursuenegotiations in order to amend such financial covenants, standards or terms so as toequitably reflect such change, with the desired result that the criteria for evaluating thefinancial 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 understoodand agreed that the financial covenants shall be calculated without giving effect to anyelection 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 aTerm 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 RateAdvance 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 aLetter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit ineffect at such time; provided, however, that with respect to any Letter of Creditthat, by its terms or the terms of any Letter of Credit Document related thereto, provides for oneor more automatic increases in the stated amount thereof, the amount of such Letter of Credit shallbe deemed to be the maximum stated amount of such Letter of Credit after giving effect to all suchincreases, whether or not such maximum stated amount is in effect at such time.     **Section 1.06****Miscellaneous**. Article, Section, Schedule and Exhibit references are toArticles and Sections, of and Schedules and Exhibits, to this Agreement, unless otherwisespecified.
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**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 thisAgreement, each Lender severally agrees to continue such Lender’s Term Advance to theBorrower on the Effective Date (or to convert, as of the Effective Date, from revolvingloans outstanding under the Existing Credit Facility to part of the Term Advance of suchLender hereunder, as applicable), in an aggregate amount equal to such Lender’s TermCommitment 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 suchLender’s commitment with respect to term loans under the Existing Credit Agreementconstitutes the amount of such Lender’s outstanding revolving loans under the ExistingCredit Agreement that are hereby converted to Term Advances hereunder). No amount of anyTerm Advance that has been repaid or prepaid may be reborrowed. Term Advances may, at theBorrower’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 BaseRate Advances.     (b) Revolving Advances. Subject to and upon the terms and conditions set forthherein, each Lender severally agrees at any time and from time to time on any Business Dayup 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) byany Lender on any date if, after giving effect thereto, (i) such Lender’s Revolving Share ofthe Revolving Exposure would exceed such Lender’s Revolving Commitment at such time as setforth on Schedule 1.01-1, or (ii) the Revolving Exposure would exceed the aggregateRevolving Commitments of the Lenders at such time. Within the limits of each Lender’sRevolving Commitment, the Borrower may from time to time prepay Revolving Advances pursuantto the provisions of Section 2.07 and reborrow Revolving Advances under this Section2.01(b). Revolving Advances may, at the Borrower’s option, be either Adjusted Base RateAdvances or Eurodollar Rate Advances.     (c) PIK Accrual Advances. Subject to and upon the terms and conditions setforth herein, (i) as of the first Business Day of each calendar quarter, (A) all accrued andunpaid PIK Interest with respect to the Term Advances; (B) all accrued and unpaid PIKInterest with respect to the Revolving Advances, (C) all accrued and unpaid PIK Interestwith respect to the PIK Obligations and (D) all accrued and unpaid Current Pay Interest withrespect to the PIK Obligations and (ii) as of any date on which accrued PIK Interest isrequired, pursuant to Section 2.07(c)(vi) hereof, to be added to the PIK Obligations, shallbe added to the PIK Obligations (each such added amount constituting a “PIK AccrualAdvance”). The Lenders shall not be required to fund any portion of the PIK AccrualAdvances (as such PIK Accrual Advances represent accrued and unpaid obligations of theBorrower hereunder) and shall not have any continuing commitments with respect to such PIKAccrual Advances or the PIK Obligations. The Lenders’ respective shares of the PIKObligations from time to time outstanding shall be equal to that portion of the interestconstituting the PIK Accrual Advances from time to time added to the PIK Obligations that isallocable to the outstanding Advances of such Lender (whether related to the RevolvingAdvances, Term Advances or prior PIK Accrual Advances of or allocable to such Lender). Noamount of any PIK Accrual Advance that has been repaid or prepaid may be reborrowed. Therepayment of PIK Accrual Advances added to the PIK Obligations from time to time shall beabsolute obligations of the Borrower hereunder and the Borrower shall be responsible for therepayment of all PIK Obligations in accordance with the terms hereof. PIK Accrual Advancesshall be Eurodollar Rate Advances and bear interest as specifically set forth for such PIKAccrual 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 bemade pursuant to a Notice of Borrowing, given not later than 12:00 noon (New York,New York time)
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(A) on the third Business Day before the date of the proposed Borrowing, in thecase of a Borrowing consisting of Eurodollar Rate Advance**s**, or (B) on the BusinessDay before the date of the proposed Borrowing, in the case of a Borrowing consistingof Adjusted Base Rate Advances, by the Borrower to the Administrative Agent, whichshall give each Lender prompt notice on the day of receipt of such timely Notice ofBorrowing of such proposed Borrowing by telecopier. Each Notice of Borrowing shallbe 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 ofsuch Borrowing, and (D) if such Borrowing is to be comprised of Eurodollar RateAdvance**s**, the Interest Period for each such Advance. In the case of a proposedBorrowing comprised of Eurodollar Rate Advance**s**, the Administrative Agent shallpromptly notify each Lender of the applicable interest rate under Section2.06(a)(ii). With respect to all Advances (other than in respect of PIK AccrualAdvances), each Lender shall, before 12:00 noon (New York, New York time) on thedate of such Borrowing, make available for the account of its Applicable LendingOffice to the Administrative Agent at its address referred to in Section 10.02, orsuch other location as the Administrative Agent may specify by notice to theLenders, in same day funds, such Lender’s Revolving Share or Term Share, asapplicable, of such Borrowing. After the Administrative Agent’s receipt of suchfunds and upon fulfillment of the applicable conditions set forth in Article III,the Administrative Agent will make such funds available to the Borrower at itsaccount with the Administrative Agent.     (ii) Notwithstanding the foregoing, the Borrower may for Adjusted Base RateAdvances requested on the Effective Date only request that such Advances be made onthe same day as the Notice of Borrowing, provided that such Notice ofBorrowing shall be given not later than 9:00 a.m. (New York, New York time) on theEffective Date. If such Notice of Borrowing on the Effective Date is delivered tothe Administrative Agent by such time, (A) the Administrative Agent will promptlynotify each Lender who is obligated to fund an Advance under such Notice ofBorrowing of such Notice of Borrowing not later than 12:00 noon (New York, New Yorktime) 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 itsApplicable Lending Office to the Administrative Agent at its address referred to inSection 10.02, or such other location as the Administrative Agent may specify bynotice to the Lenders, in same day funds, such Lender’s Revolving Share or TermShare, as applicable, of such Borrowing.     (b) Conversions and Continuations. In order to elect to Convert or continueAdvances comprising part of the same Borrowing under this Section, the Borrower shalldeliver an irrevocable Notice of Conversion or Continuation to the Administrative Agent atthe Administrative Agent’s office no later than 12:00 noon (New York, New York time) (i) onthe date which is at least three (3) Business Days in advance of the proposed Conversion orcontinuation date in the case of a Conversion to or a continuation of a Borrowing comprisedof Eurodollar Rate Advances and (ii) on the Business Day prior to the proposed conversiondate 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 BusinessDay), (ii) the Borrowing amount, Type and Class of the Advances to be Converted orcontinued, (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 Noticeof Conversion or Continuation under this paragraph, the Administrative Agent shall provideeach Lender with a copy thereof and, in the case of a Conversion to or a continuation ofEurodollar Rate Advances, notify each Lender of the applicable interest rate under Section2.06(a)(ii). If the Borrower shall fail to specify an Interest Period for a Eurodollar RateAdvance including the continuation of a Eurodollar Rate Advance, the Borrower shall bedeemed 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 anaggregate amount of not less than $500,000 or greater multiples of $100,000;
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     (ii) in the case of Adjusted Base Rate Advances, each Borrowing shall be in anaggregate 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 anycalendar month;     (iv) at no time shall there be more than five (5) Interest Periods applicableto outstanding Eurodollar Rate Advances;     (v) the Borrower may not select Eurodollar Rate Advances for any Borrowing tobe 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 requestedBorrowing comprised of Eurodollar Rate Advances, notify the Administrative Agentthat the introduction of or any change in or in the interpretation of any law orregulation makes it unlawful, or that any central bank or other governmentalauthority asserts that it is unlawful, for such Lender or its Applicable LendingOffice to perform its obligations under this Agreement to make Eurodollar RateAdvances or to fund or maintain Eurodollar Rate Advances, then such Lender’sRevolving Share or Term Share, as applicable, of such Borrowing shall be made as anAdjusted Base Rate Advance, provided that such Adjusted Base Rate Advanceshall be considered part of the same Borrowing and interest on such Adjusted BaseRate Advance shall be due and payable at the same time that interest on theEurodollar Rate Advances comprising the remainder of such Borrowing shall be due andpayable; and such Lender agrees to use commercially reasonable efforts (consistentwith its internal policies and legal and regulatory restrictions) to designate adifferent Applicable Lending Office if the making of such designation would avoidthe effect of this paragraph and would not, in the reasonable judgment of suchLender, be otherwise materially disadvantageous to such Lender;     (vii) if the Administrative Agent is unable to determine the applicableEurodollar Rate for Eurodollar Rate Advances comprising any requested Borrowing, theright of the Borrower to select Eurodollar Rate Advances for such Borrowing or forany subsequent Borrowing shall be suspended until the Administrative Agent shallnotify the Borrower and the Lenders that the circumstances causing such suspensionno longer exist, and each Advance comprising such Borrowing shall be an AdjustedBase Rate Advance;     (viii) if the Required Lenders shall, at least one Business Day before the dateof any requested Borrowing, notify the Administrative Agent that the ApplicableEurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will notadequately reflect the cost to such Lenders of making or funding their respectiveEurodollar Rate Advances, as the case may be, for such Borrowing, the right of theBorrower to select Eurodollar Rate Advances for such Borrowing or for any subsequentBorrowing shall be suspended until the Administrative Agent shall notify theBorrower and the Lenders that the circumstances causing such suspension no longerexist, and each Advance comprising such Borrowing shall be an Adjusted Base RateAdvance; and     (ix) if the Borrower shall fail to select the duration or continuation of anyInterest Period for any Eurodollar Rate Advances in accordance with the provisionscontained 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 theLenders and such Advances will be made available to the Borrower on the date of suchBorrowing as Adjusted Base Rate Advances or, if an existing Advance, Converted intoAdjusted Base Rate Advances.     (d) Notices Irrevocable. Each Notice of Borrowing and Notice of Conversion orContinuation shall be irrevocable and binding on the Borrower. In the case of any Borrowingwhich the related Notice of Borrowing specifies is to be comprised of Eurodollar RateAdvances, the Borrower shall indemnify each Lender against any loss, out-of-pocket cost orexpense incurred by such Lender as a result of any condition precedent for Borrowing setforth in Article III not being satisfied for any reason,
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including, without limitation, any loss, cost or expense actually incurred by reason ofthe liquidation or reemployment of deposits or other funds acquired by such Lender to fundthe Advance to be made by such Lender as part of such Borrowing when such Advance, as aresult of such failure, is not made on such date.     (e) Administrative Agent Reliance. Unless the Administrative Agent shall havereceived notice from a Lender before the date of any Borrowing relating to the RevolvingCommitments or Term Commitments that such Lender will not make available to theAdministrative Agent such Lender’s Revolving Share or Term Share, as applicable, of theBorrowing, the Administrative Agent may assume that such Lender has made its Revolving Shareor Term Share, as applicable, of such Borrowing available to the Administrative Agent on thedate of such Borrowing in accordance with paragraph (a) of this Section 2.02 and theAdministrative Agent may, in reliance upon such assumption, make available to the Borroweron such date a corresponding amount. If and to the extent that such Lender shall not haveso made its Revolving Share or Term Share, as applicable, of such Borrowing available to theAdministrative Agent, such Lender and the Borrower severally agree to immediately repay tothe Administrative Agent on demand such corresponding amount, together with interest on suchamount, for each day from the date such amount is made available to the Borrower until thedate 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 shallrepay 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 suchBorrowing for purposes of this Agreement even though not made on the same day as the otherAdvances comprising such Borrowing.     (f) Lender Obligations Several. The failure of any Lender to make any Advanceto be made by it as part of any Borrowing constituting a Revolving Advance or Term Advanceshall not relieve any other Lender of its obligation, if any, to make its Advance on thedate of such Borrowing. No Lender shall be responsible for the failure of any other Lenderto 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 AdministrativeAgent by any Lender, the Borrower will promptly execute and deliver to such Lender apromissory note of the Borrower evidencing any Revolving Advances, Term Advances or PIKAccrual Advances, as the case may be, of such Lender, substantially in the forms of ExhibitA-1, A-2 or A-3, as the case may be, with appropriate insertions as to date and, ifapplicable, principal amount; provided, that delivery of Notes shall not be acondition 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 MaturityDate 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 suchLender’s Revolving Commitment exceeds the sum of such Lender’s Revolving Share of theRevolving Exposure at a rate per annum equal to the Unused Fee Rate (computed on the actualnumber of days elapsed, including the first day and excluding the last, based upon a 360-dayyear). Such fees shall be due and payable quarterly in arrears (i) on the date which isfifteen (15) days following the last Business Day of each calendar quarter and (ii) on theMaturity Date.     (b) Letter of Credit Fees. The Borrower agrees to pay to the AdministrativeAgent for the benefit of the Lenders (other than Defaulting Lenders), fees in respect of allLetters of Credit outstanding at a rate per annum equal to the Applicable Margin in effectwith 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 averagedaily 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 BusinessDay of each calendar quarter and (ii) on the Maturity Date. In addition, the Borroweragrees to pay to the Issuing Bank for its own account a fee on the daily amount of theaggregate undrawn maximum face amount of each Letter of Credit issued by such Issuing Bankat a rate per annum to be agreed upon by the
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Borrower and the Issuing Bank, such fees due and payable quarterly in arrears on thedate which is fifteen (15) days following the last day of each fiscal quarter and (ii) onthe Maturity Date. In addition, the Borrower shall pay directly to the Issuing Bank for itsown account the customary issuance, presentation, amendment and other processing fees, andother standard costs and charges, of the Issuing Bank relating to letters of credit thatfrom time to time are in effect. Such customary fees and standard costs and charges are dueand payable on demand and are nonrefundable.     (c) Administrative Agent’s Fees. The Borrower agrees to pay to theAdministrative Agent for its benefit the fees set forth in the Fee Letter for acting asAdministrative Agent, as and when the same are due and payable pursuant to the terms of theFee Letter.     **Section 2.04****Reduction of the Revolving Commitments**. The Borrower may, upon at leastthree (3) Business Days’ prior notice to the Administrative Agent, permanently terminate in wholeor 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 notless than $1,000,000 or an integral multiple of $1,000,000 in excess thereof or (2) in an amountequal to the remainder of the Revolving Commitments and (b) no such reduction shall result in anoverdraft 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 outstandingprincipal amount of each Advance, all accrued interest thereon and all of the otherthen-outstanding Obligations on the Maturity Date, as extended from time to time inaccordance with the terms of this Section 2.05.     (b) Initial Maturity Date. Subject to extension pursuant to the terms andconditions set forth in clauses (c) and (d) of this Section 2.05 and subject to theprovisions 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 andexpenses due and owing under the Credit Documents) to be Fully Satisfied.     (c) First Extended Maturity Date Option. Not more than 90 days and not lessthan 30 days prior to the Initial Maturity Date, the Borrower may notify the Lenders inwriting that the Borrower intends to extend the term of this Agreement to March 9, 2011 (theend of such period being the “First Extended Maturity Date”); provided, thatthe Borrower’s right to such extension shall be subject to the satisfaction of the followingrequirements:     (i) at the Initial Maturity Date, there shall not exist any Default or Event ofDefault (including, without limitation, under the mandatory prepayment provisionsset forth in Section 2.07(c)(iv) hereof);     (ii) the representations and warranties contained herein and the other CreditDocuments, as such representations and warranties may change based upon events oractivities permitted by this Agreement and the Credit Documents, are true andcorrect in all material respects (to the extent not otherwise qualified bymateriality) on and as of the Initial Maturity Date; and     (iii) the Borrower shall, at the Initial Maturity Date, deliver to theAdministrative Agent (for the pro rata benefit of the Lenders based on theirrespective shares of the Aggregate Facility Amount) an extension fee equal to onehalf 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 lessthan 30 days prior to the First Extended Maturity Date, the Borrower may notify the Lendersin 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 thesatisfaction of the following requirements:
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     (i) at the First Extended Maturity Date, there shall not exist any Default orEvent of Default (including, without limitation, under the mandatory prepaymentprovisions set forth in Section 2.07(c)(iv) hereof);     (ii) the representations and warranties contained herein and the other CreditDocuments, as such representations and warranties may change based upon events oractivities permitted by this Agreement and the Credit Documents, are true andcorrect in all material respects (to the extent not otherwise qualified bymateriality) on and as of the First Extended Maturity Date; and     (iii) the Borrower shall, at the First Extended Maturity Date, deliver to theAdministrative Agent (for the pro rata benefit of the Lenders based on theirrespective shares of the Aggregate Facility Amount) an extension fee equal to onehalf of one percent (0.50%) of the then-existing Aggregate Facility Amount.     (e) Satisfaction of Obligations Upon Acceleration. Notwithstanding anythingcontained herein or in any other Credit Document to the contrary, to the extent any of theObligations are accelerated pursuant to the terms hereof, the Borrower shall, immediatelyupon the occurrence of such acceleration, cause such accelerated Obligations to be FullySatisfied.     (f) Conflicting Provisions. This Section 2.05 shall supersede any provisionscontained 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 fromthe date of such Advance until such principal amount shall be paid in full, at the followingrates per annum:     (i) Adjusted Base Rate Advances. If such Advance is an Adjusted BaseRate Advance, a rate per annum (computed in accordance with Section 2.10(b)) equalat all times to the lesser of (A) the Adjusted Base Rate in effect from time to timeplus the Applicable Margin and (B) the Maximum Rate, provided thatduring the continuance of an Event of Default, Adjusted Base Rate Advances shallbear interest at a rate per annum equal at all times to the lesser of (Y) the raterequired to be paid on such Advance had such Event of Default not occurredplus two percent (2%) and (Z) the Maximum Rate. Such interest accrued onAdjusted Base Rate Advances shall be payable in arrears on the first Business Day ofeach 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 TermAdvance, 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 lesserof (1) the applicable Eurodollar Rate for such Advance for such InterestPeriod plus the Applicable Margin and (2) the Maximum Rate;provided, however that during the continuance of an Event ofDefault, Eurodollar Rate Advances shall bear interest at a rate per annumequal at all times to the lesser of (1) the rate required to be paid on suchAdvance had such Event of Default not occurred plus two percent (2%)and (2) the Maximum Rate. Such interest accrued on Eurodollar Rate Advancesshall be payable in arrears on the last day of such Interest Period, and onthe date such Eurodollar Rate Advance shall be paid in full, and, withrespect to Eurodollar Rate Advances having an Interest Period in excess ofthirty (30) days, the first Business Day of each calendar month during suchInterest Period excluding the month in which such Eurodollar Rate Advanceshall be paid in full; or
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     (B) a Eurodollar Rate Advance relating to any Accrued PIK Advance(which shall include all of the then-outstanding PIK Obligations), a rateper annum (computed in accordance with Section 2.10(b)) equal to the lesserof (1) the applicable Eurodollar Rate for such Advance plus theApplicable 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 bearinterest at a rate per annum equal at all times to the lesser of (1) therate required to be paid on such Advance had such Event of Default notoccurred plus two percent (2%) and (2) the Maximum Rate. All suchinterest accrued pursuant to this item (B) shall be periodically added tothe PIK Obligations in accordance with Section 2.01(c) hereof and be payableas of the Maturity Date together with all other PIK Obligations inaccordance with Section 2.05 hereof.     (b) PIK Interest. Regardless of whether an Advance is an Adjusted Base RateAdvance or a Eurodollar Rate Advance, all Advances shall, in addition to the interestpayable pursuant to subclauses (a)(i) and (ii) above, bear interest at a per annum rateequal to the then-applicable PIK Rate. All such interest, whether accrued with respect tothe Revolving Advances, the Term Advances or the PIK Obligations, shall be added to the PIKObligations in accordance with Section 2.01(c) hereof and be payable as of the Maturity Datetogether with all other PIK Obligations in accordance with Section 2.05 hereof.     (c) Usury Recapture. In the event the rate of interest chargeable under thisAgreement or the Notes at any time is greater than the Maximum Rate, the unpaid principalamount of the Notes shall bear interest at the Maximum Rate until the total amount ofinterest paid or accrued on the Notes equals the amount of interest which would have beenpaid or accrued on the Notes if the stated rates of interest set forth in this Agreement hadat all times been in effect. In the event, upon payment in full of the Notes, the totalamount of interest paid or accrued under the terms of this Agreement and the Notes is lessthan the total amount of interest which would have been paid or accrued if the rates ofinterest set forth in this Agreement had, at all times, been in effect, then the Borrowershall, to the extent permitted by applicable law, pay the Administrative Agent for theaccount of the Lenders an amount equal to the difference between (i) the lesser of (A) theamount of interest which would have been charged on the Notes if the Maximum Rate had, atall times, been in effect and (B) the amount of interest which would have accrued on theNotes if the rates of interest set forth in this Agreement had at all times been in effectand (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 theMaximum Rate, such excess amount shall, to the extent permitted by law, be applied to thereduction of the principal balance of the Notes, and if no such principal is thenoutstanding, 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 anyamount payable under this Agreement other than the Advances is not paid when due andpayable, including without limitation, accrued interest and fees, then such overdue amountshall accrue interest hereon due and payable on demand at a rate per annum equal to theAdjusted Base Rate plus two percent (2%), from the date such amount became due untilthe date such amount is paid in full.     (e) Late Payment Fee. Subject to the provisions of Section 10.11, if anyinterest payable under this Agreement is not paid when due and payable (after taking intoaccount any applicable grace period), then the Borrower will pay to the Lenderscontemporaneously with the payment of such past due interest a late payment fee equal to anamount 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 principalamount of any Advance except as provided in this Section 2.07.
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     (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, NewYork 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 priorwritten notice to the Administrative Agent, stating the proposed date and aggregateprincipal amount of such prepayment, and if applicable, the relevant Interest Period for theAdvances to be prepaid. If any such notice is given, the Borrower shall prepay Advancescomprising part of the same Borrowing in whole or ratably in part in an aggregate principalamount equal to the amount specified in such notice, and shall also pay accrued interest tothe date of such prepayment on the principal amount prepaid and amounts, if any, required tobe paid pursuant to Sections 2.07(c)(iii) or 2.08 as a result of such prepayment being madeon such date; provided, however, that (A) each partial prepayment shall bein 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 TermAdvances or outstanding Revolver Advances at the discretion of the Borrower and (C) noprepayment of the PIK Obligations may be made unless the outstanding balance of both theRevolving Advances and the Term Advances have been reduced to zero as of the date of suchprepayment.     (c) Mandatory Prepayments.     (i) Excess Cash Flow Term Prepayments. Within thirty (30) daysfollowing the end of each calendar quarter, the Borrower shall make a paymentagainst 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 amountnecessary to provide the Borrower and its Subsidiaries with $6,500,000 (or, to theextent (x) the Borrower has made at least $45,000,000 in aggregate principalpayments against the outstanding principal balance of the Term Advances since theEffective 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 anyprepayment of the Term Advances required pursuant to clause (c)(i) above for a givencalendar quarter, the Borrower shall prepay any outstanding principal balance of theRevolving Advances (and, thereafter, cash collateralize outstanding Letter of CreditExposure) in an amount equal to (A) all Excess Free Cash Flow for such calendarquarter, less (B) the amount necessary to provide the Borrower and its Subsidiarieswith $6,500,000 (or, to the extent (x) the Borrower has made at least $45,000,000 inaggregate principal payments against the outstanding principal balance of the TermAdvances since the Effective Date and (y) at such time the Borrower is not in a RateIncrease Period, $10,000,000) of cash working capital as of the end of such calendarquarter; less (C) the amount of such Excess Free Cash Flow used to repay TermAdvances pursuant to clause (c)(i) above.     (iii) Repayment Events. In addition to the prepayments requiredpursuant to clauses (c)(i) and (ii) above, upon the occurrence of any RepaymentEvent, the Borrower shall prepay Advances on the next Business Day after the NetCash Proceeds from such Repayment Event are received by the Borrower or the Parentor one of their respective Subsidiaries, as applicable, in an amount equal to thelesser 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 thisclause (c)(iii) shall be applied (A) first, to outstanding Term Advances (andaccrued Current Pay Interest related thereto), (B) second, to outstanding PIKObligations (and accrued Current Pay Interest related thereto), (C) third, toaccrued PIK Interest on all Advances and (C) fourth, to Revolving Advances (andaccrued Current Pay Interest related thereto) and, thereafter, to the cashcollateralization of outstanding Letter of Credit Exposure.     (iv) Additional Required Term Prepayments. Regardless of whether anyprepayments 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) againstthe outstanding Term Advances: (A) on or prior to March 9, 2010 in an aggregateamount (counting all such payments made since the
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Effective Date) equal to or greater than $20,000,000; and (B) on or prior toMarch 9, 2011 in an aggregate amount (counting all such payments made since theEffective Date) equal to or greater than $40,000,000; provided, that proceedsderived from Repayment Events relating to the financing or refinancing of ownedassets of the Borrower shall account for no more than $20,000,000 of the prepaymentsrequired pursuant to items (A) and (B) above (though the Borrower shall be requiredto make such prepayments to the extent otherwise required herein regardless ofwhether 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 theaggregate Revolving Commitments, the Borrower agrees to make a prepayment of theRevolving Advances in the amount of such excess, and if all the Revolving Advanceshave been then repaid, then to deposit with the Administrative Agent into the CashCollateral Account an amount equal to the lesser of (A) the Letter of CreditExposure or (B) the amount of such excess less the amount of Revolving Advances thenrepaid.     (vi) Accrued Interest. Except as specifically noted above, eachprepayment pursuant to this Section 2.07(c) shall be accompanied by accrued CurrentPay Interest on the amount prepaid to the date of such prepayment and amounts, ifany, required to be paid pursuant to Section 2.08 as a result of such prepaymentbeing made on such date. Accrued PIK Interest with respect to the prepaid amountshall be added to the then-outstanding PIK Obligations.     (vii) Avoidance of Breakage Costs. In the event that the amount of anymandatory prepayment of Advances under this Section 2.07(c) exceeds the aggregateprincipal amount of Advances which consist of Adjusted Base Rate Advances (theamount of such excess being the “Excess Amount”), the Borrower shall havethe right, in lieu of making such prepayment in full, to prepay such outstandingAdvances which are Adjusted Base Rate Advances and to deposit an amount equal to theExcess Amount with the Administrative Agent in the Cash Collateral Accountmaintained by and in the sole dominion and control of the Administrative Agent forthe ratable benefit of the Lenders. Any amount so deposited shall be held by theAdministrative Agent as collateral for the Obligations, earn interest on behalf ofthe Borrower and be applied to the prepayment of Advances which are Eurodollar RateAdvances 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 ondeposit in or to the credit of the Cash Collateral Account after giving effect tothe payment made on such day pursuant to this Section 2.07(c), and the Borrowershall have delivered to the Administrative Agent a written request or a telephonicrequest (which shall be promptly confirmed in writing) prior to 12:00 noon (NewYork, New York time) that such remaining collected amounts be invested in cashequivalents specified in such request, the Administrative Agent shall invest suchfunds, to the extent the Administrative Agent is reasonably able to do so, in suchcash equivalents as are acceptable to, and with no risk to, the Administrative Agenton an overnight basis or with maturities such that amounts will be available to paythe Obligations secured thereby as they become due, whether at maturity, byacceleration or otherwise; provided, however, that any lossresulting from such investments shall be charged to and be immediately payable bythe Borrower on demand by the Administrative Agent.     (viii) Repayment of Revolving Advances. Any mandatory repayments ofRevolving Advances pursuant to this Section 2.07(c) shall be applied (A) if noDefault or Event of Default exists, then to Revolving Advances comprising the sameBorrowing or Borrowings, at the Borrower’s option, and (B) if a Default or Event ofDefault exists, then to all Revolving Advances pro rata based upon the amount ofoutstanding Revolving Advances.     (d) Ratable Payments. Each payment of any Advance pursuant to this Section2.07 or any other provision of this Agreement shall be made in a manner such that allAdvances comprising part of the same Borrowing are paid in whole or ratably in part.
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     (e) Effect of Notice. All notices given pursuant to this Section 2.07 shall beirrevocable 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 contemplatedby the provisions of Section 5.09, each payment of any Advance pursuant to this Section 2.07or any other provision of this Agreement shall be made in a manner such that all Advancessecured 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 RateAdvance is made other than on the last day of the Interest Period (if any) for such Advance as aresult of any payment pursuant to Section 2.07 or the acceleration of the maturity of the Notespursuant to Article VIII or otherwise; (b) any Conversion of a Eurodollar Rate Advance is madeother than on the last day of the Interest Period (if any) for such Advance pursuant to Section2.02(b) or Section 2.12 or otherwise; or (c) the Borrower fails to make a principal or interestpayment 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 Borrowerthrough the Administrative Agent, pay to the Administrative Agent for the account of such Lenderany 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 whichit 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 orother 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 anychange in or in the interpretation of any law or regulation (except with respect to Taxes orOther Taxes) following the date of this Agreement or (ii) the compliance with any guidelineor request from any central bank or other Governmental Authority (whether or not having theforce of law) not complied with prior to the date of this Agreement, there shall be anyincrease in the cost to any Lender of agreeing to make or making, funding or maintainingEurodollar Rate Advances, then the Borrower shall from time to time, upon demand by suchLender (with a copy of such demand to the Administrative Agent), immediately pay to theAdministrative Agent for the account of such Lender additional amounts (without duplicationof any other amounts payable in respect of increased costs) sufficient to compensate suchLender for such increased cost; provided, however, that, before making anysuch demand, each Lender agrees to use commercially reasonable efforts (consistent with itsinternal policy and legal and regulatory restrictions) to designate a different ApplicableLending Office if the making of such a designation would avoid the need for, or reduce theamount of, such increased cost and would not, in the reasonable judgment of such Lender, beotherwise disadvantageous to such Lender. A certificate as to the amount of such increasedcost and detailing the calculation of such cost submitted to the Borrower and theAdministrative Agent by such Lender at the time such Lender demands payment under thisSection shall be conclusive and binding for all purposes, absent manifest error.     (b) Capital Adequacy. If any Lender or the Issuing Bank determines in goodfaith that compliance with any law or regulation or any guideline or request from anycentral 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 amountof capital required or expected to be maintained by such Lender or the Issuing Bank and thatthe amount of such capital is increased by or based upon the existence of such Lender’scommitment to lend or the Issuing Bank’s commitment to issue Letters of Credit or anyLender’s commitment to risk participate in Letters of Credit and other commitments of thistype, 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 immediatelypay to the Administrative Agent for the account of such Lender or to the Issuing Bank, asthe 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 increasedcosts) sufficient to compensate such Lender or the Issuing Bank, in light of suchcircumstances, (i) with respect to such Lender, to the extent that such Lender reasonablydetermines such increase in
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capital to be allocable to the existence of such Lender’s commitment to lend under thisAgreement or its commitment to risk participate in Letters of Credit and (ii) with respectto the Issuing Bank, to the extent that such Issuing Bank reasonably determines suchincrease 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 tothe Borrower and the Administrative Agent by such Lender or the Issuing Bank shall beconclusive and binding for all purposes, absent manifest error.     (c) Letters of Credit. If any change in any law or regulation (except withrespect to Taxes or Other Taxes) or in the interpretation thereof by any court oradministrative or Governmental Authority charged with the administration thereof followingthe 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 heldby, or deposits in or for the account of, Issuing Bank or any Lender or (ii) impose onIssuing Bank or any Lender any other condition regarding the provisions of this Agreementrelating to the Letters of Credit or any Letter of Credit Obligations, and the result of anyevent referred to in the preceding clause (i) or (ii) shall be to increase the cost toIssuing Bank of issuing or maintaining any Letter of Credit, or increase the cost to suchLender of its risk participation in any Letter of Credit (which increase in cost shall bedetermined by Issuing Bank’s or such Lender’s reasonable allocation of the aggregate of suchcost 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 payto 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 whichshall 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 withinternal policy and legal and regulatory restrictions) to designate a different ApplicableLending Office for the booking of its Letters of Credit or risk participations if the makingof such designation would avoid the effect of this paragraph and would not, in thereasonable judgment of Issuing Bank or such Lender, be otherwise disadvantageous to IssuingBank or such Lender, as the case may be. A certificate as to such increased cost incurredby Issuing Bank or such Lender, as the case may be, as a result of any event mentioned inclause (i) or (ii) above, and detailing the calculation of such increased costs submitted byIssuing Bank or such Lender to the Borrower and the Administrative Agent, shall beconclusive and binding for all purposes, absent manifest error.     **Section 2.10****Payments and Computations**.     (a) Payment Procedures. Except if otherwise set forth herein, the Borrowershall 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 thelocation referred to in the Notes (or such other location as the Administrative Agent shalldesignate in writing to the Borrower) in same day funds without set-off, deduction orcounterclaim. Except for amounts payable solely to the Administrative Agent, the IssuingBanks, or a specific Lender pursuant to Section 2.03(b), 2.03(c), 2.08, 2.09, 2.11, 2.12, or2.13(c) but after taking into account payments effected pursuant to Section 10.04, theAdministrative Agent will on the same day cause to be distributed like funds relating to thepayment of principal, interest or fees ratably to the Lenders in accordance with, in thecase of a payment made in respect of a Borrowing, each Lender’s Revolving Share or TermShare, as applicable, for the account of their respective Applicable Lending Offices, andlike funds relating to the payment of any other amount payable to any Lender or Issuing Bankfor the account of its Applicable Lending Office, in each case to be applied in accordancewith 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 bemade by the Administrative Agent on the basis of a year of 365 days and all computations offees and interest based on the Eurodollar Rate, the Adjusted Base Rate, to the extentcalculated pursuant to clause (c) of the definition thereof, and the Federal Funds Rateshall be made by the Administrative Agent on the basis of a year of 360 days, in each casefor 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 bythe Administrative Agent of an interest rate shall be conclusive and binding for allpurposes, absent manifest error.
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     (c) Non-Business Day Payments. Whenever any payment shall be stated to be dueon a day other than a Business Day, such payment shall be made on the next succeedingBusiness Day, and such extension of time shall in such case be included in the computationof payment of interest or fees, as the case may be; provided, however, thatif such extension would cause payment of interest on or principal of Eurodollar RateAdvances to be made in the next following calendar month, such payment shall be made on thenext preceding Business Day.     (d) Administrative Agent Reliance. Unless the Administrative Agent shall havereceived written notice from the Borrower prior to the date on which any payment is due tothe Lenders that the Borrower will not make such payment in full, the Administrative Agentmay assume that the Borrower has made such payment in full to the Administrative Agent onsuch date and the Administrative Agent may, in reliance upon such assumption, cause to bedistributed 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 theAdministrative Agent, each Lender shall repay to the Administrative Agent forthwith ondemand such amount distributed to such Lender, together with interest, for each day from thedate such amount is distributed to such Lender until the date such Lender repays such amountto the Administrative Agent, at the Federal Funds Rate for each such day.     (e) Application of Payments. Unless otherwise specified in Section 2.07hereof, whenever any payment received by the Administrative Agent under this Agreement isinsufficient to pay in full all amounts then due and payable under this Agreement and theNotes, such payment shall be distributed and applied by the Administrative Agent and theLenders in the following order: first, to the payment of fees and expenses due andpayable to the Administrative Agent, in its capacity as such, under and in connection withthis Agreement or any other Credit Document; second, to the payment of all expensesdue and payable under Section 2.11(c), to all fees due and payable to the Issuing Bankpursuant 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 ofsuch payments owed to each such Lender and the Issuing Bank; third, to the paymentof the Current Pay Interest accrued on all Advances (other than the PIK Obligations) and allLetter 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 suchLenders; fourth, to the payment of the principal amount of all Advances, all PIKInterest, all Current Pay Interest with respect to the PIK Obligations and all Letter ofCredit Obligations, regardless of whether any such amount is then due and payable, ratablyamong 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 underInterest Rate Agreements or Treasury Management Agreements provided by any Lender or anyAffiliate of a Lender.     (f) Register. The Administrative Agent shall record in the Register theCommitment and the Advances from time to time of each Lender and each repayment orprepayment in respect to the principal amount of such Advances of each Lender. Any suchrecordation shall be conclusive and binding on the Borrower and each Lender, absent manifesterror; providedhowever, that failure to make any such recordation, or anyerror in such recordation, shall not affect the Borrower’s obligations hereunder in respectof such Advances.     **Section 2.11****Taxes**.     (a) No Deduction for Certain Taxes. Any and all payments by the Borrower shallbe made, in accordance with Section 2.10, free and clear of and without deduction for anyand all present or future taxes, levies, imposts, deductions, charges or withholdings, andall liabilities with respect thereto, excluding, (i) in the case of each Lender, IssuingBank, and the Administrative Agent, taxes imposed on its income, and franchise taxes imposedon it, by the jurisdiction under the laws of which such Lender, Issuing Bank, or theAdministrative Agent (as the case may be) is organized or carries on business (other than asa result of a connection arising primarily from the Lender, Issuing Bank, or theAdministrative Agent, as the case may be, having executed, delivered or performed itsobligations or received a payment under, or enforced, this Agreement) or any politicalsubdivision 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 thejurisdiction of
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such Lender’s Applicable Lending Office or any political subdivision of suchjurisdiction. If the Borrower shall be required by law to deduct any Taxes from or inrespect of any sum payable to any Lender, Issuing Bank, or the Administrative Agent, (x) thesum payable shall be increased as may be necessary so that, after making all requireddeductions (including deductions applicable to additional sums payable under this Section2.11), such Lender, Issuing Bank, or the Administrative Agent (as the case may be) receivesan 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 withholdTaxes is caused solely by such Lender’s, Issuing Bank’s, or the Administrative Agent’sfailure to provide the forms described in paragraph (e) of this Section 2.11 and suchLender, 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) theBorrower shall pay the full amount deducted to the relevant taxation authority or otherauthority in accordance with applicable Legal Requirements.     (b) Other Taxes. In addition, the Borrower agrees to pay any present or futurestamp or documentary taxes or any other excise or property taxes, charges or similar levieswhich arise from any payment made or from the execution, delivery or registration of, orotherwise 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, withoutlimitation, any Taxes or Other Taxes imposed by any Governmental Authority on amountspayable under this Section 2.11) paid by such Lender, Issuing Bank, or the AdministrativeAgent (as the case may be) and any liability (including interest and expenses) arisingtherefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctlyor legally asserted. Each payment required to be made by the Borrower in respect of thisindemnification shall be made to the Administrative Agent for the benefit of any partyclaiming such indemnification within thirty (30) days from the date the Borrower receiveswritten demand detailing the calculation of such amounts therefore from the AdministrativeAgent on behalf of itself as Administrative Agent, Issuing Bank, or any such Lender. If anyLender, 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 orOther Taxes paid by the Borrower under this paragraph (c), such Lender, the AdministrativeAgent, or Issuing Bank, as the case may be, shall promptly pay to the Borrower, but only upto the amount paid by the Borrower, the Borrower’s share of such refund or offset asdetermined in the sole discretion, exercised in good faith, of such Lender, theAdministrative Agent, or Issuing Bank, as the case may be (reduced by any reasonableout-of-pocket expenses and any Taxes imposed on the Lender, the Administrative Agent, orIssuing 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, theAdministrative Agent or Issuing Bank agrees to repay the amount paid over to the Borrower tosuch Lender, the Administrative Agent or Issuing Bank in the event such Lender, theAdministrative Agent, or Issuing Bank is required to repay such refund or offset to a taxingauthority). Nothing in this Section 2.11(c) shall obligate any Lender, the AdministrativeAgent or Issuing Bank to apply for any such refund or offset.     (d) Evidence of Tax Payments. The Borrower will pay prior to delinquency allTaxes and Other Taxes payable in respect of any payment. Within thirty (30) days after thedate of any payment of Taxes, the Borrower will furnish to the Administrative Agent, at itsaddress referred to in Section 10.02, the original or a certified copy of a receiptevidencing payment of such Taxes or Other Taxes.     (e) Foreign Lender Withholding Exemption. Each Lender and Issuing Bank that isnot incorporated under the laws of the United States of America or a state thereof agreesthat it will deliver to the Borrower and the Administrative Agent on the date of thisAgreement or upon the effectiveness of any Assignment and Assumption pursuant to which suchLender 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 paymentsunder this Agreement and any Notes payable to it, without deduction or withholding of anyUnited States federal income taxes. Each Lender which delivers to the Borrower and theAdministrative Agent a Prescribed Form further undertakes to deliver, to the extent it maylawfully do so, to the Borrower and the Administrative Agent on or before the date that anysuch form expires or becomes obsolete or after the occurrence of any event requiring achange in the most recent form
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previously delivered by it to the Borrower and the Administrative Agent two furthercopies of a replacement Prescribed Form. If an event (including without limitation anychange in treaty, law or regulation) has occurred prior to the date on which any deliveryrequired by the preceding sentence would otherwise be required which renders all such formsinapplicable or which would prevent any Lender from duly completing and delivering any suchletter or form with respect to it and such Lender advises the Borrower and theAdministrative Agent that it is not capable of receiving payments without any deduction orwithholding of United States federal income tax, and in the case of a Prescribed Formestablishing 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 atthe rate and in the manner required by the laws of the United States with respect topayments made to a Lender that may lawfully provide the Prescribed Forms and fails to do soin a timely manner.     (f) Nothing in this Section 2.11 shall require any Lender or the Administrative Agentto make available any of its tax returns (or any other information that it deems to beconfidential or proprietary, in its sole discretion).     (g) If the Issuing Bank or any Lender claims any additional amounts payable pursuant tothis Section 2.11, then such Issuing Bank or Lender (as the case may be) shall use itsreasonable efforts (consistent with its internal policy and legal and regulatoryrestrictions) to change the jurisdiction of its Applicable Lending Office if the making ofsuch a change would avoid the need for, or reduce the amount of, any such additional amountsthat would be payable or may thereafter accrue and would not, in the sole discretion of suchIssuing Bank or Lender, be otherwise disadvantageous to such Issuing Bank or Lender.     (h) If any Governmental Authority asserts that the Administrative Agent did notproperly withhold or backup withhold, as the case may be, any tax or other amount frompayments made to or for the account of any Lender, that Lender shall indemnify theAdministrative Agent therefor, including all penalties and interest, any taxes imposed byany jurisdiction on the amounts payable to the Administrative Agent under this Section, andcosts and expenses (including attorney fees) of the Administrative Agent. The obligation ofthe Lenders under this Section shall survive the termination of the Commitments, repaymentof all other Obligations hereunder and the resignation of the Administrative Agent.     **Section 2.12****Illegality**. If any Lender shall notify the Administrative Agent and theBorrower that the introduction of or any change in or in the interpretation of any LegalRequirement makes it unlawful, or that any central bank or other Governmental Authority assertsthat it is unlawful for such Lender or its Applicable Lending Office to perform its obligationsunder this Agreement to maintain any Eurodollar Rate Advances of such Lender then outstandinghereunder, then, notwithstanding anything herein to the contrary, the Borrower shall, if demandedby such Lender by notice to the Borrower and the Administrative Agent no later than 12:00 noon (NewYork, New York time), (a) if not prohibited by Legal Requirement to maintain such Eurodollar RateAdvances for the duration of the Interest Period, on the last day of the Interest Period for eachoutstanding Eurodollar Rate Advance of such Lender or (b) if prohibited by Legal Requirement tomaintain such Eurodollar Rate Advances for the duration of the Interest Period, on the secondBusiness Day following its receipt of such notice from such Lender, Convert all such affectedEurodollar Rate Advances of such Lender then outstanding to Adjusted Base Rate Advances, and payaccrued interest on the principal amount Converted to the date of such Conversion and amounts, ifany, required to be paid pursuant to Section 2.08 as a result of such Conversion being made on suchdate. Each Lender agrees to use commercially reasonable efforts (consistent with its internalpolicies and legal and regulatory restrictions) to designate a different Applicable Lending Officeif the making of such designation would avoid the effect of this paragraph and would not, in thereasonable 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 threemonths before the Maturity Date, at the request of the Borrower, the Issuing Bank shall, onany 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 theBorrower (for its own benefit or for the benefit of the Parent or any of the Borrower’sSubsidiaries). Promptly after issuance by the Issuing Bank of a Letter of Credit, suchIssuing Bank shall furnish a copy of such Letter of Credit to the Borrower. Each IssuingBank shall
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promptly give notice to the Administrative Agent of the issuance of each Letter ofCredit 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 ofCredit shall be automatically converted to a Letter of Credit. No Letter of Credit will beissued, increased, or extended and no Existing Letter of Credit will be converted to aLetter of Credit:     (i) if such issuance, increase, extension or conversion would cause the Letterof 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 aggregateRevolving Exposure at such time;     (ii) unless such Letter of Credit has an Expiration Date not later than theearlier of (A) one year after the date of issuance thereof and (B) fifteen (15) daysprior to the Maturity Date;     (iii) unless such Letter of Credit is a standby letter of credit not supportingthe repayment of indebtedness for borrowed money of any Person;     (iv) unless such Letter of Credit is in form and substance acceptable to theIssuing Bank;     (v) unless the Borrower has delivered to the Issuing Bank (with a copy to theAdministrative Agent) the completed and executed Letter of Credit Documents (otherthan the Letter of Credit) on such Issuing Bank’s standard form, which shall containterms 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 Lenderhereunder, unless the applicable Issuing Bank has entered into arrangementssatisfactory to the Issuing Bank with the Borrower or such Lender to eliminate theIssuing Bank’s risk with respect to such Lender; and     (vii) unless no Default has occurred and is continuing or would result from theissuance 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 ofCredit on or after the Effective Date or the conversion of any Existing Letter of Credit toa Letter of Credit in accordance with provisions of the preceding Section 2.13(a), IssuingBank shall be deemed to have sold to each other Lender with a Revolving Commitment and eachother Lender with a Revolving Commitment shall have been deemed to have purchased from suchIssuing Bank a participation in the Letter of Credit Exposure related to the Letters ofCredit issued by such Issuing Bank equal to such Lender’s Revolving Share at such date andsuch 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 promptlynotify each such participant Lender by telex, telephone, or telecopy of each Letter ofCredit of such Issuing Bank issued, increased or decreased, and the actual dollar amount ofsuch Lender’s participation in such Letter of Credit. Each Lender’s obligation to purchaseparticipating interests pursuant to this Section and to reimburse the Issuing Bank for suchLender’s Revolving Share of any payment under a Letter of Credit by such Issuing Bank notreimbursed in full by the Borrower shall be absolute and unconditional and shall not beaffected by any circumstance, including, without limitation, (i) any of the circumstancesdescribed in paragraph (d) below, (ii) the occurrence and continuance of a Default, (iii) anadverse change in the financial condition of the Borrower or any Guarantor, or (iv) anyother circumstance, happening or event whatsoever, whether or not similar to any of theforegoing, except for any such circumstance, happening or event that is determined by acourt of competent jurisdiction by a final and non-appealable judgment to have resulted fromthe gross negligence or willful misconduct on the part of such Issuing Bank.
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     (c) Reimbursement. The Borrower shall have the obligation (subject to itsright to draw on the Revolving Commitments as noted below) to pay promptly on demand toIssuing Bank in respect of each Letter of Credit issued by such Issuing Bank an amount equalto any amount paid by such Issuing Bank under or in respect of such Letter of Credit. Inthe event any Issuing Bank makes a payment pursuant to a request for draw presented under aLetter 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 uponthe receipt of such notice, the Administrative Agent shall give notice of such payment tothe Lenders, and each Lender shall promptly reimburse such Issuing Bank through theAdministrative Agent for such Lender’s Revolving Share of such payment, and suchreimbursement shall be deemed for all purposes of this Agreement to constitute an AdjustedBase Rate Advance to the Borrower from such Lender. If such reimbursement is not made byany Lender to any Issuing Bank on the same day on which such Issuing Bank shall have madepayment on any such draw, such Lender shall pay interest thereon to such Issuing Bank foreach such day from the date such payment should have been made until the date repaid at arate per annum equal to the Federal Funds Rate for each such day. The Borrower herebyunconditionally and irrevocably authorizes, empowers, and directs the Administrative Agentand the Lenders to record and otherwise treat each payment under a Letter of Credit notimmediately reimbursed by the Borrower as a Borrowing comprised of Adjusted Base RateAdvances to the Borrower. Nothing contained herein shall limit the Borrower’s absoluteobligation 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) underthis Agreement in respect of each Letter of Credit shall be absolute, unconditional andirrevocable, and shall be paid strictly in accordance with the terms of this Agreement underall 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 ofCredit Documents;     (iii) the existence of any claim, set-off, defense or other right which theBorrower or any Lender or any other Person may have at any time against anybeneficiary or transferee of such Letter of Credit (or any Persons for whom any suchbeneficiary or any such transferee may be acting), the Issuing Bank or any otherPerson or entity, whether in connection with this Agreement, the transactionscontemplated in this Agreement or in any Letter of Credit Documents or any unrelatedtransaction;     (iv) any statement or any other document presented under such Letter of Creditproving to be forged, fraudulent, invalid or insufficient in any respect or anystatement therein being untrue or inaccurate in any respect to the extent theIssuing Bank would not be liable therefore pursuant to the following paragraph (e);     (v) payment by the Issuing Bank under such Letter of Credit againstpresentation of a draft or certificate which does not comply with the terms of suchLetter of Credit; or     (vi) any other circumstance or happening whatsoever, whether or not similar toany of the foregoing.     (e) Liability of Issuing Banks. The Borrower assumes all risks of the acts oromissions of any beneficiary or transferee of any Letter of Credit with respect to its useof such Letter of Credit. No Issuing Bank, nor any other Lender, nor any of theirrespective 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 omissionsof any beneficiary or transferee in connection therewith;
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     (ii) the validity, sufficiency or genuineness of documents, or of anyendorsement thereon, even if such documents should prove to be in any or allrespects invalid, insufficient, fraudulent or forged;     (iii) payment by such Issuing Bank against presentation of documents which donot comply with the terms of a Letter of Credit, including failure of any documentsto bear any reference or adequate reference to the relevant Letter of Credit; or     (iv) any other circumstances whatsoever in making or failing to make paymentunder any Letter of Credit (including such Issuing Bank’s own negligence),except that the Borrower shall have a claim against such Issuing Bank, andsuch Issuing Bank shall be liable to, and shall promptly pay to, the Borrower, tothe extent of any direct, as opposed to consequential, damages suffered by theBorrower that are determined by a court of competent jurisdiction by a final andnon-appealable judgment to have resulted from (A) such Issuing Bank’s willfulmisconduct or gross negligence in determining whether documents presented under aLetter of Credit comply with the terms of such Letter of Credit or (B) such IssuingBank’s gross negligence in failing to make lawful payment under any Letter of Creditafter the presentation to it of a draft and certificate strictly complying with theterms and conditions of such Letter of Credit. In furtherance and not in limitationof the foregoing, any Issuing Bank may accept documents that appear on their face tobe 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, havethe 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 “AffectedLender”) in accordance with the procedures in this Section 2.15 and providedthat 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 aLender, the Administrative Agent in its sole discretion shall have the right toreallocate the amount of the Commitments of the Affected Lenders, including withoutlimitation to Persons which are not already party to this Agreement but whichqualify as Eligible Assignees, which election shall be made by written notice withinthirty (30) days after the date such condition occurs.     (ii) If the aggregate amount of the reallocated Commitments is less than theCommitments of the Affected Lenders, (A) the respective Commitments of the Lenderswhich have received such reallocated Commitments shall be increased by therespective amounts of their proposed reallocations, and (B) the Borrower shall havethe right to add additional Lenders which are Eligible Assignees to this Agreementto replace such Affected Lenders, which additional Lenders would have aggregateCommitments no greater than those of the Affected Lenders minus the amountsof the Commitments already reallocated.     (iii) Notwithstanding any provision in this Section 2.15 to the contrary, noLender may have such Lender’s Commitment increased pursuant to the provisions ofthis Section 2.15 without such Lender’s written consent.     (c) Procedure. Any assumptions of Commitments pursuant to this Section 2.15shall be (i) made by the purchasing Lender or Eligible Assignee and the selling Lenderentering into an Assignment and Assumption and by following the procedures in Section 10.06for adding a Lender; provided that no processing fee shall be charged by theAdministrative Agent in connection with such assignment. In
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connection with the reallocation of the Commitments of any Lender pursuant to theforegoing paragraph (b), each Lender with a reallocated Commitment shall purchase from theAffected Lenders at par such Lender’s Revolving Share or Term Share, as applicable, of theoutstanding Advances of the Affected Lenders and assume such Lender’s Revolving Share of theAffected Lenders’ Letter of Credit Exposure. The Borrower shall pay each such AffectedLender 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) onaccount of the Advances made by it in excess of its Revolving Share, Term Share or PIK Share, asapplicable, of payments or collateral on account of the Advances or Letter of Credit Obligationsobtained by all the Lenders, such Lender shall notify the Administrative Agent and forthwithpurchase from the other Lenders such participations in the Advances, as applicable, made by them orLetter of Credit Obligations held by them as shall be necessary to cause such purchasing Lender toshare the excess payment or benefits of such collateral or proceeds ratably in accordance with therequirements of this Agreement with each of them; provided, however, that if all orany portion of such excess payment is thereafter recovered from such purchasing Lender, suchpurchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lenderthe 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 suchexcess payment to (b) the total amount of such excess payment) of such recovery, together with anamount equal to such Lender’s ratable share (according to the proportion of (a) the amount of suchLender’s required repayment to the purchasing Lender to (b) the total amount of all such requiredrepayments to the purchasing Lender) of any interest or other amount paid or payable by thepurchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lenderso purchasing a participation from another Lender pursuant to this Section 2.16 may, to the fullestextent permitted by Legal Requirement, unless and until rescinded as provided above, exercise allits rights of payment (including the right of set-off) with respect to such participation as fullyas 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 eachLender to make an initial Advance hereunder and of the Issuing Bank to issue any Letter of Creditare 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 insufficient copies for each Lender;     (ii) counterparts of any and all amendments, restatements or modifications ofthe Guaranties and the Environmental Indemnities reasonably required by theAdministrative Agent and Lenders to update the same in a manner that reflects theexecution, delivery and effectiveness of this Agreement and the applicability ofsuch documents to the obligations, duties and responsibilities of the Borrowercontained herein;     (iii) counterparts of any and all amendments, restatements or modifications ofthe Security Documents to the extent applicable executed by the Borrower, the Parentand 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 documentsto the obligations, duties and responsibilities of the Borrower contained herein andotherwise assuring that such documents continue to grant to the Administrative Agentfor the benefit of the Lenders an Acceptable Lien in the Collateral, together withstock certificates, stock powers executed in blank, UCC-1 financing statements andany other documents, agreements or instruments reasonably necessary or desirable tocreate an Acceptable Lien in the Collateral;
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     (iv) a certificate from a Responsible Officer of the Parent on behalf of theBorrower 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 andthe Credit Documents are true and correct in all material respects; (B) no Defaulthas occurred and is continuing; (C) the conditions in this Section 3.01 have beenmet or waived in writing; and (D) to the best of the Borrower’s knowledge there areno claims, defenses, counterclaims or offsets against the Lenders under the CreditDocuments;     (v) a certificate of the Secretary or an Assistant Secretary of the Parent onbehalf of the Borrower and each corporation and limited liability company that iseither a Guarantor or a general partner or manager of a Guarantor dated as of thedate of this Agreement (A) certifying as of the Effective Date the names and truesignatures of officers or authorized representatives of the Parent and such otherPersons authorized to sign the Credit Documents to which such Person is a party inthe capacity therein indicated, (B) attaching and certifying as of the EffectiveDate resolutions of the Board of Directors or the members of the Parent and suchother Persons with respect to the transactions herein contemplated, (C) attachingand certifying as of the Effective Date the copies of the organizational documentsof the Parent, the Borrower and each of the Guarantors, and (D) attaching andcertifying as of the Effective Date a true and correct copy of all partnership,corporate or limited liability company authorizations necessary or desirable inconnection 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 formreasonably acceptable to the Administrative Agent, in each case dated as of theEffective Date and with such changes as the Administrative Agent may approve, and(B) such other legal opinions as either of the Administrative Agent shall reasonablyrequest, in each case dated as of the Effective Date and with such changes as theAdministrative Agent may approve;     (vii) such documents and certifications as the Administrative Agent mayreasonably require to evidence that each of the Parent, Borrower and each Guarantoris duly organized or formed;     (viii) a pro forma Compliance Certificate dated as of the Effective Date, dulycompleted and executed by the Chief Financial Officer or Treasurer of the Parent;and     (ix) such other documents, governmental certificates, agreements, lien searchesas the Administrative Agent may reasonably request.     (b) Representations and Warranties. The representations and warrantiescontained in Article IV hereof, the Security Agreement, the Guaranties and the EnvironmentalIndemnities shall be true and correct in all material respects.     (c) Certain Payments. The Borrower shall have paid or repaid, as applicablethe fees required to be paid as of the execution of this Credit Agreement pursuant to theFee Letter.     (d) Security Documents. The Administrative Agent shall have received allappropriate evidence required by the Administrative Agent in its reasonable discretionnecessary to determine that the Administrative Agent (on behalf of itself and the Lenders)has an Acceptable Lien in the Collateral, including, without limitation, lien searchesconducted on the Borrower and the Guarantors and lien releases with respect to anyCollateral currently subject to a Lien other than Permitted Encumbrances.     (e) Lien Searches. The Administrative Agent shall have received the results ofrecent lien searches with respect to the Borrower and the Guarantors and such searches shallnot reveal any liens other than liens permitted by the Credit Documents or liens to bedischarged substantially concurrently with the closing of the Advances pursuant todocumentation satisfactory to the Administrative Agent.
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     (f) Solvency Certificate. The Lenders shall have received a customary solvencycertificate from the Parent’s chief financial officer as to the solvency of the Parent andits Subsidiaries after giving effect to the transactions contemplated hereby.     (g) Due Diligence. The Administrative Agent shall have completed and shall besatisfied with the results of its due diligence investigation of the Borrower and theGuarantors.     (h) Fees. The Lenders and the Administrative Agent shall have received allfees required to be paid on or before the Effective Date (including, without limitation, theupfront fees referenced in that certain upfront fee letter agreement among AdministrativeAgent, Arranger and Borrower and dated as of the date hereof and the other fees referencedin that certain agency fee letter agreement among Administrative Agent, Arranger andBorrower and dated as of the date hereof), and the Administrative Agent shall have receivedreimbursement of all out-of-pocket expenses of the Administrative Agent payable by theBorrower in connection with the Advances.     (i) Resignation of Existing Administrative Agent and Related Documentation.The Administrative Agent shall have received (A) evidence, including any documentationrelated thereto, satisfactory to the Administrative Agent that Lehman Commercial Paper, asadministrative agent under the Existing Credit Facility, shall have resigned as such, and issucceeded by Bank of America, N.A., as Administrative Agent hereunder and (B) any recordsand documents in connection with the Existing Credit Agreement that the Administrative Agentdetermines in its reasonable discretion are necessary in order for it to perform its dutieshereunder, including but not limited to any records related to interest accrual with respectto the Existing Credit Agreement.     (j) Financial Statements. The Lenders shall have received (i) auditedconsolidated financial statements of the Parent for the two most recent fiscal years endedprior to the Effective Date as to which such financial statements are available, in eachcase satisfactory to the Lenders and (ii) unaudited interim consolidated financialstatements of the Parent for each quarterly period ended subsequent to the date of thelatest financial statements delivered pursuant to clause (i) of this paragraph and more than45 days prior to the Effective Date, in each case satisfactory to the Lenders.     (k) Balance Sheet. The Lenders shall have received a pro formaconsolidated balance sheet of the Parent satisfactory to the Lenders as at the date of themost recent consolidated balance sheet delivered pursuant to paragraph (j) above, adjustedto give effect to the consummation of the transaction and the financings contemplated herebyas if such transactions had occurred on such date.     (l) Budget. The Administrative Agent and Lenders shall have received andapproved a detailed budget (the “Effective Date Budget”) of projected cashexpenditures of the Parent, Borrower and their Subsidiaries for calendar year 2009, togetherwith a reconciliation of the amount of such cash expenditures incurred and/or paid duringcalendar year 2009 through May 31, 2009.     (m) Patriot Act. The Administrative Agent and each Lender shall have receivedall documentation and other information required by bank regulatory authorities underapplicable “know your customer” and Anti-Money Laundering rules and regulations, includingwithout limitation, the Act.     Without limiting the generality of the provisions of Section 9.04, for purposes of determiningcompliance with the conditions specified in this Section 3.01, each Lender that has signed thisAgreement shall be deemed to have consented to, approved or accepted or to be satisfied with, eachdocument or other matter required thereunder to be consented to or approved by or acceptable orsatisfactory to a Lender unless the Administrative Agent shall have received notice from thatLender prior to the proposed Effective Date specifying its objection thereto.     **Section 3.02****Conditions Precedent for Each Borrowing or Letter of Credit**. Theobligation of each Lender to fund an Advance on the occasion of each Borrowing (other than theConversion or continuation of any existing Borrowing and other than in respect of PIK AccrualAdvances) and of any Issuing Bank to issue or increase
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or extend any Letter of Credit shall be subject to the further conditions precedent that onthe 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 applicableNotice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing orthe issuance or increase or extension of such Letter of Credit shall constitute arepresentation and warranty by the Borrower that on the date of such Borrowing or theissuance or increase or extension of such Letter of Credit such statements are true):     (i) the representations and warranties contained in Article IV hereof, theSecurity Agreement, the Guaranties, the Environmental Indemnities and the otherCredit Documents, as such representations and warranties may change based uponevents or activities permitted by this Agreement, are correct in all materialrespects (to the extent not otherwise qualified by materiality) on and as of thedate of such Borrowing or the issuance or increase or extension of such Letter ofCredit, before and after giving effect to such Borrowing or to the issuance orincrease or extension of such Letter of Credit and to the application of theproceeds 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 suchBorrowing or from the application of the proceeds therefrom, as evidenced by theNotice of Borrowing; and     (b) the Administrative Agent shall have received such other approvals, opinions ordocuments deemed necessary or desirable by any Lender or the Administrative Agent as suchparty 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 goodstanding under the laws of Delaware and in good standing and qualified to do business ineach jurisdiction where its ownership or lease of property or conduct of its businessrequires such qualification, except where the failure to so qualify would not cause aMaterial Adverse Change to the Borrower.     (b) The Parent is a corporation duly organized, validly existing, and in good standingunder the laws of Delaware and in good standing and qualified to do business in eachjurisdiction where its ownership or lease of property or conduct of its business requiressuch qualification, except where the failure to so qualify would not cause a MaterialAdverse Change to the Parent.     (c) The entire authorized capital stock of the Parent consists of (i) 250,000,000shares of Parent common stock of which approximately 32,138,041 shares of Parent commonstock are duly and validly issued and outstanding, fully paid and nonassessable as of March31, 2009 and (ii) 5,000,000 shares of Parent preferred stock of which no shares are issuedor outstanding.     (d) Each Subsidiary of the Borrower or the Parent is a limited partnership, generalpartnership, corporation or limited liability company duly organized, validly existing, andin good standing under the laws of its jurisdiction of formation and in good standing andqualified to do business in each jurisdiction where conduct of its business requires suchqualification, except where the failure to so qualify would not cause a Material AdverseChange to such Subsidiary. Except for the Beverage Entities, Schedule 4.01 lists thejurisdiction of formation, and the address of the principal office of each Subsidiary of theBorrower or the Parent existing on the date of this Agreement. As of the date of thisAgreement, the
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Parent or the Borrower owns, directly or indirectly, at least the percentage interestsin each such Subsidiary listed on the attached Schedule 4.01.     **Section 4.02****Partnership and Corporate Power**. The execution, delivery, andperformance by the Borrower and each Guarantor of the Credit Documents to which it is a party andthe 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 dulyauthorized by all necessary corporate, limited liability company and partnership action, asapplicable, (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 contraventionof which could reasonably be expected to cause a Material Adverse Change, and (d) will not resultin or require the creation or imposition of any Lien prohibited by this Agreement. At the time ofeach Borrowing, such Borrowing and the use of the proceeds of such Borrowing (as applicable) willbe within the Borrower’s partnership powers, will have been duly authorized by all necessarypartnership action, (a) will not contravene (i) the Borrower’s partnership agreement or (ii) anylaw or any contractual restriction binding on or affecting the Borrower, the contravention of whichcould reasonably be expected to cause a Material Adverse Change, and (b) will not result in orrequire the creation or imposition of any Lien prohibited by this Agreement.     **Section 4.03****Authorization and Approvals**. No authorization or approval or otheraction by, and no notice to or filing with, any Governmental Authority (other than the filing ofthe 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 theCredit Documents to which it is a party or the consummation of the transactions contemplatedthereby, the absence of which could reasonably be expected to cause a Material Adverse Change. Atthe time of each Borrowing, no authorization or approval or other action by, and no notice to orfiling with, any Governmental Authority will be required for such Borrowing or the use of theproceeds of such Borrowing the absence of which could reasonably be expected to cause a MaterialAdverse Change.     **Section 4.04****Enforceable Obligations**. This Agreement, the Notes, and the other CreditDocuments 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 havebeen duly executed and delivered by such Guarantor; and the Environmental Indemnity and SecurityAgreement have been duly executed and delivered by the respective parties thereto. Each CreditDocument is the legal, valid, and binding obligation of the Borrower, the Parent, and eachGuarantor which is a party to it enforceable against the Borrower, the Parent, and each suchGuarantor in accordance with its terms, except as such enforceability may be limited by anyapplicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’rights generally and by general principles of equity (whether considered in proceeding at law or inequity).     **Section 4.05****Financial Statements**. The respective Consolidated balance sheets,statements of operations, shareholders’ equity and cash flows of the Parent and its Subsidiariescontained in the Financial Statements, and the corresponding pro forma financial statements for theParent and its Subsidiaries, fairly present the financial condition in all material respects andreflects the Indebtedness of such Person and such Person’s Subsidiaries on a Consolidated basis asof the dates indicated in the Financial Statements and the respective results of the operations forthe periods indicated, and such balance sheets and statements were prepared in accordance withGAAP, subject to year-end adjustments. Since December 31, 2008, no Material Adverse Change hasoccurred; provided, however, that the material disruption in the market conditionsas 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 otherstatement made by any Loan Party (or on behalf of any Loan Party) in this Agreement or any otherCredit Document contains any untrue statement of a material fact or omits to state any materialfact necessary to make the statements contained therein not misleading in light of thecircumstances in which they were made as of the date of this Agreement. There is no fact known toany Responsible Officer of the Borrower or the Parent on the date of this Agreement that has notbeen disclosed to the Administrative Agent which could reasonably be expected to cause a MaterialAdverse Change. All projections, estimates, and pro forma financial information furnished by theBorrower and/or the Parent or on behalf of the Borrower were prepared on the basis of assumptions,data, information, tests, or conditions
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believed to be reasonable at the time such projections, estimates, and pro forma financialinformation were furnished. No representation, warranty or other statement made in the Parent’slatest 10K, 10Q or annual report contains any untrue statement of material fact or omits to stateany material fact necessary to make the statements contained therein not misleading in light of thecircumstances in which they were made as of the date same were made. Borrower and/or Parent hasmade all filings required by the Exchange Act.     **Section 4.07****Litigation**. Except as set forth in the attached Schedule 4.07, there isno pending or, to the best knowledge of the Borrower, threatened investigation, action orproceeding affecting the Borrower or the Parent or any of their respective Subsidiaries by orbefore any court, Governmental Authority or arbitrator either (a) in which in Borrower’s good faithjudgment 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 thisAgreement, the representation shall only be deemed to apply to those matters for whichAdministrative Agent would have been entitled to notice under Section 5.05(j)) or (b) which inBorrower’s good faith judgment would result in criminal penalties against the Parent, the Borroweror their respective Subsidiaries which could reasonably be expected to cause a Material AdverseChange.     **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 NewInvestments pursuant to the provisions of Section 6.06 and (iii) any refinance and, ifapplicable, repayment of the Existing Credit Facility; provided, however that at no timeshall the proceeds of the Advances be used to repay or prepay any Indebtedness other thanthe Obligations.     (b) Regulations. No proceeds of Advances will be used to purchase or carry anyMargin 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 interpretationsthereunder or thereof. The Borrower is not engaged in the business of extending credit forthe purpose of purchasing or carrying Margin Stock.     (c) Letters of Credit. The Letters of Credit shall be used by the Borrower inconnection with (i) the making of Permitted New Investments pursuant to the provisions ofSection 6.06 and (ii) the Borrower’s Hospitality Management Business and ancillaryactivities.     **Section 4.09****Investment Company Act**. Neither the Borrower, the Parent nor any oftheir 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 andstatements required to be filed (after giving effect to any extension granted in the time forfiling) by the Parent, the Borrower, their respective Subsidiaries, or any member of a ControlledGroup have been filed with the appropriate governmental agencies in all jurisdictions in which suchreturns, reports and statements are required to be filed, and where the failure to file couldreasonably be expected to cause a Material Adverse Change, except where contested in good faith andby appropriate proceedings; and all taxes and other impositions due and payable (which are materialin amount) have been timely paid prior to the date on which any fine, penalty, interest, latecharge or loss (which are material in amount) may be added thereto for nonpayment thereof exceptwhere contested in good faith and by appropriate proceedings with respect to which adequatereserves in conformity with GAAP have been provided. As of the date of this Agreement, neither theParent, the Borrower, any of their respective Subsidiaries nor any member of a Controlled Group hasgiven, or been requested to give, a waiver of the statute of limitations relating to the payment ofany federal, state, local or foreign taxes or other impositions. None of the Property owned by theParent, the Borrower, any of their respective Subsidiaries or any other member of a ControlledGroup is Property which the Parent, the Borrower, any of their respective Subsidiaries or anymember of a Controlled Group is required to be treated as being owned by any other Person pursuantto the provisions of Section 168(f)(8) of the Code. Proper and accurate amounts have been withheldby the Parent, the Borrower, their respective Subsidiaries and all members of each Controlled Groupfrom their employees for all periods to comply in all material respects with the tax, socialsecurity and unemployment withholding provisions of applicable federal, state, local and foreignlaw. Timely payment of all material sales and use taxes required by applicable law have been madeby the Parent, the Borrower,
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their respective Subsidiaries and all other members of each Controlled Group, the failure totimely pay of which could reasonably be expected to cause a Material Adverse Change. The amountsshown on all tax returns to be due and payable have been paid in full or adequate provisiontherefore 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 ControlledGroup has entered into, or otherwise participated (directly or indirectly) in, any “reportabletransaction” within the meaning of Treasury Regulation section 1.6011-4(b) or has received awritten tax opinion from a tax advisor that was intended to provide protection against a taxpenalty.     **Section 4.11****Pension Plans**. Each Title IV Plan is listed on Schedule 4.11. All Plansare in compliance in all material respects with its terms all applicable provisions of ERISA, theCode and all applicable Laws. No Termination Event has occurred, or is reasonably expected tooccur. No “accumulated funding deficiency” (as defined in Section 302 of ERISA) has occurred withrespect to a Title IV Plan and there has been no excise tax imposed under Section 4971 of the Codewith respect to a Title IV Plan. No Reportable Event has occurred, or is reasonably expected tooccur, with respect to a Title IV Plan, and to the Borrower’s actual knowledge no MultiemployerPlan has failed to comply with or to be administered in all material respects with applicableprovisions of ERISA and the Code. Neither the Borrower, the Parent nor any member of a ControlledGroup has had a complete or partial withdrawal from any Multiemployer Plan for which there is anymaterial withdrawal liability. As of the most recent valuation date applicable thereto, neitherthe Borrower nor any member of a Controlled Group has received notice that any Multiemployer Planis insolvent or in reorganization. Neither the Borrower, any Guarantor nor any member of theControlled Group would have any liability in excess of $10,000,000 as a result of a completewithdrawal from any Multiemployer Plan on the date this representation is made. The present valueof the “benefit liabilities” (within the meaning of Section 4001(a)(16) of ERISA) of each Title IVPlan (using the actuarial assumptions and methods used by the actuary to that Title IV Plan in itsmost recent valuation of that Title IV Plan) does not exceed the fair market value of the assets ofeach such Title IV Plan that could reasonably be expected to result in liability to the Borrower orany of its Subsidiaries in excess of $10,000,000.     **Section 4.12****Insurance**. The Borrower and each of its Subsidiaries carry the insurancerequired 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 tothe provisions of Section 6.02, or (ii) being repaid with the proceeds of the initialBorrowing, 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 respectiveSubsidiaries is a party to any agreement or instrument or subject to any charter orcorporate restriction or provision of applicable law or governmental regulation which couldreasonably be expected to cause a Material Adverse Change. Neither the Borrower, nor theParent, nor their respective Subsidiaries has entered into or suffered to exist anyagreement (other than this Agreement and the Credit Documents and as set forth in thePermitted Property Agreements) (i) prohibiting the creation or assumption of any Lien uponthe Properties of the Parent, the Borrower or any of their respective Subsidiaries (exceptfor Properties of and Ownership Interests in the Permitted Other Subsidiaries), whether nowowned or hereafter acquired, or (ii) requiring an obligation to be secured if some otherobligation is or becomes secured.     (b) Neither the Borrower, the Parent nor any of their Subsidiaries is in default underor with respect to any contract or agreement which could reasonably be expected to cause aMaterial Adverse Change. Neither the Borrower, the Parent nor any of their Subsidiaries hasreceived any notice of default under any material contract or agreement which is continuingand 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 thisrepresentation after the date of this Agreement, as otherwise disclosed to theAdministrative Agent in writing after the date of this Agreement and prior to the date suchrepresentation 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 thisrepresentation after the date of this Agreement, as otherwise disclosed to theAdministrative Agent in writing after the date of this Agreement and prior to the date suchrepresentation is deemed given), to the knowledge of the Borrower, the Borrower, the Parentand their respective Subsidiaries (i) have obtained all Environmental Permits material forthe 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 suchEnvironmental Permits and with all other requirements of applicable Environmental Laws;(iii) have not received notice of any violation or alleged violation of any EnvironmentalLaw or Environmental Permit; and (iv) are not subject to any actual or contingentEnvironmental Claim.     (b) Except as disclosed in Schedule 4.14, and to the knowledge of Borrower with respectto any Property other than an Owned Hospitality Property, no Property which is presentlyowned or leased or was previously owned or leased by the Borrower, the Parent or of any oftheir respective present or former Subsidiaries, wherever located, (i) has been placed on orproposed to be placed on the National Priorities List, the Comprehensive EnvironmentalResponse Compensation Liability Information System list, or their state or local analogs, orhave been otherwise investigated, designated, listed, or identified as a Fund or otherpotential site for removal, remediation, cleanup, closure, restoration, reclamation, orother response activity under any Environmental Laws which could reasonably be expected tocause a Material Adverse Change; (ii) is subject to a Lien, arising under or in connectionwith any Environmental Laws, that attaches to any revenues or to any Property operated bythe 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 Wastesfrom present or past operations except for Permitted Hazardous Substances, which PermittedHazardous Substances have not caused at the site or at any third-party site any conditionthat 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 GovernmentalAuthority having land use jurisdiction as wetlands.     (c) Except as disclosed on Schedule 4.14, there are no Hazardous Materials located onany property owned or, to the knowledge of the Borrower, operated by the Borrower or Parentother than Permitted Hazardous Materials or Hazardous Materials, the presence of which wouldnot reasonably be expected to result in the Borrower or Parent incurring materialliabilities under Environmental Laws.     **Section 4.15****Legal Requirements, Zoning**. Except as set forth on Schedule 4.15attached hereto, the current use and operation of each Property which is presently owned oroperated 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 byspecial use permits or the granting of variances) and (b) complies in all material respects withall 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 anyportion thereof) except for non-legal use or non-compliance which in the aggregate would not causea Material Adverse Change. The Borrower, the Parent and their respective Subsidiaries possess allcertificates of public convenience, authorizations, permits, licenses, patents, patent rights orlicenses, 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 aMaterial Adverse Change. The Borrower, the Parent and their respective Subsidiaries own andoperate their business in material compliance with all applicable Legal Requirements except fornon-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 ofCredit) or Interest Rate Agreements of the Borrower or any of its Subsidiaries existing asof 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 suchIndebtedness or Interest Rate Agreement (or with respect to the
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giving of this representation after the date of this Agreement, as otherwise disclosedto the Administrative Agent in writing after the date of this Agreement and prior to thedate such representation is deemed given).     (b) The only Existing Letters of Credit as of the Effective Date are set forth onSchedule 4.16(b) attached hereto.     (c) To the best of the Borrower’s knowledge, (i) the fair value and present fairsaleable value on a going concern basis of the Property of the Parent, the Borrower andtheir respective Subsidiaries, on a Consolidated basis, exceeds the amount that will berequired to pay the probable liabilities of such Persons, on a Consolidated basis, on theirIndebtedness, as such Indebtedness becomes absolute and matured, (ii) the Parent, theBorrower and their respective Subsidiaries, on a Consolidated basis, will have sufficientcash flow to enable them to pay their debts as they mature, and (iii) the Parent, theBorrower and their respective Subsidiaries, on a Consolidated basis, are able to pay theirIndebtedness as it matures in the normal course of business.     **Section 4.17****Leasing Arrangements**. The only material leases for which either theBorrower or a Guarantor is a lessee are office leases.     **Section 4.18****Management Agreements**. The only management agreements for which eitherthe Borrower or a Guarantor is a manager are the Existing Management Agreements. The ExistingManagement Agreements are in full force and effect; no monetary defaults by the Borrower or anyGuarantor, 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 Borrowerby any other party thereto, exist thereunder which could reasonably be expected to cause a MaterialAdverse Change (or with respect to the giving of this representation after the date of thisAgreement, as otherwise disclosed to the Administrative Agent in writing after the date of thisAgreement and prior to the date such representation is deemed given). No notice of termination forany such Existing Management Agreement has been received by the Borrower or any Guarantor otherthan as disclosed to the Administrative Agent.     **Section 4.19 [Intentionally Omitted]**.     **Section 4.20****Franchise Agreements**. The only franchise agreements or licenseagreements to which the Borrower or a Guarantor are a party are those certain agreements disclosedto the Administrative Agent in writing. Any such franchise and license agreements are in fullforce and effect and no material defaults by the Borrower or any Subsidiary exist thereunder whichcould reasonably be expected to cause a Material Adverse Change (or with respect to the giving ofthis representation after the date of this Agreement, as otherwise disclosed to the AdministrativeAgent in writing after the date of this Agreement and prior to the date such representation isdeemed given).     **Section 4.21****Title; Liens**. The Owned Hospitality Properties are set forth on Schedule4.21 attached hereto. None of the Owned Hospitality Properties have been or are subject to acondemnation proceeding or a casualty which individually or in the aggregate could cause a MaterialAdverse Change. With respect to the Owned Hospitality Properties set forth on Schedule 4.21, theBorrower, the Parent or its Subsidiaries, as applicable, has good and marketable fee simple titleto such Owned Hospitality Property, free and clear of all Liens other than the PermittedEncumbrances. None of the Permitted Encumbrances has a Material Adverse Change or otherwisematerially interferes with the current or intended use or operation of any Owned HospitalityProperty or materially impairs the value of any Owned Hospitality Property.     **Section 4.22****Approved Inter-Company Indebtedness**. The only inter-company Indebtednessbetween the Parent, the Borrower and any of their respective Subsidiaries is the ApprovedInter-Company Indebtedness. The Approved Inter-Company Indebtedness Loan Documents listed onSchedule 1.01(a) are all of the documents evidencing or securing the Approved Inter-CompanyIndebtedness or executed by the applicable parties in connection with the Approved Inter-CompanyIndebtedness. The Borrower has provided the Administrative Agent with a true, correct and completecopy of the Approved Inter-Company Indebtedness Loan Documents and such documents have not beenamended or modified except as set forth in Schedule 1.01(a). The outstanding amount of theApproved 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. EachInsurance Company is listed in Schedule 4.23(a). Schedule 4.23(a) hereto lists all of thejurisdictions in which each Insurance Company holds an Insurance License and is authorizedto transact insurance business as of the Effective Date and the line or lines of insurancein which each Insurance Company is engaged. No Insurance License held by any InsuranceCompany, 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 theBorrower, the Parent or any of their respective Subsidiaries, there is not a sustainablebasis for such suspension or revocation, and no such suspension or revocation has beenthreatened by any Governmental Authority. Each of the Insurance Companies has filed allreports, statements, documents, registrations, filings or submissions required to be filedby it with any applicable Governmental Authority, which filings conform in all materialrespects to any applicable Legal Requirements, except where the failure to so file orconform could not, individually or in the aggregate, be reasonably expected to cause aMaterial Adverse Change. Schedule 4.23(a) sets forth a true, correct and complete listingof all securities deposited with state insurance departments and other GovernmentalAuthority, which deposits have been completed in accordance with the schedule of depositsset forth in each Insurance Company’s December 31, 2008 Insurance Annual Statement.     (b) SAP Financial Statements, Examination Reports and Loss Runs. The Borrowerhas previously delivered to the Administrative Agent for distribution to each of the Lenderstrue and complete copies of the SAP Financial Statements as filed with the domiciliary stateinsurance 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 Statementsfairly presents in all material respects the results of operations of the applicableInsurance 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 thebasic statutory financial statements included therein, present fairly in all materialrespects the information shown therein. Each of the SAP Financial Statements was correct inall material respects when filed and did not omit to state any material facts required to bestated or necessary in order to make the SAP Financial Statements not misleading. TheBorrower has previously delivered to the Administrative Agent for distribution to each ofthe Lenders true and complete copies of all examination reports of insurance departments andany insurance regulatory agencies since December 31, 2008 relating to the InsuranceCompanies. The loss runs for the years ended December 31, 2006, 2007 and 2008, which theBorrower has previously delivered to the Administrative Agent for distribution to each ofthe Lenders in writing, are true, correct and complete in all material respects.     (c) Investment Portfolios. The Borrower has previously delivered to theAdministrative Agent for distribution to each of the Lenders true and complete lists as ofDecember 31, 2008 of all assets held in the investment portfolios of the InsuranceCompanies. None of the investments included in such investment portfolios is in defaultwith respect to the payment of principal, interest or dividends thereon or is materiallyimpaired. All such investments comply with all applicable Legal Requirements except fornon-compliance which in the aggregate would not cause a Material Adverse Change. EachInsurance Company owns assets which qualify as admitted assets under applicable stateinsurance Legal Requirements in an amount at least equal to the sum of all of its InsuranceReserve Liabilities and minimum statutory capital and Insurance Surplus reflected on thelatest SAP Financial Statements.     (d) Insurance Reserve Liabilities and Adequate Provisions. All InsuranceReserve Liabilities as established or reflected in the SAP Financial Statements (i) weredetermined in accordance with generally accepted actuarial standards consistently applied,(ii) are fairly stated in accordance with sound actuarial principles, (iii) are based onactuarial assumptions that are in accordance with those called for by the relevant InsuranceContract and the related Reinsurance Contract and (iv) meet in all material respects therequirements of all applicable insurance Legal Requirements. Adequate provision for suchInsurance Reserve Liabilities has been made (under generally accepted actuarial principlesconsistently applied) to cover the total amount of all reasonably anticipated matured andunmatured benefits, dividends, claims and other liabilities of the Insurance Companies underall Insurance Contracts and Reinsurance Contracts on the
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date of such SAP Financial Statement based on then current information that forms areasonable basis for such determination. Each of the Insurance Companies owns assets thatqualify as legal reserve assets under applicable insurance Legal Requirements in an amountat least equal to all of such Insurance Company’s Insurance Reserve Liabilities. Adequateprovision has been made for all estimated losses, settlements, costs and expenses frompending suits, actions and proceedings contemplated by the SAP Financial Statements.     (e) Insurance Contracts and Reinsurance Contracts. Each outstanding InsuranceContract issued, reinsured or underwritten by an Insurance Company is listed in Schedule4.23(e), together with the maximum amount payable by an Insurance Company thereunder. Alloutstanding Reinsurance Contracts with respect to such Insurance Contracts are listed inSchedule 4.23(e), together with the maximum amount payable by an Insurance Companythereunder. All Insurance Contracts, Reinsurance Contracts and any and all marketingmaterials are, to the extent required under applicable Legal Requirements, on forms approvedby the insurance regulatory authority of the jurisdiction where issued or filed and have notbeen objected to by such authority within the period provided for objection and have beenfiled or registered as required with all other applicable Governmental Authorities. As topremium 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 isno pending or, to the knowledge of the Borrower, the Parent or any of their respectiveSubsidiaries, threatened charge by any insurance regulatory authority that any of theInsurance Companies has violated, nor any pending or, to the knowledge of the Borrower, theParent or any of their respective Subsidiaries, threatened investigation by any insuranceregulatory authority with respect to possible violations of, any applicable LegalRequirements where such violations would, individually or in the aggregate, cause a MaterialAdverse Change. All Insurance Contracts and Reinsurance Contracts have been marketed, soldand issued in compliance with all applicable Legal Requirements, except as could notreasonably be expected to cause a Material Adverse Change, including, without limitation, incompliance with (i) all applicable prohibitions against “redlining” or withdrawal ofbusiness lines, (ii) all applicable requirements relating to the disclosure of the nature ofinsurance products as policies of insurance and (iii) all applicable requirements relatingto insurance product projections and illustrations.     (f) Payment of Benefits. All benefits payable with respect to each InsuranceContract by an Insurance Company or, to the knowledge of the Borrower, the Parent or any oftheir respective Subsidiaries, by any other person that is a party to or bound by suchInsurance Contract, have in all material respects been paid in accordance with the terms ofsuch 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 ReinsuranceContract.     (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 otherparty to any Insurance Contract or Reinsurance Contract is so impaired as to be reasonablylikely to result in a default by such party under such contract which could reasonably beexpected to cause a Material Adverse Change.     **Section 4.24****Owned Hospitality Properties**.     (a) Except as indicated on a Title Policy previously delivered to the AdministrativeAgent, each of the Owned Hospitality Properties is served by water, electric, sewer,sanitary sewer and storm drain facilities and all other utilities necessary and sufficientfor all current and intended uses, and such utilities enter each of the Owned HospitalityProperties directly from a public right-of-way abutting such Owned Hospitality Property, andall such utilities are connected so as to serve each of the Owned Hospitality Propertieswithout passing over other property.     (b) No condemnation or eminent domain proceeding has been commenced, or, to Borrower’sknowledge, is pending or threatened against any Owned Hospitality Property or any roadwaysor easements providing access thereto.
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**ARTICLE V****AFFIRMATIVE COVENANTS**     So long as any Advance or any other amount under any Credit Document shall remain unpaid, anyLetter of Credit shall remain outstanding, or any Lender shall have any Commitment hereunder, theBorrower agrees to comply and cause the Parent and the Parent’s Subsidiaries to comply with thefollowing covenants.     **Section 5.01****Compliance with Laws**. The Borrower will comply, and cause the Parent andeach 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 topreserve and maintain, its partnership, limited liability company or corporate (asapplicable) existence, rights, franchises and privileges in the jurisdiction of itsformation, and qualify and remain qualified, and cause each such Subsidiary to qualify andremain qualified, as a foreign partnership, corporation or limited liability company, asapplicable in each jurisdiction in which qualification is necessary or desirable in view ofits business and operations or the ownership of its properties, and, in each case, wherefailure to qualify or preserve and maintain its rights and franchises could reasonably beexpected to cause a Material Adverse Change.     (b) [Intentionally Omitted].     (c) The Borrower shall cause the P**e**rmitted Other Subsidiaries which have Indebtednessto, (i) maintain financial statements, accounting records and other corporate records andother documents separate from all non-Permitted Other Subsidiaries, (ii) maintain their ownbank 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 toincur) obligations to other Persons based solely upon their own assets and creditworthinessand not upon the creditworthiness of each other or any other Person, and (iv) file their owntax returns or, if part of a consolidated group, join in the consolidated tax return of suchgroup as a separate member thereof.     (d) The Borrower shall, and shall cause the Permitted Other Subsidiaries which haveIndebtedness to, take all actions necessary to keep such Permitted Other Subsidiaries,separate from the Borrower and the Borrower’s other Subsidiaries, including, withoutlimitation, (i) the taking of action under the direction of the Board of Directors, membersor partners, as applicable, of such Permitted Other Subsidiaries and, if so required by theCertificate of Incorporation or the Bylaws, operating agreement or partnership agreement, asapplicable, of such Permitted Other Subsidiaries or by any Legal Requirement, the approvalor consent of the stockholders, members or partners, as applicable, of such Permitted OtherSubsidiaries, (ii) the preparation of corporate, partnership or limited liability companyminutes for or other appropriate evidence of each significant transaction engaged in by suchPermitted Other Subsidiaries, (iii) the observance of separate approval procedures for theadoption of resolutions by the Board of Directors or consents by the partners, asapplicable, of such Permitted Other Subsidiaries, on the one hand, and of the Borrower andthe Borrower’s other Subsidiaries, on the other hand, and (iv) preventing the cash, cashequivalents, credit card receipts or other revenues of the Hospitality Properties owned bysuch Permitted Other Subsidiaries or any other assets of such Permitted Other Subsidiariesfrom being commingled with the cash, cash equivalents, credit card receipts or otherrevenues collected by the Borrower or the Borrower’s other Subsidiaries.     (e) The Borrower shall take all steps reasonably necessary to avoid (i) misleading anyother Person as to the identity of the entity with which such Person is transacting businessor (ii) implying that the Borrower is, directly or indirectly, absolutely or contingently,responsible for the Indebtedness or other obligations of the Permitted Other Subsidiaries orany other Person.
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     **Section 5.03****Payment of Taxes, Etc**. The Borrower will pay and discharge, and causeeach of its Subsidiaries to pay and discharge, before the same shall become delinquent (a) alltaxes, assessments and governmental charges or levies imposed upon it, including employeewithholding taxes, or upon its income or profits or Property that are material in amount, prior tothe date on which penalties attach thereto and (b) all lawful claims that are material in amountwhich, 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 ordischarge any such tax, assessment, charge, levy, or claim (i) which is being contested in goodfaith and by appropriate proceedings, (ii) with respect to which adequate reserves in conformitywith GAAP have been provided, (iii) such charge or claim does not constitute and is not secured byany choate Lien on any portion of any Owned Hospitality Property and no portion of any OwnedHospitality Property is in jeopardy of being sold, forfeited or lost during or as a result of suchcontest, (iv) neither the Administrative Agent nor any Lender could become subject to any civilfine or penalty or criminal fine or penalty, in each case as a result of non-payment of such chargeor claim and (iv) such contest does not, and could not reasonably be expected to, result in aMaterial Adverse Change.     **Section 5.04****Visitation Rights; Lender Meeting**. Subject to the rights of the ownersof the Hospitality Properties for which there are Permitted Property Agreements, at any reasonabletime and from time to time and so long as any visit or inspection will not unreasonably interferewith the Borrower’s or any of its Subsidiary’s operations, upon reasonable notice, the Borrowerwill permit the Administrative Agent and any Lender or any of its agents or representativesthereof, to examine and make copies of and abstracts from the records and books of account of, andvisit and inspect at its reasonable discretion the Properties owned or operated by the Borrower andany of its Subsidiaries, to discuss the affairs, finances and accounts of such Persons with any oftheir respective officers or directors. Without in any way limiting the foregoing, the Borrowerwill, upon the request of the Administrative Agent, participate in a meeting with theAdministrative Agent and the Lenders once during each calendar year to be held at the Borrower’soffice in the District of Columbia or New York, New York (or such other location as may be agreedto by the Borrower and the Administrative Agent) at such time as may be agreed to by the Borrowerand the Administrative Agent.     **Section 5.05****Reporting Requirements**. The Borrower will furnish to the AdministrativeAgent and, with respect to those items set forth in clauses (a)-(d) and (j), (m), (n) and (o), eachLender:     (a) Quarterly Financials. As soon as available and in any event not later thanfifty (50) days after the end of each Fiscal Quarter of the Parent (except for the FiscalQuarter which ends on the date the Fiscal Year ends), the unaudited Consolidated balancesheets of the Parent and its Subsidiaries as of the end of such quarter and the relatedunaudited statements of income, shareholders’ equity and cash flows of the Parent and itsSubsidiaries for such Fiscal Quarter and the period commencing at the end of the previousyear and ending with the end of such Fiscal Quarter, and the corresponding figures as at theend of, and for, the corresponding periods in the preceding Fiscal Year, all duly certifiedwith respect to such statements (subject to reasonable year-end audit adjustments) by aResponsible Officer of the Parent as having been prepared in accordance with GAAP, togetherwith (i) property-level operating statements with respect to each of those seven real estateassets wholly owned by the Borrower and its Subsidiaries on the Effective Date and (ii) aCompliance Certificate duly executed by a Responsible Officer of the Parent;provided that the Total Indebtedness used to calculate the Leverage Ratio in suchCompliance Certificate shall be the Total Indebtedness as of the Status Reset Date duringthe Fiscal Quarter in which such Compliance Certificate was delivered.     (b) Annual Financials. As soon as available and in any event not later thanninety-five (95) days after the end of each Fiscal Year of the Parent, a copy of theConsolidated balance sheets of the Parent and its Subsidiaries as of the end of such FiscalYear and the related Consolidated statements of income, shareholders’ equity and cash flowsof the Parent and its Subsidiaries for such Fiscal Year, and the corresponding figures as atthe end of, and for, the preceding Fiscal Year, and audited and certified by independentcertified public accountants of nationally recognized standing reasonably acceptable to theAdministrative Agent in an opinion, without qualification as to the scope or any othermaterial qualification or exception (provided, that the failure of such accountant todeliver such an unqualified opinion based solely on the prospective failure of the Borrowerto comply with the covenants, terms and conditions set forth in the Credit Documents shallnot constitute a Default or Event of Default hereunder), and including, if requested by theAdministrative Agent, any management letters delivered by such accountants to the
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Parent in connection with such audit, together with (i) the unaudited consolidatingfinancial statements of the Parent and its Subsidiaries as of such date or for such timeperiod, as applicable, (ii) a Compliance Certificate duly executed by a Responsible Officerof the Parent, (iii) a certificate duly executed by a Responsible Officer of the Parentwhich reflects in detail reasonably acceptable to the Administrative Agent the financialperformance of the applicable Person related to the financial covenants contained in thedocumentation for any Permitted Other Indebtedness and (iv) property-level operatingstatements with respect to each of the owned real estate assets of the Borrower and itsSubsidiaries. As soon as available and in any event not later than 50 days after the end ofeach Fiscal Year of the Parent, the Borrower will furnish to the Administrative Agent adraft Compliance Certificate duly executed by a Responsible Officer of the Parent for suchend of Fiscal Year financial statements.     (c) Monthly Summary Financial Statements. Within twenty (20) days followingthe end of each calendar month, summary draft financial statements for the Borrower and itsSubsidiaries in form and substance acceptable to the Administrative Agent (subject to finalclosing adjustments).     (d) Securities Law Filings. Promptly and in any event within fifteen (15) daysafter the sending or filing thereof, copies of all proxy material, reports and otherinformation which the Borrower, the Parent or any of their respective Subsidiaries sends toor files with the United States Securities and Exchange Commission or sends to all of theshareholders of the Parent or partners of the Borrower.     (e) Defaults. As soon as possible and in any event within five (5) days afterthe occurrence of each Default known to a Responsible Officer of the Parent, the Borrower orany of their respective Subsidiaries, a statement of an authorized financial officer orResponsible Officer of the Borrower setting forth the details of such Default and theactions 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 reasonto know that any Termination Event described in clause (a) of the definition of TerminationEvent herein with respect to any Plan has occurred, a statement of the Chief FinancialOfficer of the Parent describing such Termination Event and the action, if any, which theParent, the Borrower or such member of such Controlled Group proposes to take with respectthereto (ii) within ten (10) days after the Parent, the Borrower or any of a ControlledGroup knows or has reason to know that any other Termination Event with respect to any Planor Multiemployer Plan has occurred, a statement of the Chief Financial Officer of the Parentdescribing such Termination Event and the action, if any, which the Parent, the Borrower orsuch 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 Groupfrom the PBGC, copies of each notice received by the Parent, the Borrower or any such memberof such Controlled Group of the PBGC’s intention to terminate any Plan or to have a trusteeappointed to administer any Plan; and (iv) within ten (10) days after receipt thereof by theParent, 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 ControlledGroup concerning the imposition or amount of withdrawal liability pursuant to Section 4202of ERISA.     (g) Environmental Notices. Promptly upon the knowledge of any ResponsibleOfficer of the Borrower of receipt thereof by the Borrower or any of its Subsidiaries, acopy of any form of notice, summons or citation received from the United StatesEnvironmental Protection Agency, or any other Governmental Authority concerning (i)violations or alleged violations of Environmental Laws, which seeks to impose liabilitytherefore, (ii) any action or omission on the part of the Parent or the Borrower or any oftheir present or former Subsidiaries in connection with Hazardous Waste or HazardousSubstances which, based upon information reasonably available to the Borrower, couldreasonably be expected to cause a Material Adverse Change or an Environmental Claim inexcess of $1,000,000 individually or in the aggregate with all other outstandingEnvironmental 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.
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     (h) Other Governmental Notices or Actions. Promptly and in any event withinfive Business Days after receipt thereof by the Parent, Borrower or any of their respectiveSubsidiaries, (i) a copy of any notice, summons, citation, or proceeding seeking toadversely modify in any material respect, revoke, or suspend any license, permit, or otherauthorization from any Governmental Authority, which action could reasonably be expected tocause a Material Adverse Change, and (ii) any revocation or involuntary termination of anylicense, permit or other authorization from any Governmental Authority, which revocation ortermination could reasonably be expected to cause a Material Adverse Change.     (i) [Intentionally Omitted].     (j) Corporate Activity. Promptly following any merger or dissolution of anySubsidiary of the Borrower which is permitted hereunder or event which would make any of therepresentations 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 respectiveSubsidiaries having knowledge thereof, notice of any litigation, claim or any other eventwhich could reasonably be expected to cause a Material Adverse Change.     (l) Insurance Information. Within ten (10) days of request by theAdministrative Agent, the Borrower shall provide the Administrative Agent copies of theunaudited Insurance Annual Statement of each Insurance Company, certified by a ResponsibleOfficer of the Parent as fairly presenting the financial condition and results of operationsof such Insurance Company in accordance with SAP consistently applied throughout the periodsreflected therein and the most recent examination reports and loss run sheets of theInsurance Companies.     (m) Budgets. The Borrower shall deliver to the Administrative Agent andLenders budgets and updates/proposed revisions thereto as of the dates required by andotherwise in accordance with the terms of Section 5.14 hereof.     (n) New Business Reports. Within ten (10) days following the end of eachcalendar month, a new business progress report specifying the Borrower’s or itsSubsidiaries’ progress with respect to the solicitation or negotiation of prospective newbusiness arrangements.     (o) Asset Sales Reports. Within ten (10) days following the end of eachcalendar month, the Borrower shall provide the Administrative Agent (for distribution to theLenders) an asset sales progress report with respect to the assets being marketed pursuantto Section 5.13 hereof and otherwise with respect to any other prospective asset sales.     (p) Other Information. Such other information respecting the business orProperties, or the condition or operations, financial or otherwise, of the Borrower, theParent or any of their respective Subsidiaries, as any Lender through the AdministrativeAgent may from time to time reasonably request.The Borrower hereby acknowledges and agrees that (A) the Administrative Agent and/or its Affiliatewill make available to the Lenders and the Issuing Bank materials and/or information provided by oron behalf of the Parent and/or the Borrower hereunder (collectively, “Materials”) byposting 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 recipientsof 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 informationwith respect to the Borrower or its securities) (each, a “Public Lender”). The Borrowerhereby agrees that (W) all Materials that are to be made available to Public Lenders shall beclearly 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 Parentand the Borrower shall be deemed to have authorized the Administrative Agent, its Affiliates, theIssuing Bank and the Lenders to treat such Materials as either publicly available information ornot material information
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(although it may be sensitive and proprietary) with respect to the Borrower, the Parent or theirrespective securities for purposes of United States Federal and state securities laws; (Y) allMaterials marked “PUBLIC” are permitted to be made available through a portion of the Platformdesignated “Public Investor;” and (Z) the Administrative Agent and its Affiliates shall be entitledto treat any Materials that are not marked “PUBLIC” as being suitable only for posting on a portionof the Platform not designated “Public Investor.”     **Section 5.06****Maintenance of Property**. The Borrower will, and will cause each of theParent and its Subsidiaries to (a) maintain their Owned Hospitality Properties in a mannerconsistent for Hospitality Properties and related property of the same quality and character andshall keep or cause to be kept every part thereof and its other properties in good condition andrepair, reasonable wear and tear excepted, and make all reasonably necessary repairs, renewals orreplacements thereto as may be reasonably necessary to conduct the business of the Borrower and itsSubsidiaries, (b) not knowingly or willfully permit the commission of waste or other injury, or theoccurrence of pollution, contamination or any other condition in, on or about any of their OwnedHospitality Properties, (c) substantially maintain and repair each of their Owned HospitalityProperties as required by any franchise agreement, license agreement, management agreement orground lease for such Owned Hospitality Property, and (d) perform such Person’s obligations underthe Permitted Property Agreements to which such Person is a party except where the non-performancethereof 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 itsSubsidiaries to maintain, the insurance required pursuant to Schedule 5.07.     **Section 5.08****Use of Proceeds and Letters of Credit**. The Advances and Letters ofCredit 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) forexecuting Security Documents in connection with the acquisition of Permitted NewInvestments, the Parent, the Borrower and the Subsidiaries (i) will cause at all times theAdministrative Agent to have an Acceptable Lien in the Collateral, (ii) will cause at alltimes all material provisions of the Security Documents to be valid and binding on thePersons executing such Security Documents and (iii) shall execute or re-execute suchSecurity Documents and take such other actions as the Administrative Agent shall reasonablyrequest in order for the Administrative Agent to maintain or create an Acceptable Lien inthe Collateral, including without limitation any Collateral acquired by the Borrower, theParent, or any of the other Guarantors after the Effective Date. Without limiting theforegoing, the Parent will, at all times during the term hereof, maintain an Acceptable Lienin the Parent’s Ownership Interests in the Borrower in favor of the Administrative Agent forthe benefit of the Administrative Agent and Lenders to secure the Obligations.     (b) Notwithstanding the foregoing, upon request of the Borrower to the AdministrativeAgent at any time when no Default or Event of Default exists or would result therefrom andany repayment of Advances required under this Agreement in connection therewith, theAdministrative Agent will release from the Liens of the Security Documents (i) the Propertywhich is the subject of a Permitted Asset Disposition at the time of such Permitted AssetDisposition and (ii) any Owned Hospitality Property and the Ownership Interests in thePermitted Other Subsidiary which owns such Owned Hospitality Property in connection with theincurrence of Permitted Other Indebtedness to be secured by such Collateral,provided that the Administrative Agent shall not be required to release any suchLiens in respect of this clause (ii) to the extent such Owned Hospitality Property is atsuch time subject to a Mortgage in favor of the Administrative Agent for the benefit of theAdministrative Agent and Lenders to secure the Obligations except to the extent theapplicable Owned Hospitality Property has been made subject to mortgage Indebtedness inaccordance with the terms of clause (c) of the definition of the term “Permitted OtherIndebtedness” and the proceeds thereof have, as proceeds of a Repayment Event, been used toprepay 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 suchPermitted Other Indebtedness are, at any time, released or terminated, and such OwnedHospitality Property remains owned by a Subsidiary of the Borrower, such Owned HospitalityProperty shall, within ten (10) Business Days of such release or termination, againconstitute part of the
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Collateral and be made subject to a Mortgage hereunder in favor of the AdministrativeAgent for the benefit of the Administrative Agent and Lenders to secure the Obligations. Ifthe Property released in connection with any such Permitted Asset Disposition includes allor substantially all of the Ownership Interests in a Guarantor, or if a Guarantor incursPermitted Other Indebtedness, then, upon request of the Borrower to the AdministrativeAgent, at the time of such Permitted Asset Disposition or the incurrence of such PermittedOther Indebtedness, as applicable, the Administrative Agent shall release such Guarantorfrom the Guaranty and the other Credit Documents to which such Guaranty is a party. Inaddition, the Administrative Agent agrees to take, and the Lenders authorize theAdministrative Agent to take, such actions as are reasonably requested by the Borrower andat the Borrower’s expense to terminate the Liens and security interests created by theCredit Documents when all the Obligations are paid in full and all Letters of Credit andCommitments are terminated. Notwithstanding anything to the contrary contained herein, tothe extent any creditor providing any mortgage indebtedness constituting Permitted OtherIndebtedness pursuant to clause (c) of the definition of such term requires the applicableOwned Hospitality Property to be held by a special purpose or bankruptcy remote entity, theLoan Parties shall, to the extent no Default is then-continuing hereunder or under any otherCredit Document, be permitted to cause the transfer of such Owned Hospitality Property fromthe then-current owner thereof to another wholly-owned Subsidiary of the Borrower.     **Section 5.10****New Subsidiaries; Additional Guarantors and Collateral**. Except withrespect 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 wasnot a Material Subsidiary becomes a Material Subsidiary or such Subsidiary is no longer prohibitedfrom acting as a Guarantor because of a contractual obligation or any new Material Subsidiary iscreated after the Effective Date, or (b) the purchase by the Parent or any of its Subsidiaries ofthe Ownership Interests of any Person, which purchase results in such Person becoming a MaterialSubsidiary the Parent, shall, in each case, cause (i) such Material Subsidiary to execute anddeliver to the Administrative Agent either (A) a Guaranty, an Environmental Indemnity and aSecurity Agreement or (B) an Accession Agreement, (ii) any of the Borrower and any Guarantor who isa direct owner of the Ownership Interests of such Material Subsidiary to execute and deliver to theAdministrative Agent a Security Agreement, if necessary, and such other documents as are necessaryto create an Acceptable Lien in the Ownership Interests in the Material Subsidiary owned by suchPerson (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 thisSection 5.10 to provide such evidence of authority to enter into such documents as theAdministrative Agent may reasonably request.     **Section 5.11****Insurance Business**.     (a) The Borrower will cause each of the Insurance Companies to (i) carry on and conductits business only in substantially the same manner and in substantially the same fields ofenterprise as it is presently conducted, (ii) only engage in the insurance business or thebusiness of a holding company owning entities engaged in the insurance business or thebusiness of insurance or reasonably incidental activities, (iii) do all things necessary torenew, extend and continue in effect all Insurance Licenses which may at any time and fromtime to time be necessary for each Insurance Company to conduct business in compliance withall applicable Legal Requirements, including, if applicable, the filing of all appropriateInsurance Annual Statements and SAP Financial Statements; provided, that eachInsurance Company may withdraw from one or more states (other than its state of domicile) asan admitted insurer if such withdrawal is determined by the Insurance Company’s Board ofDirectors to be in the best interest of the Insurance Companies and could not reasonably beexpected to cause a Material Adverse Change.     (b) The Borrower will not permit the Insurance Surplus, as of the last day of eachFiscal Quarter, to be less than that required by applicable Legal Requirements. TheBorrower will not permit the maximum amount payable by all Insurance Companies underInsurance Contracts or Reinsurance Contracts, as of the last day of each Fiscal Quarter, tobe greater than $10,000,000.     **Section 5.12****Interest Rate Agreements**. Concurrently with the expiration ortermination of the Interest Rate Agreements related to the Existing Credit Facility, the Borrowershall cause the Parent to obtain and thereafter maintain Interest Rate Agreements reasonablysatisfactory 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 ofObligations outstanding hereunder as of such date of determination at a maximum rate of 4.00% perannum for the period commencing as of such date and continuing until the Second Extended MaturityDate. Any such Interest Rate Agreements shall be provided by either a Lender or a bank or otherfinancial institution whose long-term debt rating is equal to or greater than “A”; providedthat the Lenders will have a right of first refusal, but not an obligation, to provide any InterestRate Agreements for the Parent on substantially such terms as the Parent would be able to obtainfrom 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 securedby the Collateral pari passu with the Obligations. However, the pledge of any Collateral to secureany Interest Rate Agreement from any non-Lender shall be subject to the written approval of theRequired Lenders.     **Section 5.13****Property Marketing and Sales**. The Borrower shall actively market forsale with a nationally-recognized and Administrative Agent-approved (such approval not to beunreasonably withheld or delayed) brokerage firm the Hilton House Westchase property and the HiltonGarden Inn Baton Rouge property at purchase prices that have been mutually agreed upon in writingby the Borrower and the Administrative Agent as of the Effective Date; provided, that theAdministrative Agent acknowledges that it has, as of the date hereof, approved Molinaro Koger asthe broker for the Hilton House Westchase property and Jones Lang LaSalle as the broker for theHilton Garden Inn Baton Rouge property. On or prior to September 1, 2009, such brokerage firmsshall 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 asof the closing of such sale in an amount equal to or greater than the amounts required by theAdministrative Agent and Lenders and such closing is reasonably expected to take place within 180days, the Borrower shall use commercially reasonable efforts to cause the closing of such sale tothe 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 thebeginning 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 cashexpenditures of the Parent, Borrower and their Subsidiaries for the following four calendarquarter period, broken out by calendar quarter, in a form substantially similar to the formof the budget delivered on the Effective Date. The Administrative Agent shall have theright to review such draft budget and shall, on or prior to the date which is 20 daysfollowing its receipt of same, provide Borrower with any comments or requested revisionswith respect to such draft budget based on the criteria set forth below. Thereafter, theBorrower shall, within fifteen (15) days following the beginning of each calendar yearcommencing with the calendar year beginning January 1, 2010, deliver to the AdministrativeAgent 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 calendarquarter, in a form substantially similar to the form of the budget delivered on theEffective Date. The Administrative Agent shall have the right to review and approve suchproposed draft budget in its reasonable discretion and shall, on or prior to the date whichis 20 days following its receipt of same, provide Borrower with notice as to whether it hasapproved 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 forthin proposed budgets (i) to the extent such costs and expenses are necessary to the continuedoperation 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 butwere not previously objected to by the Administrative Agent. To the extent theAdministrative Agent rejects any proposed budget submitted by the Borrower, the Borrower andAdministrative Agent shall negotiate in good faith to resolve the matters which are deemedby the Administrative Agent to be objectionable. To the extent the Administrative Agent andBorrower are unable to agree on a new annual budget as of the Business Day which isimmediately prior to the then-effective Maturity Date, such failure shall constitute aDefault hereunder.     (b) Budget Updates. On or prior to the date which is 30 days prior to thebeginning of each calendar quarter (but not more than 60 days prior to the beginning of suchcalendar quarter), submit to the Administrative Agent for review and approval any proposedupdates or revisions to the most recent
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Approved Annual Budget. The Administrative Agent shall have the right to review andapprove (in its reasonable discretion) such proposed updates and revisions and shall, on orprior to the date which is 20 days following its receipt of same, provide Borrower withnotice as to whether it has approved or rejected such updates and revisions, together withreasons for any rejection; provided, that the Administrative Agent shall not havethe 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 theBorrower’s business and are not subject to the Borrower’s control or (ii) based on itsobjection to revisions set forth in such updates that are not material. If theAdministrative Agent rejects any proposed budget revisions submitted by the Borrower, theBorrower and Administrative Agent shall negotiate in good faith to resolve the matters whichare deemed by the Administrative Agent to be objectionable. To the extent theAdministrative Agent and Borrower are unable to agree upon revisions to an Approved AnnualBudget, such Approved Annual Budget (as modified to reflect any necessary and uncontrollablecosts and expenses) shall remain effective. To the extent the Administrative Agent approvesany revisions requested by the Borrower to the then-applicable Approved Annual Budget, suchApproved Annual Budget shall be deemed to have been revised as of the date on which theAdministrative Agent communicates such approval.     **Section 5.15****Appraisal**. On or before such date as the Borrower exercises the SecondExtended Maturity Date option pursuant to Section 2.05(d), the Borrower shall have delivered to theLenders appraisals of certain assets to be specified by the Administrative Agent, including withoutlimitation, an updated appraisal for each of the Owned Hospitality Properties, by appraiserssatisfactory 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 toshow any minimum assessed values.     **Section 5.16****Extension of Mortgage Indebtedness**. To the extent the Borrower or anySubsidiary has any extension option under or with respect to any third-party mortgage Indebtednesswith regard to any of the Owned Hospitality Properties (other than the Arlington Property), andsuch option is exercisable (a) without the Borrower or such Subsidiary being required to payadditional fees in excess of 100 basis points and (b) without the implementation of any materialincrease in the pricing of such Indebtedness, the Borrower or such Subsidiary shall exercise suchextension 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, anyLetter of Credit shall remain outstanding, or any Lender shall have any Commitment, the Borroweragrees to comply and cause the Parent and the Parent’s Subsidiaries to comply with the followingcovenants.     **Section 6.01****Liens, Etc**. The Borrower, the Parent and their respective Subsidiarieswill not create, assume, incur or suffer to exist, any Lien on or in respect of any of its Propertywhether now owned or hereafter acquired, or assign any right to receive income, except that theBorrower 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 theBorrower 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’ liensor otherwise arising from litigation) (i) which are being contested in good faith and byappropriate proceedings, (ii) with respect to which reserves in conformity with GAAP havebeen provided, (iii) which have not resulted in any Collateral being in jeopardy of beingsold, forfeited or lost during or as a result of such contest, (iv) neither theAdministrative Agent nor any Lender could become subject to any civil fine or penalty orcriminal 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 MaterialAdverse Change;
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     (d) on leased personal property to secure solely the lease obligations associated withsuch property;     (e) on the Property of or Ownership Interests in a Permitted Other Subsidiary securingIndebtedness set forth in paragraph (a) of the definition of “Permitted Other Indebtedness”incurred by such Permitted Other Subsidiary to the extent such Indebtedness is permittedpursuant to the provisions of Section 6.02;     (f) on the Ownership Interests in an Unconsolidated Entity or Minority-Owned Fundsecuring Permitted Non-Recourse Unconsolidated Entity Indebtedness incurred by suchUnconsolidated Entity or Minority-Owned Fund, as applicable;     (g) granted to the owner of a Hospitality Property subject to a Permitted PropertyAgreement on the accounts receivable, inventory, cash or other property owned by theBorrower or the Borrower’s Subsidiary in connection with such Hospitality Property; and     (h) easements, rights of way, covenants, restrictions, zoning and similar restrictionsand other similar charges or encumbrances not interfering with the ordinary conduct of thebusiness of the Borrower or its Subsidiaries and which do not detract materially from thevalue of any of the Owned Hospitality Properties to which they attach or impair materiallythe use thereof by the Borrower or the Borrower’s Subsidiaries.     **Section 6.02****Indebtedness**. The Borrower, the Parent and their respective Subsidiarieswill 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 anOwned 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 rentand performance of obligations under such ground lease, (B) real estate taxesrelating to such Hospitality Property, and (C) capital reserves required under suchIndebtedness, provided that such guaranties do not include guaranties of thePermitted Other Indebtedness itself or any arrangements that would have the sameeffect;     (ii) guaranties of the payment of rent and performance of obligations under aground lease for an Owned Hospitality Property which is Collateral;     (iii) customary recourse “carve-outs” for Indebtedness permitted under thisAgreement which is otherwise non-recourse to the Parent, the Borrower and theirrespective Subsidiaries;     (iv) guaranties of franchise and license agreements in connection withHospitality Properties; and     (v) guaranties of obligations of the Parent’s Subsidiaries or UnconsolidatedEntities with respect to Permitted Property Agreements.     **Section 6.03****Agreements Restricting Distributions From Subsidiaries**. The Borrowerwill not, nor will it permit any of its Subsidiaries (other than Permitted Other Subsidiaries) to,enter into any agreement (other
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than a Credit Document) which limits distributions to or any advance (including by way of themaking of and repayment of Intercompany loans and advances) by any of the Borrower’s Subsidiariesto the Borrower.     **Section 6.04****Restricted Payments**. Neither the Parent, nor the Borrower, nor any oftheir 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 theParent, which distributions for partners other than the Parent and the Parent’s Subsidiariesdo 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 limitedpartnership interests in the Borrower for the Parent’s common stock;     (d) the Borrower shall be entitled to issue limited partnership interests in theBorrower in exchange for Ownership Interests in Subsidiaries and Unconsolidated Entities tothe extent such Investment is permitted pursuant to the provisions of Section 6.06 and suchOwnership Interests are pledged to secure the Obligations pursuant to the SecurityDocuments;     (e) provided that no Default pursuant to Section 8.01(a), (b) or (f) or Default in thecovenants 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 aspermitted by clause (ii) of this subsection (e)), of Subordinate Indebtedness permittedpursuant to this Agreement, and (ii) principal of Approved Inter-Company Indebtedness;provided that any such principal payments (A) are made to a Guarantor, (B) areeither retained by such Guarantor or distributed to the Borrower, the Parent or anotherGuarantor and (C) are used in accordance with the provisions of this Agreement.     **Section 6.05****Fundamental Changes; Asset Dispositions**. Neither the Parent, theBorrower, 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) aGuarantor is merged into the Borrower and the Borrower is the surviving Person, (B) aSubsidiary (other than a Permitted Other Subsidiary which has Indebtedness other than theObligations) is merged into any Subsidiary (other than a Permitted Other Subsidiary whichhas Indebtedness other than the Obligations) or (C) a Guarantor other than the Parent ismerged into another Person (other than a Permitted Other Subsidiary which has Indebtednessother 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) noDefault exists or would exist, (Y) on a pro forma basis the financial covenants set forth inArticle VII would be satisfied and (Z) to the extent a Person who was not a Subsidiary ofthe Parent or the Borrower is merged with or into a Guarantor, then the Administrative Agentshall in its reasonable discretion be entitled to determine the Investment Amount applicableto such merger;     (b) sell, transfer, or otherwise dispose of all or any of such Person’s materialProperty except for a Permitted Asset Disposition, or dispositions or replacements ofpersonal property in the ordinary course of business;     (c) enter into, as lessor, a lease (other than a lease which qualifies as a PermittedAsset Disposition) of all or substantially all of any Owned Hospitality Property with anyPerson 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 AssetDisposition);
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     (e) except for (i) Capitalization Events for which the consideration is principallycash or cash equivalents and for which the Repayment Amount is applied in accordance withthe provisions of Section 2.07(c), (ii) the issuance of limited partnership interests in theBorrower in exchange for Ownership Interests in Subsidiaries and Unconsolidated Entities tothe extent permitted pursuant to the provisions of Section 6.04, and (iii) transactionspermitted under the preceding clause (a), materially alter the corporate, capital or legalstructure of any such Person (except for a Permitted Other Subsidiary);     (f) enter into any forward sales of the Parent common stock or Ownership Interests inthe Borrower;     (g) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution)provided that nothing herein shall prohibit the Borrower from dissolving anySubsidiary 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’sand the Parent’s Subsidiaries’ employees, and (iii) the leases of personal propertypermitted by this Agreement,     (i) materially alter the character of their respective businesses from that conductedas of the date of this Agreement or otherwise engage in any material business activityoutside of the Hospitality Management Business or the ownership and operation of HospitalityProperties, or     (j) join in, acquiesce in, or consent to any change in any public or privaterestrictive covenant, easement, zoning law or any other public or private restriction,limiting, conditioning, changing, qualifying or defining the uses which may be made of anyProperty that would have a material adverse effect on the Property.     **Section 6.06****Investments and other Property**. Neither the Parent, the Borrower, norany of their respective Subsidiaries, shall acquire by purchase or otherwise any Investments orother Property, except the following:     (a) (i) Investments or Properties owned by such Persons as of the Effective Date andset forth on Schedule 6.06-1; provided, that Borrower shall, during the term hereof, bepermitted to fund any capital calls on such existing Investments and fund commitments withrespect to such Investments to the extent it is contractually required to do so as of theEffective Date and (ii) capital calls or funding of commitments with respect to theInvestments set forth on Schedule 6.06-2 to which the Borrower or one of its Subsidiarieshas 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 servicesrendered in the ordinary course of business and are payable in accordance with customarytrade terms, and receivables purchased in connection with the acquisition of an OwnedHospitality Property;     (d) Investments in Permitted New Investments or Subsidiaries making Permitted NewInvestments; 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 anOwned Hospitality Property) of the acquisition by the Parent or any of the Parent’sSubsidiaries of any Collateral for which the Administrative Agent on behalf of the Lendersdoes not already have an Acceptable Lien, the Borrower, the Parent and the other Guarantorswill execute such Security Documents as are necessary or desirable for the AdministrativeAgent on behalf of the Lenders to have an Acceptable Lien in such Collateral, (ii) withinninety (90) Business Days of the acquisition of an Owned Hospitality Property by the Parentor any of the Parent’s Subsidiaries which is required by the terms of this Agreement to beCollateral, the Borrower shall deliver to the Administrative Agent a Title Policy for suchOwned Hospitality Property and (iii) the aggregate amount of Permitted New Investments madepursuant 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, CapitalExpenditures, acquired or made in the ordinary course of (i) owning the Parent’s and theParent’s Subsidiaries’ existing Investments and Properties and any Permitted New Investmentsand (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 notat any time exceed $100,000.Notwithstanding the foregoing, neither the Borrower, nor the Parent, nor their respectiveSubsidiaries shall make an Investment, acquire any other Property, or enter into any PermittedProperty Agreement which would (a) cause a Default, (b) cause or result in the Borrower or theParent failing to comply with any of the financial covenants contained herein, or (c) cause orresult in the aggregate EBITDA in any Rolling Period derived from all Permitted PropertyAgreements, or other Investments related to Hospitality Properties which are not full-service orlimited service hotels or resorts or conference centers to exceed 35% of the Parent’s EBITDA forsuch Rolling Period. In addition, neither the Borrower, nor the Parent, nor their respectiveSubsidiaries shall enter into any agreements to purchase Investments or other Property, unless withrespect to such purchase such Person at all times has available sources of funds equal to pay infull the cost of the purchase of such Investments or other Property (to the extent that the paymentof such cost of purchase constitutes a recourse obligation of the Parent, the Borrower or itsSubsidiary), 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 orindirectly: (a) any transfer, sale, lease, assignment or other disposal of any assets to anyAffiliate of the Borrower which is not a Guarantor or any purchase or acquisition of assets fromany such Affiliate except for purchases of new personal property (i) which in any calendar year donot exceed $1,000,000 in the aggregate and (ii) for which the sales price is the actual cost to theparty selling; (b) any arrangement or other transaction directly or indirectly with or for thebenefit of any such Affiliate (including without limitation, guaranties and assumptions ofobligations of an Affiliate), other than in the ordinary course of business and at market rates oras 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 notpermit any of its Subsidiaries to, directly or indirectly, sell with recourse, or discount orotherwise sell for less than the book value thereof, any of its notes or accounts receivable exceptin connection with sale of an Owned Hospitality Property.     **Section 6.09****Changes in Fiscal Periods**. Permit the fiscal year of the Borrower to endon a day other than December 31 or change the Borrower’s method of determining fiscal quartersprovided that the Borrower may make one election after the Effective Date to change itsfiscal year end, if the Borrower enters into such amendments to this Agreement as theAdministrative 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, besubstantively 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 theAdministrative Agent to enter into such amendments to effect such modifications, if any, inaccordance with the provisions of this Section.     **Section 6.10****Activities of Parent**. In the case of the Parent, notwithstandinganything to the contrary in this Agreement or any other Credit Document, other than indirectlythrough Subsidiaries, (a) conduct, transact or otherwise engage in, or commit to conduct, transactor otherwise engage in, any business or operations other than those incidental to its ownership ofthe capital stock of the Borrower and Parent’s Other Subsidiaries or otherwise in the form ofInvestments set forth on Schedule 6.06, (b) incur, create, assume or suffer to exist anyIndebtedness or other liabilities or financial obligations, except (i) nonconsensual obligationsimposed 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) Section6.02(d) or (B) Permitted Other Indebtedness pursuant to clause (a) of the definition thereof solong as such Permitted Other Indebtedness is permitted by Section 6.02 and the Net Cash Proceedsare applied as a Repayment Event to prepay the Advances pursuant to Section 2.07 and (v) PermittedOther Indebtedness that is Approved Intercompany Indebtedness, or (c) own, lease, manage orotherwise operate
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any properties or assets (including cash and cash equivalents) other than the ownership ofshares of capital stock of the Borrower and Parent’s Other Subsidiaries.     **Section 6.11****Sales and Leasebacks**. Neither the Parent, the Borrower or any Subsidiarywill enter into any arrangement with any Person providing for the leasing by Parent, the Borroweror any Subsidiary of real or personal property which has been or is to be sold or transferred bythe Parent, the Borrower or such Subsidiary to such Person or to any other Person to whom fundshave been or are to be advanced by such Person on the security of such property or rentalobligations of the Parent, the Borrower or such Subsidiary.     **Section 6.12****Material Documents**. The Borrower will not, nor will it permit any of itsSubsidiaries to (a) amend the Borrower’s partnership agreement in any material respect, (b) admit anew general partner to the Borrower, (c) enter into any termination or material modification oramendment of Permitted Property Agreements which singly or in the aggregate could reasonably beexpected to cause a Material Adverse Change, or (d) modify the Approved Inter-Company IndebtednessLoan Documents in any way that is materially adverse to the Lenders. Any termination, modificationor amendment prohibited under this Section 6.12 without the Required Lender’s written consentshall, 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, northeir respective Subsidiaries shall enter into or suffer to exist any agreement (other than thisAgreement 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 Borroweror any of their respective Subsidiaries (except for Properties of and Ownership Interests in thePermitted Other Subsidiaries), whether now owned or hereafter acquired, or (b) requiring anobligation to be secured if some other obligation is or becomes secured; provided that inconnection with the incurrence of Unsecured Indebtedness which is permitted by this Agreement, theParent and its Subsidiaries may enter into such agreements which would require that assets of theParent and its Subsidiaries which secure any Indebtedness (other than the Obligations, anyrefinancing or increase in the Obligations, or the Indebtedness described in clause (a) of thedefinition of Permitted Other Indebtedness) also secure on an equal and ratable basis suchUnsecured Indebtedness and which agreements must be in form and substance reasonably acceptable tothe 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 Subsidiaryshall, for or during any calendar year, incur obligations for the payment of Capital Expendituresor other material costs and expenses except to the extent set forth for such year in thethen-applicable Approved Annual Budget.     **Section 6.15****Limitation on Hedge Agreements**. Neither the Borrower, the Parent, norany of their respective Affiliates shall enter into any Interest Rate Agreement or any CurrencyAgreement other than the Interest Rate Agreements permitted by the terms of this Agreement andnon-speculative Currency Agreements which are reasonably necessary or desirable in connection withsuch Persons’ foreign operations.     **Section 6.16****Prepayment of Other Indebtedness**. Neither the Parent, the Borrower orany Subsidiary shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay anyIndebtedness (other than the Obligations), other than Indebtedness secured by a Lien permitted bySection 6.01 if the asset securing such Indebtedness has been sold or otherwise disposed of inaccordance with Section 6.05.**ARTICLE VII****FINANCIAL COVENANTS**     So long as any Advance or any other amount under any Credit Document shall remain unpaid, anyLetter 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 andcause 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 ofeach 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 ofeach Rolling Period a Management Business EBITDA (calculated on a trailing four quarter basis as ofthe 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 shallconstitute an “Event of Default” under any Credit Document:     (a) Principal Payment or Letter of Credit Obligation Payment. The Borrower orany Guarantor shall fail to pay any principal of any Advance or any Letter of CreditObligation (or any other extension of credit under the Credit Documents in the nature of aprincipal 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 shallfail to pay any interest on any Advance or any fee or other amount payable hereunder orunder any other Credit Document when the same becomes due and payable as set forth in thisAgreement or such other Credit Document, as applicable, providedhoweverthat the Borrower and the Guarantors will have a grace period of three (3) days after thepayments covered by this Section 8.01(b) becomes due and payable for the first two defaultsof such Persons collectively under this Section 8.01(b) in every calendar year;     (c) Representations and Warranties. Any representation or warranty made ordeemed 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 otherCredit Document, or (iii) by any Guarantor in any Credit Document shall prove to have beenincorrect in any material respect when made or deemed to be made;     (d) Covenant Breaches. (i) The Borrower shall fail to perform or observe anycovenant contained in Section 5.02, Article VI or Article VII of this Agreement, (ii) theBorrower shall fail to perform or observe, or shall fail to cause any Guarantor to performor observe any covenant in any Credit Document beyond any notice and/or cure period for suchdefault expressly provided in such Credit Document or (iii) the Borrower or any Guarantorshall fail to perform or observe any term or covenant set forth in any Credit Document whichis not covered by clause (i) or (ii) above or any other provision of this Section 8.01, ineach case if such failure shall remain unremedied for thirty (30) days after the earlier ofthe date written notice of such default shall have been given to the Borrower or suchGuarantor by the Administrative Agent or any Lender or the date a Responsible Officer of theBorrower or any Guarantor has actual knowledge of such default, unless such default in thisclause (iii) cannot be cured in such thirty (30) day period and the Borrower is diligentlyproceeding 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 theaforementioned thirty (30) day period to cure a default under Section 5.09 of thisAgreement;     (e) Cross-Defaults. With respect to any Indebtedness of the Borrower, theParent or any of their respective Subsidiaries (but excluding Indebtedness evidenced by theNotes or hereunder) which exceeds the Threshold Amount, any of the following:     (i) any such Indebtedness shall be declared to be due and payable, or requiredto be prepaid (other than by a regularly scheduled required prepayment), prior tothe stated maturity thereof,
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     (ii) such Person shall fail to pay any principal of or premium or interest ofany of such Indebtedness (whether by scheduled maturity, required prepayment,acceleration, demand or otherwise), and such failure shall continue after theapplicable grace period, if any, specified in the agreement or instrument relatingto such Indebtedness, or     (iii) any other event shall occur or condition shall exist under any agreementor instrument relating to such Indebtedness, and shall continue after the applicablegrace period, if any, specified in such agreement or instrument, if the effect ofsuch event or condition is to permit the holders of such Indebtedness to acceleratethe maturity of such Indebtedness;     (f) Insolvency. The Borrower, the Parent or any of their respective MaterialSubsidiaries shall generally not pay its debts as such debts become due, or shall admit inwriting its inability to pay its debts generally, or shall make a general assignment for thebenefit of creditors; or any proceeding shall be instituted by or against the Borrower, theParent or any of their respective Material Subsidiaries seeking to adjudicate it a bankruptor 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 forrelief or the appointment of a receiver, trustee or other similar official for it or for anysubstantial part of its property and, in the case of any such proceeding instituted againstthe Borrower, the Parent or any of their respective Material Subsidiaries, either suchproceeding shall remain undismissed for a period of 60 days or any of the actions sought insuch proceeding shall occur; or the Borrower, the Parent or any of their respective MaterialSubsidiaries shall take any corporate action to authorize any of the actions set forth abovein 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 theamount in respect of such judgment or order that a reputable insurer has acknowledged beingpayable under any valid and enforceable insurance policy) shall be rendered against theBorrower, the Parent or any of their respective Subsidiaries which, within thirty (30) daysfrom the date such judgment is entered, shall not have been discharged or execution thereofstayed pending appeal;     (h) ERISA. (i) Any Person shall engage in any “prohibited transaction” (asdefined 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 notwaived, shall exist with respect to any Plan, (iii) a Reportable Event shall occur withrespect to, or proceedings shall commence to have a trustee appointed, or a trustee shall beappointed, to administer or to terminate, any Plan, which Reportable Event or commencementof proceedings or appointment of a trustee is likely to result in the termination of suchPlan for purposes of Title IV of ERISA, unless such Reportable Event, proceedings orappointment are being contested by the Borrower in good faith and by appropriateproceedings, (iv) any Plan or Multiemployer Plan shall terminate for purposes of Title IV ofERISA, (v) the Borrower, the Parent or any member of a Controlled Group shall incur anyliability 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 ofSection 4241 of ERISA) of a Multiemployer Plan, unless such liability is being contested bythe Borrower, the Parent or any member of the Controlled Group in good faith and byappropriate proceedings, (vi) the fair market value of the assets of any Title IV Plan isnot at least equal to the present value of the “benefit liabilities” (within the meaning ofSection 4001(a)(16) of ERISA) under that Title IV Plan using the actuarial assumptions andmethods used by the actuary to that Title IV Plan in its most recent valuation of that TitleIV 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 theaggregate exceeding $10,000,000;     (i) Guaranty. Any provision of any Guaranty shall for any reason cease to bevalid 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 reasoncease to be valid and binding on any Person party thereto or any such Person shall so statein writing;     (k) Security Document. The Borrower or any Guarantor shall cause any materialSecurity Document to be invalid or non-binding on any Person party thereto or any suchPerson shall so state in writing;     (l) Collateral. A Material Adverse Change occurs because all or a portion ofthe Collateral shall for any reason cease to be subject to an Acceptable Lien except asexpressly permitted by this Agreement;     (m) Repayment Event. Upon the receipt by the Parent, the Borrower or anySubsidiary of any Net Cash Proceeds from a Repayment Event, (i) the Parent fails toimmediately make a capital contribution or advance to the Borrower or a Subsidiary of theBorrower of the Repayment Amount for such Repayment Event, or otherwise apply the RepaymentAmount 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 thisAgreement;     (n) Change in Ownership or Control. Any of the following occur without thewritten consent of the Required Lenders: (i) a Change in Control occurs for either theParent or the Borrower; (ii) the Parent owns less than 99% of the legal or beneficialinterest in the Borrower directly; provided that such percentage may be reduced to85% to the extent limited partnership interest in the Borrower are exchanged for assetswhich 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 orany of their respective Subsidiaries shall occur under sufficient Permitted PropertyAgreements that such default could reasonably be expected to cause a Material AdverseChange;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 theinstigation and/or completion of an acceleration or a foreclosure action by a creditor with respectto such property shall not, by itself, constitute an Event of Default to the extent recourse withrespect to such creditor is limited to the interest in Arlington Property previously held by theBorrower or one of its Subsidiaries.     **Section 8.02****Optional Acceleration of Maturity; Other Actions**. If any Event ofDefault (other than an Event of Default pursuant to paragraph (f) of Section 8.01) shall haveoccurred and be continuing, then, and in any such event,     (a) the Administrative Agent (i) shall at the request, or may with the consent, of theRequired Lenders, by notice to the Borrower, declare the obligation of each Lender to makeAdvances 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 forthwithterminate, 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 CreditObligations, and all other amounts payable under this Agreement to be forthwith due andpayable, whereupon the principal in respect of Advances and other extensions of credit madeunder this Agreement, all such interest, all such Letter of Credit Obligations and all suchamounts 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 intentto accelerate or notice of acceleration), all of which are hereby expressly waived by theBorrower,     (b) the Borrower shall, on demand of the Administrative Agent at the request or withthe consent of the Required Lenders, deposit into the Cash Collateral Account an amount ofcash equal to the Letter of Credit Exposure as security for the Obligations to the extentthe 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, theRequired Lenders proceed to enforce its rights and remedies under the Credit Documents forthe ratable benefit of the Lenders by appropriate proceedings.     **Section 8.03****Automatic Acceleration of Maturity**. If any Event of Default pursuant toparagraph (f) of Section 8.01 shall occur,     (a) the obligation of each Lender to make Advances and purchase participations inLetters of Credit and the obligation of Issuing Bank to issue, increase, or extend Lettersof Credit shall immediately and automatically be terminated and the principal due in respectof Advances and any other extensions of credit under this Agreement, all interest on suchAdvances, all Letter of Credit Obligations, and all other amounts payable under thisAgreement shall immediately and automatically become and be due and payable in full, withoutpresentment, demand, protest or any notice of any kind (including, without limitation, anynotice of intent to accelerate or notice of acceleration), all of which are hereby expresslywaived by the Borrower and     (b) to the extent permitted by law or court order, the Borrower shall deposit with theAdministrative Agent into the Cash Collateral Account an amount of cash equal to theoutstanding Letter of Credit Exposure as security for the Obligations to the extent theLetter 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 AdministrativeAgent for the benefit of the Lenders, a security interest in all funds held in the CashCollateral Account maintained with the Administrative Agent from time to time, and allproceeds thereof, as security for the payment of the Obligations, including withoutlimitation all Letter of Credit Obligations owing to any Issuing Bank or any other Lenderdue and to become due from the Borrower to any Issuing Bank or any other Lender under thisAgreement in connection with the Letters of Credit and the Borrower agrees to execute allcash management or cash collateral agreements and UCC-1 Financing Statements requested bythe Administrative Agent as needed or desirable for the Administrative Agent to have anAcceptable Lien in the Cash Collateral Account.     (b) Application Against Letter of Credit Obligations. The Administrative Agentmay, at any time or from time to time, apply funds then held in the Cash Collateral Accountto the payment of any Letter of Credit Obligations owing to any Issuing Bank, in such orderas the Administrative Agent may elect, as shall have become or shall become due and payableby the Borrower to any Issuing Bank under this Agreement in connection with the Letters ofCredit.     (c) Duty of Care. The Administrative Agent shall exercise reasonable care inthe custody and preservation of any funds held in the Cash Collateral Account and theAdministrative Agent shall be deemed to have exercised such care if such funds are accordedtreatment substantially equivalent to that which the Administrative Agent accords its ownproperty, it being understood that the Administrative Agent shall not have anyresponsibility for taking any necessary steps to preserve rights against any parties withrespect to any such funds.     **Section 8.05****Non-exclusivity of Remedies**. No remedy conferred upon the AdministrativeAgent or the Lenders is intended to be exclusive of any other remedy, and each remedy shall becumulative 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 pursuantto paragraph (f) of Section 8.01 or (ii) the making of the request or the granting of theconsent, if any, specified by Section 8.02 to authorize the Administrative Agent to declarethe Advances and any other amount payable hereunder due and payable pursuant to theprovisions of Section 8.02 or the automatic
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acceleration of the Advances and all amounts payable under this Agreement pursuant toSection 8.03, each Lender and Affiliate thereof is hereby authorized at any time and fromtime to time, to the fullest extent permitted by law, to set off and apply any and alldeposits (general or special, time or demand, provisional or final) at any time held andother indebtedness at any time owing by such Lender or any Affiliate thereof to or for thecredit or the account of the Borrower against any and all of the obligations of the Borrowernow or hereafter existing under this Agreement, the Advances held by such Lender, and theother Credit Documents, irrespective of whether or not such Lender shall have made anydemand under this Agreement, in respect of any Note, or such other Credit Documents, andalthough such obligations may be unmatured. Each Lender agrees to promptly notify theBorrower 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 suchset-off and application. The rights of each Lender under this Section are in addition toany other rights and remedies (including, without limitation, other rights of set-off) whichsuch Lender may have.     (b) The Borrower waives any right of set-off, defense or counterclaim the Borrower hasor may have against any Lender to apply any amounts owed the Borrower by such Lender or anyAffiliate thereof against the Obligations hereunder.**ARTICLE IX****THE ADMINISTRATIVE AGENT**     **Section 9.01****Appointment**. Each Lender hereby irrevocably designates and appoints theAdministrative Agent as the agent of such Lender under this Agreement and the other CreditDocuments, and each Lender irrevocably authorizes the Administrative Agent, in such capacity, totake such action on its behalf under the provisions of this Agreement and the other CreditDocuments and to exercise such powers and perform such duties as are expressly delegated to theAdministrative Agent by the terms of this Agreement and the other Credit Documents, together withsuch other powers as are reasonably incidental thereto. Notwithstanding any provision to thecontrary elsewhere in this Agreement, the Administrative Agent shall have no duties orresponsibilities, except those expressly set forth herein, or any fiduciary relationship with anyLender, and no implied covenants, functions, responsibilities, duties, obligations or liabilitiesshall be read into this Agreement or any other Credit Document or otherwise exist against theAdministrative Agent.     **Section 9.02****Delegation of Duties**. The Administrative Agent may perform any and allof its duties and exercise its rights and powers hereunder or under any other Credit Document by orthrough any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agentand any such sub-agent may perform any and all of its duties and exercise its rights and powers byor through their respective Related Parties.  The exculpatory provisions of this Article shallapply to any such sub-agent and to the Related Parties of the Administrative Agent and any suchsub-agent, and shall apply to their respective activities in connection with the syndication of thecredit facilities provided for herein as well as activities as Administrative Agent.     **Section 9.03****Exculpatory Provisions**. The Administrative Agent shall not have anyduties 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 ofwhether a Default has occurred and is continuing;     (b) shall not have any duty to take any discretionary action or exercise anydiscretionary powers, except discretionary rights and powers expressly contemplated herebyor by the other Credit Documents that the Administrative Agent is required to exercise asdirected in writing by the Required Lenders (or such other number or percentage of theLenders 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 itsopinion or the opinion of its counsel, may expose the Administrative Agent to liability orthat is contrary to any Credit Document or applicable law; and
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     (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, anyinformation relating to the Borrower or any of its Affiliates that is communicated to orobtained by the Person serving as the Administrative Agent or any of its Affiliates in anycapacity.The Administrative Agent, in its capacity as such, shall not be liable for any action takenor not taken by it (i) with the consent or at the request of the Required Lenders (or suchother number or percentage of the Lenders as shall be necessary, or as the AdministrativeAgent shall believe in good faith shall be necessary, under the circumstances as provided inthis 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 beentitled 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 tohave been signed, sent or made by the proper Person or Persons and upon advice and statements oflegal counsel, independent accountants and other experts selected by the Administrative Agent. TheAdministrative Agent may deem and treat the payee of any Note as the owner thereof for all purposesunless such Note shall have been transferred in accordance with Section 10.06 and all actionsrequired by such Section in connection with such transfer shall have been taken. TheAdministrative Agent shall be fully justified in failing or refusing to take any action under thisAgreement or any other Credit Document unless it shall first receive such advice or concurrence ofthe Required Lenders (or, if so specified by this Agreement, all Lenders or any other instructinggroup of Lenders specified by this Agreement) as it deems appropriate or it shall first beindemnified to its satisfaction by the Lenders against any and all liability and expense that maybe incurred by it by reason of taking or continuing to take any such action. The AdministrativeAgent shall in all cases be fully protected in acting, or in refraining from acting, under thisAgreement 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 specifiedby this Agreement), and such request and any action taken or failure to act pursuant thereto shallbe 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 haveknowledge or notice of the occurrence of any Default or Event of Default hereunder unless theAdministrative Agent shall have received notice from a Lender or the Borrower referring to thisAgreement, describing such Default or Event of Default and stating that such notice is a “notice ofdefault”. In the event that the Administrative Agent shall receive such a notice, theAdministrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall takesuch action with respect to such Default or Event of Default as shall be reasonably directed by theRequired Lenders (or, if so specified by this Agreement, all Lenders or any other instructing groupof Lenders specified by this Agreement); provided that unless and until the AdministrativeAgent shall have received such directions, the Administrative Agent may (but shall not be obligatedto) take such action, or refrain from taking such action, with respect to such Default or Event ofDefault 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 Lenderexpressly acknowledges that neither the Administrative Agent nor any of its respective officers,directors, employees, agents, attorneys-in-fact or affiliates have made any representations orwarranties to it and that no act by the Administrative Agent hereafter taken, including any reviewof 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 anyLender. Each Lender represents to the Administrative Agent that it has, independently and withoutreliance upon the Administrative Agent or any other Lender, and based on such documents andinformation as it has deemed appropriate, made its own appraisal of and investigation into thebusiness, operations, property, financial and other condition and creditworthiness of the Borroweror any Guarantor and their affiliates and made its own decision to make its Loans hereunder andenter into this Agreement. Each Lender also represents that it will, independently and withoutreliance upon the Administrative Agent or any other Lender, and based on such documents andinformation 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 CreditDocuments, and to make such investigation as it deems necessary to inform itself as to thebusiness, operations, property, financial and other condition and creditworthiness of the LoanParties and their affiliates. Except for notices, reports and other documents expressly requiredto 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 anycredit or other information concerning the business, operations, property, condition (financial orotherwise), prospects or creditworthiness of the Borrower or any Guarantor or any affiliate of theBorrower or any Guarantor that may come into the possession of the Administrative Agent or any ofits 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 andwithout limiting the obligation of the Borrower to do so), ratably according to their respectivePro Rata Share in effect on the date on which indemnification is sought under this Section (or, ifindemnification is sought after the date upon which the Commitments shall have terminated and theAdvances shall have been paid in full, ratably in accordance with such Pro Rata Share immediatelyprior to such date), for, and to save the Administrative Agent and such Related Parties harmlessfrom 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 wayrelating to or arising out of, the Commitments, this Agreement, any of the other Credit Documentsor any documents contemplated by or referred to herein or therein or the transactions contemplatedhereby or thereby or any action taken or omitted by the Administrative Agent or any of its RelatedParties under or in connection with any of the foregoing; provided that no Lender shall be liablefor 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 andnonappealable decision of a court of competent jurisdiction to have resulted from theAdministrative Agent’s or such Related Party’s gross negligence or willful misconduct. Theagreements in this Section shall survive the payment of the Loans and all other amounts payablehereunder.     **Section 9.08****The Administrative Agent in Its Individual Capacity**. The AdministrativeAgent and its affiliates may make loans to, accept deposits from and generally engage in any kindof business with the Borrower or any Guarantor as though the Administrative Agent were not theAdministrative Agent. With respect to its Loans made or renewed by it and with respect to anyLetter of Credit issued or participated in by it, the Administrative Agent shall have the samerights and powers under this Agreement and the other Credit Documents as any Lender and mayexercise 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 aDefaulting Lender, and such Defaulting Lender fails to cure all Lender defaults that causedit to become a Defaulting Lender within fifteen Business Days from the date it became aDefaulting Lender, then the Required Lenders may, but shall not be required to, direct suchAdministrative Agent to resign as Administrative Agent, and upon the direction of theRequired Lenders such Administrative Agent shall be required to resign in accordance withthe terms set forth in clause (b) of this Section 9.09.     (b) The Administrative Agent may resign as Administrative Agent upon 10 days’ writtennotice to the Lenders and the Borrower. If the Administrative Agent shall resign asAdministrative Agent under this Agreement and the other Credit Documents, then the RequiredLenders shall appoint from among the Lenders a successor agent for the Lenders, whichsuccessor 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 approvalby the Borrower (which approval shall not be unreasonably withheld or delayed), whereuponsuch successor agent shall succeed to the rights, powers and duties of the AdministrativeAgent, and the term “Administrative Agent” shall mean such successor agent effective uponsuch appointment and approval, and the former Administrative Agent’s rights, powers andduties as Administrative Agent shall be terminated, without any other or further act or deedon the part of such former Administrative Agent or any of the parties to this Agreement orany holders of the Loans. If no successor agent has accepted appointment as AdministrativeAgent by the date that is 10 days following a retiring Administrative Agent’s notice ofresignation by the Required Lenders, the retiring Administrative Agent’s resignation shallnevertheless thereupon become effective, and the Lenders shall assume and perform all of theduties 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 shallhave the benefit of all provisions for the benefit of the “Administrative Agent” as if theywere the Administrative Agent hereunder. After the resigning Administrative Agent’sresignation hereunder and under the other Credit Documents, the provisions of this ArticleIX and Section 10.04 shall continue in effect for the benefit of such resigningAdministrative Agent, its sub-agents and their respective Related Parties in respect of anyactions taken or omitted to be taken by any of them while the retiring Administrative Agentwas acting as Administrative Agent.     **Section 9.10****Authorization to Release Liens and Guarantees**. The Administrative Agentis hereby irrevocably authorized by each of the Lenders to effect any release of Liens or guaranteeobligations contemplated by Section 5.09.     **Section 9.11****The Arranger**. The Arranger shall have no duties or responsibilities, andshall 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 pendencyof any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any LoanParty, the Administrative Agent (irrespective of whether the principal of any Advance or Letter ofCredit Obligation shall then be due and payable as herein expressed or by declaration or otherwiseand 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 owingand unpaid in respect of the Advances, Letter of Credit Obligations and all otherObligations that are owing and unpaid and to file such other documents as may be necessaryor advisable in order to have the claims of the Lenders, the Issuing Bank and theAdministrative Agent (including any claim for the reasonable compensation, expenses,disbursements and advances of the Lenders, the Issuing Bank and the Administrative Agent andtheir respective agents and counsel and all other amounts due the Lenders, the Issuing Bankand the Administrative Agent under Sections 2.03, 9.07, 10.04, 10.07 and/or any otherprovision hereof calling for the payment of fees or indemnification of any Lender, theIssuing 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 anysuch claims and to distribute the same;and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similarofficial in any such judicial proceeding is hereby authorized by each Lender and the IssuingBank to make such payments to the Administrative Agent and, in the event that theAdministrative Agent shall consent to the making of such payments directly to the Lendersand the Issuing Bank, to pay to the Administrative Agent any amount due for the reasonablecompensation, expenses, disbursements and advances of the Administrative Agent and itsagents and counsel, and any other amounts due the Administrative Agent under Sections 2.03and 10.04.Nothing contained herein shall be deemed to authorize the Administrative Agent to authorizeor consent to or accept or adopt on behalf of any Lender or the Issuing Bank any plan ofreorganization, arrangement, adjustment or composition affecting the Obligations or therights of any Lender or the Issuing Bank to authorize the Administrative Agent to vote inrespect 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 otherCredit 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 theRequired 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, andthen such waiver or consent shall be effective only in the specific instance and for thespecific 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 SupermajorityLenders; provided, further, that no amendment shall increase the Commitmentof any Lender without the prior written consent of such Lender, and no amendment, waiver orconsent shall, unless in writing and signed by all the Lenders whose Commitments or Advancesare directly modified thereby, do any of the following: (i) increase the aggregateCommitments of the Lenders, (ii) reduce or forgive the principal of, or interest on, theAdvances or any fees or other amounts payable hereunder or under any other Credit Documentor otherwise release the Borrower from any Obligations, (iii) postpone any date fixed forany payment of principal of (including any Maturity Date and the payments required bySection 2.07(c)(iv)), or interest on, the Advances or any fees or other amounts payablehereunder or change, modify, amend or waive any of the conditions set forth in Section2.05(c) or (d) or the definitions set forth therein (provided, that this provisionshall not be deemed to require unanimity among the Lenders for waivers of specific Defaultsor Events of Default, except as otherwise required in this Section 10.01), or (iv) extendthe Interest Period beyond six (6) months; and provided,further, that noamendment, 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 ratablepayment provisions of Sections 2.04 or 2.07(d), (iii) release the Parent from itsobligations under the Guaranty or release any other Guarantor which owns or leases an OwnedHospitality Property from its obligations under any of the Guaranties except as contemplatedby the provisions of Section 5.09, (iv) release all or substantially all of the Collateralexcept in accordance with Section 5.09 or (v) release as Collateral all or substantially allof the Ownership Interests in the Borrower except in accordance with Section 5.09; andprovided, further, that no amendment, waiver or consent shall, unless inwriting and signed by the Administrative Agent or any Issuing Bank, as applicable, inaddition to the Lenders required above to take such action, affect the rights or duties ofthe Administrative Agent or such Issuing Bank, as the case may be, under this Agreement orany other Credit Document. In addition, the definition of “Revolving Required Lenders”cannot be amended without the unanimous written consent of all Lenders holding RevolvingCommitments (or, if such Commitments have terminated, outstanding Revolving Advances andrelated Letter of Credit Exposure) and no amendment, modification or waiver of Section3.02 or any other provision of this Agreement shall be effective if the effect of suchamendment, modification or waiver is to require Lenders having a Revolving Credit Commitmentto make Revolving Advances when such Lenders would not otherwise be required to do sowithout the prior written consent of the Revolving Required Lenders. In addition, thedefinition of “Term Required Lenders” cannot be amended without the unanimous writtenconsent of all Lenders holding Term Commitments and Term Advances.     (b) In addition, without the consent of each of the Revolving Required Lenders and theTerm Required Lenders voting as separate Classes no amendment or waiver shall (i) amend orwaive the provisions in Sections 2.07(c) and (b), 2.10(a) and (e) or 2.16 regarding the prorata 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 anyCollateral.     (c) Any amendment to a covenant of the Parent or any of its Subsidiaries or amendmentto a definition shall require the Borrower’s written consent.
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     (d) Notwithstanding the foregoing, the Administrative Agent and the Borrower (withoutthe consent of any other Lender or the Issuing Bank) may enter into amendments of any CreditDocument solely with respect to corrections of formal defects not having any economicimpact.     **Section 10.02****Notices, Etc**.     (a) Notices Generally. Except in the case of notices and other communicationsexpressly 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 andshall be delivered by hand or overnight courier service, mailed by certified or registeredmail or sent by telecopier as follows, and all notices and other communications expresslypermitted hereunder to be given by telephone shall be made to the applicable telephonenumber, as follows:     (i) if to the Borrower, the Administrative Agent or the Issuing Bank, to theaddress, telecopier number, electronic mail address or telephone number specifiedfor such Person on Schedule 10.02; and     (ii) if to any other Lender, to the address, telecopier number, electronic mailaddress or telephone number specified in its Administrative Questionnaire.Notices and other communications sent by hand or overnight courier service, or mailed by certifiedor registered mail, shall be deemed to have been given when received; notices and othercommunications sent by telecopier shall be deemed to have been given when sent (except that, if notgiven during normal business hours for the recipient, shall be deemed to have been given at theopening of business on the next business day for the recipient). Notices and other communicationsdelivered through electronic communications to the extent provided in subsection (b) below, shallbe effective as provided in such subsection (b).     (b) Electronic Communications. Notices and other communications to the Lendersand 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 theAdministrative Agent, provided that the foregoing shall not apply to service ofprocess or to (i) notices delivered pursuant to Section 5.05(e) and (ii) notices to anyLender or the Issuing Bank pursuant to Article II if such Lender or the IssuingBank, as applicable, has notified the Administrative Agent that it is incapable of receivingnotices under such Article by electronic communication. The Administrative Agent or theBorrower may, in its discretion, agree to accept notices and other communications to ithereunder by electronic communications pursuant to procedures approved by it,provided that approval of such procedures may be limited to particular notices orcommunications.Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent toan e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from theintended recipient (such as by the “return receipt requested” function, as available, return e-mailor other written acknowledgement), provided that if such notice or other communication isnot sent during the normal business hours of the recipient, such notice or communication shall bedeemed 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 receivedupon the deemed receipt by the intended recipient at its e-mail address as described in theforegoing clause (i) of notification that such notice or communication is available and identifyingthe website address therefor.     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THEAGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THEMATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OROMISSIONS 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, ISMADE BY ANY AGENT PARTY IN CONNECTION WITH THE MATERIALS OR THE PLATFORM. In no event shallthe 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 IssuingBank 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 AdministrativeAgent’s transmission of Materials through the Internet, except to the extent that suchlosses, claims, damages, liabilities or expenses are determined by a court of competentjurisdiction by a final and nonappealable judgment to have resulted from the grossnegligence 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, theIssuing Bank or any other Person for indirect, special, incidental, consequential orpunitive 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 telephonenumber 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 andother communications hereunder by notice to the Borrower, the Administrative Agent and theIssuing Bank. In addition, each Lender agrees to notify the Administrative Agent from timeto 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 whichnotices and other communications may be sent and (ii) accurate wire instructions for suchLender. Furthermore, each Public Lender agrees to cause at least one individual at or onbehalf of such Public Lender to at all times have selected the “Private Side Information” orsimilar designation on the content declaration screen of the Platform in order to enablesuch Public Lender or its delegate, in accordance with such Public Lender’s complianceprocedures and applicable Law, including United States Federal and state securities Laws, tomake reference to Materials that are not made available through the “Public SideInformation” portion of the Platform and that may contain material non-public informationwith respect to the Borrower or its securities for purposes of United States Federal orstate securities laws.     (e) Reliance by Administrative Agent, Issuing Bank and Lenders. TheAdministrative Agent, the Issuing Bank and the Lenders shall be entitled to rely and actupon any notices (including telephonic Borrowing notices) purportedly given by or on behalfof the Borrower even if (i) such notices were not made in a manner specified herein, wereincomplete 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 confirmationthereof. The Borrower shall indemnify the Administrative Agent, the Issuing Bank, eachLender and the Related Parties of each of them from all losses, costs, expenses andliabilities resulting from the reliance by such Person on each notice purportedly given byor on behalf of the Borrower. All telephonic notices to and other telephonic communicationswith the Administrative Agent may be recorded by the Administrative Agent, and each of theparties 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 Noteshall operate as a waiver thereof; nor shall any single or partial exercise of any such rightpreclude any other or further exercise thereof or the exercise of any other right. The remediesprovided in this Agreement and the other Credit Documents are cumulative and not exclusive of anyremedies provided by law. Notwithstanding anything to the contrary contained herein or in anyother Credit Document, the authority to enforce rights and remedies hereunder and under the otherCredit Documents against the Loan Parties or any of them shall be vested exclusively in, and allactions and proceedings at law in connection with such enforcement shall be instituted andmaintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefitof 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 inureto its benefit (solely in its capacity as Administrative Agent) hereunder and under the otherCredit Documents, (b) the Issuing Bank from exercising the rights and remedies that inure to itsbenefit (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 duringthe 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 underthe other Credit Documents, then (i) the Required Lenders shall have the rights otherwise ascribedto the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forthin clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.16, any Lender may,with the
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consent of the Required Lenders, enforce any rights and remedies available to it and asauthorized by the Required Lenders.     **Section 10.04****Costs and Expenses**. The Borrower agrees to pay on demand allout-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, withoutlimitation, (a) the reasonable fees and out-of-pocket expenses of Moore & Van Allen PLLC, counselfor the Administrative Agent, and (b) all reasonable out-of-pocket costs and expenses, if any, ofthe Administrative Agent, Issuing Bank, and each Lender (including, without limitation, reasonablecounsel fees and expenses of the Administrative Agent, such Issuing Bank, and each Lender) inconnection with the enforcement (whether through negotiations, legal proceedings or otherwise) ofthis 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, EnvironmentalReports, Title Policies, mortgage and intangible taxes (if any), and any title or UniformCommercial Code search costs, any flood plain search costs, insurance consultant costs and othercosts usual and customary in connection with a credit facility of this type.     **Section 10.05****Binding Effect**. This Agreement shall become effective when it shallhave been executed by the Borrower and the Administrative Agent, and when the Administrative Agentshall have, as to each Lender, either received a counterpart hereof executed by such Lender or beennotified by such Lender that such Lender has executed it and thereafter shall be binding upon andinure to the benefit of the Borrower, the Administrative Agent, Issuing Bank, and each Lender andtheir respective successors and assigns, except that the Borrower shall not have the right toassign its rights or delegate its duties under this Agreement or any interest in this Agreementwithout 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, theBorrower, the Lenders, the Administrative Agent, all future holders of the Advances andtheir respective successors and assigns, except that the Borrower may not assign or transferany of its rights or obligations under this Agreement without the prior written consent ofthe Administrative Agent and each Lender.     (b) Any Lender may, without the consent of the Borrower or any other Person, inaccordance with applicable law, at any time sell to one or more banks, financialinstitutions or other entities (each, a “Participant”) participating interests inany Advance owing to such Lender, any Commitment of such Lender or any other interest ofsuch Lender hereunder and under the other Credit Documents. In the event of any such saleby a Lender of a participating interest to a Participant, such Lender’s obligations underthis Agreement to the other parties to this Agreement shall remain unchanged, such Lendershall remain solely responsible for the performance thereof, such Lender shall remain theholder of any such Advance for all purposes under this Agreement and the other CreditDocuments, and the Borrower, the Arranger and the Administrative Agent shall continue todeal solely and directly with such Lender in connection with such Lender’s rights andobligations under this Agreement and the other Credit Documents. In no event shall anyParticipant under any such participation have any right to approve any amendment or waiverof any provision of any Credit Document, or any consent to any departure by any AdvanceParty therefrom, except to the extent that such amendment, waiver or consent would requirethe consent of each “directly modified” Lender pursuant to Section 10.01(a). The Borroweragrees 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 anEvent 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 amountsowing under this Agreement to the same extent as if the amount of its participating interestwere owing directly to it as a Lender under this Agreement, provided that, inpurchasing such participating interest, such Participant shall be deemed to have agreed toshare with the Lenders the proceeds thereof as provided in Section 8.06(a) as fully as ifsuch Participant were a Lender hereunder. The Borrower also agrees that each Participantshall be entitled to the benefits of Sections 2.08, 2.09, 2.11 and 10.07 with respect to itsparticipation in the Commitments and the Advances outstanding from time to time as if suchParticipant were a Lender; provided that, in the case of Section 2.11, suchParticipant shall have complied with the requirements of said Section, and provided,further, that no Participant shall be entitled to receive
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any greater amount pursuant to any such Section than the transferor Lender would havebeen entitled to receive in respect of the amount of the participation transferred by suchtransferor Lender to such Participant had no such transfer occurred. In addition, eachtransferor 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 principaland interest with respect to such participation, and (ii) shall collect from each suchParticipant 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 Section2.11.     (c) Any Lender (an “Assignor”) may, in accordance with applicable law and uponwritten notice to the Administrative Agent, at any time and from time to time assign to anyLender or any affiliate, Related Fund or Control Investment Affiliate thereof or, with theconsent 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 theAdministrative Agent and, in the case of any assignment of Revolving Commitments, thewritten consent of the Issuing Bank (which, in each case, shall not be unreasonably withheldor delayed) (provided (y) that no such consent need be obtained by theAdministrative Agent or its affiliates and (z) the consent of neither the AdministrativeAgent nor the Borrower need be obtained with respect to any assignment of funded TermAdvances), to an additional Eligible Assignee all or any part of its rights and obligationsunder this Agreement pursuant to an Assignment and Assumption, substantially in the form ofExhibit C, executed by such Eligible Assignee and such Assignor (and, where the consent ofthe Borrower, the Administrative Agent or the Issuing Bank is required pursuant to theforegoing provisions, by the Borrower and such other Persons) and delivered to theAdministrative 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 anyaffiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (in thecase of the Term Loan Facility) or $5,000,000 (in the case of the Revolving CreditFacility), unless (1) otherwise consented to by the Borrower (so long as no Default or Eventof Default is then-continuing) and the Administrative Agent, which such consents shall notbe unreasonably withheld or delayed or (2) such assignment represents an assignment of allof a Lender’s interests under this Agreement and (B) if the Assignor shall retain anyAdvances or Commitments after giving effect to such assignment such Advances and Commitmentsshall, unless otherwise agreed by the Borrower and the Administrative Agent, be in anaggregate principal amount of not less than $1,000,000 (in the case of the Term LoanFacility) and $5,000,000 (in the case of the Revolving Credit Facility). Any suchassignment need not be ratable as among the Revolving Credit Facility and Term LoanFacility. Upon such execution, delivery, acceptance and recording in the Register, from andafter the effective date determined pursuant to such Assignment and Assumption, (x) theEligible 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 andobligations of a Lender hereunder with Commitments and/or Advances as set forth therein, inaddition to any rights and obligations theretofore held by it as a Lender, and (y) theAssignor thereunder shall, to the extent provided in such Assignment and Assumption, bereleased from its obligations under this Agreement (and, in the case of an Assignment andAssumption covering all of an Assignor’s rights and obligations under this Agreement, suchAssignor shall cease to be a party hereto, except as to Section 2.09, 2.11 and 10.04 and10.07 in respect of the period prior to such effective date). Notwithstanding any provisionof this Section, the consent of the Borrower shall not be required for any assignment thatoccurs at any time when any Event of Default shall have occurred and be continuing. Forpurposes of the minimum assignment amounts set forth in this paragraph, multiple assignmentsby or to two or more Related Funds shall be aggregated.     (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its addressreferred to in Section 10.02 a copy of each Assignment and Assumption delivered to it and aregister (the “Register”) for the recordation of the name and address of each Lenderand each Issuing Bank, each Lender’s Commitment, each Lender’s and each Issuing Bank’sinterest in each Advance, each Letter of Credit and each Letter of Credit Obligation, and inthe right to receive any payments hereunder and any assignment of any such interest orrights. 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 treateach Person whose name is recorded in the Register as the owner of the Advances, any Notesevidencing such Advances and any Reimbursement Obligation recorded therein for all purposesof this Agreement.
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Any assignment of any Advance, whether or not evidenced by a Note, shall be effectiveonly upon appropriate entries with respect thereto being made in the Register (and each Noteshall expressly so provide). Any assignment or transfer of all or part of an Advanceevidenced by a Note shall be registered on the Register only upon surrender for registrationof assignment or transfer of the Note evidencing such Advance, accompanied by a dulyexecuted Assignment and Assumption; thereupon one or more new Notes in the same aggregateprincipal amount shall be issued to the designated Eligible Assignee, and the old Notesshall be returned by the Administrative Agent to the Borrower marked “canceled”. TheRegister shall be available for inspection by the Borrower, any Lender (with respect to anyentry relating to such Lender’s Advances) or any Issuing Bank (with respect to any entryrelating to the Borrower’s Letter of Credit Obligations owed to such Issuing Bank) at anyreasonable time and from time to time upon reasonable prior notice.     (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and anEligible Assignee (and, in any case where the consent of any other Person is required bySection 10.06(c), by each such other Person) together with payment to the AdministrativeAgent of a registration and processing fee of $3,500 (if required by the AdministrativeAgent and, in any case treating multiple, simultaneous assignments by or to two or moreRelated Funds as a single assignment), the Administrative Agent shall (i) promptly acceptsuch Assignment and Assumption and (ii) on the effective date determined pursuant theretorecord the information contained therein in the Register and give notice of such acceptanceand recordation to the Borrower. On or prior to such effective date, the Borrower, at itsown expense, upon request, shall execute and deliver to the Administrative Agent (inexchange for the Revolving Note, PIK Obligation Notes and/or applicable Term Notes, as thecase may be, of the assigning Lender) a new Revolving Note, PIK Obligation Note and/orapplicable Term Notes, as the case may be, to the order of such Eligible Assignee and itsregistered assigns in an amount equal to the Revolving Commitment and/or applicable TermAdvances, as the case may be, assumed or acquired by it pursuant to such Assignment andAssumption and, if the Assignor has retained a Revolving Commitment, PIK Obligation and/orTerm Advances, as the case may be, upon request, a new Revolving Note, PIK Obligation Noteand/or Term Notes, as the case may be, to the order of the Assignor and its registeredassigns in an amount equal to the Revolving Commitment, PIK Obligation and/or applicableTerm Advances, as the case may be, retained by it hereunder. Such new Note or Notes shallbe dated the Effective Date and shall otherwise be in the form of the Note or Notes replacedthereby.     (f) For the avoidance of doubt, the parties to this Agreement acknowledge that theprovisions of this Section concerning assignments of Advances and Notes relate only toabsolute assignments and that such provisions do not prohibit assignments creating securityinterests in Advances and Notes, including any pledge or assignment by a Lender of any Loanor Note to (i) any Federal Reserve Bank in accordance with applicable law, (ii) any holderof, or trustee for the benefit of, the holders of such Lender’s securities or (iii) any SPCto 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 tothe Administrative Agent and the Borrower, the option to provide to the Borrower all or anypart of any Advance that such Granting Lender would otherwise be obligated to make to theBorrower pursuant to this Agreement; provided that (i) nothing herein shallconstitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not toexercise such option or otherwise fails to provide all or any part of such Advance, theGranting Lender shall be obligated to make such Advance pursuant to the terms hereof. Themaking of a Advance by an SPC hereunder shall utilize the Commitment of the Granting Lenderto the same extent, and as if, such Advance were made by such Granting Lender. Each partyhereto hereby agrees that no SPC shall be liable for any indemnity or similar paymentobligation under this Agreement (all liability for which shall remain with the GrantingLender). In furtherance of the foregoing, each party hereto hereby agrees (which agreementshall survive the termination of this Agreement) that, prior to the date that is one yearand one day after the payment in full of all outstanding commercial paper or otherindebtedness of any SPC, it will not institute against, or join any other person ininstituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency orliquidation proceedings under the laws of the United States or any state thereof. Inaddition, 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 andwithout paying any processing fee therefor, assign all or a portion of its interests in anyAdvances to the Granting Lender, or with the prior written consent of the Borrower and theAdministrative Agent (which consent shall not be unreasonably withheld) to any financialinstitutions providing liquidity and/or credit support to or for the account of such SPC tosupport the funding or maintenance of Advances, and (B) disclose on a confidential basis anynon-public information relating to its Advances to any rating agency, commercial paperdealer 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 disclosedonly 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 atthe time of such proposed amendment. In addition, each Granting Lender granting an SPC theoption to provide to the Borrower all or any part of any Advance that such Granting Lenderwould otherwise be obligated to make to the Borrower pursuant to this Agreement, (i) shallkeep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), ofeach SPC which has funded all or any part of any Advance that such Lender would haveotherwise been obligated to make to the Borrower pursuant to this Agreement, specifying suchSPC’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 fundedAdvance, from each SPC the appropriate forms, certificates and statements described inSection 2.11 (and updated as required by Section 2.11) as if such SPC were a Lender underSection 2.11, and each SPC that assigns all or a portion of its interests in any Advance toany 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 financialinstitution, specifying such financial institution’s entitlement to payments of principaland interest with respect to such Advance and (ii) shall collect, prior to the time suchfinancial institution receives payments with respect to such funded Advance, from each suchfinancial institution the appropriate forms, certificates and statements described inSection 2.11 (and updated as required by Section 2.11) as if such financial institution werea Lender under Section 2.11.     (h) For purposes of this Section 10.06, if an Issuing Bank transfers its rights withrespect 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 suchtransfer for notation in the Register, (ii) each such transfer may only be made uponnotation of such transfer in Register, and (iii) no such transfer will be effective forpurposes of this Agreement unless it has been recorded in the Register.     **Section 10.07****Indemnification**. The Borrower agrees (a) to pay, indemnify, orreimburse each Lender, the Arranger, the Administrative Agent and their respective Related Partiesfor, and hold each Lender, the Arranger, the Administrative Agent and such Related Parties harmlessfrom, any and all recording and filing fees and any and all liabilities with respect to, orresulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable ordetermined to be payable in connection with the execution and delivery of, or consummation oradministration of any of the transactions contemplated by, or any amendment, supplement ormodification 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 thereinor the transactions, and (b) to pay, indemnify or reimburse each Lender, the Arranger, theAdministrative Agent and their respective Related Parties (each, an “Indemnitee”) for, andhold 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 ornature whatsoever with respect to the execution, delivery, enforcement, performance andadministration of the Commitments, this Agreement, any of the other Credit Documents or anydocuments contemplated by or referred to herein or therein or the transactions, including any ofthe foregoing relating to the use of proceeds of the Advances or the violation of, noncompliancewith or liability under, any Environmental Law applicable to the operations of the Parent, theBorrower any of its Subsidiaries or any of the Properties or the use by unauthorized Persons ofinformation or other materials sent through electronic telecommunications or other informationtransmission systems that are intercepted by such Persons and the fees and disbursements and othercharges of legal counsel in connection with claims, actions or proceedings by any Indemniteeagainst the Borrower hereunder (all the foregoing in this clause (b), collectively, the“Indemnified Liabilities”), provided, that the Borrower shall have no obligationhereunder to any Indemnitee with respect to Indemnified Liabilities (i) to the extent suchIndemnified Liabilities are found by a final and nonappealable decision of a court of competentjurisdiction 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 liablefor any damages arising from the use by unauthorized persons of information or other materials sentthrough electronic, telecommunications or other information transmission systems that areintercepted by such persons or for any special, indirect, consequential or punitive damages inconnection with the Revolving Credit Facility or the Term Loan Facility. Without limiting theforegoing, and to the extent permitted by applicable law, the Borrower agrees not to assert and tocause its Subsidiaries not to assert, and hereby waives and agrees to cause its Subsidiaries so towaive, 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 kindor nature, under or related to Environmental Laws, that any of them might have by statute orotherwise against any Indemnitee. All amounts due under this Section shall be payable not laterthan 30 days after written demand therefor. Statements for amounts payable by the Borrowerpursuant 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 otherPerson or address as may be hereafter designated by the Borrower in a notice to the AdministrativeAgent. The agreements in this Section shall survive repayment of the Advances and all otheramounts payable hereunder. Notwithstanding anything contained herein, this Section 10.07 shall notbe construed to expand the obligations of the Borrower for costs and expenses with respect tocounsel 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 numberof counterparts and by different parties hereto in separate counterparts, each of which when soexecuted shall be deemed to be an original and all of which taken together shall constitute one andthe same agreement.     **Section 10.09****Survival of Representations, Indemnifications, etc**. All representationsand warranties contained in this Agreement or made in writing by or on behalf of the Borrower inconnection herewith shall survive the execution and delivery of this Agreement and the CreditDocuments, 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 andwarranties. All obligations of the Borrower provided for in Sections 2.08, 2.09, 2.11(c), and10.07 and the obligations of the Lenders under Section 9.05 shall survive any termination of thisAgreement and repayment in full of the Obligations.     **Section 10.10****Severability**. In case one or more provisions of this Agreement or theother Credit Documents shall be invalid, illegal or unenforceable in any respect under anyapplicable law, the validity, legality and enforceability of the remaining provisions containedherein 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 inthe execution and performance of this Agreement and the other Credit Documents to contract instrict compliance with applicable usury laws, including conflicts of law concepts, governing theAdvances of each Lender including such applicable laws of the State of New York and the UnitedStates of America from time to time in effect. In furtherance thereof, the Lenders and theBorrower stipulate and agree that none of the terms and provisions contained in this Agreement orthe other Credit Documents shall ever be construed to create a contract to pay, as considerationfor the use, forbearance or detention of money, interest at a rate in excess of the Maximum Rateand that for purposes hereof “interest” shall include the aggregate of all charges which constituteinterest under such laws that are contracted for, charged or received under this Agreement; and inthe 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 aredeemed interest which would exceed the Maximum Rate, then such excess shall be deemed to be amistake and each Lender receiving same shall credit the same on the principal of its Advances (orif such Advances shall have been paid in full, refund said excess to the Borrower). In the eventthat the maturity of the Advances is accelerated by reason of any election of the holder thereofresulting from any Event of Default under this Agreement or otherwise, or in the event of anyrequired or permitted prepayment, then such consideration that constitutes interest may neverinclude more than the Maximum Rate and excess interest, if any, provided for in this Agreement orotherwise shall be canceled automatically as of the date of such acceleration or prepayment and, iftheretofore paid, shall be credited on the applicable Advances (or, if the applicable Advancesshall have been paid in full, refunded to the Borrower). In determining whether or not theinterest paid or payable under any specific contingencies exceeds the Maximum Rate, the Borrowerand 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 amountsconsidered 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 controlover all other provisions of this Agreement or the other Credit Documents which may be in apparentconflict herewith.     **Section 10.12****GOVERNING LAW**. **THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BEGOVERNED BY, CONSTRUED AND ENFORCED, AND ANY DISPUTE BETWEEN THE BORROWER, THE ADMINISTRATIVEAGENT, ANY LENDER, OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TOTHE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHERCREDIT DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED INACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERALOBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OFNEW YORK; PROVIDED THAT THE PERFECTION OF THE LIENS OF THE ADMINISTRATIVE AGENT ON THE COLLATERALAND THE EXERCISE OF REMEDIES AGAINST THE COLLATERAL SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED INACCORDANCE 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)****, EACHOF 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 INTHE CITY AND COUNTY OF NEW YORK, STATE OF NEW YORK, BUT THE PARTIES HERETO ACKNOWLEDGE THATANY 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 COURTCONSIDERING THE DISPUTE; PROVIDED, HOWEVER (AND NOTWITHSTANDING THE FOREGOING), TO THEEXTENT ANY OF THE “EXCLUSIVE” COURTS REFERENCED ABOVE REFUSE TO OR ARE UNABLE TO TAKEJURISDICTION OVER ANY DISPUTES RELATED HERETO, PROCEEDINGS MAY BE BROUGHT IN ANY COURT INWHICH JURISDICTION OVER SUCH DISPUTE MAY BE ESTABLISHED.**     **(B)****OTHER JURISDICTIONS****. THE BORROWER AGREES THAT ANY AGENT, ANY LENDER OR ANYINDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURTIN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER THE BORROWEROR (2) ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THEBORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDINGBROUGHT 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 WHICHSUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS****SUBSECTION (B)****.**     **(C)****SERVICE OF PROCESS****. THE BORROWER WAIVES PERSONAL SERVICE OF ANY PROCESSUPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS, PROCESS ORSUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY ANY AGENT OR THELENDERS BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER ADDRESSED ASPROVIDED HEREIN. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANYAGENT OR THE LENDERS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNERPERMITTED BY**
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**APPLICABLE LAW. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUTLIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF****FORUM NONCONVENIENS****) WHICH IT MAY NOW OR**     **HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENTOR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANYJURISDICTION SET FORTH ABOVE.**     **(D)****WAIVER OF JURY TRIAL****. EACH OF THE PARTIES HERETO VOLUNTARILY ANDIRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHERSOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO ORINCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT ORANY 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 CAUSEOF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILEAN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OFTHE 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 OTHERWISEREQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TOREALIZE ON THE COLLATERAL ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCHPARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY ORPERMANENT INJUNCTION, THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT.**     **(F)****ADVICE OF COUNSEL****. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTYHERETO 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 ofthe Borrower” means the actual knowledge of any of the executive officers and all other ResponsibleOfficers of the Parent.     **Section 10.15****Lenders Not in Control**. None of the covenants or other provisionscontained in the Credit Documents shall or shall be deemed to, give the Lenders the rights or powerto exercise control over the affairs and/or management of the Borrower, any of its Subsidiaries orany Guarantor, the power of the Lenders being limited to the right to exercise the remediesprovided in the Credit Documents; provided, however, that if any Lender becomes theowner of any Ownership Interests in any Person, whether through foreclosure or otherwise, suchLender shall be entitled (subject to requirements of law) to exercise such legal rights as it mayhave by being owner of such Ownership Interests in such Person.     **Section 10.16****Headings Descriptive**. The headings of the several Sections andparagraphs of the Agreement are inserted for convenience only and shall not in any way affect themeaning or construction of any provision of this Agreement.     **Section 10.17****Time is of the Essence**. Time is of the essence under the CreditDocuments.     **Section 10.18****Lender Interest Rate Agreements**. As more fully set forth in theGuaranty and the Security Agreement, if any Lender enters into an Interest Rate Agreement with theBorrower or the Parent which is permitted by the provisions of Section 5.12, the obligations ofsuch 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 Collateralpursuant to the Security Agreement.     **Section 10.19****NO CONSEQUENTIAL DAMAGES**. NOTWITHSTANDING ANYTHING CONTAINED TO THECONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, EACH PERSON PARTY HERETO FOR ITSELF AND ONBEHALF OF ITS AFFILIATES AGREES THAT THE RECOVERY OF ANY DAMAGES SUFFERED OR INCURRED AS A RESULTOF ANY BREACH BY ANY PERSON OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THISAGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED OR INCURREDAS A RESULT OF THE BREACH BY THE BREACHING PARTY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONSHEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT AND IN NO EVENT SHALL THE BREACHING PARTY BE LIABLE TOANY 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 ORDELAYED PRODUCTION) SUFFERED OR INCURRED BY THE NON-BREACHING PARTY AS A RESULT OF THE BREACH BYTHE BREACHING PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR OBLIGATIONS HEREUNDER OR UNDER ANYOTHER CREDIT DOCUMENT.     **Section 10.20****USA PATRIOT Act Notice**. Each Lender and the Administrative Agent (foritself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to therequirements 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 identifiesthe Borrower, which information includes the name and address of the Borrower and other informationthat will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower inaccordance with the Act. The Borrower hereby agrees to provide such information on request.     **Section 10.21****Reliance on Professional Advisors**. It is expressly understood andagreed that neither the Administrative Agent, nor any Lender, nor any of their respectiveAffiliates is undertaking to provide the Borrower or any of its Affiliates with any advice relatingto legal, regulatory, accounting, or tax matters. In furtherance thereof, the Borroweracknowledges and agree that (a) it and its Affiliates have relied and will continue to rely on theadvice of its and their own legal, regulatory, accounting and tax advisors for all matters relatingto the Credit Documents, the Obligations and otherwise and (b) neither it, nor any of itsAffiliates, has received, or has relied upon, the advice of the Administrative Agent, or any Lenderor any of their respective affiliates or advisors regarding matters of law (including securitieslaw), 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 thisAgreement and the other Credit Documents;     (b) neither the Arranger, the Administrative Agent nor any Lender has any fiduciaryrelationship with or duty to the Parent or the Borrower arising out of or in connection withthis Agreement or any of the other Credit Documents, and the relationship between theArranger, the Administrative Agent and the Lenders, on one hand, and the Parent and theBorrower, on the other hand, in connection herewith or therewith is solely that of creditorand debtor; and     (c) no joint venture is created hereby or by the other Credit Documents or otherwiseexists by virtue of the transactions contemplated hereby among the Arranger, theAdministrative 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 aspectsof each transaction contemplated hereby, the Borrower and each other Loan Party acknowledges andagrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facilities providedfor hereunder and any related arranging or other services in connection therewith (including inconnection 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 theAdministrative Agent and the Arranger, on the other hand, and the Borrower and the other LoanParties are capable of evaluating and understanding and understand and accept the terms, risks andconditions of the transactions contemplated hereby and by the other Credit Documents (including anyamendment, waiver or other modification hereof or thereof); (ii) in connection with the processleading to such transaction, the Administrative Agent and the Arranger each is and has been actingsolely as a principal and is not the financial advisor, agent or fiduciary, for any of theBorrower, any other Loan Parties or any of their respective Affiliates, stockholders, creditors oremployees or any other Person; (iii) neither the Administrative Agent nor the Arranger has assumedor will assume an advisory, agency or fiduciary responsibility in favor of the Borrower or anyother Loan Party with respect to any of the transactions contemplated hereby or the process leadingthereto, including with respect to any amendment, waiver or other modification hereof or of anyother Credit Document (irrespective of whether the Administrative Agent or the Arranger has advisedor is currently advising any of the Borrower, the other Loan Parties or their respective Affiliateson other matters) and neither the Administrative Agent nor the Arranger has any obligation to anyof the Borrower, the other Loan Parties or their respective Affiliates with respect to thetransactions contemplated hereby except those obligations expressly set forth herein and in theother Credit Documents; (iv) the Administrative Agent and the Arranger and their respectiveAffiliates may be engaged in a broad range of transactions that involve interests that differ fromthose of the Borrower, the other Loan Parties and their respective Affiliates, and neither theAdministrative Agent nor the Arranger has any obligation to disclose any of such interests byvirtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and theArranger have not provided and will not provide any legal, accounting, regulatory or tax advicewith respect to any of the transactions contemplated hereby (including any amendment, waiver orother modification hereof or of any other Credit Document) and the Borrower and each other LoanParty has consulted its own legal, accounting, regulatory and tax advisors to the extent it hasdeemed appropriate.  The Borrower and each other Loan Party hereby waives and releases, to thefullest extent permitted by law, any claims that it may have against the Administrative Agent andthe Arranger with respect to any breach or alleged breach of agency or fiduciary duty, other thanwith respect to any breach or alleged breach resulting from the gross negligence or willfulmisconduct of the Administrative Agent and the Arranger.     **Section 10.25****Confidentiality**. Each of the Arranger, the Administrative Agent and theLenders agrees to keep confidential all non-public information provided to it by any Loan Partypursuant to this Agreement that is designated by such Loan Party as confidential; providedthat nothing herein shall prevent the Arranger, the Administrative Agent or any Lender fromdisclosing any such information (a) to the Arranger, the Administrative Agent, any other Lender orany 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 thisSection 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 inconnection with the performance of their duties and who are advised of the confidential naturethereof, (d) to any financial institution that is a direct or indirect contractual counterparty inswap agreements or such contractual counterparty’s professional advisor (so long as suchcontractual counterparty or professional advisor to such contractual counterparty agrees to bebound by the provisions of this Section), (e) upon the request or demand of any GovernmentalAuthority having jurisdiction over it, (f) in response to any order of any court or otherGovernmental Authority or as may otherwise be required pursuant to any Legal Requirement, (g) inconnection with any litigation or similar proceeding, (h) that has been publicly disclosed otherthan in breach of this Section, (i) to the National Association of Insurance Commissioners or anysimilar organization or any nationally recognized rating agency that requires access to informationabout a Lender’s investment portfolio in connection with ratings issued with respect to such Lenderor (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 CommercialPaper Inc. as “Administrative Agent”**.     (a) Each of the parties hereto hereby agrees that (a) the outstanding balance of theobligations under the Existing Credit Facility remain outstanding and constitute Obligationshereunder (though some of such obligations have been converted from revolving creditobligations to Term Advances) and (b) this Agreement is an amendment and restatement of theExisting Credit Facility, all documents, instruments or agreements creating securityinterests or liens in favor of the “Administrative Agent” or “Lenders” as defined in theExisting Credit Facility and securing the obligations thereunder continue to secure theObligations under this Agreement (though Bank of America, N.A. shall constitute a
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successor to Lehman Commercial Paper Inc. for purposes of determining the identity ofthe Administrative Agent referenced in such documents) and nothing contained herein isintended to represent a novation of any type with respect to the “Obligations” as defined inthe Existing Credit Facility or with respect to any other Indebtedness evidenced by theExisting Credit Facility or any documents, instruments or agreements executed in connectiontherewith.     (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 ExistingCredit 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 LehmanCommercial Paper Inc.’s rights and obligations as Administrative Agent hereunder and underthe other Credit Documents and (ii) Lehman Brothers, Inc. is resigning as Sole Lead Arrangerand Sole Book Manager under the Existing Credit Facility and is assigning to Banc of AmericaSecurities 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 BookManager 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 orbe responsible for (i) any obligations of the Administrative Agent or Sole Lead Arranger orSole Book Manager under or pursuant to any credit document under the Existing CreditFacility arising prior to the Effective Date or (ii) any claim of any nature arising at anytime or from time to time against Lehman Commercial Paper Inc. as Administrative Agent or inany other capacity under or with respect to this Agreement or any other Credit Document orthe transactions contemplated hereby or thereby or against Lehman Brothers, Inc. as SoleLead Arranger or Sole Book Manager or in any other capacity under or with respect to thisAgreement 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 theExisting Credit Agreement and any other Credit Document (as defined in the Existing CreditAgreement) in respect of Lehman Commercial Paper Inc.’s resignation as Administrative Agentand Collateral Agent under the Existing Credit Agreement and any other Credit Document (asdefined in the Existing Credit Agreement).**[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]**
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