Exhibit 10
Dated as of September 26, 2011
by and among
ASHFORD HOSPITALITY LIMITED PARTNERSHIP,
as Borrower,
ASHFORD HOSPITALITY TRUST, INC.,
as Parent,
KEYBANC CAPITAL MARKETS,
as Arranger,
KEYBANK NATIONAL ASSOCIATION,
as Agent,
and
THE FINANCIAL INSTITUTIONS INITIALLY SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 12.5.,
as Lenders
TABLE OF CONTENTS
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PAGE |
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ARTICLE I. DEFINITIONS |
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1 |
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Section 1.1. Definitions |
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1 |
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Section 1.2. General; References to Times |
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25 |
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Section 1.3. Financial Attributes of Non-Wholly Owned Joint Venture Subsidiaries |
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26 |
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ARTICLE II. CREDIT FACILITY |
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26 |
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Section 2.1. Revolving Loans |
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26 |
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Section 2.2. [Intentionally Omitted.] |
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27 |
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Section 2.3. Letters of Credit |
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27 |
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Section 2.4. Rates and Payment of Interest on Loans |
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31 |
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Section 2.5. Number of Interest Periods |
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32 |
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Section 2.6. Repayment of Loans |
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32 |
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Section 2.7. Prepayments |
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32 |
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Section 2.8. Continuation |
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33 |
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Section 2.9. Conversion |
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33 |
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Section 2.10. Notes |
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34 |
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Section 2.11. Voluntary Reductions of the Revolving Commitment |
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34 |
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Section 2.12. Extension of Revolving Termination Date |
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35 |
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Section 2.13. Expiration or Maturity Date of Letters of Credit Past
Revolving Termination Date |
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35 |
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Section 2.14. Amount Limitations |
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35 |
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Section 2.15. Increase of Revolving Commitments |
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36 |
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ARTICLE III. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS |
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37 |
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Section 3.1. Payments |
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37 |
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Section 3.2. Pro Rata Treatment |
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37 |
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Section 3.3. Sharing of Payments, Etc. |
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38 |
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Section 3.4. Several Obligations |
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38 |
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Section 3.5. Minimum Amounts |
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38 |
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Section 3.6. Fees |
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39 |
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Section 3.7. Computations |
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40 |
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Section 3.8. Usury |
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40 |
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i
TABLE OF CONTENTS
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PAGE |
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Section 3.9. Agreement Regarding Interest and Charges |
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40 |
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Section 3.10. Statements of Account |
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41 |
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Section 3.11. Defaulting Lenders |
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41 |
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Section 3.12. Taxes |
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44 |
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ARTICLE IV.
YIELD PROTECTION, ETC. |
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46 |
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Section 4.1. Additional Costs; Capital Adequacy |
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46 |
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Section 4.2. Suspension of LIBOR Loans |
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47 |
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Section 4.3. Illegality |
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48 |
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Section 4.4. Compensation |
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48 |
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Section 4.5. Affected Lenders |
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49 |
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Section 4.6. Treatment of Affected Loans |
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49 |
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Section 4.7. Change of Lending Office |
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50 |
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Section 4.8. Assumptions Concerning Funding of LIBOR Loans |
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50 |
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ARTICLE V. CONDITIONS PRECEDENT |
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50 |
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Section 5.1. Initial Conditions Precedent |
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50 |
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Section 5.2. Conditions Precedent to All Loans and Letters of Credit |
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53 |
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Section 5.3. Post-Closing Deliveries |
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53 |
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ARTICLE VI. REPRESENTATIONS AND WARRANTIES |
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54 |
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Section 6.1. Representations and Warranties |
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54 |
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Section 6.2. Survival of Representations and Warranties, Etc. |
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59 |
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ARTICLE VII. AFFIRMATIVE COVENANTS |
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60 |
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Section 7.1. Preservation of Existence and Similar Matters |
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60 |
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Section 7.2. Compliance with Applicable Law |
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60 |
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Section 7.3. Maintenance of Property |
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60 |
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Section 7.4. Conduct of Business |
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61 |
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Section 7.5. Insurance |
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61 |
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Section 7.6. Payment of Taxes and Claims |
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61 |
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Section 7.7. Visits and Inspections |
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61 |
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Section 7.8. Use of Proceeds; Letters of Credit |
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62 |
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Section 7.9. Environmental Matters |
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62 |
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ii
TABLE OF CONTENTS
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PAGE |
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Section 7.10. Books and Records |
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63 |
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Section 7.11. Further Assurances |
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63 |
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Section 7.12. Additional Guarantors and Pledges |
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63 |
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Section 7.13. Release of Guarantors and Pledges |
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64 |
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Section 7.14. REIT Status |
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66 |
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Section 7.15. Exchange Listing |
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66 |
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Section 7.16. Compliance With Material Contracts |
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66 |
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ARTICLE VIII. INFORMATION |
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66 |
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Section 8.1. Quarterly Financial Statements |
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66 |
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Section 8.2. Year-End Statements |
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67 |
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Section 8.3. Compliance Certificate |
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67 |
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Section 8.4. Other Information |
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67 |
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Section 8.5. Electronic Delivery of Certain Information |
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69 |
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Section 8.6. Public/Private Information |
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70 |
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ARTICLE IX. NEGATIVE COVENANTS |
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70 |
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Section 9.1. Financial Covenants |
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71 |
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Section 9.2. Restricted Payments |
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72 |
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Section 9.3. Indebtedness |
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72 |
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Section 9.4. Certain Permitted Investments |
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73 |
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Section 9.5. Investments Generally |
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74 |
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Section 9.6. Liens; Negative Pledges; Other Matters |
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74 |
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Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements |
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75 |
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Section 9.8. Fiscal Year |
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77 |
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Section 9.9. Modifications of Organizational Documents |
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77 |
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Section 9.10. Transactions with Affiliates |
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77 |
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Section 9.11. ERISA Exemptions |
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77 |
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ARTICLE X. DEFAULT |
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77 |
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Section 10.1. Events of Default |
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77 |
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Section 10.2. Remedies Upon Event of Default |
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82 |
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Section 10.3. Remedies Upon Default |
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83 |
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iii
TABLE OF CONTENTS
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PAGE |
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Section 10.4. Allocation of Proceeds |
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83 |
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Section 10.5. Collateral Account |
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84 |
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Section 10.6. Performance by Agent |
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85 |
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Section 10.7. Rights Cumulative |
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85 |
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ARTICLE XI. THE AGENT |
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85 |
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Section 11.1. Authorization and Action |
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85 |
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Section 11.2. Agent’s Reliance, Etc. |
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86 |
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Section 11.3. Notice of Defaults |
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87 |
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Section 11.4. KeyBank as Lender |
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87 |
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Section 11.5. Approvals of Lenders |
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88 |
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Section 11.6. Lender Credit Decision, Etc. |
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88 |
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Section 11.7. Indemnification of Agent |
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89 |
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Section 11.8. Successor Agent |
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90 |
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Section 11.9. Titled Agents |
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90 |
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ARTICLE XII. MISCELLANEOUS |
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91 |
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Section 12.1. Notices |
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91 |
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Section 12.2. Expenses |
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92 |
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Section 12.3. Setoff |
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92 |
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Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers |
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93 |
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Section 12.5. Successors and Assigns |
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94 |
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Section 12.6. Amendments |
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98 |
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Section 12.7. Nonliability of Agent and Lenders |
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99 |
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Section 12.8. Confidentiality |
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100 |
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Section 12.9. Indemnification |
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101 |
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Section 12.10. Termination; Survival |
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103 |
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Section 12.11. Severability of Provisions |
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104 |
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Section 12.12. GOVERNING LAW |
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104 |
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Section 12.13. Patriot Act |
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104 |
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Section 12.14. Counterparts |
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104 |
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Section 12.15. Obligations with Respect to Loan Parties |
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104 |
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iv
TABLE OF CONTENTS
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PAGE |
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Section 12.16. Limitation of Liability |
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104 |
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Section 12.17. Entire Agreement |
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105 |
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Section 12.18. Construction |
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105 |
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SCHEDULE I
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Revolving Commitments |
SCHEDULE 1.1.(A)
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Reserved |
SCHEDULE 1.1.(B)
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List of Grantors |
SCHEDULE 1.1.(C)
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List of Loan Parties |
SCHEDULE 1.1.(D)
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List of Pledgors |
SCHEDULE 6.1.(b)
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Ownership Structure |
SCHEDULE 6.1.(f)
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Title to Properties |
SCHEDULE 6.1.(g)
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Existing Indebtedness; Liens |
SCHEDULE 6.1.(l)
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ERISA Non-Payments or Amendment |
SCHEDULE 9.10.
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Transactions with Affiliates |
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EXHIBIT A
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Form of Assignment and Assumption |
EXHIBIT B
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Form of Notice of Borrowing |
EXHIBIT C
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Form of Notice of Continuation |
EXHIBIT D
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Form of Notice of Conversion |
EXHIBIT E
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Form of Pledge Agreement |
EXHIBIT F
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Form of Security Agreement |
EXHIBIT G
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Form of Note |
EXHIBIT H
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Reserved |
EXHIBIT I
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Reserved |
EXHIBIT J
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Form of Compliance Certificate |
EXHIBIT K
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Form of Guaranty |
v
THIS
CREDIT AGREEMENT (this “Agreement”) dated as of September 26, 2011 by and among ASHFORD
HOSPITALITY LIMITED PARTNERSHIP, a limited partnership formed under the laws of the State of
Delaware (the “Borrower”), ASHFORD HOSPITALITY TRUST, INC. a corporation formed under the laws of
the State of Maryland (the “Parent”), KEYBANC CAPITAL MARKETS, as Arranger (the “Arranger”),
KEYBANK NATIONAL ASSOCIATION, as Agent, and each of the financial institutions initially a
signatory hereto together with their assignees pursuant to Section 12.5.(b).
WHEREAS, Borrower has requested that the Lenders provide a revolving credit facility to
Borrower; and
WHEREAS, the Agent and the Lenders are willing to make such credit facility available to the
Borrower on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto agree as follows:
ARTICLE I. Definitions
Section 1.1. Definitions.
In addition to terms defined elsewhere herein, the following terms shall have the following
meanings for the purposes of this Agreement:
“Accession Agreement” means an Accession Agreement substantially in the form of Annex I to the
Guaranty.
“Acquired Mezzanine Debt Entity” means a Person that has become a Subsidiary or a Joint
Venture Subsidiary of the Borrower (including, without limitation, any Person the beneficial
interest of which is held by a lender, servicer or trust on behalf of the Borrower, any of its
Subsidiaries any of its Joint Venture Subsidiaries) as a result of the exercise by the Borrower,
any of its Subsidiaries or any of its Joint Venture Subsidiaries (or any such lender, servicer or
trustee) of remedies (or settlement in lieu of the exercise of remedies) in respect of a defaulted
Mezzanine Debt Interest held, in whole or in part, by or on behalf of the Borrower, any such
Subsidiary or any such Joint Venture Subsidiary.
“Additional Costs” has the meaning given that term in Section 4.1.(a).
“Adjusted EBITDA” means, for any given period, (a) the EBITDA of the Parent and its
Subsidiaries for such period, minus (b) Capital Reserves.
“Adjusted LIBOR” means, with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus the
stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with
respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified
in Regulation D of the Board of Governors of the Federal Reserve System (or against any other
category of liabilities which includes deposits by reference to which the interest rate on LIBOR
Loans is determined or any applicable category of extensions of
1
credit or other assets which includes loans by an office of any Lender outside of the United
States of America to residents of the United States of America). Any change in such maximum rate
shall result in a change in Adjusted LIBOR on the date on which such change in such maximum rate
becomes effective.
“Adjusted Total Asset Value” means Total Asset Value determined exclusive of assets that are
owned by Excluded Subsidiaries or by Joint Venture Subsidiaries that are not Controlled Joint
Venture Subsidiaries.
“Administrative Details Form” means an Administrative Details Reply Form in a form supplied by
the Agent to the Lenders from time to time.
“Affiliate” means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. In no event shall the Agent or any Lender be deemed to be an
Affiliate of the Borrower.
“Agent” means KeyBank National Association, as contractual representative for the Lenders
under the terms of this Agreement, and any of its successors.
“Aggregate Exposure” means, with respect to any Lender at any time, an amount equal to the
amount of the Revolving Commitment, if any, of such Lender then in effect or, if at the time of
determination the Revolving Commitments have terminated or been reduced to zero, the principal
amount of the aggregate outstanding Revolving Loans and Letter of Credit Liabilities, if any, of
such Lender.
“Aggregate Exposure Percentage” means, with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the sum of the
Aggregate Exposures of all Lenders at such time.
“Agreement Date” means the date as of which this Agreement is dated.
“Applicable Law” means all applicable provisions of constitutions, statutes, laws, rules,
regulations and orders of all governmental bodies and all orders and decrees of all courts,
tribunals and arbitrators.
“Applicable Margin” means with respect to the Revolving Loans, the percentage set forth below
corresponding to the ratio of Total Net Indebtedness to Total Asset Value (excluding cash and cash
equivalents) as determined in accordance with Section 9.1. in effect at such time:
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Total Net Indebtedness to |
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Applicable Margin for |
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Applicable Margin for |
Level |
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Total Asset Value |
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LIBOR Loans |
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Base Rate Loans |
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1 |
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< 0.50 to 1.00 |
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2.75 |
% |
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1.75 |
% |
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2 |
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> 0.50 to 1.00 and < 0.60 to 1.00 |
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3.00 |
% |
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2.00 |
% |
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3 |
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> 0.60 to 1.00 |
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3.50 |
% |
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2.50 |
% |
The Applicable Margin for Revolving Loans shall be determined by the Agent from time to time
as provided above, based on the ratio of Total Net Indebtedness to Total Asset Value (excluding
2
cash and cash equivalents) as set forth in the Compliance Certificate most recently delivered by
the Parent pursuant to Section 8.3. Any necessary adjustment to the Applicable Margin for
Revolving Loans shall be effective (a) in the case of a Compliance Certificate delivered in
connection with quarterly financial statements of the Parent delivered pursuant to Section 8.1., as
of the date 50 days following the end of the last day of the applicable fiscal quarter covered by
such Compliance Certificate, and (b) in the case of a Compliance Certificate delivered in
connection with annual financial statements of the Parent delivered pursuant to Section 8.2., as of
the date 100 days following the end of the last day of the applicable fiscal year covered by such
Compliance Certificate. As of the Agreement Date, and thereafter until changed as provided above,
the Applicable Margin for Revolving Loans shall be determined based on Xxxxx 0 of the above table.
If the Borrower fails to deliver a Compliance Certificate pursuant to Section 8.3., the Applicable
Margin for Revolving Loans shall equal the percentages corresponding to Level 3 in the above table
until the date of the delivery of the required Compliance Certificate.
The provisions of this definition are subject to Section 2.4.(c).
“Approved Fund” means any Fund that is administered, managed or underwritten by (a) a Lender,
(b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
“Arranger” means KeyBanc Capital Markets, together with its successors and permitted assigns.
“Assignee” has the meaning given that term in Section 12.5.(b).
“Assignment and Assumption” means an Assignment and Assumption entered into by a Lender and an
Eligible Assignee (with the consent of any party whose consent is required by Section 12.5.),
substantially in the form of Exhibit A or any other form approved by the Agent.
“Base Rate” means, on any date of determination, the per annum rate of interest equal to the
greater of (a) the Prime Rate on such date, (b) the Federal Funds Rate on such date plus one-half
of one percent (0.50%) or (c) LIBOR for a one-month Interest Period commencing on such date (or if
such date is not a Business Day, on the immediately preceding Business Day) plus the amount by
which the Applicable Margin for LIBOR Loans exceeds the Applicable Margin for Base Rate Loans. Any
change in the Base Rate resulting from a change in the Prime Rate, the Federal Funds Rate or LIBOR
shall become effective as of 12:01 a.m. on the Business Day on which each such change occurs. The
Base Rate is a reference rate used by the Lender acting as the Agent in determining interest rates
on certain loans and is not intended to be the lowest rate of interest charged by the Lender acting
as the Agent or any other Lender on any extension of credit to any debtor.
“Base Rate Loan” means a Revolving Loan bearing interest at a rate based on the Base Rate.
“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.
3
“Borrower” has the meaning set forth in the introductory paragraph hereof and shall include
the Borrower’s successors and permitted assigns.
“
Business Day” means (a) any day other than a Saturday, Sunday or other day on which banks in
Dallas, Texas, Cleveland, Ohio or
New York,
New York are authorized or required to close and (b)
with reference to a LIBOR Loan, any such day that is also a day on which dealings in Dollar
deposits are carried out in the London interbank market.
“Capital Reserves” means, for any period and with respect to a Property, an amount equal to
4.0% of the gross revenues of such Property for such period. If the term Capital Reserves is used
without reference to any specific Property, then the amount shall be determined on an aggregate
basis with respect to all Properties of the Borrower and its Subsidiaries and a proportionate share
of all Properties of all Joint Venture Subsidiaries.
“Capitalized Lease Obligation” means an obligation under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP in effect as of the date of
this Agreement. The amount of a Capitalized Lease Obligation is the capitalized amount of such
obligation as would be required to be reflected on a balance sheet of the applicable Person
prepared in accordance with GAAP as of the date of this Agreement.
“Cash Equivalents” means: (a) securities issued, guaranteed or insured by the United States of
America or any of its agencies with maturities of not more than one year from the date acquired;
(b) certificates of deposit with maturities of not more than one year from the date acquired issued
by a United States federal or state chartered commercial bank of recognized standing, or a
commercial bank organized under the laws of any other country which is a member of the Organization
for Economic Cooperation and Development, or a political subdivision of any such country, acting
through a branch or agency, which bank has capital and unimpaired surplus in excess of $500,000,000
and which bank or its holding company has a short-term commercial paper rating of at least A-2 or
the equivalent by S&P or at least P-2 or the equivalent by Xxxxx’x; (c) reverse repurchase
agreements with terms of not more than seven days from the date acquired, for securities of the
type described in clause (a) above and entered into only with commercial banks having the
qualifications described in clause (b) above; (d) commercial paper issued by any Person
incorporated under the laws of the United States of America or any State thereof and rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Xxxxx’x, in each
case with maturities of not more than one year from the date acquired; and (e) investments in money
market funds which invest primarily in assets of the type described in clauses (a) through (d)
above.
“Closely Held Joint Venture Subsidiary” means a Joint Venture Subsidiary of the Borrower for
which the Equity Interests in such Person are Controlled by no more than three Persons, and each of
such Persons intends to hold its investment without any intention of reselling to others. For the
avoidance of doubt, neither the Parent nor the Borrower shall be a Closely Held Joint Venture
Subsidiary.
“Collateral” means any personal property of any of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document, and
4
includes, without limitation, all “Collateral” under and as defined in the Pledge Agreement
and under and as defined in the Security Agreement.
“Collateral Account” means a special non-interest bearing deposit account or securities
account maintained by, or on behalf of, the Agent and under its sole dominion and control.
“Compliance Certificate” has the meaning given that term in Section 8.3.
“Continue”, “Continuation” and “Continued” each refers to the continuation of a LIBOR Loan
from one Interest Period to another Interest Period pursuant to Section 2.8.
“Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Joint Venture Subsidiary” means, for any Person, any corporation, partnership or
other entity of which at least a majority of the Equity Interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors or other individuals performing
similar functions of such corporation, partnership or other entity (without regard to the
occurrence of any contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries or Controlled Joint Venture Subsidiaries of such Person or by
such Person and one or more Subsidiaries or Controlled Joint Venture Subsidiaries of such Person,
and shall include all Persons the accounts of which are consolidated with those of such Person
pursuant to GAAP.
“Convert”, “Conversion” and “Converted” each refers to the conversion of a Loan of one Type
into a Loan of another Type pursuant to Section 2.9.
“Credit Event” means any of the following: (a) the making (or deemed making) of any Loan, (b)
the Conversion of a Base Rate Loan into a LIBOR Loan, and (c) the issuance of a Letter of Credit.
“Default” means any of the events specified in Section 10.1., whether or not there has been
satisfied any requirement for the giving of notice, the lapse of time, or both.
“Defaulting Lender” means any Lender that, as reasonably determined by the Agent, (a) has
failed to perform any of its funding obligations hereunder, including in respect of its Loans or
participations in respect of Letters of Credit, within three (3) Business Days of the date required
to be funded by it hereunder and such failure is continuing, unless such failure arises out of a
good faith dispute between such Lender and either the Borrower or the Agent and either such Lender
or the Agent has provided written notice to the Borrower of such dispute, (b) has notified the
Borrower, the Agent or any Lender that it does not intend to comply with its funding obligations
hereunder or has made a public statement to that effect with respect to its funding obligations
under other agreements generally in which it commits to extend credit, unless with respect to this
clause (b), such failure is subject to a good faith dispute, (c) has failed, within three (3)
Business Days after request by the Agent, to confirm in a manner reasonably satisfactory to the
Agent that it will comply with its funding obligations; provided that,
5
notwithstanding the provisions of Section 3.11., such Lender shall cease to be a Defaulting
Lender upon the Agent’s receipt of confirmation that such Defaulting Lender will comply with its
funding obligations, or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any bankruptcy, insolvency, reorganization, liquidation,
conservatorship, assignment for the benefit of creditors, moratorium, receivership, rearrangement
or similar debtor relief law of the United States or other applicable jurisdictions from time to
time in effect, including any law for the appointment of the Federal Deposit Insurance Corporation
or any other state or federal regulatory authority as receiver, conservator, trustee, administrator
or any similar capacity, (ii) had a receiver, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person, including the Federal Deposit Insurance Corporation or any
other state or federal regulatory authority acting in such capacity, charged with reorganization or
liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or any direct or indirect parent
company thereof by a governmental authority (including any agency, instrumentality, regulatory
body, central bank or other authority) so long as such ownership interest does not result in or
provide such Lender with immunity from the jurisdiction of courts of the United States or from the
enforcement of judgments or writs of attachment of its assets or permit such Lender (or such
governmental authority or instrumentality) to reject, repudiate, disavow, or disaffirm any
contracts or agreements made with such Person). Any determination by the Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and
binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject
to Section 3.11(g)) upon delivery of written notice of such determination to the Borrower and each
Lender.
“Derivatives Contract” means any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement or any other netting agreement, including any such obligations or
liabilities under any such netting agreement.
“Derivatives Contracts Beneficiary” means (a) in respect of any Derivatives Contract with the
Borrower, a Person who is or was a Lender (or any Affiliate of any Lender) at the time such
Derivatives Contract was executed with the Borrower, (b) in the case of Derivatives Contracts
entered into prior to the date of this Agreement among Borrower and any Lender initially a party to
this Agreement as a Lender (or any Affiliate of such a Lender) only, a Person
6
who was a Lender (or any Affiliate of such Lender) on the date of this Agreement, and (c) in
respect of any Derivatives Contract with a Subsidiary of Borrower that is a Guarantor, a Person who
is or was a Lender (or an Affiliate of any Lender) at the time such Derivatives Contract was
executed with such Subsidiary, provided that at all times such Subsidiary is and remains a
Guarantor.
“Derivatives Termination Value” means, in respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been
closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Derivatives Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Derivatives Contracts (which may include any Lender).
“Disposition” has the meaning set forth in Section 9.7(d).
“Dollars” or “$” means the lawful currency of the United States of America.
“Domestic Subsidiary” means any Subsidiary or Joint Venture Subsidiary that is incorporated or
organized under the laws of any state of the United States or the District of Columbia.
“EBITDA” means, with respect to a Person for any period (without duplication): (a) net income
(loss) of such Person for such period determined on a consolidated basis, in accordance with GAAP
(but excluding any Joint Venture Subsidiary consolidated with such Person in accordance with GAAP),
exclusive of the following (but only to the extent included in determination of such net income
(loss)): (i) depreciation and amortization (but as to capital leases included as an asset, only
depreciation in accordance with GAAP in effect as of the date of this Agreement); (ii) Interest
Expense; (iii) income tax expense; (iv) extraordinary or non-recurring gains and losses and
unrealized gains and losses; and (v) other non-cash items, including without limitation, non-cash
impairment charges, any changes in the Fair Market Value of any Derivatives Contracts and deferred
compensation expense for officers and employees and amortization of stock grants; plus (b) such
Person’s pro rata share of EBITDA of its Joint Venture Subsidiaries. EBITDA shall be adjusted to
remove any impact from straight line rent leveling adjustments required under GAAP and amortization
of intangibles pursuant to Statement of Financial Accounting Standards number 141.
“Effective Date” means the later of: (a) the Agreement Date; and (b) the date on which all of
the conditions precedent set forth in Section 5.1. shall have been fulfilled or waived in writing
by the Requisite Lenders.
“Eligible Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund,
and (d) any other Person (other than a natural person) approved by (i) the Agent and (ii) unless a
Default or Event of Default shall exist, the Borrower (each such approval by the Agent or the
Borrower not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing,
“Eligible Assignee” shall not include the Borrower or any of the
7
Borrower’s
Affiliates or Subsidiaries or Joint Venture Subsidiaries. Neither a Defaulting Lender nor any Affiliate
of a Defaulting Lender shall qualify as an Eligible Assignee.
“Environmental Laws” means any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean-up of Hazardous Materials including, without
limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; regulations of the Environmental Protection Agency and any Applicable Law relating primarily
to the environment or Hazardous Materials.
“Equity Interest” means, with respect to any Person, any share of capital stock in (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase
or other acquisition from such Person of any share of capital stock in (or other ownership or
profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock in (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.
“Equity Issuance” means any issuance by a Person of any Equity Interest in such Person and
shall in any event include the issuance of any Equity Interest upon the conversion or exchange of
any security constituting Indebtedness that is convertible or exchangeable, or is being converted
or exchanged, for Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as in effect from time to
time.
“ERISA Group” means the Borrower, any Subsidiary, any Controlled Joint Venture Subsidiary and
all members of a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any Subsidiary or
Controlled Joint Venture Subsidiary, are treated as a single employer under Section 414 of the
Internal Revenue Code.
“Event of Default” means any of the events specified in Section 10.1., provided that any
requirement for notice or lapse of time or any other condition has been satisfied.
“Excluded Subsidiary” means (a) any Subsidiary or Joint Venture Subsidiary (i) holding title
to or beneficially owning assets which are or are intended to become collateral for any Secured
Indebtedness of such Subsidiary or Joint Venture Subsidiary, or being a beneficial owner of a
Subsidiary or Joint Venture Subsidiary holding title to or beneficially owning such assets (but
having no material assets other than such beneficial ownership interests) and (ii) which (x) is, or
is expected to be, prohibited from Guarantying the Indebtedness of any other Person pursuant to any
document, instrument or agreement evidencing such Secured
8
Indebtedness or (y) is prohibited from Guarantying the Indebtedness of any other Person
pursuant to a provision of such Subsidiary’s or Joint Venture Subsidiary’s organizational documents
which provision was included in such Subsidiary’s or Joint Venture Subsidiary’s organizational
documents as a condition or anticipated condition to the extension of such Secured Indebtedness,
(b) any Joint Venture Subsidiary (i) of which more than 5.0% of the outstanding Equity Interests in
such joint Venture Subsidiary are owned by Minority Holders and (ii) that is prohibited from
Guarantying the Indebtedness of any other Person without the consent of such Minority Holders, and
(c) any Subsidiary of any entity described in clause (a) or (b) above. A Subsidiary or Joint
Venture Subsidiary shall no longer be considered an Excluded Subsidiary when it ceases to be
subject to the circumstances or restrictions which caused it to be an Excluded Subsidiary.
“
Existing Credit Agreement” means that certain
Credit Agreement dated as of April 10, 2007 by
and among the Borrower, the financial institutions party thereto as “Lenders”, Wachovia Bank,
National Association, as Administrative Agent, and the other parties thereto, as amended.
“Fair Market Value” means, with respect to (a) a security listed on a national securities
exchange or the NASDAQ National Market, the price of such security as reported on such exchange or
market by any widely recognized reporting method customarily relied upon by financial institutions
and (b) with respect to any other property, the price which could be negotiated in an arm’s-length
free market transaction, for cash, between a willing seller and a willing buyer, neither of which
is under pressure or compulsion to complete the transaction.
“
Federal Funds Rate” means, for any day, the rate per annum (rounded upward to the nearest
1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day,
provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate quoted to the Agent by federal funds dealers selected by the Agent on such day on such
transaction as determined by the Agent.
“Fees” means the fees and commissions provided for or referred to in Section 3.6. and any
other fees payable by the Borrower hereunder or under any other Loan Document.
“Fixed Charges” means, for any period, the sum of (a) Interest Expense of the Parent and its
Subsidiaries determined on a consolidated basis for such period (but excluding any Joint Venture
Subsidiary consolidated with such Person in accordance with GAAP), (b) all regularly scheduled
principal payments made with respect to Indebtedness of the Parent and its Subsidiaries during such
period (but excluding any Joint Venture Subsidiary consolidated with such Person in accordance with
GAAP), other than (i) any balloon, bullet or similar principal payment which repays such
Indebtedness in full and (ii) any amounts paid under a cash flow mortgage applied to principal, and
(c) all Preferred Dividends paid during such period. The Parent’s pro rata share of the Fixed
Charges of Joint Venture Subsidiaries of the Parent shall be included in determinations of Fixed
Charges.
9
“Floating Rate Indebtedness” means such portion of Total Indebtedness which, after giving
effect to any Derivatives Contracts, at the time of calculation bears current interest at a
variable rate that is not then subject to a “cap,” “collar” or other similar arrangement; provided,
that Indebtedness shall be deemed subject to a “cap,” “collar” or similar arrangement if (i) with
respect to any Secured Indebtedness secured by a Mortgage which is then subject to a “cap,”
“collar” or similar arrangement, the terms of which are specified by the documents relating to such
Secured Indebtedness, such “cap”, “collar” or similar arrangement with respect to such Secured
Indebtedness complies with the specific terms and conditions of such Secured Indebtedness with
respect thereto, and (ii) with respect to any other Indebtedness (including any Indebtedness
secured by a Mortgage which does not satisfy the terms of clause (i) above), any “cap”, “collar” or
similar arrangement with respect to such Indebtedness results in the variable rate being less than
or equal to the sum of (x) the rate (as reasonably determined by the Agent) borne by United States
Treasury notes with a maturity of 10 years at the time the applicable Derivatives Contract became
effective and (y) 3.0% per annum.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Foreign Subsidiary” means a Subsidiary or a Joint Venture Subsidiary that (a) is not a
Domestic Subsidiary and (b) is not a “disregarded entity” under Treas. Reg. Section
301.7701-2(a).
“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the
Agent, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding Letter of Credit
Liabilities other than Letter of Credit Liabilities as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or cash collateral or other credit
support acceptable to the Agent shall have been provided in accordance with the terms hereof.
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.
“GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date of determination.
“Governmental Approvals” means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
10
“Governmental Authority” means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance
Corporation, the Comptroller of the Currency, the Federal Reserve Board, any central bank and any
comparable authority) or any arbitrator with authority to bind a party at law.
“Grantor” means the Borrower and each of the Subsidiaries and Joint Venture Subsidiaries set
forth on Schedule 1.1.(B) and any other Person that becomes a “Grantor” under the Security
Agreement, in each case, which has not been released as a “Grantor” in accordance with the terms of
this Agreement.
“Guarantor” means any Person that is a party to the Guaranty as a “Guarantor” and in any event
shall include the Parent and each Material Subsidiary (other than a Foreign Subsidiary).
“Guaranty”, “Guaranteed”, “Guarantying” or to “Guarantee” as applied to any Indebtedness means
and includes: (a) a guaranty (other than by endorsement of negotiable instruments for collection or
deposit in the ordinary course of business), directly or indirectly, in any manner, of any part or
all of such Indebtedness, or (b) an agreement, direct or indirect, contingent or otherwise, and
whether or not constituting a guaranty, the practical effect of which is to assure the payment or
performance (or payment of damages in the event of nonperformance) of any part or all of such
obligation whether by: (i) the purchase of securities or obligations, (ii) the purchase, sale or
lease (as lessee or lessor) of property or the purchase or sale of services primarily for the
purpose of enabling the obligor with respect to such obligation to make any payment or performance
(or payment of damages in the event of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss, (iii) the supplying of funds to
or in any other manner investing in the obligor with respect to such obligation, (iv) repayment of
amounts drawn down by beneficiaries of letters of credit (including Letters of Credit), or (v) the
supplying of funds to or investing in a Person on account of all or any part of such Person’s
obligation under a Guaranty of any obligation or indemnifying or holding harmless, in any way, such
Person against any part or all of such obligation. As the context requires, “Guaranty” shall also
mean the Guaranty to which the Guarantors are parties substantially in the form of Exhibit K.
“Hazardous Materials” means all or any of the following: (a) substances that are defined or
listed in, or otherwise classified pursuant to, any applicable Environmental Laws as “hazardous
substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation
intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity or
“EP toxicity”; (b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids
or synthetic gas and drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (c) any
flammable substances or explosives or any radioactive materials; (d) asbestos in any form; and (e)
electrical equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty parts per million.
11
“Indebtedness” means, with respect to a Person, at the time of computation thereof, all of the
following (without duplication): (a) all obligations of such Person in respect of money borrowed
(other than trade debt incurred in the ordinary course of business which is not more than 90 days
past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by
notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced
by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money
indebtedness, conditional sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are issued or assumed as full
or partial payment for property or services rendered; (c) Capitalized Lease Obligations of such
Person; (d) all reimbursement obligations (contingent or otherwise) of such Person in respect of
letters of credit or acceptances (whether or not the same have been presented for payment); (e) all
Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable
Stock issued by such Person or any other Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (g) all obligations of such
Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward
equity commitment, in each case evidenced by a binding agreement (excluding any such obligation to
the extent the obligation can be satisfied by the issuance of Equity Interests (other than
Mandatorily Redeemable Stock)); (h) obligations (which will increase Indebtedness) and assets
(which will decrease Indebtedness) under any Derivatives Contract, other than a Derivatives
Contract with respect to any Indebtedness permitted hereunder, in an amount equal to the
Derivatives Termination Value thereof (net of any cash or Cash Equivalents posted as collateral for
such Derivatives Contracts); (i) all Indebtedness of other Persons which such Person has Guaranteed
or is otherwise recourse to such Person (except for guaranties of customary exceptions for fraud,
misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary
bankruptcy, completion of capital replacements or repairs, and other similar exceptions to
nonrecourse liability until a claim is made with respect thereto, and then shall be included only
to the extent of such claim required to be recorded by such Person for such claim in accordance
with GAAP and approved by such Person’s independent auditors (and with respect to claims with
respect to environmental indemnities, reduced by the amount of such claim covered by an insurance
policy of such Person which is in full force and effect and as to which the insurer has
acknowledged coverage in writing), and, for the avoidance of doubt, excluding any Guaranty of the
payment or performance of a management agreement or franchise agreement relating to a Property);
(j) all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien on property or assets owned
by such Person, even though such Person has not assumed or become liable for the payment of such
Indebtedness or other payment obligation; and (k) such Person’s pro rata share of the Indebtedness
of any Joint Venture Subsidiary of such Person. Indebtedness of any Person shall include
Indebtedness of any partnership or joint venture in which such Person is a general partner or joint
venturer to the extent of such Person’s pro rata share of the ownership of such partnership or
joint venture (except if such Indebtedness, or portion thereof, is recourse to such Person, in
which case the greater of such Person’s pro rata portion of such Indebtedness or the amount of the
recourse portion of the Indebtedness, shall be included as Indebtedness of such Person). All Loans
and Letter of Credit Liabilities shall constitute Indebtedness of the Borrower.
“Intellectual Property” has the meaning given that term in Section 6.1.(s).
12
“Interest Expense” means, for any period, without duplication, total interest expense,
including capitalized interest not funded under a construction loan interest reserve account, for
such period; provided, that Interest Expense with respect to Capital Lease Obligations will only
include interest expense recorded in accordance with GAAP in effect as of the date of this
Agreement.
“Interest Period” means with respect to any LIBOR Loan, each period commencing on the date
such LIBOR Loan is made, or in the case of the Continuation of a LIBOR Loan the last day of the
preceding Interest Period for such Loan, and ending 1, 2, 3, 6 or 12 months (if available from all
Lenders) thereafter, as the Borrower may select in a Notice of Borrowing, Notice of Continuation or
Notice of Conversion, as the case may be, except that each Interest Period that commences on the
last Business Day of a calendar month, or on a day for which there is no corresponding day in the
appropriate subsequent calendar month, shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding the foregoing: (a) if any Interest Period for a
Revolving Loan would otherwise end after the Revolving Termination Date, such Interest Period shall
end on the Revolving Termination Date, and (b) each Interest Period that would otherwise end on a
day which is not a Business Day shall end on the immediately following Business Day (or, if such
immediately following Business Day falls in the next calendar month, on the immediately preceding
Business Day).
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Investment” means, with respect to any Person, any acquisition or investment (whether or not
of a controlling interest) by such Person, by means of any of the following: (a) the purchase or
other acquisition of any Equity Interest in another Person, (b) a loan, advance or extension of
credit to, capital contribution to, Guaranty of Indebtedness of, or purchase or other acquisition
of any Indebtedness of, another Person, including any partnership or joint venture interest in such
other Person, or (c) the purchase or other acquisition (in one transaction or a series of
transactions) of assets of another Person that constitute the business or a division or operating
unit of another Person. Any binding commitment of a Person (the “Subject Person”) to make an
Investment in any other Person, as well as any option of another Person to require an Investment by
the Subject Person, shall constitute an Investment by the Subject Person. Except as expressly
provided otherwise, for purposes of determining compliance with any covenant contained in a Loan
Document, the amount of any Investment shall be the amount actually invested or required to be
invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Investment Subsidiary” means individually, Ashford Investment Management LP and Ashford TRS
Investment Management LP, and collectively both of them.
“Joint Venture Subsidiary” means any corporation, partnership or other entity in respect of
which less than 100% of the percentage Equity Interests therein (other than, in the case of a
corporation, directors’ qualifying shares) are at the time directly or indirectly owned or
controlled by Borrower or one or more Subsidiaries of Borrower, and any Subsidiary or Joint Venture
Subsidiary of a Joint Venture Subsidiary. Notwithstanding the foregoing, an Investment by the
Investment Subsidiaries in publicly traded marketable Equity Interests in a Publicly Traded Company
shall not cause such Publicly Traded Company to be a Joint Venture
13
Subsidiary of Borrower, or any other Subsidiary or Joint Venture Subsidiary of Borrower,
provided that with respect to each such Publicly Traded Company the Investment Subsidiaries’
aggregate direct or indirect ownership interest therein is less than the lesser of (1) five percent
(5%) of the class of stock issued by such Publicly Traded Company, or (2) such threshold as would
otherwise require the Investment Subsidiary or Investment Subsidiaries (as if treated as a single
Person) to report its ownership position therein to the Securities and Exchange Commission pursuant
to applicable federal securities laws.
“KeyBank” means KeyBank National Association, together with its successors and assigns.
“L/C Commitment Amount” equals $10,000,000.
“Lender” means each financial institution from time to time party hereto as a “Lender”,
together with its successors and permitted assigns.
“Lending Office” means, for each Lender and for each Type of Loan, the office of such Lender
specified as such in such Lender’s Administrative Details Form, or such other office of such Lender
of which such Lender may notify the Agent in writing from time to time.
“Letter of Credit” has the meaning given that term in Section 2.3.(a).
“Letter of Credit Documents” means, with respect to any Letter of Credit, collectively, any
application therefor, any certificate or other document presented in connection with a drawing
under such Letter of Credit and any other agreement, instrument or other document governing or
providing for (a) the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such obligations.
“Letter of Credit Liabilities” means, without duplication, at any time and in respect of any
Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit plus (b) the aggregate
unpaid principal amount of all Reimbursement Obligations of the Borrower at such time due and
payable in respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender acting as the Agent) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the related Letter of Credit
under Section 2.3.(i), and the Lender acting as the Agent shall be deemed to hold a Letter of
Credit Liability in an amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders other than the Lender acting as the Agent of their
participation interests under such Section.
“LIBOR” means, for any LIBOR Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01
Page (or any successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such rate is not
available, LIBOR shall be, for any Interest Period, the rate per annum reasonably determined by the
Agent as the rate of interest at which Dollar deposits in the approximate amount of such LIBOR Loan
would be offered by the Agent to major banks in the London interbank Eurodollar
14
market at their request at or about 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period.
“LIBOR Loan” means a Loan bearing interest at a rate based on LIBOR.
“Lien” as applied to the property of any Person means: (a) any security interest, encumbrance,
mortgage, deed to secure debt, deed of trust, assignment of leases and rents, pledge, lien, charge
or lease constituting a Capitalized Lease Obligation, conditional sale or other title retention
agreement, or other security title or encumbrance of any kind in respect of any property of such
Person, or upon the income, rents or profits therefrom; (b) any arrangement, express or implied,
under which any property of such Person is transferred, sequestered or otherwise identified for the
purpose of subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to the payment of the general, unsecured creditors of such Person; (c) the
filing of any financing statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, other than any precautionary filing not otherwise constituting or giving rise to a
Lien, including a financing statement filed (i) in respect of a lease not constituting a
Capitalized Lease Obligation pursuant to Section 9-505 (or a successor provision) of the Uniform
Commercial Code or its equivalent as in effect in an applicable jurisdiction or (ii) in connection
with a sale or other disposition of accounts or other assets not prohibited by this Agreement in a
transaction not otherwise constituting or giving rise to a Lien; and (d) any agreement by such
Person to grant, give or otherwise convey any of the foregoing.
“Loan” means a Revolving Loan.
“Loan Document” means this Agreement, each Note, each Letter of Credit Document, the Guaranty,
each Security Document and each other document or instrument (other than a Derivatives Contract)
now or hereafter executed and delivered by a Loan Party in connection with, pursuant to or relating
to this Agreement.
“Loan Party” means each of the Borrower and each other Person who guarantees all or a portion
of the Obligations and/or who pledges any collateral security to secure all or a portion of the
Obligations. Schedule 1.1.(A) sets forth the Loan Parties in addition to the Borrower as of the
Agreement Date.
“Mandatorily Redeemable Stock” means, with respect to any Person, any Equity Interest in such
Person which by the terms of such Equity Interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening of any event or
otherwise, (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or
other equivalent common Equity Interests at the option of the issuer of such Equity Interest), (b)
is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily Redeemable
Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than an
Equity Interest which is redeemable solely in exchange for common stock or other equivalent common
Equity Interests), in each case on or prior to the Revolving Termination Date.
15
“Material Adverse Effect” means a materially adverse effect on (a) the business, assets,
liabilities, condition (financial or otherwise), results of operations or business prospects of the
Parent and its Subsidiaries and Controlled Joint Venture Subsidiaries taken as a whole, (b) the
ability of the Borrower or any other Loan Party to perform its obligations under any Loan Document
to which it is a party, (c) the validity or enforceability of any of the Loan Documents, (d) the
rights and remedies of the Lenders and the Agent under any of the Loan Documents or (e) the timely
payment of the principal of or interest on the Loans or other amounts payable in connection
therewith or the timely payment of all Reimbursement Obligations.
“Material Contract” means any contract or other arrangement (other than Loan Documents),
whether written or oral, to which the Borrower, any Subsidiary or Joint Venture Subsidiary or any
other Loan Party is a party as to which the breach, nonperformance, cancellation or failure to
renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“Material Indebtedness” has the meaning set forth in Section 10.1(e)(i).
“Material Subsidiary” means, other than any Excluded Subsidiary, (a) any Subsidiary or Joint
Venture Subsidiary to which more than 5.0% of the assets constituting the Adjusted Total Asset
Value is attributable on an individual basis, (b) any Subsidiary or Joint Venture Subsidiary which
is obligated (whether as a principal or a guarantor) with respect to any Recourse Indebtedness
permitted under Section 9.3.(a)(i), and (c) the Investment Subsidiaries.
“Mezzanine Debt Interest” means a promissory note evidencing a mezzanine financing or similar
transaction, secured by a mortgage or a security interest in an Equity Interest and of which the
Borrower or any Subsidiary or Joint Venture Subsidiary is the holder and retains the rights of
collection of all payments thereunder.
“Minority Holder” means any Person (other than the Borrower, any Subsidiary or any Controlled
Joint Venture Subsidiary of the Borrower or any other Affiliate of the Borrower) that is the holder
of an Equity Interest in a Joint Venture Subsidiary of the Borrower.
“MIP Loan” means that certain non-recourse mortgage loan dated December 7, 2006, in the
original principal amount of $212 million, made by Countrywide Commercial Real Estate Finance, Inc.
to certain Subsidiaries of Borrower and currently secured by a Lien against five (5) Properties,
which matures December 11, 2011.
“Moody’s” means Xxxxx’x Investors Service, Inc., and its successors.
“Mortgage” means a mortgage, deed of trust, deed to secure debt or similar security instrument
made by a Person owning an interest in real property granting a Lien on such interest in real
property as security for the payment of Indebtedness of such Person or another Person.
“Mortgage Receivable” means a promissory note secured by a Mortgage of which the Parent or any
Subsidiary or Joint Venture Subsidiary is the holder and retains the rights of collection of all
payments thereunder.
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“Multiemployer Plan” means at any time a multiemployer plan within the meaning of Section
4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during such five year
period.
“Negative Pledge” means, with respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document) which prohibits or purports to prohibit the
creation or assumption of any Lien on such asset as security for Indebtedness of the Person owning
such asset or any other Person; provided, however, that an agreement that conditions a Person’s
ability to encumber its assets upon the maintenance of one or more specified ratios that limit such
Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its
assets, or the encumbrance of specific assets, shall not constitute a Negative Pledge.
“Net Proceeds” means with respect to any Equity Issuance by a Person, the aggregate amount of
all cash and the Fair Market Value of all other property (other than securities of such Person
being converted or exchanged in connection with such Equity Issuance) received by such Person in
respect of such Equity Issuance net of investment banking fees, legal fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses actually incurred by
such Person in connection with such Equity Issuance.
“Non-Defaulting Lender” means, at any time, any Lender that is not a Defaulting Lender at such
time.
“Nonrecourse Indebtedness” means, with respect to a Person, (a) Indebtedness to the extent
recourse for payment (except for liability for customary exceptions for fraud, misapplication of
funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy,
completion of capital replacements or repairs and other similar exceptions to nonrecourse liability
(collectively, “Nonrecourse Exceptions”)) is contractually limited to specific assets of such
Person encumbered by a Lien securing such Indebtedness or (b) if such Person is a Single Asset
Entity, any Indebtedness of such Person. A Guaranty of Nonrecourse Exceptions by a Person shall
not be considered to give rise to Indebtedness of such Person.
“Note” has the meaning given that term in Section 2.10.(a).
“Notice of Borrowing” means a notice in the form of Exhibit B to be delivered to the Agent
pursuant to Section 2.1.(b) evidencing the Borrower’s request for a borrowing of Revolving Loans.
“Notice of Continuation” means a notice in the form of Exhibit C to be delivered to the Agent
pursuant to Section 2.8. evidencing the Borrower’s request for the Continuation of a LIBOR Loan.
“Notice of Conversion” means a notice in the form of Exhibit D to be delivered to the Agent
pursuant to Section 2.9. evidencing the Borrower’s request for the Conversion of a Loan from one
Type to another Type.
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“Obligations” means, individually and collectively: (a) the aggregate principal balance of,
and all accrued and unpaid interest on, all Loans; (b) all Reimbursement Obligations and all other
Letter of Credit Liabilities; and (c) all other indebtedness, liabilities, obligations, covenants
and duties of the Borrower and the other Loan Parties owing to the Agent or any Lender of every
kind, nature and description, under or in respect of this Agreement or any of the other Loan
Documents, including, without limitation, the Fees and indemnification obligations, whether direct
or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.
“OFAC” means U.S. Department of the Treasury’s Office of Foreign Assets Control and any
successor Governmental Authority.
“Off-Balance Sheet Obligations” means liabilities and obligations of the Parent, any
Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in Item
303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act) which the Parent would be
required to disclose in the “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” section of the Parent’s report on Form 10-Q or Form 10-K (or their
equivalents) which the Parent is required to file with the Securities and Exchange Commission (or
any Governmental Authority substituted therefor).
“Other Net Assets” means (a) all assets (other than cash, cash equivalents, marketable
securities, Properties and intangible assets) of the Parent and its Subsidiaries that would be set
forth on a consolidated balance sheet of the Parent and its Subsidiaries prepared in accordance
with GAAP (but excluding any Joint Venture Subsidiary consolidated with such Parent in accordance
with GAAP), minus (b) all liabilities (other than Indebtedness and intangible liabilities) of the
Parent and its Subsidiaries determined on a consolidated basis (but excluding any Joint Venture
Subsidiary consolidated with such Parent in accordance with GAAP).
“Parent” has the meaning set forth in the introductory paragraph hereof and shall include the
Parent’s permitted successors and assigns.
“Participant” has the meaning given that term in Section 12.5.(d).
“PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.
“Permitted Liens” means, as to any Person: (a) Liens securing taxes, assessments and other
charges or levies imposed by any Governmental Authority (excluding any Lien imposed pursuant to any
of the provisions of ERISA or pursuant to any Environmental Laws) or the claims of materialmen,
mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, which are not at the time required to be paid or discharged
under Section 7.6.; (b) Liens consisting of deposits or pledges made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under workers’ compensation,
unemployment insurance or similar Applicable Laws; (c) Liens consisting of encumbrances in the
nature of zoning restrictions, easements, and rights or restrictions of record on the use of real
property, which do not materially detract from the value of such property or materially and
adversely impair the intended use thereof in the business of such Person; (d) the rights of tenants
under leases or subleases not interfering with the ordinary
18
conduct of business of such Person; (e) Liens in favor of the Agent for the benefit of the
Lenders; (f) Liens in existence as of the Agreement Date and set forth in Schedule 6.1(g); and (g)
in the case of any Property owned by the Borrower or any Subsidiary or Joint Venture Subsidiary,
exceptions to coverage under any owner’s title policy of insurance insuring the interest of the
Borrower or such Subsidiary or Joint Venture Subsidiary, as applicable, in such Property.
“Person” means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency or political
subdivision thereof.
“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Internal Revenue Code and either (a) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (b) has at any time within the
preceding five years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a member of the ERISA
Group.
“Pledge Agreement” means the Pledge Agreement to which the Pledgors are parties substantially
in the form of Exhibit E.
“Pledgor” means the Borrower and each of the Persons set forth on Schedule 1.1.(D), together
with any other Person that becomes a “Pledgor” under the Pledge Agreement and, in each case, which
has not been released as a “Pledgor” in accordance with this Agreement.
“Post-Default Rate” means a rate per annum equal to the Base Rate as in effect from time to
time plus the Applicable Margin for Base Rate Loans plus four percent (4.0%).
“Preferred Dividends” means, for any period and without duplication, all Restricted Payments
paid during such period on Preferred Equity Interests issued by the Parent or a Subsidiary.
Preferred Dividends shall not include dividends or distributions (a) paid or payable solely in
Equity Interests (other than Mandatorily Redeemable Stock) payable to holders of such class of
Equity Interests, (b) paid or payable to the Parent or a Subsidiary, or (c) constituting or
resulting in the redemption of Preferred Equity Interests, other than scheduled redemptions not
constituting balloon, bullet or similar redemptions in full. Preferred Dividends shall not include
dividends or distributions paid or payable in respect of (i) Preferred Equity Interests that are
convertible into common Equity Interests in the Parent or the Borrower, (ii) Class B Operating
Partnership units issued by the Borrower in connection with the acquisition of the Marriott Crystal
Gateway in Arlington, Virginia and other operating partnership units issued by the Borrower having
similar terms as such Class B Operating Partnership units or (iii) Preferred Equity Interests in
PIM Highland Holding LLC pursuant to the operating agreement thereof as of the date of this
Agreement.
“Preferred Equity Interests” means, with respect to any Person, Equity Interests in such
Person which are entitled to preference or priority over any other Equity Interest in such Person
in respect of the payment of dividends or distribution of assets upon liquidation or both,
provided, that Preferred Equity Interests shall not include any Equity Interests in a Closely Held
19
Joint Venture Subsidiary which entitle the holder of such Equity Interests to distributions in
certain instances of cash or other property solely in respect of such Equity Interest in such
Closely Held Joint Venture Subsidiary in priority over other Equity Interests in such Closely Held
Joint Venture Subsidiary in accordance with any waterfall provision, priority distribution
provision, sequential distribution provision or other similar provision as set forth in any limited
liability company agreement, operating agreement, partnership agreement or similar agreement of
such Closely Held Joint Venture Subsidiary, but which priority is not effective in all cases for
all distributions (for example, a holder of Equity Interests in a Closely Held Joint Venture
Subsidiary may receive a priority return prior to a split of further distributions among all
holders of Equity Interests in such Closely Held Joint Venture Subsidiary in accordance with their
percentage ownership interests).
“Prime Rate” means the rate of interest per annum announced publicly by the Lender then acting
as the Agent as its prime rate from time to time. The Prime Rate is not necessarily the best or
the lowest rate of interest offered by the Lender acting as the Agent or any other Lender.
“Principal Office” means the address of the Agent specified in Section 12.1., or any
subsequent office which the Agent shall have specified by written notice to the Borrower and
Lenders as the Principal Office referred to herein, to which payments due are to be made and at
which Loans will be disbursed and Letters of Credit requested.
“Property” means any parcel of real property owned or leased (in whole or in part) or operated
by the Parent, any Subsidiary or any Joint Venture Subsidiary of the Parent and which is located in
a state of the United States of America or the District of Columbia.
“
Publicly Traded Company” means any corporation whose common stock is listed for trading and
is traded on the
New York Stock Exchange or another recognized global exchange.
“Recourse Indebtedness” means Total Indebtedness (other than the Loans and Letter of Credit
Liabilities) which does not constitute Nonrecourse Indebtedness. Notwithstanding the foregoing,
Recourse Indebtedness shall not include the MIP Loan and the Wachovia Loan to the extent resulting
from liability under any Nonrecourse Exceptions given with respect to the MIP Loan and the Wachovia
Loan, as applicable.
“Register” has the meaning given that term in Section 12.5.(c).
“Regulatory Change” means, with respect to any Lender, any change effective after the
Agreement Date in Applicable Law (including without limitation, Regulation D of the Board of
Governors of the Federal Reserve System) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) by any Governmental Authority or monetary authority charged
with the interpretation or administration thereof or compliance by any Lender with any request or
directive regarding capital adequacy. The Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection
Act and all requests, rules, publications, orders, guidelines and directives thereunder or issued
in connection therewith and all requests, rules, guidelines or directives
20
promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall be deemed to have been adopted and gone into
effect after the Agreement Date regardless of when adopted, enacted or issued.
“Reimbursement Obligation” means the absolute, unconditional and irrevocable obligation of the
Borrower to reimburse the Agent for any drawing honored by the Agent under a Letter of Credit.
“REIT” means a Person qualifying for treatment as a “real estate investment trust” under the
Internal Revenue Code.
“Requisite Lenders” means, as of any date, (a) Lenders having more than 50.0% of the aggregate
amount of the Revolving Commitments (not held by Defaulting Lenders who are not entitled to vote)
or (b) if the Revolving Commitments have been terminated or reduced to zero, Lenders holding more
than 50.0% of the principal amount of the aggregate outstanding Loans and Letter of Credit
Liabilities (not held by Defaulting Lenders who are not entitled to vote). Revolving Commitments,
Loans and Letter of Credit Liabilities held by Defaulting Lenders shall be disregarded when
determining the Revolving Requisite Lenders.
“Responsible Officer” means with respect to the Parent or any Subsidiary or Joint Venture
Subsidiary, the chief executive officer, the chief operating officer or the chief financial officer
of the Parent or such Subsidiary or Joint Venture Subsidiary.
“Restricted Payment” means: (a) any dividend or other distribution, direct or indirect, on
account of any Equity Interest in the Parent or any Subsidiary or Joint Venture Subsidiary now or
hereafter outstanding, except a dividend payable solely in Equity Interests; (b) any redemption,
conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any Equity Interest in the Parent or any Subsidiary or Joint
Venture Subsidiary now or hereafter outstanding; and (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire any Equity Interests
in the Parent or any Subsidiary or Joint Venture Subsidiary now or hereafter outstanding.
“Revolving Commitment” means, as to each Revolving Lender, such Revolving Lender’s obligation
(a) to make Revolving Loans pursuant to Section 2.1. and (b) to issue (in the case of the
Revolving Lender then acting as Agent) or participate in (in the case of the other Revolving
Lenders) Letters of Credit pursuant to Section 2.3.(a) and 2.3.(i), respectively (but in the case
of the Revolving Lender acting as the Agent excluding the aggregate amount of participations in the
Letters of Credit held by the other Revolving Lenders), in each case, in an amount up to, but not
exceeding, the amount set forth for such Revolving Lender on Schedule I as such Lender’s “Revolving
Commitment” or as set forth in the applicable Assignment and Assumption, as the same may be reduced
from time to time pursuant to Section 2.11., increased pursuant to Section 2.15. or increased or
reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with
Section 12.5.
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“Revolving Commitment Percentage” means, as to each Revolving Lender, the ratio, expressed as
a percentage, of (a) the amount of such Lender’s Revolving Commitment to (b) the aggregate amount
of the Revolving Commitments of all Revolving Lenders; provided, however, that if at the time of
determination the Revolving Commitments have terminated or been reduced to zero, the “Revolving
Commitment Percentage” of each Revolving Lender shall be the Revolving Commitment Percentage of
such Revolving Lender in effect immediately prior to such termination or reduction.
“Revolving Lender” means each Lender that has a Revolving Commitment or is the holder of a
Revolving Loan.
“Revolving Loan” means a loan made by a Lender to the Borrower pursuant to Section 2.1.(a).
“Revolving Termination Date” means September 26, 2014, or such later date to which the
Revolving Termination Date may be extended pursuant to Section 2.12.
“Sanctioned Entity” means (a) an agency of the government of, (b) an organization directly or
indirectly controlled by, or (c) a Person resident in, in each case, a country that is subject to a
sanctions program identified on the list maintained by the OFAC and published from time to time, as
such program may be applicable to such agency, organization or Person.
“Sanctioned Person” means a Person named on the list of Specially Designated Nationals or
Blocked Persons maintained by the OFAC as published from time to time.
“Secured Indebtedness” means Indebtedness of a Person secured in any manner by any Lien.
“Securities Act” means the Securities Act of 1933, as amended from time to time, together with
all rules and regulations issued thereunder.
“Security Agreement” means the Security Agreement to which various Loan Parties are parties
substantially in the form of Exhibit F.
“Security Document” means the Pledge Agreement, the Security Agreement and any other security
agreement, financing statement, or other document, instrument or agreement creating, evidencing or
perfecting the Agent’s Liens in any of the Collateral.
“Single Asset Entity” means a Person (other than an individual) that (a) only owns one or more
Properties or Mezzanine Debt Interests; (b) is engaged only in the business of owning, developing
and/or leasing such Properties or Mezzanine Debt Interests; and (c) receives substantially all of
its gross revenues from such Properties or Mezzanine Debt Interests. In addition, if the assets of
a Person consist solely of (i) Equity Interests in one or more Single Asset Entities and (ii) cash
and other assets of nominal value incidental to such Person’s ownership of the other Single Asset
Entities, such Person shall also be deemed to be a Single Asset Entity for purposes of this
Agreement.
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“Solvent” means, when used with respect to any Person, that (a) the fair value and the fair
salable value of its assets (excluding any Indebtedness due from any Affiliate of such Person that
is not itself Solvent) are each in excess of the fair valuation of its total liabilities (including
all contingent liabilities computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that could reasonably be expected to
become an actual and matured liability); (b) such Person is able to pay its debts or other
obligations in the ordinary course as they mature; and (c) such Person has capital not unreasonably
small to carry on its business and all business in which it proposes to be engaged.
“S&P” means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc.,
and its successors.
“Stated Amount” means the amount available to be drawn by a beneficiary under a Letter of
Credit from time to time, as such amount may be increased or reduced from time to time in
accordance with the terms of such Letter of Credit.
“Subsidiary” means, for any Person, any corporation, partnership or other entity in respect of
which 100% of the percentage equity interests therein (other than, in the case of a corporation,
directors’ qualifying shares) are at the time directly or indirectly owned or controlled by such
Person or one or more other Subsidiaries of such Person. For all purposes, the Borrower shall be
deemed a Subsidiary of Parent.
“Tangible Net Worth” means, as of a given date, (a) the stockholders’ equity of the Parent and
its Subsidiaries and Joint Venture Subsidiaries determined on a consolidated basis in accordance
with GAAP, plus (b) accumulated depreciation and amortization, minus (c) the following (to the
extent reflected in the stockholders’ equity of the Parent and its Subsidiaries and Joint Venture
Subsidiaries): (i) the amount of any write-up in the book value of any assets contained in any
balance sheet resulting from revaluation thereof or any write-up in excess of the cost of such
assets acquired, and (ii) all amounts appearing on the assets side of any such balance sheet for
assets which would be classified as intangible assets under GAAP, all determined on a consolidated
basis. In addition, when determining Tangible Net Worth, non-cash impairment charges relating to
loans, goodwill and other intangibles or long-lived assets reflected in determining stockholders’
equity of the Parent and its Subsidiaries in accordance with Statement of Financial Accounting
Standards number 114, 118, 142 or 144, as applicable, may be excluded in an aggregate amount not to
exceed $150,000,000; provided, however, any such impairment charges attributable to a Mezzanine
Debt Interest associated with an Acquired Mezzanine Debt Entity whose Indebtedness and assets are
excluded from calculations of the ratio contained in Section 9.1.(a) pursuant to the second
sentence of such Section may not be excluded from Tangible Net Worth under this sentence.
“Taxes” has the meaning given that term in Section 3.12.
“Titled Agents” means each of the Arranger, any syndication agent, any documentation agent and
any other Person awarded a similar honorific title in connection with this Agreement, and shall
include their respective successors and permitted assigns.
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“Total Asset Value” means the sum of all of the following (without duplication) of the Parent
and its Subsidiaries on a consolidated basis determined in accordance with GAAP applied on a
consistent basis (but excluding any Joint Venture Subsidiary consolidated with Parent in accordance
with GAAP): (a) cash, cash equivalents and marketable securities, plus (b) the undepreciated GAAP
book value of all Properties, plus (c) Other Net Assets. The Parent’s pro rata share of Total
Asset Value held by its Joint Venture Subsidiaries (excluding assets of the type described in the
immediately preceding clause (a) for any Joint Venture Subsidiary that is not a Controlled Joint
Venture Subsidiary) will be included in Total Asset Value calculations consistent with the above
described treatment for wholly owned assets. In addition, when determining Total Asset Value the
following may be excluded: non-cash impairment charges relating to loans, goodwill and other
intangibles or long-lived assets, in each case, reflected in book value of Properties or Other Net
Assets in accordance with Statement of Financial Accounting Standards number 114, 118, 142 or 144,
as applicable, in an aggregate amount not to exceed $150,000,000; provided, however, any such
impairment charges attributable to a Mezzanine Debt Interest associated with an Acquired Mezzanine
Debt Entity whose Indebtedness and assets are excluded from calculations of the ratio contained in
Section 9.1.(a) pursuant to the second sentence of such Section may not be excluded from Total
Asset Value under this sentence. Capitalized lease assets will be accounted for in accordance with
GAAP in effect as of the date of this Agreement.
“Total Indebtedness” means, the sum of (without duplication) all (a) Indebtedness of the
Parent and its Subsidiaries determined on a consolidated basis (but excluding any Joint Venture
Subsidiary consolidated with Parent in accordance with GAAP), plus (b) the pro rata share of the
Indebtedness of any Joint Venture Subsidiary.
“Total Net Indebtedness” means (a) Total Indebtedness minus (b) all cash and cash equivalents
of the Parent and all Subsidiaries (but specifically excluding any cash posted as collateral or
otherwise for or with respect to any Derivatives Contract) and its pro rata share thereof of Joint
Venture Subsidiaries determined on a consolidated basis (including any cash held by Marriott in its
capacity as a property management company for the benefit Parent and its Subsidiaries and Joint
Venture Subsidiaries).
“Type” with respect to any Revolving Loan refers to whether such Loan is a LIBOR Loan or Base
Rate Loan.
“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under Title IV of ERISA.
“Unpledgeable Subsidiary” means (a) any Subsidiary or Joint Venture Subsidiary (i) holding
title to or beneficially owning assets which are or are intended to become collateral for any
Secured Indebtedness of such Subsidiary or Joint Venture Subsidiary, or being a
24
beneficial owner of a Subsidiary or Joint Venture Subsidiary holding title to or beneficially owning such
assets (but having no material assets other than such beneficial ownership interests) and (ii) the
Equity Interests of which may not be pledged as security to any Person pursuant to restrictions
contained in (x) any document, instrument or agreement evidencing such Secured Indebtedness or (y)
such Subsidiary’s or Joint Venture Subsidiary’s organizational documents included as a condition or
anticipated condition to the extension of such Secured Indebtedness, (b) any Joint Venture
Subsidiary (i) more than 5.0% of the outstanding Equity Interest of which is owned by Minority
Holders and (ii) the Equity Interests of which may not be pledged as security to any Person without
the consent of such Minority Holders, and (c) any Subsidiary of an entity described in clause (a)
or (b) above.
“Unsecured Indebtedness” means with respect to any Person, all Indebtedness of such Person
that does not constitute Secured Indebtedness.
“Wachovia Loan” means, collectively, (i) that certain non-recourse mortgage loan dated April
11, 2007, in the original principal amount of $315 million, made by Wachovia Bank, National
Association to certain Subsidiaries of Borrower and currently secured by a Lien against ten (10)
Properties, (ii) that certain non-recourse senior mezzanine loan dated April 11, 2007, in the
original principal amount of $80,122,000, made by Wachovia Bank, National Association to certain
Subsidiaries of Borrower and currently secured by a Lien against the equity in the mortgage
borrowers, (iii) that certain non-recourse intermediate mezzanine loan dated April 11, 2007, in the
original principal amount of $80 million, made by Wachovia Bank, National Association to certain
Subsidiaries of Borrower and currently secured by a Lien against the equity in the senior mezzanine
borrowers, and (iv) that certain non-recourse junior mezzanine loan dated April 11, 2007, in the
original principal amount of $80 million, made by Wachovia Bank, National Association to certain
Subsidiaries of Borrower and currently secured by a Lien against the equity in the intermediate
mezzanine borrowers, each of which matures May 9, 2012.
“Westin Mezz Portfolio” means the Westin La Paloma hotel located in Tucson, Arizona and the
Westin Hilton Head hotel located in Hilton Head, South Carolina.
Section 1.2. General; References to Times.
Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP as in effect from time to time; provided that, if at any time
any change in GAAP would affect the computation of any financial ratio or requirement set forth in
any Loan Document, and either the Borrower or the Requisite Lenders shall so request, the Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to the approval of
the Requisite Lenders); provided further that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide to the Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP. References in this Agreement to “Sections”, “Articles”, “Exhibits” and “Schedules”
are to sections, articles, exhibits and schedules herein and hereto unless otherwise indicated.
References in this Agreement to any
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document, instrument or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or agreements issued or executed
in replacement thereof, to the extent permitted hereby and (c) shall mean such document, instrument
or agreement, or replacement or predecessor thereto, as amended, supplemented, restated or
otherwise modified as of the date of this Agreement and from time to time thereafter to the extent
not prohibited hereby and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the contrary, a reference
to “Subsidiary”, “Joint Venture Subsidiary” or “Controlled Joint Venture Subsidiary” means a
Subsidiary, Joint Venture Subsidiary or Controlled Joint Venture Subsidiary of the Parent and a
reference to an “Affiliate” means a reference to an Affiliate of the Borrower. Titles and captions
of Articles, Sections, subsections and clauses in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement. Unless otherwise indicated, all
references to time are references to Cleveland, Ohio time.
Section 1.3. Financial Attributes of Non-Wholly Owned Joint Venture Subsidiaries.
Notwithstanding anything contained in this Agreement to the contrary, when determining the
Parent’s compliance with any financial covenant contained in any of the Loan Documents, only the
Parent’s pro rata share of the financial attributes of a Joint Venture Subsidiary shall be
included.
ARTICLE II. Credit Facility
Section 2.1. Revolving Loans.
(a) Generally. Subject to the terms and conditions hereof, during the period from the
Effective Date to but excluding the Revolving Termination Date, each Revolving Lender severally and
not jointly agrees to make Revolving Loans in Dollars to the Borrower in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of such Revolving Lender’s
Revolving Commitment. Subject to the terms and conditions of this Agreement, during the period
from the Effective Date to but excluding the Revolving Termination Date, the Borrower may borrow,
repay and reborrow Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the Agent notice pursuant to
a Notice of Borrowing or telephonic notice of each borrowing of Revolving Loans. Each Notice of
Borrowing shall be delivered to the Agent before 11:00 a.m. (i) in the case of LIBOR Loans, on the
date three Business Days prior to the proposed date of such borrowing and (ii) in the case of Base
Rate Loans, on the date one Business Day prior to the proposed date of such borrowing. Any such
telephonic notice shall include all information to be specified in a written Notice of Borrowing
and shall be promptly confirmed in writing by the Borrower pursuant to a Notice of Borrowing sent
to the Agent by telecopy on the same day of the giving of such telephonic notice. The Agent will
transmit by telecopy the Notice of Borrowing (or the information contained in such Notice of
Borrowing) to each Revolving Lender promptly upon receipt by the Agent. Each Notice of Borrowing
or telephonic notice of each borrowing shall be irrevocable once given and binding on the Borrower.
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(c) Disbursements of Revolving Loan Proceeds. No later than 1:00 p.m. on the date
specified in the Notice of Borrowing, each Revolving Lender will make available for the account of
its applicable Lending Office to the Agent at the Principal Office, in immediately available funds,
the amount of the Revolving Loan to be made by such Revolving Lender. Unless the Agent shall have
been notified by any Revolving Lender prior to the specified date of borrowing that such Revolving
Lender does not intend to make available to the Agent the Revolving Loan to be made by such
Revolving Lender on such date, the Agent may assume that such Revolving Lender will make the amount
of such Revolving Loan available to the Agent on the date of the requested borrowing as set forth
in the Notice of Borrowing and the Agent may (but shall not be obligated to), in reliance upon such
assumption, make available to the Borrower the amount of such Revolving Loan to be provided by such
Revolving Lender. Subject to satisfaction of the applicable conditions set forth in Article V. for
such borrowing, the Agent will make the proceeds of such borrowing available to the Borrower no
later than 2:00 p.m. on the date and at the account specified by the Borrower in such Notice of
Borrowing.
Section 2.2. [Intentionally Omitted.]
Section 2.3. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this Agreement, the
Agent, on behalf of the Revolving Lenders, agrees to issue for the account of the Borrower during
the period from and including the Effective Date to, but excluding, the date 30 days prior to the
Revolving Termination Date one or more letters of credit (each a “Letter of Credit”) up to a
maximum aggregate Stated Amount at any one time outstanding not to exceed the L/C Commitment
Amount. Notwithstanding anything to the contrary contained in this Section 2.3. and without
limiting any available remedies to Borrower contained in this Agreement or available at law or in
equity against a Defaulting Lender, the Agent shall not be obligated to issue, amend, extend, renew
or increase any Letter of Credit at a time when any other Lender is a Defaulting Lender, unless the
Agent is satisfied that the participation therein will otherwise be fully allocated to the
Non-Defaulting Lenders consistent with Section 3.11.(c) and the Defaulting Lender shall have no
participation therein, except to the extent the Agent has entered into arrangements with the
Borrower or such Defaulting Lender which are satisfactory to the Agent in it good faith
determination to eliminate the Agent’s Fronting Exposure with respect to any such Defaulting
Lender, including the delivery of cash collateral.
(b) Terms of Letters of Credit. At the time of issuance, the amount, form, terms and
conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject
to approval by the Agent and the Borrower. Notwithstanding the foregoing, in no event may the
expiration date of any Letter of Credit extend beyond the earlier of (i) the date one year from its
date of issuance or (ii) the Revolving Termination Date; provided, however, a Letter of Credit may
contain a provision providing for the automatic extension of the expiration date in the absence of
a notice of non-renewal from the Agent but in no event shall any such provision permit the
extension of the expiration date of such Letter of Credit beyond the Revolving Termination Date.
(c) Requests for Issuance of Letters of Credit. The Borrower shall give the Agent
written notice (or telephonic notice promptly confirmed in writing) at least 5 Business Days prior
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to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable
detail the proposed terms of such Letter of Credit and the nature of the transactions or
obligations proposed to be supported by such Letter of Credit, and in any event shall set forth
with respect to such Letter of Credit the proposed (i) Stated Amount, (ii) beneficiary, and (iii)
expiration date. The Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Agent. Provided the Borrower has given the
notice prescribed by the first sentence of this subsection and subject to the other terms and
conditions of this Agreement, including the satisfaction of any applicable conditions precedent set
forth in Article V. and delivery to the Agent of all items required to be delivered in connection
with the issuance of such Letter of Credit, the Agent shall issue the requested Letter of Credit on
the requested date of issuance for the benefit of the stipulated beneficiary. The Agent shall not
at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or
cause the Agent or any Lender to exceed any limits imposed by, any Applicable Law. References
herein to “issue” and derivations thereof with respect to Letters of Credit shall also include
extensions or modifications of any outstanding Letters of Credit, unless the context otherwise
requires. Upon the written request of the Borrower, the Agent shall deliver to the Borrower a copy
of each issued Letter of Credit within a reasonable time after the date of issuance thereof. To
the extent any term of a Letter of Credit Document is inconsistent with a term of any Loan
Document, the term of such Loan Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the beneficiary of a
Letter of Credit of any demand for payment under such Letter of Credit, the Agent shall promptly
notify the Borrower of the amount to be paid by the Agent as a result of such demand and the date
on which payment is to be made by the Agent to such beneficiary in respect of such demand;
provided, however, the Agent’s failure to give, or delay in giving, such notice shall not discharge
the Borrower in any respect from the applicable Reimbursement Obligation. The Borrower hereby
unconditionally and irrevocably agrees to pay and reimburse the Agent for the amount of each demand
for payment under such Letter of Credit on or prior to the date on which payment is to be made by
the Agent to the beneficiary thereunder, without presentment, demand, protest or other formalities
of any kind (other than notice as provided in this subsection). Upon receipt by the Agent of any
payment in respect of any Reimbursement Obligation, the Agent shall, in accordance with Sections
3.1. and 3.2., pay to each Revolving Lender that has acquired a participation therein under the
second sentence of Section 2.3.(i) such Revolving Lender’s Revolving Commitment Percentage of such
payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in the
immediately preceding subsection (d), the Borrower shall advise the Agent whether or not the
Borrower intends to borrow hereunder to finance its obligation to reimburse the Agent for the
amount of the related demand for payment and, if it does, the Borrower shall submit a timely
request for such borrowing as provided in the applicable provisions of this Agreement. If the
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the Agent for a demand
for payment under a Letter of Credit by the date of such payment, then (i) if the applicable
conditions contained in Article V. would permit the making of Revolving Loans, the Borrower shall
be deemed to have requested a borrowing of Revolving Loans (which shall be Base Rate Loans) in an
amount equal to the unpaid Reimbursement Obligation and the Agent shall give each Revolving Lender
prompt notice of the amount of the Revolving Loan to be made available to the Agent and (ii) if
such conditions would not permit the making of Revolving
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Loans, the provisions of subsection (j) of this Section shall apply. The limitations of
Section 3.5.(a) shall not apply to any borrowing of Base Rate Loans under this subsection.
(f) Effect of Letters of Credit on Revolving Commitments. Upon the issuance by the
Agent of any Letter of Credit and until such Letter of Credit shall have expired or been
terminated, the Revolving Commitment of each Revolving Lender shall be deemed to be utilized for
all purposes of this Agreement in an amount equal to the product of (i) such Revolving Lender’s
Revolving Commitment Percentage and (ii) the sum of (A) the Stated Amount of such Letter of Credit
plus (B) any related Reimbursement Obligations then outstanding.
(g) Agent’s Duties Regarding Letters of Credit; Unconditional Nature of Reimbursement
Obligations. In examining documents presented in connection with drawings under Letters of
Credit and making payments under Letters of Credit against such documents, the Agent shall only be
required to use the same standard of care as it uses in connection with examining documents
presented in connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Agent
nor any of the Lenders shall be responsible for, and the Borrower’s obligations in respect of the
Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party in connection with
the application for and issuance of or any drawing honored under any Letter of Credit even if it
should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting
to transfer or assign any Letter of Credit, or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii)
failure of the beneficiary of any Letter of Credit to comply fully with conditions required in
order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether or
not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in
the transmission or otherwise of any document required in order to make a drawing under any Letter
of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of the proceeds
of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond
the control of the Agent or the Lenders. None of the above shall affect, impair or prevent the
vesting of any of the Agent’s or any Lender’s rights or powers hereunder. Any action taken or
omitted to be taken by the Agent under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct (as determined by a court of
competent jurisdiction in a final, non-appealable judgment), shall not create against the Agent or
any Lender any liability to the Borrower or any Lender. In this regard, the obligation of the
Borrower to reimburse the Agent for any drawing made under any Letter of Credit, and to repay any
Revolving Loan made pursuant to the second sentence of subsection (e) of this Section, shall be
absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of
this Agreement and any other applicable Letter of Credit Document under all circumstances
whatsoever, including without limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions therein; (B) any
amendment or waiver of or any consent to departure from all or any of the Letter of Credit
Documents; (C) the existence of any claim,
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setoff, defense or other right which the Borrower may have at any time against the Agent, any
Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any
unrelated transaction; (D) any breach of contract or dispute between the Borrower, the Agent, any
Lender or any other Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein or made in connection therewith being untrue or inaccurate in any respect
whatsoever; (F) any non-application or misapplication by the beneficiary of a Letter of Credit of
the proceeds of any drawing under such Letter of Credit; (G) payment by the Agent under any Letter
of Credit against presentation of a draft or certificate which does not strictly comply with the
terms of such Letter of Credit; and (H) any other act, omission to act, delay or circumstance
whatsoever that might, but for the provisions of this Section, constitute a legal or equitable
defense to or discharge of the Borrower’s Reimbursement Obligations. Notwithstanding anything to
the contrary contained in this Section or Section 12.9., but not in limitation of the Borrower’s
unconditional obligation to reimburse the Agent for any drawing made under a Letter of Credit as
provided in this Section and to repay any Revolving Loan made pursuant to the second sentence of
subsection (e) of this Section, the Borrower shall have no obligation to indemnify the Agent or any
Lender in respect of any liability incurred by the Agent or such Lender arising solely out of the
gross negligence or willful misconduct of the Agent or such Lender in respect of a Letter of Credit
as determined by a court of competent jurisdiction in a final, non-appealable judgment. Except as
otherwise provided in this Section, nothing in this Section shall affect any rights the Borrower
may have with respect to the gross negligence or willful misconduct of the Agent or any Lender with
respect to any Letter of Credit.
(h) Amendments, Etc. The issuance by the Agent of any amendment, supplement or other
modification to any Letter of Credit shall be subject to the same conditions applicable under this
Agreement to the issuance of new Letters of Credit (including, without limitation, that the request
therefor be made through the Agent), and no such amendment, supplement or other modification shall
be issued unless either (i) the respective Letter of Credit affected thereby would have complied
with such conditions had it originally been issued hereunder in such amended, supplemented or
modified form or (ii) the Requisite Lenders (or all of the Revolving Lenders if required by Section
12.6.) shall have consented thereto. In connection with any such amendment, supplement or other
modification, the Borrower shall pay the Fees, if any, payable under the last sentence of Section
3.6.(b).
(i) Revolving Lenders’ Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Revolving Lender shall be deemed to have
irrevocably and unconditionally purchased and received from the Agent, without recourse or
warranty, an undivided interest and participation to the extent of such Revolving Lender’s
Revolving Commitment Percentage of the liability of the Agent with respect to such Letter of
Credit, and each Revolving Lender thereby shall absolutely, unconditionally and irrevocably assume,
as primary obligor and not as surety, and shall be unconditionally obligated to the Agent to pay
and discharge when due, such Revolving Lender’s Revolving Commitment Percentage of the Agent’s
liability under such Letter of Credit. In addition, upon the making of each payment by a Revolving
Lender to the Agent in respect of any Letter of Credit pursuant to the immediately following
subsection (j), such Revolving Lender shall, automatically and without any further action on the
part of the Agent or such Revolving Lender, acquire (i) a participation
30
in an amount equal to such payment in the Reimbursement Obligation owing to the Agent by the
Borrower in respect of such Letter of Credit and (ii) a participation in a percentage equal to such
Revolving Lender’s Revolving Commitment Percentage in any interest or other amounts payable by the
Borrower in respect of such Reimbursement Obligation (other than the Fees and other amounts payable
to the Agent pursuant to the third and last sentences of Section 3.6.(b)).
(j) Payment Obligation of Revolving Lenders. Each Revolving Lender severally agrees
to pay to the Agent in immediately available funds in Dollars the amount of such Revolving Lender’s
Revolving Commitment Percentage of each drawing paid by the Agent under each Letter of Credit to
the extent such amount is not reimbursed by the Borrower pursuant to Section 2.3.(d); provided,
however, that in respect of any drawing under any Letter of Credit, the maximum amount that any
Revolving Lender shall be required to fund, whether as a Revolving Loan or as a participation,
shall not exceed such Revolving Lender’s Revolving Commitment Percentage of such drawing. If the
notice referenced in the second sentence of Section 2.3.(e) is received by a Revolving Lender not
later than 11:00 a.m., then such Revolving Lender shall make such payment available to the Agent
not later than 2:00 p.m. on the date of demand therefor; otherwise, such payment shall be made
available to the Agent not later than 1:00 p.m. on the next succeeding Business Day. Each
Revolving Lender’s obligation to make such payments to the Agent under this subsection, and the
Agent’s right to receive the same, shall be absolute, irrevocable and unconditional and shall not
be affected in any way by any circumstance whatsoever, including without limitation, (i) the
failure of any other Revolving Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any Default or Event of
Default, including any Event of Default described in Section 10.1.(f) or 10.1.(g) or (iv) the
termination of the Revolving Commitments. Each such payment to the Agent shall be made without any
offset, abatement, withholding or deduction whatsoever.
(k) Information to Lenders. The Agent shall periodically deliver to the Lenders
information setting forth the Stated Amount of all outstanding Letters of Credit. Other than as
set forth in this Section, the Agent shall have no duty to notify the Lenders regarding the
issuance or other matters regarding Letters of Credit issued hereunder. The failure of the Agent
to perform its requirements under this subsection shall not relieve any Revolving Lender from its
obligations under Section 2.3.(j).
Section 2.4. Rates and Payment of Interest on Loans.
(a) Rates. The Borrower promises to pay to the Agent for the account of each Lender
interest on the unpaid principal amount of each Loan made by such Lender for the period from and
including the date of the making of such Loan (it being understood that a Revolving Loan referred
to in Section 2.1 shall be deemed to have been made when the applicable Lender makes the proceeds
of such Loan available to the Agent (or the Agent makes the proceeds of such Loan available to the
Borrower on behalf of such Lender) whichever occurs first) to but excluding the date such Loan
shall be paid in full, at the following per annum rates:
(i) during such periods as such Loan is a Base Rate Loan, at the Base Rate (as in
effect from time to time) plus the Applicable Margin; and
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(ii) during such periods as such Loan is a LIBOR Loan, at the Adjusted LIBOR for such
Loan for the Interest Period therefor plus the Applicable Margin.
Notwithstanding the foregoing, while an Event of Default exists, the Borrower shall pay to the
Agent for the account of each Lender interest at the Post-Default Rate on the outstanding principal
amount of any Loan made by such Lender, on all Reimbursement Obligations and on any other amount
payable by the Borrower hereunder or under the Notes held by such Lender to or for the account of
such Lender (including without limitation, accrued but unpaid interest to the extent permitted
under Applicable Law).
(b) Payment of Interest. Accrued and unpaid interest on each Loan shall be payable
(i) in the case of a Base Rate Loan, monthly in arrears on the first day of each calendar month,
and (ii) in the case of a LIBOR Loan, in arrears on first day of each calendar month. Interest
payable at the Post-Default Rate shall be payable from time to time on demand. Promptly after the
determination of any interest rate provided for herein or any change therein, the Agent shall give
notice thereof to the Lenders to which such interest is payable and to the Borrower. All
determinations by the Agent of an interest rate hereunder shall be conclusive and binding on the
Lenders and the Borrower for all purposes, absent manifest error.
(c) Inaccurate Financial Statements or Compliance Certificates. If any financial
statement or Compliance Certificate delivered pursuant to Section 8.3. is shown to be inaccurate
(regardless of whether this Agreement or the Revolving Commitments are in effect when such
inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of
a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin
applied for such Applicable Period, and only in such case, then the Borrower shall immediately (i)
deliver to the Agent a corrected Compliance Certificate for such Applicable Period, (ii) determine
the Applicable Margin for such Applicable Period based on the corrected Compliance Certificate, and
(iii) pay to the Agent for the account of the Lenders the accrued additional interest owing as a
result of such increased Applicable Margin for such Applicable Period, which payment shall be paid
to the Lenders by the Agent in accordance with Section 3.1. and 3.2. This subsection shall not in
any way limit the rights of the Agent and Lenders (x) with respect to the last sentence of
subsection (a) of this Section or (y) under Article X.
Section 2.5. Number of Interest Periods.
There may be no more than 6 different Interest Periods for LIBOR Loans that are Revolving
Loans outstanding at the same time, unless the Requisite Lenders otherwise agree.
Section 2.6. Repayment of Loans.
The Borrower shall repay the entire outstanding principal balance of, and all accrued but
unpaid interest on, the Revolving Loans on the Revolving Termination Date.
Section 2.7. Prepayments.
(a) Optional. Subject to Section 4.4., the Borrower may prepay any Loan at any time
without premium or penalty. The Borrower shall give the Agent at least one Business Day’s prior
written notice of the prepayment of any Revolving Loan.
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(b) Mandatory.
(i) Commitment Overadvance. If at any time the aggregate principal amount of
all outstanding Revolving Loans, together with the aggregate amount of all Letter of Credit
Liabilities, exceeds the aggregate amount of the Revolving Commitments in effect at such
time, the Borrower shall immediately pay to the Agent for the account of the Revolving
Lenders the amount of such excess. Payments under this clause shall be applied to repay the
outstanding principal amount of the Revolving Loans and any Reimbursement Obligations pro
rata in accordance with Section 3.2. and if any Letters of Credit are outstanding at such
time the remainder, if any, shall be deposited into the Collateral Account for application
to any Reimbursement Obligations.
(ii) [Intentionally Omitted.]
(iii) [Intentionally Omitted.]
(c) Derivatives Contracts. No repayment or prepayment pursuant to this Section shall
affect any of the Borrower’s obligations under any Derivatives Contract between the Borrower and
any Lender (or any Affiliate of any Lender).
Section 2.8. Continuation.
So long as no Default or Event of Default shall exist, the Borrower may on any Business Day,
with respect to any LIBOR Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR
Loan by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period selected
under this Section shall commence on the last day of the immediately preceding Interest Period.
Each selection of a new Interest Period shall be made by the Borrower giving to the Agent a Notice
of Continuation not later than 11:00 a.m. on the third Business Day prior to the date of any such
Continuation. Such notice by the Borrower of a Continuation shall be by telephone or telecopy,
confirmed immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying (a) the proposed date of such Continuation, (b) the LIBOR Loans and portions thereof
subject to such Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations on Loans
outstanding hereunder. Each Notice of Continuation shall be irrevocable by and binding on the
Borrower once given. Promptly after receipt of a Notice of Continuation, the Agent shall notify
each Lender holding any such Loan being Continued by telecopy, or other similar form of
transmission, of the proposed Continuation. If a Default or Event of Default shall exist, such
Loan will automatically, on the last day of the current Interest Period therefor, Convert into a
Base Rate Loan notwithstanding the first sentence of Section 2.9. or the Borrower’s failure to
comply with any of the terms of such Section. If Borrower shall fail to select in a timely manner
a new Interest Period for any LIBOR Loan in accordance with this Section, and provided no Default
or Event of Default shall exist, the LIBOR Loan shall automatically be renewed and maintained as a
LIBOR Loan with an Interest Period of 1 month.
Section 2.9. Conversion.
The Borrower may on any Business Day, upon the Borrower’s giving of a Notice of Conversion to
the Agent, Convert all or a portion of a Loan of one Type into a Loan of another
33
Type; provided, however, a Base Rate Loan may not be Converted to a LIBOR Loan if a Default or
Event of Default shall exist. Any Conversion of a LIBOR Loan into a Base Rate Loan shall be made
on, and only on, the last day of an Interest Period for such LIBOR Loan. Each such Notice of
Conversion shall be given not later than 11:00 a.m. on the Business Day prior to the date of any
proposed Conversion into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Promptly after receipt of a Notice of Conversion, the Agent
shall notify each Lender holding a Loan being Converted by telecopy, or other similar form of
transmission, of the proposed Conversion. Subject to the restrictions specified above, each Notice
of Conversion shall be by telephone (confirmed immediately in writing) or telecopy in the form of a
Notice of Conversion specifying (a) the requested date of such Conversion, (b) the Type of Loan to
be Converted, (c) the portion of such Type of Loan to be Converted, (d) the Type of Loan such Loan
is to be Converted into and (e) if such Conversion is into a LIBOR Loan, the requested duration of
the Interest Period of such Loan. Each Notice of Conversion shall be irrevocable by and binding on
the Borrower once given.
Section 2.10. Notes.
(a) Note. The Revolving Loans made by each Revolving Lender shall, in addition to
this Agreement, also be evidenced by a promissory note of the Borrower substantially in the form of
Exhibit G (each a “Note”), payable to the order of such Revolving Lender in a principal amount
equal to the amount of its Revolving Commitment as originally in effect and otherwise duly
completed.
(b) [Intentionally Omitted.]
(c) Records. The date, amount, interest rate, Type and duration of Interest Periods
(if applicable) of each Loan made by each Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and such entries shall be
binding on the Borrower, absent manifest error; provided, however, that the failure of a Lender to
make any such record shall not affect the obligations of the Borrower under any of the Loan
Documents.
(d) Lost, Stolen, Destroyed or Mutilated Notes. Upon receipt by the Borrower of (i)
written notice from a Lender that a Note of such Lender has been lost, stolen, destroyed or
mutilated, and (ii) (A) in the case of loss, theft or destruction, an unsecured agreement of
indemnity from such Lender in form reasonably satisfactory to the Borrower, or (B) in the case of
mutilation, upon surrender and cancellation of such Note, the Borrower shall at its own expense
execute and deliver to such Lender a new Note dated the date of such lost, stolen, destroyed or
mutilated Note.
Section 2.11. Voluntary Reductions of the Revolving Commitment.
The Borrower shall have the right to terminate or reduce the aggregate unused amount of the
Revolving Commitments (for which purpose use of the Revolving Commitments shall be deemed to
include the aggregate amount of Letter of Credit Liabilities) at any time and from time to time
without penalty or premium upon not less than 5 Business Days prior written notice to the Agent of
each such termination or reduction, which notice shall specify the effective date
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thereof and the amount of any such reduction and shall be irrevocable once given and effective
only upon receipt by the Agent; provided, however, if the Borrower seeks to reduce the aggregate
amount of the Revolving Commitments below $50,000,000, then the Revolving Commitments shall all
automatically and permanently be reduced to zero. The Agent will promptly transmit such notice to
each Revolving Lender. The Revolving Commitments, once terminated or reduced may not be increased
or reinstated.
Section 2.12. Extension of Revolving Termination Date.
The Borrower shall have the one-time right to extend the Revolving Termination Date by one
year. The Borrower may exercise such right only by executing and delivering to the Agent at least
60 days but not more than 120 days prior to the current Revolving Termination Date, a written
request for such extension. The Agent shall forward to each Lender a copy of such a request
delivered to the Agent promptly upon receipt thereof. Subject to delivery to the Agent of such a
request and satisfaction of the following conditions, the Revolving Termination Date shall be
extended for one year effective on the date which, but for such extension, would have been the
Revolving Termination Date so long as: (i) immediately prior to such extension and immediately
after giving effect thereto, (x) no Default or Event of Default shall exist and (y) the
representations and warranties made or deemed made by the Borrower and each other Loan Party in the
Loan Documents to which any of them is a party, shall be true and correct in all material respects
on and as of the date of such extension with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents and (ii) the Borrower shall have paid the
Fees payable under Section 3.6.(c).
Section 2.13. Expiration or Maturity Date of Letters of Credit Past Revolving Termination Date.
If on the date the Revolving Commitments are terminated or reduced to zero (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise), there are any
Letters of Credit outstanding hereunder, the Borrower shall, on such date, pay to the Agent for
deposit into the Collateral Account an amount of money sufficient to cause the balance of available
funds on deposit in the Collateral Account to equal the Stated Amount of such Letter(s) of Credit.
Section 2.14. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan Document, no Revolving
Lender shall be required to make a Revolving Loan, the Agent shall not be required to issue a
Letter of Credit and no reduction of the Revolving Commitments pursuant to Section 2.11. shall take
effect, if immediately after the making of such Revolving Loan, the issuance of such Letter of
Credit or such reduction in the Revolving Commitments the aggregate principal amount of all
outstanding Revolving Loans, together with the aggregate amount of all Letter of Credit
Liabilities, would exceed the aggregate amount of the Revolving Commitments at such time.
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Section 2.15. Increase of Revolving Commitments.
The Borrower shall have the right at any time and from time to time during the term of this
Agreement to request increases in the aggregate amount of the Revolving Commitments by not more
than $45,000,000 in the aggregate (provided that after giving effect to any increases in the
Revolving Commitments pursuant to this Section, the aggregate amount of the Revolving Commitments
may not exceed $150,000,000) by providing written notice to the Agent, which notice shall be
irrevocable once given. Each such increase in the Revolving Commitments must be in an aggregate
minimum amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof. No Lender
shall be required to increase its Revolving Commitment and any new Lender becoming a party to this
Agreement in connection with any such requested increase must be an Eligible Assignee. If a new
Lender becomes a party to this Agreement, or if any existing Lender agrees to increase its
Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or increases its
Revolving Commitment, in the case of an existing Lender) (and as a condition thereto) purchase from
the other Lenders its Revolving Commitment Percentage (as determined after giving effect to the
increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the
Agent for the account of such other Lenders at the Principal Office, in same day funds, an amount
equal to the sum of (A) the portion of the outstanding principal amount of such Revolving Loans to
be purchased by such Lender plus (B) the aggregate amount of payments previously made by the other
Lenders under Section 2.3.(j) which have not been repaid plus (C) interest accrued and unpaid to
and as of such date on such portion of the outstanding principal amount of such Revolving Loans.
The Borrower shall pay to the Lenders amounts payable, if any, to such Lenders under Section 4.4.
as a result of the prepayment of any such Revolving Loans. No increase of the Revolving
Commitments may be effected under this Section if (x) a Default or Event of Default shall be in
existence on the effective date of such increase or (y) any representation or warranty made or
deemed made by the Borrower or any other Loan Party in any Loan Document to which any such Loan
Party is a party is not (or would not be) true or correct in all material respects on the effective
date of such increase (except for representations or warranties which expressly relate solely to an
earlier date (in which case such representations and warranties shall have been true and correct in
all material respects on and as of such earlier date) and except for changes in factual
circumstances not prohibited under the Loan Documents). In connection with any increase in the
aggregate amount of the Revolving Commitments pursuant to this subsection, (a) any Lender becoming
a party hereto shall execute such documents and agreements as the Agent may reasonably request and
(b) the Borrower shall, if requested by the affected Lender, make appropriate arrangements so that
each new Lender, and any existing Lender increasing its Revolving Commitment, receives a new or
replacement Note, as appropriate, in the amount of such Lender’s Revolving Commitment upon the
effectiveness of the applicable increase in the aggregate amount of Revolving Commitments. Each of
the parties hereto hereby agrees that, upon the effectiveness of any increase of Revolving
Commitments under this Section 2.15., the Agent may (without the consent of any Lender) amend this
Agreement to the extent (but only to the extent) necessary to reflect the increase of Revolving
Commitments.
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ARTICLE III. Payments, Fees and Other General Provisions
Section 3.1. Payments.
Except to the extent otherwise provided herein, all payments of principal, interest and other
amounts to be made by the Borrower under this Agreement or any other Loan Document shall be made in
Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the Agent
at its Principal Office, not later than 2:00 p.m. on the date on which such payment shall become
due (each such payment made after such time on such due date to be deemed to have been made on the
next succeeding Business Day). Subject to Section 10.4., the Borrower may, at the time of making
each payment under this Agreement or any Note, specify to the Agent the amounts payable by the
Borrower hereunder to which such payment is to be applied. Each payment received by the Agent for
the account of a Lender under this Agreement or any Note shall be paid to such Lender at the
applicable Lending Office of such Lender. If the Agent fails to pay such amount to a Lender within
one (1) Business Day of receipt, the Agent shall pay interest on such amount until paid at a rate
per annum equal to the Federal Funds Rate from time to time in effect, provided that, any payment
timely received by the Agent for the account of a Lender under this Agreement shall be deemed to be
payment to such Lender by the Borrower at the time of such receipt by the Agent. If the due date
of any payment under this Agreement or any other Loan Document would otherwise fall on a day which
is not a Business Day such date shall be extended to the next succeeding Business Day and interest
shall be payable for the period of such extension.
Section 3.2. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from the Revolving Lenders
under Section 2.1.(a) and 2.3.(e) shall be made from the Revolving Lenders, each payment of the
Fees under Section 3.6.(a), the first sentence of Section 3.6.(b) and Section 3.6.(c) shall be made
for the account of the Revolving Lenders, and each termination or reduction of the amount of the
Revolving Commitments under Section 2.11. shall be applied to the respective Revolving Commitments
of the Revolving Lenders, pro rata according to the amounts of their respective Revolving
Commitments; (b) each payment or prepayment of principal of Revolving Loans by the Borrower shall
be made for the account of the Revolving Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them, provided that if immediately prior to giving
effect to any such payment in respect of any Revolving Loans the outstanding principal amount of
the Revolving Loans shall not be held by the Revolving Lenders pro rata in accordance with their
respective Revolving Commitments in effect at the time such Revolving Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result, as nearly as is
practicable, in the outstanding principal amount of the Revolving Loans being held by the Revolving
Lenders pro rata in accordance with their respective Revolving Commitments; (c) each payment of
interest on Revolving Loans by the Borrower shall be made for the account of the Revolving Lenders
pro rata in accordance with the amounts of interest on the Revolving Loans then due and payable to
the Revolving Lenders; (d) the Conversion and Continuation of Revolving Loans of a particular Type
(other than Conversions provided for by Section 4.6.) shall be made pro rata among the Lenders
holding such Loans according to the amounts of their respective Revolving Loans, and the then
current Interest Period for each Lender’s portion of each Loan of such Type shall be
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coterminous; and (e) the Revolving Lenders’ participation in, and payment obligations in
respect of, Letters of Credit under Section 2.3., shall be pro rata in accordance with their
respective Revolving Commitments. Notwithstanding anything to the contrary contained in this
Section 3.2., if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no
longer a Defaulting Lender, each payment by the Borrower hereunder shall be applied in accordance
with Section 3.11.(d).
Section 3.3. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on, any Loan made by it to
the Borrower under this Agreement, or shall obtain payment on any other Obligation owing by the
Borrower or any other Loan Party through the exercise of any right of set-off, banker’s lien or
counterclaim or similar right or otherwise or through voluntary prepayments directly to a Lender or
other payments made by the Borrower to a Lender not in accordance with the terms of this Agreement
and such payment should be distributed to the Lenders pro rata in accordance with Section 3.2. or
Section 10.4., as applicable, such Lender shall promptly purchase from the other Lenders
participations in (or, if and to the extent specified by such Lender, direct interests in) the
Loans made by the other Lenders or other Obligations owed to such other Lenders in such amounts,
and make such other adjustments from time to time as shall be equitable, to the end that all the
Lenders shall share the benefit of such payment (net of any reasonable expenses which may be
incurred by such Lender in obtaining or preserving such benefit) pro rata in accordance with
Section 3.2. or Section 10.4., as applicable. To such end, all the Lenders shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans or other Obligations owed to such other Lenders may
exercise all rights of set-off, banker’s lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of the Borrower.
Section 3.4. Several Obligations.
No Lender shall be responsible for the failure of any other Lender to make a Loan or to
perform any other obligation to be made or performed by such other Lender hereunder, and the
failure of any Lender to make a Loan or to perform any other obligation to be made or performed by
it hereunder shall not relieve the obligation of any other Lender to make any Loan or to perform
any other obligation to be made or performed by such other Lender.
Section 3.5. Minimum Amounts.
(a) Borrowings and Conversions. Except as otherwise provided in Section 2.3.(e), each
borrowing of Base Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $100,000 in excess thereof. Each borrowing, Conversion and Continuation of LIBOR
Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $250,000 in
excess of that amount.
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(b) Prepayments. Each voluntary prepayment of Revolving Loans shall be in an
aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess thereof (or, if
less, the aggregate principal amount of Revolving Loans then outstanding).
(c) Reductions of Revolving Commitments. Each reduction of the Revolving Commitments
under Section 2.11. shall be in an aggregate minimum amount of $10,000,000 and integral multiples
of $5,000,000 in excess thereof.
(d) Letters of Credit. The initial Stated Amount of each Letter of Credit shall be at
least $100,000.
Section 3.6. Fees.
(a) Unused Fee. During the period from the Effective Date to but excluding the
Revolving Termination Date, the Borrower agrees to pay to the Agent for the account of the
Non-Defaulting Lenders an unused facility fee with respect to the average daily difference between
the (i) aggregate amount of the Revolving Commitments and (ii) the aggregate principal amount of
all outstanding Revolving Loans plus the aggregate amount of all Letter of Credit Liabilities (the
“Unused Amount”) in each case for the calendar quarter, or portion thereof, prior to the payment
date. Such fee shall be computed by multiplying the Unused Amount with respect to such quarter by
0.35% per annum.
Such fee shall be payable in arrears on the last day of each March, June, September and December of
each calendar year. Any such accrued and unpaid fee shall also be payable on the Revolving
Termination Date or any earlier date of termination of the Revolving Commitments or reduction of
the Revolving Commitments to zero.
(b) Letter of Credit Fees. The Borrower agrees to pay to the Agent for the account of
each Non-Defaulting Lender a letter of credit fee at a rate per annum equal to the Applicable
Margin for Revolving Loans that are LIBOR Loans (or while an Event of Default exists, at a per
annum rate equal to four percent (4.0%) times the daily average Stated Amount of each Letter of
Credit for the period from and including the date of issuance of such Letter of Credit (x) through
and including the date such Letter of Credit expires or is terminated or (y) to but excluding the
date such Letter of Credit is drawn in full and is not subject to reinstatement, as the case may
be. The fees provided for in the immediately preceding sentence shall be nonrefundable and payable
in arrears on (i) the last day of each March, June, September and December in each year, (ii) the
Revolving Termination Date, (iii) the date the Revolving Commitments are terminated or reduced to
zero and (iv) thereafter from time to time on demand of the Agent. In addition, the Borrower shall
pay to the Agent for its own account and not the account of any Lender, an issuance fee in respect
of each Letter of Credit equal to the greater of (i) $1,500 or (ii) one-eighth of one percent
(0.125%) per annum on the initial Stated Amount of such Letter of Credit payable (A) for the period
from and including the date of issuance of such Letter of Credit through and including the
expiration date of such Letter of Credit and (B) if the expiration date of any Letter of Credit is
extended (whether as a result of the operation of an automatic extension clause or otherwise), for
the period from but excluding the previous expiration date to and including the extended expiration
date. The fees provided for in the immediately preceding sentence shall be nonrefundable and
payable upon issuance (or in the case of an extension of the expiration date,
39
on the previous expiration date). The Borrower shall pay directly to the Agent from time to
time on demand all commissions, charges, costs and expenses in the amounts customarily charged by
the Agent from time to time in like circumstances with respect to the issuance of each Letter of
Credit, drawings, amendments and other transactions relating thereto.
(c) Revolving Extension Fee. If the Borrower exercises its right to extend the
Revolving Termination Date in accordance with Section 2.12., the Borrower agrees to pay to the
Agent for the account of each Revolving Lender a fee equal to one-quarter of one percent (0.25%) of
the amount of such Revolving Lender’s Revolving Commitment (whether or not utilized) at the time of
such extension. Such fee shall be due and payable in full on the date which, but for such
extension, would have been the Revolving Termination Date.
(d) [Intentionally Omitted.]
(e) Administrative and Other Fees. The Borrower agrees to pay the administrative and
other fees of the Agent as may be agreed to in writing by the Borrower and the Agent from time to
time.
Section 3.7. Computations.
Unless otherwise expressly set forth herein, any accrued interest on any Loan, any Fees or any
other Obligations due hereunder shall be computed on the basis of a year of 365 or 366 days, as
applicable, and the actual number of days elapsed; provided, however, interest on LIBOR Loans shall
be computed on the basis of a year of 360 days and the actual number of days elapsed.
Section 3.8. Usury.
In no event shall the amount of interest due or payable on the Loans or other Obligations
exceed the maximum rate of interest allowed by Applicable Law and, if any such payment is paid by
the Borrower or any other Loan Party or received by any Lender, then such excess sum shall be
credited as a payment of principal, unless the Borrower shall notify the respective Lender in
writing that the Borrower elects to have such excess sum returned to it forthwith. It is the
express intent of the parties hereto that the Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully
paid by the Borrower under Applicable Law.
Section 3.9. Agreement Regarding Interest and Charges.
The parties hereto hereby agree and stipulate that the only charge imposed upon the Borrower
for the use of money in connection with this Agreement is and shall be the interest specifically
described in Sections 2.4.(a)(i) and (ii). Notwithstanding the foregoing, the parties hereto agree
and stipulate that all agency fees, syndication fees, facility fees, closing fees, letter of credit
fees, underwriting fees, default charges, late charges, funding or “breakage” charges, increased
cost charges, attorneys’ fees and reimbursement for costs and expenses paid by the Agent or any
Lender to third parties or for damages incurred by the Agent or any Lender, in each case in
connection with the transactions contemplated by this Agreement and the other Loan
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Documents, are charges made to compensate the Agent or any such Lender for underwriting or
administrative services and costs or losses performed or incurred, and to be performed or incurred,
by the Agent and the Lenders in connection with this Agreement and shall under no circumstances be
deemed to be charges for the use of money. All charges other than charges for the use of money
shall be fully earned and nonrefundable when due.
Section 3.10. Statements of Account.
The Agent will invoice or xxxx the Borrower monthly with respect to the Loans, Letters of
Credit, accrued interest and Fees, charges and payments made pursuant to this Agreement and the
other Loan Documents, and any such invoice or xxxx rendered by the Agent shall be deemed conclusive
upon Borrower absent manifest error. The failure of the Agent to deliver such an invoice or xxxx
shall not relieve or discharge the Borrower from any of its obligations hereunder.
Section 3.11. Defaulting Lenders.
(a) Generally. If for any reason any Lender shall be a Defaulting Lender, then, in
addition to the rights and remedies that may be available to the Agent or the Borrower under this
Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of
the Loans, this Agreement and the other Loan Documents, including without limitation, any right to
vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken
into account in the calculation of the Requisite Lenders or all of the Lenders, shall be suspended
during the pendency of such failure or refusal except as provided in Section 12.6.(d). If a Lender
is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount
required to be paid to the Agent hereunder (without giving effect to any notice or cure periods),
in addition to other rights and remedies which the Agent or the Borrower may have under the
immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest
from such Defaulting Lender on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to
withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest,
any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan
Document and (iii) to bring an action or suit against such Defaulting Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest. Any amounts
received by the Agent in respect of a Defaulting Lender’s Loans shall be applied as set forth in
Section 3.11(d).
(b) Purchase or Cancellation of Defaulting Lender’s Commitments. Any Non-Defaulting
Lender may, but shall not be obligated, in its sole discretion, to acquire all or a portion of a
Defaulting Lender’s Revolving Commitments. Any Lender desiring to exercise such right shall give
written notice thereof to the Agent and the Borrower no sooner than 2 Business Days and not later
than 5 Business Days after such Defaulting Lender became a Defaulting Lender. If more than one
Lender exercises such right, each such Lender shall have the right to acquire an amount of such
Defaulting Lender’s Revolving Commitments in proportion to the Revolving Commitments of the other
Lenders exercising such right. If after such 5th Business Day, the Lenders have not elected to
purchase all of the Revolving Commitments of such Defaulting Lender, then the Borrower may, by
giving written notice thereof to the Agent, such Defaulting Lender and the other Lenders, either
(i) demand that
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such Defaulting Lender assign its Revolving Commitments to an Eligible Assignee subject to and
in accordance with the provisions of Section 12.5.(b) for the purchase price provided for below or
(ii) terminate the Revolving Commitments of such Defaulting Lender. No party hereto shall have any
obligation whatsoever to initiate any such replacement or to assist in finding an Eligible
Assignee. Upon any such purchase or assignment, and any such demand with respect to which the
conditions specified in Section 12.5(b)(iii) and (iv) have been satisfied, the Defaulting Lender’s
interest in the Loans and its rights hereunder (but not its liability in respect thereof or under
the Loan Documents or this Agreement to the extent the same relate to the period prior to the
effective date of the purchase) shall terminate on the date of purchase, and the Defaulting Lender
shall promptly execute all documents reasonably requested to surrender and transfer such interest
to the purchaser or assignee thereof, including an appropriate Assignment and Assumption. The
purchase price for the Revolving Commitments of a Defaulting Lender shall be equal to the amount of
the principal balance of the Loans outstanding and owed by the Borrower to the Defaulting Lender
plus any accrued but unpaid interest thereon, accrued but unpaid fees and any other amounts due and
payable to such Defaulting Lender. Prior to payment of such purchase price to a Defaulting Lender,
the Agent shall apply against such purchase price any amounts retained by the Agent pursuant to
Section 3.11(d).
(c) Reallocation of Revolving Commitment Percentage to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, all or any part of such Defaulting
Lender’s obligation to acquire, refinance or fund participations in Letters of Credit pursuant to
Section 2.3.(i) shall be reallocated among the Non-Defaulting Lenders in accordance with their
respective Revolving Commitment Percentages (computed without giving effect to the Revolving
Commitment of such Defaulting Lender; provided that (i) each such reallocation shall be given
effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event
of Default exists, (ii) the conditions set forth in Sections 5.1. and 5.2, are satisfied at the
time of such reallocation (and, unless the Borrower shall have notified the Agent at such time, the
Borrower shall be deemed to have represented and warranted that such conditions are satisfied at
the time), (iii) the representations and warranties set forth in Article VI hereof shall be true
and correct in all material respects on and as of the date of such reallocation with the same
effect as though made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such representations and warranties
shall have been true and correct in all material respects on and as of such earlier date), and (iv)
the aggregate obligation of each Non-Defaulting Lender to acquire, refinance or fund participations
in Letters of Credit shall not exceed the positive difference, if any, of (A) the Revolving
Commitment of that Non-Defaulting Lender minus (B) the sum of (1) the aggregate outstanding
principal amount of the Revolving Loans of that Lender plus (2) such Lender’s pro rata portion in
accordance with its Revolving Commitment of outstanding Letter of Credit Liabilities. No
reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including
any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure
following such reallocation.
(d) Reallocation of Payments. Any payment of principal, interest, fees or other
amounts received by the Agent for the account of such Defaulting Lender (whether
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voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to
the Agent for the account of such Defaulting Lender pursuant to Section 12.3.), shall be applied at
such time or times as may be determined by the Agent as follows: first, to the payment of any
amounts owing by such Defaulting Lender to the Agent (other than with respect to Letter of Credit
Liabilities) hereunder; second, to the payment of any amounts owing by such Defaulting Lender to
the Agent (with respect to Letter of Credit Liabilities) hereunder; third, if so determined by the
Agent, to be held as cash collateral for future funding obligations of such Defaulting Lender of
any participation in any Letter of Credit; fourth, as the Borrower may request (so long as no
Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the
Agent; fifth, if so determined by the Agent and the Borrower, to be held in a non-interest bearing
deposit account and released pro rata in order to (x) satisfy obligations of such Defaulting Lender
to fund Loans or participations under this Agreement and (y) be held as cash collateral for future
funding obligations of such Defaulting Lender of any participation in any Letter of Credit; sixth,
to the payment of any amounts owing to the Agent or the Lenders as a result of any judgment of a
court of competent jurisdiction obtained by the Agent or any Lender against such Defaulting Lender
as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so
long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against
such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (i) such payment is a payment of the principal amount of any
Revolving Loans or funded participations in Letters of Credit in respect of which such Defaulting
Lender has not fully funded its appropriate share and (ii) such Revolving Loans or funded
participations in Letters of Credit were made at a time when the conditions set forth in Sections
5.1. and 5.2., as applicable, were satisfied or waived, such payment shall be applied solely to pay
the Revolving Loans of, and funded participations in Letters of Credit owed to, all Non-Defaulting
Lenders on a pro rata basis until such time as all Revolving Loans and funded and unfunded
participations in Letters of Credit are held by the Lenders pro rata in accordance with their
Revolving Commitment Percentages without regard to Section 3.11.(c), prior to being applied to the
payment of any Revolving Loans of, or funded participations in Letters of Credit owed to, such
Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting
Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash
collateral pursuant to this Section 3.11.(d) shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents hereto, and to the extent allocated to the
repayment of principal of the Loan, shall not be considered outstanding principal under this
Agreement.
(e) Cash Collateral for Letters of Credit. Within five (5) Business Days of demand by
the Agent from time to time, the Borrower shall deliver to the Agent for the benefit of the Agent
cash collateral in an amount sufficient to cover all Fronting Exposure with respect to the Agent
(after giving effect to Sections 2.3.(a) and 3.11.(c)) on terms satisfactory to the Agent in its
good faith determination (and such cash collateral shall be in Dollars). Any such cash collateral
shall be deposited in the Collateral Account as collateral (solely for the benefit of the Agent)
for the payment and performance of each Defaulting
43
Lender’s pro rata portion in accordance with their respective Revolving Commitments of
outstanding Letter of Credit Liabilities. Moneys in the Collateral Account deposited pursuant to
this section shall be applied by the Agent to reimburse the Agent immediately for each Defaulting
Lender’s pro rata portion in accordance with their respective Revolving Commitments of any funding
obligation with respect to a Letter of Credit which has not otherwise been reimbursed by the
Borrower or such Defaulting Lender.
(f) Certain Fees.
(i) Each Defaulting Lender shall not be entitled to receive any Unused Fee pursuant to
Section 3.6.(a) for any period during which that Lender is a Defaulting Lender.
(ii) Each Defaulting Lender shall not be entitled to receive Letter of Credit fees
pursuant to Section 3.6.(b) for any period during which that Lender is a Defaulting Lender.
(iii) With respect to any Unused Fee or Letter of Credit fees not required to be paid
to any Defaulting Lender pursuant to clause (i) or (ii) above, the Borrower shall (x) pay to
each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting
Lender with respect to such Defaulting Lender’s participation in Letter of Credit
Liabilities that has been reallocated to such Non-Defaulting Lender pursuant to Section
3.11.(c), (y) pay to the Agent the amount of any such fee otherwise payable to such
Defaulting Lender to the extent allocable to the Agent’s Fronting Exposure to such
Defaulting Lender and (z) not be required to pay any remaining amount of any such fee.
(g) Defaulting Lender Cure. If the Borrower and the Agent agree in writing in their
reasonable determination that a Defaulting Lender should no longer be deemed to be a Defaulting
Lender, the Agent will so notify the parties hereto, whereupon as of the date specified in such
notice and subject to any conditions set forth therein (which may include arrangements with respect
to any cash collateral), that Lender will, to the extent applicable, purchase that portion of
outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be
necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held
on a pro rata basis by the Lenders in accordance with their Revolving Commitments (without giving
effect to Section 3.11.(c)), whereupon such Lender will cease to be a Defaulting Lender; provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or
on behalf of the Borrower while such Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from such Lender’s having been a Defaulting Lender.
Section 3.12. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of, and interest on,
the Loans and all other Obligations shall be made free and clear of and without deduction for any
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present or future excise, stamp or other taxes, fees, duties, levies, imposts, charges,
deductions, withholdings or other charges of any nature whatsoever imposed by any taxing authority,
but excluding (i) franchise taxes, (ii) any taxes imposed on or measured by any Lender’s assets,
net income, receipts or branch profits, (iii) any taxes (other than withholding taxes) with respect
to the Agent or a Lender that would not be imposed but for a connection between the Agent or such
Lender and the jurisdiction imposing such taxes (other than a connection arising solely by virtue
of the activities of the Agent or such Lender pursuant to or in respect of this Agreement or any
other Loan Document), and (iv) any taxes, fees, duties, levies, imposts, charges, deductions,
withholdings or other charges to the extent imposed as a result of the failure of the Agent or a
Lender, as applicable, to provide and keep current (to the extent legally able) any certificates,
documents or other evidence required to qualify for an exemption from, or reduced rate of, any such
taxes fees, duties, levies, imposts, charges, deductions, withholdings or other charges or required
by the immediately following subsection (c) to be furnished by the Agent or such Lender, as
applicable (such non-excluded items being collectively called “Taxes”). If any withholding or
deduction from any payment to be made by the Borrower hereunder is required in respect of any Taxes
pursuant to any Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the full amount required to be
so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other documentation
satisfactory to the Agent evidencing such payment to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the applicable Lender, as the
case may be, such additional amount or amounts as is necessary to ensure that the net amount
actually received by the Agent or such Lender will equal the full amount that the Agent or
such Lender would have received had no such withholding or deduction been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when due to the
appropriate Governmental Authority or fails to remit to the Agent, for its account or the account
of the respective Lender, as the case may be, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and the Lenders for any incremental Taxes,
interest or penalties that may become payable by the Agent or any Lender as a result of any such
failure. For purposes of this Section, a distribution hereunder by the Agent or any Lender to or
for the account of any Lender shall be deemed a payment by the Borrower.
(c) Tax Forms. Prior to the date that any Foreign Lender becomes a party hereto, such
Foreign Lender shall deliver to the Borrower and the Agent such certificates, documents or other
evidence, as required by the Internal Revenue Code or Treasury Regulations issued pursuant thereto
(including Internal Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate
successor forms), properly completed, currently effective and duly executed by such Foreign Lender
establishing that payments to it hereunder and under the Notes are (i) not subject to United States
Federal backup withholding tax and (ii) not subject to United States Federal withholding tax
imposed under the Internal Revenue Code. Each such Foreign Lender shall, to the extent it may
lawfully do so, (x) deliver further copies of such forms or other appropriate certifications on or
before the date that any such forms expire or become obsolete
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and after the occurrence of any event requiring a change in the most recent form delivered to
the Borrower or the Agent and (y) obtain such extensions of the time for filing, and renew such
forms and certifications thereof, as may be reasonably requested by the Borrower or the Agent. The
Borrower shall not be required to pay any amount pursuant to the last sentence of subsection (a)
above to any Foreign Lender or the Agent, if it is organized under the laws of a jurisdiction
outside of the United States of America, if such Foreign Lender or the Agent, as applicable, fails
to comply with the requirements of this subsection. If any such Foreign Lender, to the extent it
may lawfully do so, fails to deliver the above forms or other documentation, then the Borrower or
the Agent may withhold from any payments to be made to such Foreign Lender under any of the Loan
Documents such amounts as are required by the Internal Revenue Code. If any Governmental Authority
asserts that the Borrower or the Agent did not properly withhold or backup withhold, as the case
may be, any tax or other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Borrower or the Agent, as the case may be, therefor, including all penalties
and interest, any taxes imposed by any jurisdiction on the amounts payable to the Borrower or the
Agent under this Section, and costs and expenses (including all reasonable fees and disbursements
of any law firm or other external counsel and the reasonable allocated cost of internal legal
services and all disbursements of internal counsel) of the Borrower or the Agent. The obligation
of the Lenders under this Section shall survive the termination of the Revolving Commitments,
repayment of all Obligations and the resignation or replacement of the Agent.
ARTICLE IV. Yield Protection, etc.
Section 4.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly, and in any event within 3 Business
Days of demand by the Agent, pay to the Agent for the account of each affected Lender from time to
time such amounts as such Lender may determine to be necessary to compensate such Lender for any
costs incurred by such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any reduction in any amount
receivable by such Lender under this Agreement or any of the other Loan Documents in respect of any
of such Loans or such obligation or the maintenance by such Lender of capital in respect of its
Loans or its Revolving Commitments (such increases in costs and reductions in amounts receivable
being herein called “Additional Costs”), to the extent resulting from any Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such Lender under this Agreement or any
of the other Loan Documents in respect of any of such Loans or its Revolving Commitments (other
than taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other charges which
are excluded from the definition of Taxes pursuant to the first sentence of Section 3.12.(a)); or
(ii) imposes or modifies any reserve, special deposit or similar requirements (other than
Regulation D of the Board of Governors of the Federal Reserve System or other reserve requirement
to the extent utilized in the determination of Adjusted LIBOR for such Loan) relating to any
extensions of credit or other assets of, or any deposits with or other liabilities of, such Lender,
or any commitment of such Lender (including, without limitation, the Revolving Commitments of such
Lender hereunder); or (iii) has or would have the effect of reducing the rate of return on capital
of such Lender to a level below that which such Lender could have
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achieved but for such
Regulatory Change (taking into consideration such Lender’s policies with respect to capital
adequacy).
(b) Lender’s Suspension of LIBOR Loans. Without limiting the effect of the provisions
of the immediately preceding subsection (a), if, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such Lender that includes deposits by
reference to which the interest rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender that includes LIBOR Loans or (ii)
becomes subject to restrictions on the amount of such a category of liabilities or assets that it
may hold, then, if such Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert any other Type of Loans into, LIBOR
Loans hereunder shall be suspended until such Regulatory Change ceases to be in effect (in which
case the provisions of Section 4.6. shall apply).
(c) Additional Costs in Respect of Letters of Credit. Without limiting the
obligations of the Borrower under the preceding subsections of this Section (but without
duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed,
modified or deemed applicable any tax, reserve, special deposit, capital adequacy or similar
requirement against or with respect to or measured by reference to Letters of Credit and the result
shall be to increase the cost to the Agent of issuing (or any Lender of purchasing participations
in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of
Credit or reduce any amount receivable by the Agent or any Lender hereunder in respect of any
Letter of Credit, then, upon demand by the Agent or such Lender, the Borrower shall pay promptly,
and in any event within 3 Business Days of demand, to the Agent for its account or the account of
such Lender, as applicable, from time to time as specified by the Agent or a Lender, such
additional amounts as shall be sufficient to compensate the Agent or such Lender for such increased
costs or reductions in amount.
(d) Notification and Determination of Additional Costs. Each of the Agent and each
Lender agrees to notify the Borrower of any event occurring after the Agreement Date entitling the
Agent or such Lender to compensation under any of the preceding subsections of this Section as
promptly as practicable; provided, however, the failure of the Agent or any Lender to give such
notice shall not release the Borrower from any of its obligations hereunder (and in the case of a
Lender, to the Agent). The Agent or such Lender agrees to furnish to the Borrower (and in the case
of a Lender, to the Agent) a certificate setting forth in reasonable detail the basis and amount of
each request by the Agent or such Lender for compensation under this Section. Absent manifest
error, determinations by the Agent or any Lender of the effect of any Regulatory Change shall be
conclusive, provided that such determinations are made on a reasonable basis and in good faith.
Section 4.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the determination of
Adjusted LIBOR for any Interest Period:
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(a) the Agent reasonably determines (which determination shall be conclusive) that by reason
of circumstances affecting the relevant market, adequate and reasonable means do not exist for
ascertaining Adjusted LIBOR for such Interest Period, or
(b) the Agent reasonably determines (which determination shall be conclusive) that Adjusted
LIBOR will not adequately and fairly reflect the cost to the Lenders of making or maintaining LIBOR
Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof and, so long as such
condition remains in effect, the Lenders shall be under no obligation to, and shall not, make
additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into LIBOR Loans and the Borrower
shall, on the last day of each current Interest Period for each outstanding LIBOR Loan, either
repay such Loan or Convert such Loan into a Base Rate Loan.
Section 4.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender shall reasonably
determine (which determination shall be conclusive and binding) that it has become unlawful for
such Lender to honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender
shall promptly notify the Borrower thereof (with a copy to the Agent) and such Lender’s obligation
to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans shall be suspended
until such time as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 4.6. shall be applicable).
Section 4.4. Compensation.
The Borrower shall pay to the Agent for the account of each Lender, upon the request of such
Lender through the Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense that such Lender reasonably
determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a LIBOR Loan, or Conversion
of a LIBOR Loan, made by such Lender for any reason (including, without limitation, acceleration)
on a date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without limitation, the failure of
any of the applicable conditions precedent specified in Article V. to be satisfied) to borrow a
LIBOR Loan from such Lender on the requested date for such borrowing, or to Convert a Base Rate
Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested date of such Conversion or
Continuation.
Upon the Borrower’s request, any Lender requesting compensation under this Section shall provide
the Borrower with a statement setting forth in reasonable detail the basis for requesting such
compensation and the method for determining the amount thereof. Absent manifest error,
determinations by any Lender in any such statement shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
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Section 4.5. Affected Lenders.
If (a) a Lender requests compensation pursuant to Section 3.12. or 4.1., and the Requisite
Lenders are not also doing the same, or (b) the obligation of any Lender to make LIBOR Loans or to
Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
4.1.(b) or 4.3. but the obligation of the Requisite Lenders shall not have been suspended under
such Sections, then, so long as there does not then exist any Default or Event of Default, the
Borrower may demand that such Lender (the “Affected Lender”), and upon such demand the Affected
Lender shall promptly, assign its Revolving Commitments to an Eligible Assignee subject to and in
accordance with the provisions of Section 12.5.(b) pursuant to an Assignment and Assumption for a
purchase price equal to the aggregate principal balance of all Loans then owing to the Affected
Lender plus any accrued but unpaid interest thereon, accrued but unpaid fees owing to the Affected
Lender and any other amounts due and payable to such Affected Lender, or any other amount as may be
mutually agreed upon by such Affected Lender and Eligible Assignee. Each of the Agent and the
Affected Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender
under this Section, but at no time shall the Agent, such Affected Lender or any other Lender be
obligated in any way whatsoever to initiate any such replacement or to assist in finding an
Eligible Assignee. The exercise by the Borrower of its rights under this Section shall be at the
Borrower’s sole cost and expense and at no cost or expense to the Agent, the Affected Lender or any
of the other Lenders. The terms of this Section shall not in any way limit the Borrower’s
obligation to pay to any Affected Lender compensation owing to such Affected Lender pursuant to
Section 3.12., 4.1. or 4.4. or any other applicable provision hereto with respect to periods up to
the date of replacement.
Section 4.6. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or to Convert Base Rate
Loans into, LIBOR Loans shall be suspended pursuant to Section 4.1.(b) or 4.3., then such Lender’s
LIBOR Loans shall be automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion required by Section
4.1.(b) or 4.3., on such earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender gives notice as provided below that the circumstances
specified in Section 4.1. or 4.3. that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender’s LIBOR Loans have been so Converted, all payments and
prepayments of principal that would otherwise be applied to such Lender’s LIBOR Loans shall be
applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as LIBOR Loans shall be
made or Continued instead as Base Rate Loans, and all Base Rate Loans of such Lender that would
otherwise be Converted into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the circumstances
specified in Section 4.1. or 4.3. that gave rise to the Conversion of such Lender’s LIBOR Loans
pursuant to this Section no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR Loans made by other Lenders are outstanding,
then such Lender’s Base Rate Loans shall be automatically Converted, on the first
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day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the extent
necessary so that, after giving effect thereto, all Loans held by the Lenders holding LIBOR Loans
and by such Lender are held pro rata (as to principal amounts, Types and Interest Periods) in
accordance with their respective Revolving Commitments.
Section 4.7. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an alternate Lending
Office with respect to any of its Loans affected by the matters or circumstances described in
Section 3.12., 4.1. or 4.3. to reduce the liability of the Borrower or avoid the results provided
thereunder, so long as such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion.
Section 4.8. Assumptions Concerning Funding of LIBOR Loans.
Calculation of all amounts payable to a Lender under this Article IV. shall be made as though
such Lender had actually funded LIBOR Loans through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such LIBOR Loans in an amount equal to the amount of the
LIBOR Loans and having a maturity comparable to the relevant Interest Period; provided, however,
that each Lender may fund each of its LIBOR Loans in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this Article IV.
ARTICLE V. Conditions Precedent
Section 5.1. Initial Conditions Precedent.
The obligation of the Lenders to effect or permit the occurrence of the first Credit Event
hereunder, is subject to the following conditions precedent:
(a) The Agent shall have received each of the following, in form and substance satisfactory to
the Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Notes executed by the Borrower, payable to each Lender and complying with the
applicable provisions of Section 2.10.;
(iii) the Guaranty executed by each Guarantor existing as of the Effective Date;
(iv) the Pledge Agreement executed by each Pledgor existing as of the Effective Date;
(v) all existing certificates representing any shares of Equity Interests pledged
pursuant to the Pledge Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the Pledgor thereof, together
with an Acknowledgment and Consent, substantially in the form of Schedule 2 to the
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Pledge Agreement, duly executed by any issuer of any Equity Interest pledged pursuant
to the Pledge Agreement that is not itself a party to the Pledge Agreement;
(vi) the Security Agreement executed by the Parent, the Borrower and/or any Domestic
Subsidiary (other than an Excluded Subsidiary) having rights in any Mortgage Receivable, any
other Investment (other than an Equity Interest subject to the Pledge Agreement) and any
deposit account or securities account in which reserves for furniture, fixtures and
equipment are deposited, subjecting all such property to the Lien of the Security Agreement,
except to the extent prohibited pursuant to the terms of any existing document, instrument
or agreement to which the Borrower or any such Domestic Subsidiary a party;
(vii) except as otherwise provided in Section 5.3. each document (including, without
limitation, any UCC financing statement and any control agreement) required by the Pledge
Agreement, Security Agreement or under Applicable Law or reasonably deemed necessary or
appropriate by the Agent to be entered into, filed, registered or recorded in order to
create in favor of the Agent, for the benefit of the Lenders, a perfected first-priority
Lien in the Collateral granted under the Pledge Agreement and the Security Agreement, shall
have been entered into, filed, registered or recorded or shall have been delivered to the
Agent and be in proper form for filing, registration or recordation, as appropriate;
(viii) results of a recent lien search in each of the jurisdictions in which UCC
financing statements or other filings or recordations should be made to evidence or perfect
security interests in Collateral, and such search shall reveal no Liens of record with
respect to any of the Collateral other than Permitted Liens of the type described in clause
(a) of the definition of Permitted Liens or Liens to be terminated prior to the Effective
Date;
(ix) an opinion of counsel to the Loan Parties, addressed to the Agent and the Lenders,
in such form as the Agent may reasonably request;
(x) the articles of incorporation, articles of organization, certificate of limited
partnership or other comparable organizational instrument (if any) of the Borrower and each
other Loan Party certified as of a recent date by the Secretary of State of the state of
formation of such Loan Party;
(xi) a certificate of good standing or certificate of similar meaning with respect to
each Loan Party issued as of a recent date by the Secretary of State of the state of
formation of each such Loan Party and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and any state department of
taxation, as applicable) of each state in which such Loan Party is required to be so
qualified and where the failure to be so qualified could reasonably be expected to have a
Material Adverse Effect;
(xii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or
other individual performing similar functions) of each Loan Party with respect to each
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of the officers of such Loan Party authorized to execute and deliver the Loan Documents
to which such Loan Party is a party, and in the case of the Borrower, and the officers of
the Borrower then authorized to deliver Notices of Borrowing, Notices of Continuation and
Notices of Conversion and to request the issuance of Letters of Credit;
(xiii) copies certified by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a
corporation, the operating agreement of such Loan Party, if a limited liability company, the
partnership agreement of such Loan Party, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and (B) all corporate,
partnership, member or other necessary action taken by such Loan Party to authorize the
execution, delivery and performance of the Loan Documents to which it is a party;
(xiv) [Intentionally Omitted];
(xv) [Intentionally Omitted];
(xvi) a certificate of the chief executive officer, chief financial officer or other
senior officer of the Borrower certifying that all representations and warranties of the
Loan Parties contained in the Loan Documents are true, correct and complete in all material
respects (excluding any representation or warranty regarding the nonexistence of any Default
or Event of Default);
(xvii) the Fees then due and payable under Section 3.6., and any other Fees payable to
the Agent, the Titled Agents and the Lenders on or prior to the Effective Date;
(xviii) a Compliance Certificate calculated as of June 30, 2011 (giving pro forma
effect to the use of the proceeds of the Loans to be funded on the Effective Date);
(xix) a letter from the Administrative Agent under the Existing
Credit Agreement
providing information regarding the payment in full of amounts outstanding under the
Existing
Credit Agreement and providing for the termination thereof and the release of all
Liens securing any obligations owing thereunder and the delivery to the Agent of any
collateral held pursuant thereto;
(xx) the Notice of Borrowing for the Revolving Loans to be made available to the
Borrower as contemplated by Section 2.1.(c);
(xxi) [Intentionally Omitted]; and
(xxii) such other documents, agreements and instruments as the Agent on behalf of the
Lenders may reasonably request; and
(b) In the good faith judgment of the Agent and the Lenders:
(i) No litigation, action, suit, investigation or other arbitral, administrative or
judicial proceeding shall be pending or threatened which could reasonably be expected to
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materially and adversely affect the credit facilities being provided pursuant to the
Loan Documents; and
(ii) The Borrower and its Subsidiaries and Joint Venture Subsidiaries shall have
received all approvals, consents and waivers, and shall have made or given all necessary
filings and notices, as shall be required to consummate the transactions contemplated by the
Loan Documents without the occurrence of any default under, conflict with or violation of
(1) any Applicable Law or (2) any agreement, document or instrument to which the Borrower or
any other Loan Party is a party or by which any of them or their respective properties is
bound, except for such approvals, consents, waivers, filings and notices the receipt, making
or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or
(B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially
and adversely affect the ability of the Borrower or any other Loan Party to fulfill its
obligations under the Loan Documents to which it is a party.
Section 5.2. Conditions Precedent to All Loans and Letters of Credit.
The obligations of the Lenders to make the proceeds of any Loans available to the Borrower or
its order and of the Agent to issue Letters of Credit are subject to the further condition
precedent that: (a) no Default or Event of Default shall exist as of the date of the making of such
Loan or date of issuance of such Letter of Credit or would exist immediately after giving effect
thereto; and (b) the representations and warranties made or deemed made by the Borrower and each
other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct
in all material respects on and as of the date of the making of such Loan or date of issuance of
such Letter of Credit with the same force and effect as if made on and as of such date except to
the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents. Each Credit Event shall constitute a certification by the
Borrower to the effect set forth in the preceding sentence (both as of the date of the giving of
notice relating to such Credit Event and, unless the Borrower otherwise notifies the Agent prior to
the date of such Credit Event, as of the date of the occurrence of such Credit Event). In
addition, if such Credit Event is the making of a Loan or the issuance of a Letter of Credit, the
Borrower shall be deemed to have represented to the Agent and the Lenders at the time such Loan is
made or Letter of Credit issued that all conditions to the occurrence of such Credit Event
contained in this Article V. have been satisfied.
Section 5.3. Post-Closing Deliveries.
With respect to any Mortgage Receivable or other Investment evidencing Indebtedness secured
directly or indirectly by an interest in real property, notwithstanding Section 5.1.(a)(vii), the
Borrower shall (a) only be required to deliver to the Agent on or before the Effective Date the
original certificates and Instruments representing or evidencing any such Investments, in suitable
form for transfer by delivery or, as applicable, accompanied by the applicable Loan Party’s
endorsement, where necessary, or duly executed instruments of transfer or assignment in blank, all
in form and substance reasonably satisfactory to the Agent and (b) deliver, or cause to be
53
delivered, to the Agent not later than five (5) Business Days after the date of this
Agreement, all other items required by Section 5.1.(a)(vii) with respect to all such Investments,
including without limitation, such agreements as the Agent may reasonably request to establish
control over any such Investments.
ARTICLE VI. Representations and Warranties
Section 6.1. Representations and Warranties.
In order to induce the Agent and each Lender to enter into this Agreement and to make Loans
and issue Letters of Credit, the Parent and the Borrower represent and warrant to the Agent and
each Lender as follows:
(a) Organization; Power; Qualification. Each of the Parent, its Subsidiaries, Joint
Venture Subsidiaries and the other Loan Parties is a corporation, partnership or other legal
entity, duly organized or formed, validly existing and in good standing under the jurisdiction of
its incorporation or formation, has the power and authority to own or lease its respective
properties and to carry on its respective business as now being and hereafter proposed to be
conducted and is duly qualified and is in good standing as a foreign corporation, partnership or
other legal entity, and authorized to do business, in each jurisdiction in which the character of
its properties or the nature of its business requires such qualification or authorization and where
the failure to be so qualified or authorized could reasonably be expected to have, in each
instance, a Material Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, Schedule 6.1.(b) is a complete and
correct list of all Subsidiaries and Joint Venture Subsidiaries of the Parent setting forth for
each such Subsidiary and Joint Venture Subsidiary, (i) the jurisdiction of organization of such
Subsidiary and Joint Venture Subsidiary, (ii) each Person holding any Equity Interests in such
Subsidiary and Joint Venture Subsidiary, (iii) the nature of the Equity Interests held by each such
Person, (iv) the percentage of ownership of such Subsidiary and Joint Venture Subsidiary
represented by such Equity Interests and (v) whether such Subsidiary or Joint Venture Subsidiary is
a Controlled Joint Venture Subsidiary, a Material Subsidiary, an Excluded Subsidiary and/or a
Foreign Subsidiary. Except as disclosed in such Schedule, as of the Agreement Date (i) each of the
Parent and its Subsidiaries and Joint Venture Subsidiaries owns, free and clear of all Liens (other
than Permitted Liens), and has the unencumbered right to vote, all outstanding Equity Interests in
each Person shown to be held by it on such Schedule, (ii) all of the issued and outstanding capital
stock of each such Person organized as a corporation is validly issued, fully paid and
nonassessable and (iii) there are no outstanding subscriptions, options, warrants, commitments,
preemptive rights or agreements of any kind (including, without limitation, any stockholders’ or
voting trust agreements) for the issuance, sale, registration or voting of, or outstanding
securities convertible into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, any such Person.
(c) Authorization of Agreement, Etc. The Borrower has the right and power, and has
taken all necessary action to authorize it, to borrow and obtain other extensions of credit
hereunder. The Parent and each other Loan Party has the right and power, and has taken all
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necessary action to authorize it, to execute, deliver and perform each of the Loan Documents
to which it is a party in accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. Each of the Loan Documents to which the Borrower or any other
Loan Party is a party have been duly executed and delivered by the duly authorized officers of such
Person and each is a legal, valid and binding obligation of such Person enforceable against such
Person in accordance with its respective terms except as the same may be limited by bankruptcy,
insolvency, and other similar laws affecting the rights of creditors generally and the availability
of equitable remedies for the enforcement of certain obligations (other than the payment of
principal) contained herein or therein and as may be limited by equitable principles generally.
(d) Compliance of Loan Documents with Laws, Etc. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the Borrower or any other Loan
Party is a party in accordance with their respective terms and the borrowings and other extensions
of credit hereunder do not and will not, by the passage of time, the giving of notice, or both: (i)
require any Governmental Approval or violate any Applicable Law (including all Environmental Laws)
relating to the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or
constitute a default under the organizational documents of the Borrower or any other Loan Party, or
any indenture, agreement or other instrument to which the Borrower or any other Loan Party is a
party or by which it or any of its respective properties may be bound, except to the extent the
exercise of remedies with respect to Equity Interests subject to the Lien of the Pledge Agreement
may require compliance with a “change of control” provision or other similar change in ownership
provision contained in an indenture, agreement or other instrument to which the issuer of such
Equity Interest is a party; or (iii) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by the Borrower or any other
Loan Party.
(e) Compliance with Law; Governmental Approvals. Each of the Parent, the Borrower,
each Subsidiary, each Joint Venture Subsidiary and each other Loan Party is in compliance with each
Governmental Approval applicable to it and in compliance with all other Applicable Laws (including
without limitation, Environmental Laws) relating to the Parent, the Borrower, a Subsidiary, a Joint
Venture Subsidiary or such other Loan Party except for noncompliances which, and Governmental
Approvals the failure to possess which, could not, individually or in the aggregate, reasonably be
expected to cause a Default or Event of Default or have a Material Adverse Effect.
(f) Title to Properties; Liens. As of the Agreement Date, Schedule 6.1.(f) is a
complete and correct listing of all of the real property owned or leased by the Borrower, each
other Loan Party and each other Subsidiary and Joint Venture Subsidiary. Each such Person has
good, marketable and legal title to, or a valid leasehold interest in, its respective assets. As
of the Agreement Date, there are no Liens against any assets of the Borrower, any Subsidiary, any
Joint Venture Subsidiary or any other Loan Party except for Permitted Liens.
(g) Existing Indebtedness. Schedule 6.1.(g) is, as of the Agreement Date, a complete
and correct listing of all Indebtedness of the Parent and its Subsidiaries and Joint Venture
Subsidiaries having an outstanding principal balance of $1,000,000 or more, including without
limitation, Guarantees of the Parent and its Subsidiaries and Joint Venture Subsidiaries.
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(h) Litigation. There are no actions, suits or proceedings pending (nor, to the
knowledge of the Parent, are there any actions, suits or proceedings threatened or investigations
pending) against or in any other way relating adversely to or affecting the Parent, any Subsidiary,
any Joint Venture Subsidiary or any other Loan Party or any of its respective property in any court
or before any arbitrator of any kind or before or by any other Governmental Authority which could
reasonably be expected to have a Material Adverse Effect. There are no strikes, slow downs, work
stoppages or walkouts or other labor disputes in progress or threatened relating to the Parent, any
Subsidiary, any Joint Venture Subsidiary or any other Loan Party which could reasonably be expected
to have a Material Adverse Effect.
(i) Taxes. All federal, state and other tax returns of the Parent, any Subsidiary,
any Joint Venture Subsidiary or any other Loan Party required by Applicable Law to be filed have
been duly filed, and all federal, state and other taxes, assessments and other governmental charges
or levies upon the Parent, any Subsidiary, any Joint Venture Subsidiary and each other Loan Party
and its respective properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 7.6. Except as listed on
Schedule 6.1(i), as of the Agreement Date, none of the United States income tax returns of the
Parent, its Subsidiaries, its Joint Venture Subsidiaries or any other Loan Party is under audit.
All charges, accruals and reserves on the books of the Borrower and each of its Subsidiaries, its
Joint Venture Subsidiaries and each other Loan Party in respect of any taxes or other governmental
charges are in accordance with GAAP.
(j) Financial Statements. The Borrower has furnished to each Lender copies of the
audited consolidated balance sheets of the Parent and its Controlled Joint Venture Subsidiaries for
the fiscal years ending December 31, 2009 and December 31, 2010, and the related audited
consolidated statements of operations, cash flows and shareholders’ equity for the fiscal years
ending on such dates, with the opinions thereon of Ernst & Young LLP, and the consolidated balance
sheet of the Parent and its Controlled Joint Venture Subsidiaries for the six-month period ended
June 30, 2011 and the related consolidated statements of operations, cash flows and shareholders’
equity for such period, subject only to normal year-end audit adjustments and the absence of
footnotes. Such financial statements (including in each case related schedules and notes) present
fairly, in all material respects and in accordance with GAAP consistently applied throughout the
periods involved, the consolidated financial position of the Parent and its Subsidiaries and
Controlled Joint Venture Subsidiaries as at their respective dates and the results of operations
and the cash flow for such periods. Neither the Parent nor any of its Subsidiaries and Joint
Venture Subsidiaries has on the Agreement Date any material contingent liabilities, liabilities,
liabilities for taxes, unusual or long-term commitments or unrealized or forward anticipated losses
from any unfavorable commitments that would be required to be set forth in its financial statements
or in the notes thereto, except as referred to or reflected or provided for in said financial
statements.
(k) No Material Adverse Change. Since June 30, 2011, there has been no material
adverse change in the business, assets, liabilities, financial condition, results of operations,
business or prospects of the Parent and its Subsidiaries and Joint Venture Subsidiaries, taken as a
whole. Each of the Parent, its Subsidiaries, its Joint Venture Subsidiaries and the other Loan
Parties is Solvent; provided, however, Parent and Borrower make no representation on whether
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the Subsidiaries that constitute the borrowers and/or operating lessees of the Properties
subject to the MIP Loan and Wachovia Loan are Solvent.
(l) ERISA. Each member of the ERISA Group is in compliance with its obligations under
the minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and
is in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code
with respect to each Plan, except in each case for noncompliances which could not reasonably be
expected to have a Material Adverse Effect. As of the Agreement Date, no member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue
Code in respect of any Plan, (ii) except as set forth in Schedule 6.1(l), failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue
Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
(m) Not Plan Assets; No Prohibited Transaction. None of the assets of the Parent, any
Subsidiary, any Joint Venture Subsidiary or any other Loan Party constitute “plan assets” within
the meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated
thereunder. The execution, delivery and performance of this Agreement and the other Loan
Documents, and the borrowing and repayment of amounts hereunder, do not and will not constitute
“prohibited transactions” under ERISA or the Internal Revenue Code.
(n) Absence of Defaults. Neither the Parent, any Subsidiary, any Joint Venture
Subsidiary nor any other Loan Party is in default under its articles of incorporation, bylaws,
partnership agreement or other similar organizational documents, and no event has occurred, which
has not been remedied, cured or waived, which, in any such case: (i) constitutes a Default or an
Event of Default; or (ii) constitutes, or with the passage of time, the giving of notice, or both,
would constitute, a default or event of default by the Parent, any Subsidiary, any Joint Venture
Subsidiary or any other Loan Party under any agreement (other than this Agreement) or judgment,
decree or order to which the Borrower or any Subsidiary, any Joint Venture Subsidiary or other Loan
Party is a party or by which the Borrower or any Subsidiary, any Joint Venture Subsidiary or other
Loan Party or any of their respective properties may be bound where such default or event of
default could, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(o) Environmental Laws. Each of the Parent, its Subsidiaries, its Joint Venture
Subsidiaries and the other Loan Parties has obtained all Governmental Approvals which are required
of them under Environmental Laws and is in compliance with all terms and conditions of such
Governmental Approvals except for those the failure to obtain or to comply with could not
reasonably be expected to have a Material Adverse Effect. Except for any of the following matters
that could not be reasonably expected to have a Material Adverse Effect, (i) the Parent is not
aware of, and has not received notice of, any past, present, or future events, conditions,
circumstances, activities, practices, incidents, actions, or plans which, with respect to the
Parent, its Subsidiaries, its Joint Venture Subsidiaries and each other Loan Party, may interfere
with or prevent compliance or continued compliance with Environmental Laws, or may give rise to any
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common-law or legal liability, or otherwise form the basis of any claim, action, demand, suit,
proceeding, hearing, or study, based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling or the emission, discharge, release or
threatened release into the environment, of any Hazardous Material; and (ii) there is no civil,
criminal, or administrative action, suit, demand, claim, hearing, notice, or demand letter, notice
of violation, investigation, or proceeding pending or, to the Parent’s knowledge, threatened,
against the Parent, its Subsidiaries, its Joint Venture Subsidiaries and each other Loan Party
relating in any way to Environmental Laws.
(p) Investment Company; Etc. None of the Parent, any Subsidiary, any Joint Venture
Subsidiary or any other Loan Party is (i) an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended, or (ii)
subject to any other Applicable Law which purports to regulate or restrict its ability to borrow
money or to consummate the transactions contemplated by this Agreement or to perform its
obligations under any Loan Document to which it is a party.
(q) Margin Stock. None of the Parent, any Subsidiary, any Joint Venture Subsidiary or
any other Loan Party is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System.
(r) Affiliate Transactions. Except as permitted by Section 9.10., none of the Parent,
any Subsidiary, any Joint Venture Subsidiary or any other Loan Party is a party to any transaction
with an Affiliate.
(s) Intellectual Property. Each of the Parent, each other Loan Party and each other
Subsidiary and Joint Venture Subsidiary owns or has the right to use, under valid license
agreements or otherwise, all material patents, licenses, franchises, trademarks, trademark rights,
service marks, service xxxx rights, trade names, trade name rights, trade secrets and copyrights
(collectively, “Intellectual Property”) necessary to the conduct of its businesses as now conducted
and as contemplated by the Loan Documents, without known conflict with any patent, license,
franchise, trademark, trademark right, service xxxx, service xxxx right, trade secret, trade name,
copyright or other proprietary right of any other Person. The Parent, each other Loan Party and
each other Subsidiary and Joint Venture Subsidiary have taken all such steps as they deem
reasonably necessary to protect their respective rights under and with respect to such Intellectual
Property.
(t) Business. As of the Agreement Date, the Parent and its Subsidiaries and Joint
Venture Subsidiaries are engaged in the business of acquiring, disposing, financing and owning
hotel properties together with other business activities incidental thereto.
(u) Broker’s Fees. No broker’s or finder’s fee, commission or similar compensation
will be payable with respect to the transactions contemplated by the Loan Documents. No other
similar fees or commissions will be payable by any Loan Party for any other services rendered to
the Parent or any of its Subsidiaries and Joint Venture Subsidiaries ancillary to the transactions
contemplated hereby.
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(v) Accuracy and Completeness of Information. No written information, report or other
papers or data (excluding financial projections and other forward looking statements) furnished to
the Agent or any Lender by, on behalf of, or at the direction of, the Parent, any Subsidiary, any
Joint Venture Subsidiary or any other Loan Party in connection with, pursuant to or relating in any
way to this Agreement, contained any untrue statement of a fact regarding the Parent, any
Subsidiary, any Joint Venture Subsidiary or any other Loan Party or omitted to state a material
fact necessary in order to make such statements contained therein, in light of the circumstances
under which they were made, not misleading. All financial statements (including in each case all
related schedules and notes) furnished to the Agent or any Lender by, on behalf of, or at the
direction of, the Parent, any Subsidiary, any Joint Venture Subsidiary or any other Loan Party in
connection with, pursuant to or relating in any way to this Agreement, present fairly, in all
material respects and in accordance with GAAP consistently applied throughout the periods involved,
the financial position of the Persons involved as at the date thereof and the results of operations
for such periods (subject, as to interim statements, to changes resulting from normal year-end
audit adjustments). All financial projections and other forward looking statements prepared by or
on behalf of the Borrower, any Subsidiary, any Joint Venture Subsidiary or any other Loan Party
that have been or may hereafter be made available to the Agent or any Lender were or will be
prepared in good faith based on assumptions believed in good faith by the Borrower, such
Subsidiary, any Joint Venture Subsidiary or such other Loan Party, as applicable, to be reasonable
at the time of preparation. As of the Effective Date, no fact is known to the Parent which has
had, or may in the future reasonably be expected to have (so far as the Parent can reasonably
foresee), a Material Adverse Effect which has not been set forth in the financial statements
referred to in Section 6.1.(j) or in such information, reports or other papers or data or otherwise
disclosed in writing to the Agent and the Lenders.
(w) REIT Status. The Parent qualifies as a REIT and is in compliance with all
requirements and conditions imposed under the Internal Revenue Code to allow the Parent to maintain
its status as a REIT. The Parent has elected to be treated as a REIT.
(x) Foreign Assets Control. None of the Parent, any Subsidiary, any Joint Venture
Subsidiary or any Affiliate of the Parent: (i) is a Sanctioned Person, (ii) has any of its assets
in Sanctioned Entities, or (iii) derives any of its operating income from investments in, or
transactions with, Sanctioned Persons or Sanctioned Entities.
Section 6.2. Survival of Representations and Warranties, Etc.
All statements contained in any certificate, financial statement, request for extension of the
Revolving Termination Date pursuant to Section 2.12., request for increase of the Revolving
Commitments pursuant to Section 2.15., request for confirmation pursuant to Section 7.13.(d),
request for a waiver or amendment, items delivered pursuant to Section 8.4, or a notice pursuant to
Exhibit B, Exhibit C or Exhibit D delivered by or on behalf of the Parent, any Subsidiary, any
Joint Venture Subsidiary or any other Loan Party to the Agent or any Lender pursuant to or in
connection with this Agreement or any of the other Loan Documents (including, but not limited to,
any such statement made in or in connection with any amendment hereto or thereto or any statement
contained in any certificate or financial statement delivered by or on behalf of the Parent prior
to the Agreement Date and delivered to the Agent or any Lender in connection with the underwriting
or closing of the transactions contemplated hereby) shall constitute
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representations and warranties made by the Parent to the Agent and the Lenders under this
Agreement. All representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made at and as of the Agreement Date, the Effective Date, the date
on which any extension of the Revolving Termination Date is effectuated pursuant to Section 2.12.
and the date of the occurrence of any Credit Event, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such representations and
warranties shall have been true and correct in all material respects on and as of such earlier
date) and except for changes in factual circumstances not prohibited under the Loan Documents. All
such representations and warranties shall survive the effectiveness of this Agreement, the
execution and delivery of the Loan Documents and the making of the Loans and the issuance of the
Letters of Credit.
ARTICLE VII. Affirmative Covenants
For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner provided for
in Section 12.6., the Parent and the Borrower (as applicable) shall comply with the following
covenants:
Section 7.1. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 9.7., the Parent and the Borrower shall, and shall
cause each other Subsidiary, Controlled Joint Venture Subsidiary and each other Loan Party to,
preserve and maintain its respective existence, rights, franchises, licenses and privileges in the
jurisdiction of its incorporation or formation and qualify and remain qualified and authorized to
do business in each jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization and where the failure to be so authorized
and qualified could reasonably be expected to have a Material Adverse Effect.
Section 7.2. Compliance with Applicable Law.
The Parent and the Borrower shall, and shall cause each other Subsidiary, Controlled Joint
Venture Subsidiary and each other Loan Party to, comply with all Applicable Laws, including the
obtaining of all Governmental Approvals, the failure with which to comply could reasonably be
expected to have a Material Adverse Effect.
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan Documents, the Parent and the
Borrower shall, and shall cause each other Subsidiary, Controlled Joint Venture Subsidiary and
other Loan Party to, (a) protect and preserve all of its respective material properties, including,
but not limited to, all Intellectual Property, and maintain in good repair, working order and
condition all tangible properties, ordinary wear and tear excepted, and (b) make or cause to be
made all needed and appropriate repairs, renewals, replacements and additions to such properties,
so that the business carried on in connection therewith may be properly and advantageously
conducted at all times.
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Section 7.4. Conduct of Business.
The Parent and the Borrower shall, and shall cause each other Subsidiary, Controlled Joint
Venture Subsidiary and the other Loan Parties to, carry on, their respective businesses as
described in Section 6.1.(t).
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan Documents, the Parent and the
Borrower shall, and shall cause each other Subsidiary, Controlled Joint Venture Subsidiary and
other Loan Party to, maintain insurance (on a replacement cost basis) with financially sound and
reputable insurance companies against such risks and in such amounts as is customarily maintained
by Persons engaged in similar businesses or as may be required by Applicable Law, and from time to
time deliver to the Agent upon its request a detailed list, together with copies of all
certificates describing the policies of the insurance then in effect (or copies of such policies if
requested by the Agent), stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks covered thereby; in any
event the Borrower shall, and shall cause each of its Subsidiaries and Controlled Joint Venture
Subsidiaries to, maintain insurance in such amounts as required by any document evidencing
Indebtedness to which any Borrower or its Subsidiaries or Controlled Joint Venture Subsidiaries are
a party.
Section 7.6. Payment of Taxes and Claims.
The Parent and the Borrower shall, and shall cause each other Subsidiary, each other
Controlled Joint Venture Subsidiary and other Loan Party to, pay and discharge when due (a) all
taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits
or upon any properties belonging to it, and (b) all lawful claims of materialmen, mechanics,
carriers, warehousemen and landlords for labor, materials, supplies and rentals which, if unpaid,
might become a Lien on any properties of such Person; provided, however, that this Section shall
not require the payment or discharge of any such tax, assessment, charge, levy or claim which is
being contested in good faith by appropriate proceedings which operate to suspend the collection
thereof and for which adequate reserves have been established on the books of the Parent, the
Borrower, such other Subsidiary, such other Controlled Joint Venture Subsidiary or such other Loan
Party, as applicable, in accordance with GAAP.
Section 7.7. Visits and Inspections.
The Parent and the Borrower shall, and shall cause each other Subsidiary, each other
Controlled Joint Venture Subsidiary and other Loan Party to, permit representatives or agents of
any Lender or the Agent, from time to time after reasonable prior notice if no Event of Default
shall be in existence, as often as may be reasonably requested, but only during normal business
hours and at the expense of such Lender or the Agent (unless a Default or Event of Default shall
exist, in which case the exercise by the Agent or such Lender of its rights under this Section
shall be at the expense of the Borrower), as the case may be, to: (a) visit and visually inspect
all properties of the Parent, the Borrower, such other Subsidiary, such other Controlled Joint
Venture Subsidiary or such other Loan Party to the extent any such right to visit or inspect is
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within the control of such Person; (b) inspect and make extracts from their respective books
and records, including but not limited to management letters prepared by independent accountants;
and (c) discuss with its officers and employees, and its independent accountants, its business,
properties, condition (financial or otherwise), results of operations and performance. If
requested by the Agent, the Parent shall execute an authorization letter addressed to its
accountants authorizing the Agent or any Lender to discuss the financial affairs of the Parent, the
Borrower, any other Subsidiary, any other Controlled Joint Venture Subsidiary and any other Loan
Party with its accountants.
Section 7.8. Use of Proceeds; Letters of Credit.
The Borrower shall use the proceeds of the Revolving Loans and the Letters of Credit for
acquisitions, development, debt repayment and other general corporate purposes. No part of the
proceeds of any Loan or Letter of Credit will be used (a) for the purpose of buying or carrying
“margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve
System or to extend credit to others for the purpose of purchasing or carrying any such margin
stock or (b) to fund any operations in, to finance any investments or activities in, or to make any
payments to, a Sanctioned Person or Sanctioned Entity.
Section 7.9. Environmental Matters.
The Parent and the Borrower shall, and shall cause each other Subsidiary, Controlled Joint
Venture Subsidiary and each other Loan Party to, comply with all Environmental Laws the failure
with which to comply could reasonably be expected to have a Material Adverse Effect. If the
Parent, the Borrower, any other Subsidiary, any other Joint Venture Subsidiary or any other Loan
Party shall (a) receive notice that any violation of any Environmental Law may have been committed
or is about to be committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against the Parent, the Borrower, any
other Subsidiary, any other Joint Venture Subsidiary or any other Loan Party alleging violations of
any Environmental Law or requiring the Parent, the Borrower, any other Subsidiary, any other Joint
Venture Subsidiary or any other Loan Party to take any action in connection with the release of
Hazardous Materials or (c) receive any notice from a Governmental Authority or private party
alleging that the Parent, the Borrower, any other Subsidiary, any other Joint Venture Subsidiary or
any other Loan Party may be liable or responsible for costs associated with a response to or
cleanup of a release of Hazardous Materials or any damages caused thereby, and the matters referred
to in such notices, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, the Parent shall provide the Agent with a copy of such notice promptly,
and in any event within 10 Business Days, after the receipt thereof by the Parent, the Borrower,
any other Subsidiary, any other Joint Venture Subsidiary or any other Loan Party. Except for
matters that are being challenged or disputed in good faith, the Parent and the Borrower shall, and
shall cause each other Subsidiary, any other Controlled Joint Venture Subsidiary and each other
Loan Party to, take promptly all actions necessary to prevent the imposition of any Liens on any of
their respective properties arising out of or related to any Environmental Laws.
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Section 7.10. Books and Records.
The Parent and the Borrower shall, and shall cause each other Subsidiary, Controlled Joint
Venture Subsidiary and the other Loan Parties to, maintain books and records pertaining to its
respective business operations in such detail, form and scope as is consistent with good business
practice and in accordance with GAAP.
Section 7.11. Further Assurances.
The Parent and the Borrower shall, at the sole cost and expense of the Parent and the Borrower
and upon request of the Agent, execute and deliver or cause to be executed and delivered, to the
Agent such further instruments, documents and certificates, and do and cause to be done such
further acts that may be reasonably necessary or advisable in the reasonable opinion of the Agent
to carry out more effectively the provisions and purposes of this Agreement and the other Loan
Documents or to perfect more fully or to renew the rights of the Agent and the Lenders with respect
to the Collateral (or with respect to any additions thereto or replacements or proceeds thereof or
with respect to any other property or assets hereafter acquired by any Loan Party which may be
deemed to be part of the Collateral) pursuant to any of the Loan Documents.
Section 7.12. Additional Guarantors and Pledges.
(a) Requirement to Become Guarantor. Within 30 days of (i) any Person (other than a
Foreign Subsidiary) becoming a Material Subsidiary after the Effective Date, (ii) any Excluded
Subsidiary ceasing to be subject to the restriction or circumstances which prevented it from
becoming a Guarantor on the Effective Date or delivering an Accession Agreement pursuant to this
Section, or (iii) any Person which at any time has been a Guarantor but was released pursuant to
Section 7.13.(a) because it had less than $10,000 in assets, thereafter having at least $10,000 in
assets in the aggregate, as the case may be, the Parent shall cause to be delivered to the Agent
each of the following in form and substance satisfactory to the Agent: (w) an Accession Agreement
executed by such Person, (x) the items that would have been delivered under Sections 5.1.(a)(ix)
through (xiii) and (xxii) if such Subsidiary or Joint Venture Subsidiary had been a Guarantor on
the Effective Date and (y) if such Person would have been required to become party to the Security
Agreement pursuant to Section 5.1(a)(vi) had such Person been a Material Subsidiary as of the
Effective Date or if such Person had previously been a party to the Security Agreement (directly or
by virtue of a supplement thereto) and was released pursuant to Section 7.13.(a) because it had
less than $10,000 in assets, and thereafter has at least $10,000 in assets in the aggregate, a
supplement to the Security Agreement substantially in the form of Annex 1 to the Security Agreement
set forth in Exhibit F hereto executed by such Person to the extent such Person is not already a
Grantor and the items that would have been delivered under Sections 5.1.(a)(vii) (excluding any
reference to the Pledge Agreement set forth in Section 5.1(a)(vii)), (viii), (ix), (x) through
(xiii) and (xxii). The Borrower shall send to each Lender copies of each of the foregoing items
once the Agent has received all such items with respect to a Subsidiary or Joint Venture
Subsidiary.
(b) Additional Pledges. Within 30 days of the Borrower or any Domestic Subsidiary
(other than an Excluded Subsidiary) not already a Pledgor acquiring, forming,
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holding or otherwise receiving or owning after the Effective Date any Equity Interest in a
Subsidiary or Joint Venture Subsidiary (other than an Unpledgeable Subsidiary or a Subsidiary or
Joint Venture Subsidiary with less than $10,000 in assets in the aggregate), the Parent shall cause
to be delivered to the Agent each of the following in form and substance satisfactory to the Agent:
(i) a supplement to the Pledge Agreement executed by the Borrower or such Domestic Subsidiary, as
applicable, subjecting such Equity Interests to the Lien of the Pledge Agreement, (ii) the items
that would have been delivered under Sections 5.1.(a)(v) and (vii) (excluding any reference to the
Security Agreement set forth in Section 5.1.(a)(vii)), and if such Subsidiary or Joint Venture
Subsidiary is a Material Subsidiary or is a Person described in Section 7.12.(a)(iii), Sections
5.1.(a)(viii), (ix) and (xxii), if such Subsidiary or Joint Venture Subsidiary Equity Interests
would have been Collateral under the Pledge Agreement on the Effective Date and (iii) if such
Equity Interests are owned by a Domestic Subsidiary that is a Material Subsidiary or is a Person
described in Section 7.12.(a)(iii) and is not already a Guarantor and is not an Excluded
Subsidiary, the items referred to in Section 7.12.(a)(x). Notwithstanding the immediately
preceding sentence of this subsection, (x) in no event shall the Borrower and its Domestic
Subsidiaries be required to subject to the Lien of the Pledge Agreement or any other Loan Document
more than 65% (or such greater percentage that, due to a change in an Applicable Law after the
Agreement Date, (A) could not reasonably be expected to cause the undistributed earnings of such
Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary’s United States parent and (B) could not reasonably be
expected to cause any material adverse tax consequences) of the issued and outstanding Equity
Interest in a Foreign Subsidiary entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) determined on a collective basis, but (y) the Borrower and its Domestic Subsidiaries
shall be required to subject to the Lien of the Pledge Agreement 100% of the issued and outstanding
Equity Interest in a Foreign Subsidiary not entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)).
Section 7.13. Release of Guarantors and Pledges.
(a) Releases Generally. The Borrower may request in writing that the Agent release,
and upon receipt of such request the Agent shall release, any Person from any of the Guaranty and
the Security Agreement so long as: (i) such Person qualifies, or will qualify simultaneously with
its release from the Guaranty and the Security Agreement, as applicable, as an Excluded Subsidiary
or has ceased to be, or simultaneously with its release from the Guaranty and the Security
Agreement, as applicable, will cease to be a Subsidiary or a Joint Venture Subsidiary with at least
$10,000 in assets in the aggregate; (ii) no Default or Event of Default shall then be in existence
or would occur as a result of such release; (iii) such Person is not a party to any Derivatives
Contract by virtue of which any other Person is a Derivatives Contracts Beneficiary; and (iv) the
Agent shall have received such written request at least 5 Business Days prior to the requested date
of release. Delivery by the Borrower to the Agent of any such request shall constitute a
representation by the Borrower that the matters set forth in the preceding sentence (both as of the
date of the giving of such request and as of the date of the effectiveness of such request) are
true and correct with respect to such request.
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(b) Release of Pledge. The Borrower may request in writing that the Agent release,
and upon receipt of such request the Agent shall release the Equity Interests in a Subsidiary or a
Joint Venture Subsidiary from the Lien of the applicable Security Documents so long as: (i)
such Subsidiary or Joint Venture Subsidiary qualifies, or will qualify simultaneously with the
release of its Equity Interests from such Security Documents, as an Unpledgeable Subsidiary or has
ceased to be, or simultaneously with the release of its Equity Interests from such Security
Documents will cease to be, a Subsidiary of Borrower or a Joint Venture Subsidiary with at least
$10,000 in assets in the aggregate; (ii) no Default or Event of Default shall then be in existence
or would occur as a result of such release; and (iii) the Agent shall have received such written
request at least 7 Business Days prior to the requested date of release. Delivery by the Borrower
to the Agent of any such request shall constitute a representation by the Borrower that the matters
set forth in the preceding sentence (both as of the date of the giving of such request and as of
the date of the effectiveness of such request) are true and correct with respect to such request.
(c)
Release of Mezzanine Debt Interests. The Borrower may request in writing that the
Agent release, and upon receipt of such request the Agent shall release the Mezzanine Debt
Interests held by a Subsidiary or a Joint Venture Subsidiary from the Lien of the applicable
Security Documents so long as: (i) (A) such Subsidiary or Joint Venture Subsidiary qualifies, or
will qualify simultaneously with the release of its Mezzanine Debt Interests from such Security
Documents, as an Unpledgeable Subsidiary or has ceased to be, or simultaneously with the release of
its Mezzanine Debt Interests from such Security Documents will cease to be, a Subsidiary or Joint
Venture Subsidiary or (B) simultaneously with the release of its Mezzanine Debt Interests from such
Security Documents, such Mezzanine Debt Interests will be conveyed, sold, transferred or otherwise
disposed of as permitted by this
Credit Agreement to a Subsidiary or Joint Venture Subsidiary that
qualifies as an Unpledgeable Subsidiary or a Person that is not a Subsidiary or Joint Venture
Subsidiary, or has ceased to be a Subsidiary or Joint Venture Subsidiary; (ii) no Default or Event
of Default shall then be in existence or would occur as a result of such release; and (iii) the
Agent shall have received such written request at least 7 Business Days prior to the requested date
of release. Delivery by the Borrower to the Agent of any such request shall constitute a
representation by the Borrower that the matters set forth in the preceding sentence (both as of the
date of the giving of such request and as of the date of the effectiveness of such request) are
true and correct with respect to such request.
(d) Confirmation. Promptly after written request from Borrower and receipt of such
back-up information as Agent may request, Agent will confirm (subject to the terms hereof) in
writing that a specified Subsidiary or Joint Venture Subsidiary is at that time (but not
necessarily thereafter) (i) an Unpledgeable Subsidiary and that its Equity Interests are not then
subject to the Lien of the Security Documents and/or (b) an Excluded Subsidiary, so long as such
Subsidiary or Joint Venture Subsidiary then qualifies as an Unpledgeable Subsidiary or Excluded
Subsidiary, as the case may be, but subject to such Subsidiary or Joint Venture Subsidiary
thereafter being subject to the lien of the Security Documents if it is no longer an Excluded
Subsidiary or an Unpledgeable Subsidiary. Delivery by the Borrower to the Agent of any such
request shall constitute a representation by the Borrower that the matters set forth in the
preceding sentence (both as of the date of the giving of such request and as of the date of the
effectiveness of such request) are true and correct with respect to such request. Agent may rely
solely on the representations of Borrower. Notwithstanding the foregoing, if such representations
of Borrower
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are not true and correct, then to the full extent possible under applicable law, such
confirmation by Agent shall not release, diminish or impair any Lien pursuant to the Security
Documents or
other rights under the Loan Documents and provided further that no such confirmation shall
release, diminish or impair any provision of the Loan Documents if the specified Person is no
longer an Excluded Subsidiary or an Unpledgeable Subsidiary.
Section 7.14. REIT Status.
The Parent shall at all times maintain its status as a REIT and will not revoke its election
to be treated as a REIT.
Section 7.15. Exchange Listing.
The Parent shall maintain at least one class of common shares of the Parent having trading
privileges on the
New York Stock Exchange or the American Stock Exchange or which is the subject of
price quotations in the over-the-counter market as reported by the National Association of
Securities Dealers Automated Quotation System.
Section 7.16. Compliance With Material Contracts.
The Parent and the Borrower shall, and shall cause each other Subsidiary, Controlled Joint
Venture Subsidiary and each other Loan Party to, perform and observe all the terms and provisions
of each Material Contract to be performed or observed by it, maintain each such Material Contract
in full force and effect, and enforce each such Material Contract in accordance with its terms, in
each case except where the failure to do so does not and could not reasonably be expected to have a
Material Adverse Effect.
ARTICLE
VIII. Information
For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth in
Section 12.6., the Borrower shall furnish to each Lender (or to the Agent if so provided below) at
its Lending Office:
Section 8.1. Quarterly Financial Statements.
As soon as available and in any event within 5 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 50 days after the end of
each of the first, second and third fiscal quarters of the Parent), a copy of the quarterly Form
10-Q of the Parent filed with the Securities and Exchange Commission, which shall be certified by
the chief executive officer or chief financial officer of the Parent, in his or her opinion, to
present fairly, in accordance with GAAP and in all material respects, the consolidated financial
position of the Parent and its Subsidiaries and Controlled Joint Venture Subsidiaries as at the
date thereof and the results of operations for such period (subject to normal year-end audit
adjustments).
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Section 8.2. Year-End Statements.
As soon as available and in any event within 5 days after the same is required to be filed
with the Securities and Exchange Commission (but in no event later than 100 days after the end
of each fiscal year of the Parent), the audited annual Form 10-K of the Parent filed with the
Securities and Exchange Commission, which shall be (a) certified by the chief executive officer or
chief financial officer of the Parent, in his or her opinion, to present fairly, in accordance with
GAAP and in all material respects, the consolidated financial position of the Parent and its
Subsidiaries and Controlled Joint Venture Subsidiaries as at the date thereof and the results of
operations for such period and (b) accompanied by the report thereon of independent certified
public accountants of recognized national standing acceptable to the Agent, whose certificate shall
be unqualified and in scope and substance satisfactory to the Requisite Lenders.
Section 8.3. Compliance Certificate.
At the time financial statements are furnished pursuant to Sections 8.1. and 8.2., a
certificate substantially in the form of Exhibit J (a “Compliance Certificate”) executed by the
chief financial officer, chief executive officer, president, chief operating officer, chief
accounting officer or vice present-finance of the Parent: (a) setting forth in reasonable detail as
at the end of such quarterly accounting period, fiscal year, or other fiscal period, as the case
may be, the calculations required to establish whether or not the Parent was in compliance with the
covenants contained in Sections 9.1., 9.4. and 9.7 and (b) stating that, to his or her knowledge,
after due inquiry, no Default or Event of Default exists, or, if such is not the case, specifying
such Default or Event of Default and its nature, when it occurred, whether it is continuing and the
steps being taken by the Parent and the Borrower with respect to such event, condition or failure.
Together with the delivery of each Compliance Certificate, the Parent shall deliver (i) a statement
of funds from operations (determined in accordance with NAREIT standards) for such period then
ending; (ii) a statement of cash and Cash Equivalents posted as collateral for any Derivatives
Contracts (specifying the amount of cash and Cash Equivalents posted for each Derivatives
Contract); and (iii) a report, in form and detail reasonably satisfactory to the Agent, setting
forth a list of all Properties acquired by the Parent and its Subsidiaries and Joint Venture
Subsidiaries since the date of the delivery of the previous such report, such list to identify such
Property’s name, location, cost of acquisition, amount of related mortgage Indebtedness, if any,
and the maturity of such mortgage Indebtedness, and the net operating income for such Property for
the immediately preceding period of 12 consecutive months; provided, the item set forth in clause
(i) above shall be deemed delivered if such item is specifically and separately included in the
publicly announced earnings release issued in connection with the financial statements furnished
pursuant to Sections 8.1 and 8.2.
Section 8.4. Other Information.
(a) Management Reports. Promptly upon receipt thereof, copies of all management
reports, if any, submitted to the Parent or its Board of Directors by its independent public
accountants, with respect to the internal audit and financial controls of the Parent;
(b) Securities Filings. Within 5 Business Days of the filing thereof, copies of all
registration statements (excluding the exhibits thereto (unless requested by the Agent) and any
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registration statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or
their equivalents) and all other periodic reports which the Parent, any Subsidiary, any Joint
Venture Subsidiary or any other Loan Party shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national securities
exchange;
(c) Shareholder Information. Promptly upon the mailing thereof to the shareholders of
the Parent generally, copies of all financial statements, reports and proxy statements so mailed
and promptly upon the issuance thereof copies of all press releases issued by the Parent, any
Subsidiary, any Controlled Joint Venture Subsidiary or any other Loan Party;
(d) ERISA. If and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to
any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA
or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a
copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Internal Revenue Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a
copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement
or makes any amendment to any Plan or Benefit Arrangement, and of which has resulted or could
reasonably be expected to result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief executive officer or chief financial officer of the Parent
setting forth details as to such occurrence and the action, if any, which the Parent or applicable
member of the ERISA Group is required or proposes to take;
(e) Litigation. To the extent the Parent or any Subsidiary, any Joint Venture
Subsidiary is aware of the same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or proceeding in any court or
other tribunal or before any arbitrator against or in any other way relating adversely to, or
adversely affecting, the Parent or any Subsidiary, any Joint Venture Subsidiary or any of their
respective properties, assets or businesses which could reasonably be expected to have a Material
Adverse Effect, and prompt notice of the receipt of notice that any United States income tax
returns of the Parent or any of its Subsidiaries or Joint Venture Subsidiaries are being audited;
(f) Change of Financial Condition. Prompt notice of any change in the business,
assets, liabilities, financial condition, results of operations or business prospects of the
Parent, the Borrower, any other Subsidiary, any other Joint Venture Subsidiary or any other Loan
Party which has had or could reasonably be expected to have a Material Adverse Effect;
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(g) Default. Notice of the occurrence of any of the following promptly upon a
Responsible Officer of the Parent obtaining knowledge thereof: (i) any Default or Event of Default
or (ii) any event which constitutes or which with the passage of time, the giving of notice, or
otherwise, would constitute a default or event of default by the Parent, any Subsidiary,
any Joint Venture Subsidiary or any other Loan Party under any Material Contract to which any
such Person is a party or by which any such Person or any of its respective properties may be
bound;
(h) Judgments. Prompt notice of any order, judgment or decree in excess of $5,000,000
having been entered against the Parent, any Subsidiary, any Joint Venture Subsidiary or any other
Loan Party or any of their respective properties or assets;
(i) Material Asset Sales. Prompt notice of the sale, transfer or other disposition of
any assets of the Parent, any Subsidiary, any Joint Venture Subsidiary or any other Loan Party
having a book value in excess of $20,000,000 to any Person other than the Parent, any Subsidiary,
any Joint Venture Subsidiary or any other Loan Party;
(j) Patriot Act Information. From time to time and promptly upon each request,
information identifying the Borrower as a Lender may request in order to comply with the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)); and
(k) Other Information. From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further information regarding
the business, assets, liabilities, financial condition, results of operations or business prospects
of the Borrower or any of its Subsidiaries or Joint Venture Subsidiaries as the Agent or any Lender
may reasonably request.
Section 8.5. Electronic Delivery of Certain Information.
(a) The Parent and the Borrower may deliver documents, materials and other information
required to be delivered pursuant to Article VIII. (collectively, “Information”) in an electronic
format acceptable to the Agent by e-mailing any such Information to an e-mail address of the Agent
as specified by the Agent from time to time. Any Information provided in such manner shall only be
deemed to have been delivered to the Agent and the Lenders on the date on which the Agent posts
such Information on the Borrower’s behalf (which the Agent shall do promptly upon receipt) on an
internet or intranet website to which each Lender and the Agent has access, whether a commercial,
third-party website (such as Intralinks or SyndTrak) or a website sponsored by the Agent (the
“Platform”).
(b) In addition, the Borrower and the Parent may deliver Information required to be delivered
pursuant to Sections 8.1., 8.2., and 8.4.(b) and (c) by posting any such Information to the
Parent’s internet website (as of the Agreement Date, xxx.xxxxxxx.xxx). Any such Information
provided in such manner shall only be deemed to have been delivered to the Agent or a Lender (i) on
the date on which the Agent or such Lender, as applicable, receives written notice from the
Borrower, the Parent or any agent of the Borrower or Parent that such Information has been posted
to the Parent’s internet website and (ii) only if such Information is publicly available without
charge on such website. If for any reason, the Agent or a Lender
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either did not receive such
notice or after reasonable efforts was unable to access such website, then the Agent or such
Lender, as applicable, shall not be deemed to have received such Information. In addition to any
manner permitted by Section 12.1., the Borrower and the Parent may notify the Agent or a Lender
that Information has been posted to such a website by causing
an e-mail notification to be sent to an e-mail address specified from time to time by the
Agent or such Lender, as applicable.
(c) Notwithstanding anything in this Section to the contrary (i) the Borrower and the Parent
shall deliver paper copies of Information to the Agent or any Lender that requests the Borrower and
the Parent to deliver such paper copies until a written request to cease delivering paper copies is
given to the Borrower by the Agent or such Lender and (ii) in every instance the Parent shall be
required to provide to the Agent a paper original of the Compliance Certificate required by Section
8.3.
(d) The Parent and the Borrower each acknowledges and agrees that the Agent may make
Information, as well as any other written information, reports, data, certificates, documents,
instruments, agreements and other materials relating to the Parent, the Borrower, any other
Subsidiary, any other Joint Venture Subsidiary or any other Loan Party or any other materials or
matters relating to this Agreement, any of the other Loan Documents or any of the transactions
contemplated by the Loan Documents, in each case to the extent that the Agent’s communication
thereof to the Lenders is otherwise permitted hereunder (collectively, the “Communications”)
available to the Lenders by posting the same on the Platform. The Parent and the Borrower each
acknowledges that (i) the distribution of material through an electronic medium, such as the
Platform, is not necessarily secure and that there are confidentiality and other risks associated
with such distribution, (ii) the Platform is provided “as is” and “as available” and (iii) neither
the Agent nor any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors or omissions in
the Communications or the Platform.
(e) The Agent shall have no obligation to request the delivery or to maintain copies of any of
the Information or other materials referred to above, and in no event shall have any responsibility
to monitor compliance by the Parent or the Borrower with any such requests.
Section 8.6. Public/Private Information.
The Parent and the Borrower will cooperate with the Agent in connection with the publication
of certain materials and/or information provided by or on behalf of the Parent or the Borrower to
the Agent and the Lenders (collectively, “Information Materials”) pursuant to this Article and will
designate Information Materials (a) that are either available to the public or not material with
respect to the Parent and its Subsidiaries and Joint Venture Subsidiaries or any of their
respective securities for purposes of United States federal and state securities laws, as “Public
Information” and (b) that are not Public Information as “Private Information”.
ARTICLE IX. Negative Covenants
For so long as this Agreement is in effect, unless the Requisite Lenders (or, if required
pursuant to Section 12.6., all of the Lenders) shall otherwise consent in the manner set forth in
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Section 12.6., the Parent and the Borrower (as applicable) shall comply with the following
covenants:
Section 9.1. Financial Covenants. The Parent shall not permit:
(a) Maximum Leverage Ratio. The ratio of (i) Total Net Indebtedness to (ii) Total
Asset Value (excluding cash and cash equivalents), to exceed 0.650 to 1.00 at any time. For
purposes of this subsection (a), Indebtedness and assets of a given Acquired Mezzanine Debt Entity
shall be excluded from Total Net Indebtedness and Total Asset Value if the Requisite Lenders have
given their prior written consent to such exclusion. Lender hereby approves the exclusion of the
Indebtedness and assets of the Westin Mezz Portfolio from Total Net Indebtedness and Total Asset
Value to the extent acquired by Borrower or any Subsidiary or Joint Venture Subsidiary (including,
without limitation, acquisition by means of a foreclosure action of a Mezz Debt Interest or through
an acquisition through a confirmation of a plan in any bankruptcy, insolvency, reorganization,
winding-up, or similar proceeding affecting such assets); provided that such exclusion shall no
longer be effective (and the Indebtedness and assets of the Westin Mezz Portfolio shall be included
in Total Net Indebtedness and Total Asset Value) in the event that after the date of this Agreement
Borrower or Parent directly or indirectly makes an Investment, pays or incurs any Indebtedness
(whether principal, interest or otherwise), pays or contributes toward the payment of operating
expenses or capital expenditures, or otherwise pays or contributes toward any other costs of owning
or operating the Westin Mezz Portfolio, in the amount of $5,000,000 or greater (except from cash
generated solely from the operation of the Westin Mezz Portfolio).
(b) Minimum Fixed Charge Coverage Ratio. The ratio of (i) Adjusted EBITDA for the
period of four consecutive fiscal quarters of the Parent most recently ending to (ii) Fixed Charges
for such period, to be less than 1.350 to 1.00. For purposes of this subsection (b) only, cash
gains or other income (losses) in respect of Derivatives Contracts realized during any applicable
period shall be (i) deducted from (added to) Adjusted EBITDA for such period but only to the extent
included in net income when determining Adjusted EBITDA and (ii) deducted from (added to) Fixed
Charges for such period.
(c) Minimum Tangible Net Worth. Tangible Net Worth at any time to be less than (i)
$1,300,000,000 plus (ii) 75.0% of the Net Proceeds of all Equity Issuances effected by the Parent
or any Subsidiary or Controlled Joint Venture Subsidiary after the Effective Date (other than any
Equity Issuances to the Parent or any Subsidiary or Controlled Venture Subsidiary) (provided that,
for the avoidance of doubt, the contribution by Borrower of an asset to a Joint Venture Subsidiary
in exchange for an Equity Interest therein, and the contemporaneous contribution or payment of cash
in an amount equivalent to the value thereof by a Minority Holder to such Joint Venture Subsidiary
and distribution thereof to Borrower or Parent, or another transaction which, subject to Agent’s
reasonable approval, constitutes a sale of an asset to a Joint Venture Subsidiary and not an Equity
Issuance, shall not constitute Net Proceeds of an Equity Issuance).
(d) Floating Rate Indebtedness. The ratio of (i) Floating Rate Indebtedness to (ii)
Total Indebtedness, to exceed 0.50 to 1.00 at any time.
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(e) Assets Owned by Borrower and Guarantors. The amount of Adjusted Total Asset
Value attributable to assets directly owned by the Borrower and the Guarantors to be less than
95.0% of Adjusted Total Asset Value at any time
Section 9.2. Restricted Payments.
(a) Intentionally Omitted.
(b) If a Default or Event of Default exists, the Parent shall not, and shall not permit any of
its Subsidiaries or Controlled Joint Venture Subsidiaries to, declare or make any Restricted
Payment except (x) to the Parent or any Subsidiary, (y) any Controlled Joint Venture Subsidiary of
the Borrower may make Restricted Payments to the extent required by the organizational documents of
such Controlled Joint Venture Subsidiary and (z) the Borrower may pay cash dividends to the Parent
and other holders of partnership interests in the Borrower with respect to any fiscal year ending
during the term of this Agreement to the extent necessary for the Parent to distribute, and the
Parent may so distribute, cash dividends to its shareholders in an aggregate amount not to exceed
the amount required to be distributed for the Parent to remain in compliance with Section 7.14.
(c) Notwithstanding the immediately preceding subsection, if a Default or Event of Default
specified in Section 10.1.(a), Section 10.1.(b), Section 10.1.(f) or Section 10.1.(g) shall exist,
or if as a result of the occurrence of any other Event of Default any of the Obligations have been
accelerated pursuant to Section 10.2.(a), the Parent shall not, and shall not permit any Subsidiary
or Controlled Joint Venture Subsidiary to, make any Restricted Payments to any Person other than to
the Parent or any Subsidiary or any Controlled Joint Venture Subsidiary.
Section 9.3. Indebtedness.
The Parent shall not permit:
(a) Recourse Indebtedness. The amount of Recourse Indebtedness that is either (i)
Unsecured Indebtedness or (ii) also Secured Indebtedness (excluding the Obligations) to the extent
not satisfying the loan to value limit in Section 9.3.(b) below, to exceed $50,000,000 in the
aggregate at any time. For purposes of this subsection (a)(ii) and to be permitted as Recourse
Indebtedness under this Section 9.3.(a), (x) such Secured Indebtedness must be secured by a first
priority mortgage on assets securing such Indebtedness, but such Indebtedness may exceed seventy
percent (70%) of the as-is appraised value of the real property securing such Indebtedness, and (y)
such Indebtedness shall only constitute Recourse Indebtedness of Parent and/or Borrower and not any
other Subsidiary or Joint Venture Subsidiary.
(b) Secured Recourse Indebtedness. The amount of Recourse Indebtedness that is also
Secured Indebtedness (excluding the Obligations) to exceed $50,000,000 at any time. For purposes
of this subsection (b) and to be permitted as Recourse Indebtedness under this Section 9.3.(b), (i)
such Secured Indebtedness must be secured by a first priority mortgage on assets securing such
Indebtedness, and such Indebtedness shall not exceed seventy percent (70%) of the as-is appraised
value of the real property securing such Indebtedness as determined by the appraisal obtained by
the lender at the time such Indebtedness is incurred, and (ii) such
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Indebtedness shall only
constitute Recourse Indebtedness of Parent and/or Borrower and not any other Subsidiary or Joint
Venture Subsidiary.
(c) For the avoidance of doubt, Recourse Indebtedness with respect to (i) Derivatives
Contracts shall not constitute Recourse Indebtedness that is Secured Indebtedness if the sole
collateral for such Indebtedness is the Collateral pursuant to the Security Documents and/or
cash posted as collateral, (ii) any securities investments made by an Investment Subsidiary shall
not constitute Recourse Indebtedness that is Secured Indebtedness if the sole collateral for such
Indebtedness are the securities investment assets and/or cash held by such Investment Subsidiary
and such indebtedness is solely recourse to such Investment Subsidiary, and (iii) Capitalized Lease
Obligations shall not constitute Recourse Indebtedness that is Secured Indebtedness to the extent
that the only Lien securing such Indebtedness is pursuant to the lease which creates such
Capitalized Lease Obligation, but in all of the foregoing cases, such Indebtedness shall be deemed
to be Recourse Indebtedness that is Unsecured Indebtedness. For the further avoidance of doubt, no
Recourse Indebtedness that is also Secured Indebtedness shall be permitted except for such Secured
Indebtedness as is expressly permitted by this Section 9.3.
(d) The Parent and the Borrower shall not, and shall not permit any other Subsidiary,
Controlled Joint Venture Subsidiary or any other Loan Party to, incur, assume, or otherwise become
obligated in respect of any Indebtedness after the Agreement Date if immediately prior to the
assumption, incurring or becoming obligated in respect thereof, or immediately thereafter and after
giving effect thereto, a Default or Event of Default is or would be in existence, including without
limitation, a Default or Event of Default resulting from a violation of any of the covenants
contained in Section 9.1.
Section 9.4. Certain Permitted Investments.
(a) The Parent and the Borrower shall not, and shall not permit any other Subsidiary or
Controlled Joint Venture Subsidiary to, make or otherwise own Investments in Joint Venture
Subsidiaries that are not Controlled Joint Venture Subsidiaries or other Persons that are not
Subsidiaries or Controlled Joint Venture Subsidiaries, such that the aggregate value of such
Investments (determined in a manner consistent with the definition of Total Asset Value or, if not
contemplated under the definition of Total Asset Value, as determined in accordance with GAAP) of
the Parent, its Subsidiaries and Controlled Joint Venture Subsidiaries exceeds 30.0% of Total Asset
Value at any time. For the avoidance of doubt, the percentage of Total Asset Value which the
Investment of Borrower in PIM Highland Holding LLC constitutes shall equal the Total Asset Value of
Borrower attributable to the assets of PIM Highland Holding LLC divided by the Total Asset Value.
(b) The Parent and the Borrower shall not, and shall not permit any other Subsidiary or
Controlled Joint Venture Subsidiary to, make or otherwise own Investments in Investment
Subsidiaries such that the aggregate value of such Investments (determined based upon invested
capital) of the Parent, its Subsidiaries and Controlled Joint Venture Subsidiaries exceeds five
percent (5.0%) of Total Asset Value at any time.
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Section 9.5. Investments Generally
The Parent and the Borrower shall not, and shall not permit any other Subsidiary, any
Controlled Joint Venture Subsidiary or other Loan Party to, directly or indirectly, acquire, make
or purchase any Investment, or permit any Investment of such Person to be outstanding on and after
the Agreement Date, other than the following:
(a) Investments in Subsidiaries and Controlled Joint Venture Subsidiaries in existence on the
Agreement Date and disclosed on Part I of Schedule 6.1.(b);
(b) Investments to (x) acquire Equity Interests in a Subsidiary or Controlled Joint Venture
Subsidiary or any other Person who after giving effect to such acquisition would be a Subsidiary or
a Controlled Joint Venture Subsidiary, or (y) form a Subsidiary or a Controlled Joint Venture
Subsidiary, so long as in each case (i) immediately prior to such Investment, and after giving
effect thereto, no Default or Event of Default is or would be in existence and (ii) the applicable
terms and conditions set forth in Section 7.12. are satisfied;
(c) Investments in Joint Venture Subsidiaries that are not Controlled Joint Venture
Subsidiaries or other Persons that are not Subsidiaries or Controlled Joint Venture Subsidiaries
described in Section 9.4.(a) to the extent permitted under Section 9.4.(a);
(d) Investments in Cash Equivalents;
(e) intercompany Indebtedness among the Parent and its Subsidiaries provided that such
Indebtedness is permitted by the terms of Section 9.3.;
(f) loans and advances to officers and employees for moving, entertainment, travel and other
similar expenses in the ordinary course of business consistent with past practices;
(g) Investments in the Investment Subsidiaries to the extent permitted by Section 9.4.(b); and
(h) any other Investment so long as immediately prior to making such Investment, and
immediately thereafter and after giving effect thereto, no Default or Event of Default is or would
be in existence.
Section 9.6. Liens; Negative Pledges; Other Matters.
(a) The Parent and the Borrower shall not, and shall not permit any other Subsidiary, any
other Controlled Joint Venture Subsidiary or other Loan Party to, create, assume, or incur any Lien
(other than Permitted Liens) upon any of its properties, assets, income or profits of any character
whether now owned or hereafter acquired if immediately prior to the creation, assumption or
incurring of such Lien, or immediately thereafter, a Default or Event of Default is or would be in
existence, including without limitation, a Default or Event of Default resulting from a violation
of any of the covenants contained in Section 9.1.
(b) The Parent and the Borrower shall not, and shall not permit any other Subsidiary, any
other Controlled Joint Venture Subsidiary or other Loan Party to, enter into, assume or
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otherwise
be bound by any Negative Pledge except for a Negative Pledge contained in (i) an agreement (x)
evidencing Indebtedness which the Parent, the Borrower or such other Subsidiary or Controlled Joint
Venture Subsidiary may create, incur, assume, or permit or suffer to exist under Section 9.3., (y)
which Indebtedness is secured by a Lien permitted to exist under the Loan Documents, and (z) which
prohibits the creation of any other Lien on (A) only the property securing such Indebtedness as of
the date such agreement was entered into or (B) if such property is owned by an Excluded
Subsidiary, the Equity Interests issued by such Excluded
Subsidiary or any Excluded Subsidiary that directly or indirectly owns Equity Interests in
such Excluded Subsidiary; or (ii) an agreement relating to the sale of a Subsidiary or a Joint
Venture Subsidiary or assets pending such sale, provided that in any such case the Negative Pledge
applies only to the Subsidiary or Joint Venture Subsidiary or the assets that are the subject of
such sale.
(c) Except pursuant to Section 9.2, the Parent and the Borrower shall not, and shall not
permit any other Subsidiary, any other Controlled Joint Venture Subsidiary (other than an Excluded
Subsidiary) or other Loan Party to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary or
Joint Venture Subsidiary (other than an Excluded Subsidiary) to: (i) pay dividends or make any
other distribution on any of such Subsidiary’s or Joint Venture Subsidiary’s capital stock or other
equity interests owned by the Parent, the Borrower or any other Subsidiary or Joint Venture
Subsidiary; (ii) pay any Indebtedness owed to the Parent, the Borrower or any other Subsidiary or
Joint Venture Subsidiary; (iii) make loans or advances to the Parent, the Borrower or any other
Subsidiary or Joint Venture Subsidiary; or (iv) transfer any of its property or assets to the
Parent, the Borrower or any other Subsidiary or Joint Venture Subsidiary.
Section 9.7. Merger, Consolidation, Sales of Assets and Other Arrangements.
The Parent and the Borrower shall not, and shall not permit any other Subsidiary, any other
Controlled Joint Venture Subsidiary or other Loan Party to: (i) enter into any transaction of
merger or consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); or (iii) convey, sell, lease, sublease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or substantially all of its business or assets,
whether now owned or hereafter acquired; provided, however, that:
(a) any of the actions described in the immediately preceding clauses (i) through (iii) may be
taken with respect to any Subsidiary, any Controlled Joint Venture Subsidiary or any other Loan
Party (other than the Parent and the Borrower) so long as immediately prior to the taking of such
action, and immediately thereafter and after giving effect thereto, no Default or Event of Default
is or would be in existence; notwithstanding the foregoing, any such Loan Party (other than the
Parent and the Borrower) may enter into a transaction of merger pursuant to which such Loan Party
is not the survivor of such merger only if (i) the Parent shall have given the Agent and the
Lenders at least 10 Business Days’ prior written notice of such merger, such notice to include a
certification to the effect that immediately after and after giving effect to such action, no
Default or Event of Default is or would be in existence; (ii) if the survivor entity is a
Subsidiary or a Controlled Joint Venture Subsidiary, all applicable terms and conditions of Section
7.12. are complied with within 30 days of consummation of such merger; and (iii) such Loan Party
and the survivor entity each takes such other action and delivers such other
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documents,
instruments, opinions and agreements as the Agent may reasonably request consistent with Section
7.11.;
(b) the Parent, the Borrower, the other Subsidiaries, the other Controlled Joint Venture
Subsidiaries and the other Loan Parties may lease and sublease their respective assets, as lessor
or sublessor (as the case may be), in the ordinary course of their business;
(c) the Parent, the Borrower and each other Subsidiary and Controlled Joint Venture Subsidiary
may sell, transfer or dispose of assets among themselves; and
(d) the Parent, the Borrower and each other Subsidiary and Joint Venture Subsidiary may
convey, sell, transfer or dispose of assets not constituting all or substantially all of its
business or assets; provided, however, notwithstanding anything in this Section 9.7. to the
contrary, the Parent and the Borrower shall not, and shall not permit any Subsidiary, Joint Venture
Subsidiary or other Loan Party to, convey, sell, transfer, contribute or otherwise dispose of (each
a “Disposition”) any assets to any Person that is not (or will not be immediately following such
transaction) a Subsidiary (or with respect to a Disposition by a Joint Venture Subsidiary, a
Subsidiary of such Joint Venture Subsidiary), including, without limitation, a Disposition of
assets pursuant to a merger or consolidation, if (x) the aggregate value attributable to such
assets plus the value attributable to any other assets subject to a Disposition that occurred
during the current fiscal quarter and the previous three (3) fiscal quarters (with such value
calculated consistently with the calculation of Total Asset Value, or if such assets are not
included in the calculation of Total Asset Value, then in accordance with GAAP), would exceed 25%
of Total Asset Value as of the commencement or the expiration (whichever is greater) of such four
(4) quarter period (provided that until four (4) full calendar quarters have elapsed from the date
of this Agreement, the limit on Dispositions in this clause (x) of Section 9.7.(d) shall be
measured as follows: for the period from the date of this Agreement until the end of the first
(1st) full calendar quarter thereafter, such test shall be measured based upon the aggregate value
of Dispositions made during such period as compared to Total Asset Value as of the commencement or
the expiration (whichever is greater) of such period; for the period from the date of this
Agreement through the end of the second (2nd) full calendar quarter after the date of this
Agreement, such test shall be measured based upon the aggregate value of Dispositions occurring
during such period as compared to Total Asset Value as of the commencement or the expiration
(whichever is greater) of such period; and with respect to the period from the date of this
Agreement through the end of the third (3rd) full calendar quarter after the date of this
Agreement, such test shall be measured based upon the aggregate value of Dispositions occurring
during such period as compared to Total Asset Value as of the commencement or the expiration
(whichever is greater) of such period), or (y) such conveyance would cause any Default or Event of
Default to occur hereunder. For the purposes hereof, if the Borrower or Parent retains a direct or
indirect Equity Interest in the Person to whom the Disposition was made after such Disposition (for
example, following a Disposition into a Joint Venture Subsidiary), only the pro rata value
attributable to the interest no longer retained by Parent or Borrower shall be counted toward such
25% threshold. The foregoing shall not prohibit a Joint Venture Subsidiary which is not a
Controlled Joint Venture Subsidiary from a Disposition, provided that the Parent’s and the
Borrower’s direct or indirect pro rata interest in the assets subject to such Disposition shall
count toward the 25% threshold above. For the avoidance of doubt, the value attributable to any
assets in any Disposition in connection with any deed-in-lieu
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or foreclosure of the MIP Loan and
the Wachovia Loan, shall not be included in any calculation of Total Asset Value for purposes of
clause (x) of this Section 9.7.(d).
Section 9.8. Fiscal Year.
The Parent shall not change its fiscal year from that in effect as of the Agreement Date.
Section 9.9. Modifications of Organizational Documents.
The Parent and the Borrower shall not, and shall not permit any other Subsidiary, other
Controlled Joint Venture Subsidiary or other Loan Party to, amend, supplement, restate or otherwise
modify its articles or certificate of incorporation, by-laws, operating agreement, declaration of
trust, partnership agreement or other applicable organizational document if such amendment,
supplement, restatement or other modification could reasonably be expected to have a Material
Adverse Effect.
Section 9.10. Transactions with Affiliates.
The Borrower shall not, and shall not permit any of its Subsidiaries, Controlled Joint Venture
Subsidiaries or any other Loan Party to, permit to exist or enter into, any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any service) with any
Affiliate (other than a Guarantor), except (x) transactions in the ordinary course of and pursuant
to the reasonable requirements of the business of the Borrower or any of its Subsidiaries or
Controlled Joint Venture Subsidiaries and upon fair and reasonable terms which are no less
favorable to the Borrower or such Subsidiary or Controlled Joint Venture Subsidiary than would be
obtained in a comparable arm’s length transaction with a Person that is not an Affiliate and (y)
transactions described on Schedule 9.10.
Section 9.11. ERISA Exemptions.
The Parent and the Borrower shall not, and shall not permit any other Subsidiary, Controlled
Joint Venture Subsidiary or any other Loan Party to, permit any of its respective assets to become
or be deemed to be “plan assets” within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
ARTICLE X. Default
Section 10.1. Events of Default.
Each of the following shall constitute an Event of Default, whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of Applicable Law or
pursuant to any judgment or order of any Governmental Authority:
(a) Default in Payment of Principal. The Borrower shall fail to pay when due (whether
upon demand, at maturity, by reason of acceleration or otherwise) the principal of any of the
Loans, or any Reimbursement Obligation.
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(b) Default in Payment of Interest and Other Obligations. The Borrower shall fail to
pay when due (i) any interest on any of the Loans and in the case of this clause (i) only such
failure shall continue for a period of 5 Business Days, or (ii) any of the other payment
Obligations (other than Obligations referred to in Section 10.1.(a) and 10.1(b)(i)) owing by the
Borrower under this Agreement or any other Loan Document, or any other Loan Party shall fail to pay
when due any payment Obligation owing by such other Loan Party under any Loan Document to which it
is a party, and in the case of this clause (ii) only such failure shall continue, with respect to
any Fees, for a period of 10 Business Days, and with respect to any
other Obligations referred to in Section 10.1.(b)(ii) (but not Fees), for a period of 5
Business Days.
(c) Default in Performance. (i) The Parent or the Borrower shall fail to perform or
observe any term, covenant, condition or agreement contained in Section 5.3.(b), Section 8.4.(g) or
in Article IX. or (ii) the Borrower or any other Loan Party shall fail to perform or observe any
term, covenant, condition or agreement contained in this Agreement or any other Loan Document to
which it is a party and not otherwise mentioned in this Section and in the case of this clause (ii)
only such failure shall continue for a period of 30 days after the earlier of (x) the date upon
which a Responsible Officer of the Parent or such other Loan Party obtains knowledge of such
failure or (y) the date upon which the Parent has received written notice of such failure from the
Agent.
(d) Misrepresentations. Any written statement, representation or warranty made or
deemed made by or on behalf of the Parent, the Borrower or any other Loan Party under this
Agreement or under any other Loan Document, or any amendment hereto or thereto, or in any other
writing or statement at any time furnished or made or deemed made by or on behalf of the Parent,
the Borrower or any other Loan Party to the Agent or any Lender, shall at any time prove to have
been incorrect or misleading, in light of the circumstances in which made or deemed made, in any
material respect when furnished or made or deemed made.
(e) Indebtedness Cross-Default; Derivatives Contracts.
(i) The Parent, the Borrower, any other Subsidiary or Controlled Joint Venture
Subsidiary or any other Loan Party shall fail to pay when due and payable, within any
applicable grace or cure period, the principal of, or interest on, any Indebtedness (other
than the Loans and Reimbursement Obligations, Indebtedness in respect of Derivatives
Contracts and Nonrecourse Indebtedness of any Subsidiary or Controlled Joint Venture
Subsidiary that is an Acquired Mezzanine Debt Entity) having an aggregate outstanding
principal amount of $25,000,000 or more (or $150,000,000 or more in the case of Nonrecourse
Indebtedness) (all such Indebtedness being referred to as “Material Indebtedness”); provided
that for the purposes of this Section 10.1.(e)(i), (ii) and (iii), if an event described in
such subsections occurs with respect to the MIP Loan and/or the Wachovia Loan at or at any
time after their respective maturity dates as of the date of this Agreement, and provided
Borrower gives prompt written notice to the Agent of the occurrence of such events and its
election to invoke the provisions of this Section 10.1.(e)(i), then, subject to the terms of
the last sentence of this Section 10.1.(e)(i), (A) neither such event, nor any such event
under the second of the MIP Loan and the Wachovia Loan to experience such event (provided
that the reinstatement of the
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$150,000,000 threshold for Nonrecourse Indebtedness has not
occurred as provided below), shall constitute an Event of Default under this Section
10.1.(e)(i) or count against the threshold limitations contained in such subsections, and
(B) the $150,000,000 threshold set forth above in this Section 10.1.(e)(i) with respect to
Nonrecourse Indebtedness shall be reduced to zero ($0) until such time as the obligations
giving rise to the occurrence of such event are fully cured, performed, forgiven, waived,
compromised, settled or otherwise extinguished (by operation of law or otherwise), including
as a result of foreclosure or deed-in-lieu of foreclosure, and the Borrower has delivered to
the Agent
written notice thereof and electing to irrevocably and permanently reinstate the
$150,000,000 threshold for Nonrecourse Indebtedness for the remainder of the term of this
Agreement. For the avoidance of doubt, the foregoing provisions with respect to the MIP
Loan and/or the Wachovia Loan shall only be applicable one time, such that once the
$150,000,000 threshold for Nonrecourse Indebtedness is reinstated, if an event described in
this Section 10.1.(e)(i), (ii) or (iii) occurs with respect to either the MIP Loan or the
Wachovia Loan, the provisions of this Section 10.1.(e) which provide that such events shall
not be an Event of Default shall be of no force or effect;
(ii) (x) the maturity of any Material Indebtedness shall have been accelerated in
accordance with the provisions of any indenture, contract or instrument evidencing,
providing for the creation of or otherwise concerning such Material Indebtedness or (y) any
Material Indebtedness shall have been required to be prepaid or repurchased prior to the
stated maturity thereof;
(iii) any other event shall have occurred and be continuing which permits any holder or
holders of Material Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person, to accelerate the maturity of any such Material Indebtedness or
require any such Material Indebtedness to be prepaid or repurchased prior to its stated
maturity; or
(iv) as a result of the failure of the Parent, the Borrower, any other Subsidiary, any
other Controlled Joint Venture Subsidiary or any other Loan Party to perform or observe any
term, covenant, condition or agreement contained in any Derivatives Contract, any such
Derivatives Contracts are terminated and the aggregate Derivatives Termination Value of all
such terminated Derivative Contracts owed by the Parent, the Borrower, the other
Subsidiaries, the other Controlled Joint Venture Subsidiaries and other Loan Parties as a
result thereof (net of any cash or Cash Equivalents posted as collateral for such terminated
Derivatives Contracts) is $25,000,000 or more.
(f) Voluntary Bankruptcy Proceeding. The Parent, the Borrower, any other Loan Party
or any Controlled Joint Venture Subsidiary shall: (i) commence a voluntary case under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect); (ii) file a petition seeking to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts; (iii) consent to, or fail to contest in a timely and appropriate manner, any
petition filed against it in an involuntary case under such bankruptcy laws or other Applicable
Laws or consent to any proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner, the
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appointment of,
or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign; (v) admit in writing its inability to pay
its debts as they become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii) take any corporate
or partnership action for the purpose of effecting any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Parent, the Borrower, any other Loan Party or any Controlled Joint
Venture Subsidiary in any court of competent jurisdiction seeking: (i) relief under the
Bankruptcy Code of 1978, as amended, or other federal bankruptcy laws (as now or hereafter in
effect) or under any other Applicable Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such Person, or of all or
any substantial part of the assets, domestic or foreign, of such Person, and such case or
proceeding shall continue undismissed or unstayed for a period of 60 consecutive calendar days, or
an order granting the remedy or other relief requested in such case or proceeding against the
Parent, the Borrower, such Controlled Joint Venture Subsidiary or such other Loan Party (including,
but not limited to, an order for relief under such Bankruptcy Code or such other federal bankruptcy
laws) shall be entered.
(h) Litigation; Enforceability. The Parent, the Borrower or any other Loan Party
shall disavow, revoke or terminate (or attempt to terminate) any Loan Document or shall otherwise
challenge or contest in any action, suit or proceeding in any court or before any Governmental
Authority the validity or enforceability of this Agreement, any Note or any other Loan Document or
this Agreement, any Note, the Guaranty or any other Loan Document shall cease to be in full force
and effect (except as a result of the express terms thereof).
(i) Judgment. A judgment or order for the payment of money or for an injunction shall
be entered against the Parent, the Borrower, any Controlled Joint Venture Subsidiary or any other
Loan Party, by any court or other tribunal and (i) such judgment or order shall continue for a
period of 60 days without being paid, stayed or dismissed through appropriate appellate proceedings
and (ii) either (A) the amount of such judgment or order for which insurance has not been
acknowledged in writing by the applicable insurance carrier (or the amount as to which the insurer
has denied liability) exceeds, individually or together with all other such outstanding judgments
or orders entered against the Parent, the Borrower, such Controlled Joint Venture Subsidiaries and
such other Loan Parties, $10,000,000 or (B) in the case of an injunction or other non-monetary
judgment, such injunction or judgment could reasonably be expected to have a Material Adverse
Effect.
(j) Attachment. A warrant, writ of attachment, execution or similar process shall be
issued against any property of the Parent, the Borrower, any Controlled Joint Venture Subsidiary or
any other Loan Party which exceeds, individually or together with all other such warrants, writs,
executions and processes, $10,000,000 in amount and such warrant, writ, execution or process shall
not be discharged, vacated, stayed or bonded for a period of 30 days; provided, however, that if a
bond has been issued in favor of the claimant or other Person obtaining such warrant, writ,
execution or process, the issuer of such bond shall execute a waiver or subordination agreement in
form and substance satisfactory to the Agent pursuant to which the
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issuer of such bond subordinates
its right of reimbursement, contribution or subrogation to the Obligations and waives or
subordinates any Lien it may have on the assets of any Loan Party.
(k) ERISA. Any member of the ERISA Group shall fail to pay when due an amount or
amounts aggregating in excess of $10,000,000 which it shall have become liable to pay under Title
IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities
in excess of $10,000,000 shall be filed under Title IV of ERISA by any member of the ERISA Group,
any plan administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to
administer, any Plan or Plans having aggregate Unfunded Liabilities in excess of $10,000,000; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any such Plan must be terminated; or there shall occur a complete or partial withdrawal from,
or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein) shall occur under any of
the other Loan Documents.
(m) Change of Control/Change in Management.
(i) Any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a Person will be deemed to have “beneficial ownership” of all securities that such Person
has the right to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 35.0% of the total voting power of
the then outstanding voting stock of the Parent;
(ii) During any period of 12 consecutive months ending after the Agreement Date,
individuals who at the beginning of any such 12-month period constituted the Board of
Directors of the Parent (together with any new directors whose election by such Board or
whose nomination for election by the shareholders of the Parent was approved by a vote of at
least two-thirds of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was previously so
approved but excluding any director whose initial nomination for, or assumption of office
as, a director occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or group other
than a solicitation for the election of one or more directors by or on behalf of the Board
of Directors) cease for any reason to constitute a majority of the Board of Directors of the
Parent then in office; or
(iii) the Parent shall cease to own and control, directly or indirectly, at least 60.0%
of the outstanding Equity Interests in the Borrower; or
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(iv) the Parent or a Subsidiary of the Parent shall cease to be the sole general
partner of the Borrower or shall cease to have the sole and exclusive power to exercise all
management and control over the Borrower.
(n) Failure of Security. The Agent shall cease to have a valid and perfected first
priority Lien in any material portion of the Collateral, in each case, for any reason other than
the failure of the Agent to take any action within its control.
Section 10.2. Remedies Upon Event of Default.
Upon the occurrence of an Event of Default the following provisions shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default specified in Section
10.1.(f) or 10.1.(g), (A)(i) the principal of, and all accrued interest on, the Loans and
the Notes at the time outstanding, (ii) an amount equal to the Stated Amount of all Letters
of Credit outstanding as of the date of the occurrence of such Event of Default for deposit
into the Collateral Account pursuant to Section 10.5. and (iii) all of the other Obligations
(other than obligations in respect of Derivatives Contracts to the extent constituting
Obligations), including, but not limited to, the other amounts owed to the Lenders and the
Agent under this Agreement, the Notes or any of the other Loan Documents shall become
immediately and automatically due and payable without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived by the Borrower and (B) all of the
Revolving Commitments, the obligation of the Lenders to make Revolving Loans, and the
obligation of the Agent to issue Letters of Credit hereunder, shall all immediately and
automatically terminate.
(ii) Optional. If any other Event of Default shall exist, the Agent shall, at
the direction of the Requisite Lenders: (A) declare (1) the principal of, and accrued
interest on, the Loans and the Notes at the time outstanding, (2) an amount equal to the
Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such
other Event of Default for deposit into the Collateral Account pursuant to Section 10.5. and
(3) all of the other Obligations (other than obligations in respect of Derivatives Contracts
to the extent constituting Obligations), including, but not limited to, the other amounts
owed to the Lenders and the Agent under this Agreement, the Notes or any of the other Loan
Documents to be forthwith due and payable, whereupon the same shall immediately become due
and payable without presentment, demand, protest or other notice of any kind, all of which
are expressly waived by the Borrower and (B) terminate the Revolving Commitments, the
obligation of the Lenders to make Revolving Loans hereunder and the obligation of the Agent
to issue Letters of Credit hereunder.
(b) Loan Documents. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise any and all of its rights under any and all of the other Loan
Documents.
(c) Applicable Law. The Requisite Lenders may direct the Agent to, and the Agent if
so directed shall, exercise all other rights and remedies it may have under any Applicable Law.
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(d) Appointment of Receiver. To the extent permitted by Applicable Law, the Agent and
the Lenders shall be entitled to the appointment of a receiver for the assets and properties of the
Parent and its Subsidiaries and Controlled Joint Venture Subsidiaries, without notice of any kind
whatsoever and without regard to the adequacy of any security for the Obligations or the solvency
of any party bound for its payment, to take possession of all or any portion of the business
operations of the Parent and its Subsidiaries and Controlled Joint Venture Subsidiaries and to
exercise such power as the court shall confer upon such receiver.
Section 10.3. Remedies Upon Default.
Upon the occurrence of a Default specified in Section 10.1.(f) or 10.1.(g), the Revolving
Commitments shall immediately and automatically terminate.
Section 10.4. Allocation of Proceeds.
If an Event of Default shall exist and maturity of any of the Obligations has been
accelerated, all payments received by the Agent under any of the Loan Documents, in respect of any
principal of or interest on the Obligations or any other amounts payable by the Borrower hereunder
or thereunder, shall be applied in the following order and priority:
(a) amounts due the Agent in respect of fees and expenses due under Section 12.2.;
(b) amounts due the Lenders in respect of fees and expenses due under Section 12.2., pro rata
in the amount then due each Lender;
(c) payments of interest on all Loans and Reimbursement Obligations, to be applied for the
ratable benefit of the Lenders;
(d) payments of principal of all Loans, Reimbursement Obligations, other Letter of Credit
Liabilities, and all Secured Obligations (as defined in either the Pledge Agreement or the Security
Agreement) constituting indebtedness, liabilities, obligations, covenants and duties of the
Borrower owing to the Agent, any Lender or any Derivatives Contracts Beneficiary of any kind,
nature or description (but excluding any indebtedness, liabilities, obligations, covenants and
duties of the Borrower, Parent or any Subsidiary owing to the Agent, or any Derivatives Contracts
Beneficiary of any kind, nature or description, under or in respect of any Derivatives Contract
entered into by the Borrower or any Subsidiary with any Person that is a Derivatives Contracts
Beneficiary if such Derivatives Contract is not specifically for the hedging of interest rate risk
with respect to the Loans), to be applied for the ratable benefit of the Lenders and the holders of
such Secured Obligations; provided, however, to the extent that any amounts available for
distribution pursuant to this subsection are attributable to the issued but undrawn amount of an
outstanding Letter of Credit, such amounts shall be paid to the Agent for deposit into the
Collateral Account;
(e) payments owing to the Agent or any Derivatives Contracts Beneficiary of any kind, nature
or description, under or in respect of any Derivatives Contract entered into by the Borrower or any
Subsidiary with any Person that is a Derivatives Contract Beneficiary which Derivatives Contract is
not specifically for the hedging of interest rate risk with respect to the Loans, to be applied for
the ratable benefit of the Lenders and the holders of such obligations;
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(f) amounts due the Agent and the Lenders pursuant to Sections 11.7. and 12.9.;
(g) payment of all other Obligations and other amounts due and owing by the Borrower and the
other Loan Parties under any of the Loan Documents, if any, to be applied for the ratable benefit
of the Lenders; and
(h) any amount remaining after application as provided above, shall be paid to the Borrower or
whomever else may be legally entitled thereto.
For purposes of applying payments received in accordance with Section 10.4. or any other provision
of the Loan Documents, the Agent shall be entitled to rely upon the Derivatives Contracts
Beneficiaries for a determination (which each Derivatives Contracts Beneficiary agrees (or shall
agree) to provide upon request of the Agent) of the outstanding obligations owed to such
Derivatives Contracts Beneficiary. Unless it has actual knowledge (including by way of written
notice from such Derivatives Contracts Beneficiary) to the contrary, the Agent, in acting
hereunder, shall be entitled to assume that no obligations are outstanding to any Derivatives
Contracts Beneficiary.
Section 10.5. Collateral Account.
(a) As collateral security for the prompt payment in full when due of all Letter of Credit
Liabilities and the other Obligations, the Borrower hereby pledges and grants to the Agent, for the
ratable benefit of the Agent and the Lenders as provided herein, a security interest in all of its
right, title and interest in and to the Collateral Account and the balances from time to time in
the Collateral Account (including the investments and reinvestments therein provided for below).
The balances from time to time in the Collateral Account shall not constitute payment of any Letter
of Credit Liabilities until applied by the Agent as provided herein. Anything in this Agreement to
the contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal
only as provided in this Section.
(b) Amounts on deposit in the Collateral Account shall be invested and reinvested by the Agent
in such Cash Equivalents as the Agent shall determine in its sole discretion. All such investments
and reinvestments shall be held in the name of and be under the sole dominion and control of the
Agent for the ratable benefit of the Lenders. The Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Collateral Account and shall be deemed to have
exercised such care if such funds are accorded treatment substantially equivalent to that which the
Agent accords other funds deposited with the Agent, it being understood that the Agent shall not
have any responsibility for taking any necessary steps to preserve rights against any parties with
respect to any funds held in the Collateral Account.
(c) If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of
such Letter of Credit, the Borrower and the Lenders authorize the Agent to use the monies deposited
in the Collateral Account and proceeds thereof to make payment to the beneficiary with respect to
such drawing or the payee with respect to such presentment.
(d) If an Event of Default exists, the Requisite Lenders may, in their discretion, at any time
and from time to time, instruct the Agent to liquidate any such investments and reinvestments and
apply proceeds thereof to the Obligations in accordance with Section 10.4.
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(e) So long as no Default or Event of Default exists, and to the extent amounts on deposit in
or credited to the Collateral Account exceed the aggregate amount of the Letter of Credit
Liabilities then due and owing and the pro rata share of any Letter of Credit Liabilities of any
Defaulting Lender after giving effect to Section 3.11.(c)., the Agent shall, from time to time,
at the request of the Borrower, deliver to the Borrower promptly upon the Agent’s receipt of
such request from the Borrower, and in any event within 3 Business Days of such receipt, against
receipt but without any recourse, warranty or representation whatsoever, such amount of the credit
balances in the Collateral Account as exceeds the aggregate amount of the Letter of Credit
Liabilities at such time.
(f) The Borrower shall pay to the Agent from time to time such reasonable and customary fees
as the Agent charges for similar services in connection with the Agent’s administration of the
Collateral Account and investments and reinvestments of funds therein.
Section 10.6. Performance by Agent.
If the Parent or the Borrower shall fail to perform any covenant, duty or agreement contained
in any of the Loan Documents, the Agent may, after notice to the Parent or the Borrower, as
applicable, perform or attempt to perform such covenant, duty or agreement on behalf of the Parent
or the Borrower, as applicable, after the expiration of any cure or grace periods set forth herein.
In such event, the Borrower shall, at the request of the Agent, promptly pay any amount reasonably
expended by the Agent in such performance or attempted performance to the Agent, together with
interest thereon at the applicable Post-Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither the Agent nor any Lender shall have any liability or
responsibility whatsoever for the performance of any obligation of the Parent or the Borrower under
this Agreement or any other Loan Document.
Section 10.7. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this Agreement and each of the
other Loan Documents shall be cumulative and not exclusive of any rights or remedies which any of
them may otherwise have under Applicable Law. In exercising their respective rights and remedies
the Agent and the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any single or partial
exercise of any power or right preclude its other or further exercise or the exercise of any other
power or right. Notwithstanding the provisions of this Agreement providing that the Loans may be
evidenced by multiple Notes in favor of the Lenders and that certain obligations under Derivatives
Contracts are entitled to certain benefits under the Loan Documents, the Lenders, and by acceptance
of the benefits of the Loan Documents the Derivatives Contracts Beneficiaries, acknowledge and
agree that only the Agent may exercise any remedies under the Loan Documents.
ARTICLE XI. The Agent
Section 11.1. Authorization and Action.
Each Lender hereby appoints and authorizes the Agent to take such action as contractual
representative on such Lender’s behalf and to exercise such powers under this Agreement and
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the
other Loan Documents as are specifically delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan Documents for the
benefit of the Lenders. Each Lender hereby agrees that, except as otherwise set forth herein, any
action taken by the Requisite Lenders in accordance with the provisions of this Agreement or
the Loan Documents, and the exercise by the Requisite Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental thereto, shall be authorized
and binding upon all of the Lenders. Nothing herein shall be construed to deem the Agent a trustee
or fiduciary for any Lender or to impose on the Agent duties or obligations other than those
expressly provided for herein. At the request of a Lender, the Agent will forward to such Lender
copies or, where appropriate, originals of the documents delivered to the Agent pursuant to this
Agreement or the other Loan Documents. The Agent will also furnish to any Lender, upon the request
of such Lender, a copy of any certificate or notice furnished to the Agent by the Parent, the
Borrower, any other Loan Party or any other Affiliate of the Borrower, pursuant to this Agreement
or any other Loan Document not already delivered to such Lender pursuant to the terms of this
Agreement or any such other Loan Document. As to any matters not expressly provided for by the
Loan Documents (including, without limitation, enforcement or collection of any of the
Obligations), the Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Requisite Lenders (or all of the Lenders if
explicitly required under any other provision of this Agreement), and such instructions shall be
binding upon all Lenders and all holders of any of the Obligations; provided, however, that,
notwithstanding anything in this Agreement to the contrary, the Agent shall not be required to take
any action which exposes the Agent to personal liability or which is contrary to this Agreement or
any other Loan Document or Applicable Law. Not in limitation of the foregoing, the Agent shall not
exercise any right or remedy it or the Lenders may have under any Loan Document upon the occurrence
of a Default or an Event of Default unless the Requisite Lenders (or all of the Lenders if
explicitly required under any provision of this Agreement) have so directed the Agent to exercise
such right or remedy.
Section 11.2. Agent’s Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other Loan Documents, neither
the Agent nor any of its directors, officers, agents, employees or counsel shall be liable for any
action taken or omitted to be taken by it or them under or in connection with this Agreement or any
other Loan Document, except for its or their own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final, non-appealable judgment. Without
limiting the generality of the foregoing, the Agent: (a) may treat the payee of any Note as the
holder thereof until the Agent receives written notice of the assignment or transfer thereof signed
by such payee and in form satisfactory to the Agent; (b) may consult with legal counsel (including
its own counsel or counsel for the Parent, the Borrower or any other Loan Party), independent
public accountants and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants
or experts; (c) makes no warranty or representation to any Lender or any other Person and shall not
be responsible to any Lender or any other Person for any statements, warranties or representations
made by any Person in or in connection with this Agreement or any other Loan Document; (d) shall
not have any duty to ascertain or to inquire as
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to the performance or observance of any of the
terms, covenants or conditions of any of this Agreement or any other Loan Document or the
satisfaction of any conditions precedent under this Agreement or any Loan Document on the part of
the Parent, the Borrower or other Persons or inspect the property, books or records of the Parent,
the Borrower or any other Person; (e)
shall not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other Loan Document, any
other instrument or document furnished pursuant thereto or any Collateral covered thereby or the
perfection or priority of any Lien in favor of the Agent on behalf of the Lenders in any such
Collateral; and (f) shall incur no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or other instrument or writing (which
may be by telephone or telecopy) believed by it to be genuine and signed, sent or given by the
proper party or parties. Not in limitation of the foregoing, the Agent shall have no obligation to
the Lenders or to any other Person to assure that the Collateral exists or is owned by any Loan
Party or is cared for, protected or insured or that the Liens granted to the Agent pursuant to the
Security Documents have been properly or sufficiently or lawfully created, perfected, protected or
enforced or are entitled to any particular priority, or to exercise or to continue exercising at
all or in any manner or under any duty of care, disclosure or fidelity any of the rights,
authorities and powers granted or available to the Agent in any of the Loan Documents, it being
understood and agreed that in respect of the Collateral, or any act, omission or event related
thereto, the Agent may act in any manner it may reasonably deem appropriate given the Agent’s own
interest in the Collateral as one of the Lenders and that the Agent shall have no duty or liability
whatsoever to the Lenders in this regard, except for its gross negligence or willful misconduct.
The Lenders hereby authorize the Agent (i) to release any Lien granted to or held by the Agent in
any Collateral as provided in Section 7.13. or 12.10. and (ii) to release a Guarantor from the
Guaranty as provided in Section 7.13. or 12.10. Upon request by the Agent at any time, the Lenders
will confirm in writing the Agent’s authority to release particular types or items of Collateral or
a Guarantor pursuant to such Sections.
Section 11.3. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the occurrence of a Default or
Event of Default unless the Agent has received notice from a Lender, the Parent or the Borrower
referring to this Agreement, describing with reasonable specificity such Default or Event of
Default and stating that such notice is a “notice of default.” If any Lender (excluding the Lender
which is also serving as the Agent) has actual knowledge of any Default or Event of Default, it
shall promptly send to the Agent such a “notice of default.” Further, if the Agent receives such a
“notice of default”, the Agent shall give prompt notice thereof to the Lenders.
Section 11.4. KeyBank as Lender.
KeyBank, as a Lender, shall have the same rights and powers under this Agreement and any other
Loan Document as any other Lender and may exercise the same as though it were not the Agent; and
the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include KeyBank in each
case in its individual capacity. KeyBank and its Affiliates may each accept deposits from,
maintain deposits or credit balances for, invest in, lend money to, act as trustee under indentures
of, serve as financial advisor to, and generally engage in any kind of business with, the Parent,
the Borrower, any other Loan Party or any other Affiliate thereof as if
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it were any other bank and
without any duty to account therefor to the other Lenders. Further, the Agent and any Affiliate
may accept fees and other consideration from the Parent, the Borrower, any other Loan Party or any
other Affiliate of the Borrower for services in connection with this Agreement and otherwise
without having to account for the same to the other Lenders.
The Lenders acknowledge that, pursuant to such activities, KeyBank or its Affiliates may
receive information regarding the Parent, the Borrower, other Loan Parties, other Subsidiaries,
other Joint Venture Subsidiaries and other Affiliates of the Borrower (including information that
may be subject to confidentiality obligations in favor of such Person) and acknowledge that the
Agent shall be under no obligation to provide such information to them.
Section 11.5. Approvals of Lenders.
All communications from the Agent to any Lender requesting such Lender’s determination,
consent, approval or disapproval (a) shall be given in the form of a written notice to such Lender,
(b) shall be accompanied by a description of the matter or issue as to which such determination,
approval, consent or disapproval is requested, or shall advise such Lender where information, if
any, regarding such matter or issue may be inspected, or shall otherwise describe the matter or
issue to be resolved, (c) shall include, if reasonably requested by such Lender and to the extent
not previously provided to such Lender, written materials and, as appropriate, a brief summary of
all oral information provided to the Agent by the Parent in respect of the matter or issue to be
resolved, and (d) shall include the Agent’s recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within 10 Business Days (or
such lesser or greater period as may be specifically required under the Loan Documents) of receipt
of such communication. If a Lender does not so respond to the Agent within such period, the Agent
may issue a second request in writing to such Lender for such determination, consent, approval or
disapproval, which shall include in the heading a notice in capital letters that such request is a
second request and that such Lender’s consent or approval shall be deemed to have been given if no
response is received by the Agent within five (5) Business Days after such second request. Except
as otherwise provided in this Agreement, unless a Lender shall give written notice to the Agent
that it specifically objects to the recommendation or determination of the Agent (together with a
written explanation of the reasons behind such objection) within five (5) Business Days of such
second request, such Lender shall be deemed to have conclusively approved of or consented to such
recommendation or determination.
Section 11.6. Lender Credit Decision, Etc.
Each Lender expressly acknowledges and agrees that neither the Agent nor any of its officers,
directors, employees, agents, counsel, attorneys-in-fact or other Affiliates has made any
representations or warranties as to the financial condition, operations, creditworthiness, solvency
or other information concerning the business or affairs of the Parent, the Borrower, any other Loan
Party, any Subsidiary, any Joint Venture Subsidiary or any other Person to such Lender and that no
act by the Agent hereafter taken, including any review of the affairs of the Parent, the Borrower,
any other Loan Party or any other Subsidiary or Joint Venture Subsidiary, shall be deemed to
constitute any such representation or warranty by the Agent to any Lender. Each Lender
acknowledges that it has made its own credit and legal analysis and decision to enter into this
Agreement and the transactions contemplated hereby, independently and without reliance
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upon the
Agent, any other Lender or counsel to the Agent, or any of their respective officers, directors,
employees and agents, and based on the financial statements of the Parent, the Borrower, the other
Subsidiaries, other Joint Venture Subsidiaries or any other Affiliate thereof, and inquiries of
such Persons, its independent due diligence of the business and affairs of the
Parent, the Borrower, the other Loan Parties, the other Subsidiaries, other Joint Venture
Subsidiaries and other Persons, its review of the Loan Documents, the legal opinions required to be
delivered to it hereunder, the advice of its own counsel and such other documents and information
as it has deemed appropriate. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, any other Lender or counsel to the Agent or any of their
respective officers, directors, employees and agents, and based on such review, advice, documents
and information as it shall deem appropriate at the time, continue to make its own decisions in
taking or not taking action under the Loan Documents. Except for notices, reports and other
documents and information expressly required to be furnished to the Lenders by the Agent under this
Agreement or any of the other Loan Documents, the Agent shall have no duty or responsibility to
provide any Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Parent, the Borrower, any other
Loan Party or any other Affiliate thereof which may come into possession of the Agent, or any of
its officers, directors, employees, agents, attorneys-in-fact or other Affiliates. Each Lender
acknowledges that the Agent’s legal counsel in connection with the transactions contemplated by
this Agreement is only acting as counsel to the Agent and is not acting as counsel to such Lender.
Section 11.7. Indemnification of Agent.
Each Lender agrees to indemnify the Agent (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so) pro rata in accordance with such Lender’s
respective Aggregate Exposure Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, reasonable out-of-pocket costs and expenses,
or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by,
or asserted against the Agent (in its capacity as Agent but not as a Lender) in any way relating to
or arising out of the Loan Documents, any transaction contemplated hereby or thereby or any action
taken or omitted by the Agent under the Loan Documents (collectively, “Indemnifiable Amounts”);
provided, however, that no Lender shall be liable for any portion of such Indemnifiable Amounts to
the extent resulting from the Agent’s gross negligence or willful misconduct as determined by a
court of competent jurisdiction in a final, non-appealable judgment or if the Agent fails to follow
the written direction of the Requisite Lenders (or all of the Lenders if expressly required
hereunder) unless such failure results from the Agent following the advice of counsel to the Agent
(of which advice the Lenders have received notice) that following such written direction would
violate Applicable Law. Without limiting the generality of the foregoing but subject to the
preceding proviso, each Lender agrees to reimburse the Agent (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees of the counsel(s) of the
Agent’s own choosing) incurred by the Agent in connection with the preparation, negotiation,
execution, or enforcement of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, any suit or action brought by the Agent to enforce the terms of
the Loan Documents and/or collect any Obligations, any “lender liability” suit or claim brought
against the
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Agent and/or the Lenders, and any claim or suit brought against the Agent, and/or the
Lenders arising under any Environmental Laws. Such out-of-pocket expenses (including counsel fees)
shall be advanced by the Lenders on the request of the Agent notwithstanding any claim or assertion
that the Agent is not entitled to indemnification hereunder upon receipt of an
undertaking by the Agent that the Agent will reimburse the Lenders if it is actually and
finally determined by a court of competent jurisdiction that the Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the Loans and all
other amounts payable hereunder or under the other Loan Documents and the termination of this
Agreement. If the Borrower shall reimburse the Agent for any Indemnifiable Amount following
payment by any Lender to the Agent in respect of such Indemnifiable Amount pursuant to this
Section, the Agent shall share such reimbursement on a ratable basis with each Lender making any
such payment.
Section 11.8. Successor Agent.
The Agent may resign at any time as Agent under the Loan Documents by giving written notice
thereof to the Lenders and the Borrower. The Agent may be removed as Agent under the Loan
Documents for gross negligence or willful misconduct upon 30-day’s prior written notice by all
Lenders (other than the Lender then acting as Agent) to the Agent and the Borrower. Upon any such
resignation or removal the Requisite Lenders shall have the right to appoint a successor Agent
which appointment shall, provided no Default or Event of Default exists, be subject to the
Borrower’s approval, which approval shall not be unreasonably withheld or delayed (except that the
Borrower shall, in all events, be deemed to have approved each Lender and its Affiliates as a
successor Agent). If no successor Agent shall have been so appointed in accordance with the
immediately preceding sentence, and shall have accepted such appointment, within 30 days after the
resigning Agent’s giving of notice of resignation or the giving of notice of the removal of the
Agent, then the resigning or removed Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a Lender, if any Lender shall be willing to serve, and otherwise shall be a
commercial bank having total combined assets of at least $50,000,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring or
removed Agent, and the retiring or removed Agent shall be discharged from its duties and
obligations under the Loan Documents. Such successor Agent shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or shall
make other arrangements satisfactory to the current Agent, in either case, to assume effectively
the obligations of the current Agent with respect to such Letters of Credit. After any Agent’s
resignation or removal hereunder as Agent, the provisions of this Article XI. shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under
the Loan Documents.
Section 11.9. Titled Agents.
Each of the Titled Agents in each such respective capacity, assumes no responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement or collection of
any of the Loans, or for any duties as an agent hereunder for the Lenders. The titles of the
Titled Agents are solely honorific and imply no fiduciary responsibility on the part of the Titled
Agents to the Agent, the Borrower or any Lender and the use of such titles does not impose on the
Titled
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Agents any duties or obligations greater than those of any other Lender or entitle the
Titled Agents to any rights other than those to which any other Lender is entitled.
ARTICLE XII. Miscellaneous
Section 12.1. Notices.
Unless otherwise provided herein, communications provided for hereunder shall be in writing
and shall be mailed, telecopied or delivered as follows:
If to the Borrower:
Ashford Hospitality Limited Partnership
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx, Chief Legal Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent:
KeyBank National Association
0xx Xxxxx, 000 Xxxxxx Xxxxxx
Mail Stop OH-01-27-0844
Xxxxxxxxx, Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to a Lender:
To such Lender’s address or telecopy number, as applicable, set forth in its
Administrative Details Form;
or, as to each party at such other address as shall be designated by such party in a written notice
to the other parties delivered in compliance with this Section. All such notices and other
communications shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered or sent by overnight courier, when delivered.
Notwithstanding the immediately preceding sentence, all notices or communications to the Agent or
any Lender under Article II. shall be effective only when actually received. Neither the Agent nor
any Lender shall incur any liability to any Loan Party (nor shall the Agent incur any liability to
the Lenders) for acting upon any telephonic notice referred to in this Agreement which the Agent or
such Lender, as the case may be, believes in good faith to have been given by a Person authorized
to deliver such notice or for otherwise acting in good faith hereunder. Failure of a Person
designated to get a copy of a notice to receive such copy shall not affect the validity of notice
properly given to any other Person.
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Section 12.2. Expenses.
The Borrower agrees (a) to pay or reimburse the Agent for all of its reasonable out-of-pocket
costs and expenses incurred in connection with the preparation, negotiation and execution
of, and any amendment, supplement or modification to, any of the Loan Documents (including due
diligence expenses and travel expenses relating to closing), and the consummation of the
transactions contemplated thereby, including the reasonable fees and disbursements of counsel to
the Agent and costs and expenses in connection with the use of IntraLinks, Inc., SyndTrak or other
similar information transmission systems in connection with the Loan Documents, (b) to pay or
reimburse the Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under the Loan Documents, including
the reasonable fees and disbursements of their respective counsel (including the allocated fees and
expenses of in-house counsel) and any payments in indemnification or otherwise payable by the
Lenders to the Agent pursuant to the Loan Documents, (c) to pay, and indemnify and hold harmless
the Agent and the Lenders from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any failure to pay or delay in paying, documentary, stamp,
excise and other similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of any of the Loan Documents, or consummation of any
amendment, supplement or modification of, or any waiver or consent under or in respect of, any Loan
Document and (d) to the extent not already covered by any of the preceding subsections, to pay or
reimburse the Agent and the Lenders for all their costs and expenses incurred in connection with
any bankruptcy or other proceeding of the type described in Section 10.1.(f) or 10.1.(g), including
the reasonable fees and disbursements of counsel to the Agent and any Lender, whether such fees and
expenses are incurred prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding. If the Borrower shall fail to pay any amounts
required to be paid by it pursuant to this Section, the Agent and/or the Lenders may pay such
amounts on behalf of the Borrower and either deem the same to be Loans outstanding hereunder or
otherwise Obligations owing hereunder.
Section 12.3. Setoff.
Subject to Section 3.3. and in addition to any rights now or hereafter granted under
Applicable Law and not by way of limitation of any such rights, the Borrower hereby authorizes the
Agent, each Lender, each Affiliate of the Agent or any Lender, and each Participant, at any time
while an Event of Default exists, without prior notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, but in the case of a Lender, an Affiliate of a Lender or
a Participant subject to receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the Agent, such Lender, any
such Affiliate of the Agent or such Lender, or such Participant, to or for the credit or the
account of the Borrower against and on account of any of the Obligations, irrespective of whether
or not any or all of the Loans and all other Obligations have been declared to be, or have
otherwise become, due and payable as permitted by Section 10.2., and although such obligations
shall be contingent or unmatured; provided that in the event that any Defaulting Lender shall
exercise any such right of setoff, (a) all amounts so set off shall be paid over immediately to the
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Agent for further application in accordance with the provisions of this Agreement and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Agent and the Lenders, and (b) the Defaulting Lender shall
provide promptly to the Agent a statement describing in reasonable detail the Obligations
owing to such Defaulting Lender as to which it exercised such right of setoff.
Section 12.4. Litigation; Jurisdiction; Other Matters; Waivers.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG THE
PARENT, THE BORROWER, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED ON DIFFICULT AND COMPLEX
ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT, THE PARENT AND THE BORROWER
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY
COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS AGREEMENT, THE NOTES, OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF
ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF THE
LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.
(b) EACH OF THE PARENT, THE BORROWER, THE AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL
DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF
MANHATTAN,
NEW YORK,
NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG THE PARENT, THE BORROWER, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE LOANS AND LETTERS OF CREDIT, THE NOTES OR ANY OTHER LOAN DOCUMENT
OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE PARENT, THE BORROWER AND EACH OF THE LENDERS
EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO
PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR
ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE
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HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS AGREEMENT.
Section 12.5. Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Parent nor the Borrower may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of the Agent
and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions of the immediately
following subsection (b), (ii) by way of participation in accordance with the provisions of the
immediately following subsection (d) or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of the immediately following subsection (f) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
the immediately following subsection (d) and, to the extent expressly contemplated hereby, the
Affiliates and the partners, directors, officers, employees, agents and advisors of the Agent and
the Lenders and of their respective Affiliates) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees (an “Assignee”) all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Revolving Commitments and the Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s
Revolving Commitment and the Loans at the time owing to it or in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in the immediately preceding subsection (A), the aggregate
amount of the Revolving Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the applicable Revolving Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than
$10,000,000 in the case of any assignment in respect of a Revolving Commitment, unless each of the
Agent and, so long as no Default or Event of Default shall exist, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed).
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(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loan or the Revolving Commitment assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by clause (i)(B) of this subsection (b) and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed)
shall be required unless (x) a Default or Event of Default shall exist at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund,
provided that the Borrower will be deemed to have consented unless it provides written notice to
Agent and the assigning Lender within ten (10) Business Days (provided that if neither the Agent
nor the assigning Lender has received such consent or written notice within five (5) Business Days
of request, the Agent or the assigning Lender shall have telephoned a senior officer of Borrower or
Parent (including the chairman of the board, chief executive officer, president, chief operating
officer, general counsel, chief financial officer, treasurer, chief accounting officer or any
executive vice president) requesting such consent and provided a separate confirmation of such
second request to Borrower by telecopier, email, hand delivery, overnight courier or registered
mail); and
(B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall
be required for assignments in respect of a Revolving Commitment if such assignment is to a Person
that is not already a Lender with a Revolving Commitment, an Affiliate of such Lender or an
Approved Fund with respect to such Lender.
(iv) Assignment and Acceptance. The parties to each assignment shall execute
and deliver to the Agent an Assignment and Acceptance, together with a processing and
recordation fee of $3,500 for each assignment, and the assignee, if it is not a Lender,
shall deliver to the Agent an Administrative Details Form.
(v) No Assignment to Parent or Borrower. No such assignment shall be made to
the Parent, the Borrower or any of the Parent’s or Borrower’s Affiliates or Subsidiaries or
Joint Venture Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.
Subject to acceptance and recording thereof by the Agent pursuant to the immediately following
subsection (c), from and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 4.4., 12.2. and 12.9. and the other provisions of this
Agreement and the other Loan Documents as provided in Section 12.10. with respect to facts and
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circumstances occurring prior to the effective date of such assignment. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with the immediately following
subsection (d).
(c) Register. The Agent, acting solely for this purpose as an agent of the Borrower,
shall maintain at the Principal Office a copy of each Assignment and Acceptance delivered to it and
a register for the recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and
the Parent, the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Parent, the Borrower and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Parent, the Borrower or the Agent, sell participations to any Person (other than a natural
person or the Parent, the Borrower or any of the Parent’s or the Borrower’s Affiliates or
Subsidiaries or Joint Venture Subsidiaries or any Defaulting Lender or an Affiliate of a Defaulting
Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans owing
to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Parent, the Borrower, the Agent and the Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver of any provision of any Loan Document
described in Section 12.6.(d) that adversely affects such Participant. Subject to the immediately
following subsection (e), the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.12., 4.1., and 4.4. to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section
12.3. as though it were a Lender, provided such Participant agrees to be subject to Section 3.3. as
though it were a Lender. Each Lender that sells a participation shall, acting solely for this
purpose as an agent of the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and stated interest) of each Participant’s interest in
the Loans or other obligations under this Agreement (the “Participant Register”); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Revolving Commitments, Loans, Letters of Credit or its other obligations under any
this Agreement) except to the extent that such disclosure is necessary to establish that such
Revolving Commitment, Loan, Letter of Credit or other obligation is in
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registered form under
Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant
Register shall be conclusive absent manifest error, and such Lender shall treat each person whose
name is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for
maintaining a Participant Register.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 3.12., 4.1., and 4.4. than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 3.12. unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower and the Agent, to comply
with Section 3.12.(c) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank
or similar authority of a country other than the United States of America in which such Lender is
located; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) No Registration. Each Lender agrees that, without the prior written consent of
the Borrower and the Agent, it will not make any assignment hereunder in any manner or under any
circumstances that would require registration or qualification of, or filings in respect of, any
Loan or Note under the Securities Act or any other securities laws of the United States of America
or of any other jurisdiction.
(h) Defaulting Lender Assignment. In connection with any assignment of rights and
obligations of any Defaulting Lender, no such assignment shall be effective unless and until, in
addition to the other conditions thereto set forth herein, the parties to the assignment shall make
such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof
as appropriate (which may be outright payment, purchases by the assignee of participations or
actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata
share of Loans previously requested but not funded by the Defaulting Lender to each of which the
applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all
Loans and participations in Letters of Credit in accordance with its Revolving Commitment
Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under applicable law without
compliance with the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
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(i) Assignments by Derivatives Contracts Beneficiaries. A Derivatives Contracts
Beneficiary may not assign its rights under this Agreement or any of the other Loan Documents
without the consent of Agent and, unless a Default or Event of Default exists, the Borrower
(which consents may be withheld in such Person’s sole discretion), provided that such rights
may be assigned without consent under this Section 12.5.(i) if such assignment is to a Lender or an
Affiliate of a Lender. Notwithstanding the foregoing, nothing in this Section 12.5.(i) shall
override or limit any separate requirement for consent or approval by Borrower of such assignment
set forth in the applicable Derivatives Contracts.
Section 12.6. Amendments.
(a) Except as otherwise expressly provided in this Agreement, any consent or approval required
or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given,
and any term of this Agreement or of any other Loan Document may be amended, and the performance or
observance by the Parent, the Borrower or any other Loan Party or any Subsidiary or Controlled
Joint Venture Subsidiary of any terms of this Agreement or such other Loan Document or the
continuance of any Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the written consent of the
Requisite Lenders (and, in the case of an amendment to any Loan Document, the written consent of
each Loan Party a party thereto).
(b) [Intentionally Omitted.]
(c) [Intentionally Omitted.]
(d) Notwithstanding the foregoing, without the prior written consent of each Lender adversely
affected thereby, no amendment, waiver or consent shall do any of the following:
(i) except pursuant to Section 2.15, increase the Revolving Commitment of any Lender,
increase the aggregate amount of the Revolving Commitments of all Lenders or subject the
Lenders to any additional obligations;
(ii) reduce the principal of, or principal payments due with respect to, or interest
that has accrued or the rates of interest (other than interest at the Post-Default Rate)
that will be charged on the outstanding principal amount of, any Loans or other Obligations;
(iii) reduce the amount of any Fees payable hereunder or postpone any date fixed for
payment thereof;
(iv) modify the definition of the term “Revolving Termination Date” (except as
contemplated under Section 2.12.), or otherwise postpone any date fixed for any payment of
any principal of, or interest on, any Loans or any other Obligations (including the waiver
of any Default or Event of Default as a result of the nonpayment of any such Obligations as
and when due), or extend the expiration date of any Letter of Credit beyond the Revolving
Termination Date;
(v) amend or otherwise modify the provisions of Section 3.2.;
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(vi) modify the definition of the term “Requisite Lenders” or otherwise modify in any
other manner the number or percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision hereof,
including without limitation, any modification of this Section 12.6. if such modification
would have such effect;
(vii) release any Guarantor from its obligations under the Guaranty (except as
otherwise permitted under Section 7.13.(a)) or release any material part of the Collateral
or any Pledgor or Grantor from any Security Document (except as otherwise permitted under
Section 7.13.(a) or (b), as applicable); or
(viii) amend or otherwise modify the provisions of Section 2.14.; or
(ix) increase the number of Interest Periods permitted with respect to Loans under
Section 2.5.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
consent which by its terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders, except that (A)
the Revolving Commitment of any Defaulting Lender may not be increased, the “Revolving Termination
Date” (except as contemplated in Section 2.12.) applicable to such Defaulting Lender’s Revolving
Commitment may not be extended, and the principal due such Defaulting Lender shall not be forgiven,
without the consent of such Lender, and (B) any waiver, amendment or modification requiring the
consent of all Lenders that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender.
(e) No amendment, waiver or consent, unless in writing and signed by the Agent, in such
capacity, in addition to the Lenders required hereinabove to take such action, shall affect the
rights or duties of the Agent under this Agreement or any of the other Loan Documents.
(f) [Intentionally Omitted.]
(g) No waiver shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon and any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose set forth therein. Except as otherwise provided in
Section 11.5., no course of dealing or delay or omission on the part of the Agent or any Lender in
exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Except
as otherwise explicitly provided for herein or in any other Loan Document, no notice to or demand
upon the Parent or the Borrower shall entitle the Parent or the Borrower to any other or further
notice or demand in similar or other circumstances.
Section 12.7. Nonliability of Agent and Lenders.
The relationship between the Borrower and the Lenders and the Agent shall be solely that of
borrower and lender. Neither the Agent nor any Lender shall have any fiduciary responsibilities to
the Parent, the Borrower or any other Loan Party and no provision in this
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Agreement or in any of
the other Loan Documents, and no course of dealing between or among any of the parties hereto,
shall be deemed to create any fiduciary duty owing by the Agent or any
Lender to any Lender, the Parent, the Borrower, any other Subsidiary, any other Joint Venture
Subsidiary or any other Loan Party. Neither the Agent nor any Lender undertakes any responsibility
to the Parent or the Borrower to review or inform the Parent or the Borrower of any matter in
connection with any phase of business or operations of the Parent or the Borrower.
Section 12.8. Confidentiality.
Each of the Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its Affiliates and its
Affiliates’ respective partners, directors, officers, employees, agents, advisors and other
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by, or required to be disclosed to, any nationally
recognized rating agency or regulatory or similar authority (including any self-regulatory
authority, such as the National Association of Insurance Commissioners) having or purporting to
have jurisdiction over it, (c) to the extent required by Applicable Laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies under any Loan Document (or any Derivatives Contract with a Derivatives
Contract Beneficiary or the Agent) or any action or proceeding relating to any Loan Document (or
any such Derivatives Contract) or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this Section, to (i) any
actual or proposed Assignee or Participant, or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Parent, the Borrower or its
Subsidiaries and its respective obligations, (g) subject to each such Person being informed of the
confidential nature of the Information and to their agreement to keep such Information
confidential, to (i) an investor or prospective investor in securities issued by an Approved Fund
that also agrees that Information shall be used solely for the purpose of evaluating an investment
in such securities issued by the Approved Fund, (ii) a trustee, collateral manager, servicer,
backup servicer, noteholder or secured party in securities issued by an Approved Fund in connection
with the administration, servicing and reporting on the assets serving as collateral for securities
issued by an Approved Fund, or (iii) a nationally recognized rating agency that requires access to
information regarding the Loan Parties, the Loans and Loan Documents in connection with ratings
issued in respect of securities issued by an Approved Fund, (h) with the consent of the Borrower,
(i) to Gold Sheets and other similar bank trade publications, such information to consist of deal
terms and other information customarily found in such publications, and (j) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section
actually know by the Agent or such Lender to be a breach of this Section or (y) becomes available
to the Agent, any Lender or any Affiliate of the Agent or any Lender on a nonconfidential basis
from a source other than the Borrower or the Parent. Notwithstanding the foregoing, the Agent and
each Lender may disclose any such confidential information, without notice to the Parent, the
Borrower or any other Loan Party, to Governmental Authorities in connection with any regulatory
examination of the Agent or such Lender or in accordance with the regulatory compliance policy of
the Agent or such Lender. As used in this Section, the term “Information” means all information
received from the Parent, the Borrower, any other Loan Party or any other Subsidiary, any other
Joint Venture Subsidiary
or
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Affiliate relating to any Loan Party or any of their respective
businesses, other than any such information that is available to the Agent or any Lender on a
nonconfidential basis prior to
disclosure by the Parent, the Borrower, any other Loan Party or any other Subsidiary, Joint
Venture Subsidiary or Affiliate, provided that, in the case of any such information received from
the Borrower, any other Loan Party or any other Subsidiary, Joint Venture Subsidiary or Affiliate
after the date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
Section 12.9. Indemnification.
(a) The Borrower shall and hereby agrees to indemnify, defend and hold harmless the Agent,
each of the Lenders, any Affiliate of the Agent or any Lender, and their respective directors,
officers, shareholders, agents, employees and counsel (each referred to herein as an “Indemnified
Party”) from and against any and all of the following (collectively, the “Indemnified Costs”):
losses, costs, claims, damages, liabilities, deficiencies, judgments or reasonable expenses of
every kind and nature (including, without limitation, amounts paid in settlement, court costs and
the reasonable fees and disbursements of counsel incurred in connection with any litigation,
investigation, claim or proceeding or any advice rendered in connection therewith, but excluding
losses, costs, claims, damages, liabilities, deficiencies, judgments or expenses indemnification in
respect of which is specifically covered by Section 3.12. or 4.1. or expressly excluded from the
coverage of such Section 3.12. or 4.1.) incurred by an Indemnified Party in connection with,
arising out of, or by reason of, any suit, cause of action, claim, arbitration, investigation or
settlement, consent decree or other proceeding (the foregoing referred to herein as an “Indemnity
Proceeding”) which is in any way related directly or indirectly to: (i) this Agreement or any other
Loan Document or the transactions contemplated thereby; (ii) the making of any Loans or issuance of
Letters of Credit hereunder; (iii) any actual or proposed use by the Borrower of the proceeds of
the Loans or Letters of Credit; (iv) the Agent’s or any Lender’s entering into this Agreement; (v)
the fact that the Agent and the Lenders have established the credit facility evidenced hereby in
favor of the Borrower; (vi) the fact that the Agent and the Lenders are creditors of the Borrower
and have or are alleged to have information regarding the financial condition, strategic plans or
business operations of the Parent, the Borrower and the other Subsidiaries and Joint Venture
Subsidiaries; (vii) the fact that the Agent and the Lenders are material creditors of the Borrower
and are alleged to influence directly or indirectly the business decisions or affairs of the
Parent, the Borrower and the other Subsidiaries and Joint Venture Subsidiaries or their financial
condition; (viii) the exercise of any right or remedy the Agent or the Lenders may have under this
Agreement or the other Loan Documents; (ix) any civil penalty or fine assessed by the OFAC against,
and all reasonable costs and expenses (including counsel fees and disbursements) incurred in
connection with defense thereof by, the Agent or any Lender as a result of conduct of the Parent,
the Borrower, any other Loan Party or any other Subsidiary or Joint Venture Subsidiary that
violates a sanction enforced by the OFAC; or (x) any violation or non-compliance by the Parent, the
Borrower or any other Subsidiary or Joint Venture Subsidiary of any Applicable Law (including any
Environmental Law) including, but not limited to, any Indemnity Proceeding commenced by (A) the
Internal Revenue Service or state taxing authority or (B) any Governmental Authority or other
Person
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under any Environmental Law, including any Indemnity Proceeding commenced by a Governmental
Authority or other Person
seeking remedial or other action to cause the Parent, the
Borrower or any other Subsidiary or Joint Venture Subsidiary (or any of their respective
properties) (or the Agent and/or the Lenders as successors to the Borrower) to be in compliance
with such Environmental Laws; provided, however, that the Borrower shall not be obligated to
indemnify any Indemnified Party for (A) any acts or omissions of such Indemnified Party in
connection with matters described in this subsection to the extent arising from the gross
negligence or willful misconduct of such Indemnified Party, as determined by a court of competent
jurisdiction in a final, non-appealable judgment or (B) Indemnified Costs to the extent arising
directly out of or resulting directly from claims of one or more Indemnified Parties against
another Indemnified Party.
(b) The Borrower’s indemnification obligations under this Section 12.9. shall apply to all
Indemnity Proceedings arising out of, or related to, the foregoing whether or not an Indemnified
Party is a named party in such Indemnity Proceeding. In this regard, this indemnification shall
cover all Indemnified Costs of any Indemnified Party in connection with any deposition of any
Indemnified Party or compliance with any subpoena (including any subpoena requesting the production
of documents). This indemnification shall, among other things, apply to any Indemnity Proceeding
commenced by other creditors of the Parent, the Borrower or any Subsidiary or Joint Venture
Subsidiary, any shareholder of the Parent, the Borrower or any other Subsidiary or Joint Venture
Subsidiary (whether such shareholder(s) are prosecuting such Indemnity Proceeding in their
individual capacity or derivatively on behalf of the any such Person), any account debtor of the
Parent, the Borrower or any other Subsidiary or Joint Venture Subsidiary or by any Governmental
Authority. If indemnification is to be sought hereunder by an Indemnified Party, then such
Indemnified Party shall notify the Borrower of the commencement of any Indemnity Proceeding;
provided, however, that the failure to so notify the Borrower shall not relieve the Borrower from
any liability that it may have to such Indemnified Party pursuant to this Section 12.9.
(c) This indemnification shall apply to any Indemnity Proceeding arising during the pendency
of any bankruptcy proceeding filed by or against the Parent, the Borrower and/or any other
Subsidiary or Joint Venture Subsidiary.
(d) All out-of-pocket fees and expenses of, and all amounts paid to third-persons by, an
Indemnified Party shall be advanced by the Borrower at the request of such Indemnified Party
notwithstanding any claim or assertion by the Borrower that such Indemnified Party is not entitled
to indemnification hereunder, upon receipt of an undertaking by such Indemnified Party that such
Indemnified Party will reimburse the Borrower if it is actually and finally determined by a court
of competent jurisdiction that such Indemnified Party is not so entitled to indemnification
hereunder.
(e) An Indemnified Party may conduct its own investigation and defense of, and may formulate
its own strategy with respect to, any Indemnity Proceeding covered by this Section and, as provided
above, all Indemnified Costs incurred by such Indemnified Party shall be reimbursed by the
Borrower. No action taken by legal counsel chosen by an Indemnified Party in investigating or
defending against any such Indemnity Proceeding shall vitiate or in any way impair the obligations
and duties of the Borrower hereunder to indemnify and hold harmless
each
102
such Indemnified Party;
provided, however, that if (i) the Borrower is required to indemnify an Indemnified Party pursuant
hereto and (ii) the Borrower has provided evidence reasonably
satisfactory to such Indemnified Party that the Borrower has the financial wherewithal to
reimburse such Indemnified Party for any amount paid by such Indemnified Party with respect to such
Indemnity Proceeding, such Indemnified Party shall not settle or compromise any such Indemnity
Proceeding without the prior written consent of the Borrower (which consent shall not be
unreasonably withheld or delayed). Notwithstanding the foregoing, an Indemnified Party may settle
or compromise any such Indemnity Proceeding without the prior written consent of the Borrower where
(x) no monetary relief is sought against such Indemnified Party in such Indemnity Proceeding or (y)
there is an allegation of a violation of law by such Indemnified Party.
(f) If and to the extent that the obligations of the Borrower under this Section are
unenforceable for any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under Applicable Law.
(g) The Borrower’s obligations under this Section shall survive any termination of this
Agreement and the other Loan Documents and the payment in full in cash of the Obligations, and are
in addition to, and not in substitution of, any other of their obligations set forth in this
Agreement or any other Loan Document to which it is a party.
(h) Notwithstanding anything to the contrary in this Section 12.9., the Borrower shall not be
required to indemnify the Indemnified Parties for more than one counsel, who shall be chosen by the
Agent, in a particular jurisdiction in respect of a particular matter unless the counsel chosen by
the Agent shall have advised in writing that a conflict of interest between or among the
Indemnified Parties exists.
Section 12.10. Termination; Survival.
(a) At such time as (a) all of the Revolving Commitments have been terminated, (b) all Letters
of Credit have terminated or expired, (c) none of the Lenders is obligated any longer under this
Agreement to make any Loans and (d) all Obligations (other than obligations which survive as
provided in the following sentence) have been paid and satisfied in full, this Agreement shall
terminate and upon the request of the Borrower, the Agent shall (without notice to, or vote or
consent of, any Lender) take such actions as shall be required to release its security interest in
all Collateral, and to release all guarantee obligations under any Loan Document. Any such release
of guarantee obligations shall be subject to the provision of Section 9 of the Guaranty providing
for automatic reinstatement as provided therein. The indemnities to which the Agent and the
Lenders are entitled under the provisions of Sections 3.12., 4.1., 4.4., 11.7., 12.2. and 12.9. and
any other provision of this Agreement and the other Loan Documents, and the provisions of Section
12.4., shall continue in full force and effect and shall protect the Agent and the Lenders (i)
notwithstanding any termination of this Agreement, or of the other Loan Documents, against events
arising after such termination as well as before and (ii) at all times after any such party ceases
to be a party to this Agreement with respect to all matters and events existing on or prior to the
date such party ceased to be a party to this Agreement.
103
(b) At such time as any Collateral is conveyed, sold, transferred or otherwise disposed of as
permitted by this
Credit Agreement, upon the request of the Borrower, the Agent shall (without
notice to, or vote or consent of, any Lender) take such actions as shall be required
to release its security interest in such Collateral, so long as (i) no Default or Event of
Default shall then be in existence or would occur as a result of such release and (ii) the Agent
shall have received such written request at least 7 Business Days prior to the requested date of
release.
Section 12.11. Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the remaining provisions
or affecting the validity or enforceability of such provision in any other jurisdiction.
Section 12.12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 12.13. Patriot Act.
The Lenders and the Agent each hereby notifies the Parent and the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)), it is required to obtain, verify and record information that identifies the Parent, the
Borrower and the other Loan Parties, which information includes the name and address of the Parent,
the Borrower and the other Loan Parties and other information that will allow such Lender or the
Agent, as applicable, to identify the Parent, the Borrower and the other Loan Parties in accordance
with such Act.
Section 12.14. Counterparts.
This Agreement and any amendments, waivers, consents or supplements may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed an original, but all of which counterparts together shall
constitute but one and the same instrument.
Section 12.15. Obligations with Respect to Loan Parties.
The obligations of the Borrower to direct or prohibit the taking of certain actions by the
other Loan Parties as specified herein shall be absolute and not subject to any defense the
Borrower may have that the Borrower does not control such Loan Parties.
Section 12.16. Limitation of Liability.
Neither the Agent nor any Lender, nor any Affiliate, officer, director, employee, attorney, or
agent of the Agent or any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases, and agrees not to xxx any of them upon, any claim for any special,
104
indirect,
incidental, or consequential damages suffered or incurred by the Borrower in connection with,
arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any
of the transactions contemplated by this Agreement or any of the other Loan
Documents. The Borrower hereby waives, releases, and agrees not to xxx the Agent or any
Lender or any of the Agent’s or any Lender’s Affiliates, officers, directors, employees, attorneys,
or agents for punitive damages in respect of any claim in connection with, arising out of, or in
any way related to, this Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Agreement or financed hereby. No Indemnified Party shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the transactions contemplated
hereby or thereby except to the extent attributable to the gross negligence of such Indemnified
Party as determined by a court of competent jurisdiction in a final, non-appealable judgment.
Section 12.17. Entire Agreement.
This Agreement, the Notes, and the other Loan Documents referred to herein embody the final,
entire agreement among the parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the subject matter hereof
and thereof and may not be contradicted or varied by evidence of prior, contemporaneous, or
subsequent oral agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto.
Section 12.18. Construction.
The Agent, each Lender, the Parent and the Borrower acknowledge that each of them has had the
benefit of legal counsel of its own choice and has been afforded an opportunity to review this
Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other
Loan Documents shall be construed as if jointly drafted by the Agent, each Lender, the Parent and
the Borrower.
[Signatures on Following Pages]
105
IN WITNESS WHEREOF, the parties hereto have caused this
Credit Agreement to be executed by
their authorized officers all as of the day and year first above written.
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ASHFORD HOSPITALITY LIMITED PARTNERSHIP |
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By: |
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Ashford OP General Partner LLC, its general partner |
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By: |
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/s/ Xxxxx Xxxxxx |
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Name:
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Xxxxx Xxxxxx |
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Title:
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Vice President |
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ASHFORD HOSPITALITY TRUST, INC. |
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By: |
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/s/ Xxxxx Xxxxxx |
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Name: |
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Xxxxx Xxxxxx |
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Title: |
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Chief Operating Officer and General Counsel |
[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Ashford Hospitality Limited Partnership]
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KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender |
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By: |
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/s/ Xxxxxxx X. Xxxxx |
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Name: |
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Xxxxxxx X. Xxxxx |
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Title: |
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Vice President |
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[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Ashford Hospitality Limited Partnership]
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender |
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By: |
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/s/ Xxxxxxx Xxxxxxxxxxx |
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Name: |
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Xxxxxxx Xxxxxxxxxxx |
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Title: |
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Director |
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By: |
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/s/ Xxxxx Xxxxxx |
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Name: |
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Xxxxx Xxxxxx |
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Title: |
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Associate |
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[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Ashford Hospitality Limited Partnership]
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UBS LOAN FINANCE LLC, as a Lender |
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By: |
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/s/ Xxxx X. Xxxx |
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Name: |
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Xxxx X. Xxxx |
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Title: |
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Associate Director |
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By: |
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/s/ Xxxx X. Xxxxx |
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Name: |
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Xxxx X. Xxxxx |
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Title: |
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Associate Director |
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[Signatures Continued on Next Page]
[Signature Page to Credit Agreement with Ashford Hospitality Limited Partnership]
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XXXXXX XXXXXXX BANK, N.A., as a Lender |
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By: |
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/s/ Xxxxxxxx Xxxxxx |
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized Signatory |
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SCHEDULE I
Revolving Commitments
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Lender |
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Revolving Commitment |
KeyBank National Association |
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$ |
35,000,000 |
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Credit Suisse AG, Cayman Islands Branch |
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$ |
25,000,000 |
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Xxxxxx Xxxxxxx Bank, N.A. |
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$ |
25,000,000 |
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UBS Loan Finance LLC |
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$ |
20,000,000 |
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Total |
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$ |
105,000,000 |
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Schedule 1-1
Schedule 1.1(A)
RESERVED
Schedule 1.1(A)-1
Schedule 1.1(B)
Grantors
Borrower
Parent
FF&E Accounts
None
Mortgage Receivables:
Ashford Hospitality Finance LP
Schedule 1.1(C)
Loan Parties
Loan Parties
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc.
Xxxxxxx 0000 XX LLC
Ashford Credit Holding LLC
Ashford HHC III LLC
Ashford Hospitality Finance General Partner LLC
Ashford Hospitality Finance XX
Xxxxxxx Hospitality Servicing LLC
Ashford IHC LLC
Ashford Mezz Borrower LLC
Ashford OP General Partner LLC
Ashford OP Limited Partner LLC
Ashford TRS Corporation
Ashford TRS VI Corporation
Ashford TRS WQ LLC
Ashford WQ Hotel GP LLC
Ashford WQ Hotel XX
Xxxxxxx WQ Licensee LLC
Bucks County Member LLC
Commack
New York Hotel Limited Partnership
Coral Gables Florida Hotel Limited Partnership
FL/NY GP LLC
Hyannis Massachusetts Hotel Limited Partnership
RFS SPE 2000 LLC
South Yarmouth Massachusetts Hotel Limited Partnership
Westbury New York Hotel Limited Partnership
Ashford Capital Advisors LLC
Ashford Investment Management XX
Xxxxxxx Investment Management GP LLC
Ashford TRS Investment Management XX
Xxxxxxx TRS Investment Management GP LLC
Schedule 1.1(D)
Pledgors
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Pledgor |
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Pledged Interests |
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Pledgee |
Ashford Hospitality Trust, Inc.
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100% member interest
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Ashford OP Limited Partner LLC |
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Ashford Hospitality Trust, Inc.
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100% member interest
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Ashford OP General Partner LLC |
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Ashford Hospitality Limited Partnership
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99.99% LP interest
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Ashford Hospitality Finance XX |
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Xxxxxxx Hospitality Limited Partnership
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100% member interest
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Ashford Hospitality Finance General Partner LLC |
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Ashford Hospitality Limited Partnership
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100% member interest
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Ashford Mezz Borrower LLC |
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Ashford Hospitality Limited Partnership
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100% stock interest
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Ashford TRS Corporation |
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Ashford Hospitality Limited Partnership
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100% member interest
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FL/NY GP LLC |
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Ashford Hospitality Limited Partnership
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98% LP interest
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Commack New York Hotel Limited Partnership |
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Ashford Hospitality Limited Partnership
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98% LP interest
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Westbury New York Hotel Limited Partnership |
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Ashford Hospitality Limited Partnership
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100% member interest
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Ashford Credit Holding LLC |
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Ashford Hospitality Limited Partnership
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100% member interest
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Ashford HHC III LLC |
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Ashford Hospitality Limited Partnership
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74.9% LP interest
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Ashford HHC Partners III XX |
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Xxxxxxx Hospitality Limited Partnership
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100% member interest
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Ashford WQ Hotel GP LLC |
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Ashford Hospitality Limited Partnership
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99.9% LP interest
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Ashford WQ Hotel XX |
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Xxxxxxx Hospitality Limited Partnership
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100% member interest
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Ashford IHC LLC |
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Ashford Hospitality Limited Partnership
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Approx. 80.6% LP interest
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Ashford IHC Partners XX |
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Xxxxxxx 0000 XX LLC
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1% GP interest
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Hyannis Massachusetts Hotel Limited Partnership |
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Xxxxxxx 0000 XX LLC
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1% GP interest
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Coral Gables Florida Hotel Limited Partnership |
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Xxxxxxx 0000 XX LLC
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1% GP interest
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South Yarmouth Massachusetts Hotel Limited Partnership |
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Ashford Credit Holding LLC
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98% LP interest
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Hyannis Massachusetts Hotel Limited Partnership |
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Ashford Credit Holding LLC
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98% LP interest
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Coral Gables Florida Hotel Limited Partnership |
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Ashford Credit Holding LLC
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98% LP interest
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South Yarmouth Massachusetts Hotel Limited Partnership |
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Ashford Credit Holding LLC
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100% member interest
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Xxxxxxx 0000 XX LLC |
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Ashford HHC III LLC
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0.1% GP interest
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Ashford HHC Partners III XX |
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Xxxxxxx Hospitality Finance General
Partner LLC
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0.01% GP interest
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Ashford Hospitality Finance XX |
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Xxxxxxx IHC LLC
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0.1% GP interest
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Ashford IHC Partners XX |
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Xxxxxxx Mezz Borrower LLC
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100% member interest
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Bucks County Member LLC |
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Ashford OP General Partner LLC
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GP interest
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Ashford Hospitality Limited Partnership |
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Pledgor |
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Pledged Interests |
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Pledgee |
Ashford OP Limited Partner LLC
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LP interest
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Ashford Hospitality Limited Partnership |
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Ashford TRS Corporation
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1% LP interest
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Commack New York Hotel Limited Partnership |
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Ashford TRS Corporation
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1% LP interest
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Westbury New York Hotel Limited Partnership |
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Ashford TRS Corporation
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100% member interest
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Austin Embassy Beverage Inc. |
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Ashford TRS Corporation
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1% LP interest
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Hyannis Massachusetts Hotel Limited Partnership |
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Ashford TRS Corporation
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1% LP interest
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Coral Gables Florida Hotel Limited Partnership |
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Ashford TRS Corporation
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1% LP interest
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South Yarmouth Massachusetts Hotel Limited Partnership |
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Ashford TRS Corporation
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100% member interest
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Ashford TRS WQ LLC |
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Ashford TRS Corporation
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100% member interest
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Ashford WQ Licensee LLC |
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Ashford TRS Corporation
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100% stock interest
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Ashford TRS VI Corporation |
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FL/NY GP LLC
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1% GP interest
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Commack New York Hotel Limited Partnership |
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FL/NY GP LLC
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1% GP interest
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Westbury New York Hotel Limited Partnership |
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Ashford Hospitality Finance LP
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100% member interest
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Ashford Hospitality Servicing LLC |
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Ashford WQ Hotel GP LLC
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0.1% GP interest
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Ashford WQ Hotel XX |
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Xxxxxxx TRS VI Corporation
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100% member interest
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RFS SPE 2000 LLC |
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Ashford Hospitality Limited Partnership
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100% member interest
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Ashford Capital Advisors LLC |
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Ashford Hospitality Limited Partnership
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99.9% LP interest
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Ashford Investment Management XX |
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Xxxxxxx Investment Management GP LLC
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0.1% GP interest
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Ashford Investment Management XX |
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Xxxxxxx Hospitality Limited Partnership
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100% member interest
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Ashford Investment Management GP LLC |
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Ashford TRS Corporation
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100% member interest
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Ashford TRS Investment Management GP LLC |
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Ashford TRS Corporation
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99.9% LP interest
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Ashford TRS Investment Management XX |
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Xxxxxxx TRS Investment Management GP
LLC
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0.1% GP interest
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Ashford TRS Investment Management LP |
Schedule 6.1(b)
Ashford OP = Ashford Hospitality Limited Partnership
Non-Material Subsidiary = a Subsidiary or Joint Venture Subsidiary that is neither an Excluded
Subsidiary nor a Material Subsidiary (and has less than $10,000 of assets)
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Jurisdiction of |
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Subsidiary |
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Equity % of |
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Nature of |
Subsidiary |
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Organization |
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Designation |
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Equity Interests Owned By |
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Owner |
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Equity |
AH Hotel GP, LLC |
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DELAWARE |
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Non-Material Subsidiary |
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Ashford HHC Partners, LP |
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100 |
% |
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Member |
AH Hotel Partners, LP |
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DELAWARE |
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Non-Material Subsidiary |
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AH Hotel GP, LLC |
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0.5 |
% |
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XX |
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Xxxxxxx HHC Partners LP |
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99.5 |
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LP |
AH Tenant Corporation |
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DELAWARE |
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Excluded Subsidiary |
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Ashford HHC Partners LP |
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100 |
% |
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Stock |
APHM — ND, L.P. |
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TEXAS |
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Non-Material Subsidiary |
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APHM North Dallas — GP, LLC |
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0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx LMND LLC |
|
|
99.9 |
% |
|
LP |
APHM North Dallas — GP, LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford LMND LLC |
|
|
100 |
% |
|
Member |
Xxxxxxx 0000 XX LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Credit Holding LLC |
|
|
100 |
% |
|
Member |
Annapolis Hotel GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Annapolis Maryland Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Annapolis Hotel GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99 |
% |
|
XX |
Xxxxxxx Alpharetta Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner IV LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Anaheim GP LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Anaheim LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Anaheim GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Anchorage GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Anchorage LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Anchorage GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Atlanta Buckhead LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire V GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Atlantic Beach LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Atlantic Perimeter LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz II LLC |
|
|
99.5 |
% |
|
LP |
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Austin LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Basking Ridge LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire I GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Birmingham LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz II LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Bloomington LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Bridgewater Hotel Partnership, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VI GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Bucks County LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Bucks County Member LLC |
|
|
100 |
% |
|
Member |
Ashford Buena Vista LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
LP |
Xxxxxxx Xxxxxx I LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Xxxxxx XX LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx BWI Airport LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Canada Trust |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Sapphire Canada LLC |
|
|
100 |
% |
|
Beneficiary |
Ashford Capital Advisors LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Limited Partnership |
|
|
100 |
% |
|
Member |
Ashford Centerville Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner III LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
LP |
Xxxxxxx Xxxxxxxxx Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Chicago O’Xxxx XX LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Chicago O’Xxxx XX |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Chicago O’Xxxx XX LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx CM GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
CM Hotel Partners, LP |
|
|
100 |
% |
|
Member |
Xxxxxxx XX Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Xxxxxxx XX GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
CM Hotel Partners, LP |
|
|
99.5 |
% |
|
LP |
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Columbus LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Coral Gables LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Credit Holding LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxxxxxx City Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner II LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
LP |
Xxxxxxx Xxxxxxx City GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Crystal City Hotel, LP |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxxxxxx City Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Xxxxxxx Xxxxxxx City GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
CHH Crystal City Hotel, LP |
|
|
99.5 |
% |
|
LP |
Xxxxxxx Xxxxxxx Gateway GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxxxxxx Gateway LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
99.9 |
% |
|
LP |
|
|
|
|
|
|
Xxxxxxx Xxxxxxx Gateway GP LLC |
|
|
0.1 |
% |
|
XX |
Xxxxxxx Dallas LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Dearborn GP LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford Dulles LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Durham I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Commack New York Hotel Limited Partnership |
|
|
100 |
% |
|
Member |
Ashford Durham II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Westbury New York Hotel Limited Partnership |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxxxxx LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire V GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Evansville I LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Evansville III LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Falls Church Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner IV LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Flagstaff LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VI GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Ft. Lauderdale Weston I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Hyannis Massachusetts Hotel Limited Partnership |
|
|
100 |
% |
|
Member |
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Ft. Lauderdale Xxxxxx XX LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Coral Gables Florida Hotel Limited Partnership |
|
|
100 |
% |
|
Member |
Ashford Ft. Lauderdale Weston III LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
South Yarmouth Massachusetts Hotel Limited Partnership |
|
|
100 |
% |
|
Member |
Ashford Gaithersburg Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner III LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Gateway TRS Corporation |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Ashford GCH Beverage, Inc. |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Ashford Xxxxxxxxx XX |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx HHC LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford HHC II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford HHC III LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford HHC Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx HHC Partners II LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC II LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx HHC Partners III LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC III LLC |
|
|
0.1 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford OP |
|
|
74.9 |
% |
|
XX |
Xxxxxxx HI Beverage, Inc. |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Ashford Holtsville LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Hospitality Finance Albuquerque General Partner LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Hospitality Finance Albuquerque LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Hospitality Finance Albuquerque General Partner LLC |
|
|
0.01 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.99 |
% |
|
XX |
Xxxxxxx Hospitality Finance California General Partner LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Hospitality Finance General Partner LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Hospitality Finance La Jolla LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Hospitality Finance California General Partner LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.99 |
% |
|
LP |
4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Hospitality Finance LP |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Finance General Partner LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.99 |
% |
|
XX |
Xxxxxxx Hospitality Limited Partnership |
|
DELAWARE |
|
Borrower |
|
Ashford OP General Partner LLC |
|
|
0 |
% |
|
GP |
|
|
|
|
Material Subsidiary |
|
Ashford OP Limited Partner LLC |
|
Approx 80.6% |
|
XX |
Xxxxxxx Hospitality Servicing LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Finance LP |
|
|
100 |
% |
|
Member |
Ashford Hospitality Trust, Inc. |
|
MARYLAND |
|
Parent |
|
Public Company |
|
|
N/A |
|
|
N/A |
|
|
|
|
Material Subsidiary |
|
|
|
|
|
|
|
|
Ashford IHC LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford IHC Partners, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford IHC LLC |
|
|
0.1 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford OP |
|
|
84.9 |
% |
|
XX |
Xxxxxxx Investment Management GP LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Limited Partnership |
|
|
100 |
% |
|
Member |
Ashford Investment Management LP |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Investment Management GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Hospitality Limited Partnership |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Irvine Spectrum Foothill Ranch Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner IV LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Jacksonville I LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Jacksonville II LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Jacksonville III GP LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
RFS SPE 2000 LLC |
|
|
100 |
% |
|
Member |
Ashford Jacksonville III LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Jacksonville III GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
RFS SPE 2000 LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Jacksonville IV GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
RFS SPE 2000 LLC |
|
|
100 |
% |
|
Member |
Ashford Jacksonville IV LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Jacksonville IV GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
RFS SPE 2000 LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Kansas City LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz II LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Kennesaw I LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Kennesaw II LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
LP |
5
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Las Vegas LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool II GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Laundry LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Lawrenceville LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
LP |
Xxxxxxx Xxx Vista GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Xxx Vista Hotel, LP |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxx Vista Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Xxxxxxx Xxx Vista GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
CHH Xxx Vista Hotel, LP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx LLB C-Hotel Management, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire V GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx LLB SHS Management, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire V GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx LLB F-Inn Management, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire V GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx LMND LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Hospitality Finance LP |
|
|
100 |
% |
|
Member |
Ashford Louisville LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx XX Xxxxxx Center LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Manhattan Beach LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Market Center LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VI GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Mezz Borrower LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Minneapolis Airport GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Minneapolis Airport LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Minneapolis Airport GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
LP |
Xxxxxxx Xxxx Mesa San Diego Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner IV LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Mobile LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx MV San Diego GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Xxxxxxx XX San Diego LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Xxxxxxx XX San Diego GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Newark LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire I GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Oakland LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire I GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx OP General Partner LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Trust, Inc. |
|
|
100 |
% |
|
Member |
Ashford OP Limited Partner LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Hospitality Trust, Inc. |
|
|
100 |
% |
|
Member |
Xxxxxxx Xxxxxxx Sea World Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Overland Park Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx PH GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PH Hotel Partners, LP |
|
|
100 |
% |
|
Member |
Ashford PH Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford PH GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
PH Hotel Partners, LP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Philadelphia Annex, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
89 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
Ashford Philly GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Philly LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Philly GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Phoenix Airport LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Plano-C LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire I GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Plano-M LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VII GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Plano-R LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Plymouth Meeting LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Pool I GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Mezz Borrower LLC |
|
|
100 |
% |
|
Member |
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Pool II GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Mezz Borrower LLC |
|
|
100 |
% |
|
Member |
Ashford Properties General Partner LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Properties General Partner Sub I, LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Properties General Partner LLC |
|
|
100 |
% |
|
Member |
Ashford Raleigh Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Richmond LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
LP |
Xxxxxxx Xxxx Palm Desert I Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Salt Lake Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Senior General Partner I LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx San Francisco GP LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford San Francisco LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford San Francisco GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx San Xxxxxxxxx XX LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire III GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx San Xxxx LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire II GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Santa Xxxxx GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Santa Xxxxx Hotel, LP |
|
|
100 |
% |
|
Member |
Ashford Santa Xxxxx Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Santa Xxxxx GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
|
|
CHH Santa Xxxxx Hotel, LP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Santa Fe LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz I LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Sapphire I GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire II GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire III GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire V GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire VI GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire VII GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire Acquisition LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford Sapphire GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Senior Mezz I LLC |
|
|
100 |
% |
|
Member |
Ashford Sapphire Junior Holder I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Sapphire Xxxxxx Xxxxxx XX LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford Sapphire Junior Mezz I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Junior Holder I LLC |
|
|
100 |
% |
|
Member |
Ashford Sapphire Junior Mezz II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Xxxxxx Xxxxxx XX LLC |
|
|
100 |
% |
|
Member |
Ashford Sapphire Senior Mezz I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Junior Mezz I LLC |
|
|
100 |
% |
|
Member |
Ashford Sapphire Senior Mezz II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Junior Mezz II LLC |
|
|
100 |
% |
|
Member |
Ashford Scottsdale LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire I GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Seattle Downtown LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire III GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Seattle Waterfront LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VII GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Senior General Partner LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Mezz Borrower LLC |
|
|
100 |
% |
|
Member |
Ashford Senior General Partner I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Credit Holding LLC |
|
|
100 |
% |
|
Member |
Ashford Senior General Partner II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Credit Holding LLC |
|
|
100 |
% |
|
Member |
Ashford Senior General Partner III LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Credit Holding LLC |
|
|
100 |
% |
|
Member |
Ashford Senior General Partner IV LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Credit Holding LLC |
|
|
100 |
% |
|
Member |
Ashford Syracuse LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Tampa International Hotel, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire VII GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.5 |
% |
|
XX |
Xxxxxxx Terre Haute LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Xxxxxx Lakes LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Pool I GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Mezz Borrower LLC |
|
|
99.9 |
% |
|
XX |
Xxxxxxx Torrance LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Sapphire GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Sapphire Senior Mezz II LLC |
|
|
99.5 |
% |
|
XX |
Xxxxxxx TRS Anaheim LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Chicago LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Corporation |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Stock |
Ashford TRS III LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS V LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS VI Corporation |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford TRS Canada Corporation |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Ashford TRS CM LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
AH Tenant corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Crystal City LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Crystal City Tenant Corp. |
|
|
100 |
% |
|
Member |
Ashford TRS Investment Management GP LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Investment Management LP |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford TRS Investment Management GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
99.9 |
% |
|
XX |
Xxxxxxx TRS Jacksonville III LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Stock |
Ashford TRS Jacksonville IV LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Stock |
Ashford TRS Xxx Vista LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Xxx Vista Tenant Corp. |
|
|
100 |
% |
|
Member |
Ashford TRS Lessee LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Ashford TRS Lessee I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Lessee II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Lessee III LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Lessee IV LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Nickel LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS PH LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
AH Tenant Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Pool I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Pool II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Santa Xxxxx LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Santa Xxxxx Tenant Corp. |
|
|
100 |
% |
|
Member |
Ashford TRS San Francisco LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire I LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire II LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire III LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire V LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire VI LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire VII LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford TRS Sapphire GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Sapphire Senior Mezz II LLC |
|
|
100 |
% |
|
Member |
Ashford TRS WQ LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Ashford Walnut Creek GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
Ashford Walnut Creek LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Walnut Creek GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx WQ Hotel GP LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Ashford WQ Hotel LP |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford WQ Hotel GP LLC |
|
|
0.1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.9 |
% |
|
XX |
Xxxxxxx WQ Licensee LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Member |
Austin Embassy Beverage, Inc. |
|
TEXAS |
|
Non-Material Subsidiary |
|
Ashford TRS Corporation |
|
|
100 |
% |
|
Stock |
Bucks County Member LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford Mezz Borrower LLC |
|
|
100 |
% |
|
Member |
CHH III Tenant Parent Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners III LP |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CHH Capital Hotel GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners III LP |
|
|
100 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CHH Capital Hotel Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Capital Hotel GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford HHC Partners III LP |
|
|
99.5 |
% |
|
LP |
CHH Capital Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH III Tenant Parent Corp. |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CHH Crystal City Hotel GP, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
CHH Crystal City Hotel, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Crystal City Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CHH Dallas Parent, LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
CHH Dallas Partnership, LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
CHH Dallas Parent, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CHH Xxx Vista Hotel GP, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
CHH Xxx Vista Hotel, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Xxx Vista Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CHH Rye Town Hotel GP, LLC |
|
DELAWARE |
|
Non material subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
CHH Rye Town Hotel, LP |
|
DELAWARE |
|
Non material subsidiary |
|
CHH Rye Town Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CHH Santa Xxxxx Hotel GP, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
11
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
CHH Santa Xxxxx Hotel, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Santa Xxxxx Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CHH Xxxxxx Xxxxx Hotel GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners III LP |
|
|
100 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CHH Xxxxxx Xxxxx Hotel Partners LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Xxxxxx Xxxxx Hotel GP LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford HHC Partners III LP |
|
|
99.5 |
% |
|
LP |
CHH Xxxxxx Xxxxx Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH III Tenant Parent Corp. |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CHH Tucson Parent, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners II LP |
|
|
100 |
% |
|
Member |
CHH Tucson Partnership, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Tucson Parent, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners II LP |
|
|
99.5 |
% |
|
LP |
CIH Galleria Parent, LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford IHC Partners, LP |
|
|
100 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CM Hotel GP, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners, LP |
|
|
100 |
% |
|
Member |
CM Hotel Partners, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CM Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners LP |
|
|
99.5 |
% |
|
LP |
Commack New York Hotel Limited Partnership |
|
DELAWARE |
|
Material Subsidiary |
|
FL/NY GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
98 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
1 |
% |
|
LP |
Coral Gables Florida Hotel Limited Partnership |
|
DELAWARE |
|
Material Subsidiary |
|
Xxxxxxx 0000 XX LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
98 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
1 |
% |
|
LP |
Crystal City Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Crystal City Hotel, LP |
|
|
100 |
% |
|
Stock |
CY-CIH Manchester Parent, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford IHC Partners, LP |
|
|
100 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
CY Manchester Hotel Partners, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
CY-CIH Manchester Parent, LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford IHC Partners, LP |
|
|
99.5 |
% |
|
LP |
12
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
CY Manchester Tenant Corporation |
|
DELAWARE |
|
Excluded Subsidiary |
|
CY Manchester Hotel Partners, LP |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
Dearborn Hotel Partners, LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Dearborn GP LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
99.5 |
% |
|
XX |
Xxxxxxxx Tenant Corp. |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Dearborn Hotel Partners, LP |
|
|
100 |
% |
|
Stock |
DLC 2 Tree Tenant Corp. |
|
DELAWARE |
|
Non-Material Subsidiary |
|
CHH Dallas Partnership, LP |
|
|
100 |
% |
|
Stock |
EC Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Tucson Partnership, LP |
|
|
100 |
% |
|
Stock |
FL/NY GP LLC |
|
DELAWARE |
|
Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Galleria Hotel Partners, LP |
|
DELAWARE |
|
Non-Material Subsidiary |
|
CIH Galleria Parent, LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford IHC Partners, LP |
|
|
99.5 |
% |
|
LP |
Galleria Tenant Corporation |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Galleria Hotel Partners, LP |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
HH Annapolis Holding LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH Annapolis LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Annapolis Holding LLC |
|
|
100 |
% |
|
Member |
HH Atlanta LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
XX Xxxxxx Hotel Associates, L.P. |
|
DELAWARE |
|
Excluded Subsidiary |
|
HHC Texas GP LLC |
|
|
1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap A LLC |
|
|
99 |
% |
|
LP |
HH Baltimore Holdings LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH Baltimore LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Baltimore Holdings LLC |
|
|
100 |
% |
|
Member |
HH Boston Back Bay LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap C LLC |
|
|
100 |
% |
|
Member |
HH Chicago LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
XX Xxxxxxxxx Hotel Associates, L.P. |
|
DELAWARE |
|
Excluded Subsidiary |
|
HHC Texas GP LLC |
|
|
1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap A LLC |
|
|
99 |
% |
|
LP |
HH Denver LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH DFW Hotel Associates, L.P. |
|
DELAWARE |
|
Excluded Subsidiary |
|
Non-REIT GP LLC |
|
|
1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap G LLC |
|
|
99 |
% |
|
LP |
HH FP Portfolio LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH Gaithersburg Borrower LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Gaithersburg LLC |
|
|
100 |
% |
|
Member |
HH Gaithersburg LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH LC Portfolio LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
13
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
HH Melrose Hotel Associates, L.P. |
|
DELAWARE |
|
Excluded Subsidiary |
|
HHC Texas GP LLC |
|
|
1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap A LLC |
|
|
99 |
% |
|
LP |
HH Mezz Borrower A-2 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower A-3 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower A-3 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower A-4 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower A-4 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland Holding LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower C-2 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower C-3 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower C-3 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower C-4 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower C-4 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland Holding LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower D-2 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower D-3 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower D-3 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower D-4 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower D-4 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland TRS Corporation |
|
|
100 |
% |
|
Member |
HH Mezz Borrower F-2 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower F-3 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower F-3 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower F-4 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower F-4 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland TRS Corporation |
|
|
100 |
% |
|
Member |
HH Mezz Borrower G-2 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower G-3 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower G-3 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower G-4 LLC |
|
|
100 |
% |
|
Member |
HH Mezz Borrower G-4 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland Holding LLC |
|
|
100 |
% |
|
Member |
HH Nashville LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH TRS GP LLC |
|
|
0.1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap C LLC |
|
|
99.9 |
% |
|
LP |
HH Palm Springs LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap G LLC |
|
|
100 |
% |
|
Member |
HH Princeton LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap C LLC |
|
|
100 |
% |
|
Member |
HH San Antonio LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap G LLC |
|
|
100 |
% |
|
Member |
HH Savannah LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HH Swap A LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower A-2 LLC |
|
|
100 |
% |
|
Member |
HH Swap C LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap C-1 LLC |
|
|
100 |
% |
|
Member |
HH Swap C-1 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower C-2 LLC |
|
|
100 |
% |
|
Member |
HH Swap D LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower D-2 LLC |
|
|
100 |
% |
|
Member |
HH Swap F LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap F-1 LLC |
|
|
100 |
% |
|
Member |
HH Swap F-1 LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower F-2 LLC |
|
|
100 |
% |
|
Member |
HH Swap G LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Mezz Borrower G-2 LLC |
|
|
100 |
% |
|
Member |
HH Tampa Westshore LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap G LLC |
|
|
100 |
% |
|
Member |
14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
HH Texas Hotel Associates, L.P. |
|
DELAWARE |
|
Excluded Subsidiary |
|
HHC Texas GP LLC |
|
|
1 |
% |
|
GP |
|
|
|
|
|
|
HH Swap A LLC |
|
|
99 |
% |
|
LP |
HHC Texas GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap A LLC |
|
|
100 |
% |
|
Member |
HHC TRS Atlanta LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Austin LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Baltimore LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Chicago LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS FP Portfolio LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Highland LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS LC Portfolio LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Melrose LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Nashville LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap F LLC |
|
|
100 |
% |
|
Member |
HHC TRS OP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap F LLC |
|
|
100 |
% |
|
Member |
HHC TRS Portsmouth LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Princeton LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap F LLC |
|
|
100 |
% |
|
Member |
HHC TRS Savannah LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
HHC TRS Tampa LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap D LLC |
|
|
100 |
% |
|
Member |
Hyannis Massachusetts Hotel Limited Partnership |
|
DELAWARE |
|
Material Subsidiary |
|
Xxxxxxx 0000 XX LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
98 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
1 |
% |
|
LP |
Key West Florida Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Key West Hotel GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99 |
% |
|
LP |
Key West Hotel GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Xxx Vista Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Xxx Vista Hotel, LP |
|
|
100 |
% |
|
Stock |
Minnetonka Hotel GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Minnetonka Minnesota Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Minnetonka Hotel GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99 |
% |
|
LP |
New Xxxxxxx Hills GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Xxxxxxx Hills Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
New Xxxxxxx Hills GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
15
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
New Clear Lake GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Clear Lake Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
New Clear Lake GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
New Fort Tower I GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Fort Tower I Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
New Fort Tower I GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
New Fort Tower II GP LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Fort Tower II Hotel Limited Partnership |
|
DELAWARE |
|
Non-Material Subsidiary |
|
New Fort Tower II GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
New Houston GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Houston Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
New Houston GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
New Indianapolis Downtown GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
New Indianapolis Downtown Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
New Indianapolis Downtown GP LLC |
|
|
0.2 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99.8 |
% |
|
LP |
Non-REIT GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap G LLC |
|
|
100 |
% |
|
Member |
Palm Beach Florida Hotel and Office Building Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
Palm Beach GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99 |
% |
|
LP |
Palm Beach GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
PH Hotel GP, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford HHC Partners, LP |
|
|
100 |
% |
|
Member |
PH Hotel Partners, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
PH Hotel GP, LLC |
|
|
0.5 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx HHC Partners LP |
|
|
99.5 |
% |
|
LP |
XXX Xxxxxxx Mezz 4 LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford Hospitality Finance LP |
|
|
50 |
% |
|
Member |
XXX Xxxxxxx Subsidiary I, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
XXX Xxxxxxx Venture I, LLC |
|
|
100 |
% |
|
Member |
XXX Xxxxxxx Venture I, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford Hospitality Finance LP |
|
|
25 |
% |
|
GP |
PIM Highland Holding LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
71.74 |
% |
|
Member |
PIM Highland TRS Corporation |
|
DELAWARE |
|
Excluded Subsidiary |
|
PIM Highland Holding LLC |
|
|
100 |
% |
|
Stockholder |
Portsmouth Hotel Associates LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
HH Swap G LLC |
|
|
100 |
% |
|
Member |
XXXXX XX ND, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford TRS Corporation |
|
|
17 |
% |
|
Member |
RFS SPE 2000 LLC |
|
VIRGINIA |
|
Material Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
16
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Subsidiary |
|
|
|
Equity % of |
|
Nature of |
Subsidiary |
|
Organization |
|
Designation |
|
Equity Interests Owned By |
|
Owner |
|
Equity |
RI-CIH Manchester Parent, LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford IHC Partners, LP |
|
|
100 |
% |
|
Member |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
RI Manchester Hotel Partners, LP |
|
DELAWARE |
|
Excluded Subsidiary |
|
RI-CIH Manchester Parent, LLC |
|
|
0.5 |
% |
|
GP |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
Ashford IHC Partners, LP |
|
|
99.5 |
% |
|
LP |
RI Manchester Tenant Corporation |
|
DELAWARE |
|
Excluded Subsidiary |
|
RI Manchester Hotel Partners, LP |
|
|
100 |
% |
|
Stock |
|
|
|
|
Controlled Joint Venture Subsidiary |
|
|
|
|
|
|
|
|
Ruby Senior General Partner I LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ruby Senior General Partner II LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Ruby Senior General Partner III LLC |
|
DELAWARE |
|
Non-Material Subsidiary |
|
Ashford TRS VI Corporation |
|
|
100 |
% |
|
Member |
Rye Town Tenant Corp. |
|
DELAWARE |
|
Non material subsidiary |
|
CHH Rye Town Hotel, LP |
|
|
100 |
% |
|
Stock |
Santa Xxxxx Tenant Corp. |
|
DELAWARE |
|
Excluded Subsidiary |
|
CHH Santa Xxxxx Hotel, LP |
|
|
100 |
% |
|
Stock |
South Yarmouth Massachusetts Hotel Limited Partnership |
|
DELAWARE |
|
Material Subsidiary |
|
Xxxxxxx 0000 XX LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx Credit Holding LLC |
|
|
98 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
1 |
% |
|
LP |
St. Petersburg Florida Hotel Limited Partnership |
|
DELAWARE |
|
Excluded Subsidiary |
|
St. Petersburg GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
99 |
% |
|
LP |
St. Petersburg GP LLC |
|
DELAWARE |
|
Excluded Subsidiary |
|
Ashford OP |
|
|
100 |
% |
|
Member |
Westbury New York Hotel Limited Partnership |
|
DELAWARE |
|
Material Subsidiary |
|
FL/NY GP LLC |
|
|
1 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx OP |
|
|
98 |
% |
|
XX |
|
|
|
|
|
|
Xxxxxxx TRS Corporation |
|
|
1 |
% |
|
LP |
0000-0000 Xxxxxx Inc. |
|
CANADA |
|
Non-Material Subsidiary |
|
Ashford TRS Canada Corporation |
|
|
100 |
% |
|
Stock |
17
Schedule 6.1(f)
Real Property
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
1.
|
|
Xxxxxxxxx Hotel
|
|
XX Xxxxxxxxx Hotel Associates, L.P. |
|
|
0000 Xxxxxxxxxxx Xxxxxx XX |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
2.
|
|
Courtyard Alpharetta, GA
|
|
Ashford Alpharetta Limited Partnership |
|
|
00000 Xxxxxxxxx Xxxxxxx |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
3.
|
|
Courtyard Basking Ridge
|
|
Ashford Basking Ridge LP |
|
|
000 Xxxxxxxxxxxx Xxxx |
|
|
|
|
Xxxxxxx Xxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
4.
|
|
Courtyard Bloomington, IN
|
|
Ashford Bloomington LP |
|
|
000 X. Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
5.
|
|
Courtyard Boston Tremont
|
|
HH FP Portfolio LLC |
|
|
000 Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
6.
|
|
Courtyard Columbus, IN
|
|
Ashford Tipton Lakes LP |
|
|
0000 Xxxxxx Xxxxx |
|
|
|
|
Xxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
7.
|
|
Courtyard Dallas Plano in Legacy Park
|
|
Ashford Plano-C LP |
|
|
0000 X. Xxxxxx Xxxxxxx |
|
|
|
|
Xxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
8.
|
|
Courtyard Denver Airport
|
|
HH Denver LLC |
|
|
0000 Xxxxx Xxxx |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
9.
|
|
Courtyard Edison — Raritan Center
|
|
Xxxxxxx Xxxxxx LP |
|
|
0000 Xxxxxxxxxx Xxxxxx |
|
|
|
|
Xxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
10.
|
|
Courtyard Ft. Lauderdale, FL
0000 X. Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
|
|
Ashford Ft. Lauderdale Weston I, II and III LLC (undivided interests) |
|
|
|
|
|
11.
|
|
Courtyard Gaithersburg
|
|
HH Gaithersburg LLC |
|
|
000 Xxxxxxxxx Xxxxx |
|
|
|
|
Xxxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
12.
|
|
Courtyard Hartford — Manchester
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
|
|
CY Manchester Hotel Partners, LP (Fee and Ground Leasehold) |
|
|
|
|
|
13.
|
|
Courtyard Irvine Spectrum, CA
|
|
Ashford Irvine Spectrum Foothill Ranch Limited Partnership |
|
|
00000 Xxxxxxx Xxxxxxx |
|
|
|
|
Xxxxxxxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
14.
|
|
Courtyard Louisville, XX
|
|
Xxxxxxx Louisville LP |
|
|
000 Xxxxxxxx Xxxx |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
15.
|
|
Courtyard Marriott Village at Little Lake Xxxxx
|
|
Xxxxxxx LLB C-Hotel Management, LP |
|
|
0000 Xxxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
16.
|
|
Courtyard Newark — Silicon Valley
|
|
Ashford Newark LP |
|
|
00000 Xxxxxx Xxxx. |
|
|
|
|
Xxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
00.
|
|
Xxxxxxxxx Xxxxxxx Xxxxxxx
|
|
Xxxxxxx Xxxxxxx LP |
|
|
000 Xxxxxxxxxxx Xxxx |
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
18.
|
|
Courtyard Overland Park, KS
|
|
Ashford Overland Park Limited Partnership |
|
|
00000 Xxxxxxx Xxxxxx |
|
|
|
|
I-435 and Nall |
|
|
|
|
Xxxxxxxx Xxxx, XX 00000 |
|
|
|
|
|
|
|
19.
|
|
Courtyard Palm Desert, CA
|
|
Xxxxxxx Xxxx Palm Desert I Limited Partnership |
|
|
00000 Xxxxx Xxxxxxx Xxxxx |
|
|
|
|
Xxxx Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
20.
|
|
Courtyard Philadelphia Downtown
|
|
Ashford Philadelphia Annex, LLC |
|
|
00 X. Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxxxxxxx, XX 00000-0000 |
|
|
1
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
21.
|
|
Courtyard Xxxxxx Airport, VA
|
|
Xxxxxxx Xxxxxxx City Limited Partnership |
|
|
0000 Xxxxxxxxx Xxxxx Xxxxxxx |
|
|
|
|
Xxxxxxx Xxxx, XX 00000 |
|
|
|
|
|
|
|
22.
|
|
Courtyard San Francisco Downtown
|
|
Ashford San Xxxxxxxxx XX LP |
|
|
000 0xx Xxxxxx |
|
|
|
|
Xxx Xxxxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
23.
|
|
Courtyard Savannah
|
|
HH LC Portfolio LLC |
|
|
000 Xxxx Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
24.
|
|
Courtyard Scottsdale Old Town
|
|
Ashford Scottsdale LP |
|
|
0000 X. Xxxxxxxxxx Xxxx |
|
|
|
|
Xxxxxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
25.
|
|
Courtyard Seattle Downtown — Lake Union
|
|
Ashford Seattle Downtown LP |
|
|
000 Xxxxxxxx Xxxxxx X. |
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
26.
|
|
Crowne Plaza
|
|
Key West Florida Hotel Limited Partnership |
|
|
000 Xxxxx Xxxxxx |
|
|
|
|
Xxx Xxxx, XX 00000 |
|
|
|
|
|
|
|
00.
|
|
Xxxxxx Xxxxx
|
|
Xxx Xxxxxxx Xxxxx Hotel Limited Partnership |
|
|
0000 X. Xxxxxxx Xxxxx |
|
|
|
|
Xxx Xxxxxxx, XX 00000 |
|
|
|
|
|
|
|
28.
|
|
Crowne Plaza Atlanta Ravinia
|
|
HH FP Portfolio LLC |
|
|
0000 Xxxxxxx-Xxxxxxxx Xx |
|
|
|
|
Xxxxxxx, XX 00000 |
|
|
|
|
|
|
|
29.
|
|
Doubletree Guest Suites,
|
|
Ashford Columbus LP |
|
|
00 X. Xxxxx Xxxxxx |
|
|
|
|
Xxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
30.
|
|
Embassy Suites
|
|
Ashford Austin LP |
|
|
0000 Xxxxxxxxx Xxxx. |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
31.
|
|
Embassy Suites
|
|
Ashford Dallas LP |
|
|
00000 Xxxx Xx. |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
32.
|
|
Embassy Suites
|
|
Ashford Dulles LP |
|
|
0000 Xxxxxxxxxxx Xx. |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
33.
|
|
Embassy Suites
|
|
Ashford Flagstaff LP |
|
|
000 Xxxxx Xxxxxx Xx. |
|
|
|
|
Xxxxxxxxx XX 00000 |
|
|
|
|
|
|
|
34.
|
|
Embassy Suites
|
|
New Houston Hotel Limited Partnership |
|
|
0000 Xxxx xxxx |
|
|
|
|
Xxxxxxx, XX 00000 |
|
|
|
|
|
|
|
35.
|
|
Embassy Suites
|
|
Ashford Las Vegas LP |
|
|
0000 Xxxxxxx Xxxxxx |
|
|
|
|
Xxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
36.
|
|
Embassy Suites
|
|
Ashford Philly LP |
|
|
0000 Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
37.
|
|
Embassy Suites
|
|
Ashford Syracuse LP |
|
|
0000 Xxx Xxxxxxxx Xx. |
|
|
|
|
Xxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
38.
|
|
Embassy Suites
|
|
Ashford Walnut Creek LP |
|
|
0000 Xxxxx Xxxxxxxxx |
|
|
|
|
Xxxxxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
39.
|
|
Embassy Suites and Admiralty
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, XX 00000
|
|
Palm Beach Florida Hotel and Office Building Limited Partnership |
|
|
|
|
|
40.
|
|
Embassy Suites Airport
|
|
Xxxxxxx Xxx Vista Partners LP |
|
|
0000 X X Xxx Xxxx. |
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
41.
|
|
Embassy Suites Crystal City
|
|
Xxxxxxx Xxxxxxx City Partners LP |
|
|
0000 Xxxxxxxxx Xxxxx Xxx. |
|
|
|
|
Xxxxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
42.
|
|
Embassy Suites Hotel Portland-Downtown
|
|
Ashford PH Partners LP |
|
|
000 XX Xxxx Xxxxxx |
|
|
|
|
Xxxxxxxx, XX 00000-0000 |
|
|
2
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
43.
|
|
Embassy Suites Silicon Valley
|
|
Ashford Santa Xxxxx Partners LP |
|
|
0000 Xxxxxxxx Xxxxx |
|
|
|
|
Xxxxx Xxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
44.
|
|
Fairfield Inn
|
|
Ashford Kennesaw I LP |
|
|
0000 Xxxxxx Xxxxx |
|
|
|
|
Xxxxxxxx, XX |
|
|
|
|
|
|
|
45.
|
|
Fairfield Inn Marriott Village at Little Lake Xxxxx
|
|
Xxxxxxx LLB F-Inn Management, LP |
|
|
0000 Xxxxxxxx Xxxxxx |
|
|
|
|
Xxxxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
46.
|
|
Hampton Inn
|
|
Xxxxxxx Xxxxxx I LP |
|
|
0000 Xxxxxx Xxxxx |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
47.
|
|
Hampton Inn
|
|
Ashford Evansville I LP |
|
|
0000 Xxxxx Xxxxx Xxxx. |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
48.
|
|
Hampton Inn
|
|
Ashford Lawrenceville LP |
|
|
0000 Xxxxx Xxxxxxx |
|
|
|
|
Xxxxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
49.
|
|
Hampton Inn
|
|
Ashford Terre Haute LP |
|
|
0000 XX Xxxxxxx 00 Xxxxx |
|
|
|
|
Xxxxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
50.
|
|
Hampton Inn Parsippany
|
|
HH FP Portfolio LLC |
|
|
Xxx Xxxxxx Xxxxx |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
51.
|
|
Hilton Boston Back Bay
|
|
HH Boston Back Bay LLC |
|
|
00 Xxxxxx Xxxxxx |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
52.
|
|
Hilton Capital
|
|
CHH Capital Hotel Partners LP |
|
|
0000 00xx & X Xx. XX |
|
|
|
|
Xxxxxxxxxx, X.X. 00000 |
|
|
|
|
|
|
|
53.
|
|
Hilton Costa Mesa
|
|
Xxxxxxx XX Partners LP |
|
|
0000 Xxxxxxx Xxxxxx |
|
|
|
|
Xxxxx Xxxx, XX 00000-0000 |
|
|
|
|
|
|
|
54.
|
|
Hilton Ft. Worth
|
|
New Fort Tower I Hotel Limited Partnership |
|
|
000 Xxxx Xxxxxx |
|
|
|
|
Xxxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
55.
|
|
Hilton Garden Inn
|
|
Ashford Jacksonville I LP |
|
|
0000 Xxxx Xxxxxxx Xxxxx |
|
|
|
|
Xxxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
56.
|
|
Hilton Garden Inn Austin
|
|
XX Xxxxxx Hotel Associates, L.P. |
|
|
000 Xxxxx Xxxxxxxxxx Xxx 00 |
|
|
|
|
Xxxxxx, XX 00000 |
|
|
|
|
|
|
|
57.
|
|
Hilton Garden Inn BWI Airport
|
|
HH Baltimore LLC |
|
|
0000 Xxxx Xxxxx |
|
|
|
|
Xxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
58.
|
|
Hilton Garden Inn Virginia Beach
|
|
HH LC Portfolio LLC |
|
|
000 Xxxx Xxxxxx Xxxxx |
|
|
|
|
Xxxxxxxx Xxxxx, XX 00000 |
|
|
|
|
|
|
|
59.
|
|
Hilton LaJolla Xxxxxx Xxxxx
|
|
CHH Xxxxxx Xxxxx Hotel Partners LP |
|
|
00000 X. Xxxxxx Xxxxx Xxxx |
|
|
|
|
XxXxxxx, XX 00000-0000 |
|
|
|
|
|
|
|
60.
|
|
Hilton Minneapolis
|
|
Ashford Minneapolis Airport LP |
|
|
0000 Xxxxxxxx Xxxx. Xxxx |
|
|
|
|
Xxxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
61.
|
|
Hilton Nassau Bay
|
|
New Clear Lake Hotel Limited Partnership |
|
|
0000 XXXX Xxxx 0 |
|
|
|
|
Xxxxxx Xxx, XX |
|
|
|
|
|
|
|
62.
|
|
Hilton Parsippany
|
|
HH FP Portfolio LLC |
|
|
Xxx Xxxxxx Xxxxx |
|
|
|
|
Xxxxxxxxxx, XX 00000 |
|
|
|
|
|
|
|
63.
|
|
Hilton Santa Xx
|
|
Xxxxxxx Santa Fe LP |
|
|
000 Xxxxxxxx Xxxxxx |
|
|
|
|
Xxxxx Xx, XX 00000 |
|
|
|
|
|
|
|
64.
|
|
Hilton Xx. Xxxxxxxxxx
|
|
Xx. Xxxxxxxxxx Xxxxxxx Hotel Limited Partnership |
|
|
000 0xx Xxxxxx Xxxxx |
|
|
|
|
Xx. Xxxxxxxxxx, XX 00000 |
|
|
3
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
65.
|
|
Hilton Tampa Westshore
|
|
HH Tampa Westshore LLC |
|
|
0000 Xxxxx Xxxx Xxxxxx |
|
|
|
|
Xxxxx, XX 00000 |
|
|
|
|
|
|
|
66.
|
|
Hilton Tucson El Con Golf & Tennis Resort
|
|
CHH Tucson Partnership, LP |
|
|
10000 N. Oracle Road |
|
|
|
|
Tucson, AZ 85737-7644 |
|
|
|
|
|
|
|
67.
|
|
Historic Inns
|
|
Annapolis Maryland Hotel Limited Partnership |
|
|
58 State Circle |
|
|
|
|
Annapolis, MD 21401 |
|
|
|
|
|
|
|
68.
|
|
Homewood Suites
|
|
Ashford Mobile LP |
|
|
530 Providence Park Drive |
|
|
|
|
Mobile, AL 36695 |
|
|
|
|
|
|
|
69.
|
|
Hyatt Regency Coral Gables
|
|
Ashford Coral Gables LP |
|
|
50 Alhambra Piz |
|
|
|
|
Coral Gables, FL 33134-5228 |
|
|
|
|
|
|
|
70.
|
|
Hyatt Regency Savannah
|
|
HH Savannah LLC |
|
|
2 West Bay Street |
|
|
|
|
Savannah, GA 31401 |
|
|
|
|
|
|
|
71.
|
|
Hyatt Regency Windwatch
|
|
HH FP Portfolio LLC |
|
|
1717 Motor Parkway |
|
|
|
|
Hauppauge, NY 11788 |
|
|
|
|
|
|
|
72.
|
|
Marriot San Xxxxxxx Xxxxx
|
|
HH San Antonio LLC |
|
|
555 South Alamo Street |
|
|
|
|
San Antonio, TX 78205 |
|
|
|
|
|
|
|
73.
|
|
Marriott Bridgewater
|
|
Ashford Bridgewater Hotel Partnership, LP |
|
|
700 Commons Way |
|
|
|
|
Bridgewater, NJ 08807-2807 |
|
|
|
|
|
|
|
74.
|
|
Marriott Crystal Gateway
|
|
Xxxxxxx Xxxxxxx Gateway LP |
|
|
1700 Xxxxxxxxx Xxxxx Hwy |
|
|
|
|
Arlington VA |
|
|
|
|
|
|
|
75.
|
|
Marriott Dallas/Plano @ Legacy Town Center
|
|
Ashford Plano-M LP |
|
|
7121 Xxxxxx Road |
|
|
|
|
Plano, TX 75024-4921 |
|
|
|
|
|
|
|
76.
|
|
Marriott DFW Airport
|
|
HH DFW Hotel Associates, L.P. |
|
|
8440 Freeport Parkway |
|
|
|
|
Irving, TX 75063 |
|
|
|
|
|
|
|
77.
|
|
Marriott Omaha
|
|
HH LC Portfolio LLC |
|
|
10220 Regency Circle |
|
|
|
|
Omaha, NE 68114 |
|
|
|
|
|
|
|
78.
|
|
Marriott Research Triangle Park
|
|
Ashford Durham I LLC (59%) |
|
|
4700 Xxxxxxxx Xxxxx
|
|
Xxxxxxx Xxxxxx XI LLC (41%) |
|
|
Durham, NC 27703
|
|
tenants in common |
|
|
|
|
|
79.
|
|
Marriott Seattle Waterfront
|
|
Ashford Seattle Waterfront LP |
|
|
2100 Alaskan Way |
|
|
|
|
Seattle, WA 98121-3139 |
|
|
|
|
|
|
|
80.
|
|
Marriott Sugar Land Town Square
|
|
HH Texas Hotel Associates L.P. |
|
|
16090 City Walk |
|
|
|
|
Sugar Land, TX 77479 |
|
|
|
|
|
|
|
81.
|
|
Marriott Suites Market Center
|
|
Ashford Market Center LP |
|
|
2493 X. Xxxxxxxx Freeway |
|
|
|
|
Dallas, TX 75207-2601 |
|
|
|
|
|
|
|
82.
|
|
Melrose Hotel
|
|
HH Melrose Hotel Associates, L.P. |
|
|
2430 Pennsylvania Avenue |
|
|
|
|
Washington, DC 20037 |
|
|
|
|
|
|
|
83.
|
|
Renaissance Nashville
|
|
HH Nashville LLC |
|
|
611 Commerce Street |
|
|
|
|
Nashville, TN 37203 |
|
|
|
|
|
|
|
84.
|
|
Renaissance Palm Springs
|
|
HH Palm Springs LLC |
|
|
888 Tahquitz Canyon Way |
|
|
|
|
Palm Springs, CA 92262 |
|
|
|
|
|
|
|
85.
|
|
Renaissance Portsmouth
|
|
Portsmouth Hotel Associates LLC |
|
|
425 Water Street |
|
|
|
|
Portsmouth, VA 23704 |
|
|
|
|
|
|
|
86.
|
|
Renaissance Tampa at International Plaza
|
|
Ashford Tampa International Hotel Partnership, LP |
|
|
4200 Xxx Xxxxxx Blvd. |
|
|
|
|
Tampa, FL 33607-5778 |
|
|
4
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
87.
|
|
Residence Inn
|
|
Ashford Salt Lake Limited Partnership |
|
|
6425 South 3000 East Cottonwood, UT 84121 |
|
|
|
|
|
|
|
88.
|
|
Residence Inn
|
|
Ashford Evansville III LP |
|
|
8283 E. Walnut Street |
|
|
|
|
Evansville, IN 47715 |
|
|
|
|
|
|
|
89.
|
|
Residence Inn
|
|
Ashford Falls Church Limited Partnership |
|
|
8125 Gatehouse Rd. |
|
|
|
|
Fairfax, VA 22042 |
|
|
|
|
|
|
|
90.
|
|
Residence Inn
|
|
Xxxxxxx Xxxx Palm Desert I Limited Partnership |
|
|
38305 Xxxx Street |
|
|
|
|
Palm Desert, CA 92211 |
|
|
|
|
|
|
|
91.
|
|
Residence Inn Atlanta — Buckhead (Lenox Park)
|
|
Ashford Atlanta Buckhead LP |
|
|
2220 Lake Blvd. |
|
|
|
|
Atlanta, GA 30319-5310 |
|
|
|
|
|
|
|
92.
|
|
Residence Inn Dallas Plano
|
|
Ashford Plano-R LP |
|
|
5001 Whitestone Lane |
|
|
|
|
Plano, TX 75024-3003 |
|
|
|
|
|
|
|
93.
|
|
Residence Inn Hartford — Manchester
|
|
RI Manchester Hotel Partners, LP |
|
|
201 Xxxx Road |
|
|
|
|
Manchester, CT 06042-1739 |
|
|
|
|
|
|
|
94.
|
|
Residence Inn Jacksonville
|
|
Ashford Jacksonville IV LP |
|
|
10551 Deerwood Park Blvd |
|
|
|
|
Jacksonville, FL 32256 |
|
|
|
|
|
|
|
95.
|
|
Rexxxxxxx Xxx Xxxx Xxxxx Xxxxx
|
|
Xxxxxxx Xxxxx Xxxxx XP |
|
|
11420 Marbella Palms Ct. |
|
|
|
|
Orlando FL 32836 |
|
|
|
|
|
|
|
96.
|
|
Residence Inn Las Vegas Xxxxxx Center
|
|
Ashford XX Xxxxxx Center LP |
|
|
370 Xxxxxx Center Drive |
|
|
|
|
Las Vegas, NV 89109-4814 |
|
|
|
|
|
|
|
97.
|
|
Residence Inn Orlando Sea World,
|
|
Xxxxxxx Xxxxxxx Sea World Limited Partnership |
|
|
11000 Westwood Blvd. |
|
|
|
|
Orlando, FL 32821 |
|
|
|
|
|
|
|
98.
|
|
Rexxxxxxx Xxx Xxxxxxx Xxxxxxx
|
|
Xxxxxxx Xxxxxxx Xirport LP |
|
|
801 N. 44th Street |
|
|
|
|
Phoenix, AZ 85008-6569 |
|
|
|
|
|
|
|
99.
|
|
Residence Inn San Xxxx — Newark
|
|
Ashford San Xxxx LP |
|
|
35466 Dumbarton Ct. |
|
|
|
|
Silicon Valley, CA 94560-1100 |
|
|
|
|
|
|
|
100.
|
|
Residence Inn Sorrento Mesa
|
|
Xxxxxxx Xxxx Mesa San Diego Limited Partnership |
|
|
5995 Pacific Mesa Court |
|
|
|
|
San Diego, CA |
|
|
|
|
|
|
|
101.
|
|
Residence Inn Tampa Downtown
|
|
HH LC Portfolio LLC |
|
|
101 East Tyler Street |
|
|
|
|
Tampa, FL 33602 |
|
|
|
|
|
|
|
102.
|
|
Xxxx-Xxxxxxx Atlanta Downtown
|
|
HH Atlanta LLC |
|
|
181 Peachtree Street, NE |
|
|
|
|
Atlanta, GA 30303 |
|
|
|
|
|
|
|
103.
|
|
Sea Turtle Inn,
|
|
Ashford Atlantic Beach LP |
|
|
One Ocean Blvd. |
|
|
|
|
Atlantic Beach, FL 32233 |
|
|
|
|
|
|
|
104.
|
|
Sheraton Anchorage
|
|
Ashford Anchorage LP |
|
|
401 East 6th Avenue |
|
|
|
|
Anchorage, AK 99501 |
|
|
|
|
|
|
|
105.
|
|
Sheraton Annapolis
|
|
HH Annapolis LLC |
|
|
173 Xxxxxxxx Rd |
|
|
|
|
Annapolis, Maryland, 21401 |
|
|
|
|
|
|
|
106.
|
|
Sheraton Bucks County,
|
|
Ashford Bucks County LLC |
|
|
400 Oxford Valley Rd. |
|
|
|
|
Langhorne, PA 19047 |
|
|
|
|
|
|
|
107.
|
|
Sheraton Indy City Center
|
|
New Indianapolis Downtown Hotel Limited Partnership |
|
|
31 W. Ohio Street |
|
|
|
|
Indianapolis, IN 46204 |
|
|
5
|
|
|
|
|
|
|
Hotel Name |
|
Owner of Fee Simple or Ground Leasehold |
108.
|
|
Sheraton Minnetonka
|
|
Minnetonka Minnesota Hotel Limited Partnership |
|
|
12201 Ridgedale Drive |
|
|
|
|
Minnetonka, MN 53505 |
|
|
|
|
|
|
|
109.
|
|
Sheraton San Diego
|
|
Xxxxxxx XX San Diego LP |
|
|
1433 Camino Del Rio South |
|
|
|
|
San Diego, CA 92108 |
|
|
|
|
|
|
|
110.
|
|
Silversmith Hotel
|
|
HH Chicago LLC |
|
|
10 South Wabash Avenue |
|
|
|
|
Chicago, IL 60603 |
|
|
|
|
|
|
|
111.
|
|
Springhill Suites
|
|
Ashford Xxxxxx XX LP |
|
|
3250 Xxxxxx Drive |
|
|
|
|
Buford, GA 30519 |
|
|
|
|
|
|
|
112.
|
|
Springhill Suites
|
|
Ashford BWI Airport LP |
|
|
899 Elkridge Landing Rd. |
|
|
|
|
BWI Airport, Maryland 21090 |
|
|
|
|
|
|
|
113.
|
|
Springhill Suites
|
|
Ashford Centerville Limited Partnership |
|
|
5920 Trinity Parkway |
|
|
|
|
Centreville, VA 20120 |
|
|
|
|
|
|
|
114.
|
|
Springhill Suites
|
|
Xxxxxxx Xxxxxxxxx Limited Partnership |
|
|
8700 Research Drive |
|
|
|
|
Charlotte, NC 28262 |
|
|
|
|
|
|
|
115.
|
|
Springhill Suites
|
|
Ashford Gaithersburg Limited Partnership |
|
|
9715 Washingtonian Blvd. |
|
|
|
|
Gaithersburg, MD 20878 |
|
|
|
|
|
|
|
116.
|
|
Springhill Suites
|
|
Ashford Jacksonville II LP |
|
|
4385 Southside Boulevard |
|
|
|
|
Jacksonville, FL 32216 |
|
|
|
|
|
|
|
117.
|
|
Springhill Suites
|
|
Ashford Kennesaw II LP |
|
|
3399 Town Point Drive |
|
|
|
|
Kennesaw, GA 30144 |
|
|
|
|
|
|
|
118.
|
|
Springhill Suites — Xxxxxxx Xxxxxx Airport
|
|
Ashford Raleigh Limited Partnership |
|
|
920 Xxxxxx Xx. |
|
|
|
|
Durham, NC 27703 |
|
|
|
|
|
|
|
119.
|
|
SpringHill Suites Manhattan Beach — Hawthorne
|
|
Ashford Xxxxxxxxx XX |
|
|
14620 Aviation Blvd. |
|
|
|
|
Manhattan Beach, CA 90250 |
|
|
|
|
|
|
|
120.
|
|
Springhill Suites Marriott Village at Little Lake Xxxxx
|
|
Xxxxxxx LLB SHS Management, LP |
|
|
8623 Vineland Avenue |
|
|
|
|
Orlando, FL 32821-6499 |
|
|
|
|
|
|
|
121.
|
|
SpringHill Suites Philadelphia — Plymouth Meeting
|
|
Ashford Plymouth Meeting LP |
|
|
430 Plymouth Road |
|
|
|
|
Plymouth Meeting, PA 19461 |
|
|
|
|
|
|
|
122.
|
|
SpringHill Suites Richmond — Virginia Center
|
|
Ashford Richmond LP |
|
|
9701 Brook Road |
|
|
|
|
Glen Allen, VA 23059-4580 |
|
|
|
|
|
|
|
123.
|
|
TownePlace Suites Los Angeles — Manhattan Beach
|
|
Ashford Manhattan Beach LP |
|
|
14400 Aviation Blvd. |
|
|
|
|
Los Angeles, CA 90250-6654 |
|
|
|
|
|
|
|
124.
|
|
Westin Princeton at Xxxxxxxxx Village
|
|
HH Princeton LLC |
|
|
201 Village Boulevard |
|
|
|
|
Princeton, NJ 08540 |
|
|
|
|
|
|
|
125.
|
|
World Quest Resort
|
|
Ashford WQ Hotel LP — amenities and raw land |
|
|
8849 World Quest Boulevard |
|
|
|
|
Orlando, FL 32821
|
|
Ashford TRS WQ LLC — 96 condos and developer rights |
6
Schedule 6.1(g)
Indebtedness
1. The Indebtedness evidenced by the Loan Documents.
2. The Indebtedness secured by the Liens described in the table below. Each Guaranty of the
Indebtedness is a nonrecourse liability carve-out guaranty for customary exceptions, such as for
fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive
involuntary bankruptcy, completion of capital replacements or repairs, and other similar exceptions
to nonrecourse liability.
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
UBS Real Estate Investments, Inc.
Pool 1:
Embassy Suites Dulles
Embassy Suites Syracuse
Residence Inn Lake Buena Vista
Hampton Inn Terre Haute
Hampton Inn Buford
SpringHill Suites Xxxxxx
Courtyard Louisville
Courtyard Columbus Xxxxxx Lakes
|
|
November 14, 2005
|
|
Ashford Dulles XX
Xxxxxxx Syracuse XX
Xxxxxxx Buena Vista, XX
Xxxxxxx Terre Haute LP
Xxxxxxx Xxxxxx I XX
Xxxxxxx Xxxxxx XX XX
Xxxxxxx Louisville LP
Ashford Tipton Lakes LP
Guaranty:
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc.
|
|
$110,899,000 |
|
|
|
|
|
|
|
UBS Real Estate Investments, Inc.
Pool 2:
Embassy Suites Las Vegas
Hampton Inn Evansville
Residence Inn Evansville
SpringHill Suites Jacksonville
Courtyard Bloomington
Embassy Suites Austin
Hilton Garden Inn Jacksonville
Embassy Suites Dallas
|
|
November 14, 2005
|
|
Ashford Las Vegas LP
Ashford Evansville I LP
Ashford Evansville III LP
Ashford Jacksonville II LP
Ashford Bloomington LP
Ashford Austin LP
Ashford Jacksonville I LP
Ashford Dallas LP
Guaranty:
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc.
|
|
$100,576,000 |
|
|
|
|
|
|
|
Merrill Lynch Mortgage Lending, Inc.
|
|
June 17, 2005
|
|
Ashford Alpharetta Limited Partnership
|
|
Pool 1: $160,490,000 |
1
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
Pool 1:
Courtyard Palm Desert
Residence Inn Orlando Sea World
Residence Inn Palm Desert
Residence Inn Salt Lake City
Springhill Suites Charlotte
Springhill Suites Raleigh Durham
Historic Inns Annapolis
Courtyard Overland Park
Sheraton Minnetonka,
Crowne Plaza Key West
Pool 2:
Courtyard Crystal City
Residence Inn Indianapolis
Embassy Suites Palm Beach
Hilton St. Petersburg
Hilton Nassau Bay
Pool 3:
Crowne Plaza Beverly Hills
Hilton Ft. Forth
Springhill Suites Gaithersburg
Courtyard Ft. Lauderdale
Springhill Suites Centreville
Pool 7:
Courtyard Foothill Ranch
Residence Inn Fairfax
Residence Inn Mira Mesa
Courtyard Alpharetta
Embassy Suites Houston
|
|
Amended and Restated for Pools 1, 2, 3
and 7:
October 13, 2005
2nd Amended and Restated for
Pool 2:
December 20, 2005
|
|
Ashford Crystal City Limited Partnership
Ashford Irvine spectrum Foothill Ranch Limited
Partnership
Ashford Ft. Lauderdale Weston I LLC
Ashford Ft. Lauderdale Weston II LLC
Ashford Ft. Lauderdale Weston III LLC
Ashford Overland Park Limited Partnership
Ashford Ruby Palm Desert I Limited
Partnership
Key West Florida Hotel Limited Partnership
New Beverly Hills Hotel Limited Partnership
New Houston Hotel Limited Partnership
Palm Beach Florida Hotel and Office Building
Limited Partnership
New Fort Tower I Hotel Limited Partnership
New Clear Lake Hotel Limited Partnership
St. Petersburg Florida Hotel Limited
Partnership
Annapolis Maryland Hotel Limited Partnership
Ashford Salt Lake Limited Partnership
Ashford Falls Church Limited Partnership
Ashford Orlando Sea World Limited
Partnership
Ashford Mira Mesa San Diego Limited
Partnership
New Indianapolis Downtown Hotel Limited
Partnership
Minnetonka Minnesota Hotel Limited
Partnership
Ashford Centerville Limited Partnership
Ashford Charlotte Limited Partnership
Ashford Raleigh Limited Partnership
Ashford Gaithersburg Limited Partnershi
|
|
Pool 2: $115,645,000
Pool 3: $95,905,000
Pool 7: $83,075,000
|
|
|
|
|
|
|
|
German American Capital Corporation
Marriott Crystal Gateway Hotel
|
|
October 29, 2010
|
|
Ashford Crystal Gateway LP
Guaranty: Ashford Hospitality Limited
Partnership
|
|
$105 million |
2
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
Countrywide Commercial Real Estate Finance,
Inc.
Sheraton Anchorage
Sheraton Mission Valley San Diego
Embassy Suites Walnut Creek
Embassy Suites Philadelphia Airport
Hilton Minneapolis Airport
|
|
December 7, 2006
|
|
Ashford Philly LP
Ashford Anchorage LP
Ashford Minneapolis Airport LP
Ashford MV San Diego LP
Ashford Walnut Creek LP
Guaranty: Ashford Hospitality Limited
Partnership
|
|
$212M — initial funding
$35M — PIP advances |
|
|
|
|
|
|
|
Wachovia Bank, National Association
Fixed Rate Pool 1
Courtyard Plano
Courtyard Scottsdale
Courtyard Oakland
Courtyard Basking Ridge
Courtyard Newark
Fixed Rate Pool 2
Residence Inn Plano
Residence Inn Phoenix
Residence Inn Newark
Springhill Philadelphia
Springhill Manhattan Beach
Towneplace Manhattan Beach
Springhill Richmond
Fixed Rate Pool 3
Courtyard Seattle
Courtyard San Francisco
Fixed Rate Pool 4
Courtyard at Lake Buena Vista
Springhill Suites at Lake Buena Vista
Fairfield Inn at Lake Buena Vista
Courtyard Edison — Raritan
Residence Inn Buckhead
Fixed Rate Pool 5
Sheraton Bucks County
Marriott Bridgewater
Marriott Dallas Market Center
Embassy Suites Flagstaff
Marriott Research Triangle Park
Fixed Rate Pool 6
Marriott Legacy Park
Marriott Seattle Waterfront
|
|
April 11, 2007
|
|
Ashford Bridgewater Hotel Partnership, LP
Ashford Plano-M LP
Ashford Seattle Waterfront LP
Ashford Market Center LP
Ashford Tampa International Hotel, LP
Ashford Philadelphia Annex, LLC
Ashford San Francisco II LP
Ashford Coral Gables LP
Ashford LLB C-Hotel Management, LP
Ashford LLB SHS Management, LP
Ashford LLB F-Inn Management, LP
Ashford Basking Ridge LP
Ashford Edison LP
Ashford Newark LP
Ashford Oakland LP
Ashford Plano-C LP
Ashford Scottsdale LP
Ashford Seattle Downtown LP
Ashford Atlanta Buckhead LP
Ashford LV Hughes Center LP
Ashford San Jose LP
Ashford Phoenix Airport LP
Ashford Plano-R LP
Ashford Hawthorne LP
Ashford Plymouth Meeting LP
Ashford Richmond LP
Ashford Manhattan Beach LP
Ashford Lawrenceville LP
Ashford Columbus LP
Ashford Flagstaff LP
Ashford Santa Fe LP
Ashford Mobile LP
Ashford Atlantic Beach LP
|
|
FR Pool 1:
$115,600,000.00
FR Pool 2:
$126,466,000.00
FR Pool 3:
$128,408,000.00
FR Pool 4:
$103,906,000.00
FR Pool 5:
$158,105,000.00
FR Pool 6:
$260,980,000.00
Pool Philly:
$35,000,000.00
Floating Pool :
$315,000,000.00 |
3
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
Renaissance Tampa
Pool Philly
Courtyard Downtown Philadelphia
Floating Rate Loan
Residence Inn Las Vegas
Hilton Santa Fe
One Ocean Resort
Hampton Inn Lawrenceville
Doubletree Columbus
Homewood Suites Mobile
Fairfield Inn Kennesaw
Springhill BWI
Springhill Kennesaw
Hyatt Coral Gables
|
|
|
|
Ashford Kennesaw I LP
Ashford Durham I LLC
Ashford Durham II LLC
Ashford BWI Airport LP
Ashford Kennesaw II LP
Ashford Bucks County LLC
Guaranty:
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc. |
|
|
|
|
|
|
|
|
|
Wachovia Bank, National Association
Senior mezzanine loan — secured by Lien
against the Equity Interests in the Floating
Rate Loan mortgage borrowers and general
partners.
Intermediate mezzanine loan — secured by
Lien against the Equity Interests in the
senior mezzanine borrowers.
Junior mezzanine loan — secured by Lien
against the Equity Interests in the
intermediate mezzanine borrowers.
|
|
April 11, 2007
|
|
Senior Mezzanine Loan Borrowers:
Ashford Sapphire Senior Mezz I LLC
Ashford Sapphire Senior Mezz II LLC
Junior Mezzanine Loan Borrowers:
Ashford Sapphire Junior Mezz I LLC
Ashford Sapphire Junior Mezz II LLC
Junior Junior Mezzanine Loan
Borrowers:
Ashford Sapphire Junior Holder I LLC
Ashford Sapphire Junior Holder II LLC
Guaranty (all 3 Mezzanine Loans) :
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc.
|
|
Senior Mezzanine Loan
$80,122,000.00
Junior Mezzanine Loan:
$80,000,000.00
Junior Junior Mezzanine
Loan:
$80,000,000.00 |
|
|
|
|
|
|
|
Aareal Bank
Hilton Torrey Pines
Hilton Capital (DC)
|
|
August 6, 2008
|
|
CHH Torrey Pines Hotel Partners, LP
CHH Capital Hotel Partners, LP
Guaranty:
Ashford Hospitality Limited Partnership
Ashford Hospitality Trust, Inc.
|
|
$160 million |
|
|
|
|
|
|
|
The Prudential Insurance Company of
America
Hilton Costa Mesa
Embassy Suites Portland
|
|
November 18, 2009
|
|
Ashford CM Partners LP
Ashford PH Partners LP
Ashford Crystal City Partners LP
Ashford Lee Vista Partners LP
|
|
Prudential: $100 million
Wheelock: $45 million |
4
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
|
|
|
|
Ashford Santa Clara Partners LP
|
|
|
Embassy Suites Crystal City Arlington
Embassy Suites Orlando Airport
Embassy Suites Santa Clara
|
|
|
|
Guaranty: Ashford Hospitality Limited
Partnership
|
|
|
|
|
|
|
|
|
|
WSI(I) — AHT, LLC
(Wheelock) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Junior mortgage loan — also secured by a
Lien against the Equity Interests in the
mortgage borrowers and general partners. |
|
|
|
|
|
|
|
|
|
|
|
|
|
Metropolitan Life Insurance Company
|
|
December 29, 2009
|
|
CHH Tucson Partnership, LP
|
|
$19,740,000 |
|
|
|
|
|
|
|
Hilton Tucson El Conquistador
|
|
|
|
Guaranty: Ashford Hospitality Limited
Partnership
|
|
|
|
|
|
|
|
|
|
GECC
Courtyard Manchester
|
|
Origination: December 11,
2000
Assumption: April 11, 2007
|
|
CY Manchester Hotel Partners, LP
Guaranty: Ashford Hospitality Limited
Partnership
|
|
$6,800,000 |
Zions First National Bank
Residence Inn Jacksonville
|
|
March 23, 2009
|
|
Ashford Jacksonville IV LP
|
|
$7 million |
|
|
|
|
|
|
|
Wells Fargo, National Association
Barclays Capital Real Estate, Inc.
Churchill Hotel
Courtyard Boston Tremont
Courtyard Denver Airport
Courtyard Gaithersburg Washingtonian
Courtyard Savannah Historic District
Crowne Plaza Atlanta Ravinia
Hampton Inn Parsippany
Hilton Garden Inn Austin
Hilton Garden Inn BWI Airport
Hilton Garden Inn Virginia Beach
Hilton Parsippany
Hilton Tampa Westshore
Hyatt Regency Savannah
Hyatt Regency Windwatch Happauge
Marriot San Antonio Plaza
|
|
March 10, 2011
|
|
HH Churchill Hotel Associates, L.P.
HH FP Portfolio LLC
HH Denver LLC
HH Gaithersburg LLC
HH LC Portfolio LLC
HH Austin Hotel Associates, L.P.
HH Baltimore LLC
HH Tampa Westshore LLC
HH Savannah LLC
HH San Antonio LLC
HH DFW Hotel Associates, L.P.
HH Texas Hotel Associates L.P.
HH Melrose Hotel Associates, L.P.
HH Palm Springs LLC
Portsmouth Hotel Associates LLC
HH Atlanta LLC
HH Annapolis LLC
HH Chicago LLC
|
|
$530 million |
5
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
Marriott DFW Airport
Marriott Omaha
Marriott Sugar Land Town Square
Melrose Hotel
Renaissance Palm Springs
Renaissance Portsmouth
Residence Inn Tampa Downtown
Ritz-Carlton Atlanta Downtown
Sheraton Annapolis
Silversmith Hotel Chicago Downtown
|
|
|
|
HHC TRS Highland LLC
HHC TRS FP Portfolio LLC
HHC TRS Portsmouth LLC
HHC TRS Baltimore LLC
HHC TRS LC Portfolio LLC
HHC TRS Austin LLC
HHC TRS Tampa LLC
HHC TRS Savannah LLC
HHC TRS Melrose LLC
HHC TRS Atlanta LLC
HHC TRS Chicago LLC
Guaranty: Ashford Hospitality Limited
Partnership |
|
|
|
|
|
|
|
|
|
American Equity Investment Life Insurance
Company
Liberty Life Insurance Company
Newcastle CDO VIII, 1 Limited
Newcastle CDO IX, 1 Limited
Fir Tree REOF II Master Fund, LLC
Fir Tree Capital Opportunity Master Fund,
L.P.
M1 mezzanine loan — secured by Lien against
the Equity Interests in the Wells Fargo / Barclays
Capital mortgage borrowers, and
their general partners described above, and
the three (3) Connecticut General Life
Insurance Company loan mortgage borrowers
described below.
Starwood Property Mortgage, L.L.C.
M2 mezzanine loan — secured by Lien against
the Equity Interests in the M1 mezzanine
loan borrowers
LVS I SPE II, LLC
M3 mezzanine loan — secured by Lien against
the Equity Interests in the M2 mezzanine
loan borrowers
|
|
March 10, 2011
|
|
M1 mezzanine borrowers:
HH Swap A LLC
HH Swap C LLC
HH Swap C-1 LLC
HH Swap D LLC
HH Swap F LLC
HH Swap F-1 LLC
HH Swap G LLC
M2 mezzanine borrowers:
HH Mezz Borrower A-2 LLC
HH Mezz Borrower C-2 LLC
HH Mezz Borrower D-2 LLC
HH Mezz Borrower F-2 LLC
HH Mezz Borrower G-2 LLC
M3 mezzanine borrowers:
HH Mezz Borrower A-3 LLC
HH Mezz Borrower C-3 LLC
HH Mezz Borrower D-3 LLC
HH Mezz Borrower F-3 LLC
HH Mezz Borrower G-3 LLC
M4 mezzanine borrowers:
HH Mezz Borrower A-4 LLC
HH Mezz Borrower C-4 LLC
HH Mezz Borrower D-4 LLC
|
|
M1 mezzanine loan: $144,745,920
M2 mezzanine loan: $137,794,870
M3 mezzanine loan: $118,109,889
M4 mezzanine loan: $18,424,907 |
6
|
|
|
|
|
|
|
Liens on the following Properties or |
|
|
|
|
|
|
Equity Interests |
|
Date |
|
Borrower / Guaranty |
|
Original Principal Amount |
GSRE III, Ltd.
M4 mezzanine loan — secured by Lien against
the Equity Interests in the M3 mezzanine
loan borrowers
|
|
|
|
HH Mezz Borrower F-4 LLC
HH Mezz Borrower G-4 LLC
Guaranty: Ashford Hospitality Limited
Partnership
|
|
|
|
|
|
|
|
|
|
Connecticut General Life Insurance
Company
Westin Princeton
|
|
Origination: January 6, 2006
Assumption: March 10, 2011
|
|
HH Princeton LLC
HHC TRS Princeton LLC
Guaranty: Ashford Hospitality Limited
Partnership
|
|
$35 million |
|
|
|
|
|
|
|
Connecticut General Life Insurance
Company
Renaissance Nashville
|
|
Origination: March 13, 2006
Assumption: March 10, 2011
|
|
HH Nashville LLC
HHC TRS Nashville LLC
Guaranty: Ashford Hospitality Limited
Partnership
|
|
$52 million |
|
|
|
|
|
|
|
Connecticut General Life Insurance
Company
Hilton Boston Back Bay
|
|
Origination: December 26,
2005
Assumption: March 10, 2011
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HH Boston Back Bay LLC
HHC TRS OP LLC
Guaranty: Ashford Hospitality Limited
Partnership
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$69 million |
7
Schedule 6.1(i)
Income tax return audits
2007, 2008 and 2009 US Federal tax returns of CHH III Tenant Parent Corp. and its Subsidiaries
Schedule 6.1(l)
ERISA Non-Payments or Amendments
In July of 2010, the employees of the Sheraton Anchorage petitioned the hotel to withdraw recognition of
the union, Unite / Here Local 878, as the employees’
exclusive bargaining agent. On July 2, 2010 the hotel officially withdrew recognition of the union. Under the union pension plan, the withdrawal triggers a determination of whether the pension plan has net unfunded liabilities, and the hotel’s pro rata share of such liability. Under ERISA regulations, the withdrawal liability was calculated as of December 31, 2009, and will result in 20 annual installments of approximately $84,248 per year (i.e., a total liability of approximately $1.68 million over 20 years).
In response, the union filed a number of unfair labor practice actions against the hotel which are currently subject to administrative process under NLRB rules and procedures. If the final ruling, including all available appeals, is that the hotel legally withdrew recognition of the union, the annual installments of withdrawal liability under the pension will need to be paid. If the final ruling is that the hotel did not legally withdraw recognition of the union, normal pension fund payments of approximately $75,000 per year will need to be made.
The hotel has a pending agreement with the pension fund that the hotel will continue to make annual pension fund contributions of approximately $75,000 per year, as adjusted based on how the employee count changes over time. If the final ruling is that the hotel legally withdrew recognition of the union, the annual pension fund contribution payments will be credited towards the $84,248 annual payments of withdrawal liability required to have been made and to be made.
Schedule 9.10
Transaction
with Affiliates
Please See “Certain Relationship and Related Transaction” contained in Schedule 14A Proxy Statement Pursuant to Section 14(A) of the Securities Exchange Act of 1934,
filed on April 19, 2011 by Ashford Hospitality Trust, Inc.
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [the][each]1 Assignor identified
in item 1 below ([the][each, an] “Assignor”) and [the][each]2 Assignee identified in
item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and
obligations of [the Assignors][the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a
copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and
made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the
Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and
assumes from [the Assignor][the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and
obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit
Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and
obligations of [the Assignor][the respective Assignors] under the respective facilities identified
below (including without limitation any letters of credit, guarantees, and swingline loans included
in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing the extent related to the amount and percentage
interest identified below, including, but not limited to, contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold
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For bracketed language here and elsewhere in
this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from
multiple Assignors, choose the second bracketed language. |
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For bracketed language here and elsewhere in
this form relating to the Assignee(s), if the assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to multiple
Assignees, choose the second bracketed language. |
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Select as appropriate. |
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Include bracketed language if there are either
multiple Assignors or multiple Assignees. |
A-1
and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii)
above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and
assignment is without recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any] Assignor.
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Assignor[s]: |
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Assignee[s]: |
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[for each Assignee, indicate [Affiliate][Approved Fund] of |
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[identify Lender] |
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3. Borrower(s): Ashford Hospitality Limited Partnership
4. Agent: KeyBank National Association, as agent under the Credit Agreement
5. Credit Agreement: [Credit Agreement dated as of September 26, 2011 among Ashford Hospitality
Limited Partnership, the Lenders parties thereto, KeyBank National Association, as Agent and the
other parties thereto]
6. Assigned Interest[s]:
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Assignor[s]5
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Assignee[s]6
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Facility
Assigned7
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Aggregate Amount
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for all
Lenders8
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Amount of
Commitment/Loans
Assigned
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Percentage Assigned
of Commitment/
Loans9
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CUSIP
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[Trade Date: ______________]10 |
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List each Assignor, as appropriate. |
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List each Assignee, as appropriate. |
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Fill in the appropriate terminology for the
types of facilities under the Credit Agreement that are being assigned under
this Assignment (e.g., “Revolving Credit Commitment,” “Term Loan Commitment,”
etc.) |
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Amount to be adjusted by the counterparties to
take into account any payments or prepayments made between the Trade Date and
the Effective Date. |
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Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder. |
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To be completed if the Assignor(s) and the
Assignee(s) intend that the minimum assignment amount is to be determined as of
the Trade Date. |
A-2
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND WHICH SHALL BE THE EFFECTIVE
DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR[S]11 |
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[NAME OF ASSIGNOR] |
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[NAME OF ASSIGNOR] |
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ASSIGNEE[S]12 |
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[NAME OF ASSIGNEE] |
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By: |
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[NAME OF ASSIGNEE] |
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By: |
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[Consented to and]13 Accepted: |
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[NAME OF AGENT], as Agent |
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By: |
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Add additional signature blocks as needed. |
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Add additional signature blocks as needed. |
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To be added only if the consent of the Agent
is required by the terms of the Credit Agreement. |
A-3
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[Consented to:]14 |
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[NAME OF RELEVANT PARTY] |
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By: |
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To be added only if the consent of the
Borrower and/or other parties is required by the terms of the Credit Agreement. |
A-4
ANNEX 1
[__________________]15
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations made in or in
connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries, Joint Venture
Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv)
the performance or observance by the Borrower, any of its Subsidiaries, Joint Venture Subsidiaries
or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 12.5.(b)(iii),
(v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under
Section 12.5.(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date specified
for this Assignment and Assumption, it shall be bound by the provisions of the Credit Agreement as
a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 8.1. or 8.2., as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign Lender,
attached to the Assignment and Assumption is any
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15 |
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Describe Credit Agreement at option of Agent. |
A-5
documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Agent, [the][any] Assignor or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance
with their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Agent shall make all payments in
respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other
amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after
the Effective Date specified for this Assignment and Assumption. The Assignor[s] and the
Assignee[s] shall make all appropriate adjustments in payments by the Agent for periods prior to
such Effective Date or with respect to the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to
the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.
A-6
EXHIBIT B
FORM OF NOTICE OF BORROWING
______________, 20__
KeyBank National Association, as Agent
4900 Tiedeman Road
Brooklyn, Ohio 44144
Attention: Matt Himes
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”) and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.
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Pursuant to Section 2.1.(b) of the Credit Agreement, the Borrower hereby
requests that the Lenders make Revolving Loans to the Borrower in an aggregate
principal amount equal to $_______________. |
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The Borrower requests that such Revolving Loans be made available to the
Borrower on ______________, 20_. |
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The Borrower hereby requests that the requested Revolving Loans all be of the
following Type: |
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[Check one box only] |
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Base Rate Loans |
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LIBOR Loans, each with an initial Interest Period for a duration of: |
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[Check one box only]
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o 1 month |
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o 2 months |
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o 3 months |
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o 6 months |
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o 12 months |
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The proceeds of this borrowing of Revolving Loans will be used for the
following purpose:
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The Borrower requests that the proceeds of this borrowing of Revolving Loans be
made available to the Borrower by _________________________. |
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B-1
The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof and as
of the date of the making of the requested Revolving Loans and after giving effect thereto, (a) no
Default or Event of Default exists, and (b) the representations and warranties made or deemed made
by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party are
and shall be true and correct in all material respects with the same force and effect as if made on
and as of the date hereof, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier date) and except for changes in
factual circumstances not prohibited under the Loan Documents. In addition, the Borrower certifies
to the Agent and the Lenders that all conditions to the making of the requested Revolving Loans
contained in Article V. of the Credit Agreement will have been satisfied (or waived in accordance
with the applicable provisions of the Loan Documents) at the time such Revolving Loans are made.
If notice of the requested borrowing of Revolving Loans was previously given by telephone,
this notice is to be considered the written confirmation of such telephone notice required by
Section 2.1.(b) of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Borrowing
as of the date first written above.
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ASHFORD HOSPITALITY LIMITED PARTNERSHIP |
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By: Ashford OP General Partner LLC, its general partner |
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By: |
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B-2
EXHIBIT C
FORM OF NOTICE OF CONTINUATION
__________________, 20__
KeyBank National Association, as Agent
4900 Tiedeman Road
Brooklyn, Ohio 44144
Attention: Matt Himes
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”) and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.
Pursuant to Section 2.8. of the Credit Agreement, the Borrower hereby requests a Continuation
of a borrowing of Loans under the Credit Agreement, and in that connection sets forth below the
information relating to such Continuation as required by such Section of the Credit Agreement:
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The proposed date of such Continuation is ________________, 20_. |
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The aggregate principal amount of Loans subject to the requested Continuation
is $___________ and was originally borrowed by the Borrower on ________________, 20_. |
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The portion of such principal amount subject to such Continuation is
$____________. |
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The current Interest Period for each of the Loans subject to such Continuation
ends on __________________, 20_. |
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The duration of the new Interest Period for each of such Loans or portion
thereof subject to such Continuation is: |
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o 1 month |
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o 2 months |
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o 3 months |
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o 6 months |
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o 12 months |
C-1
If notice of the requested Continuation was given previously by telephone, this notice is to
be considered the written confirmation of such telephone notice required by Section 2.8. of the
Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of
Continuation as of the date first written above.
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ASHFORD HOSPITALITY LIMITED PARTNERSHIP |
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Ashford OP General Partner LLC, its general partner |
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By: |
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C-2
EXHIBIT D
FORM OF NOTICE OF CONVERSION
________________, 20__
KeyBank National Association, as Agent
4900 Tiedeman Road
Brooklyn, Ohio 44144
Attention: Matt Himes
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”), KeyBank National
Association, as Agent (the “Agent”) and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.
Pursuant to Section 2.9. of the Credit Agreement, the Borrower hereby requests a Conversion of
a borrowing of Loans of one Type into Loans of another Type under the Credit Agreement, and in that
connection sets forth below the information relating to such Conversion as required by such Section
of the Credit Agreement:
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The proposed date of such Conversion is _______________, 20_. |
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The Loans to be Converted pursuant hereto are currently: |
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o Base Rate Loans |
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o LIBOR Loans |
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The aggregate principal amount of Loans subject to the requested Conversion is
$___________________ and was originally borrowed by the Borrower on _______________,
20_. |
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The portion of such principal amount subject to such Conversion is
$_______________. |
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The amount of such Loans to be so Converted is to be converted into Loans of
the following Type: |
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[Check one box only] |
D-1
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LIBOR Loans, each with an initial Interest Period for a duration of: |
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o 1 month |
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o 3 months |
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o 6 months |
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The Borrower hereby certifies to the Agent and the Lenders that as of the date hereof and as
of the date of the requested Conversion and after giving effect thereto, (a) no Default or Event of
Default exists or will exist (provided the certification under this clause (a) shall not be made in
connection with the Conversion of a Loan into a Base Rate Loan), and (b) the representations and
warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to
which any of them is a party are and shall be true and correct in all material respects, except to
the extent that such representations and warranties expressly relate solely to an earlier date (in
which case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and except for changes in factual circumstances not
prohibited under the Loan Documents (provided the certification under this clause (b) shall not be
made in connection with the Conversion of a Loan into a Base Rate Loan).
If notice of the requested Conversion was given previously by telephone, this notice is to be
considered the written confirmation of such telephone notice required by Section 2.9. of the Credit
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Conversion
as of the date first written above.
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ASHFORD HOSPITALITY LIMITED PARTNERSHIP |
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By: Ashford OP General Partner LLC, its general partner |
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By: |
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Name: |
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Title:
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D-2
EXHIBIT E
FORM OF PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT dated as of September 26, 2011 executed and delivered by each of the
undersigned parties identified as “Pledgors” on the signature pages hereto and the other Persons
who may become Pledgors hereunder pursuant to the execution and delivery of a Pledge Agreement
Supplement substantially in the form of Annex 1 hereto (each a “Pledgor” and collectively, the
“Pledgors”) in favor of KEYBANK NATIONAL ASSOCIATION, as Agent (the “Pledgee”).
WHEREAS, pursuant to that certain Credit Agreement dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions from
time to time party thereto as “Lenders” and the Pledgee, the Lenders, the Pledgee and other parties
thereto have agreed to make available to the Borrower certain financial accommodations on the terms
and conditions contained in the Credit Agreement;
WHEREAS, the Borrower and each of the other Pledgors, though separate legal entities, are
members of the same corporate family and have determined it to be in their mutual best interests to
obtain financing from the Lenders and the Pledgee through their collective efforts;
WHEREAS, each Pledgor acknowledges that it will receive direct and indirect benefits from the
Lenders and the Pledgee making such financial accommodations available to the Borrower under the
Credit Agreement; and
WHEREAS, it is a condition precedent to the extension of such financial accommodations under
the Credit Agreement that the Pledgors execute and deliver this Agreement, among other things, to
grant to the Pledgee for the benefit of the Secured Beneficiaries (as hereinafter defined) a
security interest in the Collateral as security for the Secured Obligations.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
Section 1. Definitions. Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement. Terms defined in the Uniform Commercial
Code as in effect in the State of New York shall have the respective definitions as so defined. In
addition, as used in this Agreement:
“Bankruptcy Code” means United States Bankruptcy Code (11 U.S.C. Section 101 et seq.),
as in effect from time to time, and any successor statute thereto.
“Collateral” has the meaning given such term in the first paragraph of Section 2 of
this Agreement. “Issuer” means with respect to an Equity Interest, the Person who issued such
Equity Interest and shall include each of the Persons identified as an Issuer on Schedule 1
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attached hereto (or any addendum or supplement thereto), and any successors thereto, whether
by merger or otherwise.
“Permitted Liens” means, as to any Person: (i) Liens securing taxes, assessments and
other charges or levies imposed by any governmental authority (excluding any Lien imposed pursuant
to any of the provisions of ERISA or pursuant to any environmental laws) or the claims of
materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or
rentals incurred in the ordinary course of business, which are not at the time required to be paid
or discharged under the applicable provisions of the Loan Documents; (ii) Liens consisting of
deposits or pledges made, in the ordinary course of business, in connection with, or to secure
payment of, obligations under workers’ compensation, unemployment insurance or similar laws; and
(iii) Liens in favor of the Pledgee for the benefit of the Secured Beneficiaries.
“Proceeds” means all proceeds (including proceeds of proceeds) of any of the
Collateral including all: (a) rights, benefits, distributions, premiums, profits, dividends,
interest, cash, instruments, documents of title, accounts, contract rights, inventory, equipment,
general intangibles, payment intangibles, deposit accounts, chattel paper, and other property from
time to time received, receivable, or otherwise distributed in respect of or in exchange for, or as
a replacement of or a substitution for, any of the Collateral, or proceeds thereof (including any
cash, Equity Interests, or other instruments issued after any recapitalization, readjustment,
reclassification, merger or consolidation with respect to the Issuers and any security
entitlements, as defined in Section 8-102(a)(17) of the UCC, with respect thereto); (b) “proceeds,”
as such term is defined in Section 9-102(a)(64) of the UCC; (c) proceeds of any insurance,
indemnity, warranty, or guaranty (including guaranties of delivery) payable from time to time with
respect to any of the Collateral, or proceeds thereof; and (d) payments (in any form whatsoever)
made or due and payable to a Pledgor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral, or proceeds
thereof.
“Secured Beneficiary” means the Pledgee, the Lenders and the Derivatives Contracts
Beneficiaries.
“Secured Obligations” means, collectively, (a) with respect to the Borrower, the
unpaid principal of and interest on all Loans, all Reimbursement Obligations, all other Letter of
Credit Liabilities and all other indebtedness, liabilities, obligations, covenants and duties of
the Borrower owing to the Pledgee or any Lender (or, in the case of any Derivatives Contract, any
Derivatives Contracts Beneficiary) of any kind, nature or description, under or in respect of the
Credit Agreement or any other Loan Document to which the Borrower is a party, or any Derivatives
Contract entered into by the Borrower with any Person that is a Derivatives Contracts Beneficiary,
whether direct or indirect, absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, and including all interest (including interest that accrues after the
filing of a case under the Bankruptcy Code) and any and all costs, fees (including reasonable
attorneys fees), and expenses which the Borrower is required to pay pursuant to any of the
foregoing, under Applicable Law, or otherwise and (b) with respect to any other Pledgor, all
indebtedness, liabilities, obligations, covenants and duties of such Pledgor owing to the Pledgee
or any Lender (or, in the case of any Derivatives Contract, any Derivatives Contracts Beneficiary)
of any kind, nature or description, under or in respect of the Guaranty or any other Loan Document
to which such Pledgor is a party, or any Derivatives Contract entered
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into by such Pledgor that is and at all times remains a Guarantor with any Person that is a
Derivatives Contracts Beneficiary, whether direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and including all interest
(including interest that accrues after the filing of a case under the Bankruptcy Code) and any and
all costs, fees (including reasonable attorneys fees), and expenses which such Pledgor is required
to pay or has guaranteed pursuant to any of the foregoing, under Applicable Law, or otherwise.
“Securities Act” means the Securities Act of 1933, as amended.
“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.
Section 2. Pledge. As security for the prompt performance and payment in full of the
Secured Obligations, each Pledgor hereby pledges to the Pledgee for the benefit of the Secured
Beneficiaries, and grants to the Pledgee for the benefit of the Secured Beneficiaries a security
interest in, all of such Pledgor’s right, title and interest in, to and under the following
(collectively, the “Collateral”):
(a) all Equity Interests now or hereafter owned, acquired or held by such Pledgor, including
without limitation, the Equity Interests described in Schedule 1 attached hereto;
(b) all other Investments of such Pledgor;
(c) all payments due or to become due to such Pledgor in respect of any of the foregoing;
(d) all of such Pledgor’s claims, rights, powers, privileges, authority, puts, calls, options,
security interests, liens and remedies, if any, in respect of any of the foregoing;
(e) all of such Pledgor’s rights to exercise and enforce any and every right, power, remedy,
authority, option and privilege of such Pledgor relating to any of the foregoing including, without
limitation, any power to (i) terminate, cancel or modify any agreement, (ii) execute any
instruments and to take any and all other action on behalf of and in the name of such Pledgor in
respect of any of the foregoing and the applicable Issuer thereof, (iii) exercise voting rights or
make determinations, (iv) exercise any election (including, but not limited to, election of
remedies), (v) exercise any “put”, right of first offer or first refusal, or other option, (vi)
exercise any right of redemption or repurchase, (vii) give or receive any notice, consent,
amendment, waiver or approval, (viii) demand, receive, enforce, collect or receipt for any of the
foregoing, (ix) enforce or execute any checks, or other instruments or orders, and (x) file any
claims and to take any action in connection with any of the foregoing;
(f) all certificates and instruments representing or evidencing any of the foregoing;
(g) all other rights, titles, interests, powers, privileges and preferences pertaining to any
of the foregoing; and
(h) all Proceeds of any of the foregoing.
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Notwithstanding the foregoing, the Collateral shall not include any Equity Interest of any
Unpledgeable Subsidiary or any other entity exempted under Section 7.12(b) of the Credit Agreement.
Section 3. Representations and Warranties. Each Pledgor hereby represents and
warrants to the Pledgee and the Lenders as follows:
(a) Title and Liens. Such Pledgor is, and will at all times continue to be, the legal
and beneficial owner of the Collateral of such Pledgor unless the Pledgor is released as provided
in the Credit Agreement. None of the Collateral is subject to any adverse claim or other Lien
other than Permitted Liens. No Person has control of any of the Collateral other than the Pledgee.
(b) Authorization. Such Pledgor has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform this Agreement in accordance with its
terms. The execution, delivery and performance of this Agreement in accordance with its terms,
including the granting of the security interest hereunder, do not and will not, by the passage of
time, the giving of notice, or both: (i) require any Governmental Approval or violate any
Applicable Law (including any Environmental Law) relating to such Pledgor; (ii) conflict with,
result in a breach of or constitute a default under the organizational documents of such Pledgor,
or any indenture, agreement or other instrument to which such Pledgor is a party or by which it or
any of the Collateral of such Pledgor or its other property may be bound, except to the extent the
exercise of remedies with respect to Equity Interests subject to the Lien of this Agreement may
require compliance with a “change in control” provision or other similar change in ownership
provision contained in an indenture, agreement or other instrument to which the Issuer of such
Equity Interest is a party; or (iii) result in or require the creation or imposition of any Lien
upon or with respect to any of the Collateral of such Pledgor or such Pledgor’s other property
whether now owned or hereafter acquired.
(c) Validity and Perfection of Security Interest. This Agreement is effective to
create in favor of the Pledgee, for the benefit of the Secured Beneficiaries, a legal, valid and
enforceable first-priority security interest in the Collateral. Such security interest will be
perfected in the Collateral of each Pledgor (i) with respect to any such Collateral that is a
“security” (as such term is defined in the UCC) and is evidenced by a certificate, when such
Collateral is delivered to the Pledgee with duly executed stock powers with respect thereto, (ii)
with respect to any such Collateral that is a “security” (as such term is defined in the UCC) but
is not evidenced by a certificate, when UCC financing statements in appropriate form are filed in
the appropriate filing offices in the jurisdiction of organization of such Pledgor or when control
is established by the Pledgee over such interests in accordance with the provision of Section 8-106
of the UCC, or any successor provision, and (iii) with respect to any such Collateral that is not a
“security” (as such term is defined in the UCC), when UCC financing statements in appropriate form
are filed in the appropriate filing offices in the jurisdiction of organization of such Pledgor.
Except as set forth in this subsection, no action is necessary to perfect the security interest
granted by any Pledgor under this Agreement.
(d) Pledged Equity Interests. The information set forth on Schedule 1 hereto with
respect to the Collateral of such Pledgor is true and correct.
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(e) Name, Organization, Etc. Such Pledgor’s exact legal name, type of legal entity,
jurisdiction of formation, organizational identification number and location of its chief executive
office are as set forth on Schedule 1. Except as set forth on such Schedule, since the date of
such Pledgor’s formation, such Pledgor has not changed its name or merged with or otherwise
combined its business with any other Person.
(f) Authorization of Equity Interest. All Equity Interests which constitute
Collateral are duly authorized, validly issued, fully paid and nonassessable and are not subject to
preemptive rights of any Person.
(g) Interests in Partnerships and LLCs. None of the Collateral consisting of an
interest in a partnership or in a limited liability company (i) is dealt in or traded on a
securities exchange or in securities markets, (ii) by its terms expressly provides that it is a
security governed by Article 8 of the UCC, (iii) is an investment company security, (iv) otherwise
constitutes a security or (v) constitutes a financial asset.
Section 4. Covenants. Each Pledgor hereby unconditionally covenants and agrees as
follows:
(a) No Liens; No Sale of Collateral. Such Pledgor will not create, assume, incur or
permit or suffer to exist any adverse claim or other Lien on any of the Collateral other than
Permitted Liens and shall not enter into any document, instrument or agreement (other than this
Agreement) which prohibits or purports to prohibit the creation or assumption of any Lien on any of
the Collateral. Except as expressly permitted by any Loan Document, such Pledgor will not sell,
lease, lend, assign, transfer or otherwise dispose of all or any portion of the Collateral (or any
interest therein).
(b) Change of Name, Etc. Without giving the Pledgee at least 30-days’ prior written
notice and to the extent such action is not otherwise prohibited by any of the Loan Documents, such
Pledgor shall not: (i) change its name; (ii) reorganize or otherwise become formed under the laws
of another jurisdiction or (iii) become bound by a security agreement of another Person under
Section 9-203(d) of the UCC.
(c) Defense of Title. Such Pledgor will warrant and defend its title to and ownership
of the Collateral of such Pledgor, at its sole cost and expense, against the claims of all Persons.
(d) Delivery of Certificates, Etc. If a Pledgor shall receive any certificate
(including, without limitation, any certificate representing a stock and/or liquidating dividends,
other distributions in property, return of capital or other distributions made on or in respect of
the Collateral, whether resulting from a subdivision, combination or reclassification of
outstanding Equity Interests or received in exchange for Collateral or any part thereof or as a
result of any merger, consolidation, acquisition or other exchange of assets or on the liquidation,
whether voluntary or involuntary, or otherwise), instrument, option or rights in respect of any
Collateral, whether in addition to, in substitution of, as a conversion of, or in exchange for, any
Collateral, or otherwise in respect thereof, such Pledgor shall hold the same in trust for the
Secured Beneficiaries and promptly deliver the same to the Pledgee in the exact form received, duly
indorsed by such Pledgor to the Pledgee, if required, together with an undated stock power
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covering such certificate (or other appropriate instrument of transfer) duly executed in blank
by such Pledgor and with, if the Pledgee so requests, signature guaranteed, to be held by the
Pledgee, subject to the terms of this Agreement, as Collateral.
(e) Uncertificated Securities. With respect to any Collateral that constitutes a
security and is not represented or evidenced by a certificate or instrument, such Pledgor shall
cause the Issuer thereof either (i) to register the Pledgee as the registered owner of such
security or (ii) to agree in writing with the Pledgee and such Pledgor that such Issuer will comply
with the instructions with respect to such security originated by the Pledgee without further
consent of such Pledgor.
(f) Security Entitlements and Securities Accounts. With respect to any Collateral
consisting of a security entitlement or a securities account (other than any securities account, or
any security entitlement credited or required to be credited to a securities account, with an
individual average balance during any 30-day period of less than $100,000), such Pledgor shall, and
shall cause the applicable securities intermediary to, enter into an agreement with, and in form
and substance reasonably acceptable to, the Pledgee, granting control to the Pledgee over such
Collateral.
(g) Additional Shares. Such Pledgor shall not permit any Issuer to issue any
additional Equity Interests unless such Equity Interests are pledged hereunder as provided herein.
Further, such Pledgor shall not permit any Issuer to amend or modify its articles or certificate of
incorporation, articles of organization, certificate of limited partnership, by-laws, operating
agreement, partnership agreement or other comparable organizational instrument in a manner which
would adversely affect the voting, liquidation, preference or other similar rights of any holder of
the Equity Interests pledged hereunder.
(h) Issuer Acknowledgment. Such Pledgor shall, upon the Pledgee’s request therefor,
cause each Issuer of Collateral pledged by such Pledgor and which Issuer is not a Pledgor itself,
to execute and deliver to the Pledgee an Acknowledgment and Consent substantially in the form of
Schedule 2 attached hereto.
Section 5. Voting Rights; Dividends, etc.
(a) So long as no Event of Default exists:
(i) each Pledgor shall be entitled to exercise any and all voting and/or consensual
rights and powers accruing to an owner of the Collateral or any part thereof for any purpose
not inconsistent with the terms and conditions of any of the Loan Documents or any agreement
giving rise to or otherwise relating to any of the Secured Obligations; and
(ii) each Pledgor shall be entitled to retain and use any and all cash dividends or
interest paid on the Collateral in the normal course of the applicable Issuer’s business,
but any and all stock and/or liquidating dividends, other distributions in property, return
of capital or other distributions made on or in respect of the Collateral, whether resulting
from a subdivision, combination or reclassification of outstanding Equity Interests or
received in exchange for Collateral or any part thereof or as a result of any merger,
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consolidation, acquisition or other exchange of assets or on the liquidation, whether
voluntary or involuntary, or otherwise, shall be and become part of the Collateral and, if
received by a Pledgor, shall forthwith be delivered to the Pledgee.
The Pledgee agrees to execute and deliver to a Pledgor, or cause to be executed and delivered to a
Pledgor, as appropriate, at the sole cost and expense of such Pledgor, all such proxies, powers of
attorney, dividend orders and other instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers which
such Pledgor is entitled to exercise pursuant to clause (i) above and/or to receive the dividends
which such Pledgor is authorized to retain pursuant to clause (ii) above.
(b) If an Event of Default exists, all rights of a Pledgor to exercise the voting and/or
consensual rights and powers which a Pledgor is entitled to exercise pursuant to subsection (a)(i)
above and/or to receive the dividends and distributions which a Pledgor is authorized to receive
and retain pursuant to subsection (a)(ii) above shall cease, and all such rights thereupon shall
become immediately vested in the Pledgee, which shall have the sole and exclusive right and
authority to exercise such voting and/or consensual rights and powers which any Pledgor shall
otherwise be entitled to exercise pursuant to subsection (a)(i) above and/or to receive and retain
the dividends and distributions which any Pledgor shall otherwise be authorized to retain pursuant
to subsection (a)(ii) above. Any and all money and other property paid over to or received by the
Pledgee pursuant to the provisions of this subsection (b) shall be retained by the Pledgee as
additional Collateral hereunder and shall be applied in accordance with the provisions of Section
7. If any Pledgor shall receive any dividends, distributions or other property which it is not
entitled to receive under this Section, such Pledgor shall hold the same in trust for the Secured
Beneficiaries, without commingling the same with other funds or property of or held by such
Pledgor, and shall promptly deliver the same to the Pledgee, in the identical form received,
together with any necessary endorsements.
Section 6. Remedies.
In addition to any right or remedy that any Secured Beneficiary may have under the other Loan
Documents or otherwise under Applicable Law, if an Event of Default shall exist, the Pledgee may
exercise any and all the rights and remedies of a secured party under the UCC and may otherwise
sell, assign, transfer, endorse and deliver the whole or, from time to time, any part of the
Collateral at a public or private sale or on any securities exchange, for cash, upon credit or for
other property, for immediate or future delivery, and for such price or prices and on such terms as
the Pledgee in its discretion shall deem appropriate. With respect to any Collateral held or
maintained with a securities intermediary, the Pledgee shall be entitled to notify such securities
intermediary that such securities intermediary should follow the entitlement orders of the Pledgee
and that such securities intermediary should no longer follow entitlement orders of the Pledgor,
without further consent of the Pledgor. The Pledgee shall have the right (in its sole and absolute
discretion) to register any Equity Interests which are part of the Collateral in its own name as
pledgee or the name of its nominee (as Pledgee or as sub-agent), endorsed or assigned in blank or
in favor of the Pledgee. The Pledgee shall be authorized at any sale (if it deems it advisable to
do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing the Collateral for their own account in compliance with the Securities Act
and any other Applicable Law and upon consummation of any such sale the
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Pledgee shall have the right to assign, transfer, endorse and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each purchaser at any sale of Collateral shall take and
hold the property sold absolutely free from any claim or right on the part of any Pledgor, and each
Pledgor hereby waives (to the fullest extent permitted by Applicable Law) all rights of redemption,
stay and/or appraisal which such Pledgor now has or may at any time in the future have under any
Applicable Law now existing or hereafter enacted. Each Pledgor agrees that, to the extent notice
of sale shall be required by Applicable Law, at least 10 days’ prior written notice to such Pledgor
of the time and place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Pledgee may fix and shall state
in the notice or publication (if any) of such sale. At any such sale, the Collateral, or portion
thereof to be sold, may be sold in one lot as an entirety or in separate parcels, as the Pledgee
may determine in its sole and absolute discretion. The Pledgee shall not be obligated to make any
sale of the Collateral if it shall determine not to do so regardless of the fact that notice of
sale of the Collateral may have been given. The Pledgee may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without further notice, be
made at the time and place to which the same was so adjourned. In case the sale of all or any part
of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained
by the Pledgee until the sale price is paid by the purchaser or purchasers thereof, but neither the
Pledgee nor any other Secured Beneficiary shall incur any liability to any Pledgor in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of
any such failure, such Collateral may be sold again upon like notice. At any public sale made
pursuant to this Agreement, the Pledgee, any Lender and any other holder of any of the Secured
Obligations, to the extent permitted by Applicable Law, may bid for or purchase, free from any
right of redemption, stay and/or appraisal on the part of any Pledgor (all said rights being also
hereby waived and released to the extent permitted by Applicable Law), any part of or all the
Collateral offered for sale. For purposes hereof, a written agreement to purchase all or any part
of the Collateral shall be treated as a sale thereof; the Pledgee shall be free to carry out such
sale pursuant to such agreement and no Pledgor shall be entitled to the return of any Collateral
subject thereto, notwithstanding the fact that after the Pledgee shall have entered into such an
agreement all Events of Default may have been remedied or the Secured Obligations may have been
paid in full as herein provided. Each Pledgor hereby waives any right to require any marshaling of
assets and any similar right. In addition to exercising the power of sale herein conferred upon
it, the Pledgee shall also have the option to proceed by suit or suits at law or in equity to
foreclose this Agreement and sell the Collateral or any portion thereof pursuant to judgment or
decree of a court or courts having competent jurisdiction. The rights and remedies of the Secured
Beneficiaries under this Agreement are cumulative and not exclusive of any rights or remedies which
any of them otherwise have.
Section 7. Application of Proceeds of Sale and Cash. The proceeds of any sale of the
whole or any part of the Collateral upon the exercise of remedies pursuant to Section 6 of this
Agreement, together with any other moneys held by the Pledgee under the provisions of this
Agreement, shall be applied in accordance with Section 10.4. of the Credit Agreement. Each Pledgor
shall remain liable and will pay, on demand, any deficiency remaining in respect of the Secured
Obligations.
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Section 8. Pledgee Appointed Attorney-in-Fact. Each Pledgor hereby constitutes and
appoints the Pledgee as the attorney-in-fact of such Pledgor with full power of substitution either
in the Pledgee’s name or in the name of such Pledgor to do any of the following: (a) to perform any
obligation of such Pledgor hereunder in such Pledgor’s name or otherwise; (b) to ask for, demand,
xxx for, collect, receive, receipt and give acquittance for any and all moneys due or to become due
under and by virtue of any Collateral; (c) to prepare, execute, file, record or deliver notices,
assignments, financing statements, continuation statements, applications for registration or like
papers to perfect, preserve or release the Pledgee’s security interest in the Collateral; (d) to
issue entitlement orders, instructions and other orders to any securities intermediary in
connection with any of the Collateral held by or maintained with such securities intermediary; (e)
to verify facts concerning the Collateral in such Pledgor’s name, its own name or a fictitious
name; (f) to endorse checks, drafts, orders and other instruments for the payment of money payable
to such Pledgor, representing any interest or dividend or other distribution payable in respect of
the Collateral or any part thereof or on account thereof and to give full discharge for the same;
(g) to exercise all rights, powers and remedies which such Pledgor would have, but for this
Agreement, with respect to any of the Collateral; and (h) to carry out the provisions of this
Agreement and to take any action and execute any instrument which the Pledgee may deem necessary or
advisable to accomplish the purposes hereof, and to do all acts and things and execute all
documents in the name of such Pledgor or otherwise, deemed by the Pledgee as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its rights hereunder;
provided, however, the Pledgee may only exercise its rights described in the immediately preceding
clauses (a), (b), (d) and (g) if an Event of Default exists; provided further, that the Pledgee
will give notice to the Borrower as soon as reasonably possible upon its exercise of the rights
under the immediately preceding clauses (a) through (h), except (1) any such notice regarding the
exercise of rights under the immediately preceding clauses (a), (b), (d) or (g) shall be given if
and to the extent required by Applicable Law and (2) in no event will the failure to give such
notice have any effect on the validity of the exercise of any such right or give rise to liability
on the part of any Secured Beneficiary. Nothing herein contained shall be construed as requiring
or obligating any Secured Beneficiary to make any commitment or to make any inquiry as to the
nature or sufficiency of any payment received by it, or to present or file any claim or notice, or
to take any action with respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no action taken by the Pledgee
or omitted to be taken with respect to the Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of any Pledgor or to any claim or action against the
Pledgee. The power of attorney granted herein is irrevocable and coupled with an interest.
Section 9. Pledgee’s Duty of Care. Other than the exercise of reasonable care to
ensure that safe custody of the Collateral while being held by the Pledgee hereunder, the Pledgee
shall have no duty or liability to preserve rights pertaining thereto, it being understood and
agreed that each Pledgor shall be responsible for preservation of all rights of such Pledgor in the
Collateral. The Pledgee shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Pledgee accords its own property, it being understood that
the Pledgee shall not have responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters relating to any Collateral,
whether or
E-9
not the Pledgee has or is deemed to have knowledge of such matters or (b) taking any necessary
steps to preserve rights against any parties with respect to any Collateral.
Section 10. Reimbursement of Pledgee. Each Pledgor agrees to pay upon demand to the
Pledgee the amount of any and all expenses, including the reasonable fees, disbursements and other
charges of its counsel and of any experts or agents, and its fully allocated internal costs, that
the Pledgee may incur in connection with (a) the administration of this Agreement, (b) the custody
or preservation of, or any sale of, collection from, or other realization upon, any of the
Collateral, (c) the exercise or enforcement of any of the rights of the Pledgee hereunder, or (d)
the failure by any Pledgor to perform or observe any of the provisions hereof or otherwise in
respect of the Collateral.
Section 11. Indemnification. Each Pledgor agrees to pay, indemnify, and hold the
Pledgee, each other Secured Beneficiary and each of their respective predecessor, affiliate,
subsidiaries, successors and assigns, together with their past, present and future officers,
directors, agents, attorneys, financial advisors, representatives, partners, joint ventures,
affiliates and the successor and assigns of any and all of them (each, an “Indemnified Person”)
harmless from and against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever
(“Indemnified Amounts”) brought against or incurred by an Indemnified Person, in any manner arising
out of or, directly or indirectly, related in any way to or connected with this Agreement,
including without limitation, the exercise by any Secured Beneficiary of any of its rights and
remedies under this Agreement or any other action taken by any Secured Beneficiary pursuant to the
terms of this Agreement; provided, however, a Pledgor shall have no obligation hereunder to any
Indemnified Person with respect to Indemnified Amounts to the extent arising from the gross
negligence or willful misconduct of such Indemnified Party, as determined by a court of competent
jurisdiction in a final, non-appealable judgment.
Section 12. Further Assurances. Each Pledgor shall, at its sole cost and expense,
take all action that may be necessary or desirable in the Pledgee’s sole discretion, so as at all
times to maintain the validity, perfection, enforceability and priority of the Pledgee’s security
interest in the Collateral, or to enable the Pledgee to exercise or enforce its rights hereunder,
including without limitation or otherwise in respect of the Collateral. The Pledgee shall at all
times have the right to exchange the certificates representing such Equity Interests for
certificates of smaller or larger numbers of shares for any purpose consistent with this Agreement.
Section 13. Securities Act. In view of the position of the Pledgors in relation to
the Collateral, or because of other current or future circumstances, a question may arise under the
Securities Act, or any similar Applicable Law hereafter enacted analogous in purpose or effect (the
Securities Act and any such similar Applicable Law as from time to time in effect being called the
“Federal Securities Laws”) with respect to any disposition of the Collateral permitted hereunder.
Each Pledgor understands that compliance with the Federal Securities Laws might very strictly limit
the course of conduct of the Pledgee if the Pledgee were to attempt to dispose of all or any part
of the Collateral in accordance with the terms hereof, and might also limit the extent to which or
the manner in which any subsequent transferee of any Collateral could dispose of the same.
Similarly, there may be other legal restrictions or limitations affecting the Pledgee in any
attempt to dispose of all or part of the Collateral in accordance with the terms hereof
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under applicable Blue Sky or other state securities laws or similar Applicable Law analogous
in purpose or effect. Each Pledgor recognizes that in light of the foregoing restrictions and
limitations the Pledgee may, with respect to any sale of the Collateral, limit the purchasers to
those who will agree, among other things, to acquire such Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each Pledgor acknowledges
and agrees that in light of the foregoing restrictions and limitations, the Pledgee, in its sole
and absolute discretion, may, in accordance with Applicable Law, (a) proceed to make such a sale
whether or not a registration statement for the purpose of registering such Collateral or part
thereof shall have been filed under the Federal Securities Laws and (b) approach and negotiate with
a single potential purchaser to effect such sale. Each Pledgor acknowledges and agrees that any
such sale might result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the Pledgee shall
incur no responsibility or liability for selling all or any part of the Collateral in accordance
with the terms hereof at a price that the Pledgee, in its sole and absolute discretion, may in good
xxxxx xxxx reasonable under the circumstances, notwithstanding the possibility that a substantially
higher price might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. To the extent permitted by
Applicable Law, the provisions of this Section will apply notwithstanding the existence of public
or private market upon which the quotations or sales prices may exceed substantially the price at
which the Pledgee sells.
Section 14. Continuing Security Interest. This Agreement shall create a continuing
security interest in the Collateral and shall remain in full force and effect until it terminates
in accordance with its terms.
Section 15. Security Interest Absolute. All rights of the Pledgee hereunder, the
grant of a security interest in the Collateral and all obligations of each Pledgor hereunder, shall
be absolute and unconditional irrespective of (a) any lack of validity or enforceability of any
Loan Document, any agreement with respect to any of the Secured Obligations or any other agreement
or instrument relating to any of the foregoing, (b) any change in the time, manner or place of the
payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment
or waiver of or any consent to any departure from any Loan Document, or any other agreement or
instrument relating to any of the foregoing, (c) any exchange, release or nonperfection of any
other collateral, or any release or amendment or waiver of or consent to or departure from any
guaranty, for all or any of the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Pledgor in respect of the
Secured Obligations or in respect of this Agreement (other than the indefeasible payment in full of
all the Secured Obligations).
Section 16. No Waiver. Neither the failure on the part of any Secured Beneficiary to
exercise, nor the delay on the part of any Secured Beneficiary in exercising any right, power or
remedy hereunder, nor any course of dealing between any Secured Beneficiary, on the one hand, and
any Pledgor, on the other hand, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or remedy hereunder preclude any other or the further exercise
thereof or the exercise of any other right, power or remedy.
E-11
Section 17. Notices. Notices, requests and other communications required or permitted
hereunder shall be given in accordance with, and subject to the provisions of, Section 12.1. of the
Credit Agreement, in the case of the Borrower, and Section 26 of the Guaranty, in the case of any
other Pledgor.
Section 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 19. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY AMONG ANY OF THE PLEDGORS
AND THE PLEDGEE WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN
DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PLEDGEE AND THE PLEDGORS HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST
ANY PARTY HERETO ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE COLLATERAL.
(b) EACH OF PLEDGORS AND THE PLEDGEE HEREBY AGREES THAT THE FEDERAL DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK,
NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE
PLEDGORS AND THE PLEDGEE, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE COLLATERAL OR TO
ANY MATTER ARISING HEREFROM OR THEREFROM. EACH PLEDGOR AND THE PLEDGEE EXPRESSLY SUBMIT AND
CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH
RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION
OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY
ACTION BY THE PLEDGEE OR THE ENFORCEMENT BY THE PLEDGEE OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(c) EACH PLEDGOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) ANY
CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE TIME THE PLEDGEE DISPOSES OF ALL
OR ANY PART OF THE COLLATERAL AS PROVIDED IN THIS AGREEMENT; (ii) ALL RIGHTS OF REDEMPTION, STAY,
OR APPRAISAL THAT SUCH PLEDGOR NOW HAS OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY APPLICABLE
LAW NOW
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EXISTING OR HEREAFTER ENACTED; AND (iii) EXCEPT AS EXPRESSLY REQUIRED UNDER THIS AGREEMENT OR
APPLICABLE LAW, ANY REQUIREMENT OF NOTICE, DEMAND, OR ADVERTISEMENT FOR SALE.
(d) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE SECURED OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.
Section 20. Amendments. No amendment or waiver of any provision of this Agreement nor
consent to any departure by any Pledgor herefrom shall in any event be effective unless the same
shall be in writing and signed by the parties hereto, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.
Section 21. Binding Agreement; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns
under the Credit Agreement, except that no Pledgor shall be permitted to assign this Agreement or
any interest herein or in the Collateral or any part thereof and any such assignment by a Pledgor
shall be null and void absent the prior written consent of the Pledgee. Without limiting the
foregoing, the Derivatives Contracts Beneficiaries may only assign their rights under this
agreement in accordance with the applicable provisions of the Credit Agreement.
Section 22. Termination. Upon indefeasible payment in full of all of the Secured
Obligations (other than Secured Obligations in respect of Derivatives Contracts) and termination of
the Credit Agreement in accordance with its terms, this Agreement shall terminate. Upon
termination of this Agreement in accordance with its terms, the Pledgee agrees to take such actions
as any Pledgor may reasonably request, and at the sole cost and expense of such Pledgor, to
evidence the termination of this Agreement.
Section 23. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under Applicable Law, but if any
provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provisions
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.
Section 24. Headings. Section headings used herein are for convenience only and are
not to affect the construction of or be taken into consideration in interpreting this Agreement.
Section 25. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute but one
agreement.
Section 26. Joint and Several Obligations of Pledgors. THE OBLIGATIONS OF THE
PLEDGORS HEREUNDER SHALL BE JOINT AND SEVERAL.
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Section 27. Miscellaneous. By acceptance of the benefits hereof, each Secured
Beneficiary acknowledges and agrees that its rights hereunder are subject to the terms of the
Credit Agreement, that the rights, obligations, and liabilities of the Pledgee are subject to the
terms of the Credit Agreement, and that the Collateral can be released as provided in the Credit
Agreement.
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IN WITNESS WHEREOF, each Pledgor has executed and delivered this Pledge Agreement under seal
as of this the date first written above.
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PLEDGORS:
[NAME OF PLEDGORS]
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Agreed to, accepted and acknowledged
as of the date first written above.
PLEDGEE:
KEYBANK NATIONAL ASSOCIATION, as Agent
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E-15
ANNEX 1 TO PLEDGE AGREEMENT
FORM OF PLEDGE AGREEMENT SUPPLEMENT
THIS PLEDGE AGREEMENT SUPPLEMENT dated as of ________________, 201__ (this “Supplement”)
executed and delivered by _______________, a _______________ (the “New Pledgor”) in favor of
KEYBANK NATIONAL ASSOCIATION, as Agent (the “Pledgee”).
WHEREAS, pursuant to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions from
time to time party thereto as “Lenders”, the Pledgee, and the other parties thereto, the Lenders
have agreed to make available to the Borrower certain financial accommodations on the terms and
conditions set forth in the Credit Agreement;
WHEREAS, to secure obligations owning by certain parties under the Credit Agreement and the
other Loan Documents, the Borrower and the other “Pledgors” thereunder have executed and delivered
that certain Pledge Agreement dated as of September 26, 2011 (as amended, restated, supplemented or
otherwise modified from time to time, the “Pledge Agreement”) in favor of the Pledgee;
WHEREAS, it is a condition precedent to the continued extension by the Lenders and the Pledgee
of such financial accommodations that the New Pledgor execute this Supplement to become a party to
the Pledge Agreement.
NOW, THEREFORE, in consideration of the above premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the New Pledgor, the
New Pledgor hereby agrees as follows:
Section 1. Accession to Pledge Agreement; Grant of Security Interest. The New Pledgor
agrees that it is a “Pledgor” under the Pledge Agreement and assumes all obligations of a “Pledgor”
thereunder, all as if the New Pledgor had been an original signatory to the Pledge Agreement.
Without limiting the generality of the foregoing, the New Pledgor hereby:
(a) pledges to the Pledgee for the benefit of the Secured Beneficiaries, and grants to the
Pledgee for the benefit of the Secured Beneficiaries a security interest in, all of the New
Pledgor’s right, title and interest in, to and under the Collateral, including the Equity Interests
described on Exhibit I attached hereto, as security for the Secured Obligations;
(b) makes
to the Pledgee and the Lenders as of the date hereof each of the representations and warranties contained in Section 3 of the Pledge Agreement and agrees to be
bound by each of the covenants contained in the Pledge Agreement, including without limitation,
those contained in Section 4 thereof; and
(c) consents and agrees to each other provision set forth in the Pledge Agreement.
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Section 2. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Pledge Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the New Pledgor has caused this Pledge Agreement Supplement to be duly
executed and delivered under seal by its duly authorized officers as of the date first written
above.
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[NEW PLEDGOR]
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Address for Notices:
Attention:
Telecopy Number: (__) ______________________
Telephone Number: (__)
______________________
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Accepted:
KEYBANK NATIONAL
ASSOCIATION, as Agent
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E-18
EXHIBIT I
Pledged Equity Interests
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Jurisdiction of |
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Class of Equity |
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Certificate Number |
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Percentage of |
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Issuer |
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Formation |
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Interest |
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(if any) |
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Ownership |
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This Exhibit shall be deemed to be a supplement to Schedule 1 attached to the Pledge Agreement.
E-19
SCHEDULE 1 TO PLEDGE AGREEMENT
Pledged Equity Interests:
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Jurisdiction of |
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Certificate |
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Formation of |
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Class of Equity |
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Number |
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Percentage of |
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Issuer |
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Issuer |
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Interest |
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(if any) |
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Ownership |
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Pledgor Information:
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Jurisdiction of Formation |
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E-20
SCHEDULE 2 TO PLEDGE AGREEMENT
Form of Acknowledgement and Consent
The undersigned hereby acknowledges receipt of a copy of the Pledge Agreement dated as of
September 26, 2011 (the “Pledge Agreement”), made by Ashford Hospitality Limited Partnership and
the other Pledgors party thereto in favor of KeyBank National Association, as Agent. Terms not
otherwise defined herein have the respective meanings given them in the Pledge Agreement.
The undersigned agrees for the benefit of the Pledgee and the Lenders as follows:
(a) The undersigned will be bound by, and comply with, the terms of the Pledge Agreement
applicable to the undersigned, including without limitation, Sections 4(e) and 4(g).
(b) The undersigned will notify the Pledgee in writing promptly of the occurrence of any of
the events described in Section 4(d) of the Pledge Agreement.
[(c) The undersigned will not permit any of the Equity Interests issued by it (i) to be dealt
in or traded on a securities exchange or in securities markets; or (ii) to provide by its terms
that it is a security governed by Article 8 of the
UCC.]16
IN WITNESS WHEREOF, the undersigned has executed and delivered this Acknowledgement and
Consent under seal as of this the date first written above.
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Include only if the Issuer is a partnership
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E-21
EXHIBIT F
FORM OF SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of September 26, 2011 executed and delivered by each of the
undersigned parties identified as “Grantors” on the signature pages hereto and the other Persons
who may become Grantors hereunder pursuant to the execution and delivery of a Security Agreement
Supplement substantially in the form of Annex 1 hereto (each a “Grantor” and collectively, the
“Grantors”) in favor of KEYBANK NATIONAL ASSOCIATION, as Agent (the “Secured Party”).
WHEREAS, pursuant to that certain Credit Agreement dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions from
time to time party thereto as “Lenders” and the Secured Party, the Lenders, the Secured Party and
the other parties thereto have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions contained in the Credit Agreement;
WHEREAS, the Borrower and each of the other Grantors, though separate legal entities, are
members of the same corporate family and have determined it to be in their mutual best interests to
obtain financing from the Lenders and the Secured Party through their collective efforts;
WHEREAS, each Grantor acknowledges that it will receive direct and indirect benefits from the
Lenders and the Secured Party making such financial accommodations available to the Borrower under
the Credit Agreement; and
WHEREAS, it is a condition precedent to the extension of such financial accommodations under
the Credit Agreement that the Grantors execute and deliver this Agreement, among other things, to
grant to the Secured Party for the benefit of the Secured Beneficiaries (as hereinafter defined) a
security interest in the Collateral as security for the Secured Obligations.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and for other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the
parties, the parties agree as follows:
Section 1. Definitions.
(a) The following terms shall have the following meanings:
“Additional Pledged Collateral” means any Pledged Collateral acquired by any Grantor
after the date hereof and in which a security interest is granted pursuant to Section 2, including,
to the extent a security interest is granted therein pursuant to such Section, (i) all additional
Indebtedness from time to time owed to any Grantor by any obligor on the Pledged Debt Instruments
and the Instruments evidencing such Indebtedness and (ii) all interest, cash,
F-1
Instruments and other property or Proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any of the foregoing.
“Agreement” means this Security Agreement.
“Bankruptcy Code” means United States Bankruptcy Code (11 U.S.C. Section 101 et seq.),
as in effect from time to time, and any successor statute thereto.
“Credit Agreement” has the meaning given that term in the recitals of this Agreement.
“Collateral” means, with respect to a Grantor, all of such Grantor’s right, title and
interest to and under all of the following property, whether now owned or hereafter acquired by
such Grantor or in which a Grantor now has or at any time in the future may acquire any right,
title or interest, and whether now existing or hereafter arising:
(a) all Deposit Accounts;
(b) all Instruments;
(c) all Securities Accounts;
(d) all books and records pertaining to any property described in this definition;
(e) all Supporting Obligations pertaining to any property described in this definition;
(f) all property of the types described in clauses (a) through (e) of this definition of any
Grantor held by the Secured Party, including all such property, in the possession or custody of or
in transit to the Secured Party for any purpose, including safekeeping, collection or pledge, for
the account of such Grantor or as to which such Grantor may have any right or power; and
(g) to the extent not otherwise included, all Proceeds.
When the term “Collateral” is used without reference to a Grantor, then it shall be deemed to be a
collective reference to the “Collateral” of all Grantors.
“Deposit Account” means a deposit account of a Grantor in which such Grantor maintains
any reserves for furniture, Fixtures and/or Equipment.
“Deposit Account Control Agreement” means an agreement, in form and substance
satisfactory to the Secured Party, entered into by a Grantor, the Secured Party and the bank at
which such Grantor maintains a Deposit Account giving the Secured Party control over such Deposit
Account.
“Permitted Liens” means, as to any Person: (i) Liens securing taxes, assessments and
other charges or levies imposed by any governmental authority (excluding any Lien imposed
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pursuant to any of the provisions of ERISA or pursuant to any environmental laws) or the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials,
supplies or rentals incurred in the ordinary course of business, which are not at the time required
to be paid or discharged under the applicable provisions of the Loan Documents; (ii) Liens
consisting of deposits or pledges made, in the ordinary course of business, in connection with, or
to secure payment of, obligations under workers’ compensation, unemployment insurance or similar
laws; and (iii) Liens in favor of the Secured Party for the benefit of the Secured Beneficiaries.
“Pledged Collateral” means, collectively, Pledged Debt Instruments, any other
Investment Property of any Grantor, all chattel paper, certificates or other Instruments
representing any of the foregoing and all Security Entitlements of any Grantor in respect of any of
the foregoing. Pledged Collateral may be General Intangibles, Instruments or Investment Property.
Pledged Collateral shall not include any property that constitutes “Collateral” under and as
defined in the Pledge Agreement.
“Pledged Debt Instruments” means all right, title and interest of any Grantor in
Instruments evidencing any Indebtedness owed to such Grantor, including all Indebtedness described
on Schedule 1, issued by the obligors named therein.
“Proceeds” means all proceeds (including proceeds of proceeds) of any of the
Collateral including all: (i) rights, benefits, distributions, premiums, profits, dividends,
interest, cash, Instruments, Documents, Accounts, contract rights, Inventory, Equipment, General
Intangibles, Payment Intangibles, Deposit Accounts, Chattel Paper, and other property from time to
time received, receivable, or otherwise distributed in respect of or in exchange for, or as a
replacement of or a substitution for, any of the Collateral, or proceeds thereof; (ii) “proceeds,”
as such term is defined in Section 9-102(a)(64) of the UCC; (iii) proceeds of any insurance,
indemnity, warranty, or guaranty (including guaranties of delivery) payable from time to time with
respect to any of the Collateral, or proceeds thereof; and (iv) payments (in any form whatsoever)
made or due and payable to a Grantor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral, or proceeds
thereof.
“Secured Beneficiary” means the Secured Party, the Lenders and the Derivatives
Contracts Beneficiaries.
“Secured Obligations” means, collectively, (a) with respect to the Borrower, the
unpaid principal of and interest on all Loans, all Reimbursement Obligations, all other Letter of
Credit Liabilities and all other indebtedness, liabilities, obligations, covenants and duties of
the Borrower owing to the Secured Party or any Lender (or, in the case of any Derivatives Contract,
any Derivatives Contracts Beneficiary) of any kind, nature or description, under or in respect of
the Credit Agreement or any other Loan Document to which the Borrower is a party, or any
Derivatives Contract entered into by the Borrower with any Person that is a Derivatives Contracts
Beneficiary, whether direct or indirect, absolute or contingent, due or to become due, contractual
or tortious, liquidated or unliquidated, and including all interest (including interest that
accrues after the filing of a case under the Bankruptcy Code) and any and all costs, fees
(including reasonable attorneys fees), and expenses which the Borrower is required to pay pursuant
to any of the foregoing, under Applicable Law, or otherwise and (b) with respect to any
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other Grantor, all indebtedness, liabilities, obligations, covenants and duties of such
Grantor owing to the Secured Party or any Lender (or, in the case of any Derivatives Contract, any
Derivatives Contracts Beneficiary) of any kind, nature or description, under or in respect of the
Guaranty or any other Loan Document to which such Grantor is a party, or any Derivatives Contract
entered into by such Grantor which is and at all times remains a Guarantor with any Person that is
a Derivatives Contracts Beneficiary, whether direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and including all interest
(including interest that accrues after the filing of a case under the Bankruptcy Code) and any and
all costs, fees (including reasonable attorneys fees), and expenses which such Grantor is required
to pay or has guaranteed pursuant to any of the foregoing, under Applicable Law, or otherwise.
“Securities Account” means a securities account of a Grantor in which such Grantor
maintains any reserves for furniture, Fixtures and/or Equipment.
“Securities Account Control Agreement” means an agreement, in form and substance
satisfactory to the Secured Party, entered into by a Grantor, the Secured Party and the Securities
Intermediary at which such Grantor maintains a Securities Account giving the Secured Party control
over such Securities Account.
“UCC” means the Uniform Commercial Code as from time to time in effect in the State of
New York; provided, however, to the extent that, by reason of mandatory provisions of law, any of
the attachment, perfection, or priority of, or remedies with respect to, the Secured Party’s
security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial
Code as in effect in such other jurisdiction solely for purposes of the provisions hereof relating
to such attachment, perfection, priority or remedies and for purposes of definitions related to
such provisions.
(b) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
have the respective meanings given them in the Credit Agreement.
(c) Terms used herein without definition that are defined in the UCC have the respective
meanings given them in the UCC and if defined in more than one article of the UCC, such terms shall
have the meaning defined in Article 9 of the UCC, including the following terms (which are
capitalized herein):
“Account”
“Certificated Security”
“Chattel Paper”
“Documents”
“Entitlement Holder”
“Entitlement Order”
“Equipment”
“Financial Asset”
“Fixtures”
“General Intangible”
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“Goods”
“Instruments”
“Inventory”
“Investment Property”
“Securities Intermediary”
“Security”
“Security Entitlement”
“Supporting Obligation”
“Uncertificated Security”
“Payment Intangible”
(d) In this Agreement, in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to” and “until” each mean
“to but excluding” and the word “through” means “to and including.” The terms “herein,” “hereof,”
“hereto” and “hereunder” and similar terms refer to this Agreement as a whole and not to any
particular Article, Section, subsection or clause in this Agreement. Unless otherwise noted,
references herein to an Annex, Schedule, Section, subsection or clause refer to the appropriate
Annex or Schedule to, or Section, subsection or clause of this Agreement. The meanings given to
terms defined herein shall be equally applicable to both the singular and plural forms of such
terms. Where the context requires, provisions relating to any Collateral, when used in relation to
a Grantor, shall refer to such Grantor’s Collateral or any relevant part thereof. Any reference in
this Agreement to a Loan Document shall include all appendices, exhibits and schedules thereto,
and, unless specifically stated otherwise all amendments, restatements, supplements or other
modifications thereto, and as the same may be in effect at any time such reference becomes
operative. The term “including” means “including without limitation” except when used in the
computation of time periods. The terms “Lender,” “Secured Beneficiary,” and “Secured Party”
include their respective successors and permitted assigns.
Section 2. Grant of Security Interests in Collateral. Each Grantor, as security for
the full, prompt and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Secured Obligations, hereby mortgages, pledges and hypothecates
to the Secured Party for the benefit of the Secured Beneficiaries, and grants to the Secured Party
for the benefit of the Secured Beneficiaries a lien on and security interest in, all of such
Grantor’s right, title and interest in, to and under the Collateral of such Grantor.
Section 3. Grantors Remain Obligated. Notwithstanding any other provision of this
Agreement to the contrary, (a) each Grantor shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each and every contract or
other agreement included as part of the Collateral, all in accordance with the terms of each such
contract and agreement, (b) no Secured Beneficiary shall have any obligation or liability under any
contract or other agreement included as part of the Collateral by reason of or arising out of this
Agreement or the receipt by any Secured Beneficiary of any payment relating thereto, (c) the
exercise by the Secured Party of any rights under this Agreement or otherwise in respect of the
Collateral shall not release any Grantor from its obligations under any contract or other agreement
included as part of the Collateral and (d) no Secured Beneficiary shall be obligated to take any of
the following actions with respect to any contract or other agreement included as part of the
Collateral: (i) perform any obligation of any Grantor, (ii) make any payment, (iii) make
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any inquiry as to the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party, (iv) present or file any claim or (v) take any action
to enforce any performance or to collect the payment of any amounts that may have been assigned to
it or to which it may be entitled at any time or times.
Section 4. Representations and Warranties. Each Grantor represents and warrants to
the Secured Party and the Lenders as follows:
(a) Title and Liens. Such Grantor is, and will at all times continue to be, the legal
and beneficial owner of the Collateral of such Grantor except for Collateral disposed of by such
Grantor as expressly permitted by any Loan Document. Not in limitation of the preceding sentence,
such Grantor is the Entitlement Holder of all Investment Property held in a Securities Account of
such Grantor. None of the Collateral is subject to any adverse claim or other Lien other than
Permitted Liens.
(b) Authorization. Such Grantor has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform this Agreement in accordance with its
terms. The execution, delivery and performance of this Agreement in accordance with its terms,
including the granting of the security interest hereunder, do not and will not, by the passage of
time, the giving of notice, or both: (i) require any Government Approval or violate any Applicable
Law (including any Environmental Law) relating to such Grantor; (ii) require and consent or
approval of, or authorization, order or other action by, any Governmental Authority or other
Person, (iii) conflict with, result in a breach of or constitute a default under the organizational
documents of such Grantor, or any indenture, agreement or other instrument to which such Grantor is
a party or by which it or any of the Collateral of such Grantor or its other property may be bound;
or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of
the Collateral of such Grantor or such Grantor’s other property whether now owned or hereafter
acquired.
(c) Validity and Perfection of Security Interest. This Agreement is effective to
create in favor of the Secured Party, for the benefit of the Secured Beneficiaries, a legal, valid
and enforceable first-priority security interest in the Collateral other than any Deposit Account
or Securities Account with respect to which, in accordance with Section 5(e), no Deposit Account
Control Agreement or Securities Account Control Agreement has been delivered. Such security
interest will be perfected upon (i) in the case of all Collateral in which a security interest may
be perfected by the filing of a financing statement under the UCC, the completion of the filings
and other actions specified on Schedule 2 (which, in the case of all filings and other documents
referred to on such Schedule, have been delivered to the Secured Party in completed and duly
executed form), (ii) the delivery to the Secured Party of all Collateral consisting of Instruments
and Certificated Securities, in each case properly endorsed for transfer to the Secured Party or in
blank, (iii) the execution of Securities Account Control Agreements with respect to Investment
Property not in certificated form, and (iv) the execution of Deposit Account Control Agreements
with respect to all Deposit Accounts of a Grantor. Except as set forth in this subsection, no
action is necessary to perfect the security interest granted by any Grantor under this Agreement.
Each such security interest shall be prior to all other Liens on the Collateral except for
Permitted Liens having priority over the Secured Party’s security interest solely by operation of
Applicable Law.
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(d) Jurisdiction of Formation, Locations, Etc. Such Grantor’s jurisdiction of
organization, exact legal name, organizational identification number, if any, and the location of
such Grantor’s chief executive office or sole place of business, in each case as of the date
hereof, is specified on Schedule 3 and such Schedule also lists all jurisdictions of incorporation,
legal names and locations of such Grantor’s chief executive office or sole place of business for
the five years preceding the date hereof.
(e) Pledged Collateral. All Pledged Collateral and, if applicable, any Additional
Pledged Collateral, consisting of Certificated Securities or Instruments has been delivered to the
Secured Party in accordance with Section 5(f) or (g).
(f) Deposit Accounts and Securities Accounts. Schedule 4 sets forth all Deposit
Accounts and Securities Accounts maintained by any Grantor on the date hereof or on the date of the
delivery of any update to such Schedule pursuant to the terms hereof, which sets forth such
information separately for each Grantor.
Section 5. Covenants. Each Grantor hereby unconditionally covenants and agrees as
follows:
(a) No Liens, Sale, Etc. Such Grantor shall (i) except for the security interests
created by this Agreement, not create or suffer to exist any Lien upon or with respect to any
Collateral, except Permitted Liens, (ii) not sell, transfer or assign (by operation of law or
otherwise) any Collateral except as expressly permitted under the Loan Documents, and (iii) not
enter into any agreement or undertaking restricting the right or ability of such Grantor or the
Secured Party to sell, assign or transfer, or grant any Lien in, any Collateral except as expressly
permitted under the Loan Documents.
(b) Maintenance of Perfection. Such Grantor shall maintain the security interests
created by this Agreement as perfected security interests having at least the priority described in
Section 4(c) and shall defend such security interests and the applicable priorities of such
security interests against the claims and demands of all Persons.
(c) Statements of Collateral. Such Grantor shall furnish to the Secured Party from
time to time statements and schedules further identifying and describing the Collateral and such
other reports in connection with the Collateral as the Secured Party may reasonably request, all in
reasonable detail and in form and substance reasonably satisfactory to the Secured Party.
(d) Changes in Locations, Name, Etc. Unless a Grantor shall have given the Secured
Party at least 30 days’ prior written notice (or such shorter time as shall be acceptable to the
Secured Party) and shall have delivered to the Secured Party all additional financing statements
and other documents reasonably requested by the Secured Party to maintain the validity, perfection
and priority of the security interests provided for herein, such Grantor shall not do any of the
following:
(i) change its jurisdiction of organization or its location, in each case from that
referred to in Section 4(d); or
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(ii) change its legal name or organizational identification number, if any, or
corporation, limited liability company or other organizational structure to such an extent
that any financing statement filed in connection with this Agreement would become
misleading.
(e) Control Agreements. Each Grantor shall obtain and deliver to the Secured Party an
authenticated Deposit Account Control Agreement, from each bank holding a Deposit Account (other
than any Deposit Account having an individual average balance during any 30-day period of less than
$100,000) for such Grantor. Each Grantor shall obtain an authenticated Securities Account Control
Agreement from each Securities Intermediary issuing or holding any Securities Account (other than
any Securities Account having an individual average balance during any 30-day period of less than
$100,000) to or for any Grantor.
(f) Pledged Collateral. Within 30 days of any Grantor acquiring possession of any
certificates and Instruments representing or evidencing Pledged Collateral (including Additional
Pledged Collateral), such Grantor shall deliver to the Secured Party, all such certificates and
Instruments representing or evidencing any Pledged Collateral (including Additional Pledged
Collateral), whether now existing or hereafter acquired, in suitable form for transfer by delivery
or, as applicable, accompanied by such Grantor’s endorsement, where necessary, or duly executed
instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory
to the Secured Party. While an Event of Default exists, the Secured Party shall have the right, at
any time in its discretion and without notice to any Grantor, (i) to transfer to or to register in
its name or in the name of its nominees any Pledged Collateral and (ii) to exchange any certificate
or instrument representing or evidencing any Pledged Collateral for certificates or instruments of
smaller or larger denominations. Except as permitted by the Credit Agreement, such Grantor shall
not grant control over any Investment Property that is Collateral to any Person other than the
Secured Party.
(g) Delivery of Instruments. Within 30 days of any Grantor acquiring possession of
any Instrument payable to such Grantor, such Grantor shall deliver to the Secured Party each such
Instrument, duly indorsed in a manner reasonably satisfactory to the Secured Party.
(h) Further Assurances. At any time and from time to time, at the request of the
Secured Party, and at the sole expense of such Grantor, such Grantor shall promptly and duly
execute and deliver, and have recorded, such further instruments and documents and take such
further action as the Secured Party may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and of the rights and powers herein granted,
including the filing of any financing or continuation statement under the UCC (or other similar
laws) in effect in any jurisdiction with respect to the security interests created hereby and the
execution and delivery of Securities Account Control Agreements and Deposit Account Control
Agreements.
Section 6. Remedial Provisions.
(a) General Remedies. While an Event of Default exists, the Secured Party may
exercise, in addition to all other rights and remedies granted to it in this Agreement and in any
other instrument or agreement securing, evidencing or relating to the Secured Obligations, all
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rights and remedies of a secured party under the UCC or any other Applicable Law. Without
limiting the generality of the foregoing, the Secured Party, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any notice required by
Applicable Law referred to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived by each Grantor), may in such
circumstances forthwith collect, receive, appropriate and realize upon any Collateral, and may
forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and
deliver any Collateral (or contract to do any of the foregoing), in one or more parcels at public
or private sale or sales, at any exchange, broker’s board or office of any Secured Beneficiary or
elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any credit risk. The
Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted
by the UCC and other Applicable Law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption of any Grantor, which
right or equity is hereby waived and released by each Grantor. To the extent permitted by
Applicable Law, each Grantor waives all claims, damages and demands it may acquire against any
Secured Beneficiary arising out of the exercise by the Secured Party of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be required by Applicable
Law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
(b) Pledged Collateral. While an Event of Default exists, upon notice by the Secured
Party to the relevant Grantor or Grantors, (i) the Secured Party shall have the right to receive
any Proceeds of the Pledged Collateral and make application thereof to the Secured Obligations in
the order provided in Section 10.4. of the Credit Agreement and (ii) the Secured Party or its
nominee may exercise any voting, consent, corporate and other right pertaining to the Pledged
Collateral as if the Secured Party were the absolute owner thereof, all without liability except to
account for property actually received by it; provided, however, that the Secured Party shall have
no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible
for any failure to do so or delay in so doing. In order to permit the Secured Party to exercise
the voting and other consensual rights that it is entitled to exercise pursuant hereto and to
receive all distributions that it is entitled to receive hereunder, (i) each Grantor shall promptly
execute and deliver (or cause to be executed and delivered) to the Secured Party all such orders
and instruments as the Secured Party may from time to time request and (ii) without limiting the
immediately preceding clause (i), such Grantor hereby grants to the Secured Party an irrevocable
proxy to exercise all rights, powers, privileges and remedies to which a holder of the Pledged
Collateral would be entitled, which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Collateral on the record books of
the issuer thereof) by any other Person (including the issuer of such Pledged Collateral or any
officer or agent thereof) while an Event of Default exists. Each Grantor hereby expressly
authorizes and irrevocably instructs each issuer of any Pledged Collateral pledged hereunder by
such Grantor to (x) comply with any instruction received by it from the Secured Party in writing
that states that an Event of Default exists and is otherwise in accordance with the terms of this
Agreement, without any other or further instructions from such Grantor, and each Grantor agrees
that such issuer shall be fully protected in so complying and (y) pay any payment with respect to
the Pledged Collateral directly to the Secured Party.
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(c) Writ of Possession; Receiver. Each Grantor hereby acknowledges that the Secured
Obligations arose out of a commercial transaction, and agrees that while an Event of Default exists
the Secured Party shall have the right to an immediate writ of possession with respect to the
Collateral without notice of a hearing or the requirement of posting a bond. The Secured Party
shall have the right to the appointment of a receiver for the properties and assets of each
Grantor, and each Grantor hereby consents to such rights and such appointment and hereby waives any
objection such Grantor may have thereto or the right to have a bond or other security posted by the
Secured Party.
(d) Remedies Cumulative. Each right, power, and remedy of the Secured Party as
provided for in this Agreement or in the other Loan Documents or now or hereafter existing at law
or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition
to every other right, power, or remedy provided for in this Agreement or in the other Loan
Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the
exercise or beginning of the exercise by the Secured Party, of any one or more of such rights,
powers, or remedies shall not preclude the simultaneous or later exercise by the Secured Party of
any or all such other rights, powers, or remedies.
(e) Marshaling. The Secured Party shall not be required to marshal any present or
future collateral security (including but not limited to the Collateral) for, or other assurances
of payment of, the Secured Obligations or any of them or to resort to such collateral security or
other assurances of payment in any particular order. To the fullest extent that it lawfully may,
each Grantor hereby agrees that it will not invoke any Applicable Law relating to the marshaling of
collateral which might cause delay in or impede the enforcement of the Secured Party’s rights and
remedies under this Agreement or under any other instrument creating or evidencing any of the
Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of
the Secured Obligations is secured or payment thereof is otherwise assured, and, to the fullest
extent that it lawfully may, each Grantor hereby irrevocably waives the benefits of all such laws.
(f) Application of Proceeds. The proceeds of any sale of the whole or any part of the
Collateral pursuant to this Agreement, together with any other moneys held by the Secured Party
under the provisions of this Agreement, shall be applied in accordance with Section 10.4. of the
Credit Agreement. Each Grantor shall remain liable and will pay, on demand, any deficiency
remaining in respect of the Secured Obligations.
(g) Deposit Accounts and Securities Accounts. If any Event of Default shall exist,
the Secured Party may (i) instruct the bank at which any Deposit Account is maintained to comply
with instructions originated by the Secured Party directing disposition of the funds in such
Deposit Account without further consent of any Grantor and (ii) instruct the Securities
Intermediary at which any Securities Account is maintained to comply with the Entitlement Order
originated by the Secured Party without further consent of any Grantor.
Section 7. Secured Party Appointed Attorney-in-Fact. Each Grantor hereby constitutes
and appoints the Secured Party as the attorney-in-fact of such Grantor with full power of
substitution either in the Secured Party’s name or in the name of such Grantor to do any of the
following: (a) to perform any obligation of such Grantor hereunder in such Grantor’s name or
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otherwise; (b) to ask for, demand, xxx for, collect, receive, receipt and give acquittance for
any and all moneys due or to become due under and by virtue of any Collateral; (c) to prepare,
execute, file, record or deliver notices, assignments, financing statements, continuation
statements, applications for registration or like papers to perfect, preserve or release the
Secured Party’s security interest in the Collateral; (d) to issue Entitlement Orders, instructions
and other orders to any bank or Securities Intermediary in connection with any of the Collateral
held by or maintained with such bank or Securities Intermediary; (e) to verify facts concerning the
Collateral in such Grantor’s name, its own name or a fictitious name; (f) to endorse checks,
drafts, orders and other instruments for the payment of money payable to such Grantor, representing
any payment in respect of the Collateral or any part thereof or on account thereof and to give full
discharge for the same; (g) to exercise all rights, powers and remedies which such Grantor would
have, but for this Agreement, with respect to any of the Collateral; and (h) to carry out the
provisions of this Agreement and to take any action and execute any instrument which the Secured
Party may deem necessary or advisable to accomplish the purposes hereof, and to do all acts and
things and execute all documents in the name of such Grantor or otherwise, deemed by the Secured
Party as necessary, proper and convenient in connection with the preservation, perfection or
enforcement of its rights hereunder; provided, however, the Secured Party may only exercise its
rights described in the immediately preceding clauses (a), (b), (d) and (g) if an Event of Default
exists; provided, further, that the Secured Party will give notice to the Borrower as soon as
reasonably possible upon its exercise of its rights under the immediately preceding clauses (a)
through (h), except (1) any such notice regarding the exercise of rights under the immediately
preceding clauses (a), (b), (d) or (g) shall be given if and to the extent required by Applicable
Law and (2) in no event will the failure to give such have any effect on the validity of the
exercise of any such right or give rise to liability on the part of any Secured Beneficiary.
Nothing herein contained shall be construed as requiring or obligating any Secured Beneficiary to
make any commitment or to make any inquiry as to the nature or sufficiency of any payment received
by it, or to present or file any claim or notice, or to take any action with respect to the
Collateral or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby, and no action taken by the Secured Party or omitted to be taken with
respect to the Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of any Grantor or to any claim or action against the Secured Party. The power of
attorney granted herein is irrevocable and coupled with an interest.
Section 8. Secured Party Duties. The powers conferred on the Secured Party hereunder
are solely to protect the Secured Party’s interest in the Collateral, for the benefit of the
Secured Beneficiaries, and shall not impose any duty upon the Secured Party to exercise any such
powers. Except for the safe custody of any Collateral in its actual possession and the accounting
for moneys actually received by it hereunder, the Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Secured Party shall be deemed to have exercise
reasonable care in the custody and preservation of any Collateral in its actual possession if the
Secured Party accords such Collateral treatment substantially equal to that which the Secured Party
accords its own property.
Section 9. Authorization of Financing Statements. Each Grantor authorizes the Secured
Party, and its counsel and other representatives, at any time and from time to time, to file or
record financing statements, amendments to financing statements, and other filing or
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recording documents or instruments with respect to the Collateral in such form and in such
offices as the Secured Party reasonably determines appropriate to perfect the security interests of
the Secured Party under this Agreement. Each Grantor hereby also authorizes the Secured Party, and
its counsel and other representatives, at any time and from time to time, to file continuation
statements with respect to previously filed financing statements. A photographic or other
reproduction of this Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any jurisdiction. Each Grantor
acknowledges that it is not authorized to file any financing statement or amendment or termination
statement with respect to any financing statement filed in connection with this Agreement without
the prior written consent of the Secured Party, subject to such Grantor’s rights under Section
9-509(d)(2) of the UCC.
Section 10. Amendments. No amendment or waiver of any provision of this Agreement nor
consent to any departure by any Grantor herefrom shall in any event be effective unless the same
shall be in writing and signed by the parties hereto, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given; provided,
however, that Schedules to this Agreement may be supplemented through Security Agreement
Supplements executed by a Grantor and accepted by the Secured Party.
Section 11. Notices. Notices, requests and other communications required or permitted
hereunder shall be given in accordance with, and be subject to, the applicable terms of the Credit
Agreement in the case of the Borrower or the Guaranty in the case of any other Grantor.
Section 12. No Waiver. Neither the failure on the part of any Secured Beneficiary to
exercise, nor the delay on the part of any Secured Beneficiary in exercising any right, power or
remedy hereunder, nor any course of dealing between any Secured Beneficiary, on the one hand, and
any Grantor, on the other hand, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power, or remedy hereunder preclude any other or the further exercise
thereof or the exercise of any other right, power or remedy.
Section 13. Binding Agreement; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns
under the Credit Agreement, except that no Grantor shall be permitted to assign this Agreement or
any interest herein or in the Collateral or any part thereof and any such assignment by a Grantor
shall be null and void absent the prior written consent of the Secured Party. Without limiting the
foregoing, the Derivatives Contracts Beneficiaries may only assign their rights under this
agreement in accordance with the applicable provisions of the Credit Agreement.
Section 14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute but one
agreement.
Section 15. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such
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provisions shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of this Agreement.
Section 16. Headings. Section headings used herein are for convenience only and are
not to affect the construction of or be taken into consideration in interpreting this Agreement.
Section 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 18. LITIGATION; JURISDICTION; OTHER MATTERS; WAIVERS.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY AMONG ANY OF THE GRANTORS
AND THE SECURED PARTY WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD
RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE SECURED PARTY AND THE GRANTORS HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE
COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR
THE COLLATERAL.
(b) EACH OF THE GRANTORS AND THE SECURED PARTY HEREBY AGREES THAT THE FEDERAL DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW
YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR
AMONG THE GRANTORS AND THE SECURED PARTY, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE
COLLATERAL OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. EACH GRANTOR AND THE SECURED PARTY
EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED
IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM, AND EACH AGREES NOT TO
PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE BRINGING OF ANY ACTION BY THE SECURED PARTY OR THE ENFORCEMENT BY THE SECURED PARTY OF
ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) EACH GRANTOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) ANY
CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE TIME THE SECURED PARTY DISPOSES OF
ALL OR ANY PART OF THE COLLATERAL AS PROVIDED IN THIS AGREEMENT;
F-13
(ii) ALL RIGHTS OF REDEMPTION, STAY, OR APPRAISAL THAT SUCH GRANTOR NOW HAS OR MAY AT ANY TIME IN
THE FUTURE HAVE UNDER ANY APPLICABLE LAW NOW EXISTING OR HEREAFTER ENACTED; AND (iii) EXCEPT AS
EXPRESSLY REQUIRED UNDER THIS AGREEMENT OR APPLICABLE LAW, ANY REQUIREMENT OF NOTICE, DEMAND, OR
ADVERTISEMENT FOR SALE.
(d) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE SECURED OBLIGATIONS AND THE TERMINATION OF THIS AGREEMENT.
Section 19. Additional Grantors. If, pursuant to Section 7.12. of the Credit
Agreement, the Borrower shall be required to cause any Subsidiary or Joint Venture Subsidiary that
is not a Grantor to become a Grantor hereunder, such Subsidiary or Joint Venture Subsidiary shall
execute and deliver to the Secured Party a Security Agreement Supplement substantially in the form
of Annex 1 hereto and shall thereafter for all purposes be party hereto as a “Grantor” and have the
same rights, benefits and obligations as a Grantor initially party hereto.
Section 20. Termination. Upon indefeasible payment in full of all of the Secured
Obligations (other than Secured Obligations in respect of Derivatives Contracts) and termination of
the Credit Agreement in accordance with its terms, this Agreement shall terminate. Upon
termination of this Agreement in accordance with its terms, the Secured Party agrees to take such
actions as any Grantor may reasonably request, and at the sole cost and expense of such Grantor, to
evidence the termination of this Agreement.
Section 21. Continuing Security Interest. This Agreement shall create a continuing
security interest in the Collateral and shall remain in full force and effect until it terminates
in accordance with its terms.
Section 22. Reinstatement. Each Grantor agrees that, if any payment made by any Loan
Party or other Person and applied to the Secured Obligations is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to
be refunded or repaid, or the proceeds of Collateral are required to be returned by the Secured
Party to such Loan Party, its estate, trustee, receiver or any other party, including any Grantor,
under any bankruptcy law or other applicable law, then, to the extent of such payment or repayment,
any Lien or other Collateral securing such liability shall be and remain in full force and effect,
as fully as if such payment had never been made or, if prior thereto the Lien granted hereby or
other Collateral securing such liability hereunder shall have been released or terminated by virtue
of such cancellation or surrender, such Lien or other Collateral shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect any Lien or other Collateral securing the obligations of any Grantor in respect
of the amount of such payment.
Section 23. Security Interest Absolute. All rights of the Secured Party hereunder,
the grant of a security interest in the Collateral and all obligations of each Grantor hereunder,
shall be absolute and unconditional irrespective of (a) any lack of validity or enforceability of
any
F-14
Loan Document, any agreement with respect to any of the Secured Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in the time, manner or
place of the payment of, or in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from any Loan Document, or any other
agreement or instrument relating to any of the foregoing, (c) any exchange, release or
nonperfection of any other collateral, or any release or amendment or waiver of or consent to or
departure from any guaranty, for all or any of the Secured Obligations or (d) any other
circumstance that might otherwise constitute a defense available to, or a discharge of, any Grantor
in respect of the Secured Obligations or in respect of this Agreement (other than the indefeasible
payment in full of all the Secured Obligations).
Section 24. Joint and Several Obligations of Grantors. THE OBLIGATIONS OF THE
GRANTORS HEREUNDER SHALL BE JOINT AND SEVERAL.
Section 25. Miscellaneous. By acceptance of the benefits hereof, each Secured
Beneficiary acknowledges and agrees that its rights hereunder are subject to the terms of the
Credit Agreement, that the rights, obligations, and liabilities of the Secured Party are subject to
the terms of the Credit Agreement, and that the Collateral can be released as provided in the
Credit Agreement.
[Signatures on Next Page]
F-15
IN WITNESS WHEREOF, each Grantor has executed and delivered this Security Agreement under seal
as of this the date first written above.
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GRANTORS: |
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[NAME OF GRANTORS] |
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Agreed to, accepted and acknowledged
as of the date first written above. |
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SECURED PARTY: |
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KEYBANK NATIONAL ASSOCIATION, as Agent |
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F-16
SCHEDULE 1 TO SECURITY AGREEMENT
Pledged Debt Instruments
[TO BE COMPLETED BY GRANTORS]
F-17
SCHEDULE 2 TO SECURITY AGREEMENT
Necessary Filings
UCC Financing Statement Filings:
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[TO BE COMPLETED BY GRANTORS]
F-18
SCHEDULE 3 TO SECURITY AGREEMENT
Jurisdictions of Organization, Names, Organizational ID Numbers, Locations, Etc.
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[TO BE COMPLETED BY GRANTORS]
F-19
SCHEDULE 4 TO SECURITY AGREEMENT
Deposit Accounts and Securities Accounts
Deposit Accounts:
Securities Accounts:
[NONE]
[TO BE COMPLETED BY GRANTORS]
F-20
ANNEX 1 TO SECURITY AGREEMENT
FORM OF SECURITY AGREEMENT SUPPLEMENT
THIS SECURITY AGREEMENT SUPPLEMENT dated as of ______________, 201__ (this “Supplement”)
executed and delivered by ______________, a _________________ (the “New Grantor”) in favor of
KEYBANK NATIONAL ASSOCIATION, as Agent (the “Secured Party”).
WHEREAS, pursuant to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions from
time to time party thereto as “Lenders”, the Secured Party, and the other parties thereto, the
Secured Party and the Lenders have agreed to make available to the Borrower certain financial
accommodations on the terms and conditions set forth in the Credit Agreement;
WHEREAS, to secure obligations owning by certain parties under the Credit Agreement and the
other Loan Documents, the Borrower and the other “Grantors” thereunder have executed and delivered
that certain Security Agreement dated as of September 26, 2011 (as amended, restated, supplemented
or otherwise modified from time to time, the “Security Agreement”) in favor of the Secured Party;
WHEREAS, it is a condition precedent to the continued extension by the Lenders and the Secured
Party of such financial accommodations that the New Pledgor execute this Supplement to become a
party to the Security Agreement.
NOW, THEREFORE, in consideration of the above premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the New Grantor, the
New Grantor hereby agrees as follows:
Section 1. Accession to Security Agreement; Grant of Security Interest. The New
Grantor agrees that it is a “Grantor” under the Security Agreement and assumes all obligations of a
“Grantor” thereunder, all as if the New Grantor had been an original signatory to the Security
Agreement. Without limiting the generality of the foregoing, the New Grantor hereby:
(a) mortgages, pledges and hypothecates to the Secured Party for the benefit of the Secured
Beneficiaries, and grants to the Secured Party for the benefit of the Secured Beneficiaries a lien
on and security interest in, all of such Grantor’s right, title and interest in, to and under the
Collateral of such Grantor, all as collateral security for the full, prompt and complete payment
and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations;
(b) makes to the Secured Party and the Lenders as of the date hereof each of the
representations and warranties contained in Section 4 of the Security Agreement and agrees to be
bound by each of the covenants contained in the Security Agreement, including without limitation,
those contained in Section 5 thereof; and
F-21
(c) consents and agrees to each other provision set forth in the Security Agreement.
Section 2. Supplement to Schedules. The information set forth in Annex 1 attached
hereto is hereby added to the information set forth in Schedules 1 through 4 of the Security
Agreement.
Section 3. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 4. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Security Agreement.
[Signatures on Next Page]
F-22
IN WITNESS WHEREOF, the New Grantor has caused this Security Agreement Supplement to be duly
executed and delivered under seal by its duly authorized officers as of the date first written
above.
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Attention: _________________________ |
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ASSOCIATION, as Agent |
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F-23
ANNEX 1
[Set forth information to be disclosed on Schedules 1 through 4
with respect to the New Grantor]
This Annex shall be deemed to be a supplement to Schedules 1 through 4 attached to the Security
Agreement.
F-24
EXHIBIT G
FORM OF REVOLVING NOTE
FOR VALUE RECEIVED, the undersigned, ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a limited
partnership formed under the laws of the State of Delaware (the “Borrower”), hereby promises to pay
to the order of ________________________ (the “Lender”), in care of KeyBank National Association,
as Agent (the “Agent”) at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, or at such other address
as may be specified in writing by the Agent to the Borrower, the principal sum of
__________________________ AND ____/100 DOLLARS ($______________) (or such lesser amount as shall
equal the aggregate unpaid principal amount of Revolving Loans made by the Lender to the Borrower
under the Credit Agreement (as herein defined)), on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount owing hereunder, at the
rates and on the dates provided in the Credit Agreement.
The date and amount of each Revolving Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Credit Agreement or hereunder.
This Note is one of the Notes referred to in the Credit Agreement dated as of September 26,
2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), by and among the Borrower, the financial institutions party thereto and their
assignees under Section 12.5. thereof (the “Lenders”) and the Agent. Capitalized terms used
herein, and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 12.5. of the Credit Agreement, this Note may not be assigned by
the Lender to any Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of demand, notice of
non-payment, protest, notice of protest and all other similar notices.
Time is of the essence for this Note.
G-1
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note under seal as of the
date first written above.
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ASHFORD HOSPITALITY LIMITED PARTNERSHIP By: Ashford OP
General Partner LLC, its general partner |
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G-2
SCHEDULE OF REVOLVING LOANS
This Note evidences Revolving Loans made under the within-described Credit Agreement to the
Borrower, on the dates and in the principal amounts set forth below, subject to the payments and
prepayments of principal set forth below:
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G-3
EXHIBIT J
FORM OF COMPLIANCE CERTIFICATE
, 20__
KeyBank National Association, as Agent
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx XX-00-00-0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Each of the Lenders Party to the Credit
Agreement referred to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of September 26, 2011 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and
among Ashford Hospitality Limited Partnership (the “Borrower”), the financial institutions party
thereto and their assignees under Section 12.5. thereof (the “Lenders”) KeyBank National
Association, as Agent (the “Agent”), and the other parties thereto. Capitalized terms used herein,
and not otherwise defined herein, have their respective meanings given them in the Credit
Agreement.
Pursuant to Section 8.3. of the Credit Agreement, the undersigned hereby certifies to the
Agent and the Lenders as follows:
(1) The undersigned is the of the Parent.
(2) The undersigned has examined the books and records of the Parent and/or the Borrower and
has conducted such other examinations and investigations as are reasonably necessary to provide
this Compliance Certificate.
(3) To the undersigned’s knowledge, after due inquiry, no Default or Event of Default exists
[if such is not the case, specify such Default or Event of Default and its nature, when it occurred
and whether it is continuing and the steps being taken by the Borrower with respect to such event,
condition or failure].
(4) Attached hereto as Schedule 1 are reasonably detailed calculations establishing whether or
not the Borrower and its Subsidiaries and Controlled Joint Venture Subsidiaries were in compliance
with the covenants contained in Sections 9.1., 9.4. and 9.7. of the Credit Agreement.
J-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first above
written.
J-2
Schedule 1
[Calculations to be Attached]
J-3
EXHIBIT K
FORM OF GUARANTY
THIS GUARANTY dated as of September 26, 2011, executed and delivered by each of the
undersigned and the other Persons from time to time party hereto pursuant to the execution and
delivery of an Accession Agreement in the form of Annex I hereto (all of the undersigned, together
with such other Persons each a “Guarantor” and collectively, the “Guarantors”) in favor of (a)
KEYBANK NATIONAL ASSOCIATION, in its capacity as Agent (the “Agent”) for the Lenders under that
certain Credit Agreement dated as of September 26, 2011 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), by and among Ashford Hospitality
Limited Partnership (the “Borrower”), the financial institutions party thereto and their assignees
under Section 12.5. thereof (the “Lenders”) and the Agent, (b) the Lenders and (c) the Derivatives
Contracts Beneficiaries (the Agent, the Lenders and the Derivatives Contracts Beneficiaries,
collectively, the “Secured Beneficiaries”).
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have agreed to make
available to the Borrower certain financial accommodations on the terms and conditions set forth in
the Credit Agreement;
WHEREAS, the Borrower and each of the Guarantors, though separate legal entities, are members
of the same corporate family and have determined it to be in their mutual best interests to obtain
financing from the Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent and the Lenders making such financial accommodations available to the Borrower under the
Credit Agreement and, accordingly, each Guarantor is willing to guarantee the Borrower’s
obligations to the Agent and the Secured Beneficiaries on the terms and conditions contained
herein; and
WHEREAS, each Guarantor’s execution and delivery of this Guaranty is a condition to the Agent
and the Lenders making, and continuing to make, such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by each Guarantor, each Guarantor agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of all of the following (collectively referred to as the
“Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any Lender
or the Agent under or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Loans and the Reimbursement
Obligations, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts
payable to any Lender or the Agent thereunder or in connection therewith; (b) any and all
extensions, renewals, modifications, amendments or substitutions of the foregoing; (c) all
expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are
incurred by the Lenders and the Agent in the enforcement of any of the foregoing or any
K-1
obligation of such Guarantor hereunder; (d) all indebtedness, liabilities, obligations,
covenants and duties of the Borrower or any Subsidiary that is and at all times remains a Guarantor
owing to any Derivatives Contracts Beneficiaries of any kind, nature or description, under or in
respect of any Derivatives Contract entered into by the Borrower or any Subsidiary that is and at
all times remains a Guarantor with any Person that is a Derivatives Contracts Beneficiary, whether
direct or indirect, absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated; and (e) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a guaranty of
payment, and not of collection, and a debt of each Guarantor for its own account. Accordingly,
none of the Secured Beneficiaries shall be obligated or required before enforcing this Guaranty
against any Guarantor: (a) to pursue any right or remedy any of them may have against the Borrower,
any other Guarantor or any other Person or commence any suit or other proceeding against the
Borrower, any other Guarantor or any other Person in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any other Guarantor or any other Person; or
(c) to make demand of the Borrower, any other Guarantor or any other Person or to enforce or seek
to enforce or realize upon any collateral security held by the Secured Beneficiaries or the Agent
which may secure any of the Guarantied Obligations.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guarantied
Obligations will be paid strictly in accordance with the terms of the documents evidencing the
same, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Secured Beneficiaries with respect thereto. The liability of
each Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance
with its terms and shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including without limitation, the following (whether or not such Guarantor
consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other term of any of the
Guarantied Obligations, (ii) any change in the time, place or manner of payment of all or any
portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Credit Agreement, any other Loan Document,
or any other document or instrument evidencing or relating to any Guarantied Obligations, or (iv)
any waiver, renewal, extension, addition, or supplement to, or deletion from, or any other action
or inaction under or in respect of, the Credit Agreement, any of the other Loan Documents, or any
other documents, instruments or agreements relating to the Guarantied Obligations or any other
instrument or agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of the other Loan
Documents, or any other document, instrument or agreement referred to therein or evidencing any
Guarantied Obligations or any assignment or transfer of any of the foregoing;
(c) any furnishing to the Secured Beneficiaries of any security for the Guarantied
Obligations, or any sale, exchange, release or surrender of, or realization on, any Collateral
securing any of the Obligations;
K-2
(d) any settlement or compromise of any of the Guarantied Obligations, any security therefor,
or any liability of any other party with respect to the Guarantied Obligations, or any
subordination of the payment of the Guarantied Obligations to the payment of any other liability of
the Borrower or any other Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to such Guarantor, the Borrower, any other Loan Party
or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;
(f) any act or failure to act by the Borrower, any other Loan Party or any other Person which
may adversely affect such Guarantor’s subrogation rights, if any, against the Borrower to recover
payments made under this Guaranty;
(g) any nonperfection or impairment of any security interest or other Lien on any Collateral
securing in any way any of the Obligations;
(h) any application of sums paid by the Borrower, any other Guarantor or any other Person with
respect to the liabilities of the Borrower to the Secured Beneficiaries, regardless of what
liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the Borrower or in the
exercise thereof;
(j) any defense, set-off, claim or counterclaim (other than indefeasible payment and
performance in full) which may at any time be available to or be asserted by the Borrower, any
other Loan Party or any other Person against the Secured Beneficiaries;
(k) any change in the corporate existence, structure or ownership of the Borrower or any other
Loan Party;
(l) any statement, representation or warranty made or deemed made by or on behalf of the
Borrower, any Guarantor or any other Loan Party under any Loan Document, or any amendment hereto or
thereto, proves to have been incorrect or misleading in any respect; or
(m) any other circumstance which might otherwise constitute a defense available to, or a
discharge of, a Guarantor hereunder (other than indefeasible payment and performance in full).
Section 4. Action with Respect to Guarantied Obligations. The Secured Beneficiaries
may, at any time and from time to time, without the consent of, or notice to, any Guarantor, and
without discharging any Guarantor from its obligations hereunder, take any and all actions
described in Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms of any
of the Guarantied Obligations, including, but not limited to, extending or shortening the time of
payment of any of the Guarantied Obligations or changing the interest rate that may accrue on any
of the Guarantied Obligations; (b) amend, modify, alter or supplement the Credit Agreement or any
other Loan Document; (c) sell, exchange, release or otherwise deal with all, or any part, of any
collateral securing any of the Obligations; (d) release any other Loan Party or
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other Person liable in any manner for the payment or collection of the Guarantied Obligations;
(e) exercise, or refrain from exercising, any rights against the Borrower, any other Guarantor or
any other Person; and (f) apply any sum, by whomsoever paid or however realized, to the Guarantied
Obligations in accordance with the Credit Agreement.
Section 5. Representations and Warranties. Each Guarantor hereby makes to the Agent
and the Lenders all of the representations and warranties made by the Borrower with respect to or
in any way relating to such Guarantor in the Credit Agreement and the other Loan Documents, as if
the same were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants which the
Borrower is to cause such Guarantor to comply with under the terms of the Credit Agreement or any
of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by Applicable Law,
hereby waives notice of acceptance hereof or any presentment, demand, protest or notice of any
kind, and any other act or thing, or omission or delay to do any other act or thing, which in any
manner or to any extent might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Secured Beneficiaries are prevented
under Applicable Law or otherwise from demanding or accelerating payment of any of the Guarantied
Obligations by reason of any automatic stay or otherwise, the Secured Beneficiaries shall be
entitled to receive from each Guarantor, upon demand therefor, the sums which otherwise would have
been due had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever made on any
Secured Beneficiary for repayment or recovery of any amount or amounts received in payment or on
account of any of the Guarantied Obligations, and such Secured Beneficiary repays all or part of
said amount by reason of (a) any judgment, decree or order of any court or administrative body of
competent jurisdiction, or (b) any settlement or compromise of any such claim effected by such
Secured Beneficiary with any such claimant (including the Borrower or a trustee in bankruptcy for
the Borrower), then and in such event each Guarantor agrees that any such judgment, decree, order,
settlement or compromise shall be binding on it, notwithstanding any revocation hereof or the
cancellation of the Credit Agreement, any of the other Loan Documents, or any other instrument
evidencing any liability of the Borrower, and such Guarantor shall be and remain liable to such
Secured Beneficiary for the amounts so repaid or recovered to the same extent as if such amount had
never originally been paid to such Secured Beneficiary.
Section 10. Subrogation. Upon the making by any Guarantor of any payment hereunder
for the account of the Borrower, such Guarantor shall be subrogated to the rights of the payee
against the Borrower; provided, however, that such Guarantor shall not enforce any right or receive
any payment by way of subrogation or otherwise take any action in respect of any other claim or
cause of action such Guarantor may have against the Borrower arising by reason of any payment or
performance by such Guarantor pursuant to this Guaranty, unless and until all of the Guarantied
Obligations have been indefeasibly paid and performed in full. If any amount shall be paid to such
Guarantor on account of or in respect of such subrogation rights or
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other claims or causes of action, such Guarantor shall hold such amount in trust for the
benefit of the Secured Beneficiaries and shall forthwith pay such amount to the Agent to be
credited and applied against the Guarantied Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement or to be held by the Agent as collateral security
for any Guarantied Obligations existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor hereunder,
whether of principal, interest, Fees, expenses, premiums or otherwise, shall be paid in full,
without set-off or counterclaim or any deduction or withholding whatsoever (including any Taxes),
and if any Guarantor is required by Applicable Law or by a Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Secured Beneficiaries such additional
amount as will result in the receipt by the Secured Beneficiaries of the full amount payable
hereunder had such deduction or withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted under any of
the other Loan Documents or Applicable Law and not by way of limitation of any such rights, each
Guarantor hereby authorizes the Agent, each Lender and any of their respective Affiliates, at any
time while an Event of Default exists, without any prior notice to such Guarantor or to any other
Person, any such notice being hereby expressly waived, but in the case of a Lender or an Affiliate
of a Lender subject to receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the Agent, such Lender, or
any Affiliate of the Agent or such Lender, to or for the credit or the account of such Guarantor
against and on account of any of the Guarantied Obligations, although such obligations shall be
contingent or unmatured. Each Guarantor agrees, to the fullest extent permitted by Applicable Law,
that any Participant may exercise rights of setoff or counterclaim and other rights with respect to
its participation as fully as if such Participant were a direct creditor of such Guarantor in the
amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants and agrees for
the benefit of the Secured Beneficiaries that all obligations and liabilities of the Borrower to
such Guarantor of whatever description, including without limitation, all intercompany receivables
of such Guarantor from the Borrower (collectively, the “Junior Claims”) shall be subordinate and
junior in right of payment to all Guarantied Obligations. If an Event of Default shall exist, then
no Guarantor shall accept any direct or indirect payment (in cash, property or securities, by
setoff or otherwise) from the Borrower on account of or in any manner in respect of any Junior
Claim until all of the Guarantied Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor and the Secured
Beneficiaries that in any Proceeding, such Guarantor’s maximum obligation hereunder shall equal,
but not exceed, the maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the Secured Beneficiaries) to be
avoidable or unenforceable against such Guarantor in such Proceeding as a result of Applicable Law,
including without limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
“Bankruptcy Code”) and (b) any state fraudulent transfer or fraudulent conveyance act or statute
applied in such Proceeding, whether by virtue of Section 544 of the
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Bankruptcy Code or otherwise. The Applicable Laws under which the possible avoidance or
unenforceability of the obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Secured Beneficiaries) shall be determined in any such Proceeding are referred to
as the “Avoidance Provisions”. Accordingly, to the extent that the obligations of any Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the maximum
Guarantied Obligations for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, as of the time any of the Guarantied Obligations are deemed to have been incurred
under the Avoidance Provisions, would not cause the obligations of such Guarantor hereunder (or any
other obligations of such Guarantor to the Secured Beneficiaries), to be subject to avoidance under
the Avoidance Provisions. This Section is intended solely to preserve the rights of the Secured
Beneficiaries hereunder to the maximum extent that would not cause the obligations of any Guarantor
hereunder to be subject to avoidance under the Avoidance Provisions, and no Guarantor or any other
Person shall have any right or claim under this Section as against the Secured Beneficiaries that
would not otherwise be available to such Person under the Avoidance Provisions.
Section 15. Guarantor Reimbursement. To the extent that any Guarantor shall be
required hereunder to pay a portion of the Guarantied Obligations which shall exceed the greater of
(i) the amount of the economic benefit actually received by such Guarantor from the Guarantied
Obligations and (ii) the amount which such Guarantor would otherwise have paid if such Guarantor
had paid the aggregate amount of the Guarantied Obligations (excluding the amount thereof repaid by
the Borrower) in the same proportion as such Guarantor’s net worth at the date enforcement
hereunder is sought bears to the aggregate net worth of all the Guarantors at the date enforcement
hereunder is sought, then such Guarantor shall be reimbursed by such other Guarantors for the
amount of such excess, pro rata, based on the respective net worths of such other Guarantors at the
date enforcement hereunder is sought.
Section 16. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the financial condition of the Borrower and the other Guarantors, and of
all other circumstances bearing upon the risk of nonpayment of any of the Guarantied Obligations
and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Secured Beneficiaries shall have any duty whatsoever to advise any
Guarantor of information regarding such circumstances or risks.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
Section 18. WAIVER OF JURY TRIAL.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG ANY
GUARANTOR OR ANY OF THE SECURED BENEFICIARIES WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF LAW
AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE SECURED BENEFICIARIES AND EACH GUARANTOR HEREBY
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WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY
COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE
WHATSOEVER BETWEEN OR AMONG ANY GUARANTOR OR ANY OF THE SECURED BENEFICIARIES OF ANY KIND OR NATURE
RELATING TO ANY OF THE LOAN DOCUMENTS.
(b) EACH OF THE GUARANTORS AND THE SECURED BENEFICIARIES HEREBY AGREES THAT THE FEDERAL
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY STATE COURT LOCATED IN THE BOROUGH OF
MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES
BETWEEN OR AMONG ANY GUARANTOR, OR ANY OF THE SECURED BENEFICIARIES, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM. EACH GUARANTOR AND EACH OF THE SECURED BENEFICIARIES EXPRESSLY SUBMIT AND CONSENT IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO
SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY ANY
OF THE SECURED BENEFICIARIES OR THE ENFORCEMENT BY ANY OF THE SECURED BENEFICIARIES OF ANY JUDGMENT
OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.
(c) THE PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF
COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS, THE
TERMINATION OR EXPIRATION OF ALL LETTERS OF CREDIT AND THE TERMINATION OF THIS GUARANTY.
Section 19. Loan Accounts. The Secured Beneficiaries may maintain books and accounts
setting forth the amounts of principal, interest and other sums paid and payable with respect to
the Guarantied Obligations, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of any of the Guarantied Obligations or otherwise, the entries in such
books and accounts shall be deemed conclusive evidence of the amounts and other matters set forth
herein, absent manifest error. The failure of any Secured Beneficiary to maintain such books and
accounts shall not in any way relieve or discharge any Guarantor of any of its obligations
hereunder.
Section 20. Waiver of Remedies. No delay or failure on the part of any Secured
Beneficiary in the exercise of any right or remedy it may have against any Guarantor hereunder
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or otherwise shall operate as a waiver thereof, and no single or partial exercise by any
Secured Beneficiary of any such right or remedy shall preclude any other or further exercise
thereof or the exercise of any other such right or remedy.
Section 21. Termination. This Guaranty shall remain in full force and effect until
indefeasible payment in full of the Guarantied Obligations and the other Obligations and the
termination or cancellation of the Credit Agreement in accordance with its terms.
Section 22. Successors and Assigns. Each reference herein to the Secured
Beneficiaries shall be deemed to include such Person’s respective successors and assigns
(including, but not limited to, any holder of the Guarantied Obligations) in whose favor the
provisions of this Guaranty also shall inure, and each reference herein to each Guarantor shall be
deemed to include such Guarantor’s successors and assigns, upon whom this Guaranty also shall be
binding. The Secured Beneficiaries may, in accordance with the applicable provisions of the Credit
Agreement, assign, transfer or sell any Guarantied Obligation, or grant or sell participations in
any Guarantied Obligations, to any Person without the consent of, or notice to, any Guarantor and
without releasing, discharging or modifying any Guarantor’s obligations hereunder. Subject to
Section 12.8. of the Credit Agreement, each Guarantor hereby consents to the delivery by the Agent
or any Secured Beneficiary to any Assignee or Participant (or any prospective Assignee or
Participant) of any financial or other information regarding the Borrower or any Guarantor. No
Guarantor may assign or transfer its rights or obligations hereunder to any Person without the
prior written consent of all Lenders and any such assignment or other transfer to which all of the
Lenders have not so consented shall be null and void.
Section 23. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE GUARANTORS
HEREUNDER SHALL BE JOINT AND SEVERAL, AND ACCORDINGLY, EACH GUARANTOR CONFIRMS THAT IT IS LIABLE
FOR THE FULL AMOUNT OF THE “GUARANTIED OBLIGATIONS” AND ALL OF THE OBLIGATIONS AND LIABILITIES OF
EACH OF THE OTHER GUARANTORS HEREUNDER.
Section 24. Amendments. This Guaranty may not be amended except in writing signed by
the Requisite Lenders (or all of the Lenders if required under the terms of the Credit Agreement),
the Agent and each Guarantor.
Section 25. Payments. All payments to be made by any Guarantor pursuant to this
Guaranty shall be made in Dollars, in immediately available funds to the Agent at the Principal
Office, not later than 2:00 p.m. on the date of demand therefor.
Section 26. Notices. All notices, requests and other communications hereunder shall
be in writing (including facsimile transmission or similar writing) and shall be given (a) to each
Guarantor at its address set forth below its signature hereto, (b) to the Agent or any Secured
Beneficiary at its respective address for notices provided for in the Credit Agreement, or if
applicable, Derivatives Contract to which such Secured Beneficiary is a party, (c) as to each such
party at such other address as such party shall designate in a written notice to the other parties.
Each such notice, request or other communication shall be effective (i) if mailed, when received;
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(ii) if telecopied, when transmitted; or (iii) if hand delivered, when delivered; provided,
however, that any notice of a change of address for notices shall not be effective until received.
Section 27. Severability. In case any provision of this Guaranty shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 28. Headings. Section headings used in this Guaranty are for convenience only
and shall not affect the construction of this Guaranty.
Section 29. Limitation of Liability. Neither any Secured Beneficiary, nor any
Affiliate, officer, director, employee, attorney, or agent of any Secured Beneficiary, shall have
any liability with respect to, and each Guarantor hereby waives, releases, and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by a Guarantor in connection with, arising out of, or in any way related to,
this Guaranty or any of the other Loan Documents, or any of the transactions contemplated by this
Guaranty, the Credit Agreement or any of the other Loan Documents. Each Guarantor hereby waives,
releases, and agrees not to xxx any Secured Beneficiary or any of the Secured Beneficiary’s
Affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of
any claim in connection with, arising out of, or in any way related to, this Guaranty, the Credit
Agreement or any of the other Loan Documents, or any of the transactions contemplated by Credit
Agreement or financed thereby.
Section 30. Definitions.
(a) For the purposes of this Guaranty:
“Proceeding” means any of the following: (i) a voluntary or involuntary case
concerning any Guarantor shall be commenced under the Bankruptcy Code of 1978, as amended; (ii) a
custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed
for, or takes charge of, all or any substantial part of the property of any Guarantor; (iii) any
other proceeding under any Applicable Law, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up or composition for adjustment of debts, whether now or hereafter in
effect, is commenced relating to any Guarantor; (iv) any Guarantor is adjudicated insolvent or
bankrupt; (v) any order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general assignment for the benefit
of creditors; (vii) any Guarantor shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; (viii) any Guarantor shall call a
meeting of its creditors with a view to arranging a composition or adjustment of its debts; (ix)
any Guarantor shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or (x) any corporate action shall be taken by any Guarantor
for the purpose of effecting any of the foregoing.
(b) Terms not otherwise defined herein are used herein with the respective meanings given them
in the Credit Agreement.
(c) Miscellaneous. By acceptance of the benefits hereof, each Secured Beneficiary
acknowledges and agrees that its rights hereunder are subject to the terms of the Credit
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Agreement, that the rights, obligations, and liabilities of the Agent are subject to the terms
of the Credit Agreement, that the Collateral can be released as provided in the Credit Agreement,
and that a particular Guarantor may be released from its obligations as provided in the Credit
Agreement.
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty as of the
date and year first written above.
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[GUARANTORS] |
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By: |
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Name: |
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Title:
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Address for Notices: |
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c/o Ashford Hospitality Limited Partnership |
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00000 Xxxxxx Xxxxxxx, Xxxxx 0000 |
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Xxxxxx, Xxxxx 00000 |
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Attention: Xxxxx Xxxxxx, Chief Legal Officer |
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Telecopy Number: (000) 000-0000 |
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Telephone Number: (000) 000-0000 |
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K-11
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of , 20__, executed and delivered by
, a
(the “New Guarantor”), in favor of (a) KEYBANK NATIONAL
ASSOCIATION, in its capacity as Agent (the “Agent”) for the Lenders under that certain Credit
Agreement dated as of September 26, 2011 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), by and among Ashford Hospitality Limited Partnership
(the “Borrower”), the financial institutions party thereto and their assignees under Section 12.5.
thereof (the “Lenders”) and the Agent, (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Agent and the Lenders have agreed to make
available to the Borrower certain financial accommodations on the terms and conditions set forth in
the Credit Agreement;
WHEREAS, the Borrower, the New Guarantor, and the existing Guarantors, though separate legal
entities, are [members of the same corporate family] and have determined it to be in their mutual
best interests to obtain financing from the Agent and the Lenders through their collective efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and indirect benefits from
the Agent and the Lenders making such financial accommodations available to the Borrower under the
Credit Agreement and, accordingly, the New Guarantor is willing to guarantee the Borrower’s
obligations to the Agent and the Lenders on the terms and conditions contained herein; and
WHEREAS, the New Guarantor’s execution and delivery of this Agreement is a condition to the
Agent and the Lenders continuing to make such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the New Guarantor, the New Guarantor agrees as follows:
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that it is a
“Guarantor” under that certain Guaranty dated as of September 26, 2011 (as amended, supplemented,
restated or otherwise modified from time to time, the “Guaranty”), made by each Subsidiary or Joint
Venture Subsidiary of the Borrower a party thereto in favor of the Agent and the Lenders and
assumes all obligations of a “Guarantor” thereunder and agrees to be bound thereby, all as if the
New Guarantor had been an original signatory to the Guaranty. Without limiting the generality of
the foregoing, the New Guarantor hereby:
(a) irrevocably and unconditionally guarantees the due and punctual payment and performance
when due, whether at stated maturity, by acceleration or otherwise, of all Guarantied Obligations
(as defined in the Guaranty);
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(b) makes to the Agent and the Lenders as of the date hereof each of the representations and
warranties contained in Section 5 of the Guaranty and agrees to be bound by each of the covenants
contained in Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
Section 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED,
AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have their respective defined meanings given them in the Credit Agreement.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the New Guarantor has caused this Accession Agreement to be duly executed and
delivered under seal by its duly authorized officers as of the date first written above.
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[NEW GUARANTOR] |
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Address for Notices: |
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c/o Ashford Hospitality Limited Partnership |
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Attention: |
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Telecopy Number: ( ) |
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Telephone Number:
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Accepted: |
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KEYBANK NATIONAL |
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ASSOCIATION, as Agent
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