VOTING AGREEMENT
Exhibit 99.2
This Voting Agreement (this “Agreement”), dated as of January 22, 2010, is by and
among LSREF Lodging Investments, LLC, a Delaware limited liability company
(“Purchaser”), LSREF Lodging Merger Co., Inc., a Delaware corporation and an affiliate of
Purchaser (“Merger Sub”), and Key Colony Fund, L.P., a Delaware limited partnership
(“Stockholder”).
WHEREAS, on even date herewith, Lodgian, Inc., a Delaware corporation (the “Company”),
Purchaser and Merger Sub are entering into an Agreement and Plan of Merger (the “Merger
Agreement”), pursuant to which Merger Sub will be merged with and into the Company with the
Company surviving (the “Merger”);
WHEREAS, Stockholder owns beneficially or of record and has the right to vote and dispose of
thirteen and 9/10 percent (13.9%) of the outstanding shares of common stock, par value $.01 per
share (the “Common Stock”), of the Company;
WHEREAS, the Company, Purchaser, Merger Sub and Stockholder desire to set forth their
agreement with respect to the voting of Stockholder’s shares of Common Stock with respect to the
Merger and the Merger Agreement; and
WHEREAS, in executing and delivering the Merger Agreement, Purchaser and Merger Sub are
relying on the agreements contained herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Beneficially Owned” and “Beneficial Ownership” each have the meaning set
forth in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
(b) “Person” means any individual, corporation, limited or general partnership,
limited liability company, limited liability partnership, trust, association, joint venture,
governmental entity and other entity or group (which term will include a “group” as such term is
defined in Section 13(d)(3) of the Exchange Act).
(c) “Shares” means (i) all outstanding shares of Common Stock owned of record or
Beneficially Owned by Stockholder as of the date hereof and set forth on Schedule I, and
(ii) all additional outstanding shares of Common Stock acquired by Stockholder, beneficially or of
record, during the period commencing with the execution and delivery of this Agreement and expiring
on the termination of this Agreement.
(d) “Transfer” means, with respect to a security, the transfer, sale, gift, pledge,
hypothecation, encumbrance, assignment or other disposition (whether by merger, consolidation,
liquidation, dissolution, dividend, distribution or otherwise) of such security or the Beneficial
Ownership or voting, economic or other interests thereof, the offer to make such a transfer or
other disposition, and each option, agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing.
2. Voting of Common Stock. Stockholder hereby irrevocably agrees that, during the time this
Agreement is in effect, at any meeting of the stockholders of the Company, however called, or at
any adjournment or postponement thereof, or in any other circumstance in which the vote, consent
(written or otherwise) or approval of stockholders of the Company is sought, Stockholder shall
appear in person or by proxy (including for purposes of establishing a quorum) and (a) vote or
cause to be voted Stockholder’s Shares to adopt, approve and vote in favor of the Merger Agreement,
the Merger and the other transactions contemplated by the Merger Agreement and any other actions or
agreements required in furtherance thereof; (b) vote or cause to be voted Stockholder’s Shares
against any action or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger Agreement; and (c)
vote or cause to be voted Stockholder’s Shares against any action or agreement (other than the
Merger Agreement or the transactions contemplated thereby) that would impede, interfere with,
delay, postpone or attempt to discourage the Merger, including, but not limited to: (i) any
extraordinary corporate transaction, such as a merger, consolidation, tender or exchange offer or
other business combination involving the Company or any of its subsidiaries; (ii) a sale, lease or
transfer of a material amount of assets of the Company or any of its subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the Company or any of its
subsidiaries; (iii) any change in the management or board of directors of the Company, except as
otherwise agreed to in writing by Purchaser; (iv) any change in the present capitalization or
dividend policy of the Company; (v) any amendment of the Company’s certificate of incorporation or
by-laws; or (vi) any other material change in the Company’s corporate structure or business.
Stockholder further agrees that Stockholder shall not commit or agree to or enter into any
contract, agreement, arrangement or understanding with any Person, the effect of which would be
inconsistent with or violative of the provisions and agreements contained in this Section
2. Stockholder acknowledges that the agreement set forth in this Section 2 applies
even if the Company breaches any of its representations, warranties, covenants or agreements set
forth in the Merger Agreement.
3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints, Purchaser and each executive
officer of Purchaser and each other person designated by Purchaser in writing as Stockholder’s
proxy, agent and attorney-in-fact (with full power of substitution), for and in the name, place and
stead of Stockholder, to attend any meeting of the stockholders of the Company at which the Merger
Agreement or the Merger may be discussed or considered and to vote Stockholder’s Shares to adopt,
approve and vote in favor of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement, and against any Company Takeover Proposal (as defined in the
Merger Agreement) or Company Superior Offer (as defined in the Merger Agreement) and as otherwise
contemplated by Section 2.
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(b) Stockholder represents that any proxies heretofore given in respect of Stockholder’s
Shares are revocable, and that any such proxies are hereby revoked, and Stockholder agrees to
promptly notify the Company of such revocation.
(c) Stockholder understands and acknowledges that Purchaser and Merger Sub are entering into
the Merger Agreement in reliance upon Stockholder’s execution and delivery of this Agreement.
Stockholder hereby affirms that the irrevocable proxy set forth in this Section 3 is given
in connection with the execution of the Merger Agreement and affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked until the termination of this
Agreement pursuant to Section 10(f). Stockholder hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by virtue hereof. THIS PROXY AND POWER
OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST AND IS EXECUTED AND INTENDED TO BE
IRREVOCABLE. Stockholder shall execute and deliver to Purchaser any proxy cards that Stockholder
receives to vote in favor of the Merger Agreement and the consummation of the Merger. Purchaser
shall deliver to the Secretary of the Company any such proxy cards received by it at any meeting
called to approve the consummation of the Merger. Without limiting the generality of the
foregoing, such irrevocable proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporation Law. In the event that Stockholder
fails for any reason to vote in accordance with the requirements of Section 2, the vote of
the proxyholder shall control in any conflict between the vote by the proxyholder in accordance
with this Agreement and a vote by Stockholder. If for any reason the proxy granted herein is not
irrevocable, Stockholder agrees to vote Stockholder’s Shares in accordance with Section 2
hereof.
4. No Disposition; Communications.
(a) No Disposition. Stockholder hereby covenants and agrees that between the date
hereof and the termination of this Agreement pursuant to Section 10(f), except as
contemplated by this Agreement and the Merger Agreement, Stockholder shall not (i) offer to
Transfer, Transfer or consent to any Transfer of any or all of Stockholder’s Shares or any voting,
economic or other interest therein without the prior written consent of Purchaser, (ii) enter into
any contract, option or other agreement, arrangement or understanding with respect to any Transfer
of any or all of Stockholder’s Shares or any voting, economic or other interest therein, (iii)
grant any proxy, power-of-attorney or other authorization or consent in or with respect to any or
all of Stockholder’s Shares, (iv) deposit any or all of Stockholder’s Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any or all of Stockholder’s Shares,
(v) enter into any derivative, hedging, swap or similar agreement with respect to any Common Stock
or other securities of the Company, or (vi) take any other action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect in any respect or in
any way restrict, limit or interfere in any respect with the performance of Stockholder’s
obligations hereunder or the transactions contemplated hereby or by the Merger Agreement. Any
attempted Transfer of Stockholder’s Shares or any interest therein in violation of this Section
4 shall be null and void. Stockholder hereby agrees that, in order to ensure compliance with
the restrictions referred to herein, Stockholder hereby authorizes and requests the Company to
issue appropriate stop transfer instructions to its transfer agent in respect of Stockholder’s
Shares and its affiliates’ shares of Common Stock.
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(b) Communications. Unless required by applicable law, Stockholder shall not, and
shall cause its affiliates, agents and representatives not to, make any press release, public
announcement or other public communication that criticizes or disparages this Agreement, the Merger
Agreement or the transactions contemplated hereby and thereby, without the prior written consent of
Purchaser. Stockholder hereby (i) consents to and authorizes the publication and disclosure by the
Company and Purchaser of Stockholder’s identity and holding of Stockholder’s Shares, and the nature
of Stockholder’s commitments, arrangements and understandings under this Agreement, and any other
information that Purchaser reasonably determines to be necessary in the Proxy Statement (as defined
in the Merger Agreement) and any other U.S. Securities and Exchange Commission disclosure document
in connection with the Merger or any other transactions contemplated by the Merger Agreement and
(ii) agrees as promptly as practicable to notify Purchaser of any required corrections with respect
to any written information supplied by it specifically for use in any such disclosure document.
5. No Solicitation. Stockholder hereby agrees that it shall not, and shall not permit or
authorize any of its officers, directors, employees, investment bankers, attorneys, affiliates,
representatives or agents to, directly or indirectly, encourage, facilitate, induce, solicit,
explore, participate in or initiate discussions or negotiations with, or provide or disclose any
information to, any Person (other than Purchaser or Merger Sub or any of their affiliates or
representatives) concerning any Company Takeover Proposal or enter into any agreement, arrangement
or understanding requiring the Company to abandon, terminate or fail to consummate the Merger or
any other transactions contemplated by the Merger Agreement. Stockholder will immediately cease
any existing activities, discussions or negotiations with any third parties conducted heretofore
with respect to any Company Takeover Proposal. Stockholder shall notify Purchaser as promptly as
practicable (and in any event within twenty four (24) hours) of the receipt by Stockholder, or any
of its officers, directors, employees, investment bankers, attorneys, affiliates, representatives
or agents, of any bona fide inquiries, proposals or offers, requests for information or requests
for discussions or negotiations regarding any Company Takeover Proposal or that could reasonably be
expected to result in a Company Takeover Proposal, specifying the terms and conditions thereof and
the identity of the Person or group making such inquiry, proposal, offer or request.
6. Reasonable Best Efforts. Subject to the terms and conditions of this Agreement,
Stockholder, in its capacity as a stockholder, hereby agrees to use all reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary,
proper or advisable under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Stockholder shall promptly consult with Purchaser and
provide any necessary information and material with respect to all filings made by Stockholder with
any Governmental Authority (as defined in the Merger Agreement) in connection with this Agreement
and the Merger Agreement and the transactions contemplated hereby and thereby.
7. Waiver of Appraisal Rights. Stockholder hereby (a) waives and agrees not to exercise any
rights of appraisal or rights to dissent from the Merger that Stockholder may have and (b) agrees
not to commence or participate in, and to take all actions necessary to opt out of any class in any
class action with respect to, any claim, derivative or otherwise, against Purchaser, Merger Sub,
the Company or any of their respective successors, directors, officers,
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affiliates or representatives relating to the negotiation, execution or delivery of this
Agreement or the Merger Agreement or the consummation of the Merger, including any claim (i)
challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement
or (ii) alleging a breach of any fiduciary duty of the directors or officers of the Company in
connection with the Merger Agreement or the transactions contemplated thereby.
8. Representations and Warranties of Stockholder. Stockholder hereby represents and warrants
to Purchaser and Merger Sub as follows:
(a) Title. Stockholder has good, valid and marketable title to Stockholder’s Shares,
free and clear of any lien, pledge, charge, encumbrance or claim of any nature whatsoever.
(b) No Other Rights. There are no outstanding options, warrants, rights of first
refusal or first offer, or other rights or similar agreements to purchase or acquire any or all of
Stockholder’s Shares.
(c) Ownership of Shares. On the date hereof, Stockholder owned of record or
Beneficially Owned the Shares of Common Stock set forth on Schedule I attached hereto and,
on the date hereof, such Shares of Common Stock owned by Stockholder constitute all of the Shares
of Common Stock owned of record or Beneficially Owned by Stockholder and its affiliates, and
Stockholder and its affiliates do not hold any securities convertible into or exchangeable for
shares of Common Stock. Stockholder has sole voting power, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to enter into and perform all
of its obligations under this Agreement with respect to all of the Shares of Common Stock owned by
Stockholder and its affiliates, with no restrictions, subject to applicable federal and state
securities laws, on Stockholder’s rights of disposition pertaining thereto.
(d) Organization; Power; Binding Agreement; No Conflicts. Stockholder is a limited
partnership, duly organized, validly existing and in good standing under the laws of the state of
its organization. Stockholder has the legal capacity and all the necessary power and authority to
enter into and perform all of its obligations under this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated herein by Stockholder have
been duly authorized by all necessary limited partnership action on the part of Stockholder. The
execution, delivery and performance of this Agreement by Stockholder will not (i) violate, breach,
contravene or conflict with any provisions of the certificate of limited partnership, limited
partnership agreement or other organizational documents of Stockholder, (ii) violate, breach or
(with or without notice or lapse of time, or both) constitute a default or give rise to any right
of termination, cancellation, modification or acceleration under any contract, instrument,
arrangement or other agreement to which Stockholder or any of its affiliates is a party, including,
without limitation, any voting agreement, stockholders agreement or voting trust, or (iii) violate
any law, writ, injunction, statute, rule, regulation, order, judgment or decree binding upon
Stockholder or any of its affiliates. This Agreement has been duly and validly executed and
delivered by Stockholder, and assuming this Agreement has been duly and validly authorized,
executed and delivered by each party hereto other than Stockholder, this Agreement constitutes a
legal, valid and binding agreement of Stockholder, enforceable against Stockholder in accordance
with its terms, except that (i) such enforcement may be subject to applicable
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bankruptcy, insolvency, reorganization, moratorium, or similar laws, now or hereafter in
effect, affecting creditor rights generally; and (ii) equitable relief may be subject to equitable
defenses and to the discretion of the court. Except for the applicable requirements of the
Exchange Act, no filing or notification with, and no permit, authorization, consent or approval of,
any Governmental Authority (as defined in the Merger Agreement) is necessary on the part of
Stockholder or any of its affiliates for the execution and delivery of this Agreement, except where
the failure to obtain such permits, authorizations, consents or approvals, or to make such filings
or notifications, would not impair the ability of Stockholder to perform Stockholder’s obligations
hereunder.
(e) Litigation. There is no action, suit, proceeding or investigation pending or, to
the knowledge of Stockholder or any of its affiliates, threatened against Stockholder or any of its
affiliates that questions the validity of this Agreement or any action taken or to be taken by
Stockholder in connection with this Agreement.
(f) Stockholder Has Adequate Information. Stockholder is a sophisticated investor with
respect to the Shares and has independently and without reliance upon Purchaser or Merger Sub and
based on such information as Stockholder has deemed appropriate, made Stockholder’s own analysis
and decision to enter into this Agreement. Stockholder acknowledges that Purchaser has not made nor
makes to Stockholder any representation or warranty, whether express or implied, of any kind or
character in connection with this Agreement except as expressly set forth in this Agreement.
9. Binding on Subsequently Acquired Shares of Common Stock. Stockholder agrees that any
Shares of Common Stock which Stockholder purchases or with respect to which Stockholder otherwise
acquires Beneficial Ownership or voting rights, directly or indirectly, after the date of this
Agreement, including, without limitation, Shares issued upon the conversion, exercise or exchange,
as the case may be, of securities held by Stockholder that are convertible into, or exercisable or
exchangeable for, shares of Common Stock, shall be subject to the terms and conditions of this
Agreement. Stockholder hereby agrees, while this Agreement is in effect, to notify Purchaser
promptly in writing of the number and description of any additional Shares of Common Stock which
Stockholder purchases or with respect to which Stockholder otherwise acquires Beneficial Ownership
or voting rights, directly or indirectly, after the date of this Agreement.
10. Miscellaneous.
(a) Counterparts. This Agreement may be executed in one or more counterparts, each of
which together shall be deemed an original, but all of which together shall constitute one and the
same instrument.
(b) Amendment. This Agreement may be amended only by means of a written amendment
signed by all of the parties hereto.
(c) Successors; Assigns; Transferees; Parties in Interest. The provisions of this
Agreement shall be binding upon the successors, permitted assigns and transferees of each of the
parties hereto. This Agreement shall not be assigned by operation of law or otherwise
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without the prior written consent of Stockholder (in the case of any assignment by Purchaser)
or Purchaser (in the case of an assignment by Stockholder); provided that Purchaser may
assign its rights and obligations hereunder to Merger Sub or any other affiliate of Purchaser, but
no such assignment shall relieve Purchaser of its obligations hereunder. Nothing herein, express
or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
(d) Stockholder Capacity. Nothing in this Agreement shall be construed as preventing
or limiting any currently serving director of the Company (“Current Director”) who is an individual
employee, principal or partner of Stockholder (or its affiliate) from (i) taking any actions in the
Current Director’s capacity as a director of the Company or (ii) fulfilling the duties or
obligations of the Current Director acting in his capacity as a director of the Company.
(e) Specific Performance. Stockholder hereby agrees that irreparable harm would occur
in the event that any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. Accordingly, Stockholder agrees that each of
Purchaser and Merger Sub shall be entitled to an injunction or restraining order to prevent
breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court
of the United States or any state having jurisdiction, this being in addition to any other right or
remedy to which Purchaser or Merger Sub may be entitled under this Agreement, at law or in equity,
without the necessity of posting bonds or other undertaking in connection therewith. The parties
acknowledge that in the absence of a waiver, a bond or undertaking may be required by a court and
the parties hereby waive any such requirement of such a bond or undertaking.
(f) Termination. This Agreement shall terminate upon the earliest to occur of (i) the
termination of the Merger Agreement in accordance with its terms, and (ii) the Effective Time (as
defined in the Merger Agreement); provided that no party shall be relieved from any liability for
any willful breach of this Agreement by virtue of any such termination.
(g) Notices. all notices or communications hereunder shall be in writing (including
facsimile or similar writing) addressed as follows:
To Stockholder:
Key Colony Fund, L.P.
00000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
00000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
To Purchaser or Merger Sub:
0000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
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with a copy to:
Hunton & Xxxxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. XxXxxxxxx, Esq.
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. XxXxxxxxx, Esq.
Facsimile: (000) 000-0000
All notices and other communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by facsimile, receipt confirmed, or on the next business day
when sent by overnight courier or on the second succeeding business day when sent by registered or
certified mail (postage prepaid, return receipt requested).
(h) Entire Agreement. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among the parties hereto with respect to the subject
matter hereof.
(i) Further Assurances. Stockholder agrees to take any other actions reasonably
requested by Purchaser or Merger Sub in order to vest, perfect, confirm or record the rights
granted to Purchaser hereunder or otherwise effectuate and carry out the purpose of this Agreement.
(j) Severability. This Agreement shall be deemed severable; the invalidity, illegality
or unenforceability of any term or provision of this Agreement shall not affect the validity,
legality or enforceability of the balance of this Agreement or of any other term hereof, which
shall remain in full force and effect. If any of the provisions hereof are determined to be
invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible.
(k) Remedies. All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative and not alternative,
and the exercise of any such right, power or remedy by any party hereto shall not preclude the
simultaneous or later exercise of any other such right, power or remedy by such party.
(l) Governing Law; Submission to Jurisdiction.
(i) This Agreement and the transactions contemplated herein, and all disputes between the
parties under or related to this Agreement, the transactions contemplated herein or the facts and
circumstances leading to its or their execution or performance, whether in contract, tort or
otherwise, shall be governed by the Laws of the State of Delaware, without reference to conflict of
laws principles.
(ii) Each of the parties (A) irrevocably submits itself to the personal
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jurisdiction of any state or federal court sitting in the State of Delaware, as well as to the
jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or
proceeding arising out of or relating to this Agreement, the Merger or other transactions
contemplated herein, (B) agrees that every such suit, action or proceeding shall be brought, heard
and determined exclusively in the Court of Chancery of the State of Delaware (provided that, in the
event subject matter jurisdiction is unavailable in or declined by the Court of Chancery, then all
such claims shall be brought, heard and determined exclusively in any other state or federal court
sitting in the State of Delaware), (C) agrees that it shall not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from such court, (D) agrees not to bring
any suit, action or proceeding arising out of or relating to this Agreement, the Merger or other
transactions contemplated herein in any other court and (E) waives any defense of inconvenient
forum to the maintenance of any suit, action or proceeding so brought.
(iii) Each of the parties agrees to waive any bond, surety or other security that might be
required of any other party with respect to any suit, action or proceeding, including an appeal
thereof.
(iv) Each of the parties agrees that service of any process, summons, notice or document by
U.S. registered mail to its address set forth in Section 10(g) hereof shall be effective
service of process for any action, suit or proceeding brought against it, provided,
however, that nothing contained in the foregoing clause shall affect the right of any party
to serve legal process in any other manner permitted by Law.
(m) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS KNOWINGLY AND VOLUNTARILY AND (IV) IT HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10(M).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written
above.
| LSREF LODGING INVESTMENTS, LLC By: LSREF Lodging Holdings, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| LSREF LODGING MERGER CO., INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| KEY COLONY FUND, L.P. By: Key Colony Management, LLC, its General Partner |
||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Xxxx X. Xxxxxxxx, as Managing Member | ||||
SCHEDULE I
| Stockholder | Number of Shares | |
| Key Colony Fund, L.P. | 3,004,853 |
