Loan Agreement between LF3 El Paso, LLC, LF3 El Paso TRS, LLC, and EPH Development Fund LLC, relating to the El Paso Property, dated as of May 12, 2021

Exhibit 10.24

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LOAN AGREEMENT

BETWEEN

LF3 EL PASO, LLC

AND

LF3 EL PASO TRS, LLC

AS BORROWER

AND

EPH DEVELOPMENT FUND LLC

AS LENDER

May 12, 2021

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TABLE OF CONTENTS

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TABLE OF CONTENTS, PAGE i

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TABLE OF CONTENTS, PAGE ii

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LIST OF SCHEDULES

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TABLE OF CONTENTS, PAGE iii

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TABLE OF CONTENTS, PAGE iv

TABLE OF DEFINITIONS

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TABLE OF DEFINITIONS, PAGE i

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TABLE OF DEFINITIONS, PAGE ii

LOAN AGREEMENT

This Loan Agreement (this “Agreement”), dated as of May 12, 2021 (the “Effective Date”) is made by and between LF3 EL PASO, LLC, a Delaware limited liability company (“SPE Owner”) and LF3 EL PASO TRS, LLC, a Delaware limited liability company (“TRS Lessee”; and collectively with SPE Owner , “Borrower”), and EPH Development Fund LLC, a Delaware limited liability company (“Lender”).

Article I Definitions

Section 1.1 Specific Definitions. The following terms have the meanings set forth below:

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by, or is under common Control with such Person or is a director or officer of such Person or of an Affiliate of such Person.

“Alcohol Concession Agreement” means the Alcohol Concession Agreement by and between LF3 El Paso TRS, LLC and TVO ABC Corporation dated May 12, 2021.

“Approved Capital Expenses” means Those Capital Expenses incurred by Borrower that are either (i) included in the Capital Budget or (ii) approved by Lender in its reasonable discretion.

“Approved FF&E Expenditures” means the cost of FF&E Expenditures incurred by Borrower and either (i) included in the Annual Budget, (ii) approved by Lender, which approval will not be unreasonably withheld or delayed, or (iii) permitted to be incurred by Manager without the consent of TRS Lessee pursuant to the provisions of the Franchise Agreement.

“Approved Operating Expenses” means Operating expenses incurred by Borrower which (i) are included in the approved Operating Budget for the current calendar year, (ii) are for real estate taxes, insurance premiums, electric, gas, oil, water, sewer or other utility service to the Property, (iii) are for sales, use, occupancy, liquor or similar taxes at the Hotel, or (iv) have been approved in writing by Lender.

“Borrower Representative” means individually or collectively, as the context may require, SPE Owner’s Member, SPE Owner’s Member GP, and TRS Lessee’s Member.

“Business Day” means any day other than a Saturday or a Sunday or any day on which commercial banks in El Paso, Texas are authorized or required to close.

“Capital Expenses” means expenses that are necessary for the repair and improvement of the Property which are required to be capitalized under GAAP.

“Cash Management Agreement” means the cash management agreement or deposit account control agreement in form and substance satisfactory to Lender to be executed by Borrower, Lender, Manager and the Cash Management Bank within five business days after the Effective Date.

“Cash Management Bank” means Wells Fargo Bank, National Association, or such other bank or depository selected by Lender in its discretion.

“Change in Control” means if Control Party no longer has the power to direct or cause the direction of the management and policies of Borrower or Borrower Representative.

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“Code” means the Internal Revenue Code of 1986, as amended and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Control” means with respect to any Person, either (i) ownership directly or indirectly of 25 percent or more of all equity interests in such Person or (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities, by contract or otherwise.

“Control Party” means SPE Owner’s Member GP, or any Successor Control Party.

“Debt” means the unpaid Principal, all interest accrued and unpaid thereon, any Yield Maintenance Premium and all other sums due to Lender in respect of the Loan or under any Loan Document.

“Debt Service” means with respect to any particular period, the scheduled Principal and interest payments due under the Note in such period.

“Debt Service Amount” means Debt Service due on the Loan during the 12 month period ending on the applicable Determination Date; provided, during the first 12 months after the Effective Date, the Debt Service Amount will be calculated based on Debt Service made to the applicable Determination Date, provided such payments will be annualized; and provided further, if at any time during the 12 month period ending on the applicable Determination Date, interest-only payments are due, then with respect to such interest-only period, the Debt Service Amount will be the monthly payment of Principal and interest that would be due based on a 25 year amortization schedule using the then-current interest rate.

“Debt Service Coverage Ratio” means with respect to the 12-month period ending on the measurement date, the ratio, calculated Borrower for such time period, each as determined in accordance with GAAP and calculated according to the Uniform System of Accounts for Hotels, of (a) Net Operating Income; to (b) the Debt Service Amount.

“Debt Yield” means, with respect to the 12-month period of time immediately preceding the date of determination, the percentage, calculated for Borrower for such time period, each as determined in accordance with GAAP and calculated according to the Uniform System of Accounts for Hotels, of: (a) Net Operating Income to (b) the outstanding Principal as of the date of determination.

“Default” means the occurrence of any event under any Loan Document which, with the giving of notice or passage of time, or both, would be an Event of Default.

“Default Rate” means a rate per annum equal to the lesser of (i) the maximum rate permitted by applicable law, or (ii) 7 percent above the Interest Rate, compounded monthly.

“Determination Date” means the last day of each Fiscal Quarter occurring after the Effective Date.

“Elevation” means Elevation Hotel Management, L.L.C., a Colorado limited liability company.

“Equipment” means the property described in Section 1.23(f) of the Security Instrument.

“ERISA” means the Employment Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.

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“ERISA Affiliate” means all members of a controlled group of corporations and all trades and business (whether or not incorporated) under common control and all other entities which, together with Borrower, are treated as a single employer under any or all of Section 414(b), (c), (m) or (o) of the Code.

“Excusable Delay” means a delay due to acts of God, governmental restrictions, stays, judgments, orders, decrees, war, other enemy actions, terrorism, civil commotion, fire, casualty, strikes, work stoppages, shortages of labor or materials or other causes beyond the reasonable control of the party in question.

“FF&E” means fixtures, furnishings, equipment, furniture, and other items of tangible personal property now or hereafter located in or on the Property or the Improvements or used in connection with the use, occupancy, operation and maintenance of all or any part of the hotel located on the Property, other than stocks of food and other supplies held for consumption in normal operation but including, without limitation, appliances, machinery, equipment, signs, artwork, office furnishings and equipment, guest room furnishings, and specialized equipment for kitchens, laundries, bars, restaurant, public rooms, health and recreational facilities, linens, dishware, all partitions, screens, awnings, shades, blinds, floor coverings, hall and lobby equipment, heating, lighting, plumbing, ventilating, refrigerating, incinerating, elevators, escalators, air conditioning and communication plants or systems with appurtenant fixtures, vacuum cleaning systems, call or beeper systems, security systems, sprinkler systems and other fire prevention and extinguishing apparatus and materials, reservation system computer and related equipment, all equipment, manual, mechanical or motorized, for the construction, maintenance, repair and cleaning of, parking areas, walks, underground ways, truck ways, driveways, common areas, roadways, highways and streets, and the Vehicles (as defined in the Uniform System of Accounts for Hotels).

“FF&E Expenditures” means for any period means the amount expended for FF&E in, at or to the Property to the extent the same is not a Capital Expense.

“Fiscal Quarter” means, the quarterly accounting periods of Borrower consistent with the Borrower’s accounting and reporting practices in effect on the Effective Date.

“Force Majeure Event” means any damage to the Improvements or disruption to the operation of the Property that is caused by fire or acts of God (such as flood, lightning, earthquake, or hurricane), war, strikes, other labor disputes, or riots or similar civil disturbance, but only to the extent such damage or disruption (a) is beyond the control of and not caused in whole or in part by negligence, illegal acts, or willful misconduct of Borrower, its employees, or any Person acting under Borrower’s control or with the approval or authorization of Borrower and (b) could not have been avoided or overcome by the exercise of due diligence or reasonable foresight on the part of Borrower or any other such Person.

“Franchise Agreement” means the License Agreement dated as of May 12, 2021, between TRS Lessee, as licensee, and Franchisor, as licensor, as modified by the comfort letter dated effective on or about as of May 16, 2021, executed by Franchisor and TRS Lessee.

“Franchisor” means Holiday Hospitality Franchising, LLC, a Delaware limited liability company.

“GAAP” means generally accepted accounting principles in the United States of America as of the date of the applicable financial report.

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“Governmental Authority” means any court, board, agency, commission, office or authority of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) now or hereafter in existence.

“Gross Revenues” means, for any period, the Rents actually received by Borrower or Manager.

“Guarantor” means each of SPE Owner’s Member and Guarantor (Individual).

“Guarantor (Individual)” means Corey R. Maple.

“Guaranty” means the Guaranty Agreement dated as of the Effective Date by SPE Owner’s Member, guarantying the obligations of the Borrower under the Loan Documents.

“Guaranty (Recourse)” means the Guaranty Agreement (Recourse Obligations) dated as of the Effective Date by Guarantor (Individual), guarantying certain obligations of the Borrower under the Loan Documents.

“Hotel Transactions” means, collectively, (i) occupancy arrangements for customary hotel transactions in the ordinary course of Borrower’s business conducted at the hotel located at the Property, including nightly rentals (or licensing) of individual hotel rooms or suites, banquet room use, and food and beverage services, and (ii) informational or guest services that are terminable on one month’s notice or less without cause and without penalty or premium, including co-marketing, promotional services, and outsourced services.

“Improvements” means all buildings and other improvements on the Land.

“Insurance Requirements” means collectively, (i) all material terms of any insurance policy required pursuant to this Agreement and (ii) all material regulations and then-current standards applicable to or affecting the Property or any part thereof or any use or condition thereof, which may, at any time, be recommended by the Board of Fire Underwriters, if any, or such other body exercising similar functions, having jurisdiction over the Property.

“Interest Period” means (i) the period beginning on and including the Effective Date and ending on the last day of the calendar month in which the Effective Date occurs, (ii) each calendar month thereafter until the calendar month before the month in which the Maturity Date occurs, and (iii) the period beginning on the first day of the calendar month in which the Maturity Date occurs and ending on the Maturity Date.

“Interest Rate” means five percent per annum (or, when applicable pursuant to this Agreement or any other Loan Document, the Default Rate).

“Inventory” means, as defined in the UCC, and including items which would be entered on a balance sheet under the line items for “Inventories” or “china, glassware, silver, linen and uniforms” under the Uniform System of Accounts for Hotels.

“Land” means the approximately 5.2713 acre tract of land located in El Paso County, Texas described on Exhibit A to the Security Instrument.

“Leases” means all leases, licenses, and other agreements or arrangements heretofore or hereafter entered into affecting the use, enjoyment or occupancy of, or the conduct of any activity upon or in, the Property or the Improvements, including any guarantees, extensions, renewals, modifications or amendments thereof and all additional remainders, reversions and other rights and estates appurtenant thereunder. As used herein, the term “Leases” will not include Hotel Transactions.

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“Legal Requirements” means statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower, any Loan Document or all or part of the Property or the construction, ownership, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either of record or known to Borrower, at any time in force affecting all or part of the Property.

“Lien” means any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of the foregoing, on or affecting all or any part of the Property or any interest therein, or any direct or indirect interest in Borrower or Borrower Representative, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

“Liquor Concession Agreement” means the Alcohol Concession Agreement dated on or about the Effective Date between TRS Lessee and Manager.

“Loan” means the loan in the Principal amount made pursuant to this Agreement and evidenced by the Note.

“Loan Assumption Agreement” means the Loan Assumption Agreement dated the Effective Date among Original Borrower, Borrower, and Lender.

“Loan Documents” means this Agreement and all other documents, agreements and instruments now or hereafter evidencing, securing or delivered to Lender in connection with the Loan, including, but not limited to, the following, each of which (other than the Security Instrument) is dated as of the Effective Date (a) the Loan Assumption Agreement, (b) the Note, (c) the Security Instrument, as amended by the Loan Assumption Agreement, (d) Memorandum of Loan Assumption Agreement among Lender, Original Borrower, and Borrower, (e) the Cash Management Agreement, (f) the Guaranty, (g) the Guaranty (Recourse), and  (h) the Environmental Indemnity Agreement made by Guarantor and Borrower (the “Environmental Indemnity”), as each of the foregoing may be (and each of the foregoing defined terms will refer to such documents as they may be) amended, restated, replaced, supplemented or otherwise modified from time to time.

“Management Agreement” means each of the Management Agreement (Elevation) and the Management Agreement (NHS), as each of the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with Section 5.11.

“Management Agreement (Elevation)” means the Hotel Management Agreement dated November 2, 2017, between Original Borrower and Elevation, as assigned to and assumed by Lessee pursuant to the Assignment and Assumption of Management Agreement dated May 12, 2021, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with Section 5.11.

“Management Agreement (NHS)” means a Management Agreement to be executed  by Lessee and NHS on the form previously provided to and reviewed by Lender, with such changes as are approved by Lender pursuant to Section 5.11(c).

“Manager” means initially Elevation; and upon execution of the  Management Agreement (NHS) as required by Section 5.11(c), will mean each of Elevation and NHS, and will

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include any successor, assignee or replacement manager appointed by a Borrower in accordance with Section 5.11.

“Manager Default” means has means the occurrence of a breach by or default of Manager under any of its obligations in the Management Agreement.

“Material Agreements” means each contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Property or any portion thereof, other than the Management Agreement, Liquor Concession Agreement and the Leases, as to which either (a) the amount of the aggregate expenditures thereunder would, or are reasonably anticipated to, exceed $50,000.00 or (b) the term thereof extends beyond one year (unless cancelable on 30 days or less notice without requiring the payment of termination fees or payments of any kind). Material Agreements will also include any Hotel Transaction (x) relating to any reservation lasting for more than 90 days and any reservation covering more than 20 rooms or any other use or occupancy arrangement outside of the ordinary course of Borrower’s business conducted at the Hotel located at the Property and (y) that requires Borrower’s consent in order for Manager to enter into any such Hotel Transaction.

“Material Alteration” means any alteration affecting structural elements of the Property, any utility or HVAC system contained in the Property, or the exterior of any building constituting a part of the Property, or any alteration at the Property the cost of which exceeds $200,000, in each case, however, other than the following, which will not constitute Material Alterations means (i) Required Repairs, (ii) alterations performed as part of a Restoration, or (iii) alterations performed in connection with Approved Capital Expenses.

“Maturity Date” means the date on which the final payment of principal of the Note becomes due and payable as therein provided, whether at the Stated Maturity Date, by declaration of acceleration, or otherwise.

“Net Cash Flow”  means for any period Gross Revenues actually received by Borrower or Manager, annualized, less the greater of (1) Approved Operating Expenses and (2) operating expenses actually paid by Borrower or Manager for the 12 month period ending with the most recent calendar month reporting. For the purpose of determining Net Cash Flow, operating expenses will (x) not include depreciation, amortization and other non-cash items, debt service, Capital Expenses, any contributions to any of the Reserve Funds, income taxes or other taxes in the nature of income taxes on sales, or use taxes required to be paid to any Governmental Authority, equity distributions, and other extraordinary and non-recurring items, and legal or other professional services fees and expenses unrelated to the operation of the Property, (y) be increased to reflect known increases in operating expenses that are anticipated, in Lender’s reasonable determination, to occur within the succeeding 12-month period including without limitation those related to Taxes and Insurance Premiums and (z) include (I) the actual fees paid to the Manager pursuant to the Management Agreement for such period of determination and (II) an amount equal to the greater of (x) an imputed capital improvement/FF&E requirement amount equal to the Required Percentage (as defined in Section 3.10(b) of Gross Revenue per annum (regardless of whether a reserve therefor is required hereunder or the amount of such reserve) and (y) the amount actually deposited into the FF&E Reserve Subaccount.

“Net Operating Income” means, as determined in accordance with GAAP and calculated according to the Uniform System of Accounts for Hotels, the following: (a) the sum of net income (or loss), interest expense, income taxes, depreciation, amortization, management fees, replacement reserves, and officers’ salaries expensed on the income statement, minus (b) the greater of (i) 4% of total revenues as an assumed reserve for replacement and (ii) actual

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replacement reserve, minus (c) the greater of (i) 3% of total revenues as an assumed management fee and (ii) actual management fees (including both base and incentive management fees, if any), minus (d) non-recurring miscellaneous income (as determined by Lender), plus (e) non-recurring miscellaneous expense (as allowed by Lender), and (f) plus or minus any adjustments made by Lender in its sole discretion to calculations for acquisitions or other similar circumstances where operating performance history is limited.

“Note” means Amended and Restated Promissory Note in the form of Schedule 1 hereto made by Borrower to Lender, in the original amount of $7,900,000, as the same may be amended, restated, modified, or assigned, which instrument amends and restates in its entirety, but does not novate, the Promissory Note dated May 31, 2018, from Original Borrower to Payee.

“NHS” means NHS LLC dba National Hospitality Services, a North Dakota limited liability company.

“Obligations” means (a) Borrower’s obligations for the payment of the Debt (b) the performance of all obligations of Borrower contained herein, (c) the performance of each obligation of Borrower contained in any other Loan Document, (d) the payment of all costs, expenses, legal fees and liabilities incurred by Lender in connection with the enforcement of any of Lender’s rights or remedies under the Loan Documents, or any other instrument, agreement or document which evidences or secures any other Obligations or collateral therefor, whether now in effect or hereafter executed, and (e) the payment, performance, discharge and satisfaction of all other liabilities and obligations of Borrower to Lender, whether now existing or hereafter arising, direct or indirect, absolute or contingent, and including, without limitation, each liability and obligation of Borrower under any one or more of the Loan Documents and any amendment, extension, modification, replacement or recasting of any one or more of the instruments, agreements and documents referred to herein or therein or executed in connection with the transactions contemplated hereby or thereby.

“Officer’s Certificate” means a certificate delivered to Lender by Borrower which is signed by an authorized officer of the appropriate entity and the person executing such Officer’s Certificate has the power and authority to execute the same.

“Operating Lease” means will mean the Lease Agreement dated May 12, 2021, between SPE Owner, as landlord, and TRS Lessee, as tenant, as it may be further amended, restated, replaced, supplemented, extended or otherwise modified from time to time in accordance with the terms of the Loan Documents.

“Original Borrower” means HD Sunland Park Property, L.L.C., a Delaware limited liability company.

“Payment Date” means (i) the Effective Date and (ii) the first first Business Day of each calendar month after the month in which the Effective Date occurs..

“Permitted Encumbrances” means (i) the Liens created by the Loan Documents, (ii) all Liens and other matters disclosed in the title insurance policy insuring the Lien of the Security Instrument, (iii) Liens, if any, for Taxes or other charges not yet due and payable and not delinquent, (iv) any workers’, mechanics’ or other similar Liens on the Property provided that any such Lien is bonded or discharged within 30 days after Borrower first receives notice of such Lien and (v) such other title and survey exceptions as Lender approves in writing in Lender’s discretion.

“Permitted FF&E Financing” means, collectively any purchase agreement, equipment leases, financing leases and other agreements relating to the acquisition of FF&E related to the

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ownership and operation of the Property provided that (i) such financing and/or leasing is subject to commercially reasonable terms and conditions and at a market rate of interest and/or leasing rate, (ii) the aggregate annual amount of payments (including principal and interest) of such financing and/or leasing for FF&E will at all times be less than one percent of the then-Principal, (iii) the removal of any FF&E which is the subject of such financing and/or leasing will not materially damage or impair the value of the Property, (iv) the financing and/or leasing does not create a lien or security interest on any Property other than the FF&E being financed and/or leased, (v) such financing and/or leasing is not evidenced by a note, and (vi) upon request by Lender, Borrower will provide Lender with copies of the documentation for such financing and/or leasing.

“Permitted Transfers” means

“Person” means any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association, any other person or entity, and any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.

“PIP” means the Property Improvement Plan issued for Holiday Inn El Paso West – Sunland Park on February 23, 2021 by IGH in connection with the proposed change of ownership, acknowledged on or about the Effective Date by TRS Lessee .and any subsequent property improvement plan Property Improvement Plan pursuant to the Franchise Agreement.

“PIP Requirements” means those items set forth in any PIP.

“Plan” means (i) an employee benefit or other plan established or maintained by Borrower or any ERISA Affiliate or to which Borrower or any ERISA Affiliate makes or is obligated to make contributions and (ii) that is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code.

“PPP Loan Documents” means any and all loan agreements, loan applications, promissory notes, and other documents and instruments evidencing or issued in connection with (1) Loan No. 70711018, issued by WestStar Bank in El Paso, Texas ("WestStar") to Original

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Borrower  in the original principal amount of $257,500 and (2) Loan No. 68911985-02, issued by WestStar to Original Borrower on March 3, 2021, in the original principal amount of $360,538.50, both of which loans were issued under and in connection with the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) and the Consolidated Appropriations Act, 2021, respectively, and both of which loans are being assumed by Borrower on or about the Effective Date.

“Principal” means the principal amount of the Note, which on the date hereof is $7,900,000.00

“Property” means the Land and Improvements thereon consisting of an approximately 175 key full service hotel owned by Borrower and encumbered by the Security Instrument, together with all rights pertaining to such real property and Improvements, and all other collateral for the Loan as more particularly described in the granting clauses of the Security Instrument and referred to therein as the Property. The street address of the Property is 900 Sunland Park Dr, El Paso, TX 79922.

“Rents” means all rents, additional rents, rent equivalents, moneys payable as damages (including, without limitation, payments in the nature of Lease termination payments and payments by reason of the rejection of a Lease in a Bankruptcy Proceeding) or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, fees, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other payment and consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower, Manager or any of their agents or employees from any and all sources arising from or attributable to the Property and the Improvements, including all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of all or any portion(s) of the Property and/or the Improvements or rendering of services by Borrower, Manager or any of their agents or employees and proceeds, if any, from business interruption or other loss of income insurance. Rents will include revenues from the rental of rooms, guest suites, conference and banquet rooms, food and beverage facilities, health clubs, spas or other amenities, telephone services, laundry, vending, television and parking and all other items of revenue, receipts or other income as identified in the Uniform System of Accounts of Hotels.

“Reserve Funds” means, collectively, the Tax and Insurance Escrow Funds, the Operating Expense Reserve Funds, the FF&E Reserve Funds, the Excess Cash Flow and any other escrow or reserve fund established pursuant to the Loan Documents.

“Security Instrument” means the Deed of Trust, Security Agreement, Fixture Filing, Financing Statement and Assignment of Leases and Rents dated May 31, 2018, from Original Borrower to WestStar Title, LLC, as trustee, for the benefit of Lender, recorded on May 31, 2018 as Document Number 20180042472 in the real property records of El Paso County, Texas, as modified by the Loan Assumption Agreement.

“SPE Owner’s Member” means Lodging Fund REIT III OP, LP, a Delaware limited partnership.

“SPE Owner’s Member GP” means Lodging Fund REIT III, Inc., a Maryland corporation.

“State” means the State of Texas.

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“Stated Maturity Date” means initially, May 15,  2023, or the Extended Stated Maturity Date if the Loan is extended pursuant to Section 2.6.

“Subordination Agreement” means the Collateral Assignment, Subordination, Non- Disturbance and Attornment Agreement by and between Borrower, Lender, and Manager, and will include the Collateral Assignment, Subordination, Non- Disturbance and Attornment Agreement by and between Borrower, Lender, and NHS if executed and delivered pursuant to Section 5.11(c).

“Successor Control Party” means any Person that succeeds to the ownership of all or substantially all of the assets of the Control Party, provided that such Person directly or indirectly owns assets, or has assets under management, equal to or greater than $300,000,000.00.

“Sweep Event” means (a) an Event of Default has occurred and is continuing, (b) a Manager Default has occurred and is continuing, or (c) the Management Agreement has expired or has been terminated.

“Sweep Period” means any period during which a Sweep Event has occurred and is continuing. A Sweep Period will automatically commence upon the occurrence of a Sweep Event and will end upon the occurrence of a Sweep Termination Event.

“Sweep Termination Event” means (a) with respect to a Sweep Period that commenced as a result of the occurrence of an Event of Default, the Event of Default giving rise to such Sweep Event has been cured or waived and no other Event of Default and/or Manager Default has occurred and is then continuing, (b) with respect to a Sweep Period that commenced as a result of a Manager Default, the Manager Default giving rise to such Sweep Event has been cured or waived and no other Manager Default and/or Event of Default has occurred and is continuing, and (c) with respect to a Sweep Period that commenced as a result the termination or expiration of the Management Agreement, a replacement manager is appointed pursuant to Section 5.11(b) and no event of default by successor manager pursuant to the replacement management agreement and/or Event of Default has occurred and is continuing.

“Taxes” means all real estate and personal property taxes, assessments, water rates or sewer rents, maintenance charges, impositions, vault charges and license fees, now or hereafter levied or assessed or imposed against all or part of the Property, provided that Taxes will not include income taxes, sales and use taxes, occupancy taxes or other similar taxes.

“Term” means the entire term of this Agreement, which will expire only upon repayment in full of the Debt and full performance of each and every obligation to be performed by Borrower pursuant to the Loan Documents.

“Transfer” means any sale, conveyance, transfer, lease, assignment, lien, hypothecation, encumbrance or pledge, or the entry into any agreement to sell, convey, transfer, lease, assign, lien, hypothecate, encumber or pledge whether by law or otherwise, of, on, in or affecting (a) all or part of the Property (including any legal or beneficial direct or indirect interest therein), (b) any direct or indirect interest in Borrower (including any profit interest), or (c) any direct or indirect interest in Borrower Representative.

“Transfer Conditions” means, after giving effect to the Transfer in question, (a) the Transfer will not cause Borrower to cease to be a Special Purpose Bankruptcy Remote Entity or to breach the OFAC Laws, (b) the Transfer will not result in (y) the transferee (together with its Affiliates) increasing its direct or indirect interest in Borrower or in Borrower Representative to an amount that exceeds 49 percent or (z) a Change in Control, (c) SPE Owner’s Member GP will continue to own at least 51 percent of all equity interests (direct or indirect) in Borrower, and

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(d) no Person will acquire, either directly or indirectly, 30 percent or more of the direct or indirect equity interests in Borrower or Borrower Representative (that did not already own 30 percent or more of the direct or indirect equity interests in Borrower or Borrower Representative prior to such acquisition).

“TRS Lessee’s Member” means Lodging Fund REIT III TRS, Inc., a Delaware corporation.

“UCC” means the Uniform Commercial Code as in effect in the State or the state in which any of the Accounts are located, as the case may be.

“Uniform System of Accounts for Hotels” means the accounting standards printed in the then most recently revised edition of A Uniform System of Accounts for Hotels, as adopted by the Hotel Association of New York City, Inc. and the American Hotel and Motel Association, as amended or changed from time to time by the Hotel Association of New York City, Inc. and the American Hotel and Motel Association (or other appropriate board or committee of both Associations), except that any accounting principle or practice required or permitted to be changed by the Hotel Association of New York City, Inc. and the American Hotel and Motel Association (or other appropriate board or committee of both Associations) in order to continue as an accounting standard or practice may be so changed only so long as such required or permitted change will not have the effect of permitting Borrower’s and Guarantor’s compliance with any financial covenants or performance tests contained in this Agreement when without such change, such parties would not so comply.

“Welfare Plan” means an employee welfare benefit plan, as defined in Section 3(1) of ERISA.

“Yield Maintenance Date” means the date that is 90 days before the Stated Maturity Date.

“Yield Maintenance Premium” means with respect to any payment or prepayment of Principal (whether voluntary or due to the acceleration of the Loan) on or before the Yield Maintenance Date, an amount equal to the lesser of (i) the maximum amount permitted by applicable law and (ii) (A) the amount of such prepayment (or the amount of Principal so accelerated) multiplied by (B) the Interest Rate multiplied by (C) a fraction (expressed as a percentage) having a numerator equal to the number of days difference between the Yield Maintenance Date and the date such prepayment occurs and a denominator equal to 360.

Article II General Loan Terms

Section 2.1 The Loan. Lender is making the Loan to Borrower on the Effective Date, which will mature on the Maturity Date. Borrower acknowledges receipt of the Loan, the proceeds of which are being and will be used to refinance existing indebtedness. No amount of the Loan that is repaid may be reborrowed.

Section 2.2 Interest, Monthly Payments.

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occurs. All accrued and unpaid interest will be due and payable on the Maturity Date.

and the result of any of the foregoing is to increase the cost to Lender, by an amount which Lender deems to be material, of making or maintaining the Loan or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Borrower will, from time to time, upon receipt of prior written notice of not less than ten Business Days of such fact and a reasonably detailed description of the circumstances, promptly pay Lender such additional amount or amounts as will compensate Lender for such increased cost or reduced amount receivable (provided such additional amounts are then being charged by Lender to its borrowers under similar loans generally) and are not prohibited by such Requirement of Law to be charged back.

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subsequent to the Effective Date will have the effect of reducing the rate of return on Lender’s or such corporation’s capital as a consequence of its obligations hereunder by an amount deemed by Lender to be material (taking into consideration Lender’s or such corporation’s policies with respect to capital adequacy), then from time to time, Borrower will promptly, upon notice from Lender, pay to Lender such additional amount or amounts as will compensate Lender for such reduction (provided such additional amounts are then being charged by Lender to its borrowers under similar loans generally).

Section 2.3 Loan Repayment.

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notice thereof and such prepayment is accompanied by the applicable Yield Maintenance Premium.

Section 2.4 Release of Property. Lender will, upon the written request and at the expense of Borrower, upon the indefeasible payment in full of the Debt in accordance herewith, release the Lien of the Loan Documents if not theretofore released.

Section 2.5 Payments and Computations.

Section 2.6 Extension Option. Borrower may request that Lender extend (the “Extension Option”) the Stated Maturity Date to May 15, 2024 (the “Extended Stated Maturity Date”). Upon receipt of any such request to so extend the Stated Maturity Date, Lender will promptly confirm to Borrower in writing that the Stated Maturity Date will be so extended upon the satisfaction of the following conditions, with no extension fee or other fee payable to Lender.

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With respect to any request by Borrower to extend the Stated Maturity Date pursuant to this Section 2.6, if Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each such condition, Lender will have no obligation to extend the Stated Maturity Date hereunder.

Article III Cash Management And Reserves

Section 3.1 Cash Management Arrangements.  Within five business days after the Effective Date, Borrower will execute and will cause Cash Management Bank to execute and deliver the Cash Management Agreement to Lender, in form and substances satisfactory to Lender (which Lender will then execute and deliver to Borrower and the Cash Management Bank). Borrower represents and warrants that all issuers of credit cards accepted at the Property are and have been instructed to cause all sums payable by such issuers to be transmitted directly into a depository account designated account number ###-###-#### (the “Lockbox Account”) maintained at the Cash Management Bank. The requirement in the foregoing sentence will apply from and after the Effective Date, including the period of time before the full execution of the Cash Management Agreement. Until the Cash Management Agreement is fully executed and effective, funds in the Lockbox Account will be disbursed only if and to the extent expressly permitted by this Agreement or otherwise agreed to in writing, in each instance, by Lender. All Rents received by Borrower or Manager will be deposited into the Lockbox Account within three Business Days after receipt, except that, that Manager will be entitled to maintain up to $25,000 at the Hotel as petty cash. So long as no Sweep Period has occurred and is continuing, Manager, as agent for Borrower, will have access to all funds deposited into the Lockbox Account and may direct Cash Management Bank to make disbursements in accordance with the directions of Manager, as agent for Borrower, pursuant to and in accordance with the Management Agreement. Upon the occurrence of a Sweep Event, Lender will notify the Cash Management Bank of such Sweep Event, and Borrower and Cash Management Bank will establish an Eligible Account at the Cash Management Bank, which Eligible Account will be controlled by Lender (the “Cash Management Account”). During the continuance of any Sweep Period, funds deposited into the Lockbox Account in excess of $25,000 will be swept by the Cash Management Bank on each Business Day into the Cash Management Account and applied and disbursed in accordance with this Agreement and the Cash Management Agreement. Lender will also establish subaccounts of the Cash Management Account that will at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Subaccounts”). The Cash Management Account and any Subaccount will be under the sole control and dominion of Lender, and Borrower will have no right of withdrawal therefrom. Funds on deposit in the Cash Management Account will be released as contemplated in this Agreement and the Cash Management Agreement. Borrower will pay for all reasonable expenses of opening and maintaining all of the above accounts.

Section 3.2 Required Repairs. Borrower will perform and complete each item of the repairs and environmental remedial work at the Property described on Schedule 2 (the “Required Repairs”) within the designated time frame set forth for such item on Schedule 2. The Required Repairs constitute FF&E Work and accordingly may be paid for with FF&E Reserve Funds subject to the requirements set forth in Section 3.6.

Section 3.3 Taxes and Insurance Escrow. On the Effective Date, Borrower will pay to Lender $92,000.00 (the “Tax and Insurance Escrow Initial Deposit”). Thereafter, Borrower will pay to Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates will be payable during the next 12 months in order to accumulate with Lender sufficient funds to pay all such Taxes at least 30 days prior to their respective delinquency dates and (b) one-twelfth of the

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Insurance Premiums that Lender estimates will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof in order to accumulate with Lender sufficient funds to pay all such Insurance Premiums at least 30 days prior to the expiration of the Policies (the “Tax and Insurance Escrow Monthly Deposit”, which, together with the Tax and Insurance Escrow Initial Deposit, are hereinafter called the “Tax and Insurance Escrow Funds”). Upon the occurrence of a Sweep Event and during the continuance of a Sweep Period, funds on deposit in the Cash Management Account will be swept into a Subaccount (the “Tax and Insurance Subaccount”) in accordance with the priority pertaining to the application of funds as set forth in, and otherwise pursuant to the terms and conditions of, this Agreement and the Cash Management Agreement. If no Event of Default has occurred and is continuing then Lender will (x) apply the Tax and Insurance Escrow Funds to payments of Taxes and Insurance Premiums required to be made by Borrower pursuant to Section 5.2 and Section 7.1, provided that Borrower has promptly supplied Lender with notices of all Taxes and Insurance Premiums due. In making any payment relating to Taxes and Insurance Premiums, Lender may do so according to any bill, statement or estimate procured from the appropriate public office (with respect to Taxes) or insurer or agent (with respect to Insurance Premiums), without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If Lender determines in its reasonable judgment that the current balance of Tax and Insurance Escrow Funds will be insufficient to pay (or in excess of) the Taxes or Insurance Premiums not otherwise relating to Policies maintained through Manager’s (or its Affiliates’) insurance programs next coming due, Lender may increase (or decrease) the amount of the Tax and Insurance Escrow Monthly Deposit required to be made by Borrower.

Section 3.4 Operating Expense Subaccount. During the continuance of any Sweep Period,

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On each Payment Date, if the amount so disbursed to Manager as agent of Borrower from the Operating Expense Subaccount in the preceding month was (i) less than the total of the Approved Operating Expenses actually incurred for such prior month (subject in all respects to the approved Annual Budget), then Lender will, on such Payment Date, disburse funds held in the Operating Expense Subaccount equal to the difference, or (ii) greater than the total of the Approved Operating Expenses actually incurred for such prior month, then Lender will retain from the amount disbursed from the Operating Expense Subaccount equal to such difference. Borrower will use (and will cause Manager to use) all monies released to it pursuant to this Section to pay for Approved Operating Expenses.

Section 3.5 Interest Reserve. On the Effective Date, Borrower will deposit $400,000.00 in an account controlled by Lender (the “Interest Reserve Account”). At any time that Lender estimates in its sole but good faith discretion that the Net Cash Flow will not be sufficient to pay the Debt Service on each Payment Date through the Maturity Date, Lender will notify Borrower (the “Interest Shortfall Notice”) of such determination and Borrower will deposit such additional amount that Lender notifies Borrower it estimates in its sole but good faith discretion is necessary to make up such deficiency in the Interest Reserve Account within ten Business Days of the delivery of the Interest Shortfall Notice (the amount of such deficiency being herein referred to as the “Interest Shortfall”). For the avoidance of doubt, an Interest Shortfall may exist whether or not Lender delivers an Interest Shortfall Notice to Borrower. Failure to make such deposit as set forth herein will be an immediate Event of Default. Amounts deposited from time to time in the Interest Reserve Account pursuant to this Section 3.5 are referred to herein as the “Interest Reserve Funds”. Interest Reserve Funds in the minimum amount of $100,000.00 shall be maintained in the Interest Reserve Account at all times during the Term (the “Interest Reserve Minimum Balance”). Lender will apply amounts, if any, in the Interest Reserve Account (subject to the Interest Reserve Minimum Balance) toward the Debt Service on each Payment Date, provided no Event of Default has occurred and is continuing, there is no Interest Shortfall, the Debt Service Coverage Ratio of Borrower, measured as of the last day of the month that is two months prior to the month in which such Payment Date occurs (the “IR Measurement Date”), is at least 1.5:1.0, and the Debt Yield of Borrower, measured as of the IR Measurement Date, is at least 16% (and for the avoidance of doubt, Borrower will pay Debt Service on each Payment Date from sources other than the Interest Reserve Funds with respect to each Payment Date on which the criteria in this sentence are not satisfied).

Section 3.6 FF&E Reserve.

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Capital Expenses and Approved FF&E Expenditures. Upon the occurrence of a Sweep Event, funds on deposit in the Cash Management Account will be swept into a Subaccount (the “FF&E Reserve Subaccount”) in accordance with the priority pertaining to the application of funds as set forth in, and otherwise pursuant to the terms and conditions of, the Cash Management Agreement. The insufficiency of FF&E Reserve Funds will not relieve Borrower from its obligation to fulfill all preservation and maintenance covenants in the Loan Documents or in the Franchise Agreement.

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Lender will make disbursements as requested by Borrower no more frequently than monthly. Lender may require an inspection of the Property or any portion thereof at Borrower’s expense prior to making a monthly disbursement in order to verify completion of improvements which are the subject of any draw requests for Approved Capital Expenditures in excess of $75,000.00 for which reimbursement is sought.

Section 3.7 Casualty/Condemnation Funds. Borrower will pay, or cause to be paid, to Lender, immediately upon receipt, all Proceeds or Awards due to any Casualty or Condemnation (the “Casualty/Condemnation Funds”). The Casualty/Condemnation Funds will be disbursed in accordance with the provisions of Article VII.

Section 3.8 Excess Cash Flow Subaccount. Upon the occurrence of a Sweep Event, all Rents after application pursuant to clauses (i) through (vi) of Section 3.10(a) (the “Excess Cash Flow”) will be deposited into a Subaccount (the “Excess Cash Flow Subaccount”) pursuant to clause (vii) of such Section 3.10(a). All funds in the Excess Cash Flow Subaccount will be held by Lender as additional collateral for the Loan. Upon the termination of any Sweep Period, provided that no Event of Default or other Sweep Period has occurred and is continuing, Lender will disburse all funds on deposit in the Excess Cash Flow Subaccount to an account designated in writing by Borrower.

Section 3.9 Grant of Security Interest, Application of Funds. As security for payment of the Debt and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Lender, and grants to Lender a security interest in, the following (the “Account Collateral”): all Borrower’s right, title and interest in and to all Rents and the Reserve Funds, the Lockbox Account, the Cash Management Account, all Subaccounts created pursuant to this Agreement (collectively, the “Accounts”), and all payments to or monies held in any of the Accounts. Borrower hereby grants to Lender a continuing security interest in, and agrees to hold in trust for the benefit of Lender, all Rents in its possession prior to (a) payment of such Rents to Lender or (b) deposit of such Rents into the Cash Management Account. Borrower will not, and will not permit Manager to, further pledge, assign or grant any security interest in any Account, or permit any Lien to attach thereto, or any levy to be made

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thereon, or any UCC-l Financing Statements, except those naming Lender as the secured party, to be filed with respect thereto. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Except as otherwise provided in this Agreement, upon the occurrence and during the continuance of an Event of Default, Lender may apply any sums in any Account in any order and in any manner as Lender will elect in Lender’s discretion without seeking the appointment of a receiver and without adversely affecting the rights of Lender to foreclose the Lien of the Security Instrument or exercise its other rights under the Loan Documents. Accounts will not constitute trust funds and may be commingled with other monies held by Lender. Upon repayment in full of the Debt, all remaining funds in the Subaccounts, if any, will be promptly disbursed to Borrower.

Section 3.10 Property Cash Flow Allocation.

Section 3.11 Reasonable Care. Beyond the exercise of reasonable care in the custody thereof, Lender will have no duty as to any Account Collateral in its possession or control as agent therefor or bailee thereof or any income thereon or the preservation of rights against any person or otherwise with respect thereto. Lender will be deemed to have exercised reasonable care in the custody and preservation of the Account Collateral in its possession if the Account Collateral is accorded treatment substantially equal to that which Lender accords its own property, it being understood that Lender will not be liable or responsible for any loss or damage to any of the Account Collateral, or for any diminution in value thereof, by reason of the act or omission of Lender, its Affiliates, agents, employees or bailees, except to the extent that such loss or damage results from Lender’s or its Affiliate’s, agent’s, employee’s or bailee’s gross negligence or willful misconduct. In no event will Lender be liable either directly or indirectly for losses or delays resulting from any event which may be the basis of an Excusable Delay, computer malfunctions,

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interruption of communication facilities, labor difficulties or other causes beyond Lender’s reasonable control or for indirect, special or consequential damages except to the extent of Lender’s or its Affiliate’s agent’s, employee’s or bailee’s gross negligence or willful misconduct. Notwithstanding the foregoing, Borrower acknowledges and agrees that (i) Lender does not have custody of the Account Collateral, (ii) Cash Management Bank has custody of the Account Collateral, (iii) the initial Cash Management Bank was chosen by Borrower and (iv) Lender has no obligation or duty to supervise Cash Management Bank or to see to the safe custody of the Account Collateral.

Section 3.12 Lender’s Liability.

Article IV Representations And Warranties

Borrower represents and warrants to Lender as of the Effective Date that:

Section 4.1 Organization, Special Purpose. Each of Borrower and Borrower Representative has been duly organized and is validly existing and in good standing under the laws of the state of its formation, with requisite power and authority, and all rights, licenses, permits and authorizations, governmental or otherwise, necessary to own its properties and to transact the business in which it is now engaged. Each Borrower and Borrower Representative is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its properties, business and operations. Each Borrower, SPE Owner’s Member, and SPE Owner’s Member GP, and TRS Lessee’s Member is a Special Purpose Bankruptcy Remote Entity.

Section 4.2 Proceedings, Enforceability. Borrower has taken all necessary action to authorize the execution, delivery and performance of the Loan Documents. The Loan Documents have been duly executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and general principles of equity. The Loan Documents are not subject to, and Borrower has not asserted, any right of rescission, set-off, counterclaim or defense, including the defense of usury.

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No exercise of any of the terms of the Loan Documents, or any right thereunder, will render any Loan Document unenforceable.

Section 4.3 No Conflicts. The execution, delivery and performance of the Loan Documents by Borrower and the transactions contemplated hereby will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than pursuant to the Loan Documents) upon any of the property of Borrower (including the Property) pursuant to the terms of, any agreement or instrument to which Borrower is a party or by which its property is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or any of its properties (including the Property). Borrower’s rights under the Licenses and the Management Agreement will not be adversely affected by the execution and delivery of the Loan Documents, Borrower’s performance thereunder, the recordation of the Security Instrument and the Memorandum of Loan Assumption Agreement, or the exercise of any remedies by Lender. Any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower of the Loan Documents has been obtained and is in full force and effect.

Section 4.4 Litigation. There are no actions, suits or other proceedings at law or in equity by or before any Governmental Authority now pending (or threatened in writing or otherwise known to Borrower) against or affecting Borrower, Borrower Representative or the Property, which, if adversely determined, might materially adversely affect the condition (financial or otherwise) or business of Borrower, Borrower Representative or the condition or ownership of the Property.

Section 4.5 Agreements. Borrower is not a party to any agreement or instrument or subject to any restriction which might adversely affect Borrower or the Property, or Borrower’s business, properties, operations or condition, financial or otherwise. To the best of Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any Permitted Encumbrance or any other agreement or instrument to which it is a party or by which it or the Property is bound.

Section 4.6 Title. Borrower has good and indefeasible title in fee to the real property and good title to the balance of the Property, free and clear of all Liens other than the Permitted Encumbrances. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements in connection with the transfer of the Property to Borrower have been paid. The Security Instrument, together with any UCC Financing Statements required to be filed in connection therewith creates (a) a valid, perfected first priority lien on the Borrower’s interest in the Property and (b) valid and perfected first priority security interests in and to, and perfected collateral assignments of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. All mortgage, recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable Legal Requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents have been paid. No Condemnation or other proceeding has been commenced or, to Borrower’s best knowledge, is contemplated with respect to all or part of the Property or for the relocation of roadways providing access to the Property. There are no claims for payment for work, labor or materials affecting the Property which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents. There are no outstanding options to purchase or rights of first refusal affecting all or any portion of the Property. The survey for the Property delivered to Lender does not fail to reflect any material matter affecting the Property or the title thereto. Except as shown on the survey of the

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Property delivered to Lender, all of the Improvements included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvement on an adjoining property encroaches upon the Property, and no easement or other encumbrance upon the Property encroaches upon any of the Improvements, except those insured against by the title insurance policy insuring the Lien of the Security Instrument. Each parcel comprising the Property is a separate tax lot and is not a portion of any other tax lot that is not a part of the Property. There are no pending or proposed special or, to the knowledge of Borrower, other assessments for public improvements or otherwise affecting the Property, or any contemplated improvements to the Property that may result in such special or other assessments.

Section 4.7 No Bankruptcy Filing. Borrower is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of all or a major portion of its property (a “Bankruptcy Proceeding”), and Borrower has no knowledge of any Person contemplating the filing of any such petition against it. In addition, neither Borrower nor Borrower Representative nor Guarantor has been a party to, or the subject of a Bankruptcy Proceeding for the past ten years.

Section 4.8 Full and Accurate Disclosure. No statement of fact made by Borrower in any Loan Documents contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein not misleading. There is no material fact presently known to Borrower that has not been disclosed to Lender which adversely affects, or, as far as Borrower can foresee, might adversely affect, the Property or the business, operations or condition (financial or otherwise) of Borrower. All financial data, including the statements of cash flow and income and operating expense, that have been delivered to Lender in respect of Borrower and the Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of Borrower and the Property as of the date of such reports, and (c) to the extent prepared by an independent certified public accounting firm, have been prepared in accordance with GAAP and the Uniform System of Accounts for Hotels consistently applied throughout the periods covered, except as disclosed therein. Borrower has no contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, unrealized or anticipated losses from any unfavorable commitments or any liabilities or obligations not expressly permitted by this Agreement. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of Borrower or the Property from that set forth in said financial statements.

Section 4.9 No Plan Assets. Borrower is not an “employee benefit plan,” as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of Borrower constitute or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.

Section 4.10 Compliance. Borrower, the Property, and the use of the Property comply in all material respects with all applicable Legal Requirements (including with respect to parking and applicable zoning and land use laws, regulations, and ordinances). To the best of Borrower’s knowledge, Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority, the violation of which might materially adversely affect the condition (financial or otherwise) or business of Borrower. The Property is used exclusively for hotel use and other appurtenant and related uses. No legal proceedings are pending or, to the knowledge of Borrower, threatened with respect to the zoning of the Property. To the best of Borrower’s knowledge, all certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use, occupancy and operation of the Property (collectively, the “Licenses”), have been obtained and are in full force and effect. The use

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being made of the Property is in conformity with the certificate of occupancy issued for the Property and all other restrictions, covenants and conditions affecting the Property.

Section 4.11 Contracts. Except as set forth on Schedule 5, there are no service, maintenance or repair contracts affecting the Property that are not terminable on one month’s notice or less without cause and without penalty or premium. All service, maintenance or repair contracts affecting the Property have been entered into at arms-length in the ordinary course of Borrower’s business and provide for the payment of fees in amounts and upon terms comparable to existing market rates.

Section 4.12 Federal Reserve Regulations, Investment Company Act. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Legal Requirements or any Loan Document. Borrower is not (i) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended, (ii) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

Section 4.13 Utilities and Public Access. The Property has rights of access to public ways and is served by water, sewer, sanitary sewer, storm drain and electric facilities adequate to service it for its intended uses. All public utilities necessary or convenient to the full use and enjoyment of the Property are located in the public right-of-way abutting the Property, and all such utilities are connected so as to serve the Property without passing over other property absent a valid easement. All roads necessary for the use of the Property for its current purpose have been completed and have either been dedicated to public use and accepted by all Governmental Authorities.

Section 4.14 Physical Condition. The Property, including all Improvements, parking facilities, systems, Equipment and landscaping, are in good condition, order and repair in all material respects, to the best of Borrower’s knowledge, there exists no structural or other material defect or damages to the Property, whether latent or otherwise. Borrower has not received notice from any insurance company or bonding company of any defect or inadequacy in the Property, or any part thereof, which would adversely affect its insurability or cause the imposition of extraordinary premiums or charges thereon or any termination of any policy of insurance or bond. No portion of the Property is located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards.

Section 4.15 Leases. Borrower has delivered to Lender a true, correct and complete rent roll for the Property (the “Rent Roll”), which includes all Leases affecting the Property. Except as set forth on the Rent Roll: (i) to the best of Borrower’s knowledge, each Lease is in full force and effect, (ii) the tenants under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under the Leases, and there are no offsets, claims or defenses to the enforcement thereof, (iii) all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than 30 days in advance, (iv) the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll, and there is no claim or basis for a claim by the tenant thereunder for an adjustment to the rent, (v) no tenant has made any claim against the landlord under any Lease which remains outstanding, to the best of Borrower’s knowledge, there are no defaults on the part of the landlord under any Lease, and no event has occurred which, with the giving of notice or passage of time, or both, would constitute such a default, (vi) to Borrower’s best knowledge, there is no present

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material default by the tenant under any Lease, (vii) all security deposits under Leases are as set forth on the Rent Roll, (viii) Borrower is the sole owner of the entire lessor’s interest in each Lease, (ix) each Lease is the valid, binding and enforceable obligation of the Borrower and, to the best of Borrower’s knowledge, the applicable tenant thereunder, (x) no Person has any possessory interest in, or right to occupy, the Property except under the terms of the Lease, and (xi) to the best of Borrower’s knowledge, each Lease is subordinate to the Loan Documents, either pursuant to its terms or pursuant to a subordination and attornment agreement. None of the Leases contains any option to purchase or right of first refusal to purchase the Property or any part thereof. Neither the Leases nor the Rents have been assigned or pledged except to Lender, and no other Person has any interest therein except the tenants thereunder.

Section 4.16 Fraudulent Transfer. Borrower has not entered into the Loan or any Loan Document with the actual intent to hinder, delay, or defraud any creditor, and Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Giving effect to the transactions contemplated by the Loan Documents, the fair saleable value of Borrower’s assets exceeds and will, immediately following the execution and delivery of the Loan Documents, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed or contingent liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the execution and delivery of the Loan Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of Borrower).

Section 4.17 Ownership of Borrower. The organizational chart attached hereto as Schedule 3 is complete and accurate and illustrates all Persons who have a direct or indirect ownership interest in Borrower.

Section 4.18 Management Agreement. The Management Agreement is in full force and effect. There is no default, breach or violation existing thereunder, and, to the best of Borrower’s knowledge, no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by either party thereto. The Management Agreement constitutes all of the agreements with respect to the management of the Property.

Section 4.19 Franchise Agreement. The Franchise Agreement is in full force and effect. There is no default, breach or violation existing thereunder, and, to the best of Borrower’s knowledge, no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by either party thereto.

Section 4.20 Hazardous Substances. The representations and warranties made by Borrower in the Environmental Indemnity are incorporated by this reference as if fully set forth herein.

Section 4.21 Name, Principal Place of Business. Borrower does not use and will not use any trade name and has not done and will not do business under any name other than its actual name set forth herein. The principal place of business of Borrower is its primary address for notices as set forth in Section 6.1, and Borrower has no other place of business.

Section 4.22 Other Debt. There is no indebtedness with respect to the Property or any indebtedness secured over excess cash flow or any residual interest therein, whether secured or unsecured, other than Permitted Encumbrances and Permitted Indebtedness.

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Section 4.23 Embargoed Person. (a) None of the funds or assets of Guarantor or of Borrower constitute property of, or are beneficially owned directly or, to Borrower’s best knowledge, indirectly, by any Embargoed Person (as hereinafter defined) and (b) no Embargoed Person has any direct interest, and to Borrower’s best knowledge, as of the Effective Date, based upon reasonable inquiry by Borrower, indirect interest, of any nature whatsoever in Borrower or any Guarantor, as applicable, with the result that the investment in Borrower or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

Section 4.24 Anti-Money Laundering. None of the funds of Borrower, Borrower Representative or any Guarantor, as applicable, that are used to consummate this transaction are derived from or are the proceeds of any unlawful activity, with the result that the investment in Borrower, Borrower Representative or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law or may cause any of the Property to be subject to forfeiture or seizure. Borrower has ascertained the identity of all persons and entities that have provided funds to capitalize Borrower and has conducted verification procedures which are sufficient to establish the identity and source of such funds.

Section 4.25 Sharing Agreements. There are no joint services, reciprocal easement or other similar sharing agreements relating to the Property.

Section 4.26 Labor Matters. Borrower is not a party to any collective bargaining agreements.

Section 4.27 Operating Lease. SPE Owner is the owner and lessor of landlord’s interest in the Operating Lease. The Operating Lease is in full force and effect and there is no default thereunder by either party and there are no conditions that would constitute defaults thereunder. No rent under the Operating Lease has been paid more than one month in advance of its due date. All security deposits (if any) are held by SPE Owner in accordance with applicable law. All work (if any) to be performed by SPE Owner and TRS Lessee under the Operating Lease has been performed as required and has been accepted by TRS Lessee, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by SPE Owner to TRS Lessee has already been received by TRS Lessee. There has been no prior sale, transfer, assignment, hypothecation or pledge of the Operating Lease or of the rent thereunder which is outstanding. TRS Lessee has not assigned the applicable Operating Lease or sublet all or any portion of the premises demised thereby other than pursuant to a Hotel Transaction or Lease. TRS Lessee has no right or option pursuant to the Operating Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part.

All of the representations and warranties in this Article 4 and elsewhere in the Loan Documents (1) will survive for so long as any portion of the Debt remains owing to Lender and (2) will be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf, provided, however, that the representations, warranties and covenants set forth in Section 4.19 will survive in perpetuity.

Article V Covenants

Borrower hereby covenants and agrees with Lender that:

Section 5.1 Existence. Each of Borrower and Borrower Representative will (a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, rights, and franchises, (b) continue to engage in the business presently conducted by it, (c) obtain and maintain all Licenses, and (d) qualify to do business and remain in good standing under the laws of each jurisdiction, in each case as and to the extent required for the ownership, maintenance, management and operation of the Property.

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Section 5.2 Taxes. Borrower will pay all Taxes prior to delinquency, and deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Taxes have been so paid no later than 30 days before they would be delinquent if not paid (provided, however, that Borrower need not pay such Taxes nor furnish such receipts for payment of Taxes paid by Lender pursuant to Section 3.3). Borrower will not suffer and will promptly cause to be paid and discharged any Lien against the Property, and will promptly pay for all utility services provided to the Property. After prior notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application of any Taxes, provided that (i) no Default or Event of Default has occurred and is continuing, (ii) such proceeding will suspend the collection of the Taxes or all such Taxes will have been paid in full prior to contesting the same, (iii) such proceeding will be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and will not constitute a default thereunder, (iv) no part of or interest in the Property will be in danger of being sold, forfeited, terminated, canceled or lost, (v) if required by Lender, Borrower will have furnished such security as may be required in the proceeding, or as may be requested by Lender, to insure the payment of any such Taxes, together with all interest and penalties thereon, which will not be less than 110 percent of the Taxes being contested, and (vi) Borrower will promptly upon final determination thereof pay the amount of such Taxes, together with all costs, interest and penalties. Lender may pay over any such security or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Lender, the entitlement of such claimant is established.

Section 5.3 Repairs, Maintenance and Compliance, Alterations.

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of the cost of such Material Alteration in an amount equal to 115 percent of the cost of the Material Alteration as estimated by Lender. Upon substantial completion of the Material Alteration, Borrower will provide evidence satisfactory to Lender that (i) the Material Alteration was constructed in accordance with applicable Legal Requirements and substantially in accordance with plans and specifications approved by Lender (which approval will not be unreasonably withheld or delayed), (ii) all contractors, subcontractors, materialmen and professionals who provided work, materials or services in connection with the Material Alteration have been paid in full and have delivered unconditional releases of lien and (iii) all material Licenses necessary for the use, operation and occupancy of the Material Alteration (other than those which depend on the performance of tenant improvement work) have been issued. Borrower will reimburse Lender upon demand for all out- of-pocket costs and expenses (including the reasonable fees of any architect, engineer or other professional engaged by Lender) incurred by Lender in reviewing plans and specifications or in making any determinations necessary to implement the provisions of this Section 5.3(b).

Section 5.4 Performance of Other Agreements. Borrower will observe and perform each and every term to be observed or performed by it pursuant to the terms of any agreement or instrument affecting or pertaining to the Property, including the Loan Documents. Without limiting the foregoing, Borrower will (a) observe and perform each and every term to be observed or performed by it pursuant to the terms of the PPP Loan Documents, including making all payments thereunder as and when due and payable and (b) use its best efforts to cause the PPP Loans to be forgiven pursuant to the forgiveness provisions of the CARES Act and related governmental laws and regulations.

Section 5.5 Cooperate in Legal Proceedings. Borrower will cooperate fully with Lender with respect to, and permit Lender, at its option, to participate in, any proceedings before any Governmental Authority which may in any way affect the rights of Lender under any Loan Document.

Section 5.6 Further Assurances. Borrower will, at Borrower’s sole cost and expense, (a) execute and deliver to Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the Debt and/or for the better and more effective carrying out of the intents and purposes of the Loan Documents, as Lender may reasonably require from time to time, and (b) upon Lender’s request therefor given from time to time after the occurrence of any Default or Event of Default pay for (i) reports of UCC, federal tax lien, state tax lien, judgment and pending litigation searches with respect to Borrower and Borrower Representative and (ii) searches of title to the Property, each such search to be conducted by search firms reasonably designated by Lender in each of the locations reasonably designated by Lender.

Section 5.7 Environmental Matters. The covenants and agreements made by Borrower in the Environmental Indemnity Agreement are incorporated herein by this reference as if fully set forth at length herein.

Section 5.8 Title to the Property, Liens. Borrower will warrant and defend the title to the Property, and the validity and priority of all Liens granted or otherwise given to Lender under the Loan Documents, subject only to Permitted Encumbrances, against the claims of all Persons. Without Lender’s prior written consent, Borrower will not create, incur, assume, permit or suffer to exist any Lien on all or any portion of the Property or any direct or indirect legal or beneficial ownership interest in Borrower or Borrower Representative, except Liens in favor of Lender and Permitted

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Encumbrances, unless such Lien is bonded or discharged within 30 days after Borrower first receives notice of such Lien.

Section 5.9 Leases. Other than Hotel Transactions, Borrower will not enter into any Lease (or any renewals, amendments or modifications of a Lease) without Lender’s prior consent. Upon request, Borrower will furnish Lender with executed copies of all Leases then in effect, whether executed before or after the Effective Date.

Section 5.10 Estoppel. After request by Lender, Borrower will within ten days furnish Lender with a statement addressed to Lender, its successors and assigns, duly acknowledged and certified, setting forth (i) the unpaid Principal, (ii) the Interest Rate, (iii) the date installments of interest and/or Principal were last paid, (iv) any offsets or defenses to the payment of the Debt, and (v) that the Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.

Section 5.11 Property Management.

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Section 5.12 Special Purpose Bankruptcy Remote Entity. Each Borrower, SPE Owner’s Member, and SPE Owner’s Member GP, and TRS Lessee’s Member will at all times be and remain a Special Purpose Bankruptcy Remote Entity. A “Special Purpose Bankruptcy Remote Entity” will have the meaning set forth on Schedule 4 hereto. The organizational documents of each Borrower will at all times include the language set forth on Schedule 4.

Section 5.13 Change in Business or Operation of Property. Borrower will not purchase or own any real property other than the Property and will not enter into any line of business other than the ownership and operation of the Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business or otherwise cease to operate the Property as a hotel or terminate such business for any reason whatsoever (other than temporary cessation in connection with renovations to the Property or caused by a Force Majeure Event).

Section 5.14 Certain Prohibited Actions. Borrower will not directly or indirectly do any of the following: (a) change its principal place of business or chief executive office without first giving

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Lender 30 days’ prior notice, (b) make any change, amendment, or modification to the organizational documents of Borrower, or otherwise take any action that could result in Borrower not being a Special Purpose Bankruptcy Remote Entity, (c) cancel or otherwise forgive or release any claim or debt owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business in its reasonable judgment, (d) create, incur or assume any indebtedness secured by the Property other than the Debt, Permitted FF&E Financing and unsecured trade payables incurred in the ordinary course of business relating to the ownership and operation of the Property which do not exceed, at any time, a maximum amount of one percent of the original amount of the Principal and are not evidenced by a promissory note and are paid when due, but in no event no more than 30 days of the date incurred (collectively, “Permitted Indebtedness”), (e) transfer any License required for the operation of the Property, except to the extent required by a Governmental Authority (unless such requirement is on account of Borrower’s failure to abide by the terms of such License or is otherwise the result of the negligence or intentional misconduct of Borrower or its agents or contractors), or (f) maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of Borrower to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan or any Welfare Plan or permit the assets of Borrower to become “plan assets,” whether by operation of law or under regulations promulgated under ERISA.

Section 5.15 Prohibited Transfers, Loan Assumption. Borrower will not directly or indirectly make, suffer or permit the occurrence of any Transfer other than a Permitted Transfer. In connection with any Transfer otherwise prohibited pursuant to the provisions of this Section 5.15, Borrower may request Lender’s consent to such Transfer and, in connection with a sale of the Property, the assumption of the Loan by the purchaser of the Property, Lender may grant or deny any such consent hereunder in its sole and absolute discretion. Any such assumption of the Loan will be conditioned upon, among other things,

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Section 5.16 Expenses. Borrower will reimburse Lender upon receipt of notice for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred by Lender in connection with the Loan, including

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The obligations and liabilities of Borrower under this Section 5.16 will survive the Term and the exercise by Lender of any of its rights or remedies under the Loan Documents, including the acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure.

Section 5.17 Indemnity. Borrower will protect, indemnify and save harmless Lender, its Affiliates and all of their respective officers, directors, stockholders, members, partners, employees, agents, successors and assigns thereof (collectively, the “Indemnified Parties”) from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including all attorneys’ fees and expenses incurred) imposed upon or incurred by or asserted against the Indemnified Parties or the Property or any part of its interest therein, by reason of the occurrence or existence of any of the following, except to the extent caused by the fraud, illegal acts, willful misconduct or gross negligence of the Indemnified Parties, EVEN IF CAUSED BY THE NEGLIGENCE OF AN INDEMNIFIED PARTY, but not if caused by the willful misconduct or gross negligence of an Indemnified Party: (a) ownership of Borrower’s interest in the Property, or any interest therein, or receipt of any Rents or other sum therefrom, (b) any accident, injury to or death of any persons or loss of or damage to property occurring on or about the Property thereto, (c) any design, construction, operation, repair, maintenance, use, non-use or condition of the Property, including claims or penalties arising from violation of any Legal Requirement or Insurance Requirement, as well as any claim based on any patent or latent defect, whether or not discoverable by Lender, and any claim the insurance as to which is inadequate, (d) any Event of Default under this Agreement or any of the other Loan Documents, (e) any performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof, (f) any negligence or tortious act or omission on the part of Borrower or any of its agents, contractors, servants, employees, sublessees, licensees or invitees, or (g) any contest of Taxes referred to in Section 5.2 hereof, or of the Legal Requirements pursuant to this Agreement. Any amounts the Indemnified Parties are legally entitled to receive under this Section which are not paid within 30 days after written demand therefor by the Indemnified Parties or Lender,

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setting forth in reasonable detail the amount of such demand and the basis therefor, will bear interest from the date of demand at the Default Rate, and will, together with such interest, be part of the Debt and secured by the Security Instrument. In case any action, suit or proceeding is brought against the Indemnified Parties by reason of any such occurrence, Borrower will at Borrower’s expense resist and defend such action, suit or proceeding or will cause the same to be resisted and defended by counsel at Borrower’s expense for the insurer of the liability or by counsel designated by Borrower (unless disapproved by Lender promptly after Lender has been notified of such counsel), provided, however, that nothing herein will compromise the right of Lender (or any Indemnified Party) to appoint its own counsel at Borrower’s expense for its defense with respect to any action which in the reasonable opinion of counsel for such Indemnified Party presents a conflict or potential conflict between Lender and Borrower that would make such separate representation advisable, provided, further, that if Lender will have appointed separate counsel pursuant to the foregoing, Borrower will not be responsible for the expense of additional separate counsel of any other Indemnified Party unless in the reasonable opinion of Lender a conflict or potential conflict exists between such Indemnified Party and Lender. So long as Borrower is resisting and defending such action, suit or proceeding as provided above in a prudent and commercially reasonable manner, Lender and the Indemnified Parties will not be entitled to settle such action, suit or proceeding without Borrower’s consent which will not be unreasonably withheld or delayed, and claim the benefit of this Section with respect to such action, suit or proceeding and Lender agrees that it will not settle any such action, suit or proceeding without the consent of Borrower, provided, however, that if Borrower is not diligently defending such action, suit or proceeding in a prudent and commercially reasonable manner as provided above, and Lender has provided Borrower with 30 days’ prior written notice, or shorter period if mandated by the requirements of applicable law, and opportunity to correct such determination, Lender may settle such action, suit or proceeding and claim the benefit of this Section 5.17 with respect to settlement of such action, suit or proceeding. Any Indemnified Party will give Borrower prompt notice after such Indemnified Party obtains actual knowledge of any potential claim by such Indemnified Party for indemnification hereunder, provided, however, the failure to do so will not affect Borrower’s indemnification obligations hereunder. The obligations and liabilities of Borrower under this Section 5.17 will survive the Term and the exercise by Lender of any of its rights or remedies under the Loan Documents, including the acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure.

Section 5.18 Embargoed Person.

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in violation of law, or (B) Executive Order 13224 (September 23, 2001) issued by the President of the United States (“Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”), any related enabling legislation or any other similar Executive Orders, and (ii) no Embargoed Person will have any direct interest or, to Borrower’s best knowledge, indirect interest, of any nature whatsoever in Borrower, Borrower Representative or any Guarantor, as applicable, with the result that the investment in Borrower, Borrower Representative or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.

Section 5.19 Anti-Money Laundering. At all times throughout the Term, including after giving effect to any Transfers permitted pursuant to the Loan Documents, none of the funds of Borrower, Borrower Representative or any Guarantor, as applicable, that are used to consummate this transaction or to repay the Loan will be derived from or are the proceeds of any unlawful activity, with the result that the investment in Borrower, Borrower Representative or any Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan is in violation of law or may cause any of the Property to be subject to forfeiture or seizure. Borrower has ascertained the identity of all persons and entities that have provided funds to capitalize Borrower and has

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conducted verification procedures which are sufficient to establish the identity and source of such funds.

Section 5.20 Easements, Rights-of-Way, and Restrictive Covenants. Borrower will not grant any easement, right-of-way, restrictive covenant or encumbrance with respect to all or any portion of the Property or Improvements without the prior written consent of Lender, which consent will not be unreasonably withheld (provided that Lender will not be required to subordinate its lien or other rights under the Loan Documents to any such easement, right-of-way, restrictive covenant or encumbrance). Borrower will at all times comply with all easement agreements, reciprocal easement agreements, declarations, restrictive covenants and any other similar types of agreements now or hereafter affecting the Property, and Borrower will not amend, modify or terminate any such easement agreements, reciprocal easement agreements, declarations, restrictive covenants or any other similar types of agreements without Lender’s prior written consent, to be exercised in its sole and absolute discretion. Borrower will not impose or consent to the imposition of any restrictive covenants, easements, or encumbrances upon the Property and Improvements (or any portions thereof) in any manner that adversely affects in any material respect the value, utility or transferability of the Property and Improvements.

Section 5.21 Use and Operation of the Property. Borrower will not do any of the following:

Section 5.22 Franchise Agreement

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to meet the hotel industry standard for hotels comparable to the hotel located on the Property and at levels sufficient for the operation of the hotel located on the Property at full occupancy levels.

Section 5.23 Hospitality License Covenants. Borrower will maintain, or cause Manager to maintain, all hospitality licenses required to operate the Property as operating on the Effective Date and will cause Manager to maintain the liquor licenses pursuant to the Liquor Concession Agreement. Borrower will cause Manager to maintain a liquor license and all other necessary hospitality licenses in full force and effect throughout the term of the Loan.

Section 5.24 Operating Lease Covenants.

Article VI Notices And Reporting

Section 6.1 Notices. Any notice, demand, request, approval, consent, or other communication made from or to a party as required by, permitted by, or contemplated in this Agreement (each a “Notice”) will only be effective if (i) it is in writing and (ii) the intended recipient actually receives it or is deemed to have received it in accordance with this paragraph. A Notice will be deemed received (x) if sent by local or overnight courier to the Recipient’s Address, upon delivery or first attempted delivery and (y) if sent by registered or certified first class mail, return receipt requested, two business days after deposit in the mail. If, however, a provision in this Agreement specifies different methods and requirements regarding a particular Notice, such provision will

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control with regard to the specified Notice. “Recipient’s Address” means the recipient’s address identified below as the recipient’s notice address (or as its address, if a separate notice address is not specified), or a new address identified in a Notice from the recipient to the sending party at least ten days before the date of the sending party’s Notice.

To Lender:

EPH Development Fund LLC

c/o Button Capital

Attn: Ken Okamoto

29834 N Cave Creek Rd

Suite 118-283

Cave Creek, AZ 85331

***@***

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With a copy to:

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Convergence Group

Attn: Sean Hawkins

9475 Briar Village

Suite 220

Colorado Springs, CO 80920

To Borrower:

LF3 El Paso, LLC

LF3 EL PASO TRS, LLC

LF3 El Paso, LLC

LF3 EL PASO TRS, LLC

C/o Lodging Fund REIT III OP, LP

Attn: Linzey Erickson

1635 43rd Street S, Suite 205

Fargo, ND 58103

With a copy to:

Legendary Capital

Attn: David Durell

644 Lovett SE, Suite B

Grand Rapids, MI 49506

Section 6.2 Borrower Notices and Deliveries. Borrower will (a) give prompt written notice to Lender of: (i) any litigation, governmental proceedings or claims or investigations pending or threatened against Borrower or Borrower Representative which might materially adversely affect the Property or Borrower’s or Borrower Representative’s condition (financial or otherwise), business, operations or assets, (ii) any event or circumstance resulting in, or which would reasonably be expected to result in, a material adverse change in the Property or Borrower’s or Borrower Representative’s condition (financial or otherwise), business, operations or assets, or of the occurrence of any Default or Event of Default of which Borrower has knowledge, together with a detailed statement of the steps being taken to cure such Default or Event of Default, and (b) furnish and provide to Lender: all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, reasonably requested, from time to time, by Lender. In addition, after

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request by Lender (but no more frequently than twice in any year), Borrower will furnish to Lender (x) within ten days, a certificate addressed to Lender, its successors and assigns reaffirming all representations and warranties of Borrower set forth in the Loan Documents as of the date requested by Lender or, to the extent of any changes to any such representations and warranties, so stating such changes, and (y) within 30 days, tenant estoppel certificates addressed to Lender, its successors and assigns from each tenant at the Property in form and substance reasonably satisfactory to Lender.

Section 6.3 Financial Reporting.

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operation of the Property and the financial affairs of Borrower or Borrower Representative as may be reasonably requested by Lender.

Article VII Insurance, Casualty, And Condemnation

Section 7.1 Insurance.

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insurance required under this paragraph is not obtained by blanket insurance policies, the insurance policy will be endorsed to also provide guaranteed building replacement cost to the Improvements and such tenant improvements in an amount to be subject to the consent of Lender, which consent will not be unreasonably withheld. Lender will be named Loss Payee on a Standard Mortgagee Endorsement.

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Section 7.2 Casualty.

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Section 7.3 Condemnation.

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foreclosure or otherwise, prior to the receipt by Lender of such Award, Lender will have the right, whether or not a deficiency judgment on the Note will be recoverable or will have been sought, recovered or denied, to receive all or a portion of the Award sufficient to pay the Debt. Borrower will cause any Award that is payable to Borrower to be paid directly to Lender. Lender will hold such Award in the Casualty/Condemnation Subaccount and disburse such Award in accordance with the terms hereof.

Section 7.4 Application of Proceeds or Award.

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proposed Restoration, (iv) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats of survey, permits, approvals, licenses and such other documents and items as Lender may reasonably require and approve in Lender’s discretion, (v) all plans and specifications for such Restoration, such plans and specifications to be approved by Lender prior to commencement of any work and (vi) Lender will be satisfied that the Restoration will be completed in accordance with any requirements under the Franchise Agreement. Lender may, at Borrower’s expense, retain a consultant to review and approve all requests for disbursements, which approval will also be a condition precedent to any disbursement. No payment made prior to the final completion of the Restoration will exceed 90 percent of the value of the work performed from time to time, funds other than the Proceeds or Award will be disbursed prior to disbursement of such Proceeds or Award, and at all times, the undisbursed balance of such Proceeds or Award remaining in the hands of Lender, together with funds deposited for that purpose or irrevocably committed to the satisfaction of Lender by or on behalf of Borrower for that purpose, will be at least sufficient in the reasonable judgment of Lender to pay for the cost of completion of the Restoration, free and clear of all Liens or claims for Lien. Provided no Default or Event of Default then exists, any surplus that remains out of the Proceeds held by Lender after payment of such costs of Restoration will be paid to Borrower. Any surplus that remains out of the Award received by Lender after payment of such costs of Restoration will, in the discretion of Lender, be retained by Lender and applied to payment of the Debt subject to the Yield Maintenance Premium or returned to Borrower.

Article VIII Defaults

Section 8.1 Events of Default. An “Event of Default” will exist with respect to the Loan if any of the following occur:

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reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, will be filed by or against, consented to, orchestrated or participated in the orchestration of, acquiesced in by, aided, solicited or supported by, colluded to be caused by, or failed to be contested by Borrower, Borrower Representative or Guarantor, as the case may be, or any proceeding for the dissolution or liquidation of Borrower, Borrower Representative or Guarantor will be instituted, provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to, not aided, solicited, supported, colluded to be caused or orchestrated by, not participated in the orchestration of by, not acquiesced in by, and properly contested by Borrower, Borrower Representative or Guarantor, as the case may be, only upon the same not being discharged, stayed or dismissed within 60 days,

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Section 8.2 Remedies.

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Default will not be construed to be a waiver of any subsequent Default or Event of Default or to impair any remedy, right or power consequent thereon. Notwithstanding any other provision of this Agreement, Lender reserves the right to seek a deficiency judgment or preserve a deficiency claim in connection with the foreclosure of the Security Instrument to the extent necessary to foreclose on all or any portion of the Property, the Rents, the Accounts or any other collateral.

Article IX Miscellaneous

Section 9.1 Survival. This Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto will survive the making by Lender of the Loan and the execution and delivery to Lender of the Note, and will continue in full force and effect so long as any of the Debt is unpaid or such longer period if expressly set forth in this Agreement. All Borrower’s covenants and agreements in this Agreement will inure to the benefit of the respective legal representatives, successors and assigns of Lender.

Section 9.2 Lender’s Discretion. Whenever pursuant to this Agreement or any other Loan Document, Lender exercises any right given to it to approve or disapprove, or consent or withhold consent, or decide whether any arrangement or term is to be satisfactory to Lender or is to be in Lender’s discretion, the decision of Lender to approve or disapprove, to consent or withhold consent, or to decide whether arrangements or terms are satisfactory or not satisfactory, or acceptable or unacceptable or in Lender’s discretion will (except as is otherwise specifically herein provided) be in the sole discretion of Lender and will be final and conclusive.

Section 9.3 Rules of Construction. In this Agreement and each other Loan Document, (a) a capitalized term that is not defined in this Agreement, but is defined in another Loan Document, will have the meaning ascribed to it in the other Loan Document, (b) headings of articles, sections, paragraphs, and other subdivisions of this Agreement (each a “subdivision”) are for convenience only and do not modify the meaning of the text following a heading, (c) each Exhibit, Schedule, Attachment, Annex, and other attachment to this Agreement (each an “attachment”) is incorporated into the Loan Document to which it is attached, (d) unless reference is made to another document, a reference to a subdivision or attachment refers to such subdivision of or attachment to the Loan Document containing the reference, (e) a capitalized term that refers to another document or a Legal Requirement refers to such document or a Legal Requirement as renewed, extended, supplemented, amended, or modified at any time, (f) a word indicating a particular gender includes all genders and a word indicating the singular include the plural and vice versa, unless the context otherwise requires, (g) the rule of ejusdem generis will not be applied to limit the generality of any term when followed by specific examples, and the words “include”, “including”, and similar terms will be construed as if followed by “without limitation to”, (h) consent of or notice to any Person means prior written consent and prior written notice,

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respectively, (i) “year” means a calendar year, unless otherwise specified, and (j) ”party” means a party to such Loan Document.

Section 9.4 Modification, Waiver in Writing. No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement or of any other Loan Document, nor consent to any departure by Borrower therefrom, will in any event be effective unless the same will be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent will be effective only in the specific instance, and for the purpose, for which given. Except as otherwise expressly provided herein, no notice to or demand on Borrower will entitle Borrower to any other or future notice or demand in the same, similar or other circumstances. Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under any other Loan Document, will operate as or constitute a waiver thereof, nor will a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under any Loan Document, Lender will not be deemed to have waived any right either to require prompt payment when due of all other amounts due under the Loan Documents, or to declare an Event of Default for failure to effect prompt payment of any such other amount.

Section 9.5 Time of Essence. Time is of the essence as to all obligations created by and all notices required by this Agreement

Section 9.6 WAIVER OF JURY TRIAL. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MIGHT BE FILED IN A COURT AND THAT RELATE TO THE SUBJECT MATTER OF THE TRANSACTION ARISING OUT OF THE LOAN DOCUMENTS, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP AND THE PARTIES HAVE EACH RELIED ON THIS WAIVER IN ENTERING INTO THE LOAN DOCUMENTS. EACH PARTY WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IF LITIGATION OCCURS, THIS WAIVER AND THE AGREEMENT IN WHICH IT IS CONTAINED MAY BE FILED AS A CONSENT TO A TRIAL BY THE COURT.

Section 9.7 Severability. The invalidity or unenforceability of one or more covenants, terms, or conditions in this Agreement will not affect the remainder of this Agreement.

Section 9.8 Preferences. Upon the occurrence and continuance of an Event of Default, Lender will have the continuing and exclusive right to apply or reverse and reapply (or having so applied, to reverse and reapply) any and all payments by Borrower to any portion of the Debt. To the extent Borrower makes a payment to Lender, or Lender receives proceeds of any collateral, which is in whole or in part subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the Debt or part thereof intended to be satisfied will be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender. This provision will survive the expiration or termination of this Agreement and the repayment of the Debt.

Section 9.9 Waiver of Notice. Borrower will not be entitled to any notices of any nature whatsoever from Lender except with respect to matters for which this Agreement or any other

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Loan Document specifically and expressly requires the giving of notice by Lender to Borrower and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which no Loan Document specifically and expressly requires the giving of notice by Lender to Borrower.

Section 9.10 Remedies of Borrower. If a claim or adjudication is made that Lender or any of its agents,, has acted unreasonably or unreasonably delayed acting in any case where by law or under any Loan Document, Lender or any such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents will be liable for any monetary damages, and Borrower’s sole remedy will be to commence an action seeking injunctive relief or declaratory judgment. Any action or proceeding to determine whether Lender has acted reasonably will be determined by an action seeking declaratory judgment. Borrower specifically waives any claim against Lender and its agents with respect to actions taken by Lender or its agents on Borrower’s behalf.

Section 9.11 Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements, understandings and negotiations among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.

Section 9.12 Offsets, Counterclaims and Defenses. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents or otherwise offset any obligations to make payments required under the Loan Documents. Any assignee of Lender’s interest in and to the Loan Documents will take the same free and clear of all offsets, counterclaims or defenses which Borrower may otherwise have against any assignor of such documents, and no such offset, counterclaim or defense will be interposed or asserted by Borrower in any action or proceeding brought by any such assignee upon such documents, and any such right to interpose or assert any such offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower.

Section 9.13 No Usury. The invalidity, or unenforceability in particular circumstances, of any provision of this Agreement, the Note or the other Loan Documents shall not extend beyond such provision or such circumstances and no other provision of any such agreement or instrument shall be affected thereby.  The term “Maximum Legal Rate of Interest” shall mean and refer to the maximum rate of non-usurious interest, if any, that Lender may from time to time charge Borrower and in regard to which Borrower would be prevented successfully from raising the claim or defense of usury under Applicable Law as now, or to the extent permitted by Applicable Law, as may hereafter be, in effect and which allow a higher maximum non-usurious interest rate than Applicable Law now allows (said Applicable Law permitting the highest rate being herein referred to as the “Interest Law”).  Unless changed in accordance with Applicable Law, the applicable rate ceiling under Applicable Law shall be the weekly rate ceiling, from time to time in effect, as provided in Chapter 303 of the Texas Finance Code, as amended.  It is the intention of Borrower and Lender to conform strictly to the Interest Law applicable to this loan transaction.  Accordingly, it is agreed that notwithstanding any provision to the contrary in this Agreement, the Note, or any of the documents securing payment hereof or thereof or otherwise relating hereto or thereto, the aggregate of all interest and any other charges or consideration constituting interest under applicable Interest Law that is taken, reserved, contracted for, charged or received under this Agreement, under the Note, or under any of the other aforesaid agreements or otherwise in connection with this loan transaction shall under no circumstances exceed the maximum amount of interest allowed by the Interest Law applicable to this loan transaction.  If

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any excess of interest in such respect is provided for, or shall be adjudicated to be so provided for, in this Agreement, the Note, or in any of the documents securing payment hereof or thereof or otherwise relating hereto or thereto, then in such event (i) the provisions of this Section 9.13 shall govern and control, (ii) neither Borrower nor Borrower’s heirs, legal representatives, successors or assigns or any other party liable for the payment of the Note shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest allowed by the Interest Law applicable to this loan transaction, (iii) any excess shall be deemed a mistake and cancelled automatically and, if theretofore paid, shall be credited on the Note by Lender (or if the Note shall have been paid in full, refunded to Borrower) and (iv) the effective rate of interest shall be automatically subject to reduction to the Maximum Legal Rate of Interest allowed under such Interest Law as now or hereafter construed by courts of appropriate jurisdiction.  The foregoing specifically includes prepayment premiums that may become due in the event of an acceleration of maturity under the Note or the Security Instrument.  All sums paid or agreed to be paid Lender for the use, forbearance or detention of the Debt shall, to the extent permitted by the Interest Law applicable to this loan transaction, be amortized, prorated, allocated and spread throughout the full term of the Note.  In no event shall the provisions of Chapter 346 of the Texas Finance Code as amended (which regulates certain revolving credit loan amounts and tri-party accounts) apply to the Loan.  As used in this Section 9.13, “Applicable Law” means all federal, state and local laws, statutes, codes, ordinances, orders, rules and regulations, including judicial opinions or precedential authority in the State of Texas, as any of the same may from time to time be amended, modified or supplemented.

Section 9.14 Conflict, Construction of Documents. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement will control. The parties hereto acknowledge that each is represented by separate counsel in connection with the negotiation and drafting of the Loan Documents and that the Loan Documents will not be subject to the principle of construing their meaning against the party that drafted them.

Section 9.15 No Third Party Beneficiaries. The Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in any Loan Document will be deemed to confer upon anyone other than the Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained therein.

Section 9.16 Yield Maintenance Premium. Borrower acknowledges that (a) Lender is making the Loan in consideration of the receipt by Lender of all interest and other benefits intended to be conferred by the Loan Documents and (b) except as otherwise provided in the Loan Documents, if payments of Principal are made to Lender on or prior to the Yield Maintenance Date, for any reason whatsoever, whether voluntary, as a result of Lender’s acceleration of the Loan after an Event of Default, by operation of law or otherwise, Lender will not receive all such interest and other benefits and may, in addition, incur costs. For these reasons, and to induce Lender to make the Loan, Borrower agrees that, except as expressly provided in the Loan Documents, all prepayments, if any, whether voluntary or involuntary, will be accompanied by Yield Maintenance Premium. Such Yield Maintenance Premium, as applicable, will be required whether payment is made by Borrower, by a Person on behalf of Borrower, or by the purchaser at any foreclosure sale, and may be included in any bid by Lender at such sale. Borrower further acknowledges that (A) it is a knowledgeable real estate developer and/or investor, (B) it fully understands the effect of the provisions of this Section 9.16, as well as the other provisions of the Loan Documents, (C) the making of the Loan by Lender at the Interest Rate and other terms set forth in the Loan Documents are sufficient consideration for Borrower’s obligation to pay Yield Maintenance Premium (if required), and (D) Lender would not make the Loan on the terms set forth herein without the inclusion of such provisions. Borrower also acknowledges that the provisions of this

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Agreement limiting the right of prepayment and providing for the payment of Yield Maintenance Premium and other charges specified herein were independently negotiated and bargained for, and constitute a specific material part of the consideration given by Borrower to Lender for the making of the Loan except as expressly permitted hereunder.

Section 9.17 Joint and Several Liability. If more than one Person has executed this Agreement as “Borrower,” the representations, covenants, warranties and obligations of all such Persons hereunder will be joint and several. Each entity that constitutes Borrower acknowledges and agrees that it will be jointly and severally liable for the Loan and all other Obligations arising under this Agreement and/or any of the other Loan Documents. In furtherance thereof, each Borrower acknowledges and agrees as follows:

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Obligations, and apply any security and direct the order or manner of sale thereof as Lender, in its sole and absolute discretion, may determine,

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Each Borrower expressly waives any and all defenses to the enforcement of its Obligations under the Loan Documents now or hereafter arising or asserted by reason of (i) any disability or other defense of any Borrower or any other Person with respect to the Obligations, (ii) the unenforceability or invalidity of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (iii) the cessation for any cause whatsoever of the liability of any Borrower or any other Person (other than by reason of the full and final payment and performance of all Obligations), (iv) any failure of Lender to marshal assets in favor of any of the Borrowers or any other Person, (v) any failure of Lender to give notice of sale or other disposition of any Collateral or Pledged Collateral for the Obligations to Borrower or to any other Person or any defect in any notice that may be given in connection with any such sale or disposition, (vi) any failure of Lender to comply in any non-material respect with applicable laws in connection with the sale or other disposition of any collateral or other security for any Obligation, (vii) any act or omission of Lender or others that directly or indirectly results in or aids the discharge or release of any Borrower or of any other Person or of any of the Obligations or any other security or guaranty therefor by operation of law or otherwise, (viii) any law that provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation, (ix) any failure of Lender to file or enforce a claim in any bankruptcy or similar proceeding with respect to any Person, (x) the election by Lender, in any bankruptcy or similar proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the Bankruptcy Code, (xi) any extension of credit or the grant of any lien under Section 364 of the Bankruptcy Code except to the extent otherwise provided in this Agreement, (xii) any use of cash collateral under Section 363 of the Bankruptcy Code, (xiii) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy or similar proceeding of any Person, (xiv) the avoidance of any lien or security interest in favor of Lender securing the Obligations for any reason, or (xv) any bankruptcy or similar proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding.

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THAT EVENTS GIVING RISE TO ANY DEFENSE WAIVED MAY DIMINISH, DESTROY OR OTHERWISE ADVERSELY AFFECT RIGHTS THAT EACH OTHERWISE MAY HAVE AGAINST THE OTHER, AGAINST LENDER OR OTHERS, OR AGAINST ANY COLLATERAL. IF ANY OF THE WAIVERS OR CONSENTS HEREIN IS DETERMINED TO BE CONTRARY TO ANY APPLICABLE LAW OR PUBLIC POLICY, SUCH WAIVERS AND CONSENTS WILL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED BY LAW.

Section 9.18 Assignment. The Loan, the Note, the Loan Documents and/or Lender’s rights, title, obligations and interests therein may be assigned by Lender and any of its successors and assigns to any Person at any time in its discretion, in whole or in part, whether by operation of law (pursuant to a merger or other successor in interest) or otherwise. Upon such assignment, all references to Lender in this Loan Agreement and in any Loan Document will be deemed to refer to such assignee or successor in interest and such assignee or successor in interest will thereafter stand in the place of Lender. Borrower may not assign its rights, title, interests or obligations under this Loan Agreement or under any of the Loan Documents.

Section 9.19 Governing Law. THIS AGREEMENT AND ANY CONTROVERSY, DISPUTE, CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE BREACH THEREOF, THE TRANSACTIONS CONTEMPLATED THEREBY, OR ANY OTHER DISPUTE BETWEEN OR AMONG THE PARTIES TO THE LOAN DOCUMENTS (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND INTERPRETED PURSUANT TO THE LAWS OF THE STATE OF TEXAS; PROVIDED THAT ADMINISTRATIVE AGENT AND LENDERS WILL RETAIN ALL RIGHTS UNDER FEDERAL LAW. THIS AGREEMENT IS PERFORMABLE FOR ALL PURPOSES IN EL PASO COUNTY, TEXAS. THE PARTIES HEREBY AGREE THAT ANY LAWSUIT, ACTION, OR PROCEEDING THAT IS BROUGHT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY, OR THE ACTS, CONDUCT OR OMISSIONS OF ADMINISTRATIVE AGENT AND/OR LENDERS IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS WILL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN EL PASO COUNTY, TEXAS. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH LAWSUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND (C) FURTHER WAIVES ANY CLAIM THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREE THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AT THE ADDRESS FOR NOTICES CONTAINED ON THE SIGNATURE PAGE OF THIS AGREEMENT.

Section 9.20 Counterparts. To facilitate execution, this Agreement may be executed in multiple identical counterparts. The signature of each party, or the signature of all persons required to bind a party, need not appear on each counterpart. All counterparts, taken together, will constitute a single document. The validity of a signature page will not be affected by its detachment from one counterpart of this Agreement and attachment to an identical counterpart of this Agreement.

Section 9.21 Final Agreement. This Agreement is the final, complete, and exclusive agreement of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements, representations, and understandings regarding such subject matter. No modification of this Agreement will be binding on the parties to it unless contained in a writing signed by the parties hereto.

[NO FURTHER TEXT ON THIS PAGE]

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Executed to be effective as of the Effective Date.

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LOAN AGREEMENT

SCHEDULE 1

FORM OF AMENDED AND RESTATED PROMISSORY NOTE

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For value received, LF3 El Paso, LLC, a Delaware limited liability company and LF3 El Paso TRS, LLC, a Delaware limited liability company (collectively, “Maker”), promises to pay to the order of EPH Development Fund LLC, a Delaware limited liability company at its principal place of business at1635 43rd Street S, Suite 205, Fargo, ND 58103 (together with its successors and assigns “Payee”), or at such place as the holder hereof may from time to time designate in writing, the principal sum of Seven Million Nine Hundred Thousand Dollars ($7,900,000), in lawful money of the United States of America, with interest on the unpaid principal balance from time to time outstanding to be computed in the manner, at the times and, subject to the provisions of Section 2.2(a) of the Loan Agreement dated of even date herewith between Payee, as lender, and Maker, as borrower (the “Loan Agreement”), at the Interest Rate. Capitalized terms used but not defined herein will have the respective meanings given such terms in the Loan Agreement.

1.Payment Terms. Maker will pay to Payee the monthly interest on the unpaid Principal and in the manner and at the times specified in Article 2 of the Loan Agreement, which payments will be applied in the order of priority set forth in the Loan Agreement. Maker will also pay to Payee interest at the Default Rate, Late Payment Charges, the Yield Maintenance Premium, if any, and all other amounts due and payable as and when provided for in the Loan Agreement. The balance of the Principal, together with all accrued and unpaid interest thereon, and all other amounts payable to Payee hereunder, under the Loan Agreement and under the other Loan Documents will be due and payable on the Maturity Date.

2.Loan Documents. This Note is evidence of the Loan and is executed pursuant to the terms and conditions of the Loan Agreement. This Note is secured by and entitled to the benefits of, among other things, the Security Instrument and the other Loan Documents. Reference is made to the Loan Documents for a description of the nature and extent of the security afforded thereby, the rights of the holder hereof in respect of such security, the terms and conditions upon which this Note is secured, and the rights and duties of the holder of this Note. All of the agreements, conditions, covenants, provisions and stipulations contained in the Loan Documents to be kept and performed by Maker are by this reference hereby made part of this Note to the same extent and with the same force and effect as if they were fully set forth in this Note, and Maker covenants and agrees to keep and perform the same, or cause the same to be kept and performed, in accordance with their terms.

3.Loan Acceleration, Prepayment. The Debt will, without notice, become immediately due and payable at the option of Payee upon the occurrence of any Event of Default. This Note may not be prepaid except as expressly provided in, and subject to the terms and conditions of, the Loan Agreement.

4.Revival. To the extent that Maker makes a payment or Payee receives any payment or proceeds for Maker’s benefit, which are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver, custodian or any other party under the Bankruptcy Code or any other bankruptcy law, common law or equitable cause, then, to such extent, the obligations of Maker hereunder intended to be satisfied will be revived and continue as if such payment or proceeds had not been received by Payee.

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5.Amendments. This Note may not be modified, amended, waived, extended, changed, discharged, or terminated orally or by any act or failure to act on the part of Maker or Payee, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. Whenever used, the singular number will include the plural, the plural the singular, and the words “Payee” and “Maker” will include their respective successors, assigns, heirs, executors and administrators. If Maker consists of more than one person or party, the obligations and liabilities of each such person or party will be joint and several.

6.Waiver. Maker and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, protest, notice of protest, notice of nonpayment, notice of intent to accelerate the maturity hereof and of acceleration except as otherwise expressly provided in the Loan Documents. No release of any security for the Debt or any person liable for payment of the Debt, no extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of the Loan Documents made by agreement between Payee and any other person or party will release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Maker, and any other person or party who may become liable under the Loan Documents, for the payment of all or any part of the Debt.

7.Interest.  As used herein, the term “Maximum Legal Rate of Interest” shall mean and refer to the maximum rate of non-usurious interest, if any, that Lender may from time to time charge Borrower and in regard to which Borrower would be prevented successfully from raising the claim or defense of usury under applicable law as now, or to the extent permitted by law, as may hereafter be, in effect and which allow a higher maximum non-usurious interest rate than applicable laws now allow (said law permitting the highest rate being herein referred to as the “Interest Law”).  Unless changed in accordance with law, the applicable rate ceiling under Texas law shall be the weekly rate ceiling, from time to time in effect, as provided in Chapter 303 of the Texas Finance Code, as amended.  It is the intention of Borrower and Lender to conform strictly to the Interest Law applicable to this loan transaction.  Accordingly, it is agreed that notwithstanding any provision to the contrary in this Note or in any of the documents securing payment hereof or otherwise relating hereto, the aggregate of all interest and any other charges or consideration constituting interest under applicable Interest Law that is taken, reserved, contracted for, charged or received under this Note, or under any of the other aforesaid agreements or otherwise in connection with this loan transaction shall under no circumstances exceed the maximum amount of interest allowed by the Interest Law applicable to this loan transaction.  If any excess of interest in such respect is provided for, or shall be adjudicated to be so provided for, in this Note or in any of the documents securing payment hereof or otherwise relating hereto, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Borrower nor Borrower’s heirs, legal representatives, successors or assigns or any other party liable for the payment of this Note shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest allowed by the Interest Law applicable to this loan transaction, (c) any excess shall be deemed a mistake and cancelled automatically and, if theretofore paid, shall be credited on this Note by Lender (or if this Note shall have been paid in full, refunded to Borrower) and (d) the effective rate of interest shall be automatically subject to reduction to the Maximum Legal Rate of Interest allowed under such Interest Law as now or hereafter construed by courts of appropriate jurisdiction.  The foregoing specifically includes, but is not limited to, prepayment premiums that may become due in the event of an acceleration of maturity under this Note or the Security Instrument.  All sums paid or agreed to be paid Lender for the use, forbearance or detention of the indebtedness evidenced hereby shall, to the extent permitted by the Interest Law applicable to this loan transaction, be amortized, prorated, allocated and spread throughout the full term of this Note.  In no event shall

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the provisions of Chapter 346 of the Texas Finance Code as amended (which regulates certain revolving credit loan amounts and tri-party accounts) apply to the loan evidenced by this Note.

8.Notices. All notices or other communications required or permitted to be given pursuant hereto will be given in the manner specified in the Loan Agreement.

9.Joint and Several. If more than one Person constitutes Maker, each Person constituting Maker hereunder will have joint and several liability for the obligations of Maker hereunder.

10.Amendment and Restatement. This Note amends and restates in its entirety, but does not novate, the Promissory Note in the stated principal amount of $8,400,000 dated May 31, 2018, from Original Borrower to Payee.

11.Governing Law. This Note will be governed by and construed in accordance with the laws of the State of Texas.

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LOAN AGREEMENT, SCHEDULE 1, PAGE 1-3

SCHEDULE 2

REQUIRED REPAIRS

*To be added.

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LOAN AGREEMENT, SCHEDULE 2, PAGE 2-1

SCHEDULE 3

ORGANIZATION OF BORROWER

*To be added.

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LOAN AGREEMENT, SCHEDULE 3, PAGE 3-1

SCHEDULE 4

DEFINITION OF SPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY

A “Special Purpose Bankruptcy Remote Entity” means (x) a limited liability company that is a Single Member Bankruptcy Remote LLC or (y) a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter

(i)was and will be organized solely for the purpose of (A) owning the Property, (B) operating, leasing and financing the Property or (C) acting as a general partner of the limited partnership that owns the Property or member of the limited liability company that owns the Property;

(ii)has not engaged and will not engage in any business unrelated to (A) the ownership of the Property, (B) the operation, leasing and financing of the Property, (C) acting as general partner of the limited partnership that owns the Property or (D) acting as a member of the limited liability company that owns the Property, as applicable;

(iii)has not had and will not have any assets other than those related to the Property or its partnership or member interest in the limited partnership or limited liability company that owns the Property, as applicable;

(iv)has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale (except as expressly permitted by this Agreement), transfer of partnership or membership interests or the like, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable);

(v)if such entity is a limited partnership, has and will have, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations or limited liability companies;

(vi)if such entity is a corporation, has and will have at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100 percent of the members of its board of directors unless all of the directors and all Independent Directors will have participated in such vote;

(vii)intentionally omitted;

(viii)if such entity is a limited liability company, has and will have articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate the Property without the consent of the Lender for as long as the Loan is outstanding;

(ix)has not, and without the unanimous consent of all of its partners, directors or members (including all Independent Directors and/or Independent Managers), as applicable, will

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-1

not, with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, take any Bankruptcy Action;

(x)has remained and will remain solvent and has maintained and will maintain adequate capital in light of its contemplated business operations;

(xi)has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity;

(xii)has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns;

(xiii)has maintained and will maintain its books, records, resolutions and agreements as official records;

(xiv)has not commingled and will not commingle its funds or assets with those of any other Person;

(xv)has held and will hold its assets in its own name;

(xvi)has conducted and will conduct its business in its name only, and has not and will not use any trade name,

(xvii)has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person;

(xviii)has paid and will pay its own liabilities, including the salaries of its own employees, out of its own funds and assets;

(xix)has observed and will observe all partnership, corporate or limited liability company formalities, as applicable;

(xx)has maintained and will maintain an arm’s-length relationship with its Affiliates;

(xxi)(a)if such entity owns the Property, has and will have no indebtedness other than the Permitted Indebtedness, or

(b)if such entity operates, leases and/or finances the Property, has and will have no indebtedness other than leasehold obligations to the owner of the Property, which are not evidenced by a promissory note and are paid when due, but in no event no more than 30 days of the date incurred,

(c)if such entity acts as the general partner of a limited partnership which owns the Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as general partner of the limited partnership which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are not evidenced by a promissory note and are paid when due, but in no event no more than 30 days of the date incurred, or

(d)if such entity acts as a managing member of a limited liability company which owns the Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as a member of the limited liability company which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within 30 days of the date incurred;

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-2

(xxii)has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan;

(xxiii)has not and will not acquire obligations or securities of its partners, members or shareholders;

(xxiv)has allocated and will allocate fairly and reasonably shared expenses, including shared office space, and uses separate stationery, invoices and checks;

(xxv)except in connection with the Loan, has not pledged and will not pledge its assets for the benefit of any other Person;

(xxvi)has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person;

(xxvii)has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;

(xxviii) has not made and will not make loans to any Person;

(xxix)has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it;

(xxx)has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party;

(xxxi)has and will have no obligation to indemnify its partners, officers, directors, members or Special Members, as the case may be, or has such an obligation that is fully subordinated to the Debt and will not constitute a claim against it if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation; and

(xxxii)will consider the interests of its creditors in connection with all corporate, partnership or limited liability company actions, as applicable.

“Independent Director” means in the case of a corporation, a natural person who has not been, and during the continuation of his or her service as Independent Director is not, directly or indirectly:

(i)an employee, manager, stockholder, director, member, partner, officer, attorney or counsel of the corporation or any of its Affiliates (other than his or her service as an Independent Director of the corporation),

(ii)a creditor, customer of, or supplier or other Person who derives any of its purchases or revenues from its activities with the corporation or any of its shareholders or Affiliates (other than his or her service as an Independent Director if such Person has been provided by a nationally-recognized company that provides professional independent managers),

(iii)a Person controlling or under common control with any such employee, manager, stockholder, director, member, partner, officer, attorney, counsel, customer, supplier or other Person, or

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-3

(iv)any member of the immediate family (including a grandchild or sibling) of a person described in clauses (i), (ii) or (iii) immediately above. A natural person who otherwise satisfies the foregoing definition will not be disqualified from serving as an Independent Director of the corporation because such person is an independent director or independent manager of a “Special Purpose Bankruptcy Remote Entity” affiliated with the corporation that does not own a direct or indirect equity interest in the corporation or any entity that is a co-borrower, or the member or general partner of a co-borrower, with the corporation if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors.

“Independent Manager” means in the case of a limited liability company, (a) a member that is a Special Purpose Bankruptcy Remote Entity, (b) a Special Purpose Bankruptcy Remote Entity that is not a member or (c) a natural person who has not been, and during the continuation of his or her service as Independent Manager is not, directly or indirectly:

(i)an employee, manager, stockholder, director, member, partner, officer, attorney or counsel of the limited liability company or any of its Affiliates (other than his or her service as an Independent Manager or Special Member of the limited liability company),

(ii)a creditor, customer of, or supplier or other Person who derives any of its purchases or revenues from its activities with the limited liability company or any of its members or Affiliates (other than his or her service as an Independent Manager if such Person has been provided by a nationally-recognized company that provides professional independent managers),

(iii)a Person controlling or under common control with any such employee, manager, stockholder, director, member, partner, officer, attorney, counsel, customer, supplier or other Person, or

(iv)any member of the immediate family (including grandchildren or siblings) of a person described in clauses (i), (ii) or (iii) immediately above. A natural person who otherwise satisfies the foregoing definition will not be disqualified from serving as an Independent Manager of the limited liability company because such person is an independent manager or independent director of a “Special Purpose Bankruptcy Remote Entity” affiliated with the limited liability company that does not own a direct or indirect equity interest in the limited liability company or any entity that is a co-borrower with the limited liability company if such individual is an independent manager provided by a nationally-recognized company that provides professional independent managers.

“Single Member Bankruptcy Remote LLC” means a limited liability company organized under the laws of the State of Delaware which at all times since its formation and at all times thereafter

(i)complies with the following clauses of the definition of Special Purpose Bankruptcy Remote Entity above: (i), (ii)(A), (B) or (C), (iii), (iv), (ix), (x), (xi) and (xiii) through (xxxii);

(ii)has maintained and will maintain its accounts, books and records separate from any other person;

(iii)has and will have an operating agreement which provides that the business and affairs of such limited liability company will be managed by or under the direction of

(A)a board of one (1) or more directors designated by the sole member of the Single Member Bankruptcy Remote LLC (the “Sole Member”), and at all times there will be at least two duly appointed Independent Directors on the board of directors, and the board of directors

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-4

will not take any action requiring the unanimous affirmative vote of 100 percent of the members of its board of directors unless, at the time of such action there are at least two members of the board of directors who are Independent Directors, and all of the directors and all Independent Directors will have participated in such vote or

(B)Sole Member, provided that at all times there will be at least two Independent Managers designated by Sole Member and the operating agreement provides that Sole Member will not take any Bankruptcy Actions without the unanimous affirmative vote of 100 percent of the Independent Managers;

(iv)has and will have an operating agreement which provides that, as long as any portion of the Debt remains outstanding,

(A)upon the occurrence of any event that causes Sole Member to cease to be a member of such limited liability company (other than (x) upon an assignment by Sole Member of all of its limited liability company interest in such limited liability company and the admission of the transferee, if permitted pursuant to the organizational documents of such limited liability company and the Loan Documents, or (y) the resignation of Sole Member and the admission of an additional member of such limited liability company, if permitted pursuant to the organizational documents of such limited liability company and the Loan Documents), one of the Independent Managers will, without any action of any Person and simultaneously with Sole Member ceasing to be a member of such limited liability company, automatically be admitted as the sole member of such limited liability company (the “Special Member”) and will preserve and continue the existence of such limited liability company without dissolution,

(B)no Special Member may resign or transfer its rights as Special Member unless (x) a successor Special Member has been admitted to such limited liability company as a Special Member, and (y) such successor Special Member has also accepted its appointment as an Independent Manager and

(C)except as expressly permitted pursuant to the terms of this Agreement, Sole Member may not resign and no additional member will be admitted to such limited liability company;

(v)has and will have an operating agreement which provides that, as long as any portion of the Debt remains outstanding,

(A)such limited liability company will be dissolved, and its affairs will be would up only upon the first to occur of the following: (x) the termination of the legal existence of the last remaining member of such limited liability company or the occurrence of any other event which terminates the continued membership of the last remaining member of such limited liability company in such limited liability company unless the business of such limited liability company is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”) or (y) the entry of a decree of judicial dissolution under Section 18-802 of the Act;

(B)upon the occurrence of any event that causes the last remaining member of such limited liability company to cease to be a member of such limited liability company or that causes Sole Member to cease to be a member of such limited liability company (other than (x) upon an assignment by Sole Member of all of its limited liability company interest in such limited liability company and the admission of the transferee, if permitted pursuant to the organizational documents of such limited liability company and the Loan Documents, or (y) the resignation of Sole Member and the admission of an additional member of such limited liability company, if permitted pursuant to the organizational documents of such limited liability company and the

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-5

Loan Documents), to the fullest extent permitted by law, the personal representative of such member will be authorized to, and will, within 90 days after the occurrence of the event that terminated the continued membership of such member in such limited liability company, agree in writing to continue the existence of such limited liability company and to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company, effective as of the occurrence of the event that terminated the continued membership of such member in such limited liability company;

(C)the bankruptcy of Sole Member or a Special Member will not cause such member or Special Member, respectively, to cease to be a member of such limited liability company and upon the occurrence of such an event, the business of such limited liability company will continue without dissolution;

(D)in the event of dissolution of such limited liability company, such limited liability company will conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of such limited liability company in an orderly manner), and the assets of such limited liability company will be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and

(E)to the fullest extent permitted by law, each of Sole Member and the Special Members will irrevocably waive any right or power that they might have to cause such limited liability company or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of such limited liability company, to compel any sale of all or any portion of the assets of such limited liability company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of such limited liability company.

“Bankruptcy Action” means, with respect to any Person, if such Person

(i)makes an assignment for the benefit of creditors,

(ii)files a voluntary petition in bankruptcy,

(iii)is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings,

(iv)consents to, orchestrates or participates in the orchestration of, or files a petition or answer seeking for itself, any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation,

(v)files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any bankruptcy or insolvency proceeding,

(vi)seeks, consents to, orchestrates or participates in the orchestration of, or acquiesces in the appointment of a trustee, receiver, liquidator, sequestrator, custodian or any similar official of or for such Person or of all or any substantial part of its properties,

(vii)120 days after the commencement of any proceeding against such Person seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, if the proceeding has not been dismissed,

(viii)within 90 days after the appointment without such Person’s consent or acquiescence of a trustee, receiver or liquidator of such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated or

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-6

(ix)takes any action in furtherance of any of the foregoing.

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LOAN AGREEMENT, SCHEDULE 4, PAGE 4-7

SCHEDULE 5

SERVICE CONTRACTS

*To be added.

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