Subject to the provisions of this Article IX, the Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and ​ may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or ​ hereunder or waiving any Default hereunder; provided, however, that, except as provided in Section 2.23 or 2.24 and subject to [Section 9.3(B) through (D)] below, no such supplemental agreement shall:

Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 67% in interest of the Shares based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought; provided, that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser, Any amendment effected in accordance with accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.

This Escrow Agreement may be amended or modified, and any of the terms, covenants, representations, warranties, or conditions hereof may be waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. Any waiver by any party of any condition, or of the breach of any provision, term, covenant, representation, or warranty contained in this Escrow Agreement, in any one or more instances, shall not be deemed to be nor construed as further or continuing waiver of any such condition, or of the breach of any other provision, term, covenant, representation, or warranty of this Escrow Agreement. The Company and the Dealer Manager agree that any requested waiver, modification or amendment of this Escrow Agreement shall be consistent with the terms of the Offering.

Amendment; Waivers. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by each of the parties hereto and, with respect to Apple Ten, with the prior approval of the Company Special Committee, and, with respect to Parent, with the prior approval of the Parent Board. No delay or failure on the part of any party hereto in exercising any right, power or privilege under this Agreement shall impair any such right, power or privilege or be construed as a waiver of any default or any acquiescence thereto. No waiver shall be valid against any party hereto, unless made in writing and signed by the party against whom enforcement of such waiver is sought, and then only to the extent expressly specified therein.

Demand; Protest; etc. Each Borrower waives demand, protest, notice of protest, notice of default or dishonor, notice of payment and nonpayment, nonpayment at maturity, release, compromise, settlement, extension, or renewal of documents, instruments, chattel paper, and guarantees at any time held by the Lender Group on which any Borrower may in any way be liable.

Landlord Waivers. In the case of # each headquarters location of the Loan Parties, each other location where any significant administrative or governmental functions are performed and each other location where the Loan Parties maintain any books or records (electronic or otherwise) and # any personal property Collateral located at any other premises leased by a [[Loan Party:Organization]] containing personal property Collateral with a value in excess of $500,000, the Loan Parties will provide the [[Administrative Agent:Organization]] with such estoppel letters, consents and waivers from the landlords on such real property to the extent # requested by the [[Administrative Agent:Organization]] and # the Loan Parties are able to secure such letters, consents and waivers after using commercially reasonable efforts (such letters, consents and waivers shall be in form and substance reasonably satisfactory to the [[Administrative Agent:Organization]], it being acknowledged and agreed that any landlord waiver in the form of Exhibit N is satisfactory to the [[Administrative Agent:Organization]]).

Each Guarantor waives # any defense arising by reason of any disability or other defense of the ​ or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Secured Party) of the liability of the ​ or any other [[Loan Party:Organization]]; # any defense based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the ​ or any other [[Loan Party:Organization]]; # the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; # any right to proceed against the ​ or any other [[Loan Party:Organization]], proceed against or exhaust any security for the Secured Obligations, or pursue any other remedy in the power of any Secured Party whatsoever; # any benefit of and any right to participate in any security now or hereafter held by any Secured Party; and # to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable Law limiting the liability of or exonerating ​ or sureties. Each Guarantor expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Secured Obligations, and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new or additional Secured Obligations. Each Guarantor waives any rights and defenses that are or may become available to it by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil Code.

Execute and deliver to [[Organization B:Organization]], within ten (10) days of being requested to do so, such additional documents and agreements as [[Organization B:Organization]] may from time to time reasonably request to carry out the purposes, terms or conditions of this Agreement.

As additional consideration for all of the LLC Interests, at such times as provided in Section 2.1(c)(v), ​ (or, at the direction of ​, the ​) shall pay to Seller, with respect to each Calculation Period within the Earnout Period for which EBITDA exceeds the applicable EBITDA Threshold, an amount (each, an “Earnout Payment”), if any, equal to the product of # an amount equal to # EBITDA for such Calculation Period, minus # the CapEx Allowance for such Calculation Period; multiplied by # fifty percent (50%); provided, however, that in no event shall ​ be obligated to pay Earnout Payments to Seller in excess of $26,500,000 in the aggregate for all Calculation Periods during the Earnout Period. If EBITDA for a particular Calculation Period does not exceed the applicable EBITDA Threshold, no Earnout Payment shall be due for such Calculation Period.

Additional Rent. All monies other than Base Rent required to be paid by Tenant hereunder, including, but not limited to, Tenant’s Proportionate Share of Operating Expenses, as specified in Paragraph 7 of this Lease, charges to be paid by Tenant under Paragraph 15, the interest and late charge described in Paragraphs 26.4 and 26.5, and any monies spent by Landlord pursuant to Paragraph 30, shall be considered additional rent (“Additional Rent”). Except as otherwise provided herein, all items of Additional Rent shall be paid within 30 days after Landlord’s request for payment. “Rent” shall mean Base Rent and Additional Rent.