exv10w26w2






Exhibit 10.26.2




LOAN SERVICING AGREEMENT




Dated as of February 6, 2008




by and between




PIM ASHFORD VENTURE I, LLC




AND




ASHFORD HOSPITALITY SERVICING LLC




 









 





     THIS LOAN SERVICING AGREEMENT (this “Agreement”), dated as of February 6, 2008,
is made and entered into by and between PIM Ashford Venture I, LLC, a Delaware limited
liability company (the “Company”), for itself and on behalf of its Subsidiaries
(hereinafter defined), and Ashford Hospitality Servicing LLC, a Delaware limited
liability company (the “Ashford”). It is anticipated by the parties hereto that
Subsidiaries will be added as parties and signatories to this Agreement as Investments
are acquired by the Company.



WITNESSETH:




          WHEREAS, Ashford and Prudential Investment Management, Inc., a Delaware corporation
(“PIM”), are parties to that certain Investment Program Agreement dated of even
date herewith (the “Program Agreement”). Pursuant to the Program Agreement,
Ashford and PIM agreed to establish an exclusive investment program (the
“Program”) whereby PIM will identify one (1) or more investors to invest in
Master Ventures (as defined in the Program Agreement) to make Investments (as defined in
the Program Agreement) through such Master Ventures and Master Venture subsidiaries (the
“Subsidiaries”);




          WHEREAS, Ashford and PRISA III Investments, LLC, a Delaware limited liability
company (the “Investor”), have formed the Company pursuant to that certain
Limited Liability Company Agreement of the Company dated as of February 6, 2008 (the
“Master Venture Agreement”) to invest through one or more Subsidiaries in
Investments. The Investments that are the subject of this Agreement on the date hereof
are listed on Exhibit A hereto, which exhibit shall be amended from time to time
as additional Investments are acquired;




          WHEREAS, the parties hereto desire to enter into this Agreement to define the relative rights
and powers of the Holders (hereinafter defined) and to provide for the security and administration
of the Investments.




          NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:




          NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto
mutually agree as follows:




          SECTION 1. DEFINITIONS; CONFLICTS.




          References to a “Section” or the “recitals” are, unless otherwise specified, to a Section
or the recitals of this Agreement. The terms “include(s)” or “including” shall mean
“include(s), without limitation” and “including, without limitation”, respectively.
Whenever used in this Agreement, the following terms shall have the respective meanings
set forth below unless the context clearly requires otherwise. Initially capitalized
terms used and not otherwise defined herein shall have the meanings respectively ascribed
to them in the Master Venture Agreement.




          “Agreement” shall mean this Agreement, the exhibits and schedules hereto and all
amendments hereof and supplements hereto.




 









 








          “Bankruptcy Code” shall mean the United States Bankruptcy Code, as amended
from time to time, any successor statute or rule promulgated thereto.




          “Borrower”, for an Investment, shall mean, collectively, the borrowers under
such Investment.




          “Borrower Related Party” shall mean any Affiliate of the Borrower. For
avoidance of doubt, any mezzanine lender shall be considered a Borrower Related Party if
any such mezzanine lender becomes an Affiliate of the Borrower through foreclosure or
other conversion of the collateral for a mezzanine loan in connection with any Property.




          “Borrower Transfer” means a “Transfer,” as defined in the Loan Documents.




          “Business Day” shall mean any day that is not a Saturday or Sunday, and that
is not a legal holiday in New York, New York, nor a day that banking institutions or
savings associations in any of the foregoing cities are closed for business.




          “Code” shall mean the Internal Revenue Code of 1986, as amended.




          “Company” shall have the meaning set forth in the introductory paragraph
hereof.




          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as
amended.




          “Event of Default” shall have the meaning set forth in Section 2(i).




          “Holder” shall mean the Company and each of the Subsidiaries that are or
become signatories hereto.




          “Insolvency Proceeding” shall mean any proceeding under Title 11 of the
United States Code (11 U.S.C. Sec. 101 et seq.) or any other insolvency, liquidation,
reorganization or other similar proceeding concerning the Borrower, any action for the
dissolution of the Borrower, any proceeding (judicial or otherwise) concerning the
application of the assets of the Borrower, for the benefit of its creditors, the
appointment of or any proceeding seeking the appointment of a trustee, receiver or other
similar custodian for all or any substantial part of the assets of the Borrower or any
other action concerning the adjustment of the debts of the Borrower or the cessation of
business by the Borrower, except following a sale, transfer or other disposition of all
or substantially all of the assets of the Borrower in a transaction permitted under the
Loan Documents; provided, however, that following any such permitted transaction
affecting the title to the Property or the Interests, the Borrower for purposes of this
Agreement shall be defined to mean the successor owners to the Property or the Interests;
provided, further, however, that for the purposes of this definition, in the event that
more than one entity comprises the Borrower, the term “Borrower” shall refer to any such
entity.




          “Interests” shall mean the ownership interests in Borrower pledged to Lender
pursuant to the Loan Documents.




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          “Lender” shall mean the holder of legal title to the Loan Documents.
Initially, the Lender for each Investment and for all purposes under the Loan Documents
and this Agreement shall be the Company or the Subsidiary that holds such Investment.




          “Loan”, for each Investment, shall mean the loan made or acquired by Lender
and evidenced and secured by the Loan Documents.




          “Loan Documents”, for each Investment, shall mean those documents
evidencing, securing and guarantying the Loan as identified on Schedule 1 to this
Agreement, as updated from time to time.




          “Management Fee” shall have the meaning assigned to such term in Section
2(i).




          “Person” shall mean any individual, sole proprietorship, corporation,
general partnership, limited partnership, limited liability company or partnership, joint
venture, insurance company, association, joint stock company, bank, trust, estate,
unincorporated organization, any federal, state, county or municipal government (or any
agency or political subdivision thereof), and any other legal entity.




          “Principal Balance”, for each Loan, shall mean, at any time of
determination, the initial principal balance of the Loan thereof, less any payments of
principal thereon received by the Lender.




          “Principal Prepayment”, for each Loan, shall mean any payment of principal
made by the Borrower on the Loan that is received in advance of its scheduled payment
date, whether made by reason of casualty or condemnation or otherwise.




          “Property”, for each Investment, shall mean each parcel of real property
that is the subject of, directly or indirectly, or is secured in connection with, each
Investment, whether or not encumbered by a mortgage.




          “Servicer” shall mean initially Ashford or any replacement Servicer
appointed in accordance with the terms of this Agreement.




          “Servicer Default” is defined in Section 5(c).




          “Workout Fee” shall have the meaning assigned to such term in Section 2(i).




          SECTION 2. ADMINISTRATION OF THE LOAN.




          (a) The Servicer shall service and administer the Loan, as agent for the Holders, in
accordance with the express terms of this Agreement and Accepted Loan Servicing Practices, taking
into account the interests of the Holders with a view to maximizing the realization for all Holders
as a collective whole. The Holders acknowledge that the Servicer is to comply with this Agreement
and the Loan Documents in servicing the Loan and, notwithstanding anything to the contrary
contained herein, shall act at all times at the direction of




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the Company. Servicer shall not be entitled to any servicing fees or other compensation for its
services hereunder except for the Management Fee and the Workout Fee, each as described below in
Section 2(i).




          (b) The Servicer shall:





     (i) provide to the Holders (1) a summary of the current status of principal and interest
payments on the Loan, (2) copies of the Borrower’s current financial statements, to the
extent in the Servicer’s possession, (3) current information, if any, as to the value of
the Property, to the extent in the Servicer’s possession, (4) copies of any default or
acceleration notices sent to the Borrower with respect to the Loan and all material
correspondence related thereto, (5) copies of all notices received or given by Servicer
pursuant to any intercreditor agreement related to the Loan, (6) copies of any written
report prepared by any consultant retained by Servicer, and (7) other information with
respect to the Borrower or the Loan, requested by any Holder, to the extent in the
Servicer’s possession.




     (ii) receive all payments of interest, principal and other sums on account of or with
respect to the Loan;




     (iii) in accordance with the provisions of this Agreement, remit to the Company or to
the applicable Subsidiary all interest, principal and other sums received by or on behalf
of Servicer on account of or with respect to the Loan;




     (iv) notwithstanding anything to the contrary in the Loan Documents, notify each
Holder of the amount of each unfunded disbursement, if any, of the Loan requested by
Borrower (which may be greater than the amount actually disbursed) at least five (5)
Business Days prior to the date of disbursement.



          (c) Except as otherwise expressly provided herein and subject to the terms of the Program
Agreement and the Master Venture Agreement, the Servicer shall have full power and
authority to do or perform any act or thing which in the reasonable judgment of the
Servicer is necessary to enable it to discharge and perform its duties under this
Agreement, the Loan Documents (or any other agreement or agreements entered into in
connection therewith), or which in the reasonable judgment of Servicer is necessary or
required to preserve and protect the liens and security interests created by the Loan
Documents and the priority thereof and the collateral for the Loan and the interest of
the Holders, and to do any and all things which it may deem necessary or desirable in
connection with the servicing and administration of the Loan in accordance with the Loan
Documents and the terms hereof, which Servicer reasonably believes will not materially
and adversely affect the value of the Loan, all in accordance with Accepted Loan
Servicing Practices. Subject to the below provisions of this Section 2, the Program
Agreement and the Master Venture Agreement, the Servicer shall have authority to act on
behalf of the Lender and the Holders with respect to the Loan, to transact with the
Borrower and to grant or withhold consents or approvals under the Loan Documents, enforce
the Loan Documents and otherwise act on behalf of the Lender and the Holders, all in
accordance with Accepted Loan Servicing Practices. None of the following actions may be
undertaken by the Servicer without the prior written consent of the Company:





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     (i) modify, amend or waive in any respect whatsoever (A) the interest rate, monthly
payment, or other monetary or economic provisions (including with respect to the date or
time upon which any obligations are due) of the Loan, including to defer interest
payments; (B) any provision in the Loan Documents that restricts Borrower from incurring
additional indebtedness; or (C) any other provisions in the Loan Documents other than
non-monetary, non-economic or administrative amendments or modifications which the
Servicer believes in good faith and in accordance with Accepted Loan Servicing Practices
will not in any material and adverse way affect any Holder’s rights under this
Agreement, the Loan Documents or the value of the Property;




     (ii) waive or reduce the amount of any reserves required to be maintained by Borrower, except
as explicitly permitted by the Loan Agreement;




     (iii) modify the principal amount of the Loan;




     (iv) extend or shorten the maturity date of the Loan or any note, other than in accordance
with the express provisions of the Loan Agreement;




     (v) waive, compromise or settle any material claim against Borrower or any or other Person
liable for payment of the Loan in whole or in part or for the observance and performance by
Borrower of any of the terms, covenants, provisions and conditions of the Loan Documents, or
release Borrower or any other Person liable for payment of the Loan in whole or in part from any
obligation or liability under the Loan Documents;




     (vi) approve or consent to a Borrower Transfer;




     (vii) encumber, release, or modify, in whole or in part, any collateral or security interest
held under the Loan Documents other than in accordance with the terms hereof or any of the express
provisions of the Loan Agreement;




     (viii) enforce or refrain from enforcing all of the rights, remedies and privileges afforded
or available to the respective Holders under the terms of the Loan Documents, including, without
limitation, accelerating the Loan (unless such acceleration is automatic under the Loan
Documents), foreclosing on any mortgage or pledge or accepting a deed in lieu of foreclosure;




     (ix) following a foreclosure of the Mortgage or any pledge or acceptance of a deed in lieu of
foreclosure, approve a recommended course of action for the Property, approve the property manager
and selling agent, and approve the sale price of the Property;




     (x) the approval or adoption of any plan of bankruptcy, reorganization, restructuring or
similar event in an Insolvency Proceeding with respect to the Borrower or any guarantor;




     (xi) any incurrence of additional debt by the Borrower or any mezzanine financing by any
direct or indirect beneficial owner of the Borrower (to the extent that the Lender has consent
rights pursuant to the Loan Documents with respect thereto);



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     (xii) any waiver of the enforcement of any insurance requirements under the Loan
Documents with respect to terrorism, earthquake, flooding, windstorm or political risk;




     (xiii) any material amendment to the special purpose entity provisions in the Loan
Agreement;




     (xiv) the subordination of any mortgage or pledge to any other mortgage or pledge or
other material monetary claim against the Property; or




     (xv) waiver of any material default or Event of Default.



          (d) The Servicer shall have no liability to any other Holder for any action taken,
or for refraining from the taking of any action, in good faith and in accordance with
Accepted Loan Servicing Practices pursuant to this Agreement, and/or the Loan Documents,
so long as Servicer is acting in accordance with Accepted Loan Servicing Practices;
provided, however, that the Servicer will not be protected against any liability which
would otherwise be imposed by reason of gross negligence, a breach of an Accepted Loan
Servicing Practice, which breach is not cured within ten (10) Business Days following
notice thereof, willful misfeasance, bad faith or fraud in the performance of duties or
obligations hereunder. Without limiting the generality of the foregoing, the Servicer,
acting on behalf of the Holders in accordance with the terms of this Agreement, may rely
on the advice of legal counsel, accountants and other experts (including those retained
by the Borrower) and upon any written communication or telephone conversation which the
Servicer believes to be genuine and correct or to have been signed, sent or made by the
proper Person.




          (e) Notwithstanding any direction to act, or approval or disapproval of, or right
to give direction to or to approve or disapprove an action of the Servicer by any other
Holder, as applicable, in no event shall the Servicer be obligated to take any action
that would violate, or refrain from taking any action necessary to avoid violation of,
any applicable law, or be inconsistent with or violate any provisions of this Agreement.




          (f) Each Holder hereby undertakes and agrees, upon the request of the Servicer, to
execute, verify, deliver and file in a timely manner any proofs of claim, consents,
assignments or other action necessary or appropriate to permit the Servicer to enforce
the obligations of Borrower to the Lender in respect of the Loan, and to vote any claims
at any meeting of creditors or for any plan or with respect to any matter as the Servicer
shall direct, subject to the provisions of this Section 2 and otherwise in accordance
with the terms of this Agreement, all in order to preserve and maintain all claims
against Borrower for sums due under the Loan so that the Lender will have the benefit of
such claims as provided in the Loan Documents or under applicable law.




          (g) Servicer shall not, without the consent of the Company, assign its rights or
delegate its duties hereunder unless such assignment is to an Affiliate of Ashford (as
defined in the Master Venture Agreement) and does not constitute a Change in Control (as
defined in the Master Venture Agreement).





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          (h) If title to the Property or any Interests is to be acquired after a foreclosure
sale or by a deed in lieu of foreclosure, title shall be held as directed by the Company.
If, at this time, any Holder is an employee benefit plan subject to Part 4 of Title I of
ERISA or to which Section 4975 of the Code applies, or an entity which is deemed to hold
assets of such a plan, such limited liability company (or other special purpose entity)
shall be structured and operated in a manner which, under the ERISA “plan asset
regulations,” 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, is intended
to cause the limited liability company (or other special purpose entity) either (A) to be
a real estate operating company (“REOC”) or (B) to otherwise have its underlying
assets not deemed to be “plan assets” of any employee benefit plan subject to Part 4 of
Title I of ERISA or to which Section 4975 of the Code applies, and such limited liability
company (or other special purpose entity) will be required to advise the Holders, as soon
as reasonably possible, of any change or circumstance which could reasonably be expected
to affect its status as a REOC, or to otherwise cause its underlying assets to be deemed
to be “plan assets.”




          (i) As full compensation for its services hereunder, Servicer shall be entitled to
a management fee with respect to each Investment, which shall be an annual fee payable in
equal quarterly installments in arrears equal to 0.25% multiplied by the Capital
Contribution (as defined in the Master Venture Agreement) made by the Investor and
Ashford (as defined in the Master Venture Agreement) to acquire such Investment (the
“Management Fee”). Notwithstanding the foregoing to the contrary and except as
otherwise provided in Section 5(c) below, with respect to any Investment that is subject
to a default remaining uncured beyond any applicable notice and cure periods (an
“Event of Default”). Servicer shall receive a workout fee in lieu of the
Management Fee with respect to such Investment, which shall be an annual fee payable for
such Investment in the amount of 0.50% of the Capital Contributions made by the Investor
and Ashford (as defined in the Master Venture Agreement) to acquire such Investment (the
“Workout Fee”). Any Workout Fee due hereunder shall be prorated for any partial
year (i.e. less than 365 day year) during the existence of an Event of Default and shall
be paid upon the earlier of (i) the cure of the applicable Event of Default, and (ii) the
365 day following the occurrence of the applicable Event of Default. Notwithstanding
anything to the contrary contained herein, Servicer shall act at the direction of the
Company with respect to all matters relating to each Investment that is subject to an
Event of Default.




          SECTION 3. PAYMENT PROCEDURE.




          If a court of competent jurisdiction orders, at any time that any amount received or collected
in respect of the Loan must, pursuant to any insolvency, bankruptcy, fraudulent conveyance,
preference or similar law, be returned to the Borrower or paid to any Holder or any other Person,
then, notwithstanding any other provision of this Agreement, the Servicer shall not be required to
distribute any portion thereof to any Holder, and all Holders shall promptly on demand repay to the
Servicer the portion thereof which shall have been theretofore distributed to the related Holder,
together with interest thereon at such rate, if any, as the Servicer shall have been required to
pay to the Borrower, the Holders, or such other Person with respect thereto. Each Holder agrees
that if at any time it shall receive from any source whatsoever (other than as a distribution from
the Servicer to which it is entitled hereunder) any payment on account of the Loan in excess of
amounts due such Holder hereunder, it will promptly remit such excess to the Servicer. The Servicer
shall have the right to offset any amounts due hereunder from any Holder




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with respect to the Loan against any future payments due to such Holder from the Loan; provided,
that the obligations of each Holder under this Section 3 are separate and distinct obligations
from one another. The obligations of each Holder under this Section 3 constitute absolute,
unconditional and continuing obligations.




          SECTION 4. LIMITATION ON LIABILITY.




          No Holder shall have any liability to any other Holder hereunder, except with respect to
losses actually suffered due to the gross negligence, willful misconduct or breach of this
Agreement on the part of such Holder.




          SECTION 5. ADDITIONAL UNDERSTANDINGS.




          (a) Notices of Transfer Etc. The Servicer shall notify the Holders promptly
if the Borrower seeks or requests a release of the lien with respect to the Loan or seeks
or requests the Lender’s consent to, or takes any action in connection with or in
furtherance of, any Borrower Transfer, incurring additional indebtedness or a Principal
Prepayment of the Loan. If the Borrower requests consent to a Borrower Transfer or
incurring any incur additional indebtedness, the Servicer shall obtain the prior written
consent of the Company prior to the Lender’s granting consent or agreement thereto (which
consent shall be subject to the same standard applicable to the Lender’s ability to
withhold such consent set forth in the Loan Documents).




          (b) Replacement of Servicer. An event of default by Servicer (a
“Servicer Default”) hereunder shall exist in the event that one or more of the
following events shall occur and be continuing beyond any applicable grace or cure
periods:





     (i) a decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up or liquidation of its affairs, shall have been entered
against Servicer;




     (ii) Servicer shall consent to the appointment of a conservator or receiver or
liquidator or liquidating committee in any insolvency, readjustment of debt, marshalling of
assets and liabilities, voluntary liquidation or similar proceedings of or relating to
Servicer or of or relating to all or substantially all of its property;




     (iii) Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations;




     (iv) any failure on the part of Servicer to observe or perform in any material respect
any covenant or agreement on the part of Servicer contained in this Agreement, which
remains unremedied for a period of fifteen (15) Business Days after the date on which
written notice of such failure, requiring the same to be remedied, shall have been given to
Servicer by a Holder (except that said fifteen (15) Business Day period shall be



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extended for such period of time as shall be reasonably necessary in order to cure such
default as long as Servicer shall be diligently prosecuting such cure to completion and
said extended period would not reasonably be expected to materially impair a Holder’s
interest in the Loan but in no event shall such additional period exceed sixty (60)
days); or




     (v) any failure by Servicer to notify the Holders of a default by Borrower under the
Loan Documents within five (5) Business Days after Servicer’s receipt of written notice
thereof.


In the event of a Servicer Default in addition to whatever other rights the Holders may
have hereunder or at law or in equity, the Company, may by notice given to Servicer and
the other Holders terminate all of the rights and obligations of Servicer as servicer of
the Loan, and in such event the Company shall appoint another servicer to perform the
obligations of Servicer pursuant to the terms hereof. In the event of such termination,
the Servicer shall cooperate with the Holders and any such successor servicer in the
transition of such servicing obligations, turning over all Loan Documents in Servicer’s
possession (other than, if applicable, those held in its capacity as a Holder), and such
successor servicer shall deliver to each of the Holders a writing in recordable form
whereby it assumes all of the obligations of Servicer hereunder.




          (c) Appointment of Special Servicer. The Holders shall have the right to
appoint a special servicer upon two (2) Business Days written notice to Servicer with
respect to any Investment that is subject to an Event of Default. In the event that a
special servicer is appointed with respect to an Investment, (1) Servicer shall cooperate
with the Holders and any special servicer in the transition of such servicing
obligations, including, without limitation, turning over all Loan Documents in Servicer’s
possession with respect to such Investment to such special servicer or as otherwise
directed by the Holders, and (2) Servicer shall not be entitled to a Workout Fee or
Management Fee with respect to such Investment for any period following receipt of
written notice of the appointment of the special servicer.




          SECTION 6. REPRESENTATIONS OF SERVICER.




     With respect to each Loan, Servicer hereby represents and warrants to each of the Holders on
the date of acquisition of such Loan by the Holders:



          (a) if Servicer or any Affiliate (as defined in the Master Venture Agreement) of
Servicer acquired the Loan, Servicer and/or such Affiliate conveying the Loan to the
Holders have good title to, and are the sole holders of the Loan, free and clear of any
liens, security interests, claims, charges or other encumbrances;




          (b) Servicer has not assigned, pledged, transferred or encumbered all or any portion
of the Loan;




          (c) Servicer has no other material agreements with the Borrower under the Loan with
respect to the Loan other than as set forth in the Loan Documents,




          (d) none of the Borrower or any guarantors under the Loan have been released by
Servicer from any obligation under any of the Loan Documents, and no collateral has been




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released by Servicer from the lien of any other security agreement executed in connection with the
Loan;




          (e) the Servicer has acted in accordance with Accepted Loan Servicing Practices in
acquiring the Loan; and




          (f) the Servicer will report the Loan as a purchase of an interest in the Loan under
generally accepted accounting principles.




          SECTION 7. NOT A SECURITY.




          No Investment shall be deemed to be a security within the meaning of the Securities Act of
1933 or the Securities Exchange Act of 1934.




          SECTION 8. EXERCISE OF REMEDIES.




          Each Holder acknowledges that, subject to the terms of this Agreement, (i) each
Holder may exercise or refrain from exercising any rights that such Holder may have
hereunder in a manner that may be adverse to the interests of the other Holder, so long
as such actions are in accordance with the terms of this Agreement, (ii) a Holder shall
have no liability whatsoever to the other Holder as a result of such Holder’s exercise of
such rights or any omission by such Holder to exercise such rights, except as expressly
provided herein or for acts or omissions that are taken or omitted to be taken by such
Holder that constitute the gross negligence or willful misconduct of such Holder or a
breach of this Agreement, and (iii) the Servicer shall service and administer the Loan on
behalf of the Holders in accordance with the terms of this Agreement, taking into account
the interests of the Holders and in accordance with Accepted Loan Servicing Practices.




          SECTION 9. SEVERABILITY.




          Wherever possible, each provision of this Agreement shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable laws, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.




          SECTION 10. NO PLEDGE OR LOAN; CHARACTERIZATION.




          This Agreement shall not be deemed to represent a pledge of any interest in the Loan
by any Holder to any other Holder, or a loan from any Holder to any other Holder. No
Holder shall have any interest in any property taken as security for the Loan. The
Holders acknowledge and agree that the Loan represents a single “claim” under Section 101
of the Bankruptcy Code, and that no Holder would be a separate creditor of the Borrower
under the Bankruptcy Code. The obligations of the Holders under this Agreement are
separate and distinct and no such Holder shall be liable for defaults by the other.




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          SECTION 11. GOVERNING LAW; WAIVER OF JURY TRIAL.




          THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT.




          SECTION 12. MODIFICATIONS.




     This Agreement shall not be modified, cancelled or terminated except by an instrument in
writing signed by the parties hereto. The party seeking modification of this Agreement shall be
solely responsible for any and all expenses that may arise in order to modify this Agreement.



          SECTION 13. SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.




          This Agreement shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns; provided that no successors or assigns of any Holder shall have
any liability for a breach of a representation or warranty set forth in this Agreement or any side
agreement (but the liability of the Holder that made such representation shall survive). Except as
provided in the preceding sentence, none of the provisions of this Agreement shall be for the
benefit of or enforceable by any Person not a party hereto or a successor or assign of a party
hereto.




          SECTION 14. COUNTERPARTS.




          This Agreement may be executed in any number of counterparts and all of such counterparts
shall together constitute one and the same instrument. This Agreement may be executed by
signature(s) transmitted by facsimile or PDF provided that original signature pages follow.




          SECTION 15. CAPTIONS.




          The titles and headings of the paragraphs of this Agreement have been inserted for convenience
of reference only and are not intended to summarize or otherwise describe the subject matter of the
paragraphs and shall not be given any consideration in the construction of this Agreement.




          SECTION 16. NOTICES.




          All notices required hereunder shall be given by (a) telephone (confirmed in writing if the
sender on the same day sends a confirming copy of such notice by reputable overnight delivery
service (charges prepaid)) or shall be in writing and personally delivered, (b) facsimile
transmission or e-mail if the sender on the same day sends a confirming copy of such notice by
reputable overnight delivery service (charges prepaid), (c) reputable overnight delivery




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service (charges prepaid) or (d) certified United States mail, postage prepaid return receipt
requested, and addressed to the respective parties at their addresses set forth in the Master
Venture Agreement, or at such other address as any party shall hereafter inform the other party by
written notice given as aforesaid. All written notices so given shall be deemed effective upon
receipt or, if mailed, upon the earlier to occur of receipt or the expiration of the fourth (4th)
day following the date of mailing.




          SECTION 17. REGISTRATION OF TRANSFERS.




          The Lender or the Servicer on its behalf, as agent for the Holders, shall maintain a
register for the recording of the names and addresses of the Holders, the name and
address of each Holder’s agent for service of process (the “Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Servicer and the Holders may treat each person or entity whose name is
recorded in the Register as a Holder hereunder for all purposes of this Agreement. The
Register shall be available for inspection and copying by any Holder during normal
business hours upon reasonable prior notice to the Servicer.




12









 








     IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.



	 	 	 	 	 
	 	PIM ASHFORD VENTURE I, LLC, a Delaware limited liability
company

 	 
	 	By:  	PRISA III Investments, a Delaware limited liability company
 	 
	 	 	 
	 	By:  	PRISA III REIT Operating LP, a Delaware limited partnership, its sole member
 	 
	 	 	 
	 	By:  	
PRISA III OP GP, LLC, a Delaware limited liability company, its general partner
 	 
	 
	 	By:  	
PRISA III Fund LP, a Delaware limited partnership, its manager
 	 
	 
	 	By:  	
PRISA III Fund GP, LLC, a Delaware limited liability company, its general partner
 	 
	 
	 	By:  	
PRISA III Fund PIM, LLC, a Delaware limited liability company, its sole member
 	 
	 	 	 
	 	By:  	Prudential Investment Management, Inc., a Delaware corporation, its sole member
 	 
	 	 	 
	 	By:  	
James P. Walker
 	 
	 	 	Name: James P. Walker 	 
	 	 	Title:   Vice President 	 
	 
	 	By:  	Ashford Hospitality Finance LP, a Delaware limited partnership
 	 
	 
	 	 	 
	 	By:  	Ashford Hospitality Finance General
Partner LLC, a Delaware limited liability company, its general partner
 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	David Brooks 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Loan Servicing Agreement




 









 









     IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be duly executed
as of the day and year first above written.



	 	 	 	 	 
	 	PIM ASHFORD VENTURE I, LLC, a Delaware limited liability
company

 	 
	 	By:  	PRISA III Investments, a Delaware limited liability company
 	 
	 	 	 	 
	 	 	 
	 	By:  	PRISA III REIT Operating LP, a Delaware limited partnership, its sole member
 	 
	 	 	 
	 	By:  	
PRISA III OP GP, LLC, a Delaware limited liability company, its general partner
 	 
	 	 	 
	 	By:  	
PRISA III Fund LP, a Delaware limited partnership, its manager
 	 
	 	 	 
	 	By:  	
PRISA III Fund GP, LLC, a Delaware limited liability company, its general partner
 	 
	 
	 	 	 
	 	By:  	
PRISA III Fund PIM, LLC, a Delaware limited liability company, its sole member
 	 
	 	 	 
	 	By:  	Prudential Investment Management, Inc., a Delaware corporation, its sole member
 	 
	 	 	 
	 	By:  	 
 	 
	 	 	Name:  	James P. Walker 	 
	 	 	Title:  	Vice President 	 
	 	 	 
	 	By:  	Ashford Hospitality Finance LP, a Delaware limited partnership
 	 
	 	 	 
	 	By:  	Ashford Hospitality Finance General Partner LLC, a Delaware limited liability company, its
general partner
 	 



	 	 	 	 	 
	 	By:  	/s/ David Brooks
 	 
	 	 	Name:  	David Brooks 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Loan Servicing Agreement




 









 








	 	 	 	 	 
	 	ASHFORD HOSPITALITY SERVICING LLC, a Delaware
limited liability company

 	 
	 	By:  	/s/ David Brooks	 
	 	 	Name:  	David Brooks  	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Loan Servicing Agreement




 









 








EXHIBIT A




INVESTMENTS



Westin Loans Investment. As of February 5, 2008, the Company formed PIM Ashford
Subsidiary I, LLC, a Delaware limited liability company (“Subsidiary I”), to acquire all
of the right, title and interest of Ashford Hospitality Finance LP (“Assignor”) in, to
and under that certain mezzanine loan (the “Westin Loans Investment”) originated in
accordance with that certain Mezzanine Loan Agreement dated December 5, 2007 by and
among Assignor and Transwest Tucson II, L.L.C., formerly known as SCG Tucson II, L.L.C.
(“La Paloma Borrower”), a Delaware limited liability company, and Transwest Hilton Head
II, L.L.C, formerly known as SCG Hilton Head II, L.L.C, a Delaware limited liability
company(“Hilton Head Borrower” and together with La Paloma Borrower, “Borrowers”).
Subsidiary I is the owner of the Westin Loans Investment pursuant to that certain
Assignment and Assumption of Loan Documents dated as of February 6, 2008.




 









 








SCHEDULE 1



LOAN DOCUMENTS




Westin Loans Investment Loan Documents:





	1.	 	Mezzanine Loan Agreement, dated December 5, 2007, between Borrowers and Assignor;
	 
	2.	 	Promissory Note, dated December 5, 2007, in the principal amount of $21,500,000 made
by Borrowers to the order of the Assignor;
	 
	3.	 	Pledge and Security Agreement, dated December 5, 2007, made by La Paloma Borrower, in
favor of the Assignor;
	 
	4.	 	Acknowledgement of Security Interest by La Paloma Borrower, dated as of December 5,
2007;
	 
	5.	 	Instruction to Registered Pledge between Assignor and La Paloma Borrower, dated as of
December 5, 2007;
	 
	6.	 	Confirmation Statement and Instruction Agreement by Transwest Tucson Property, L.L.C.,
formerly known as SCG Tucson Property, L.L.C. (“La Paloma Project Owner”), dated
as of December 5, 2007;
	 
	7.	 	Pledge and Security Agreement, dated December 5, 2007, made by Hilton Head Borrower,
in favor of the Assignor;
	 
	8.	 	Acknowledgment of Security Interest by Hilton Head Borrower, dated as of December 5,
2007;
	 
	9.	 	Instruction to Registered Pledge between Assignor and Hilton Head Borrower, dated as
of December 5, 2007;
	 
	10.	 	Confirmation Statement and Instruction Agreement by Transwest Hilton Head Property,
L.L.C, formerly known as SCG Hilton Head Property, L.L.C. (“Hilton Head Project
Owner”), dated as of December 5, 2007;
	 
	11.	 	UCC-1 Financing Statement #2007-4584966 for La Paloma Borrower, filed with the
Delaware Secretary of State on December 5, 2007;
	 
	12.	 	UCC-1 Financing Statement #2007-4585039 for Hilton Head Borrower, filed with the
Delaware Secretary of State on December 5, 2007;
	 
	13.	 	Environmental Indemnity Agreement by and among Borrowers, Michael J. Hanson and
Randal D. Dix, dated as of December 5, 2007;
	 
	14.	 	Cash Collateral Account Security Agreement by and among Borrowers and Assignor, dated
as of December 5, 2007;
	 
	15.	 	Guaranty of Recourse Obligations by Michael J. Hanson and Randal D. Dix, dated as of
December 5, 2007;




 









 












	16.	 	Completion Guaranty by Michael J. Hanson and Randal D. Dix, dated as of December 5,
2007;
	 
	17.	 	Membership Certificate evidencing 100% Interest of La Paloma Borrower in La Paloma
Project Owner, dated as of December 5, 2007;
	 
	18.	 	Membership Certificate evidencing 100% Interest of Hilton Head Borrower in Hilton
Head Project Owner, dated as of December 5, 2007;
	 
	19.	 	Spousal Consent (Michael J. Hanson), by Christine Hanson;
	 
	20.	 	Recognition Agreement by and among Westin Hotel Management, L.P., Assignor, La Paloma
Project Owner and La Paloma Borrower, dated as of December 5, 2007;
	 
	21.	 	Recognition Agreement by and among Westin Hotel Management, L.P., Assignor, Hilton
Head Project Owner and Hilton Head Borrower, dated as of December 5, 2007;
	 
	22.	 	Mezzanine Agreement Regarding Agreements, Permits, and Contracts by and among Hilton
Head Project Owner, La Paloma Project Owner, Assignor and Borrowers, dated as of December
5, 2007;
	 
	23.	 	Contribution Agreement by and among Borrowers and Assignor, dated as of December 5,
2007;
	 
	24.	 	Authorization to Wire Funds (Funding Letter) by Borrowers, dated as of December 5,
2007;
	 
	25.	 	Subordination Agreement by and among Project Owners, Assignor and Guarantors, dated
as of December 5, 2007;
	 
	26.	 	Subordination and Standstill Agreement by and among JPMorgan Chase Bank, N.A.,
Assignor and SCG Hotel DLP, LP, dated as of December 5, 2007;
	 
	27.	 	Closing Certificate, by Borrowers, dated as of December 5, 2007;
	 
	28.	 	Post-Closing Letter Agreement, by and between Borrowers and Assignor, dated as of
December 5, 2007; and
	 
	29.	 	Intercreditor Agreement, dated December 5, 2007, by and between JPMorgan Chase Bank,
N.A. and the Assignor.