exv10w23w2w1



 






Exhibit 10.23.2.1




SECOND AMENDMENT TO LOAN AGREEMENT




     SECOND AMENDMENT TO LOAN AGREEMENT (this “Second Amendment”), dated as of July 26, 2006
(“Effective Date”), to that certain Loan Agreement dated as of October 28, 2005, by and
between Ashford Dulles II LLC (the “Borrower”) and Merrill Lynch Mortgage Lending, Inc.
(the “Lender”) (the “Original Loan Agreement”), as amended by that certain First
Amendment to Loan Agreement, dated as of February 9, 2006 (the “First Amendment”), by and
between Borrower and Lender (as so amended, the “Loan Agreement”).



W I T N E S S E T H:




     WHEREAS, the Lender and the Borrower entered into the Original Loan Agreement and subsequently
entered into the First Amendment;



     WHEREAS, the Borrower has requested that certain amendments to the Loan Agreement be made and the
Lender is willing to grant such requests to the Borrower on the terms and conditions stated below;



     NOW, THEREFORE, in consideration of the premises and the mutual covenants herein, the parties
hereby agree as follows:



     1. Definitions. Except as otherwise set forth herein, capitalized terms not defined
herein shall have the respective meanings assigned to such terms in the Loan Agreement.



     2. Amendments to the Loan Agreement. Effective as of the Effective Date of this
Second Amendment and subject to the satisfaction of the conditions precedent set forth in herein,
the Loan Agreement is hereby amended as follows:



          A. Amended Definition.




               (i) The definition of Initial Maturity Date is hereby amended and
restated in its entirety as follows: “Initial Maturity Date” means
October 10, 2008.



          B. Amended Sections.




               (i) Section 2.5(j) of the Loan Agreement is hereby amended and
restated in its entirety as follows:




“(j) Revolving Loan. Subject to the terms and conditions hereof and
relying upon the representations and warranties set forth herein, Lender agrees
that notwithstanding anything herein to the contrary, solely for the period (the
“Revolving Period”) commencing February 9, 2006 up to and including October
11, 2007 (the “Revolving Period Expiration Date”), the Loan is hereby
converted into a revolving credit facility under which Borrower may borrow, repay
and



 









 






reborrow with respect to the Note pursuant to this Article 2. On and
after October 12, 2007, Borrower shall not be permitted to repay and reborrow with
respect to the Note, and all of the terms of the First Amendment to Loan Agreement
between Borrower and Lender dated as of February 9, 2006 (the “First
Amendment”), other
than (i) Section 2(a) of the First Amendment, and (ii) all of the terms of
the Second Amendment to Loan Agreement between Borrower and Lender dated as of July
___, 2006, will be of no further force and effect, and the Original Loan Agreement
shall revert to its original form as executed and in effect on the Closing Date;
the amendment to the Loan Agreement set forth in Section 2(a) of the First
Amendment shall survive the Revolving Period.”



               (ii) Section 2.6(a) of the Loan Agreement is hereby amended and
restated in its entirety as follows:




“Provided that no Event of Default has occurred and is continuing hereunder,
Borrower may, only on a Payment Date, prepay the Indebtedness in full (but not in
part) (i) on any Payment Date that occurs on or prior to October 10, 2007, without
Prepayment Premium, (ii) on any Payment Date that occurs during the period of time
commencing on the Payment Date in November, 2007, and ending on and including the
Payment Date in May, 2008, subject to payment of the Prepayment Premium, and (iii)
on any Payment Date that occurs during the period of time commencing on the Payment
Date in June, 2008, and through and including the related Maturity Date, without
Prepayment Premium; provided, that in connection with any prepayment,
simultaneously therewith, the Borrower shall pay to Lender all interest that would
have accrued on the amount of the Loan prepaid through and including the last day
of the Interest Accrual Period during which such prepayment occurs.”



     3. Representations and Warranties. To induce the Lender to enter into this Second
Amendment, the Borrower represents and warrants, as of the date of the execution and delivery of
this Second Amendment, that:



          (a) It has the power, authority
and legal right to make and deliver this Second Amendment and
to perform its obligations under the Loan Agreement, as
amended by this Second Amendment, without any notice,
consent, approval or authorization not already obtained, and
that it has taken all necessary action to authorize the same.




          (b) The making and delivery of
this Second Amendment and the performance of the Loan
Agreement, as amended by this Second Amendment, does not
violate any provision of law or any regulation, or its
charter or by-laws, or result in the breach of or constitute
a default under or require any consent under any indenture or
other agreement or instrument to which it is a party or by
which it or any of its properties may be bound or affected.
The Loan Agreement, as amended by this
Second Amendment, constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its
terms, except as the






2









 







enforceability thereof may be limited
by any applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights
generally.




          (c) The representations and
warranties made by it contained in the Loan Agreement are
true and correct on the date of the execution and delivery of
this Second Amendment and after giving effect hereto.




          (d) No Event of Default or
Default has occurred and is continuing under the Loan
Agreement on the date of the execution and delivery of this
Second Amendment and after giving effect hereto.




     4. Conditions to Effectiveness. This Second Amendment shall become effective only
upon the satisfaction or waiver of all of the following conditions precedent:



          (a) The parties hereto shall
have duly executed and delivered this Second Amendment.




          (b) The Lender shall have
received the certificate of the Secretary of Borrower dated
as of the Effective Date, certifying (i) that attached
thereto are true and complete copies of the resolutions of
the board of managers of Borrower authorizing the execution,
delivery and performance by Borrower of this Second Amendment
and borrowing under the Loan Agreement as amended hereby,
(ii) that said resolutions are all of the resolutions adopted
by the board of managers of Borrower in connection with the
transactions contemplated hereby and are in full force and
effect without modification as of such date, (iii) that
Borrower’s Operating Agreement either is attached to such
certificate, or to the extent not attached has not been
amended since the Closing Date, (iv) that Borrower’s
Certificate of Formation either is attached to such
certificate or to the extent not attached has not been
amended since the Closing Date, and (v) as to the incumbency
and signatures of each of its officers executing this
Second Amendment and any other documents to which it is a
party.




          (c) The Lender shall have
received from Borrower the fees and expense payments or
reimbursements referred to in Section 5 hereof or otherwise
payable by Borrower in connection with this Second Amendment
and the events described herein.




          (d) Lender shall have received
such other documents, certificates and opinions as the Lender
may reasonably request.




     5. Fees and Expenses. Borrower agrees to pay or reimburse the Lender, in accordance
with Section 8.24 of the Loan Agreement (as amended hereby) for its reasonable out-of-pocket costs
and expenses, including, without limitation, the reasonable fees and disbursements of counsel to
the Lender including, without limitation, counsel at Dechert LLP, incurred by the Lender in
connection with the preparation, reproduction, execution and delivery of this Second Amendment and
any other instruments and documents to be delivered hereunder including, without limitations, costs
relating to title endorsements.



3









 





     6. Reference to and Effect on the Loan Documents.



          (a) On and after the date
hereof, (i) all references in the Loan Agreement to “this
Agreement”, “hereof”, “herein”, or similar terms, (ii) all
references to the Loan Agreement in each agreement,
instrument and other document executed or delivered in
connection with the Loan Agreement and (iii) all references
to the Loan Agreement and all other Loan Documents, shall
mean and refer to the Loan Agreement as amended by this
Second Amendment.




          (b) Except as specifically
amended hereby, the Loan Agreement and all other Loan
Documents shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.




          (c) The execution, delivery and
effectiveness of this Second Amendment shall not, operate as
a waiver of any right, power or remedy of the Lender under
any Loan Document, nor constitute a waiver of any provision
of any Loan Document.




     7. Counterparts. This Second Amendment may be signed in any number of counterparts,
each of which shall be an original and all of which taken together
shall constitute a single instrument with the same effect as if the signatures thereto and
hereto were upon the same instrument.



     8. Governing Law. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of New York without regard to the conflict of law principles
thereof (except Section 5-1401 of the General Obligations Law).



     9. Successors. This Second Amendment shall be binding upon the successors and assigns
of the parties hereto.



[REMAINDER OF PAGE INTENTIONALLY BLANK]




4









 








     IN WITNESS WHEREOF, the parties have caused this Second Amendment to be duly executed and delivered
by their proper and duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	 	MERRILL LYNCH MORTGAGE LENDING, INC., as Lender
	 
	 	 	 	 
	 

	 	By:
	 	/S/ ROBERT SPINNA
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	ASHFORD DULLES II LLC, as Borrower
	 
	 	 	 	 
	 

	 	By:
	 	/S/ DAVID A. BROOKS
	 

	 	 	 	 
	 

	 	 	 	Name: David A. Brooks
	 

	 	 	 	Title: Vice President







5