Exhibit 10.1


 


LOAN AGREEMENT


 


Dated as of April 5, 2019


 


Among


 


THE ENTITIES LISTED ON SCHEDULE I-A


collectively, as Borrower


 


and


 


THE ENTITIES LISTED ON SCHEDULE I-B,


collectively, as Operating Lessee


 


and


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Lender


 




    	 	 	 



     


    

  


TABLE OF CONTENTS


 


	 	 	Page
	 	 	 
	ARTICLE 1 DEFINITIONS; PRINCIPLES OF CONSTRUCTION	1
	Section 1.1	Specific Definitions	1
	Section 1.2	Index of Other Definitions	35
	Section 1.3	Principles of Construction	38
	 	 	 
	ARTICLE 2 THE LOAN	38
	Section 2.1	The Loan	38
	2.1.1	Agreement to Lend and Borrow	38
	2.1.2	Intentionally Omitted	38
	2.1.3	Single Disbursement to Borrower	38
	2.1.4	The Note	38
	2.1.5	Use of Proceeds	38
	Section 2.2	Interest Rate	39
	2.2.1	Applicable Interest Rate	39
	2.2.2	Default Rate	39
	2.2.3	Interest Calculation	39
	2.2.4	Conversion of Applicable Interest Rate	39
	2.2.5	Usury Savings	43
	Section 2.3	Loan Payments	43
	2.3.1	Payments	43
	2.3.2	Payments Generally	43
	2.3.3	Payment on Maturity Date	44
	2.3.4	Late Payment Charge	44
	2.3.5	Method and Place of Payment	44
	Section 2.4	Prepayments	44
	2.4.1	Prepayments	44
	2.4.2	Voluntary Prepayments	44
	2.4.3	Intentionally Omitted	45
	2.4.4	Mandatory Prepayments; Option to Prepay Balance	45
	2.4.5	Prepayments After Default	45
	2.4.6	Prepayment/Repayment Conditions	46
	Section 2.5	Release of Properties	47
	Section 2.6	Interest Rate Cap Agreement	47
	2.6.1	Interest Rate Cap Agreement	47
	2.6.2	Pledge and Collateral Assignment of Interest Rate Cap Agreement	47
	2.6.3	Covenants	47
	2.6.4	Substitute Interest Rate Protection Agreement.	49
	2.6.5	Representations and Warranties	49
	2.6.6	[Reserved]	50
	2.6.7	Remedies	50
	2.6.8	Sales of Rate Cap Collateral	52
	2.6.9	Public Sales Not Possible	53
	2.6.10	Receipt of Sale Proceeds	53


 




    	 	 	 



     


    

  


	2.6.11	Replacement Interest Rate Cap Agreement	53
	Section 2.7	Extension Options	53
	2.7.1	Extension Options	53
	2.7.2	Intentionally Omitted	55
	Section 2.8	Regulatory Change; Taxes	55
	2.8.1	Increased Costs	55
	2.8.2	Special Taxes	56
	2.8.3	Other Taxes	56
	2.8.4	Tax Refund	56
	2.8.5	Change of Office	57
	Section 2.9	Letters of Credit	57
	 	 	 
	ARTICLE 3 REPRESENTATIONS AND WARRANTIES	58
	Section 3.1	Borrower Representations	58
	3.1.1	Organization; Special Purpose	58
	3.1.2	Proceedings; Enforceability	58
	3.1.3	No Conflicts	59
	3.1.4	Litigation	59
	3.1.5	Agreements	59
	3.1.6	Consents	59
	3.1.7	Property; Title	59
	3.1.8	ERISA; No Plan Assets	60
	3.1.9	Compliance	61
	3.1.10	Financial Information	61
	3.1.11	Utilities and Public Access	62
	3.1.12	Assignment of Leases	62
	3.1.13	Insurance	62
	3.1.14	Flood Zone	62
	3.1.15	Physical Condition	62
	3.1.16	Boundaries	63
	3.1.17	Leases	63
	3.1.18	Tax Filings	64
	3.1.19	No Fraudulent Transfer	64
	3.1.20	Federal Reserve Regulations	64
	3.1.21	Organizational Chart	65
	3.1.22	Organizational Status	65
	3.1.23	[Reserved]	65
	3.1.24	No Casualty	65
	3.1.25	Purchase Options	65
	3.1.26	FIRPTA	65
	3.1.27	Investment Company Act	65
	3.1.28	Fiscal Year	65
	3.1.29	Other Debt	65
	3.1.30	Contracts	65
	3.1.31	Full and Accurate Disclosure	66
	3.1.32	Other Obligations and Liabilities	66
	3.1.33	Intellectual Property/Websites	66


 




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	3.1.34	Intentionally Omitted	66
	3.1.35	Operations Agreement	66
	3.1.36	Franchise Agreements	67
	3.1.37	Illegal Activity	67
	3.1.38	Property Improvement Plan	67
	3.1.39	Operating Lease.	67
	Section 3.2	Survival of Representations	67
	 	 	 
	ARTICLE 4 BORROWER COVENANTS	67
	Section 4.1	Payment and Performance of Obligations	67
	Section 4.2	Due on Sale and Encumbrance; Transfers of Interests	68
	Section 4.3	Liens	69
	Section 4.4	Special Purpose	70
	Section 4.5	Existence; Compliance with Legal Requirements	70
	Section 4.6	Taxes and Other Charges; Use and Occupancy Taxes	70
	Section 4.7	Litigation	71
	Section 4.8	Title to the Property	71
	Section 4.9	Financial Reporting	71
	4.9.1	Generally	71
	4.9.2	Quarterly and Monthly Reports	72
	4.9.3	Annual Reports	72
	4.9.4	Other Reports	73
	4.9.5	Annual Budget	74
	4.9.6	Excess Operating Expenses	75
	4.9.7	Hotel Accounting	75
	Section 4.10	Access to Property	75
	Section 4.11	Leases	76
	Section 4.12	Repairs; Maintenance and Compliance; Alterations	77
	4.12.1	Repairs; Maintenance and Compliance	77
	4.12.2	Alterations	78
	Section 4.13	Approval of Major Contracts	79
	Section 4.14	Property Management	79
	4.14.1	Management Agreements	79
	4.14.2	Prohibition Against Termination or Modification	80
	4.14.3	Replacement of Manager	82
	4.14.4	Brand Manager Rights.	82
	Section 4.15	Performance by Borrower; Compliance with Agreements	82
	Section 4.16	Licenses; Intellectual Property; Website	83
	4.16.1	Licenses	83
	4.16.2	Intellectual Property	83
	4.16.3	Website	83
	Section 4.17	Further Assurances	83
	Section 4.18	Estoppel Statement	84
	Section 4.19	Notice of Default	84
	Section 4.20	Cooperate in Legal Proceedings	84
	Section 4.21	Indebtedness	85
	Section 4.22	Business and Operations	85


 




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	Section 4.23	Dissolution	85
	Section 4.24	Debt Cancellation	85
	Section 4.25	Affiliate Transactions	85
	Section 4.26	No Joint Assessment	85
	Section 4.27	Principal Place of Business	86
	Section 4.28	Change of Name, Identity or Structure	86
	Section 4.29	Costs and Expenses	86
	Section 4.30	Indemnity	87
	Section 4.31	ERISA	88
	Section 4.32	Patriot Act Compliance	89
	Section 4.33	Intentionally Omitted	90
	Section 4.34	Hotel Covenants	90
	Section 4.35	Bankruptcy Related Covenants	92
	Section 4.36	Deposits	92
	 	 	 
	ARTICLE 5 INSURANCE, CASUALTY AND CONDEMNATION	93
	Section 5.1	Insurance	93
	5.1.1	Insurance Policies	93
	5.1.2	Insurance Company	98
	Section 5.2	Casualty	99
	Section 5.3	Condemnation	99
	Section 5.4	Restoration	100
	 	 	 
	ARTICLE 6 CASH MANAGEMENT AND RESERVE FUNDS	105
	Section 6.1	Cash Management Arrangements	105
	Section 6.2	Intentionally Omitted	106
	Section 6.3	Tax Funds	106
	6.3.1	Deposits of Tax Funds	106
	6.3.2	Release of Tax Funds	107
	Section 6.4	Insurance Funds	107
	6.4.1	Deposits of Insurance Funds	107
	6.4.2	Release of Insurance Funds	108
	Section 6.5	Scheduled PIP Reserve Funds	108
	6.5.1	Deposits of Scheduled PIP Reserve Funds	108
	6.5.2	Release of Scheduled PIP Reserve Funds	108
	Section 6.6	Intentionally Omitted	109
	Section 6.7	Intentionally Omitted	109
	Section 6.8	FF&E Reserve Funds	109
	6.8.1	Deposits of FF&E Reserve Funds	109
	6.8.2	Release of FF&E Reserve Funds	109
	Section 6.9	Casualty and Condemnation Account	110
	Section 6.10	Cash Collateral Funds	110
	Section 6.11	Property Cash Flow Allocation	111
	6.11.1	Order of Priority of Funds in Deposit Account	111
	6.11.2	Failure to Make Payments	113
	6.11.3	Application After Event of Default	113
	6.11.4	Mezzanine Lender Monthly Debt Service Notice	113


 




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	Section 6.12	Security Interest in Reserve Funds	113
	Section 6.13	Account Activation Notices	114
	Section 6.14	Appointment of Account Representative	114
	 	 	 
	ARTICLE 7 PERMITTED TRANSFERS	115
	Section 7.1	Loan Assumption	115
	Section 7.2	Permitted Transfers	124
	Section 7.3	Cost and Expenses; Copies	130
	 	 	 
	ARTICLE 8 DEFAULTS	130
	Section 8.1	Events of Default	130
	Section 8.2	Remedies	134
	8.2.1	Acceleration	134
	8.2.2	Suspension of Lender’s Performance	134
	8.2.3	Remedies Cumulative	135
	8.2.4	Severance	135
	8.2.5	Lender’s Right to Perform	136
	 	 	 
	ARTICLE 9 SALE AND SECURITIZATION OF MORTGAGE	136
	Section 9.1	Sale of Mortgage and Securitization	136
	Section 9.2	Securitization Indemnification	140
	Section 9.3	Severance	144
	9.3.1	Severance Documentation	144
	9.3.2	New Mezzanine Loan Option	144
	9.3.3	Cooperation; Execution; Delivery	145
	9.3.4	Uncross of Properties	146
	Section 9.4	Costs and Expenses	146
	Section 9.5	Confidentiality.	147
	Section 9.6	Compliance with Required Loan Restructurings	147
	 	 	 
	ARTICLE 10 MISCELLANEOUS	148
	Section 10.1	Exculpation	148
	Section 10.2	Survival; Successors and Assigns	150
	Section 10.3	Lender’s Discretion; Rating Agency Review Waiver	151
	Section 10.4	Governing Law	151
	Section 10.5	Modification, Waiver in Writing	153
	Section 10.6	Notices	153
	Section 10.7	Waiver of Trial by Jury	154
	Section 10.8	Headings, Schedules and Exhibits	154
	Section 10.9	Severability	154
	Section 10.10	Preferences	154
	Section 10.11	Waiver of Notice	155
	Section 10.12	Deemed Distributions	155
	Section 10.13	Offsets, Counterclaims and Defenses	155
	Section 10.14	No Joint Venture or Partnership; No Third Party Beneficiaries	155
	Section 10.15	Publicity	156
	Section 10.16	Waiver of Marshalling of Assets	156


 




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	Section 10.17	Certain Waivers	156
	Section 10.18	Conflict; Construction of Documents; Reliance	157
	Section 10.19	Brokers and Financial Advisors	157
	Section 10.20	Prior Agreements	157
	Section 10.21	Servicer	157
	Section 10.22	Intentionally Omitted	158
	Section 10.23	Joint and Several Liability	158
	10.23.1	Cross Guaranty	159
	Section 10.24	Creation of Security Interest	160
	Section 10.25	Assignments and Participations	161
	Section 10.26	Counterparts	161
	Section 10.27	Set-Off	161
	Section 10.28	[Reserved]	161
	Section 10.29	Intercreditor Agreement	161
	Section 10.30	Note Register; Participant Register	162
	Section 10.31	Borrower Affiliate Lender.	163
	Section 10.32	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	163
	Section 10.33	Intentionally Omitted.	164
	Section 10.34	Patriot Act Notice.	164


 




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SCHEDULES AND EXHIBITS


 


Schedules:


 


	Schedule I-A	-	Borrower
	Schedule I-B	-	Operating Lessee
	Schedule I	-	Individual Properties and Allocated Loan Amounts
	Schedule I	-	Mezzanine Allocated Loan Amounts
	Schedule II	-	Intentionally Omitted
	Schedule III	-	Organizational Chart of Borrower and Tax ID Numbers
	Schedule IV	-	Exceptions to Representations and Warranties
	Schedule V	-	Definition of Special Purpose Bankruptcy Remote Entity
	Schedule VI	-	Intellectual Property/Websites
	Schedule VII	-	REAs
	Schedule VIII	-	Intentionally Omitted
	Schedule IX	-	Description of Prior Loans
	Schedule X	-	Scheduled Managers
	Schedule XI	-	Rent Roll
	Schedule XII	-	Franchise Agreements
	Schedule XIII	-	Property Accounts
	Schedule XIV	-	Intentionally Omitted
	Schedule XV	-	List of Closing Date Managers
	Schedule XVI	-	Intentionally Omitted
	Schedule XVII	-	Operating Leases
	Schedule XVIII	-	Scheduled PIP
	Schedule XIX	-	Intentionally Omitted
	Schedule XX	-	Major Contracts
	Schedule XXI	-	Intentionally Omitted


 


Exhibits:


 


	Exhibit A	-	Form of Tenant Instructions
	Exhibit B	-	Secondary Market Transaction Information
	Exhibit C	-	Form of Assignment of Interest Rate Cap Agreement


 




    	 	-viii-	 



     


    

  


LOAN AGREEMENT


 


THIS LOAN AGREEMENT,
dated as of April 5, 2019 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”),
among DEUTSCHE BANK AG, NEW YORK BRANCH, a branch of Deutsche Bank AG, a German Bank authorized by the New York Department
of Financial Services, having an address at 60 Wall Street, 10th Floor, New York, New York 10005 (together with its successors
and/or assigns, collectively, “Lender”), THE ENTITIES LISTED ON SCHEDULE I-A, each a Delaware
limited liability company (together with each of their respective permitted successors and assigns, collectively, “Borrower”
and each sometimes referred to herein individually as an “Individual Borrower”) and THE ENTITIES LISTED
ON SCHEDULE I-B, each a Delaware limited liability company (together with each of their respective permitted successors
and assigns, “Operating Lessee”).


 


All capitalized terms used
herein shall have the respective meanings set forth in Article 1 hereof.


 


WITNESSETH:


 


WHEREAS, Borrower desires
to obtain the Loan from Lender; and


 


WHEREAS, Lender is willing
to make the Loan to Borrower, subject to and in accordance with the terms and conditions of this Agreement and the other Loan Documents.


 


NOW, THEREFORE, in consideration
of the foregoing recitals, the making of the Loan by Lender, the covenants, agreements, representations and warranties set forth
in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree, represent and warrant as follows:


 


ARTICLE
1


 


DEFINITIONS;
PRINCIPLES OF CONSTRUCTION


 


Section 1.1          Specific
Definitions. For all purposes of this Agreement, except as otherwise expressly provided:


 


“Acceptable
Accounting Method” shall mean (i) GAAP, (ii) a federal income tax basis of accounting, (iii) the Uniform System of
Accounts, or (iv) such other accounting basis reasonably acceptable to Lender, in each case consistently applied.


 


“Acknowledgment”
shall mean the Acknowledgment, dated on or about the date hereof made by Counterparty, or as applicable, Approved Counterparty.


 


“Additional
Insolvency Opinion” shall mean any bankruptcy non-consolidation opinion that would be satisfactory to a prudent lender
acting reasonably and is required to be delivered subsequent to the Closing Date pursuant to, and in connection with, the Loan
Documents.


 




    	 	 	 



     


    

 


“Adjusted Operating
Income” shall mean for any period, total aggregate Operating Income for such period less the amount of Hotel Taxes
included in Operating Income for such period.


 


“Advance Deposits”
shall mean all deposits, advance payments and similar items for commitments, reservations and agreements (“Advance
Booking Agreements”) regarding the future use of guest rooms, banquet rooms, conference rooms and other facilities
constituting part of an Individual Property.


 


“Affiliate”
shall mean, as to any Person, any other Person that either (or both) (a) is in Control of, is Controlled by or is under common
ownership or Control with such Person or is a director or officer of such Person or of an Affiliate of such Person, and/or (b)
owns directly or indirectly thirty-five percent (35%) or more of the equity interests in such Person.


 


“Allocated
Loan Amount” shall mean, for each Individual Property, the amount set forth on Schedule I attached
hereto.


 


“ALTA”
shall mean American Land Title Association, or any successor thereto.


 


“Alteration
Threshold” shall mean (a) with respect to any Individual Property undergoing an alteration and/or a Restoration and/or
subject to Flagging Costs, an amount equal to five percent (5%) of the Allocated Loan Amount, and (b) with respect to all Individual
Properties undergoing alterations and/or Restorations, an aggregate amount equal to five percent (5%) of the Outstanding Principal
Balance, in each case excepting alterations made pursuant to an Approved Annual Budget, Approved Alterations or as otherwise reasonably
approved by the Lender.


 


“Annual Budget”
shall mean the operating and capital budget for the Properties, setting forth, on a month-by-month basis, in reasonable detail,
each line item of Borrower’s good faith estimate of anticipated Operating Income, Operating Expenses and Capital Expenditures
for the Properties for the applicable Fiscal Year.


 


“Annual Debt
Service” shall mean, as of any date of determination, the Debt Service payable during the one-year period occurring
from and after such date of determination calculated by assuming that (a) the Outstanding Principal Balance at all times during
such period is equal to the Outstanding Principal Balance as of the date of determination (taking into account any prepayments
that occur on such date in accordance with this Agreement) and (b) LIBOR (or the Prime Rate or the Substitute Base Rate, as applicable)
at all times during such period is equal to either (i) in connection with Borrower’s exercise of an Extension Option hereunder,
the Strike Price of the proposed Replacement Interest Rate Cap Agreement (or the Substitute Interest Rate Protection Agreement,
as applicable) to be entered into by Borrower in connection with its exercise of such Extension Option or (ii) otherwise, the Strike
Price of the Interest Rate Cap Agreement in place as of such date of determination.


 


“Applicable
Interest Rate” shall mean a rate per annum equal to, as applicable, (a) the LIBOR Interest Rate plus the Spread with
respect to any period when the Loan is a LIBOR Loan, (b) the Substitute Base Rate plus the Substitute Rate Spread with respect
to any period when the Loan is a Substitute Rate Loan and (c) the Prime Rate plus the Base Rate Spread with respect to any period
when the Loan is a Base Rate Loan.


 




    	 	-2-	 



     


    

  


“Applicable
Interest Rate Conversion” shall mean the conversion of the Applicable Interest Rate between the LIBOR Interest Rate,
the Base Rate and/or the Substitute Rate, as applicable.


 


“Applicable
Lending Office” shall mean the “lending office” of Lender (or of an Affiliate of Lender) designated for
Lender on the signature page hereof or such other office of Lender (or an Affiliate of Lender) as Lender may from time to time
specify to Borrower in writing as the office by which the Loan is to be made and/or maintained by Lender.


 


“Approved Alterations”
shall have the meaning set forth in the definition of “Material Alterations”.


 


“Approved Bank”
shall mean a bank or other financial institution, the long-term unsecured debt rating of which are at least “A” by
S&P and Fitch and “A2” by Moody’s and the short-term unsecured debt ratings of which are at least “A-1”
by S&P, “F1” by Fitch and “P-1” by Moody’s.


 


“Approved Capital
Expenditures” shall mean Capital Expenditures incurred by Borrower and either (i) included in the Approved Annual
Budget or (ii) approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed, provided that any
Capital Expenditures included in FF&E Expenses or PIP Expenses shall not constitute Approved Capital Expenditures.


 


“Approved Counterparty”
shall mean a bank or other financial institution which either (I) has (or provides a guarantor of its obligations that has) (a)
long-term unsecured debt rating of “A-” or higher by S&P or such lower rating which S&P shall acknowledge is
credit neutral with respect to the Securitization of the Loan or any portion thereof, and (b) a long-term unsecured debt rating
of not less than “A3” by Moody’s or such lower rating which Moody’s shall acknowledge is credit neutral
with respect to the Securitization of the Loan or any portion thereof; or (II) is otherwise acceptable to the Rating Agencies,
as evidenced by a Rating Agency Confirmation to the effect that such counterparty shall not cause a downgrade withdrawal or qualification
of the ratings assigned, or to be assigned, to the Securities or any class thereof in any Securitization; provided however,
that SMBC Capital Markets, Inc. (with an Acceptable SMBC Credit Support Party as its credit support party) will be an Acceptable
Counterparty so long as the rating of its credit support party (provided such credit support party shall be an Acceptable SMBC
Credit Support Party ) is not downgraded, withdrawn or qualified by S&P or Moody’s or Fitch (if applicable) from the
long and short term ratings issued by such rating agencies below the lesser of the above rating (as applicable) or its ratings
as of the date hereof. As used herein, an “Acceptable SMBC Credit Support Party” shall mean (i) Sumitomo
Mitsui Banking Corporation or a replacement guarantor that meets the foregoing rating requirements and provides a guaranty on substantially
the same form as the guaranty provided by Sumitomo Mitsui Banking Corporation on the Closing Date and (ii) provided any such credit
support party guaranty guaranties all current and future obligations under the Interest Rate Cap Agreement or Replacement Interest
Rate Cap Agreement, as applicable.


 


“Approved FF&E
Expenses” shall mean FF&E Expenses incurred by Borrower and either (a) included in the Approved Annual Budget
or (b) approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed; provided that any FF&E
Expenses included in Approved Scheduled PIP Expenses shall not constitute Approved FF&E Expenses.


 




    	 	-3-	 



     


    

 


“Approved Flagging
Budget” shall mean a budget of Flagging Costs for any Individual Property under any Franchise Agreement which has
been approved or deemed approved by Lender, or for which approval is not required, in accordance with Section 4.34(e).


 


“Approved Operating
Expenses” shall mean Operating Expenses incurred by Borrower or by any Manager on Borrower’s behalf (excluding
any Restricted Payments) which (i) are included in the Approved Annual Budget for the current calendar month, (ii) are for real
estate taxes, insurance premiums, electric, gas, oil, water, sewer or other utility service to the Properties, (iii) are for Management
Fees, or (iv) have been approved in writing by Lender as Approved Operating Expenses; provided, however, that Approved Operating
Expenses shall also include, for any calendar month in which Operating Expenses exceed the Monthly Operating Expense Budgeted Amount,
the amount of such excess Operating Expenses up to and not to exceed ten percent (10%) of the Monthly Operating Expense Budgeted
Amount for such calendar month as to which Borrower provides to Lender a reasonably detailed explanation of the reasons for and
expenditures resulting in Operating Expenses exceeding the Monthly Operating Expense Amount.


 


“Approved Scheduled
PIP Expenses” shall mean PIP Expenses incurred by Borrower for Flagging Costs that are permitted hereunder.


 


“Assignment
of Agreements” shall mean that certain Assignment of Agreements, Licenses, Permits and Contracts, dated as of the
date hereof, from Borrower and Operating Lessee, collectively, as assignor, to Lender, as assignee, as the same may be amended,
restated, replaced, extended, renewed, supplemented or otherwise modified from time to time.


 


“Assignment
of Interest Rate Cap Agreement” shall mean that certain Collateral Assignment of Interest Rate Cap Agreement in the
form attached hereto as Exhibit C from Borrower, as assignor, to Lender, as assignee, as the same may be amended, restated,
extended, renewed, supplemented or otherwise modified from time to time.


 


“Assignment
of Leases” shall mean, collectively, those certain first priority Assignments of Leases, Rents and Hotel Revenues
dated as of the date hereof, from Borrower and Operating Lessee, collectively, as assignor, to Lender, as assignee, as the same
may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from time to time.


 


“Assignment
of Management Agreement” shall mean, collectively, those certain Assignments of Management Agreement and Subordination
of Management Fees dated as of the date hereof among Borrower, Operating Lessee, the applicable Manager and Lender, as the same
may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from time to time.


 


“Assumption”
shall mean a Permitted Direct Assumption or a Permitted Indirect Assumption.


 


“Assumption
Fee” shall mean Borrower’s Allocation of (i) with respect to the first (1st) Assumption, an assumption
fee equal to (a) $125,000 if no material modifications to the Loan Documents are required in connection with the Assumption or
(b) $175,000 if material modifications to the Loan Documents are required in connection with the Assumption and (ii) with respect
to each Assumption thereafter, an assumption fee equal to (a) $250,000 if no material modifications to the Loan Documents are required
in connection with the Assumption or (b) $350,000 if material modifications to the Loan Documents are required in connection with
the Assumption.


 




    	 	-4-	 



     


    

 


“Award”
shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect to all or any part
of any Individual Property.


 


“Bankruptcy
Code” shall mean Title 11 of the United States Code entitled “Bankruptcy”, as amended from time
to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, or any other
federal or state bankruptcy or insolvency law, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’
rights.


 


“Base Management
Fees” shall mean the base property management fees (i.e. based on a fixed percentage of revenues and not on the basis
of any override or profit participation) for property management (as opposed to asset management) services provided to the Individual
Properties and actually payable to Manager under the Management Agreements, but such fees, for any Manager, shall not, exceed three
percent (3.0%) of the monthly Operating Income for the Individual Properties managed by such Manager and all such fees payable
to all Managers in the aggregate shall not exceed three percent (3.0%) of the monthly Operating Income for the Properties.


 


“Base Rate”
shall mean, with respect to each Interest Period that occurs while the Loan is a Base Rate Loan, a per annum interest rate equal
to (a) the Prime Rate as of the related Interest Determination Date plus (b) the Base Rate Spread; provided, however, in no event
shall the Base Rate be less than the Index Floor plus the Spread.


 


“Base Rate
Loan” shall mean the Loan at any time in which the Applicable Interest Rate is calculated at the Base Rate.


 


“Base Rate
Spread” shall mean, in connection with the conversion of the Loan from a LIBOR Loan or a Substitute Rate Loan to
a Base Rate Loan, the difference (expressed as the number of basis points) between (a) LIBOR plus the Spread or the Substitute
Base Rate plus the Substitute Rate Spread, as applicable as of the Interest Determination Date that LIBOR or the Substitute Base
Rate, as applicable, was last utilized to determine the interest rate of the Loan minus (b) the Prime Rate as of such Interest
Determination Date; provided, however, that if such difference is a negative number, then the Base Rate Spread shall be zero. If
the Loan is a Base Rate Loan immediately prior to the commencement of the Third Extended Term, the Base Rate Spread shall be increased
by twenty-five basis points (0.25%) from and after the first day of the Third Extended Term, in accordance with Section 2.7.1(e)
hereof, without duplication of any increase with respect to the Spread or the Substitute Rate Spread.


 


“Borrower”
shall have the meaning set forth in the introductory paragraph hereto, together with their respective successors and permitted
assigns.


 


“Borrower Accounts”
shall mean collectively the Property Accounts, the Clearing Accounts and the Disbursement Accounts.


 




    	 	-5-	 



     


    

 


“Borrower’s
Allocation” shall mean a fraction, expressed as a percentage, the numerator of which is the outstanding principal
balance of the Loan and the denominator of which is the aggregate principal balance of the Loan, the Mezzanine Loan and any New
Mezzanine Loan.


 


“Brand Manager”
shall mean collectively, Marriott International Inc. or any Affiliate of Marriott International, Inc.


 


“Business Day”
shall mean any day other than a Saturday, a Sunday or a legal holiday on which national banks are not open for general business
in (i) the State of New York, (ii) the State where the corporate trust office of the Trustee is located or (iii) the State where
the servicing offices of the Servicer are located.


 


“Calculation
Date” shall mean the last day of each calendar quarter during the Term.


 


“Capital Expenditures”
shall mean, for any period, the amount incurred for items capitalized under GAAP and the Uniform System of Accounts (including
expenditures for building improvements or major repairs).


 


“Capped LIBOR
Rate” shall mean (i) during the initial term of the Loan, (A) for such time the Loan is a LIBOR Loan, four percent
(4.00%), (B) for such time the Loan is a Base Rate Loan, a strike rate determined as of the date of purchase of the Substitute
Interest Rate Protection Agreement which is expressed as a percentage equal to the difference between (1) the strike rate set forth
in clause (A) immediately preceding minus (2) the positive or negative difference of (x) the weighted average of the
Base Rate Spread minus (y) the weighted average of the Spread (for the avoidance of doubt, it being agreed by the parties that
if this clause (2) results in a negative number, such amount is added to the strike rate, and if this clause (2)
results in a positive number, such amount is subtracted from the strike rate), (C) for such time the Loan is a Substitute Rate
Loan, a strike rate determined as of the date of purchase of the Interest Rate Cap Agreement which is expressed as a percentage
equal to the difference between (1) the strike rate set forth in clause (A) minus (2) the positive or negative difference
of (x) the weighted average of the Substitute Rate Spread minus (y) the weighted average of the Spread (for the avoidance of doubt,
it being agreed by the parties that if this clause (2) results in a negative number, such amount is added to the strike
rate, and if this clause (2) results in a positive number, such amount is subtracted from the strike rate), and (ii)
during each Extended Term, the strike price such that the Debt Service Coverage Ratio as of the first day of such Extended Term
is not less than 1.25x.


 


“Cash Management
Agreement” shall mean that certain Cash Management Agreement of even date herewith among Lender, Borrower, Operating
Lessee, HIT 2PK TRS Mezz, LLC, a Delaware limited liability company, Mezzanine Borrower, Mezzanine Lender and Wells Fargo Bank,
National Association, as the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from
time to time.


 




    	 	-6-	 



     


    

 


“Change in
Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority, (c) adjustments to the Regulation D reserve
requirements (including, without limitation, all basic, marginal, emergency, supplemental, special or other reserves and taking
into account any transitional adjustments or other scheduled changes in reserve requirements) announced by the Federal Reserve
Board of Governors, or (d) the making or issuance of any request, rule, guideline or directive (whether or not having the force
of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,
in each case pursuant to Basel III, shall in the case of both clauses (i) and (ii) be deemed to be a “Change
in Law”, regardless of the date enacted, adopted or issued (regardless of whether currently in force and effect).


 


“Change of
Control Flagging Costs” shall mean the PIP Expenses for any PIP Work at an Individual Property required in connection
with an Assumption or other change of Control of Borrower, whether for the applicable Franchisor’s consent of such transaction,
the renewal or extension of the Franchise Agreement for such Individual Property or the entering into of a new or replacement Franchise
Agreement for such Individual Property, together with any other costs and expenses of flagging, reflagging, renewal, extension,
renovation and otherwise qualifying and positioning such Individual Property, pursuant to the agreement required to obtain such
Franchisor’s consent or to obtain a new Franchisor.


 


“Clearing Accounts”
shall mean the Eligible Accounts maintained at the Clearing Account Bank by the Individual Borrowers or Operating Lessees in the
name of the Account Representative for the benefit of Lender. There shall be one Clearing Account or subaccount of a Clearing Account
for each Property.


 


“Clearing Account
Agreements” shall mean those certain Clearing Account Control Agreements, each dated of even date herewith by and
among the applicable Individual Borrower(s), Operating Lessee, Lender and Clearing Account Bank for each applicable Individual
Property or Individual Properties, as the case may be, in effect from time to time in accordance with the terms and conditions
of the Loan Documents and as the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified
from time to time.


 


“Clearing Account
Bank” means Wells Fargo Bank, N.A., or such successor bank selected by Borrower provided such replacement bank shall
be an Eligible Institution approved by Lender that, prior to succeeding as a Clearing Account Bank, enters into, with the related
Manager or Managers, the respective Individual Borrowers and Lender, a Clearing Account Agreement approved by Lender, such approval
in each case not to be unreasonably withheld, conditioned or delayed.


 


“Closing Date”
shall mean April 5, 2019.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes
thereto, U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form, and other guidance published
by the Internal Revenue Service on which taxpayers may rely.


 


“Condemnation”
shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise
of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right
accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.


 




    	 	-7-	 



     


    

 


“Connection
Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or
that are franchise Special Taxes or branch profits Special Taxes.


 


“Contribution
Agreement” shall mean that certain Contribution Agreement dated as of the date hereof by and among each of the Individual
Borrowers and Lender, as the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified from
time to time.


 


“Control”
shall mean, with respect to any Person, 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, and the terms
Controlled, Controlling and Common Control shall have correlative meanings.


 


“Control Party
Asset Threshold” shall mean the ownership of total real estate assets in the United States or Canada (in name or
under management) in excess of $600,000,000 and a capital/statutory surplus or shareholder equity in excess of $250,000,000.


 


“Conversion
Date” shall mean the effective date of the Applicable Interest Rate Conversion.


 


“Conversion
Notice” shall mean a notice given by Lender to Borrower in accordance with Section 10.6 hereof notifying
the Borrower of the occurrence of an event triggering an Applicable Interest Rate Conversion and which notice:


 


(i)           sets
forth the circumstances of the Applicable Interest Rate Conversion in reasonable detail; and


 


(ii)          includes
the requirements required to be satisfied in connection with such Applicable Interest Rate Conversion as described in Section 2.2.4
hereof.


 


“Counterparty”
shall mean, with respect to the Interest Rate Cap Agreement and any Replacement Interest Rate Cap Agreement, any Approved Counterparty
thereunder.


 


“Debt”
shall mean the Outstanding Principal Balance together with all interest accrued and unpaid thereon and all other sums (including
any Spread Maintenance Premium, if applicable) due to Lender from time to time in respect of the Loan under the Note, this Agreement,
the Mortgage, the Environmental Indemnity or any other Loan Document.


 


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


 


“Debt Service
Coverage Ratio” shall mean, as of any date of determination, a ratio in which:


 


(a)          the
numerator is the Underwritten Net Cash Flow as of such date of determination; and


 




    	 	-8-	 



     


    

 


(b)          the
denominator is the sum, as of such date of determination, of the Annual Debt Service plus the Mezzanine Annual Debt Service.


 


“Debt Yield”
shall mean, as of any date of determination, a fraction, expressed as a percentage (i.e. 0.10 = 10%), which is obtained by dividing:


 


(a)          the
Underwritten Net Cash Flow as of such date of determination; by


 


(b)          the
Outstanding Principal Balance plus the Outstanding Mezzanine Principal Balance.


 


“Debt Yield
Cure Level” shall mean a Debt Yield of (i) during the Initial Open Period, ten percent (10.0%) and (ii) following
the Initial Open Period, ten and one-half percent (10.50%).


 


“Debt Yield
Trigger Level” shall mean a Debt Yield of (i) during the Initial Open Period, ten percent (10.0%) and (ii) following
the Initial Open Period, ten and one-half percent (10.50%).


 


“Default”
shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage
of time, or both, would constitute an Event of Default.


 


“Default Rate”
shall mean a rate per annum equal to the lesser of (i) the Maximum Legal Rate or (ii) three percent (3%) above the Applicable Interest
Rate.


 


“Deposit Account”
shall mean an Eligible Account at the Deposit Bank.


 


“Deposit Bank”
shall mean the bank or banks selected by Lender to maintain the Deposit Account. Lender may in its reasonable discretion change
the Deposit Bank from time to time.


 


“Disbursement
Accounts” shall mean one or more Eligible Accounts maintained at the Disbursement Account Bank by one or more Individual
Borrowers, for the benefit of Lender, which each applicable Manager shall have access to pursuant to Section 6.1 below.


 


“Disbursement
Account Bank” shall mean the bank or banks at which the Disbursement Accounts are established from time to time,
or any such successor bank selected by Borrower provided such replacement bank shall be an Eligible Institution approved by Lender,
such approval not to be unreasonably withheld, conditioned or delayed.


 


“Due and Payable”
shall mean, with respect to Taxes and Other Charges, the date upon which, if the applicable Taxes or Other Charges are not paid,
such Taxes or Other Charges become delinquent or begin accruing fees, charges, penalties and/or interest or the payee thereof becomes
entitled to exercise any right or remedies for non-payment thereof.


 




    	 	-9-	 



     


    

 


“Eligible Account”
shall mean a separate and identifiable account from all other funds held by the holding institution that is either (i) an account
or accounts (or subaccounts thereof) maintained with a federal or state-chartered depository institution or trust company which
complies with the definition of Eligible Institution or (ii) a segregated trust account or accounts (or subaccounts thereof) maintained
with the corporate trust department of a federal depository institution or state chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations §9.10(b), having in either case
corporate trust powers, acting in its fiduciary capacity, and a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal and state authorities and having a long-term unsecured debt rating of “A” or
higher by S&P and “A2” or higher by Moody’s and a short-term unsecured debt rating of “A-1” or
higher by S&P and “P-1” or higher by Moody’s. An Eligible Account will be a “deposit account”
within the meaning of Section 9-102(a)(29) of the Uniform Commercial Code of the State of New York and will not be evidenced
by a certificate of deposit, passbook or other instrument.


 


“Eligible Institution”
shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured
debt obligations or commercial paper of which are rated at least A-1 by S&P, P-1 by Moody’s, and F1+ by Fitch in the
case of accounts in which funds are held for thirty (30) days or less or, in the case of Letters of Credit or accounts in which
funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “A+”
by Fitch and S&P and “Aa3” by Moody’s.


 


“Emergency
Expenses” shall mean any capital, operating or other expenses which the Borrower determines in good faith are necessary
in the case of an emergency at an Individual Property in order to avoid immediate harm to individuals at such Individual Property
or to such Individual Property and of which the Borrower has given Lender one (1) day’s prior notice (or such shorter or
no notice, but subsequent notice to Lender as soon thereafter as reasonably possible, to the extent that one (1) day’s prior
notice would jeopardize such Individual Property or the health, safety or welfare of individuals located thereon or therein), together
with a reasonably detailed description of the Emergency Expenses and the nature of the emergency giving rise thereto.


 


“Enforcement”
shall mean, following the occurrence of (and prior to Lender’s acceptance of a cure of) an Event of Default, the earliest
to occur of (a) the acceleration of the Loan, (b) the initiation of judicial or non-judicial foreclosure proceeding, proceedings
for the appointment of a receiver or any similar remedy and/or (c) the imposition of a stay, an injunction or a similar judicially
imposed device that has the effect of preventing Lender from exercising remedies.


 


“Environmental
Indemnity” shall mean that certain Environmental Indemnity Agreement dated as of the date hereof, executed by Borrower,
Operating Lessee and Guarantors in connection with the Loan, for the benefit of Lender, or any replacement thereof in accordance
with the express terms hereof, as the same may be amended, restated, replaced, extended, renewed, supplemented or otherwise modified
from time to time.


 


“ERISA Affiliate”
shall mean any trade or business (whether or not incorporated) which is a member of the same controlled group of corporations or
group of trades or businesses under common control with Borrower, Operating Lessee or any Guarantor, or is treated as a single
employer together with Borrower, Operating Lessee or any Guarantor under Section 414 of the Code or Title IV of ERISA.


 




    	 	-10-	 



     


    

 


“Excluded Taxes”
shall mean (a) Special Taxes imposed on or measured by net income (however denominated) or net profits (including any branch profits
or franchise taxes) of, or required to be withheld or deducted from any payment to, Lender or any of its Affiliates, divisions
or branches by the jurisdiction (or any political subdivision thereof) (i) as a result of Lender (or Affiliate, divisions or branches
of Lender) being a resident or deemed to be resident, is organized, maintains an office, or carries on business or is deemed to
carry on business to which such payment relates, in the jurisdiction imposing such taxes or (ii) that are Other Connection Taxes;
(b) any U.S. federal or state withholding Special Taxes that are imposed on amounts payable to or for the account of Lender (or
any transferee, successor or assignee thereof, including any Person that is sold or assigned an interest in the Loan pursuant to
Article IX) under the law in effect at the time Lender (or such transferee, successor or assignee) becomes a party
to this Agreement or changes its lending office, (c) any backup withholding taxes; (d) Special Taxes imposed on account of Lender
not providing documentation (including documentation regarding direct or indirect owners) that would have reduced or eliminated
such taxes, provided that such Lender is legally entitled to provide such documentation; (e) Special Taxes imposed on account of
Lender not being eligible for the “portfolio interest exception” in Section 871(h) or 881(c) of the Code, as set
forth in such Sections as of the date of this Agreement (or any successor provision that is substantively comparable), and (f)
any U.S. federal withholding Special Taxes imposed under FATCA.


 


“Experience
Threshold” shall mean the ownership (including indirect ownership) and/or management of hospitality properties containing
at least 7,500 guest rooms (exclusive of the Property) with at least 5 years’ experience in the ownership and/or management
of such properties.


 


“Extended Term”
shall mean the First Extended Term, the Second Extended Term or the Third Extended Term, as applicable.


 


“Extension
Option” shall mean the First Extension Option, the Second Extension Option, or the Third Extension Option, as applicable.


 


“FATCA”
shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations
thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version described
above) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty
or convention among Governmental Authorities and implementing such Sections of the Code.


 


“FF&E”
shall mean all fixtures, furnishings, equipment, furniture, and other items of tangible personal property now or hereafter located
on any Individual Property or used in connection with the use, occupancy, operation and maintenance of all or any part of the Properties,
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, restaurants, 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, current edition), in each case to the extent constituting
the personal property of Borrower.


 




    	 	-11-	 



     


    

 


“FF&E Expense”
for any period shall mean the amount expended for FF&E Work in, at or to the Properties or any Individual Property (including
any installation, delivery or other related cost).


 


“Financial
Covenants” shall refer to the certain financial covenants which shall be included in the Guaranty, and shall require
that Guarantors:


 


(a)          maintain
an aggregate Net Worth (as defined below) (without regard to the Properties or any equity therein) of not less than $50,000,000
(collectively, the “Net Worth Threshold”); and


 


(b)          shall
not, at any time while a default in the payment of the obligations under the Guaranty has occurred and is continuing, either (i)
enter into or effectuate any transaction with any Affiliate of Guarantor that would reduce any Guarantor’s Net Worth below
the Net Worth Threshold (including the payment of any dividend or distribution to a shareholder, or the redemption, retirement,
purchase or other acquisition for consideration of any stock or other ownership interest in such guarantor) or (ii) sell, pledge,
mortgage or otherwise transfer to any Affiliate of Guarantor any of any Guarantor’s assets, or any interest therein that
would reduce any Guarantor’s Net Worth below the Net Worth Threshold.


 


For purposes of the foregoing definition of
Financial Covenants “Net Worth” shall mean, as of a given date, (i) a Person’s total assets as
of such date, including Uncalled Commitments, and for the purposes of determining Net Worth adding accumulated depreciation and
amortization to the value of such assets less (ii) such Person’s total liabilities as of such date, determined in accordance
with GAAP, exclusive of any liability under the Loan Documents, the Mezzanine Loan Documents, and, for avoidance of doubt, treating
the arrangements with Brookfield Strategic Real Estate Partners II Hospitality REIT II LLC and W2007 Equity Inns Senior Mezz, LLC
as equity and not debt.


 


“Fiscal Year”
shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the Term.


 


“Fitch”
shall mean Fitch, Inc.


 


“Franchise
Agreements” shall mean individually or collectively, as the context requires, the existing franchise agreements for
the Individual Properties identified on Schedule XII hereto, and any or all franchise, trademark and license
agreements, or similar agreements between one or more of the Individual Borrowers or Operating Lessee, as applicable, and a hotel
franchisor in effect from time to time during the term of the Loan as the same may be replaced, amended or modified from time to
time in accordance with, and subject to, the terms and provisions of this Agreement. Each or any of the Franchise Agreements may
sometimes be referred to herein, individually, as a “Franchise Agreement”.


 




    	 	-12-	 



     


    

 


“Franchisor”
shall mean individually or collectively, as the context requires, any entity that is a hotel franchisor or licensor pursuant to
any Franchise Agreement affecting any Individual Property.


 


“GAAP”
shall mean generally accepted accounting principles as in effect from time to time and set forth in the Financial Accounting Standards
Board Accounting Standards Codification.


 


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


 


“Grantor Trust”
shall mean a grantor trust under Subpart E of Part 1 of Subchapter J of the Code.


 


“Gross Revenue”
shall mean all revenue derived from the ownership and operation of the Properties from whatever source, including, without duplication,
Hotel Revenue, Rents and any Insurance Proceeds (whether or not Lender elects to treat any such Insurance Proceeds as business
or rental interruption Insurance Proceeds pursuant to Section 5.4(f) hereof).


 


“Guarantors”
shall mean Hospitality Investors Trust Operating Partnership, L.P. (“OP Guarantor”) and Hospitality Investors
Trust, Inc. (“REIT Guarantor”), jointly and severally, and/or any other Person that now or hereafter
guarantees any of Borrower’s obligations under any Loan Document.


 


“Guaranty”
shall mean that certain Guaranty of Recourse Obligations of even date herewith from Guarantors for the benefit of Lender, or any
replacement thereof in accordance with the express terms hereof, as the same may be amended, restated, replaced, extended, renewed,
supplemented or otherwise modified from time to time.


 


“Hotel Revenue”
shall mean all revenues, income, receipts, rents, issues, profits, proceeds, accounts, termination or surrender fees, penalties,
deposits (including Advance Deposits (net of any associated third party fees and expenses)), charges for services rendered and
all other amounts arising from the use or enjoyment of all or any portion of the Properties, including without limitation, all
hotel receipts, revenues and credit card receipts collected from guest rooms, restaurants, bars, and other food and beverage facilities,
meeting rooms, banquet rooms, halls laundry facilities, parking facilities, spas and recreational facilities, 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 property or rendering of
services by Borrower or any operator or manager of the hotel or the commercial space located in the Improvements or acquired from
others (including, without limitation, from the rental of any office space, retail space, guest rooms or other space, halls, stores,
and offices, and deposits securing reservations of such space), all license, lease, sublease and concession fees and rentals, including
of commercial space, retail space, sign space and advertising space, all health club membership fees, greens fees, food and beverage
wholesale and retail sales (including minibar revenues), vending machine sales, and service charges, and Insurance Proceeds, if
any, from business interruption or other loss of income insurance, but only to the extent Lender elects to treat such Insurance
Proceeds as business or rental interruption Insurance Proceeds pursuant to Section 5.4(f) hereof. “Hotel
Revenue” does not include Hotel Taxes.


 




    	 	-13-	 



     


    

 


“Hotel Taxes”
shall mean federal, state and municipal excise, occupancy, sales and use taxes collected by or on behalf of Borrower or any other
Loan Party directly from patrons or guests of the Properties as part of or based on the sales price of any goods, services or other
items, such as gross receipts, room, admission, cabaret or equivalent taxes and required to be paid to a Governmental Authority.


 


“Incentive
Management Fees” shall mean the property management fees paid to a Manager for property management (as opposed to
asset management) services provided to the Individual Properties that are based on an override, profit participation or other form
of incentive for increased revenues or profits generated by such Individual Properties. Incentive Management Fees shall not include
Base Management Fees, reimbursable expenses paid to a Manager, system service charges, accounting fees, development fees, revenue
management fees, sales and marketing fees, information technology fees, human resources fees, risk management fees, administration
fees or other similar fees, expenses or reimbursements, in each case, so long as the same are not calculated based on increases
in revenues or profits generated by such Individual Properties.


 


“Indebtedness”
shall mean, for any Person, without duplication: (i) all indebtedness or liability of such Person for borrowed money (whether or
not evidenced by bonds, debentures, notes or other instruments) or for the deferred purchase price of or payment for goods, property
or services (including trade debt and trade payables) or mezzanine debt (except for the Mezzanine Loan), for which such Person
or its assets are liable, (ii) obligations issued for, or liabilities incurred on account of, such Person, (iii) obligations or
liabilities of such Person arising under or with respect to letters of credit (including without limitation letter of credit facilities
and agreements and for amounts drawn upon letters of credit), credit facilities or other acceptance facilities, (iv) all amounts
required to be paid by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory
redemption of shares or interests, (v) all indebtedness guaranteed by such Person, directly or indirectly, (vi) all obligations
under leases that constitute capital leases for which such Person is liable, (vii) all obligations of such Person under interest
rate swaps, caps, floors, collars and other interest hedge agreements, in each case for which such Person is liable or its assets
are liable, whether such Person (or its assets) is liable contingently or otherwise, as obligor, guarantor or otherwise, or in
respect of which obligations such Person otherwise assures a creditor against loss, and (viii) all obligations under any PACE Loans.


 


“Indemnified
Taxes” means Special Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by Borrower
under any Loan Document.


 


“Independent”
shall mean, when used with respect to any Person, a Person who: (i) does not have any direct financial interest or any material
indirect financial interest in Borrower or Operating Lessee or in any Affiliate of Borrower or Operating Lessee (other than the
receipt of fees payable for its services), (ii) is not connected with Borrower or Operating Lessee or any Affiliate of Borrower
or Operating Lessee as an officer, employee, promoter, underwriter, trustee, partner, member, manager, creditor, director, supplier,
customer or person performing similar functions and (iii) is not a member of the immediate family of a Person defined in (i) or
(ii) above.


 




    	 	-14-	 



     


    

 


“Independent
Accountant” shall mean (i) a firm of nationally recognized, certified public accountants which is Independent and
which is selected by Borrower and reasonably acceptable to Lender or (ii) such other certified public accountant(s) selected by
Borrower, which is Independent and reasonably acceptable to Lender, it being agreed by Lender that any “Big Four” accounting
firm (including any successor entity thereto) is hereby approved by Lender as long as such Person continues to be Independent and
a nationally recognized certified public accounting firm.


 


“Index Floor”
shall mean 0.0%.


 


“Individual
Borrower” shall have the meaning set forth in the introductory paragraph hereto.


 


“Individual
Property” shall mean, individually, any one of the properties identified on Schedule I hereto and (and,
with respect to each such property, the Improvements, all Fixtures, all Equipment, all FF&E and all personal property owned
by Borrower and used in connection with or incorporated into such property), together with all rights pertaining to such property
and Improvements.


 


“Initial Open
Period” shall mean any time from and after the Closing Date through and including the Spread Maintenance Start Date.


 


“Initial Stated
Maturity Date” shall mean May 1, 2021, as the same may be extended pursuant to Section 2.7 hereof.


 


“Insolvency
Opinion” shall mean that certain bankruptcy non-consolidation opinion letter dated the date hereof delivered by Berger
Harris LLP in connection with the Loan.


 


“Insurance
Proceeds” shall mean all proceeds of insurance paid under the Policies.


 


“Interest Determination
Date” shall mean, (a) with respect to each Interest Period that occurs while the Loan is a LIBOR Loan, the date that
is two (2) Business Days (for purposes of this clause (a) only, “Business Day” is defined as any day on
which banks are open for dealing in foreign currency and exchange in London) prior to the commencement date of such Interest Period,
(b) with respect to each Interest Period that occurs while the Loan is a Base Rate Loan, the date that is two (2) Business Days
prior to the commencement date of such Interest Period, and (c) with respect to each Interest Period that occurs while the Loan
is a Substitute Rate Loan, the date that is two (2) Business Days prior to the commencement date of such Interest Period; provided,
however, that an additional Interest Determination Date shall occur on the date which is two (2) Business Days prior to any Securitization
Date, if any (which shall adjust the Applicable Interest Rate for the remainder of the then-current Interest Period).


 


“Interest Rate
Cap Agreement” shall mean the Confirmation and Agreement (together with the confirmation and schedules relating thereto),
between the Counterparty and Borrower, obtained by Borrower and collaterally assigned to Lender pursuant to the Assignment of Interest
Rate Cap Agreement. After delivery of a Replacement Interest Rate Cap Agreement to Lender, the term Interest Rate Cap Agreement
shall be deemed to mean such Replacement Interest Rate Cap Agreement. At any time the Loan is a Base Rate Loan or a Substitute
Rate Loan and a Substitute Interest Rate Protection Agreement is in effect in accordance with Section 2.2.4(e), all
references to the Interest Rate Cap Agreement in the Loan Documents shall be deemed to refer to a Substitute Interest Rate Protection
Agreement. The Interest Rate Cap Agreement shall be governed by the laws of the State of New York and shall contain each of the
following:


 




    	 	-15-	 



     


    

 


(a)          the
notional amount of the Interest Rate Cap Agreement shall be equal to or exceed the Outstanding Principal Balance;


 


(b)          the
remaining term of the Interest Rate Cap Agreement shall at all times extend through the end of the Interest Period in which the
Maturity Date occurs as extended from time to time pursuant to this Agreement and the Loan Documents;


 


(c)          the
Interest Rate Cap Agreement shall be issued by the Counterparty to Borrower and shall be pledged to Lender by Borrower in accordance
with the Assignment of Interest Rate Cap Agreement;


 


(d)          the
Counterparty under the Interest Rate Cap Agreement shall be obligated to make a stream of payments, directly to the Deposit Account
(whether or not an Event of Default has occurred) from time to time equal to the product of (i) the notional amount of such Interest
Rate Cap Agreement multiplied by (ii) the excess, if any, of LIBOR (including any upward rounding under the definition of LIBOR)
over the Strike Price and shall provide that such payment shall be made on a monthly basis in each case not later than (after giving
effect to and assuming the passage of any cure period afforded to such Counterparty under the Interest Rate Cap Agreement, which
cure period shall not in any event be more than three Business Days) each Monthly Payment Date;


 


(e)          the
Counterparty under the Interest Rate Cap Agreement shall execute and deliver the Acknowledgment; and


 


(f)           the
Interest Rate Cap Agreement shall impose no material obligation on the beneficiary thereof (after payment of the acquisition cost)
and shall be in all material respects satisfactory in form and substance to Lender (in Lender’s reasonable discretion) and
shall satisfy applicable Rating Agency standards and requirements, including, without limitation, provisions satisfying Rating
Agencies standards, requirements and criteria (i) that incorporate representations by the Counterparty that no withholding taxes
shall apply to payments by the Counterparty as of the date of the Interest Rate Cap Agreement, and provide for “gross up”
payments by the Counterparty for any withholding tax (except for any Excluded Taxes), (ii) whereby the Counterparty agrees not
to file or join in the filing of any petition against Borrower under the Bankruptcy Code or any other Federal or state bankruptcy
or insolvency law, and (iii) that incorporate, if the Interest Rate Cap Agreement contemplates collateral posting by the Counterparty,
a credit support annex setting forth the mechanics for collateral to be calculated and posted that are consistent with Rating Agency
standards, requirements and criteria.


 


“Inventory”
shall mean, 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, current edition.


 




    	 	-16-	 



     


    

 


“Lease”
shall mean any lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether
now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy, all or
any portion of any space in any Individual Property, and every modification, amendment or other agreement relating to such lease,
sublease, sub-sublease or other agreement entered into in connection with such lease, sublease, sub-sublease or other agreement
and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed
by the other party thereto.


 


“Legal Requirements”
shall mean all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions of Governmental Authorities affecting the Loan, any Secondary Market Transaction with respect
to the Loan, Borrower, Operating Lessee or any Individual Property or any part thereof or the construction, use, alteration or
operation thereof, or any part thereof, whether now or hereafter enacted and in force, including, without limitation, the Securities
Act, the Exchange Act, Regulation AB, the rules and regulations promulgated pursuant to the Dodd-Frank Wall Street Reform and Consumer
Protection Act, zoning and land use laws, the Americans with Disabilities Act of 1990, and all permits, licenses and authorizations
and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either
of record or known to Borrower or Operating Lessee, at any time in force affecting such Individual Property or any part thereof,
including any which may (i) require repairs, modifications or alterations in or to such Individual Property or any part thereof,
or (ii) in any way limit the use and enjoyment thereof.


 


“Lender Documents”
shall mean any agreement among Lender, any Mezzanine Lender, any New Mezzanine Lender and/or any participant or any fractional
owner of a beneficial interest in the Loan, any Mezzanine Loan or any New Mezzanine Loan relating to the administration of the
Loan, any Mezzanine Loan, any New Mezzanine Loan, the Loan Documents, the Mezzanine Loan Documents or any New Mezzanine Loan Documents,
including without limitation, any intercreditor agreements, co-lender agreements and participation agreements.


 


“Letter of
Credit” shall mean an irrevocable, unconditional, transferable (without payment of any transfer fee by the transferring
or transferee beneficiary thereof), clean sight draft letter of credit acceptable to Lender (either an evergreen letter of credit
or one which does not expire until at least thirty (30) Business Days after the Stated Maturity Date or, if earlier, payment of
the subject obligation or completion of the subject activity for which such Letter of Credit was provided) in favor of Lender and
entitling Lender to draw thereon, in whole or in part, in New York, New York or such other domestic location approved by Lender
or pursuant to procedures of the issuing bank provided that such issuing bank allows for draws (including partial draws by facsimile),
issued by a domestic Approved Bank or the U.S. agency or branch of a foreign Approved Bank, to an applicant/obligor that is not
the Borrower. Any Letter of Credit delivered to Lender in connection with the Loan shall, in addition to any other requirements
set forth herein, be subject to the terms and conditions set forth in Section 2.9 hereof.


 


“LIBOR”
shall mean, with respect to each Interest Period and each Interest Determination Date, the rate per annum (rounded to the nearest
1/1,000 of 1%) calculated by the Lender as set forth below:


 




    	 	-17-	 



     


    

 


(a)          The
rate for deposits in U.S. Dollars for a one-month period that appears on Reuters Screen LIBOR01 Page (or its equivalent) as of
11:00 a.m., London time, on such Interest Determination Date.


 


(b)          If
such rate does not appear on Reuters Screen LIBOR01 Page (or its equivalent) as of 11:00 a.m., London time, on the applicable Interest
Determination Date, the Lender shall request the principal London office of any four major reference banks in the London interbank
market selected by the Lender to provide such reference bank’s offered quotation to prime banks in the London interbank market
for deposits in United States dollars for a one-month period as of 11:00 a.m., London time, on such Interest Determination Date
in a principal amount of not less than $1,000,000 that is representative for a single transaction in the relevant market at the
relevant time. If at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations.
If fewer than two such quotations are so provided, the Lender shall request any three major banks in New York City selected by
the Lender to provide such bank’s rates for loans in U.S. Dollars to leading European banks for a one-month period as of
11:00 a.m., New York City time, on such Interest Determination Date in a principal amount not less than $1,000,000 that is representative
for a single transaction in the relevant market at the relevant time, and if at least two such rates are so provided, LIBOR shall
be the arithmetic mean of such rates. Promptly upon Borrower’s request, Lender shall provide Borrower with the basis (in
writing) for its determination of LIBOR. Notwithstanding the foregoing, in no event shall LIBOR be less than zero.


 


“LIBOR Interest
Rate” shall mean with respect to each Interest Period, LIBOR applicable to the Interest Period.


 


“LIBOR Loan”
shall mean at any time in which the Applicable Interest Rate is calculated at the LIBOR Interest Rate plus the Spread in accordance
with the provisions of Article II hereof.


 


“Lien”
shall mean any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference,
assignment, security interest, PACE Loan 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 portion of any Individual Property or any interest therein, or any direct or indirect
interest in Borrower or in any other Loan Party, 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.


 


“Loan”
shall mean the loan in the original principal amount of the Loan Amount made by Lender to Borrower pursuant to this Agreement.


 


“Loan Amount”
shall mean Forty-Six Million Ninety-Nine Thousand and No/100 Dollars ($46,099,000.00).


 


“Loan Documents”
shall mean, collectively, this Agreement, the Note, the Mortgage, the Assignment of Leases, the Cash Management Agreement, the
Clearing Account Agreements, the Assignment of Agreements, the Assignment of Interest Rate Cap Agreement, the Environmental Indemnity,
the Assignment of Management Agreement, the Guaranty, the Contribution Agreement, the Post-Closing Agreement and any other documents,
agreements and instruments now or hereafter evidencing, securing or delivered to Lender in connection with the Loan, as the same
may be (and each of the foregoing defined terms shall refer to such documents as they may be) amended, restated, replaced, supplemented
or otherwise modified from time to time.


 




    	 	-18-	 



     


    

 


“Loan Party”
shall mean, individually or collectively as the context requires, each Individual Borrower, each Operating Lessee and Mezzanine
Borrower.


 


“Low Cash Flow
Trigger” shall occur if, on any Calculation Date, the Debt Yield shall be equal to or less than the Debt Yield Trigger
Level.


 


“Low Cash Flow
Trigger Period” shall commence upon the occurrence of a Low Cash Flow Trigger and shall end when the Debt Yield shall
exceed the applicable Debt Yield Cure Level as of any subsequent Calculation Date; provided, however, that if Borrower
and Mezzanine Borrowers make the prepayments specified in Section 2.4.2(c) (upon at least two (2) Business Days prior
written notice), then such Low Cash Flow Trigger Period shall cease immediately upon the making of such prepayments (as opposed
to waiting for the determination on the subsequent Calculation Date that the Debt Yield exceeds the Debt Yield Cure Level) (the
“Immediate Low Cash Flow Trigger Cure”).


 


“Major Contract”
shall mean any cleaning, maintenance, service or other contract or agreement of any kind of a material nature (materiality for
these purposes to mean, contracts (a) which extend beyond one year (unless cancelable on sixty (60) days or less notice without
requiring the payment of termination fees or payments of any kind) and (b) requiring the payment of more than $250,000 in any calendar
year with respect to an Individual Property), in either case relating to the ownership, leasing, management, use, operation, maintenance,
repair or restoration of the Properties, or any Individual Property; excepting, however, Franchise Agreements and Management Agreements,
none of which shall constitute Major Contracts for purposes of this Agreement.


 


“Management
Agreements” shall mean the management agreement or management agreements, as the context requires, entered into by
and between Borrower and/or Operating Lessee and Manager or any replacement management agreement entered into by and between Borrower
and/or Operating Lessee and the applicable Manager in accordance with the terms of the Loan Documents, in each case, pursuant to
which such Manager is to provide management and other services with respect to the Properties, or any Individual Property. Each
or any of the Management Agreements may sometimes be referred to herein, individually, as a “Management Agreement”.


 


“Management
Fees” shall mean the Base Management Fees, Incentive Management Fees, reimbursable expenses, system service charges
and all other charges, fees and expenses to be paid to Manager, from time to time under the Management Agreements.


 


“Manager”
shall mean, individually or collectively, as the context requires, each property manager listed on Schedule XV
attached hereto as to the Individual Property(ies) identified on Schedule XV as being managed by such property
manager (for so long as such property manager has not been replaced in accordance with the terms and conditions of the Loan Documents),
or any other manager engaged in accordance with the terms and conditions of the Loan Documents.


 




    	 	-19-	 



     


    

 


“Manager-Held
Reserve” shall mean each reserve fund for payment of Taxes, Insurance Premiums or FF&E Work that a Brand Manager
is required to maintain on behalf of and for the benefit of Borrower or Operating Lessee under the Management Agreement as set
forth in the Annual Budget.


 


“Material Alteration”
shall mean any alteration affecting structural elements, utilities, HVAC or the exterior of any Individual Property, the cost of
which (a) exceeds the Alteration Threshold with respect to such Individual Property, and/or (b) when aggregated with the costs
of alterations then affecting structural elements of all other Individual Properties (to the extent not covered by security delivered
to Lender pursuant to Section 4.12.2) plus any outstanding Flagging Costs with respect to all Individual Properties
that have not been reserved for with Lender to the extent required under Section 4.34, but excluding Approved Alterations
(defined below)), exceeds the aggregate Alteration Threshold; provided, however, that in no event shall (i) intentionally
omitted, (ii) any work to be performed in connection with any Emergency Expenses, (iii) any alterations performed as part of a
Restoration, (iv) any Approved Scheduled PIP Expenses, (v) tenant improvement work or other alterations performed with respect
to any Lease in effect on the Closing Date or any Lease entered into subsequent to the Closing Date in compliance with the terms
of the Loan Documents, or (vi) decorative work performed in the ordinary course of business, constitute a Material Alteration (clauses (i)
through (vi), collectively, the “Approved Alterations”).


 


“Maturity Date”
shall mean either (a) the Initial Stated Maturity Date; provided that (i) in the event of the exercise by Borrower of the First
Extension Option pursuant to Section 2.7, the Maturity Date shall be the First Extended Maturity Date, (ii) in the
event of the exercise by Borrower of the Second Extension Option pursuant to Section 2.7, the Maturity Date shall be
the Second Extended Maturity Date or (iii) in the event of the exercise by Borrower of the Third Extension Option pursuant to Section 2.7,
the Maturity Date shall be the Third Extended Maturity Date (the Initial Stated Maturity Date or, if and to the extent the Maturity
Date is extended in accordance with Section 2.7 hereof, such applicable extended date, the “Stated Maturity
Date”); or (b) such earlier date on which the final payment of principal of the Note becomes due and payable as herein
or therein provided, whether at the Stated Maturity Date, by declaration of acceleration, or otherwise.


 


“Maximum Legal
Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted
for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan
Documents, under the laws of such Governmental Authority whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.


 


“Mezzanine
Account” shall mean the “Deposit Account” as defined in the Mezzanine Loan Agreement.


 


“Mezzanine
Allocated Loan Amount” shall mean, as to any Individual Property, the “Allocated Loan Amount” (as defined
in the Mezzanine Loan Agreement) set forth on Schedule I to the Mezzanine A Loan Agreement as to such Individual Property
(a copy of which Schedule is attached hereto as Schedule I).


 




    	 	-20-	 



     


    

 


“Mezzanine
Annual Debt Service” shall mean, as of any date of determination, the Mezzanine Debt Service payable during the one-year
period occurring from and after such date of determination calculated by assuming that (a) the Mezzanine Principal Balance at all
times during such period is equal to the Mezzanine Principal Balance as of the date of determination (taking into account any prepayments
that occur on such date in accordance with this Agreement) and (b) LIBOR (or the Prime Rate or the Substitute Base Rate, as applicable)
at all times during such period is equal to either (i) in connection with Mezzanine Borrower’s exercise of an “Extension
Option” under the Mezzanine Loan Documents, the “Strike Price” of the proposed “Replacement Interest Rate
Cap Agreement” to be entered into by Mezzanine Borrower under the Mezzanine Loan Documents in connection with its exercise
of such “Extension Option” or (ii) otherwise, the “Strike Price” of the “Interest Rate Cap Agreement”
in place under the Mezzanine Loan Documents as of such date of determination.


 


“Mezzanine
Borrower” shall mean, individually or collectively, as the context may require: HIT 2PK Mezz, LLC, a Delaware limited
liability company.


 


“Mezzanine
Lender” shall mean Deutsche Bank AG, New York Branch, a branch of Deutsche Bank AG, a German Bank authorized by the
New York Department of Financial Services, together with its successors and permitted assigns.


 


“Mezzanine
Lender Monthly Debt Service Notice Letter” shall mean the written notice required to be delivered by Mezzanine Lender
pursuant to the Mezzanine Loan Agreement to Lender at least five (5) Business Days prior to each Monthly Payment Date setting forth
(i) the Mezzanine Monthly Debt Service Payment Amount payable by the Mezzanine Borrower on the first Monthly Payment Date occurring
after the date such notice is delivered (which shall be net of any proceeds received by the Mezzanine Lender under any interest
rate protection agreement covering the Mezzanine Loan), (ii) the current Mezzanine Account, (iii) wire instructions for such payment,
and (iv) whether or not any Mezzanine Loan Default has then occurred and is continuing under the Mezzanine Loan Documents; provided,
however, that the Mezzanine Lender Monthly Debt Service Notice Letter delivered to Lender shall be applicable with respect to all
future Monthly Payment Dates with respect to the Mezzanine Loan until the Mezzanine Lender delivers a new Mezzanine Lender Monthly
Debt Service Notice Letter to Lender, it being understood that Mezzanine Lender will not be required to deliver a new Mezzanine
Lender Monthly Debt Service Notice Letter to Lender unless and until the information described in clauses (i) through
(iv) above that was set forth in the most recently received Mezzanine Lender Monthly Debt Service Notice Letter from Mezzanine
Lender is different from the information that will be applicable to the next Monthly Payment Date, and Lender shall be permitted
to rely on the most recently received Mezzanine Lender Monthly Debt Service Notice Letter from Mezzanine Lender until Lender receives
a new Mezzanine Lender Monthly Debt Service Notice Letter from Mezzanine Lender.


 


“Mezzanine
Loan” shall mean that certain loan in the principal amount of $One Thousand and No/100 Dollars ($1,000.00) by Mezzanine
Lender to Mezzanine Borrower pursuant to the Mezzanine Loan Agreement.


 


“Mezzanine
Loan Agreement” shall mean that certain Mezzanine A Loan Agreement of even date herewith between Mezzanine Lender
and Mezzanine Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.


 


“Mezzanine
Loan Default” shall mean an “Event of Default” under the Mezzanine Loan and as defined in the Mezzanine
Loan Documents related to the Mezzanine Loan.


 




    	 	-21-	 



     


    

 


“Mezzanine
Loan Documents” means all documents evidencing, securing, guaranteeing and/or perfecting the Mezzanine Loan and all
documents executed and/or delivered in connection therewith.


 


“Mezzanine
Monthly Debt Service Payment Amount” shall mean, for each Monthly Payment Date, an amount equal to the amount of
(i) non-default interest and principal, as applicable, which is then due on the Mezzanine Loan under the Mezzanine Loan Documents
for the Interest Period ending in the month during which such Monthly Payment Date occurs, plus (ii) the amount of any default
interest and/or late fees then due and owing to Mezzanine Lender by Mezzanine Borrower under the Mezzanine Loan Documents.


 


“Mezzanine
Principal Balance” shall mean, as of any date, the outstanding principal balance of the Mezzanine Loan.


 


“Mezzanine
Release Amount” shall mean, as to any Individual Property, the “Release Amount” (as defined in the Mezzanine
Loan Agreement) as to such Individual Property.


 


“Monthly Amortization
Payment” shall mean a monthly payment of principal (without any prepayment premium or penalty) computed as of the
Closing Date on the basis of an amortization schedule for a loan having (A) a principal amount equal to the original principal
balance of the Loan, (B) an amortization period of thirty (30) years, and (C) (without duplication of any payments made under clause
(i) of the definition of “Monthly Debt Service Payment Amount”) an annual interest rate equal to 6.75%


 


“Monthly Debt
Service Payment Amount” shall mean, (i) for each Monthly Payment Date, an amount equal to the amount of interest
which is then due on the Loan for the Interest Period ending in the month during which such Monthly Payment Date occurs plus (ii)
for each Monthly Payment Date following the commencement of the Third Extended Term, the Monthly Amortization Payment.


 


“Monthly Operating
Expense Budgeted Amount” for any calendar month shall mean the monthly amount set forth in the Approved Annual Budget
for Operating Expenses for such calendar month.


 


“Monthly Payment
Date” shall mean the first (1st) day of every calendar month occurring during the Term, as adjusted pursuant
to Section 2.3.2. The first Monthly Payment Date shall be June 1, 2019.


 


“Moody’s”
shall mean Moody’s Investors Service, Inc.


 


“Mortgage”
shall mean, with respect to each Individual Property, that certain first priority Mortgage (or Deed of Trust or Deed to Secure
Debt), Assignment of Leases and Rents and Security Agreement, dated as of the date hereof, executed and delivered by Borrower and
Operating Lessee as security for the Loan and encumbering such Individual Property, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.


 




    	 	-22-	 



     


    

 


“Multi-Asset
Person” means a (i) Qualified Equityholder or (ii) an entity in respect of which, at the time the applicable pledge
is made, such entity’s pro rata share of net operating income from the Properties is less than 25% of such entity’s
aggregate net income.


 


“Net Operating
Income” shall mean the amount, for any period, obtained by subtracting Operating Expenses for such period from Operating
Income for such period.


 


“Net Proceeds”
shall mean: (i) the net amount of all Insurance Proceeds payable as a result of a Casualty to any Individual Property, after deduction
of reasonable costs and expenses (including reasonable attorneys’ fees and costs), if any, in collecting such Insurance Proceeds,
or (ii) the net amount of the Award, after deduction of reasonable costs and expenses (including reasonable attorneys’ fees
and costs), if any, in collecting such Award.


 


“New/Renewal
Flagging Costs” shall mean the PIP Expenses at an Individual Property required under a new or replacement Franchise
Agreement for such Individual Property, or in connection with the renewal or extension hereafter of an existing Franchise Agreement
for such Individual Property, together with and any other costs and expenses of flagging, reflagging, renewal, extension, renovation
and otherwise qualifying and positioning such Individual Property for its new or replacement brand, or for the renewal or extension
of its existing brand; provided, however, that “New/Renewal Flagging Costs” shall exclude any Change of Control Flagging
Costs.


 


“NRSRO”
shall mean any credit rating agency that has elected to be treated as a nationally recognized statistical rating organization for
purposes of Section 15E of the Exchange Act, without regard to whether or not such credit rating agency has been engaged by
Lender or its designees in connection with, or in anticipation of, a Securitization.


 


“Obligations”
shall mean, collectively, Borrower’s obligations for the payment of the Debt and the performance of the Other Obligations
by Borrower and Operating Lessee.


 


“OFAC”
shall mean the Specially Designated Nationals and Blocked Persons Lists maintained by the Office of Foreign Assets Control.


 


“Officer’s
Certificate” shall mean a certificate delivered to Lender by Borrower which is signed by an authorized senior officer
of the manager of Borrower (or the manager of Borrower’s general partner, as applicable).


 


“Open Prepayment
Date” shall mean the Business Day immediately following the Monthly Payment Date occurring in April, 2021.


 




    	 	-23-	 



     


    

 


“Operating
Expenses” shall mean, for any period, without duplication, all expenses actually paid or payable by or on behalf
of Borrower or Operating Lessee during such period in connection with the administration, operation, management, maintenance, repair
and use of the Properties, determined on an accrual basis, and, except to the extent otherwise provided in this definition, in
accordance with GAAP. Operating Expenses specifically shall include (i) all operating expenses incurred in such period based on
quarterly financial statements delivered to Lender in accordance with Section 4.9.2 hereof and prepared in accordance
with the Uniform System of Accounts, (ii) all payments required to be made pursuant to any Operations Agreements, (iii) Management
Fees, (iv) administrative, payroll, security and general expenses for the Properties, (v) the cost of utilities, supplies, consumables,
inventories and fixed asset supplies consumed in the operation of the Properties, (vi) intentionally omitted, (vii) costs and fees
of Independent professionals (including, without limitation, legal, accounting, consultants and other professional expenses), technical
consultants, operational experts (including quality assurance inspectors) or other third parties retained to perform services required
or permitted hereunder, (viii) cost of attendance by employees at training and manpower development programs, (ix) association
dues, (x) computer processing charges, (xi) operational equipment and other lease payments to the extent constituting operating
expenses under GAAP, (xii) Taxes and Other Charges (other than income taxes or Other Charges in the nature of income taxes), Hotel
Taxes and insurance premiums, (xiii) all reserves required by Lender hereunder (without duplication) and (xiv) all franchise fees
and expenses incurred in connection with any Franchise Agreement (other than one-time expenses such as individual consent fees
and similar one-time costs). Notwithstanding the foregoing, Operating Expenses shall not include (1) depreciation or amortization
or other noncash items, (2) income taxes or Other Charges in the nature of income taxes, (3) any expenses (including legal, accounting
and other professional fees, expenses and disbursements) incurred in connection with the making of the Loan or the sale, exchange,
transfer, financing or refinancing of all or any portion of any Individual Property or in connection with the recovery of Insurance
Proceeds or Awards which are applied to prepay the Note, (4) Capital Expenditures including (without duplication) any reserves
required by Lender hereunder with respect to Capital Expenditures, (5) Debt Service, (6) any item of expense which would otherwise
be considered within Operating Expenses pursuant to the provisions above but is paid directly by any tenant under a Lease, (7)
any non-recurring, capitalized or extraordinary expenses, (8) any expenses that relate to an Individual Property from and after
the release of such Individual Property from the Lien of the applicable Mortgage in accordance with Section 2.5.2 hereof,
(9) Operating Rent and (10) any Restricted Payments that are not expenses described by any of clauses (i) through (xiv)
above (including any Restricted Payments that are equity distributions or dividends or similar payments that constitute a return
of or a return on capital contributions to Borrower’s constituent owners).


 


“Operating
Income” shall mean, for any period, all income of Borrower or Operating Lessee during such period from the use, ownership
or operation of the Property as follows (without duplication):


 


(a)          all
amounts payable to Borrower or Operating Lessee or to Manager for the account of Borrower or Operating Lessee or any of their Affiliates
by any Person as Rents and/or Hotel Revenue;


 


(b)          business
interruption and loss of “rental value” insurance proceeds allocable to the applicable reporting period (after deducting
thereafter all costs and expenses incurred in the adjustment and collection thereof);


 


(c)          Hotel
Taxes; and


 


(d)          all
other amounts which in accordance with GAAP are included in Borrower’s annual financial statements as operating income attributable
to the Properties.


 


Notwithstanding the foregoing, Operating Income
shall not include (i) any Net Proceeds (other than the types described in clause (b) above), (ii) any proceeds resulting
from the Transfer of all or any portion of the Properties (other than the types described in clause (a) or proceeds
resulting from the disposition of any equipment and fixtures (which are subsequently replaced) in accordance Section 4.2),
(iii) Security Deposits until forfeited or applied and Advance Deposits until forfeited or applied or (iv) Operating Rent. Operating
Income shall be calculated on the accrual basis of accounting and, except to the extent otherwise provided in this definition,
in accordance with GAAP.


 




    	 	-24-	 



     


    

 


“Operating
Lease” shall mean those certain lease agreement, listed on Schedule XVII, as the same may be amended,
modified, supplemented or replaced from time to time in accordance with the terms thereof.


 


“Operating
Rent” shall mean all rent and other amounts due to Borrower under the Operating Lease.


 


“Operations
Agreements” shall mean the REAs and any other covenants, restrictions, easements, declarations or agreements of record
relating to the construction, operation or use of the Properties.


 


“Other Charges”
shall mean all ground rents, maintenance charges, impositions other than Taxes and any other charges, including vault charges and
license fees for the use of vaults, chutes and similar areas adjoining any Individual Property, now or hereafter levied or assessed
or imposed against such Individual Property or any part thereof.


 


“Other Connection
Taxes” means, with respect to Lender, Special Taxes imposed as a result of a present or former connection between
Lender and the jurisdiction imposing such Special Tax (other than connections arising from such Lender having executed, delivered,
become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged
in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).


 


“Other Obligations”
shall mean (a) the performance of all obligations of Borrower and Operating Lessee contained herein; (b) the performance of each
obligation of Borrower and Operating Lessee contained in any other Loan Document; and (c) the performance of each obligation of
Borrower and Operating Lessee contained in any renewal, extension, amendment, modification, consolidation, change of, or substitution
or replacement for, all or any part of this Agreement, the Note or any other Loan Document.


 


“Outstanding
Mezzanine Principal Balance” shall mean, individually or collectively as the context requires, the Mezzanine Principal
Balance.


 


“Outstanding
Principal Balance” shall mean, as of any date, the outstanding principal balance of the Loan.


 


“PACE Loan”
shall mean (x) any “Property-Assessed Clean Energy loan” or (y) any other indebtedness, without regard to the name
given to such indebtedness, which is (i) incurred for improvements to the Property for the purpose of increasing energy efficiency,
increasing use of renewable energy sources, resource conservation, or a combination of the foregoing, and (ii) repaid through multi-year
assessments against the Property.


 




    	 	-25-	 



     


    

 


“PATRIOT Act”
shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
(USA PATRIOT Act) of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.


 


“Permitted
Encumbrances” shall mean, collectively, (i) the Liens and security interests created by the Loan Documents and the
Mezzanine Loan Documents (ii) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy, (iii) Liens,
if any, for Taxes or Other Charges imposed by any Governmental Authority not yet delinquent or being contested in good faith and
by appropriate proceedings in accordance with Section 4.6, (iv) any workers’, mechanics’ or other similar
Liens on any Individual Property provided that any such Lien is bonded or discharged within thirty (30) days after Borrower first
receives written notice of such Lien or which is being contested in good faith in accordance with the requirements of Section 4.3,
(v) Permitted Transfers, (vi) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s
reasonable discretion, (vii) covenants, conditions, restrictions on use of real property and other similar matters entered into
in the ordinary course of business that would not have a material adverse effect on the use, occupancy or access to the applicable
Individual Property, and (viii) any other Liens expressly permitted pursuant to clauses (ii), (iv) or (v)(2)
of Section 4.2(b) hereof.


 


“Person”
shall mean any individual, corporation, partnership, limited liability company, joint venture, estate, trust, unincorporated association,
any other entity, any Governmental Authority and any fiduciary acting in such capacity on behalf of any of the foregoing.


 


“Physical Conditions
Report” shall mean, with respect to each Individual Property, one or more reports prepared by companies reasonably
satisfactory to Lender regarding the physical condition of such Individual Property, satisfactory in form and substance to Lender
in its sole discretion, which report shall, among other things, (i) confirm that such Individual Property and its use comply, in
all material respects, with all applicable Legal Requirements (including zoning, subdivision and building laws), and (ii) include
a copy of a final certificate of occupancy with respect to all Improvements.


 


“PIP”
shall mean any property improvement plan now or subsequently required by any Franchisor under the applicable Franchise Agreement.


 


“PIP Expenses”
shall mean FF&E Expenses and Capital Expenditures incurred by Borrower or Operating Lessee for PIP Work.


 


“PIP Work”
shall mean the FF&E and other capital improvements required pursuant to any PIP to be installed and/or completed by Borrower
or Operating Lessee.


 


“Post-Closing
Agreement” shall mean that certain Post-Closing Agreement dated as of the Closing Date made by Borrower and Operating
Lessee for the benefit of Lender.


 


“Pre-Approved
Control Party” shall mean a Person described in clauses (i), (ii) or (iii) of the definition
of “Qualified Equityholder”.


 




    	 	-26-	 



     


    

 


“Prepayment
Notice” shall mean a prior written notice to Lender specifying the proposed Business Day on which a prepayment of
the Debt is to be made pursuant to Section 2.4 hereof, which date must be a Business Day and shall be no earlier than
fifteen (15) days after the date of such Prepayment Notice (other than any prepayment of the Debt made at the closing and pursuant
to the definitive documentation of any Assumption, in which case such date shall be no earlier than three (3) days after the date
of such Prepayment Notice) and no later than sixty (60) days after the date of such Prepayment Notice (unless in connection with
an Immediate Low Cash Flow Trigger Cure, in which case, the definition of Low Cash Flow Trigger Period shall govern). Such Prepayment
Notice shall be revocable at any time and for any reason by Borrower and may be adjourned on a day-to-day basis on reasonable notice
to Lender, but Borrower shall pay Lender’s actual expenses incurred in connection with such revocation and/or adjournment.


 


“Prime Rate”
shall mean the rate of interest published in The Wall Street Journal from time to time as the “Prime Rate”.
If more than one “Prime Rate” is published in The Wall Street Journal for a day, the average of such “Prime
Rates” will be used, and such average will be rounded up to the nearest 1/100th of one percent (0.01%). If The Wall Street
Journal ceases to publish the “Prime Rate,” Lender will select an equivalent publication that publishes such “Prime
Rate,” and if such “Prime Rates” are no longer generally published or are limited, regulated or administered
by a governmental or quasi-governmental body, then Lender will select a comparable interest rate index.


 


“Prime Rate
Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate.


 


“Prior Loans”
shall mean, collectively, the loans described on Schedule IX.


 


“Prior Loan
Documents” shall mean, collectively, the loan documents evidencing and/or securing the Prior Loans.


 


“Properties”
shall mean, collectively, each and every Individual Property which is subject to this Agreement.


 


“Property Accounts”
shall mean each of the accounts of Borrower identified on Schedule XIII hereto, as same may be replaced from
time to time with the approval of Lender, not to be unreasonably withheld, conditioned or delayed.


 


“Property Account
Banks” shall mean each of the banks identified on Schedule XIII hereto.


 


“Qualified
Equityholder” means (i) Guarantor or any successor thereto by merger, acquisition, initial public offering or similar
corporate transaction, (ii) Brookfield Strategic Real Estate Partners II Hospitality REIT II LLC or any of its Affiliates, (iii)
W2007 Equity Inns Senior Mezz, LLC, provided that such entity is controlled directly or indirectly by Goldman Sachs Group, Inc.,
(iv) any entity approved by Mezzanine Lender and with respect to which Rating Agency Confirmation is received (or prior to a Securitization,
is approved by Lender), or (v) a Qualified Transferee that is a Qualified Institution, provided in each case under this
clause (v) that such Qualified Institution (A) has total assets in the United States or Canada (in name or under management)
in excess of $650,000,000 and a capital/statutory surplus or shareholder equity in excess of $250,000,000, in each case, exclusive
of the Property, and (B) if the applicable transfer results in a change of Control of Borrower, then following such transfer Borrower
shall be Controlled by a Qualified Institution that is in the business of regularly investing in or operating hospitality real
estate assets or other commercial properties.


 




    	 	-27-	 



     


    

 


“Qualified
Institution” shall mean any bank, savings and loan association, national banking association, investment bank, insurance
company, trust company, commercial credit corporation, pension plan, pension fund, pension trust, pension account, pension advisory
firm, mutual fund, government entity or plan, real estate company, real estate investment trust, investment fund, money management
firm, or institution substantially similar to any of the foregoing.


 


“Qualified
Manager” shall mean (i) each Manager as of the Closing Date with respect to the Individual Properties managed by
such Manager as of the Closing Date, (ii) any property manager listed on Schedule X hereto (or that is Controlled
by or under common Control with any property management company on such list), or (iii) any property manager that is reasonably
approved by Lender.


 


“Qualified
Transferee” shall mean a Person for whom Lender shall have received: (x) evidence with respect to such Person and
with respect to any other Person who directly or indirectly Controls such Person, that no such Person: (1) if not a public or widely
held company, has ever been convicted of a felony arising from fraud, financial impropriety or other crimes of moral turpitude
(unless acquitted on all such charges or unless all such charges have been dismissed) or has ever been convicted of, or pled guilty
or no contest to a Patriot Act Offense (2) is on any government list relating to OFAC and similar matters, and the Patriot Act,
OFAC and KYC searches obtained by Lender shall be satisfactory to Lender, or (3) has in the past five (5) years been the subject
of a voluntary or involuntary (to the extent the same has not been discharged) bankruptcy proceeding and (y) if such Person will
obtain Control of or obtain (and did not previously own) a direct or indirect interest of 10% or more in Borrower or Operating
Lessee as a result of such proposed transfer, acceptable credit, judgment, lien, litigation, bankruptcy, criminal, watch list,
Patriot Act, OFAC, “Know Your Customer” and anti-money laundering and other similar searches indicating no materially
adverse circumstances (provided, however, that as it relates to lien searches only, such lien searches shall be deemed to be satisfactory
so long as they do not evidence any security interest in any collateral for the Loan or any security interest in any direct or
indirect equity interest in Borrower or Operating Lessee).


 


“Rate Substitution
Conditions” shall have the meaning specified in Section 2.2.4(a).


 


“Rating Agencies”
shall mean, prior to a Securitization, any nationally-recognized statistical rating organization (e.g. Standard & Poor’s
Ratings Services, Moody’s Investor Service, Inc., Fitch, Inc., DBRS, Inc. or any successor thereto) that has been or will
be engaged by Lender or its designees in connection with, or in anticipation of, a Securitization, and following a Securitization,
each of the Rating Agencies that has issued a credit rating for the Securities.


 


“Rating Agency
Confirmation” shall mean a written affirmation from each of the Rating Agencies that has issued a credit rating for
the Securities that the credit rating of such Securities by such Rating Agency immediately prior to the occurrence of the event
with respect to which such Rating Agency Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the
occurrence of such event, which affirmation may be granted or withheld in such Rating Agency’s sole and absolute discretion.


 




    	 	-28-	 



     


    

 


“REAs”
shall mean, collectively, those certain agreement(s) more particularly described on Schedule VII attached hereto
and made a part hereof, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance
with the terms of this Agreement.


 


“Regulation
AB” shall mean Regulation AB under the Securities Act and the Exchange Act, as such Regulation may be amended from
time to time.


 


“Related Loan”
shall mean a loan to an Affiliate of Borrower, Operating Lessee or any Guarantor or secured by a Related Property, that is included
in a Securitization with the Loan, and any other loan that is cross-collateralized with the Loan.


 


“Related Property”
shall mean a parcel of real property, together with improvements thereon and personal property related thereto, that is “related”
within the meaning of the definition of Significant Obligor, to any Individual Property.


 


“REMIC Opinion”
shall mean, as to any matter, an opinion of nationally recognized REMIC counsel as to the compliance of such matter with applicable
REMIC Requirements (which such opinion shall be, in form and substance and from a provider, in each case, reasonably acceptable
to Lender and acceptable to the Rating Agencies).


 


“REMIC Requirements”
shall mean any applicable legal requirements, as determined under the Code, the regulations, revenue rulings, revenue procedures
(such as Rev. Proc. 2010-30) and other administrative, legislative and judicial guidance, relating to the tax treatment of REMIC
Trusts, including, without limitation, the continued treatment of a Loan as a “qualified mortgage,” the continued qualification
of any REMIC Trust as a REMIC, the non-imposition of any tax on any REMIC Trust, including without limitation the taxes on “prohibited
transactions” and “contributions,” and any other constraints, rules or other regulations or requirements relating
to the servicing, modification or other similar matters with respect to a REMIC-held mortgage Loan (or any portion thereof or interest
therein) that may exist or be promulgated under the Code.


 


“REMIC Trust”
shall mean a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code that holds
the Note.


 


“Rents”
shall mean all rents, rent equivalents, 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, moneys
payable as damages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utility and
other deposits), accounts, cash, issues, profits, charges for services rendered, Operating Rent and other consideration of whatever
form or nature received by or paid to or for the account of or benefit of Borrower, Operating Lessee or any of their respective
agents or employees from any and all sources arising from or attributable to the Properties, all other items of revenue, receipts
or other income as identified in the Uniform System of Accounts, current edition, and Insurance Proceeds, if any, from business
interruption or other loss of income insurance, but only to the extent Lender elects to treat such Insurance Proceeds as business
or rental interruption Insurance Proceeds pursuant to Section 5.4(f) hereof.


 


“Repayment
Date” shall mean the date of a prepayment of the Loan pursuant to the provisions of Section 2.4 hereof.


 




    	 	-29-	 



     


    

 


“Replacement
Interest Rate Cap Agreement” shall mean an interest rate cap agreement from an Approved Counterparty with terms that
are the same in all material respects as the terms of the Interest Rate Cap Agreement except that the same shall be effective as
of (i) in connection with a replacement pursuant to Section 2.6.3(c) or (ii) in connection with a replacement (or extension
of the then-existing Interest Rate Cap Agreement) in connection to an extension of the Maturity Date pursuant to Section 2.7,
the date required in Section 2.7; provided that to the extent any such interest rate cap agreement does not meet the
foregoing requirements, a Replacement Interest Rate Cap Agreement shall be such interest rate cap agreement approved in writing
by Lender, and if the Loan or any portion thereof is included in a Securitization, each of the Rating Agencies with respect thereto.


 


“Reserve Funds”
shall mean, collectively, all funds deposited by Borrower or Operating Lessee with Lender or Deposit Bank pursuant to Article 6
of this Agreement, including, but not limited to, the Insurance Funds, the Tax Funds, the Casualty and Condemnation Funds, the
FF&E Reserve Funds and the Scheduled PIP Reserve Funds.


 


“Restoration”
shall mean the repair and restoration of any Individual Property after a Casualty or Condemnation as nearly as possible to the
condition such Individual Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably
approved by Lender.


 


“Restricted
Payments” shall mean any payments to any Guarantor or any of its respective Affiliates, or any payments of any “override”
or “profit participations”, asset management or incentive-based fees or expenses, or any transition or termination
fees, costs or expenses, or their equivalent; provided, however, that “Restricted Payments” shall not
include (i) any Management Fees that are payable to any Manager (that is not an Affiliate of Borrower or Operating Lessee) pursuant
to any Management Agreement that has been approved by Lender (including approval of any amendments thereto), (ii) any Base Management
Fees that are payable to any Manager that is an Affiliate of Borrower or Operating Lessee pursuant to any Management Agreement
that has been entered into in accordance with Section 4.14 (including any amendments thereto) (provided no Event of
Default exists) or (iii) any payments required to be made by the terms of the Loan Documents.


 


“Routine Capital
Expenditures” shall mean routine and ordinary course maintenance, repairs, alterations and replacements of or to
the Properties, such as exterior and interior painting, resurfacing of walls and floors, replacement of wall, ceiling or floor
coverings, replacement of bathroom fixtures (including tubs and surrounds), replacement of lighting fixtures, minor wall demolition
and replacement to accommodate guest room or bathroom renovation and/or brand required changes to lobbies, public spaces, guest
rooms or bathrooms, replacements of doors and frames, replacement of windows and frames, pool and deck repairs, roof repairs and
replacements, landscaping, resurfacing parking areas and replacing folding walls, in each case that are capitalized under GAAP.
For the avoidance of doubt, “Routine Capital Expenditures” shall not include expansion or “growth” projects
or any Material Alteration.


 


“S&P”
shall mean Standard & Poor’s Ratings Group, a division of the McGraw-Hill Companies.


 




    	 	-30-	 



     


    

 


“Securitization
Date” shall mean the “startup day,” within the meaning of Section 860G(a)(9) of the Code, of a “real
estate mortgage investment conduit,” within the meaning of Section 860D of the Code, that holds all or any portion of
the Note.


 


“Securitization
Vehicle” means each REMIC Trust or a Grantor Trust into which all or a portion of the Loan has been transferred.


 


“Security Deposits”
shall mean all security (whether cash, letters of credit or otherwise) given to Borrower or any agent or Person acting on behalf
of Borrower in connection with any Leases.


 


“Significant
Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.


 


“Special Purpose Bankruptcy Remote
Entity” shall mean an entity that, at all relevant times, has complied and will comply with the representations,
warranties and covenants set forth in Schedule V.


 


“Special Taxes”
shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments,
fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.


 


“Spread”
shall mean 2.75%; provided, that the Spread shall be increased by twenty-five basis points (0.25%) from and after the first day
of the Third Extended Term, in accordance with Section 2.7.1(e) hereof, without duplication of any increase with respect
to the Base Rate Spread or the Substitute Rate Spread.


 


“Spread Maintenance
Premium” shall mean, with respect to any payment or prepayment of the principal of the Loan (or acceleration of the
Loan) occurring the date immediately following the Spread Maintenance Start Date and on any date thereafter up to and including
the Open Prepayment Date, an amount equal to the product of (i) the Spread; (ii) the portion of the Loan that is being prepaid
or repaid that is subject to the Spread Maintenance Premium; and (iii) a fraction, the numerator of which is the number of days
following the date through which interest on the prepaid amount has been paid to the end of the full accrual period associated
with the Open Prepayment Date and the denominator of which is 360.


 


“Spread Maintenance
Start Date” shall mean the Monthly Payment Date occurring in October, 2019.


 


“Star Report”
shall mean the report which is produced by Smith Travel Research (or, if Smith Travel Research no longer is in existence at any
time during the Term, the substantially similar report of the successor of Smith Travel Research or such other industry resource
that is equally as reputable as Smith Travel Research will be substituted, in order to obtain substantially the same result as
would be obtained if Smith Travel Research had not ceased to be in existence) which assesses and compares the performance of hotels
within a selected competitive set and includes comparisons of revenues per available room, average daily rates and occupancy rates.


 


“State”
shall mean New York State.


 




    	 	-31-	 



     


    

 


“Strike Price”
shall mean the actual “strike price” of the Interest Rate Cap Agreement or any Replacement Interest Rate Cap Agreement,
which shall never exceed the applicable Capped LIBOR Rate.


 


“Substitute
Base Rate” shall mean, for any Interest Period, the rate of the Substitute Index determined as of the Interest Determination
Date immediately preceding the commencement of such Interest Period, provided, that, in no event shall the Substitute Base Rate
be less than the Index Floor.


 


“Substitute
Index” shall mean a floating rate index (a) that is commonly accepted by market participants in commercial real estate
lending transactions as an alternative to LIBOR, as determined by Lender in good faith, and (b) that is publicly recognized by
the International Swaps and Derivatives Association (ISDA) as an alternative to LIBOR.


 


“Substitute
Interest Rate Protection Agreement” shall mean (a) an interest rate cap agreement (together with the confirmation
and schedules relating thereto) in form and substance reasonably satisfactory to Lender between an Approved Counterparty and Borrower,
obtained by Borrower and collaterally assigned to Lender as required pursuant to this Agreement that contains each of the following:


 


(i)           a
term expiring no earlier than the end of the Interest Period related to the then-applicable Maturity Date;


 


(ii)          the
notional amount of the Substitute Interest Rate Protection Agreement shall be equal to or greater than the then outstanding principal
balance of the Loan;


 


(iii)         it
provides that the only obligation of Borrower thereunder is the making of a single payment to the Counterparty thereunder upon
the execution and delivery thereof;


 


(iv)         it
provides for a strike rate equal to the Capped LIBOR Rate and complies with the terms of Section 2.6 hereof; and


 


(v)          without
limiting any of the provisions of the preceding clauses (i) through (iv) above, it satisfies all of the requirements
set forth in Section 2.6 hereof; or


 


(b)          a
modification or amendment to the then-existing Interest Rate Protection Agreement entered into in writing by Borrower and an Approved
Counterparty which causes such Interest Rate Protection Agreement to satisfy the requirements of clause (a) of this
definition of “Substitute Interest Rate Protection Agreement”.


 


“Substitute
Rate” shall mean, with respect to each Interest Period that occurs while the Loan is a Substitute Rate Loan, a per
annum interest rate equal to the Substitute Base Rate applicable to the Interest Period plus the Substitute Rate Spread; provided,
however, in no event shall the Substitute Rate be less than the Index Floor plus the Spread.


 




    	 	-32-	 



     


    

 


“Substitute
Rate Loan” shall mean the Loan at any time in which the Applicable Interest Rate is calculated at the Substitute
Rate.


 


“Substitute
Rate Spread” shall mean, in connection with any conversion of the Loan from (a) a LIBOR Loan to a Substitute Rate
Loan, the difference (expressed as the number of basis points) between (i) LIBOR plus the Spread as of the Interest Determination
Date for which LIBOR was last utilized to determine the interest rate of the Loan minus (ii) the Substitute Base Rate as of such
Interest Determination Date for which LIBOR was last utilized to determine the interest rate of the Loan, or (b) a Base Rate Loan
to a Substitute Rate Loan, the difference (expressed as the number of basis points) between (i) the Base Rate in effect for the
Interest Period prior to the Interest Period in which the Substitute Rate is to be applied minus (ii) the Substitute Base Rate
in effect for the Interest Period prior to the Interest Period in which the Substitute Rate is to be applied; provided, however,
that if such difference is a negative number, then the Substitute Rate Spread shall be zero. If the Loan is a Substitute Rate Loan
immediately prior to the commencement of the Third Extended Term, the Substitute Rate Spread shall be increased by twenty-five
basis points (0.25%) from and after the first day of the Third Extended Term, in accordance with Section 2.7.1(e) hereof,
without duplication of any increase with respect to the Spread or the Base Rate Spread.


 


“Surveys”
shall mean the surveys of each Individual Property prepared by a surveyor licensed in the state in which each Individual Property
is located and reasonably satisfactory to Lender and the company or companies issuing the Title Insurance Policy, and containing
a certification of such surveyor reasonably satisfactory to Lender.


 


“Taxes”
shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed
or imposed against the Properties, any Individual Property or part thereof, together with all interest and penalties thereon. For
the avoidance of doubt, “Taxes” shall not include income, branch profits, franchise, sales, hotel room occupancy taxes,
commercial rent or occupancy taxes and other similar charges, taxes or expenses. In no event shall any PACE Loan be considered
a Tax for purposes of this Agreement.


 


“Tenant”
shall mean any Person obligated by contract or otherwise to pay monies (including a percentage of gross income, revenue or profits)
under any Lease now or hereafter affecting all or any part of an Individual Property.


 


“Term”
shall mean the entire term of this Agreement, which shall expire upon repayment in full of the Debt.


 


“Title Insurance
Policy” shall mean, with respect to each Individual Property, an ALTA mortgagee title insurance policy in the form
acceptable to Lender issued with respect to such Individual Property and insuring the Lien of the Mortgage encumbering such Individual
Property.


 


“TRIPRA”
shall mean the Terrorism Risk Insurance Program Reauthorization Act of 2002 or any extension, renewal or replacement thereof.


 




    	 	-33-	 



     


    

 


“Trigger Period”
shall commence upon (i) the occurrence of an Event of Default, (ii) the occurrence of a Mezzanine Loan Default or (iii) the commencement
of a Low Cash Flow Trigger Period; and shall end if, (A) with respect to a Trigger Period continuing pursuant to clause (i),
the Event of Default commencing the Trigger Period has been waived in writing by Lender or Lender has accepted a cure of such Event
of Default (and no other Event of Default is then continuing), (B) with respect to a Trigger Period continuing pursuant to clause (ii),
the Mezzanine Loan Default commencing the Trigger Period has been waived in writing by the Mezzanine Lender or Mezzanine Lender
has accepted a cure of such Mezzanine Loan Default, and a copy of such written waiver or acceptance of cure, as applicable, shall
have been delivered by the Mezzanine Lender to Lender (and no other Mezzanine Loan Default is then continuing) or (C) with respect
to a Trigger Period continuing due to clause (iii), the Low Cash Flow Trigger Period has ended pursuant to the terms
hereof.


 


“Trustee”
shall mean any trustee holding the Loan in a Securitization.


 


“UCC”
or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State (with respect
to fixtures), the State of New York or the state in which any of the Cash Management Accounts are located, as the case may be.


 


“Uncalled Commitments”
means, with respect to a Person the capital commitments of such Person that are unencumbered, have not yet been called and (a)
are eligible to be called (i.e., such Person has the right to call such commitments under the investment fund constituent documents)
without having to comply with or satisfy any conditions precedent (other than notification that the required portion of their commitments
are being called) and (b) are made by institutional investors or “Accredited Investors” (as defined under US securities
laws) and in the case of (a) and (b), that (i) are not subject to a proceeding under the Bankruptcy Code or under federal, state
or foreign insolvency law and (ii) are not in default under a material provision of their respective subscription agreements.


 


“Underwritten
Net Cash Flow” shall mean the aggregate Net Operating Income for all of the Properties for the twelve (12) month
period immediately preceding the date of determination (including, without duplication, as “Operating Expenses” during
such twelve (12) month period, for the purposes of determining Net Operating Income, (i) deemed contributions to the FF&E Reserve
Account equal to the greater of (1) four percent (4%) of aggregate Adjusted Operating Income (excluding, for the avoidance of doubt,
all Hotel Taxes) and (2) Borrower’s actual contributions to the FF&E Reserve Account for the Properties for such period
and (ii) the greater of (x) three percent (3%) of aggregate Operating Income (excluding, for the avoidance of doubt, all Hotel
Taxes) for the Properties for such period, notwithstanding the fact that the actual amount paid as Management Fees under the Management
Agreements during such twelve (12) month period may have been less than that amount, and (y) the actual amount of Management Fees
paid under the Management Agreements during such twelve (12) month period (without duplication of any expense reimbursements or
pass-through expenses that are already included as Operating Expenses)).


 


“Uniform System
of Accounts” shall mean the most recent edition of the Uniform System of Accounts for Hotels, as adopted by the American
Hotel and Motel Association, as from time to time amended.


 


“U.S. Obligations”
shall mean securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (i)
direct obligations of the United States of America for the payment of which its full faith and credit is pledged, and (ii) not
subject to prepayment, call or early redemption.


 




    	 	-34-	 



     


    

 


“Waste”
shall mean any material abuse or, other than demolition in connection with a Restoration or Alteration conducted in accordance
with the Loan Documents, destructive use of any Individual Property.


 


Section 1.2          Index
of Other Definitions. The following terms are defined in the sections or Loan Documents as indicated below:


 


“Account Representative” – 6.14


“Accounts” – 6.1


“Act” – Schedule V


“ADA Repairs” – 6.2.1


“Advance Booking Agreement” – Section 1.1
– Definition of Advance Deposits


“Affected Property” – 9.3.4


“Agreement” – Introductory Paragraph


“Approved Annual Budget” – 4.9.5


“Approved Excess Operating Expense” – 4.9.6


“Approved Scheduled PIP Budget” – Section 1.1
– Definition of Approved Scheduled PIP Expenses


“Assumption Agreement” – 7.1(a)


“Available Cash” – 6.11


“Bail-In Action” – 10.32


“Bail-In Legislation” – 10.32


“Borrower’s Recourse Liabilities” –
10.1


“Breakage Costs” – 2.2.4(j)


“Broker” – 10.19


“Cash Collateral Account” – 6.10


“Cash Collateral Funds” – 6.10


“Cash Management Accounts” – 6.12


“Casualty” – 5.2


“Casualty and Condemnation Account” – 6.9


“Casualty and Condemnation Funds” – 6.9


“Casualty Consultant” – 5.4(b)(iii)


“Casualty Retainage” – 5.4(b)(iv)


“Cause” – Schedule V


“Change of Control Flagging Costs” – 4.34(e)


“Committee” – Schedule V


“Condemnation Proceeds” – 5.4(b)


“Counterparty Opinion” – 2.6.3


“Covered Rating Agency Information” – 9.2


“Crestline” – 6.11.3


“Debt Service Account” – Cash Management
Agreement


“Disclosure Document” – 9.2(a)


“Disposition Conditions” – 4.2


“Due Date” – 6.3.1


“EEA Financial Institution” – 10.32


“EEA Member Country” – 10.32


“EEA Resolution Authority” – 10.32


“Embargoed Person” – 4.32(b)


 




    	 	-35-	 



     


    

  


“Equipment” – Mortgage


“ERISA” – 4.31


“EU Bail-In Legislation Schedule” – 10.32


“Event of Default” – 8.1


“Excess Operating Expenses” – 4.9.6


“Exchange Act” – 9.2(a)


“Exchange Act Filing” – 9.1(d)


“Existing Qualified Equityholder” – 7.2(j)


“FF&E Reserve Account” – 6.8.1


“FF&E Reserve Funds” – 6.8.1


“FF&E Work” – 6.8.1


“First Extended Maturity Date” – 2.7.1


“First Extended Term” – 2.7.1


“First Extension Notice” – 2.7.1


“First Extension Option” – 2.7.1


“Fixtures” – Mortgage


“Flagging Costs” – 4.34(e)


“Furnished Information” – 9.5


“Full Replacement Cost” – 5.1.1


“Holdco” – 4.9.2(a)


“Immediate Low Cash Flow Trigger Cure” –
Section 1.1 – Definition of Low Cash Flow Trigger Period


“Improvements” – Mortgage


“Increased Costs” – 2.8.1


“Indemnified Liabilities” – 4.30


“Independent Director” – Schedule V


“Independent Manager” – Schedule V


“Indirect Transferee” – 7.1(b)


“Initial Interest Period” – 2.3.1


“Insurance Account” – 6.4.1


“Insurance Funds” – 6.4.1


“Insurance Premiums” – 5.1.1(b)


“Intellectual Property” – 3.1.33


“Interest Period” – 2.3.2


“Lender” – Introductory Paragraph


“Lender Group” – 9.2(b)


“Liabilities” – 9.2(b)


“Licenses” – 3.1.9


“Manager’s Expenses” – 6.1


“Material Action” – Schedule V


“Material Adverse Effect” – 4.2


“Material Lease” – 4.1.11


“Nationally Recognized Service Company” –
Schedule V


“Net Impaired Individual Property Release Amount”
– 2.4.4(b)


“Net Proceeds” – 5.4(b)


“Net Proceeds Deficiency” – 5.4(b)(vi)


“Net Proceeds Principal Prepayment” – 2.4.4(a)


“Net Remaining Proceeds” – 2.4.4(a)


 




    	 	-36-	 



     


    

  


“New Mezzanine Loan” – 9.3.2


“New Mezzanine Loan Borrower” – 9.3.2


“Note” – 2.1.4


“Notice” – 10.6


“Other Exculpated Party” – 10.1


“Other Taxes” – 2.8.3


“Participant Register” – 10.30(b)


“Permitted Direct Assumption” – 7.1(a)


“Permitted Indirect Assumption” – 7.1(b)


“Permitted Indebtedness” – 4.21


“Permitted Investments” – Cash Management
Agreement


“Permitted Transfer” – 7.2


“Policies” – 5.1.1(b)


“Preferred Guaranty” – 7.2(k)(vi)


“QEH Replacement Guarantor” – 7.2(j)(iii)

“QEH Transferee” – 7.2(j)


“Rate Cap Collateral” – 2.6.2


“Rate Substitution Conditions” – 2.2.4(a)


“Register” – 10.30(a)


“Replacement Guarantor” – 7.1(a)


“Required Records” – 4.9.7


“Resizing” – 9.3.1


“Review Waiver” – 10.3(b)


“Scheduled PIP” – 3.1.38


“Scheduled PIP Reserve Account” – Section 6.5.1


“Scheduled PIP Reserve Funds” – Section 6.5.1


“Second Extended Maturity Date” – 2.7.1


“Second Extended Term” – 2.7.1


“Second Extension Notice” – 2.7.1


“Second Extension Option” – 2.7.1


“Secondary Market Transaction” – 9.1(a)


“Securities” – 9.1(a)


“Securities Act – 9.2(a)


“Securitization” – 9.1(a)


“Servicer” – 10.21


“Servicing Agreement” – 10.21


“Sole Member” – Schedule V


“Special Member” – Schedule V


“Springing Recourse Event” – 10.1


“Stated Maturity Date” – Section 1.1
– Definition of Maturity Date


“Substitute Guarantor” – 7.2(h)


“Summary Financial Information”


“Tax Account” – 6.3.1


“Tax Funds” – 6.3.1


“Third Extended Maturity Date” – 2.7.1


“Third Extended Term” – 2.7.1


“Third Extension Notice” – 2.7.1


“Third Extension Option” – 2.7.1


 




    	 	-37-	 



     


    

  


“Transfer” – 4.2


“Transferee Borrower” – 7.1(a)


“Underperforming Replacement” – 4.14.2(c)


“Underwriter Group” – 9.2(b)


“Updated Information” – 9.1(b)(i)


“Write-Down and Conversion Powers” – 10.32


 


Section 1.3          Principles
of Construction. All references to sections and schedules are to sections and schedules in or to this Agreement unless
otherwise specified. Unless otherwise specified, the words “hereof,” “herein” and “hereunder”
and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other
Loan Document as a whole and not to any particular provision hereof or thereof. When used in this Agreement or any other Loan Document,
the word “including” shall mean “including but not limited to”. Unless otherwise specified, all meanings
attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.


 


ARTICLE
2


 


THE
LOAN


 


Section 2.1          The
Loan.


 


2.1.1      Agreement
to Lend and Borrow. Subject to and upon the terms and conditions set forth herein, Lender shall make the Loan to Borrower
and Borrower shall accept the Loan from Lender on the Closing Date.


 


2.1.2      Intentionally
Omitted.


 


2.1.3      Single
Disbursement to Borrower. Borrower shall receive only one borrowing hereunder in respect of the Loan and any amount borrowed
and repaid hereunder in respect of the Loan may not be reborrowed.


 


2.1.4      The
Note. The Loan shall be evidenced by that certain Promissory Note of even date herewith, in the stated principal amount
of Forty-Six Million Ninety-Nine Thousand and No/100 Dollars ($46,099,000.00) executed by Borrower and payable to Lender (as the
same may hereafter be amended, supplemented, restated, increased, extended or consolidated from time to time, the “Note”),
in evidence of the Loan, and shall be repaid in accordance with the terms of this Agreement, the Note and the other Loan Documents.


 


2.1.5      Use
of Proceeds. Borrower shall use proceeds of the Loan to (i) refinance any existing mortgage and mezzanine loans secured
directly or indirectly by the Properties including, without limitation, the Prior Loans, (ii) pay all past-due Taxes, Insurance
Premiums and Other Charges, if any, in respect of the Properties, (iii) make initial deposits of the Reserve Funds, (iv) pay costs
and expenses incurred in connection with the closing of the Loan, and (v) to the extent any proceeds remain after satisfying clauses (i)
through (iv) above, for such lawful purpose as Borrower shall designate.


 




    	 	-38-	 



     


    

 


Section 2.2          Interest
Rate.


 


2.2.1      Applicable
Interest Rate. Subject to the terms and conditions of this Section, the Loan shall accrue interest throughout the Term
at the Applicable Interest Rate during each Interest Period. Borrower shall pay to Lender on each Monthly Payment Date the interest
accrued or to be accrued on the Loan for the related Interest Period.


 


2.2.2      Default
Rate. In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the outstanding
principal balance of the Loan and, to the extent not prohibited by applicable law, all other portions of the Debt, shall accrue
interest at the applicable Default Rate, calculated from the date such payment was due or, if later, such Default shall have occurred
without regard to any grace or cure periods contained herein. Interest at the Default Rate shall be paid immediately upon demand,
which demand may be made as frequently as Lender shall elect, to the extent not prohibited by applicable law.


 


2.2.3      Interest
Calculation. Interest on the outstanding principal balance of the Loan shall be calculated by multiplying (A) the actual
number of days elapsed in the period for which the calculation is being made by (B) a daily rate based on a three hundred sixty
(360) day year (that is, the Applicable Interest Rate or the Default Rate, as then applicable to the Loan expressed as an annual
rate divided by 360) by (C) the outstanding principal balance of the Loan. The accrual period for calculating interest due on each
Monthly Payment Date shall be the Interest Period ending immediately prior to such Monthly Payment Date.


 


2.2.4      Conversion
of Applicable Interest Rate.


 


(a)          In
the event that Lender shall have determined that by reason of circumstances affecting the interbank Eurodollar market or otherwise:


 


(i)           LIBOR
ceases to be reported;


 


(ii)          adequate
and reasonable means do not exist for ascertaining LIBOR as provided in the definition of LIBOR as set forth in this Agreement;
or


 


(iii)         LIBOR
has been succeeded by a Substitute Index;


 


then, Lender shall deliver
a Conversion Notice to Borrower at least one (1) Business Day prior to the Interest Determination Date and the Loan shall convert
from a LIBOR Loan to a Substitute Rate Loan and establish the Applicable Interest Rate for the Loan at the Substitute Rate effective
as of the Conversion Date, provided that, following a Securitization, such conversion shall be subject to (A) Lender’s receipt
of an opinion of nationally recognized REMIC counsel as to the compliance of such conversion with applicable REMIC requirements
as determined under the Code, the regulations, revenue rulings, revenue procedures and other administrative, legislative and judicial
guidance relating to the tax treatment of REMIC Trusts (which such opinion shall be, in form and substance and from a provider,
in each case, acceptable to Lender and the Rating Agencies); provided, however, such condition may be satisfied with the issuance
of a general guidance, ruling, bulletin or decision by the Internal Revenue Service reasonably acceptable to the Lender, and (B)
if the Loan is in a Securitization, a Rating Agency Confirmation with respect to such conversion (which Rating Agency Confirmation
may be specific to the Loan or in the form of general guidance from the Rating Agencies that has issued a credit rating for the
Securities) (collectively, the “Rate Substitution Conditions”). Upon satisfaction of the Rate Substitution
Conditions, Lender shall notify Borrower that the Rate Substitution Conditions have been satisfied. If such notice is given, the
Conversion Date shall be the first day of the next succeeding Interest Period, and the Loan shall be converted to a Substitute
Rate Loan and the Applicable Interest Rate for the Loan shall be the Substitute Rate.


 




    	 	-39-	 



     


    

  


(b)          In
the event that Lender shall have delivered a Conversion Notice to Borrower and a Substitute Index is not available or the Rate
Substitution Conditions cannot be satisfied, then notwithstanding clause (a) above, upon notice from Lender to Borrower
at least one (1) Business Day prior to the Interest Determination Date that the Substitute Index is not available or the Rate Substitution
Conditions cannot be satisfied, the Loan shall be converted, from, after and including the first day of the next succeeding Interest
Period, to a Base Rate Loan bearing interest based on the Base Rate in effect on each applicable Interest Determination Date.


 


(c)          If,
pursuant to the terms of Section 2.2.4(b) above, the Loan has been converted to a Base Rate Loan but thereafter LIBOR
has been succeeded by a Substitute Index and the Rate Substitution Conditions have been satisfied, then Lender shall deliver a
Conversion Notice to Borrower at least one (1) Business Day prior to the Interest Determination Date and, thereafter, the Base
Rate Loan shall be converted to a Substitute Rate Loan from, after and including the first day of the next succeeding Interest
Period bearing interest based on the Substitute Rate in effect on each applicable Interest Determination Date. Further, if the
Loan has been converted to a Substitute Rate Loan and thereafter the Substitute Index becomes unavailable, then notwithstanding
anything contained herein to the contrary, the Loan shall convert from a Substitute Rate Loan to a Base Rate Loan and establish
the Applicable Interest Rate for the Loan at the Base Rate effective as of the Conversion Date.


 


(d)          If
the Loan is a Substitute Rate Loan or a Base Rate Loan and Lender determines that the event(s) or circumstance(s) which resulted
in such conversion is no longer applicable, Lender shall deliver a Conversion Notice at least one (1) Business Day prior to the
Interest Determination Date to Borrower converting the Loan to a LIBOR Loan and the Applicable Interest Rate shall be calculated
by reference to LIBOR as provided in the Conversion Notice.


 


(e)          Upon
each conversion of the Loan into a Base Rate Loan or a Substitute Rate Loan, Borrower shall enter into, make all payments under,
and satisfy all conditions precedent to the effectiveness of, a Substitute Interest Rate Protection Agreement and deliver to Lender
a new Assignment of Rate Protection Agreement applicable to such Substitute Interest Rate Protection Agreement within (i) with
respect to conversion of the Loan into a Base Rate Loan, sixty (60) days of the applicable Conversion Date, and (ii) with respect
to conversion of the Loan into a Substitute Rate Loan, thirty (30) days of the applicable Conversion Date; provided that if a Substitute
Interest Rate Protection Agreement is not then commercially available, Borrower shall purchase a mutually agreeable alternative
to a Substitute Interest Rate Protection Agreement that would afford Lender substantially equivalent protection from increases
in the Applicable Interest Rate, as reasonably determined by Lender. In connection with Borrower obtaining a new Substitute Interest
Rate Protection Agreement (in lieu of modifying an existing Interest Rate Cap Agreement to serve as the Substitute Interest Rate
Protection Agreement), but not prior to Borrower taking all the actions described in this clause (e), Borrower shall
have the right to terminate any then-existing Interest Rate Cap Agreement.


 




    	 	-40-	 



     


    

  


(f)           Notwithstanding
any provision of this Agreement to the contrary, in no event shall Borrower have the right to elect to convert a LIBOR Loan to
a Base Rate Loan or a Substitute Rate Loan, or to convert a Base Rate Loan to a LIBOR Loan or a Substitute Rate Loan or to convert
a Substitute Rate Loan to a Base Rate Loan or a LIBOR Loan.


 


(g)          Each
determination by Lender under this Section 2.2.4, including the basis for a change in the Applicable Interest Rate
for the Loan, the identification of the Applicable Interest Rate for the Loan or the identification of the Substitute Index, shall
be conclusive and binding upon Borrower for all purposes, absent manifest error.


 


(h)          In
the event of any Change in Law or in the interpretation or application thereof shall hereafter make it unlawful for Lender to make
or maintain a LIBOR Loan as contemplated hereunder, (i) the obligation of Lender hereunder to make a LIBOR Loan or to convert a
Base Rate Loan or a Substitute Rate Loan to a LIBOR Loan shall be cancelled forthwith and (ii) any outstanding LIBOR Loan shall
be converted automatically to a Base Rate Loan or Substitute Rate Loan, as applicable based on the provisions of this Section 2.2.4
on the first day of the next succeeding Interest Period or within such earlier period as required by law. Borrower hereby agrees
promptly to pay Lender, upon demand, any additional amounts reasonably necessary to compensate Lender for any out-of-pocket costs
reasonably incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest
or fees payable by Lender to lenders of funds obtained by it in order to make or maintain the LIBOR Loan hereunder. Lender’s
notice of such costs, as certified to Borrower, shall be set forth in reasonable detail and Lender’s calculation shall be
conclusive absent manifest error.


 


(i)           Without
limiting the provisions of clauses (a) – (f) above, in the event of any Change in Law or in the interpretation
or application thereof, or compliance by Lender with any request or directive (whether or not having the force of law) hereafter
issued from any central bank or other Governmental Authority:


 


(i)           shall
hereafter have the effect of reducing the rate of return on Lender’s capital (other than as a result of an increase in taxes)
as a consequence of its obligations hereunder to a level below that which Lender could have achieved but for such adoption, change
or compliance (taking into consideration Lender’s policies with respect to capital adequacy) by any amount reasonably deemed
by Lender to be material;


 


(ii)          shall
hereafter impose, modify, increase or hold applicable any reserve, special deposit, compulsory loan or similar requirement against
assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of the rate hereunder
(other than as a result of an increase in taxes); or


 


(iii)         shall
hereafter impose on Lender any other condition (other than an increase in taxes) and the result of any of the foregoing is to increase
the cost to Lender of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder;


 




    	 	-41-	 



     


    

 


then, in any such case, Borrower shall promptly
pay Lender, upon demand, any additional amounts necessary to compensate Lender for such additional cost or reduced amount receivable
which Lender deems to be material as reasonably determined by Lender; provided, however, that Borrower shall not be required under
this Section 2.2.4 to pay Lender additional amounts for additional costs or reduced amounts receivable that are attributable
to an increase in taxes imposed on Lender. If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.2.4(i),
Borrower shall not be required to pay same unless they are the result of requirements imposed generally on lenders similar to Lender
and not the result of some specific reserve or similar requirement imposed on Lender as a result of Lender’s special circumstances
and such Lender is charging the same amounts to similarly situated borrowers. If Lender becomes entitled to claim any additional
amounts pursuant to this Section 2.2.4(i), Lender shall provide Borrower with not less than thirty (30) days written
notice specifying in reasonable detail the event by reason of which it has become so entitled and the additional amount required
to fully compensate Lender for such additional cost or reduced amount. A certificate as to any additional costs or amounts payable
pursuant to the foregoing sentence, executed by an authorized signatory of Lender and submitted by Lender to Borrower shall be
conclusive in the absence of manifest error. Notwithstanding the foregoing, in no event shall Borrower have any obligation to pay
or otherwise compensate such Lender pursuant to this Section 2.2.4(i) for any cost or amount in respect of a period
occurring more than six (6) months prior to the date that such Lender notifies Borrower of such Lender’s intent to claim
compensation thereunder. This provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower
under this Agreement and the Loan Documents.


 


(j)           Borrower
agrees to indemnify Lender and to hold Lender harmless from any actual out-of-pocket loss or expense (other than consequential
and punitive damages) which Lender sustains or incurs as a result of (i) any default by Borrower in payment of the principal of
or interest on a LIBOR Loan, a Base Rate Loan or a Substitute Rate Loan, including, without limitation, any such loss or expense
arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a LIBOR Loan, a Base Rate
Loan or a Substitute Rate Loan hereunder, (ii) any prepayment (whether voluntary or mandatory) of the LIBOR Loan, the Base Rate
Loan or the Substitute Rate Loan on a day that (A) is not a Monthly Payment Date, unless Borrower pays interest through the end
of the applicable Interest Period as required hereunder or (B) is a Monthly Payment Date if Borrower did not give the prior written
notice of such prepayment required pursuant to the terms of this Agreement, including, without limitation, such loss or expense
arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain the LIBOR Loan, the Base
Rate Loan or the Substitute Rate Loan hereunder, (iii) the conversion (for any reason whatsoever, whether voluntary or involuntary)
of the Applicable Interest Rate for the Loan to the Base Rate or the Substitute Rate or to a LIBOR Loan on a date other than the
first day of an Interest Period and (iv) any loss or expenses arising from interest or fees payable by Lender to lenders of funds
obtained by it in order to maintain a LIBOR Loan, a Base Rate Loan or a Substitute Rate Loan hereunder (the amounts referred to
in clauses (i), (ii), (iii) and (iv) are herein referred to collectively as the “Breakage
Costs”) ; provided, however, Borrower shall not indemnify Lender from any loss or expense arising from
Lender’s willful misconduct or gross negligence. Whenever in this Section 2.2.4 the term “interest or fees
payable by Lender to lenders of funds obtained by it” is used and no such funds were actually obtained from such lenders,
it shall include interest or fees which would have been payable by Lender if it had obtained funds from lenders in order to maintain
a LIBOR Loan, a Base Rate Loan or a Substitute Rate Loan hereunder. Lender will provide to Borrower a statement detailing such
Breakage Costs and the calculation thereof.


 




    	 	-42-	 



     


    

  


(k)          The
provisions of this Section 2.2.4 shall survive payment of the Note in full and the satisfaction of all other obligations
of Borrower under this Agreement and the other Loan Documents.


 


2.2.5      Usury
Savings. This Agreement and the other Loan Documents are subject to the express condition that at no time shall Borrower
be required to pay interest on the Outstanding Principal Balance at a rate which could subject Lender to either civil or criminal
liability as a result of being in excess of the Maximum Legal Rate. If by the terms of this Agreement or the other Loan Documents,
Borrower is at any time required or obligated to pay interest on the Outstanding Principal Balance at a rate in excess of the Maximum
Legal Rate, the Applicable Interest Rate for the Loan or the Default Rate for the Loan, as the case may be, shall be deemed to
be immediately reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate shall be deemed
to have been payments in reduction of principal and not on account of the interest due hereunder. All sums paid or agreed to be
paid to Lender for the use, forbearance, or detention of the sums due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum Legal Rate from time to time in effect and applicable
to the Loan for so long as the Loan is outstanding.


 


Section 2.3          Loan
Payments.


 


2.3.1      Payments.
On the date hereof, Borrower shall pay interest on the outstanding principal balance of the Loan from and including the Closing
Date through and including April 30, 2019 (the “Initial Interest Period”).  On June 1, 2019 and
on each Monthly Payment Date thereafter, up to and including the Maturity Date, Borrower shall make a payment to Lender of interest
equal to the Monthly Debt Service Payment Amount. Borrower shall also pay to Lender all amounts required in respect of Reserve
Funds as set forth in Article 6 hereof.


 


2.3.2      Payments
Generally. After the Initial Interest Period, each interest accrual period thereafter (each, an “Interest Period”)
shall commence on the first (1st) day of each calendar month during the Term and shall end on and include the last day
of such calendar month; provided, that in the event that the Lender elects to reset LIBOR as provided in the definition of the
term “Interest Determination Date,” (i) the Interest Period then in effect shall end on (and include) the calendar
day prior to the Securitization Date and (ii) a new Interest Period shall commence on the Securitization Date, if any, and shall
end on (and include) the last day of the calendar month in which such Securitization Date occurs. For purposes of making payments
hereunder, but not for purposes of calculating Interest Periods, if the Monthly Payment Date is not a Business Day, then amounts
due on such date shall be due on the immediately preceding Business Day. Lender shall have the one-time right, in its reasonable
discretion, upon not less than ten (10) days prior written notice to Borrower, to change the Monthly Payment Date in connection
with the Securitization to a different calendar day and, if requested by Lender, Borrower shall promptly execute an amendment to
this Agreement to evidence such change. With respect to payments of principal due on the Loan on the Maturity Date, interest shall
be payable at the Interest Rate, through and including the last day of the Interest Period applicable to the Maturity Date. All
amounts due pursuant to this Agreement and the other Loan Documents shall be payable without setoff, counterclaim, defense or any
other deduction whatsoever other than as provided in Section 2.8.


 




    	 	-43-	 



     


    

 


2.3.3      Payment
on Maturity Date. Borrower shall pay to Lender on the Maturity Date the Outstanding Principal Balance, all accrued and
unpaid interest and all other amounts due hereunder and under the Note, the Mortgage and the other Loan Documents.


 


2.3.4      Late
Payment Charge. If any principal, interest or any other sum due under the Loan Documents (other than the Outstanding Principal
Balance due and payable on the Maturity Date) is not paid by Borrower within three (3) days of the date on which it is due (or
if such third (3rd) day is not a Business Day, then the immediately preceding Business Day), Borrower shall pay to Lender
upon demand an amount equal to the lesser of three percent (3%) of such unpaid sum or the maximum amount permitted by applicable
law in order to defray the expense incurred by Lender in handling and processing such delinquent payment and to compensate Lender
for the loss of the use of such delinquent payment. Any such amount shall be secured by the Mortgage and the other Loan Documents
to the extent permitted by law.


 


2.3.5      Method
and Place of Payment.


 


(a)          Except
as otherwise specifically provided herein, all payments and prepayments under this Agreement and the Note shall be made to Lender
not later than 2:00 p.m., New York City time, on the date when due and shall be made in lawful money of the United States
of America in immediately available funds at Lender’s office or at such other place as Lender shall from time to time designate,
and any funds received by Lender after such time shall, for all purposes hereof, be deemed to have been paid on the next succeeding
Business Day.


 


(b)          Whenever
any payment to be made hereunder or under any other Loan Document shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be the immediately preceding Business Day.


 


(c)          All
payments required to be made by Borrower hereunder or under the Note or the other Loan Documents shall be made irrespective of,
and without deduction for, any setoff, claim or counterclaim and shall be made irrespective of any defense thereto.


 


Section 2.4          Prepayments.


 


2.4.1      Prepayments.
Except as expressly set forth in this Section 2.4, Borrower shall not have the right to prepay the Loan in whole or
in part at any time prior to the Stated Maturity Date.


 


2.4.2      Voluntary
Prepayments.


 


(a)          Borrower
may prepay the Outstanding Principal Balance in whole, but not in part, on any Business Day, provided that the following conditions
are satisfied: (i) no Event of Default shall have occurred and be continuing; (ii) Borrower shall timely deliver to Lender a Prepayment
Notice; (iii) Mezzanine Borrower shall concurrently make a prepayment of all of the outstanding principal balance of the Mezzanine
Loan, and shall otherwise satisfy the applicable conditions in the Mezzanine Loan Documents with respect to such prepayment (as
evidenced by an Officer’s Certificate and the delivery to Lender of a copy of a payoff letter from the Mezzanine Lender);
(iv) Borrower shall comply with the provisions and pay to Lender the applicable amounts set forth in Section 2.4.6
and (v) Borrower shall also pay to Lender (without duplication of amounts paid under Section 2.4.6) any and all other
amounts outstanding under the Note, this Agreement, and any of the other Loan Documents. The aggregate amount prepaid by Borrower
under this paragraph (a) and concurrently by Mezzanine Borrower under the Mezzanine Loan Documents shall be allocated among
the Loan and the Mezzanine Loan pro rata in accordance with their respective outstanding principal balances immediately
prior to such prepayments.


 




    	 	-44-	 



     


    

 


(b)          If
(i) a Low Cash Flow Trigger Period exists, (ii) Borrower makes a prepayment of the Outstanding Principal Balance hereunder in accordance
with paragraph (a) above (other than clause (ii) thereof) (which may be made by using funds in the Cash
Collateral Account), and Mezzanine Borrower concurrently makes a prepayment of the Mezzanine Loan in accordance with paragraph (a)
above (which Lender agrees may be made by using funds in the Cash Collateral Account if such prepayment would cure the Trigger
Period), (iii) such prepayments are made and upon at least two (2) Business Days prior written notice, (iv) the aggregate amount
prepaid by Borrower under this paragraph (c) and concurrently by Mezzanine Borrower under the Mezzanine Loan Documents
is equal to or greater than the amount that is required to increase the Debt Yield to the applicable Debt Yield Cure Level, and
(v) Borrower pays to Lender the applicable amounts set forth in Section 2.4.6, then such Low Cash Flow Trigger Period will
immediately end.


 


2.4.3      Intentionally
Omitted.


 


2.4.4      Mandatory
Prepayments; Option to Prepay Balance. If Lender is not obligated to make Net Proceeds available to Borrowers for Restoration,
on the next occurring Monthly Payment Date following the date on which (a) Lender actually receives any Net Proceeds, and
(b) Lender has determined that such Net Proceeds shall be applied against the Debt, Borrowers shall prepay, or authorize Lender
to apply Net Proceeds as a prepayment of, the Debt in an amount equal to one hundred percent (100%) of such Net Proceeds. 
Except during an Event of Default, such Net Proceeds shall be applied by Lender as follows in the following order of priority:
First, to any other amounts (other than principal and interest) then due and payable under the Loan Documents, including
any reasonable, actual, out-of-pocket costs and expenses of Lender in connection with such prepayment); Second, accrued
and unpaid interest at the Interest Rate on the amount prepaid; and Third, to principal.  Notwithstanding anything
herein to the contrary, so long as no Event of Default is continuing, no Spread Maintenance Premium or any other prepayment premium,
penalty or fee shall be due in connection with any prepayment made pursuant to this Section 2.4.4.  Any partial
principal prepayment under this Section 2.4.4 shall be applied to the last payments of principal due under the Loan.


 


2.4.5       Prepayments
After Default.


 


(a)          If,
during the continuance of an Event of Default, payment of all or any part of the Debt is tendered by Borrower (other than with
respect to an Event of Default that arises solely as a direct result of the Casualty or Condemnation in respect of which such Net
Proceeds have been paid) and accepted by Lender or is otherwise recovered by Lender (including through application of any Reserve
Funds), such tender or recovery shall be deemed to be a voluntary prepayment by Borrower in violation of the requirements of Section 2.4.1
hereof, and Borrower shall pay, as part of the Debt, all amounts, if any, due pursuant to Section 2.4.6.


 




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(b)          Notwithstanding
anything contained herein to the contrary, upon the occurrence and during the continuance of any Event of Default, any payment
of principal or interest from whatever source may be applied by Lender to the Loan as Lender shall determine in its sole and absolute
discretion.


 


2.4.6      Prepayment/Repayment
Conditions.


 


(a)          On
the date on which a prepayment, voluntary or mandatory, is made under the Note or as required under this Agreement, which date
must be a Business Day, Borrower shall pay to Lender:


 


(i)           (x)
if such prepayment occurs prior to a Securitization, all accrued and unpaid interest calculated at the Applicable Interest Rate
on the amount of principal being prepaid through but excluding the Repayment Date (provided such payment is received by Lender
in accordance with Section 2.3.5(a) hereof), and (y) if such prepayment occurs following a Securitization, any prepayment
of a securitized portion of the Loan will also be paid together with an amount equal to the interest that would have accrued at
the Applicable Interest Rate on the amount of principal being prepaid through the end of the Interest Period in which such prepayment
occurs, notwithstanding that such Interest Period extends beyond the date of prepayment;


 


(ii)          intentionally
omitted;


 


(iii)         the
Spread Maintenance Premium, if any, applicable thereto; provided that so long as no Event of Default is continuing (other than
an Event of Default that arises solely as a direct result of the Casualty or Condemnation in respect of which such Net Proceeds
have been paid), no Spread Maintenance Premium shall be due in connection with a prepayment made pursuant to Section 2.4.4(a);
and


 


(iv)         all
other sums, then due under the Note, this Agreement, the Mortgage, and the other Loan Documents.


 


(b)          Intentionally
Omitted.


 


(c)          Borrower
shall pay all actual out of pocket reasonable costs and expenses of Lender incurred in connection with the repayment or prepayment
(including without limitation, any reasonable, actual, out of pocket costs and expenses associated with a release of the Lien of
the Mortgage as set forth in Section 2.5 below and reasonable attorneys’ fees and expenses); provided, however,
that notwithstanding anything to the contrary set forth in the Loan Documents, no LIBOR breakage costs will be payable in connection
with any prepayment (voluntary or mandatory) of the Loan.


 


(d)          For
the avoidance of doubt, and notwithstanding anything to the contrary contained herein, no Spread Maintenance Premium shall be due
and payable with respect to any prepayment made during the Initial Open Period or following the Open Prepayment Date.


 




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Section 2.5         Release
of Properties. Lender shall, upon the written request and at the expense of Borrower, upon payment in full of the Debt
in accordance with the terms and provisions of the Loan Documents, release the Liens of the Mortgages and cause the trustee under
the Mortgages to reconvey the Properties to Borrower. In connection with the release of the Mortgages, Borrower shall submit to
Lender, not less than thirty (30) days prior to the Repayment Date (or such shorter time as is acceptable to Lender in its sole
discretion), a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release
shall be in a form appropriate in the jurisdiction in which each Individual Property is located and satisfactory to a prudent lender
acting reasonably. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower
in connection with such release. Borrower shall pay all reasonable, actual, out of pocket costs, taxes and expenses associated
with the release of the Liens of the Mortgages, including Lender’s reasonable attorneys’ fees.


 


Section 2.6          Interest
Rate Cap Agreement.


 


2.6.1       Interest
Rate Cap Agreement. On or prior to the earlier of the date that is (i) sixty (60) days following the Closing Date or (ii)
five (5) Business Days following notice from Lender to Borrower of the first date on which LIBOR is equal to or greater than three
and one-half percent (3.50%), Borrower shall obtain, and thereafter maintain in effect (subject to Section 2.6.9),
the Interest Rate Cap Agreement, which shall have a term expiring no earlier than the Stated Maturity Date and have a notional
amount which shall not at any time be less than the Outstanding Principal Balance. The Interest Rate Cap Agreement shall have a
strike rate equal to the Strike Price.


 


2.6.2       Pledge
and Collateral Assignment of Interest Rate Cap Agreement. As security for the full and punctual payment and performance
of the Obligations when due (whether upon stated maturity, by acceleration, early termination or otherwise), pursuant to the terms
of the Assignment of Interest Rate Cap Agreement, Borrower has pledged (or, contemporaneously with the date Borrower obtains the
Interest Rate Cap Agreement pursuant to Section 2.6.1 above, will pledge) and collaterally assigned (or is assigning) to
Lender all of the right, title and interest of Borrower in and to the following (collectively, the “Rate Cap Collateral”):
(i) the Interest Rate Cap Agreement; (ii) all payments, distributions, disbursements or proceeds due, owing, payable or required
to be delivered to Borrower in respect of the Interest Rate Cap Agreement or arising out of the Interest Rate Cap Agreement, whether
as contractual obligations, damages or otherwise; and (iii) all of Borrower’s claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under or arising out of the Interest Rate Cap Agreement, in each case
including all accessions and additions to, substitutions for and replacements, products and proceeds of any or all of the foregoing.


 


2.6.3       Covenants.


 


(a)          Borrower
shall comply with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement. All amounts paid by
the Counterparty under the Interest Rate Cap Agreement to Borrower or Lender shall during the continuance of an Event of Default
or Trigger Period be deposited immediately into the Deposit Account. Subject to terms hereof, provided no Event of Default has
occurred and is continuing, Borrower shall be entitled to exercise all rights, powers and privileges of Borrower under, and to
control the prosecution of all claims with respect to, the Interest Rate Cap Agreement and the other Rate Cap Collateral. Borrower
shall take all actions reasonably requested by Lender to enforce Borrower’s rights under the Interest Rate Cap Agreement
in the event of a default by the Counterparty thereunder and shall not waive, amend or otherwise modify any of its rights thereunder.


 




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(b)          Borrower
shall defend Lender’s right, title and interest in and to the Rate Cap Collateral pledged by Borrower pursuant to the Assignment
of Interest Rate Cap Agreement or in which it has granted a security interest against the claims and demands of all other Persons.


 


(c)          In
the event of any downgrade, withdrawal or qualification of the rating of the Counterparty such that it ceases to qualify as an
“Approved Counterparty”, Borrower shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap
Agreement not later than ten (10) Business Days following receipt of notice from Lender, Servicer or any other Person of such downgrade,
withdrawal or qualification.


 


(d)          In
the event that Borrower fails to purchase and deliver to Lender the Interest Rate Cap Agreement as and when required hereunder,
Lender may purchase the Interest Rate Cap Agreement and the cost incurred by Lender in purchasing the Interest Rate Cap Agreement
shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until
such cost is paid by Borrower to Lender.


 


(e)          Borrower
shall not sell, assign, or otherwise dispose of, or mortgage, pledge or grant a security interest in, any of the Rate Cap Collateral
or any interest therein (other than the assignment made under the Loan Documents), and any sale, assignment, mortgage, pledge or
security interest whatsoever made in violation of this covenant shall be a nullity and of no force and effect, and upon demand
of Lender, shall forthwith be cancelled or satisfied by an appropriate instrument in writing (except that notwithstanding anything
herein to the contrary, Borrower may sell or otherwise transfer the portion of the Rate Cap Collateral that reflects a notional
balance in excess of the Outstanding Principal Amount following any prepayment).


 


(f)           Borrower
shall not (i) without the prior written consent of Lender, modify, amend or supplement the terms of the Interest Rate Cap Agreement,
(ii) without the prior written consent of Lender, except in accordance with the terms of the Interest Rate Cap Agreement, cause
the termination of the Interest Rate Cap Agreement prior to its stated maturity date (other than in accordance with Section 2.6.3(c)
above), (iii) without the prior written consent of Lender, except as aforesaid, waive or release any obligation of the Counterparty
(or any successor or substitute party to the Interest Rate Cap Agreement) under the Interest Rate Cap Agreement, (iv) without the
prior written consent of Lender, consent or agree to any act or omission to act on the part of the Counterparty (or any successor
or substitute party to the Interest Rate Cap Agreement) which, without such consent or agreement, would constitute a default under
the Interest Rate Cap Agreement, (v) fail to exercise promptly and diligently each and every material right which it may have under
the Interest Rate Cap Agreement, (vi) take or intentionally omit to take any action or intentionally suffer or permit any action
to be omitted or taken, the taking or omission of which would result in any right of offset against sums payable under the Interest
Rate Cap Agreement or any defense by the Counterparty (or any successor or substitute party to the Interest Rate Cap Agreement)
to payment or (vii) fail to give prompt notice to Lender of any notice of default given by or to Borrower under or with respect
to the Interest Rate Cap Agreement, together with a complete copy of such notice. If Borrower shall have received written notice
that the Securitization shall have occurred, no consent by Lender provided for in this Section 2.6.3(f) shall be given
by Lender unless Lender shall have received a Rating Agency Confirmation.


 




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(g)          In
connection with an Interest Rate Cap Agreement, Borrower shall obtain and deliver to Lender an opinion of counsel from counsel
(which counsel may be in-house counsel for the Counterparty) for the Counterparty upon which Lender and its successors and assigns
may rely (the “Counterparty Opinion”), under New York law and, if the Counterparty is a non-U.S. entity,
the applicable foreign law, which shall provide in relevant part that: (i) the issuer is duly organized, validly existing, and
in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute
and deliver, and to perform its obligations under, the Interest Rate Cap Agreement; (ii) the execution and delivery of the Interest
Rate Cap Agreement by the issuer, and any other agreement which the issuer has executed and delivered pursuant thereto, and the
performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any
provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law; (iii) all consents,
authorizations and approvals required for the execution and delivery by the issuer of the Interest Rate Cap Agreement under law
or the issuer’s organizational documents, and any other agreement which the issuer has executed and delivered pursuant thereto,
and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof
have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory
body is required for such execution, delivery or performance; and (iv) the Interest Rate Cap Agreement, and any other agreement
which the issuer has executed and delivered pursuant thereto, has been duly executed and delivered by the issuer and constitutes
the legal, valid and binding obligation of the issuer, enforceable against the issuer in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). If the opinion
of counsel from counsel for the Counterparty obtained and delivered does not comply with the foregoing requirements, Lender shall
have the right to approve the opinion, which approval shall not be unreasonably withheld, conditioned or delayed.


 


2.6.4       Substitute
Interest Rate Protection Agreement. Subject to Section 2.2.4(e), at any time that the Loan is a Base Rate Loan
or a Substitute Rate Loan, Borrower shall maintain a Substitute Interest Rate Protection Agreement. All the provisions of this
Section 2.6 applicable to the Interest Rate Protection Agreement delivered on the Closing Date shall be applicable
to the Substitute Interest Rate Protection Agreement, and in connection with the delivery of the Substitute Interest Rate Protection
Agreement, Borrower shall enter into a replacement collateral assignment of such Substitute Interest Rate Protection Agreement,
which collateral assignment shall be in the same form as the Assignment of Interest Rate Cap Agreement.


 


2.6.5       Representations
and Warranties. Borrower hereby covenants with, and represents and warrants to, Lender as follows:


 


(a)          The
Interest Rate Cap Agreement constitutes the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance
with its terms, subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and
subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).


 




    	 	-49-	 



     


    

 


(b)          The
Rate Cap Collateral is free and clear of all claims or security interests of every nature whatsoever, except such as are created
pursuant to this Agreement and the other Loan Documents, and Borrower has the right to pledge and grant a security interest in
the same as herein provided without the consent of any other Person other than any such consent that has been obtained and is in
full force and effect.


 


(c)          The
Rate Cap Collateral has been (or shall be) duly and validly pledged pursuant to the Assignment of Interest Rate Cap Agreement.
All consents and approvals required to be obtained by Borrower for the consummation of the transactions contemplated by the Assignment
of Interest Rate Cap Agreement have been (or shall be) obtained.


 


(d)          Giving
effect to the grant and assignment to Lender pursuant to the Assignment of Interest Rate Cap Agreement, Lender has, as of the date
of this Agreement, and as to Rate Cap Collateral acquired from time to time after such date, shall have, a valid, and upon proper
filing, perfected and continuing first priority lien upon and security interest in the Rate Cap Collateral; provided that no representation
or warranty is made with respect to the perfected status of the security interest of Lender in the proceeds of Rate Cap Collateral
consisting of “cash proceeds” or “non-cash proceeds” as defined in the UCC except if, and to the extent,
the provisions of Section 9-306 of the UCC shall be complied with.


 


(e)          Except
for financing statements filed or to be filed in favor of Lender as secured party, there are no financing statements under the
UCC covering any or all of the Rate Cap Collateral and Borrower shall not, without the prior written consent of Lender, until payment
in full of all of the Obligations, execute and file in any public office, any enforceable financing statement or statements covering
any or all of the Rate Cap Collateral, except financing statements filed or to be filed in favor of Lender as secured party.


 


2.6.6       [Reserved]


 


2.6.7       Remedies.
Subject to the provisions of the Interest Rate Cap Agreement, if an Event of Default shall occur and then be continuing:


 


(a)          Lender,
without obligation to resort to any other security, right or remedy granted under any other agreement or instrument, shall have
the right to, in addition to all rights, powers and remedies of a secured party pursuant to the UCC, at any time and from time
to time, sell, resell, assign and deliver, in its sole discretion, any or all of the Rate Cap Collateral (in one or more parcels
and at the same or different times) and all right, title and interest, claim and demand therein and right of redemption thereof,
at public or private sale, for cash, upon credit or for future delivery, and in connection therewith Lender may grant options and
may impose reasonable conditions such as requiring any purchaser to represent that any “securities” constituting any
part of the Rate Cap Collateral are being purchased for investment only, Borrower hereby waiving and releasing any and all equity
or right of redemption to the fullest extent permitted by the UCC and applicable law. If all or any of the Rate Cap Collateral
is sold by Lender upon credit or for future delivery, Lender shall not be liable for the failure of the purchaser to purchase or
pay for the same and, in the event of any such failure, Lender may resell such Rate Cap Collateral. It is expressly agreed that
Lender may exercise its rights under the Assignment of Interest Rate Cap Agreement with respect to less than all of the Rate Cap
Collateral, leaving unexercised its rights with respect to the remainder of the Rate Cap Collateral, provided, however, that such
partial exercise shall in no way restrict or jeopardize Lender’s right to exercise its rights with respect to all or any
other portion of the Rate Cap Collateral at a later time or times.


 




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(b)          Lender
may exercise, either by itself or by its nominee or designee, in the name of Borrower, all of Lender’s rights, powers and
remedies in respect of the Rate Cap Collateral, under the Assignment of Interest Rate Cap Agreement and under law.


 


(c)          Borrower
hereby irrevocably, in the name of Borrower or otherwise, authorizes and empowers Lender and assigns and transfers unto Lender,
and constitutes and appoints Lender its true and lawful attorney-in-fact, and as its agent, irrevocably, with full power of substitution
for Borrower and in the name of Borrower, (i) to exercise and enforce every right, power, remedy, authority, option and privilege
of Borrower under the Interest Rate Cap Agreement, including any power to subordinate or modify the Interest Rate Cap Agreement
(but not, unless an Event of Default exists and is continuing, the right to terminate or cancel the Interest Rate Cap Agreement),
or to give any notices, or to take any action resulting in such subordination, termination, cancellation or modification and (ii)
in order to more fully vest in Lender the rights and remedies provided for herein, to exercise all of the rights, remedies and
powers granted to Lender in this Agreement, and Borrower further authorizes and empowers Lender, as Borrower’s attorney-in-fact,
and as its agent, irrevocably, with full power of substitution for Borrower and in the name of Borrower, to give any authorization,
to furnish any information, to make any demands, to execute any instruments and to take any and all other action on behalf of and
in the name of Borrower which in the opinion of Lender may be necessary or appropriate to be given, furnished, made, exercised
or taken under the Interest Rate Cap Agreement, in order to comply therewith, to perform the conditions thereof or to prevent or
remedy any default by Borrower thereunder or to enforce any of the rights of Borrower thereunder. These powers-of-attorney are
irrevocable and coupled with an interest, and any similar or dissimilar powers heretofore given by Borrower in respect of the Rate
Cap Collateral to any other Person are hereby revoked.


 


(d)          Lender
may, without notice to, or assent by, Borrower or any other Person (to the extent permitted by law), but without affecting any
of the Obligations, in the name of Borrower or in the name of Lender, notify the Counterparty, or if applicable, any other counterparty
to the Interest Rate Cap Agreement, to make payment and performance directly to Lender; extend the time of payment and performance
of, compromise or settle for cash, credit or otherwise, and upon any terms and conditions, any obligations owing to Borrower, or
claims of Borrower, under the Interest Rate Cap Agreement; file any claims, commence, maintain or discontinue any actions, suits
or other proceedings deemed by Lender necessary or advisable for the purpose of collecting upon or enforcing the Interest Rate
Cap Agreement; and execute any instrument and do all other things deemed necessary and proper by Lender to protect and preserve
and realize upon the Rate Cap Collateral and the other rights contemplated hereby.


 


(e)          Pursuant
to the powers-of-attorney provided for above, Lender may take any action and exercise and execute any instrument which it may deem
necessary or advisable to accomplish the purposes hereof; provided, however, that Lender shall not be permitted to take any action
pursuant to said power-of-attorney that would conflict with any limitation on Lender’s rights with respect to the Rate Cap
Collateral. Without limiting the generality of the foregoing, Lender, after the occurrence, and during the continuance, of an Event
of Default, shall have the right and power to receive, endorse and collect all checks and other orders for the payment of money
made payable to Borrower representing: (i) any payment of obligations owed pursuant to the Interest Rate Cap Agreement, (ii) interest
accruing on any of the Rate Cap Collateral or (iii) any other payment or distribution payable in respect of the Rate Cap Collateral
or any part thereof, and for and in the name, place and stead of Borrower, to execute endorsements, assignments or other instruments
of conveyance or transfer in respect of any property which is or may become a part of the Rate Cap Collateral hereunder.


 




    	 	-51-	 



     


    

 


(f)           Lender
may exercise all of the rights and remedies of a secured party under the UCC.


 


(g)          Without
limiting any other provision of this Agreement or the Assignment of Interest Rate Cap Agreement, or any of Borrower’s rights
hereunder under the Assignment of Interest Rate Cap Agreement, and without waiving or releasing Borrower from any obligation or
default hereunder under the Assignment of Interest Rate Cap Agreement, Lender shall have the right, but not the obligation, to
perform any act or take any appropriate action, as it, in its reasonable judgment, may deem necessary to protect the security of
this Agreement or the Assignment of Interest Rate Cap Agreement, to cure such Event of Default or to cause any term, covenant,
condition or obligation required under this Agreement, the Assignment of Interest Rate Cap Agreement or the Interest Rate Cap Agreement
to be performed or observed by Borrower to be promptly performed or observed on behalf of Borrower. All amounts advanced by, or
on behalf of, Lender in exercising its rights under this Section 2.6.7(g) (including, but not limited to, reasonable
legal expenses and disbursements incurred in connection therewith), together with interest thereon at the Default Rate from the
date of each such advance, shall be payable by Borrower to Lender upon demand and shall be secured by this Agreement.


 


2.6.8       Sales
of Rate Cap Collateral. No demand, advertisement or notice, all of which are, to the fullest extent permitted by law, hereby
expressly waived by Borrower, shall be required in connection with any sale or other disposition of all or any part of the Rate
Cap Collateral, except that Lender shall give Borrower at least thirty (30) Business Days’ prior written notice of the time
and place of any public sale or of the time when and the place where any private sale or other disposition is to be made, which
notice Borrower hereby agrees is reasonable, all other demands, advertisements and notices being hereby waived. To the extent permitted
by law, Lender shall not be obligated to make any sale of the Rate Cap Collateral if it shall determine not to do so, regardless
of the fact that notice of sale may have been given, and Lender may without notice or publication adjourn any public or private
sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. Upon each private
sale of the Rate Cap Collateral of a type customarily sold in a recognized market and upon each public sale, unless prohibited
by any applicable statute which cannot be waived, Lender (or its nominee or designee) may purchase any or all of the Rate Cap Collateral
being sold, free and discharged from any trusts, claims, equity or right of redemption of Borrower, all of which are hereby waived
and released to the extent permitted by law, and may make payment therefor by credit against any of the Obligations in lieu of
cash or any other obligations. In the case of all sales of the Rate Cap Collateral, public or private, Borrower shall pay all reasonable
costs and expenses of every kind for sale or delivery, including brokers’ and attorneys’ fees and disbursements and
any tax imposed thereon. However, the proceeds of sale of Rate Cap Collateral shall be available to cover such costs and expenses,
and, after deducting such costs and expenses from the proceeds of sale, Lender shall apply any residue to the payment of the Obligations
in the order of priority as set forth in this Agreement.


 




    	 	-52-	 



     


    

 


2.6.9       Public
Sales Not Possible. Borrower acknowledges that the terms of the Interest Rate Cap Agreement may prohibit public sales,
that the Rate Cap Collateral may not be of the type appropriately sold at public sales, and that such sales may be prohibited by
law. In light of these considerations, Borrower agrees that private sales of the Rate Cap Collateral under the Assignment of Interest
Rate Cap Agreement shall not be deemed to have been made in a commercially unreasonably manner by mere virtue of having been made
privately.


 


2.6.10     Receipt
of Sale Proceeds. Upon any sale of the Rate Cap Collateral by Lender under the Assignment of Interest Rate Cap Agreement
(whether by virtue of the power of sale herein granted, pursuant to judicial process or otherwise), the receipt by Lender or the
officer making the sale or the proceeds of such sale shall be a sufficient discharge to the purchaser or purchasers of the Rate
Cap Collateral so sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase
money paid over to Lender or such officer or be answerable in any way for the misapplication or non-application thereof.


 


2.6.11     Replacement
Interest Rate Cap Agreement. If, in connection with Borrower’s exercise of any Extension Option pursuant to Section 2.7
hereof, Borrower delivers a Replacement Interest Rate Cap Agreement, all the provisions of this Section 2.6 applicable
to the Interest Rate Cap Agreement delivered on the Closing Date shall be applicable to the Replacement Interest Rate Cap Agreement,
and in connection with the delivery of the Replacement Interest Rate Cap Agreement, Borrower shall enter into a replacement collateral
assignment of such Replacement Interest Rate Cap Agreement, which collateral assignment shall be in the same form as the Assignment
of Interest Rate Cap Agreement.


 


Section 2.7          Extension
Options.


 


2.7.1       Extension
Options. Subject to the provisions of this Section 2.7, Borrower shall have the option (the “First
Extension Option”), by written notice (the “First Extension Notice”) delivered to Lender
no later than ten (10) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to May 1, 2022 (the “First
Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event
Borrower shall have exercised the First Extension Option, Borrower shall have the option (the “Second Extension Option”),
by written notice (the “Second Extension Notice”) delivered to Lender no later than ten (10) days prior
to the First Extended Maturity Date, to extend the First Extended Maturity Date to May 1, 2023 (the “Second Extended
Maturity Date”, and such extended term, the “Second Extended Term”). In the event Borrower
shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third
Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender
no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1,
2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”).
The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date,
the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity
Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended
Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation
(excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following
conditions precedent prior to each extension hereunder:


 




    	 	-53-	 



     


    

 


(a)          (i)
no Event of Default shall have occurred and be continuing on the date Borrower delivers the First Extension Notice, the Second
Extension Notice or the Third Extension Notice, as applicable, and (ii) no Event of Default shall have occurred and be continuing
on the Initial Stated Maturity Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;


 


(b)          Borrower
shall (i) obtain and deliver to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate
Cap Agreements (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute
Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e)) from an Approved Counterparty,
in a notional amount equal to the Outstanding Principal Balance as of the first day of the applicable Extended Term, which Replacement
Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable
Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in
which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6, (ii) execute
and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection
Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement
(or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;


 


(c)          Borrower
shall cause a Counterparty Opinion to be delivered with respect to the Replacement Interest Rate Cap Agreement (or Substitute Interest
Rate Protection Agreement, as applicable) and the related Acknowledgment;


 


(d)          all
amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrower pursuant to this Agreement
or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the Second Extended Maturity
Date, as applicable, and all out-of-pocket costs and expenses of Lender, including reasonable fees and expenses of Lender’s
outside counsel, in connection with the applicable extension of the Term shall have been paid in full;


 


(e)          the
Spread (or the Base Rate Spread or the Substitute Rate Spread, as applicable) shall be increased upon the commencement of the Third
Extended Term pursuant to, and in accordance with, the applicable definition herein;


 


(f)           with
respect to the Second Extension Option and the Third Extension Option, the Debt Yield for the twelve (12) full calendar months
ending on the last day of the month preceding the month in which the Second Extended Term or Third Extended Term, as applicable,
is to commence shall equal or exceed eleven and one-half percent (11.5)%; and


 


(g)          Mezzanine
Borrower, to the extent the Mezzanine Loan has not theretofore been repaid in full, shall have (i) timely exercised the extension
option to extend the Mezzanine Loan, and (ii) been entitled pursuant to the terms of the Mezzanine Loan Documents to exercise such
extension option.


 


If Borrower is unable to satisfy all of the
foregoing conditions within the applicable time frames for each, Lender shall have no obligation to extend the Maturity Date.


 




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2.7.2       Intentionally
Omitted.


 


Section 2.8          Regulatory
Change; Taxes.


 


2.8.1       Increased
Costs. If as a result of any Change in Law or compliance of Lender therewith, Lender or the company Controlling Lender
shall be subject to (i) Special Taxes (other than (A) Indemnified Taxes, which shall be solely covered by Section 2.8.2,
(B) Other Taxes, which shall be solely covered by Section 2.9.3, (C) Connection Income Taxes and (D) Special Taxes
described in clauses (b) through (f) of the definition of Excluded Taxes); or (ii) any reserve, special deposit
or similar requirements relating to any extensions of credit or other assets of, or any deposits with or other liabilities, of
Lender or any company Controlling Lender is imposed, modified or deemed applicable; or (iii) any other condition affecting loans
to borrowers subject to LIBOR-based interest rates is imposed on Lender or any company Controlling Lender and Lender determines
that, by reason thereof, the cost to Lender or any company Controlling Lender of making, maintaining or extending the Loan to Borrower
is increased, or any amount receivable by Lender or any company Controlling Lender hereunder in respect of any portion of the Loan
to Borrower is reduced, in each case by an amount deemed by Lender in good faith to be material (such increases in cost and reductions
in amounts receivable being herein called “Increased Costs”), then Lender shall provide notice thereof
to Borrower and Borrower agrees that it will pay to Lender upon Lender’s written request such additional amount or amounts
as will compensate Lender or any company Controlling Lender for such Increased Costs to the extent Lender determines that such
Increased Costs are allocable to the Loan. If Lender requests compensation under this Section 2.8.1, Lender shall,
if requested by notice by Borrower to Lender, furnish to Borrower a statement setting forth the basis for requesting such compensation
and the method for determining the amount thereof. Notwithstanding anything contained herein to the contrary, Borrower shall not
be required to compensate Lender pursuant to this Section 2.8.1 for any Increased Costs actually paid by Lender more
than one hundred eighty (180) days prior to the date that Lender notifies Borrower of the change in any applicable Change in Law
giving rise to such Increased Costs and of Lender’s intention to claim compensation or reimbursement therefor. Notwithstanding
anything contained in this Section 2.8.1 to the contrary, Lender shall not be permitted to make a claim against Borrower
under this Section 2.8.1 unless Lender is making similar claims against other borrowers of Lender to the extent such
borrowers are similarly situated as Borrower after consideration of such factors as Lender then reasonably determines to be relevant.
Notwithstanding anything contained herein to the contrary, if pursuant to this Section 2.8.1, Increased Costs are payable,
or will be payable, by Borrower, Borrower may, at its option and upon not less than fifteen (15) days’ prior notice to Lender
(which notice shall be delivered to Lender no later than fifteen (15) days after Lender’s delivery to Borrower of the above-referenced
certificate regarding the payment of such Increased Costs), prepay the Loan in whole, together with the amount of any such Increased
Costs that have at such time already been incurred by or paid by Lender, any applicable Spread Maintenance Premium (if such prepayment
occurs prior to or on the Spread Maintenance Date) and all other amounts due and payable under Section 2.4.6 in connection
with such prepayment. Notwithstanding anything to the contrary herein, no amount shall be payable to a Lender under this Section 2.8.1
during the period in which the Loan is included in a Securitization.


 




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2.8.2       Special
Taxes. Borrower shall make all payments hereunder free and clear of and without deduction for Special Taxes, except as
required by applicable law. If Borrower shall be required by law to deduct any Indemnified Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to Lender, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to additional sums payable under this Section 2.8.2)
Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) Borrower shall make such
deductions, and (iii) Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable
law. Notwithstanding anything contained herein to the contrary, if pursuant to this Section 2.8.2, Borrower is, or
will be, required to increase any payment to Lender on account of Indemnified Taxes, Borrower may, at its option and upon not less
than fifteen (15) days’ prior notice to Lender (which notice shall be delivered to Lender no later than fifteen (15) days
after Lender’s delivery to Borrower of written notice regarding the increase of payments to Lender on account of Indemnified
Taxes), prepay the Loan in whole, together with the amount of any such Indemnified Taxes that have at such time already been incurred
by or paid by Lender, any applicable Spread Maintenance Premium (if such prepayment occurs prior to or on the Spread Maintenance
Date) and all other amounts due and payable under Section 2.4.6 in connection with such prepayment. Notwithstanding
anything to the contrary herein, no amount shall be payable to a Lender under this Section 2.8.2 during the period
in which the Loan is included in a Securitization.


 


2.8.3       Other
Taxes. In addition, Borrower agrees to pay any present or future stamp or documentary taxes or other excise or property
taxes, charges, or similar levies which arise from any payment made hereunder, or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, the other Loan Documents, or the Loan other than such taxes, charges or levies
arising from any transfer by Lender pursuant to Article IX or a change to the organizational structure of the Loan
Parties and/or any of their Affiliates requested by Lender in connection with the exercise of its rights pursuant to Article IX
(hereinafter referred to as “Other Taxes”).


 


2.8.4      Tax
Refund. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Special
Taxes as to which it has been indemnified pursuant to Section 2.8.2 (including by the payment of additional amounts
pursuant to Section 2.8.2), it shall pay to the indemnifying party an amount equal to such refund (but only to the
extent of indemnity payments made under this Section with respect to the Special Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Special Taxes) of such indemnified party and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified
party, shall repay to such indemnified party the amount paid over pursuant to this Section 2.8.4 (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required
to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.8.4,
in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.8.4
the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would
have been in if the Special Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts with respect to such Special Tax had never been paid. This paragraph
shall not be construed to require any indemnified party to make available its Special Tax returns (or any other information relating
to its Special Taxes that it deems confidential) to the indemnifying party or any other Person.


 




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2.8.5      Change
of Office. To the extent that changing the jurisdiction of Lender’s applicable office would have the effect of minimizing
Indemnified Taxes, Other Taxes or Increased Costs, Lender shall at the request of Borrower use commercially reasonable efforts
to make such a change, provided that same would not otherwise be disadvantageous (as reasonably determined by Lender) or involve
any unreimbursed expense to Lender.


 


Section 2.9          Letters
of Credit.


 


(a)          All
Letters of Credit delivered to Lender in connection with this Loan shall be held as collateral and additional security for the
payment of the Debt. Upon the occurrence and during the continuance of an Event of Default, Lender shall have the right, at its
option, to draw on all or any portion of any such Letter of Credit and to apply such amount drawn to payment of the Debt in such
order, proportion or priority as Lender may determine. Any such application to the Debt before or on the Spread Maintenance Date
after an Event of Default shall be subject to the Spread Maintenance Premium, if any, applicable thereto. On the Maturity Date,
if the Debt has not otherwise been paid in full, any or all of such Letters of Credit may be applied to reduce the Debt.


 


(b)          With
respect to any Letter of Credit delivered to Lender in connection with this Loan, such Letter of Credit must be accompanied by
an instrument reasonably acceptable to Lender whereby the applicant/obligor under such Letter of Credit shall have contributed
to Borrower any and all draws under such Letter of Credit and shall have waived all rights of subrogation against Borrower thereunder
until the Debt has been paid in full. Borrower shall also pay to Lender all of Lender’s reasonable out-of-pocket costs and
expenses in connection therewith. Neither Borrower nor the applicant/obligor under the Letter of Credit shall be entitled to draw
upon the Letter of Credit. After the Closing Date, the aggregate amount of any Letters of Credit delivered pursuant to this Agreement
or any other Loan Document shall not exceed ten percent (10%) of the outstanding principal balance of the Loan unless Lender has
been provided with an Additional Insolvency Opinion with respect thereto, in form and substance reasonably satisfactory to Lender
and the Rating Agencies.


 


(c)          In
addition to any other right Lender may have to draw upon any Letter of Credit pursuant to the terms and conditions of this Agreement,
Lender shall have the additional rights to draw in full any Letter of Credit: (i) with respect to any evergreen Letter of Credit,
if Lender has received a notice from the issuing bank that the applicable Letter of Credit will not be renewed and a substitute
Letter of Credit is not provided at least thirty (30) days prior to the date on which the outstanding Letter of Credit is scheduled
to expire; (ii) with respect to any Letter of Credit with a stated expiration date, if Lender has not received a notice from the
issuing bank that it has renewed the Letter of Credit at least thirty (30) days prior to the date on which such Letter of Credit
is scheduled to expire and a substitute Letter of Credit is not provided at least ten (10) Business Days prior to the date on which
the outstanding Letter of Credit is scheduled to expire; (iii) upon receipt of notice from the issuing bank that the Letter of
Credit will be terminated (except if the termination of such Letter of Credit is permitted pursuant to the terms and conditions
of this Agreement or a substitute Letter of Credit is provided at least ten (10) Business Days prior to such termination); or (iv)
if Lender has received notice that the bank issuing the Letter of Credit shall cease to be an Approved Bank and Borrower shall
not have replaced such Letter of Credit with a Letter of Credit issued by an Approved Bank within ten (10) Business Days after
notice thereof. Notwithstanding anything to the contrary contained in the above, Lender is not obligated to draw any Letter of
Credit upon the happening of an event specified in clauses (i), (ii), (iii) or (iv) above and shall not be liable
for any losses sustained by Borrower or applicable/obligor due to the insolvency of the bank issuing the Letter of Credit if Lender
has not drawn the applicable Letter of Credit.


 




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ARTICLE
3


 


REPRESENTATIONS
AND WARRANTIES


 


Section 3.1          Borrower
Representations. Borrower and Operating Lessee each represents and warrants that, except to the extent (if any) disclosed
on Schedule IV hereto with reference to a specific subsection of this Section 3.1:


 


3.1.1      Organization;
Special Purpose. Each of Borrower and Operating Lessee is duly organized, validly existing and in good standing with full
power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions
in which the ownership or lease of its property or the conduct of its business requires such qualification, and each of Borrower
and Operating Lessee has taken all necessary action to authorize the execution, delivery and performance of this Agreement and
the other Loan Documents by it, and has the power and authority to execute, deliver and perform under this Agreement, the other
Loan Documents and all the transactions contemplated hereby. Each of Borrower and Operating Lessee is, and at all times since the
date of its formation has been (but only to the extent that the applicable requirements set forth in Schedule V
speak of a time prior to the Closing Date), a Special Purpose Bankruptcy Remote Entity. Borrower has provided Lender with true,
correct and complete copies of Borrower’s and Operating Lessee’s current (and since the date of its inception) organizational
documents.


 


3.1.2      Proceedings;
Enforceability. This Agreement and the other Loan Documents have been duly authorized, executed and delivered by Borrower
and Operating Lessee and constitute a legal, valid and binding obligation of Borrower and Operating Lessee, enforceable against
Borrower and Operating Lessee in accordance with their respective terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and
by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, Operating Lessee,
or any Guarantor including the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the exercise
of any right thereunder, render the Loan Documents unenforceable, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and none of
Borrower, Operating Lessee, or any Guarantor have asserted any right of rescission, set-off, counterclaim or defense with respect
thereto.


 




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3.1.3      No
Conflicts. The execution and delivery of this Agreement and the other Loan Documents by Borrower and Operating Lessee and
the performance of their respective Obligations hereunder and thereunder will not conflict with any provision of any law or regulation
to which Borrower or Operating Lessee is subject, or conflict with, result in a breach of, or constitute a default under, any of
the terms, conditions or provisions of any of Borrower’s or Operating Lessee’s organizational documents or any agreement
or instrument to which Borrower or Operating Lessee is a party or by which it is bound, or any order or decree applicable to Borrower,
or result in the creation or imposition of any Lien on any of Borrower’s or Operating Lessee’s assets or property (other
than pursuant to the Loan Documents) (unless consents from all applicable parties thereto have been obtained by Borrower and/or
Operating Lessee, as applicable).


 


3.1.4      Litigation.
There is no action, suit, proceeding or investigation pending or, to Borrower’s and Operating Lessee’s knowledge, threatened
in writing against Borrower, Operating Lessee, any Guarantor, Manager (but only as it relates to any Individual Property) or any
Individual Property in any court or by or before any other Governmental Authority which, if adversely determined, is reasonably
likely to materially and adversely affect the condition (financial or otherwise) or business of Borrower or Operating Lessee (including
the ability of Borrower or Operating Lessee to carry out the transactions contemplated by this Agreement), any Guarantor (including
the ability of any Guarantor to perform its obligations under the Guaranty), Manager (but only as it relates to any Individual
Property, including such Manager’s ability to perform its obligations under any Management Agreement) or the condition or
ownership of such Individual Property.


 


3.1.5      Agreements.
Neither Borrower nor Operating Lessee is a party to any agreement or instrument or subject to any restriction which might materially
and adversely affect Borrower, Operating Lessee or any Individual Property, or Borrower’s or Operating Lessee’s business,
properties or assets, operations or condition, financial or otherwise. Neither Borrower nor Operating Lessee is in default 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 any Individual Property is bound, or with respect
to any order or decree of any court or any order, regulation or demand of any Governmental Authority, which default (individually
or when aggregated with any and all such defaults) is reasonably likely to have consequences that would materially and adversely
affect the condition (financial or other) or operations of Borrower, Operating Lessee or any Individual Property or is reasonably
likely to have consequences that would materially and adversely affect its performance hereunder.


 


3.1.6      Consents.
No consent, approval, authorization or order of any court or Governmental Authority is required for the execution, delivery and
performance by Borrower or Operating Lessee of this Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, other than those which have been obtained by Borrower or Operating Lessee.


 


3.1.7      Property;
Title.


 


(a)          Borrower
has good, marketable and insurable fee simple title to the real property comprising part of each Individual Property and good title
to the balance of such Individual Property owned by it, free and clear of all Liens whatsoever except the Permitted Encumbrances.
Each Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements
required to be filed in connection therewith, will create (i) a valid, first priority, perfected Lien on Borrower’s and Operating
Lessee’s respective interest in the applicable Individual Property, subject only to Permitted Encumbrances, and (ii) perfected
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 the Permitted Encumbrances. Except for Permitted Encumbrances, there are no
mechanics’, materialman’s or other similar Liens or claims which have been filed for work, labor or materials affecting
any Individual Property which are or may be Liens prior to, or equal or coordinate with, the Lien of the applicable Mortgage. None
of the Permitted Encumbrances, individually or in the aggregate, (a) materially interfere with the benefits of the security intended
to be provided by each Mortgage and this Agreement, (b) materially and adversely affect the value of any Individual Property, (c)
materially impair the use or operations of any Individual Property (as currently used), or (d) impair Borrower’s ability
to pay its Obligations in a timely manner.


 




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(b)          All
transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid under applicable
Legal Requirements in connection with the transfer of Properties to Borrower have been paid or are being paid simultaneously herewith.
All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid under applicable Legal Requirements
in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents,
including the Mortgages, have been paid or are being paid simultaneously herewith. All taxes and governmental assessments due and
owing in respect of the Properties have been paid, or an escrow of funds in an amount sufficient to cover such payments has been
established hereunder or are insured against by the Title Insurance Policy.


 


(c)          Each
Individual Property is comprised of one (1) or more parcels which constitute separate tax lots and do not constitute a portion
of any other tax lot not a part of such Individual Property.


 


(d)          No
Condemnation or other proceeding has been commenced or, to Borrower’s or Operating Lessee’s knowledge, is contemplated
with respect to all or any portion of such Individual Property or for the relocation of roadways providing access to any Individual
Property.


 


(e)          To
Borrower’s and Operating Lessee’s knowledge, there are no pending or proposed special or other assessments for public
improvements or otherwise affecting any Individual Property, nor are there any contemplated improvements to any Individual Property
that may result in such special or other assessments.


 


3.1.8      ERISA;
No Plan Assets. As of the date hereof and throughout the Term (i) neither Borrower, Operating Lessee nor any Guarantor
nor any ERISA Affiliate sponsors, or is obligated to contribute to, an “employee benefit plan,” as defined in Section 3(3)
of ERISA, that is subject to Title IV of ERISA, Section 303 of ERISA or Section 412 of the Code, (ii) none of the assets
of Borrower, Operating Lessee or any Guarantor constitutes or will constitute “plan assets” within the meaning of 29
C.F.R. Section 2510.3-101 as modified in operation by Section 3(42) of ERISA, (iii) neither Borrower, Operating Lessee
nor any Guarantor is or will be a “governmental plan” within the meaning of Section 3(32) of ERISA, and (iv) neither
Borrower, Operating Lessee nor any Guarantor are subject to state statutes regulating investment of, and fiduciary obligations
with respect to, governmental plans. As of the date hereof, neither Borrower, Operating Lessee, nor any ERISA Affiliate maintains,
sponsors or contributes to or has any obligations with respect to a “defined benefit plan” (within the meaning of Section 3(35)
of ERISA) or a “multiemployer pension plan” (within the meaning of Section 3(37)(A) of ERISA). Neither Borrower
nor Operating Lessee has engaged in any transaction in connection with which it could be subject to either a material civil penalty
assessed pursuant to the provisions of Section 502 of ERISA or a material tax imposed under the provisions of Section 4975
of the Code.


 




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3.1.9      Compliance.
Except as expressly set forth on Schedule IV hereto, Borrower, Operating Lessee and each Individual Property
(including, but not limited to the Improvements) and the use thereof comply in all material respects with all applicable Legal
Requirements (except as disclosed in the environmental reports or zoning reports provided to Lender on or prior to the Closing
Date), including parking, building and zoning and land use laws, ordinances, regulations and codes, except for de minimis non-compliance
that would not reasonably be likely to have a material adverse effect on the applicable Individual Property or the use or operation
thereof or on Borrower or Operating Lessee. Borrower, Operating Lessee and to Borrower’s and Operating Lessee’s knowledge,
any other Person in occupancy of or involved with the operation or use of the Properties has not committed, any act which may give
any Governmental Authority the right to cause Borrower or Operating Lessee to forfeit any Individual Property or any part thereof
or any monies paid in performance of Borrower’s Obligations under any of the Loan Documents. Each Individual Property is
used exclusively for the operation of a hotel and other appurtenant and related uses. To Borrower’s and Operating Lessee’s
knowledge, in the event that all or any part of the Improvements are destroyed or damaged, said Improvements can be legally reconstructed
to their condition prior to such damage or destruction, and thereafter exist for the same use without violating any zoning or other
ordinances applicable thereto and without the necessity of obtaining any variances or special permits, subject to customary rebuildability
statutes in the applicable jurisdictions. No legal proceedings are pending or, to the knowledge of Borrower and Operating Lessee,
threatened with respect to the zoning of any Individual Property. Neither the zoning nor any other right to construct, use or operate
each Individual Property is in any way dependent upon or related to any property other than such Individual Property, other than
pursuant to any REA. To the Borrower’s and Operating Lessee’s knowledge, all material certifications, permits, licenses
and approvals, including without limitation, certificates of completion, occupancy permits and any applicable liquor licenses required
of Borrower and/or Operating Lessee for the legal use, occupancy and operation of each Individual Property for its current use
(collectively, the “Licenses”), have been obtained and are in full force and effect. The use being made
of each Individual Property is in conformity with the certificate of occupancy issued for such individual Property and all other
restrictions, covenants and conditions affecting such Individual Property.


 


3.1.10    Financial
Information. All financial data, including the statements of financial condition and statements of cash flows and income
and operating expense, that have been delivered to Lender in connection with the Loan, (i) are true, complete and correct in all
material respects, (ii) accurately represent the financial condition of each Individual Property as of the date of such reports
(subject to year-end adjustments), and (iii) have been prepared in accordance with the Uniform System of Accounts and reconciled
in accordance with GAAP (or otherwise in accordance with an Acceptable Accounting Method) throughout the periods covered. Except
for Permitted Encumbrances, neither Borrower nor Operating Lessee has any material contingent liabilities, liabilities for delinquent
taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known
to Borrower or Operating Lessee and reasonably likely to have a materially adverse effect on any Individual Property or the operation
thereof, except as referred to or reflected in said financial statements. Since the date of the financial statements, there has
been no material adverse change in the financial condition, operations or business of Borrower, Operating Lessee or any Individual
Property from that set forth in said financial statements.


 




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3.1.11    Utilities
and Public Access. Each Individual Property has rights of access to public ways and is served by water, sewer, sanitary
sewer and storm drain facilities adequate to service such Individual Property for its intended uses. All public utilities necessary
or convenient to the full use and enjoyment of each Individual Property are located in the public right-of-way abutting such Individual
Property (which utilities are connected so as to serve such Individual Property without passing over other property) or are in
recorded, irrevocable easements serving such Individual Property and such easements are set forth in and insured by the Title Insurance
Policies. All roads necessary for the use of each Individual Property for its current purpose have been completed and dedicated
to public use and accepted by all Governmental Authorities.


 


3.1.12    Assignment
of Leases. The Assignment of Leases creates a valid assignment of, or a valid security interest in, certain rights under
the Leases, subject only to a license granted to Borrower and Operating Lessee to exercise certain rights and to perform certain
obligations of the lessor under the Leases, including the right to operate each Individual Property. No Person other than Lender
has any interest in or assignment of the Leases or any portion of the Rent or other Gross Revenue from the Properties.


 


3.1.13    Insurance.
Borrower has obtained and maintains all Policies reflecting and satisfying the insurance coverages, amounts and other requirements
set forth in this Agreement and has delivered to Lender certificates evidencing the insurance provided pursuant to the Policies.
No material claims are currently pending, outstanding or otherwise remain unsatisfied under any Policy which would reasonably be
expected to have a material adverse effect on Borrower or Operating Lessee and neither Borrower, Operating Lessee nor, to Borrower’s
and Operating Lessee’s knowledge, any other Person has done, by act or omission, anything which would impair the coverage
of any of the Policies.


 


3.1.14    Flood
Zone. None of the Improvements on any Individual Property is located in an area identified by the Federal Emergency Management
Agency as a special flood hazard area, or, if so located the flood insurance required pursuant to Section 5.1.1(a)
hereof is in full force and effect with respect to such Individual Property.


 


3.1.15    Physical
Condition. To Borrower’s and Operating Lessee’s knowledge, except as may be expressly set forth in the applicable
Physical Conditions Report, each Individual Property, including all buildings, improvements, parking facilities, sidewalks, storm
drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior
sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all
material respects; to Borrower’s and Operating Lessee’s knowledge, and except as expressly disclosed in any Physical
Conditions Report, there exists no structural or other material defects or damages in such Individual Property, whether latent
or otherwise, and neither Borrower nor Operating has received notice from any insurance company or bonding company of any defects
or inadequacies in such Individual Property, or any part thereof, which would adversely affect the insurability of the same or
cause the imposition of extraordinary premiums or charges thereon or any termination or threatened termination of any policy of
insurance or bond.


 




    	 	-62-	 



     


    

 


3.1.16    Boundaries.
Except as disclosed on the applicable Surveys, all of the Improvements which were included in determining the appraised value of
each Individual Property lie wholly within the boundaries and building restriction lines of such Individual Property, and no improvements
on adjoining properties encroach upon such Individual Property, and no easements or other encumbrances affecting such Individual
Property encroach upon any of the Improvements, so as (in each of the foregoing cases) to materially and adversely affect the value
or marketability of such Individual Property, except those which are set forth on the applicable Survey and insured against by
the applicable Title Insurance Policy.


 


3.1.17    Leases.
The rent roll attached hereto as Schedule XI is true, complete and correct in all material respects and no Individual
Property is subject to any material Leases other than the Leases described on Schedule XI. Either Borrower or
Operating Lessee is the owner and lessor of landlord’s interest in the Leases. No Person has any possessory interest in any
Individual Property or right to occupy the same except under and pursuant to the provisions of the Leases (other than typical short-term
occupancy rights of hotel guests). The Leases identified on Schedule XI are in full force and effect and there
are no material defaults thereunder by Borrower, Operating Lessee or, to Borrower’s and Operating Lessee’s knowledge,
the other party beyond any applicable notice or cure period (except as disclosed on Schedule XI), and, to Borrower’s
and Operating Lessee’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both,
would constitute defaults thereunder. The copies of the Leases delivered to Lender are true and complete, and there are no oral
agreements with respect thereto. No Rent relating to the Leases (including security deposits) has been paid more than one (1) month
in advance of its due date. All work to be performed by Borrower or Operating Lessee under each Lease has been performed as required
and has been accepted by the applicable tenant. Any payments, free rent, partial rent, rebate of rent or other payments, credits,
allowances or abatements required to be given by Borrower or Operating Lessee to any tenant has already been received by such tenant
except as otherwise set forth on Schedule XI. The tenants under the Leases have accepted possession of and are
in occupancy of all of their respective demised Individual Property and have commenced the payment of full, unabated rent under
the Leases. Borrower or Operating Lessee has delivered to Lender a true, correct and complete list of all security deposits made
by tenants at the Properties which have not been applied (including accrued interest thereon), all of which are held by Borrower
or Operating Lessee in accordance with the terms of the applicable Lease and applicable Legal Requirements. To Borrower’s
and Operating Lessee’s knowledge, each tenant is free from bankruptcy or reorganization proceedings. No tenant under any
Lease (or any sublease) is an Affiliate of Borrower or Operating Lessee. To Borrower’s and Operating Lessee’s knowledge,
the tenants under the Leases are open for business and paying full, unabated rent. There are no brokerage fees or commissions due
and payable in connection with the leasing of space at any Individual Property, except as set forth on Schedule XI.
There has been no prior sale, transfer or assignment, hypothecation or pledge of any Lease or of the Rents relating thereto or
other Gross Revenue received therein which will be outstanding following the funding of the Loan (other than to Lender). No tenant
listed on Schedule XI has assigned its Lease or sublet all or any portion of the premises demised thereby, no
such tenant holds its leased premises under assignment or sublease, nor, to Borrower’s and Operating Lessee’s knowledge,
does anyone except such tenant and its employees, guests and invitees occupy such leased premises. No tenant under any Lease has
a right or option pursuant to such Lease or otherwise to purchase all or any part of the leased premises or the building of which
the leased premises are a part. No tenant under any Lease has any right or option for additional space in the Improvements, except
as disclosed on Schedule XI.


 




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3.1.18    Tax
Filings. To the extent required by law, each of Borrower and Operating Lessee have filed (or has obtained effective extensions
for filing) all federal, state, commonwealth, district and local tax returns required to be filed and has paid or made adequate
provision for the payment of all federal, state, commonwealth, district and local taxes, charges and assessments payable by Borrower
or Operating Lessee. Each of Borrower’s and Operating Lessee’s tax returns (if any) properly reflect the income and
taxes of Borrower and Operating Lessee for the periods covered thereby, subject only to reasonable adjustments required by the
Internal Revenue Service or other applicable tax authority upon audit.


 


3.1.19    No
Fraudulent Transfer. Neither Borrower nor Operating Lessee (i) has entered into the transaction or any Loan Document with
the actual intent to hinder, delay, or defraud any creditor, and (ii) received reasonably equivalent value in exchange for its
Obligations under the Loan Documents. Giving effect to the Loan, the fair saleable value of each of Borrower’s and Operating
Lessee’s respective assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s and Operating
Lessee’s respective total liabilities, including subordinated, unliquidated, disputed and contingent liabilities. The fair
saleable value of Borrower’s and Operating Lessee respective assets is, and immediately following the making of the Loan,
will be, greater than Borrower’s and Operating Lessee’s respective probable liabilities, including the maximum amount
of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s and Operating Lessee’s
respective assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry
out its business as conducted or as proposed to be conducted. Neither Borrower nor Operating Lessee intends to, and believes that
it will, incur Indebtedness and liabilities (including contingent liabilities and other commitments) beyond its ability to pay
such Indebtedness and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower
and Operating Lessee and the amounts to be payable on or in respect of the obligations of Borrower and Operating Lessee). No petition
in bankruptcy has been filed against any Loan Party, Operating Lessee or any Guarantor, and no Loan Party, Operating Lessee, nor
any Guarantor has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit
of debtors. No Loan Party, Operating Lessee nor any Guarantor is contemplating either the filing of a petition by it under any
state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of its assets or properties, and neither
Borrower nor Operating Lessee has knowledge of any Person contemplating the filing of any such petition against it or any other
Loan Party, Operating Lessee or any Guarantor.


 


3.1.20    Federal
Reserve Regulations. 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
which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes
prohibited by Legal Requirements or by the terms and conditions of this Agreement or the other Loan Documents.


 




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3.1.21    Organizational
Chart. The organizational chart attached as Schedule III, relating to Borrower, Operating Lessee and
certain Affiliates and other parties, is true, complete and correct on and as of the date hereof. No Person other than those Persons
shown on Schedule III have a ten percent (10%) or greater ownership interest in, or right of control, directly
or indirectly, in Borrower or Operating Lessee. Each of Borrower and Operating Lessee represents and warrants to Lender that no
Manager is an Affiliate of Borrower, Operating Lessee or any other Loan Party.


 


3.1.22    Organizational
Status. Each Individual Borrower’s exact legal name, organizational type (e.g., corporation, limited liability company),
the jurisdiction of formation or organization, Tax I.D. and Delaware Organizational I.D. numbers are set forth on Schedule III
hereto. Each Operating Lessee’s exact legal name, organizational type (e.g., corporation, limited liability company), the
jurisdiction of formation or organization, Tax I.D. and Delaware Organizational I.D. numbers are set forth on Schedule III
hereto.


 


3.1.23    [Reserved].


 


3.1.24    No
Casualty. The Improvements have suffered no material casualty or damage which has not been fully repaired and the cost
thereof fully paid.


 


3.1.25    Purchase
Options. No Individual Property nor any part thereof is subject to any purchase options, rights of first refusal, rights
of first offer or other similar rights in favor of third parties.


 


3.1.26    FIRPTA.
Neither Borrower nor Operating Lessee is a “foreign person” within the meaning of Sections 1445 or 7701 of the
Code.


 


3.1.27    Investment
Company Act. Neither Borrower nor Operating Lessee 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, or (ii) subject to
any other United States federal or state law or regulation which purports to restrict or regulate its ability to borrow money.


 


3.1.28    Fiscal
Year. Each fiscal year of Borrower and Operating Lessee commences on January 1.


 


3.1.29    Other
Debt. There is no Indebtedness of Borrower or Operating Lessee with respect to any Individual Property or any excess cash
flow or any residual interest therein, whether secured or unsecured, other than Permitted Encumbrances and Permitted Indebtedness.


 


3.1.30    Contracts.


 


(a)          Neither
Borrower nor Operating Lessee has entered into, or is bound by, any Major Contract which continues in existence, except those previously
disclosed in writing to Lender.


 


(b)          Each
of the Major Contracts is in full force and effect, there are no monetary or other material defaults by Borrower or Operating Lessee
thereunder and, to the best knowledge of Borrower and Operating Lessee, there are no monetary or other material defaults thereunder
by any other party thereto. None of Borrower, Operating Lessee, Manager, or any other Person authorized to act on Borrower’s
or Operating Lessee’s behalf has given or received any notice of default under any of the Major Contracts that remains uncured
or in dispute.


 




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(c)          Borrower
or Operating Lessee has delivered true, correct and complete copies of the Major Contracts (including all amendments and supplements
thereto) to Lender, which Major Contracts are described on Schedule XX attached hereto.


 


(d)          No
Major Contract has as a party an Affiliate of Borrower or Operating Lessee. All fees and other compensation for services previously
performed under the Management Agreements have been paid in full in accordance with the terms thereof.


 


3.1.31    Full
and Accurate Disclosure. To Borrower’s and Operating Lessee’s knowledge, no statement of fact made by Borrower
or Operating Lessee in this Agreement or in any of the other Loan Documents contains any untrue statement of a material fact or
omits to state any material fact necessary to make statements contained herein or therein not misleading. There is no material
fact presently known to Borrower or Operating Lessee which has not been disclosed to Lender which materially adversely affects,
nor as far as Borrower or Operating Lessee can foresee, reasonably could be expected to materially adversely affect, the Properties
or the business, operations or condition (financial or otherwise) of Borrower or Operating Lessee.


 


3.1.32    Other
Obligations and Liabilities. Neither Borrower nor Operating Lessee has any liabilities or other obligations, contingent
or otherwise, that arose or accrued prior to the date hereof that, either individually or in the aggregate, are reasonably likely
to have a material adverse effect on Borrower, Operating Lessee the Properties, Borrower’s ability to pay the Debt, and/or
the business, operations or condition (financial or otherwise) of Borrower or Operating Lessee.


 


3.1.33    Intellectual
Property/Websites. Other than as set forth on Schedule VI, none of Borrower, Operating Lessee or any
of their respective Affiliate (i) has or holds any tradenames, trademarks, servicemarks, logos, copyrights, patents or other intellectual
property (collectively, (“Intellectual Property”) with respect to any Individual Property or the use
or operations thereof or is (ii) is the registered holder of any website with respect to any Individual Property (other than tenant
websites).


 


3.1.34    Intentionally
Omitted.


 


3.1.35    Operations
Agreement. Each Operations Agreement is in full force and effect and neither Borrower nor Operating Lessee nor, to Borrower’s
and Operating Lessee’s knowledge, any other party to any Operations Agreement, is in material default thereunder, and to
Borrower’s and Operating Lessee’s knowledge, there are no conditions which, with the passage of time or the giving
of notice, or both, would constitute a material default thereunder. Except as described herein (including the Exhibits and Schedules
attached hereto), no Operations Agreement has been modified, amended or supplemented.


 




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3.1.36    Franchise
Agreements.


 


(a)          Each
Franchise Agreement, pursuant to which Operating Lessee has the right to operate the hotel located on the applicable Individual
Property under a name and/or hotel system controlled by the applicable Franchisor, is in full force and effect and there is no
material default, breach or violation existing thereunder by any party thereto and, to Borrower’s and Operating Lessee’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 material default, breach or violation by any party thereunder. Neither the execution and
delivery of the Loan Documents or Borrower’s or Operating Lessee’s performance thereunder will adversely affect Borrower’s
or Operating Lessee’s rights under any Franchise Agreement. None Borrower, Operating Lessee or any Franchisor has exercised
any termination option under the applicable Franchise Agreement, neither Borrower nor Operating Lessee has given any notice to
the applicable Franchisor of Borrower’s or Operating Lessee’s election to terminate such Franchise Agreement effective
as of a date after the date hereof, and neither Borrower nor Operating Lessee has received from any Franchisor such Franchisor’s
notice of its election to terminate such Franchise Agreement effective as of a date after the date hereof. Schedule XII
contains a true and correct list, by Individual Property, of (x) each Franchise Agreement under which Operating Lessee has the
right to operate the applicable Individual Property, and (y) the expiration dates of each Franchise Agreements set forth on Schedule XII.


 


3.1.37    Illegal
Activity. No portion of any Individual Property has been or will be purchased with proceeds of any illegal activity.


 


3.1.38    Property
Improvement Plan. There is currently no PIP or similar requirement imposed under any Franchise Agreement, for calendar
year 2019 (the “Scheduled PIP”) and there is currently no PIP or similar requirement imposed under any
Franchise Agreement other than Scheduled PIP.


 


3.1.39    Operating
Lease. Borrower is the owner and lessor of landlord’s interest in the Operating Lease. The current Operating Lease
is in full force and effect and there are no material defaults thereunder by either party and to Borrower’s and Operating
Lessee’s knowledge, there are no conditions that, with the passage of time or the giving of notice, or both, would constitute
defaults thereunder.


 


Section 3.2          Survival
of Representations. The representations and warranties set forth in Section 3.1 and elsewhere in this Agreement
and the other Loan Documents shall (i) while not re-made, survive until the Obligations have been paid and performed in full and
(ii) be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on
its behalf. Notwithstanding the foregoing, any representation or warranty made with respect to an Individual Property shall not
survive the release of such Individual Property from the Lien of the applicable Mortgage in accordance with Section 2.5.


 


ARTICLE
4


 


BORROWER
COVENANTS


 


Until the end of the Term, Borrower and Operating
Lessee hereby covenants and agrees with Lender that:


 


Section 4.1          Payment
and Performance of Obligations. Borrower and Operating Lessee shall pay and otherwise perform the Obligations in accordance
with the terms of this Agreement and the other Loan Documents.


 




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Section 4.2          Due
on Sale and Encumbrance; Transfers of Interests.


 


(a)          Each
of Borrower and Operating Lessee acknowledges that Lender has examined and relied on the experience of Borrower and Operating Lessee
and their respective stockholders, general partners and members, as applicable, and principals of Borrower and Operating Lessee
in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower’s
ownership of the Properties as a means of maintaining the value of the Properties as security for repayment of the Debt and the
performance of the Other Obligations. Borrower and Operating Lessee each acknowledge that Lender has a valid interest in maintaining
the value of the Properties so as to ensure that, should Borrower default in the repayment of the Debt or Borrower or Operating
Lessee default in the performance of the Other Obligations, Lender can recover the Debt by a sale of the Properties. Therefore,
without the prior written consent of Lender, but, in each instance, subject to the express provisions of Article 7,
neither Borrower nor Operating Lessee nor any other Loan Party nor any other Person having a direct or indirect ownership or beneficial
interest in Borrower, Operating Lessee or in any other Loan Party shall sell, convey, mortgage, grant, bargain, encumber, pledge,
assign or transfer any Individual Property or any part thereof, or any interest, direct or indirect, common, preferred or otherwise,
in Borrower, Operating Lessee or in any other Loan Party, or in any Person holding any direct or indirect interest in Borrower,
Operating Lessee or in any other Loan Party, whether voluntarily or involuntarily or enter into or subject any Individual Property
to a PACE Loan (a “Transfer”). A Transfer within the meaning of this Section 4.2 shall be
deemed to include, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell any Individual Property
or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower or Operating Lessee for the leasing of
all or a substantial part of any Individual Property for any purpose other than the actual occupancy by a space tenant thereunder
or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest
in and to any Leases, or any Gross Revenue; (iii) if Borrower, Operating Lessee or any other Loan Party or any general partner,
managing member or controlling shareholder of Borrower or of any other Loan Party is a corporation, the voluntary or involuntary
sale, conveyance or transfer of such corporation’s stock (or the stock of any corporation directly or indirectly controlling
such corporation by operation of law or otherwise) or the creation or issuance of new stock; (iv) if Borrower, Operating Lessee
or any other Loan Party, or any general partner, managing member or controlling shareholder of Borrower, Operating Lessee, or of
any other Loan Party is a limited or general partnership, joint venture or limited liability company, the change, removal, resignation
or addition of a general partner, managing partner, limited partner, joint venturer or member or the transfer of the partnership
interest of any general partner, managing partner or limited partner or the transfer of the interest of any joint venturer or member,
and (v) any pledge, hypothecation, assignment, transfer or other encumbrance of any direct or indirect ownership interest in Borrower,
Operating Lessee or in any other Loan Party.


 




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(b)          Notwithstanding
the foregoing, a Transfer within the meaning of this Section 4.2 shall not include (i) dispositions of equipment and
fixtures in the ordinary course of Borrower’s or Operating Lessee’s business (including equipment or fixtures which
are being replaced or which are no longer necessary in connection with the operation of the Property, provided that (1) such disposition
in this parenthetical will not have a material adverse effect on or materially impair the utility of the applicable Individual
Property (a “Material Adverse Effect”) and (2) any new equipment or fixtures acquired by Borrower or
Operating Lessee (and not so disposed of) shall be subject to the Lien of the Loan Documents (collectively, the “Disposition
Conditions”)), (ii) Leases in effect on the date hereof or otherwise permitted by this Agreement, (iii) Permitted
Transfers, (iv) easements and rights of way in the ordinary course of business that would not have a material adverse effect on
the use, occupancy or access to the applicable Individual Property, and (v) subject to Section 5.3 hereof, transfers
of portions of Individual Properties to Governmental Authorities for (1) dedication of such portion to a public use or (2) easements,
restrictions, covenants, reservations and rights of way in the ordinary course of business for purposes of public access, the placement
of water and sewer lines, telephone and telegraph lines, electric lines or other utilities serving such Individual Property; provided
no such transfers shall have any adverse effect on the first priority position of the Lien of the applicable Mortgage or any other
Material Adverse Effect. In connection with any event specified in clause (i) above, Lender shall, from time to time,
upon receipt of an officer’s certificate requesting the same and confirming satisfaction of the Disposition Conditions, execute
a written instrument in form and substance reasonably satisfactory to Lender to confirm that such equipment or fixtures which are
to be, or have been, sold or disposed of are free from the Lien of the Loan Documents; provided, Borrower shall reimburse Lender
for its or its Servicer’s reasonable fees and expenses incurred in reviewing such instrument and Borrower’s request.


 


Section 4.3          Liens.
Neither Borrower nor Operating Lessee shall create, incur, assume, permit or suffer to exist any Lien on any portion of any Individual
Property, except for the Permitted Encumbrances, nor any Lien on any direct or indirect interest in Borrower, Operating Lessee
or any Loan Party, except for (i) the pledges of the direct or indirect equity interests in Borrower granted by Mezzanine Borrowers
in favor of Mezzanine Lenders and in Operating Lessee by Leasehold Pledgor pursuant to the Mezzanine Loan Documents as security
for the Mezzanine Loans and (ii) Permitted Transfers, if any. Subject to the following, Borrower or Operating Lessee shall promptly
discharge any Lien or charge against any of the Individual Properties which is not a Permitted Encumbrance nor otherwise expressly
permitted hereunder. After prior notice to Lender, Borrower or Operating Lessee, at its own expense, may contest by appropriate
legal proceeding, conducted in good faith and with due diligence, the amount or validity of any Liens, provided that (i) no Event
of Default has occurred and remains uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with
all applicable statutes, laws and ordinances; (iii) no Individual Property nor any part thereof or interest therein will be in
danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower or Operating Lessee shall promptly upon final determination
thereof pay the amount of any such Liens, together with all costs, interest and penalties which may be payable in connection therewith;
(v) to insure the payment of such Liens exceeding $1,000,000 in the aggregate at any one time, Borrower shall deliver to Lender
either (A) cash, or other security as may be approved by Lender, in an amount equal to one hundred twenty-five percent (125%) of
the contested amount, or (B) a payment and performance bond in an amount equal to one hundred percent (100%) of the contested amount
from a surety acceptable to Lender in its reasonable discretion, (vi) failure to pay such Liens will not subject Lender to any
civil or criminal liability, (vii) such contest shall not affect the ownership, use or occupancy of any Individual Property, and
(viii) Borrower or Operating Lessee shall, upon request by Lender, give Lender prompt notice of the status of such proceedings
and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (i) through (vii)
of this Section 4.3. Lender may pay over any such cash or other security held by Lender to the claimant entitled thereto
at any time when, in the reasonable judgment of Lender, the entitlement of such claimant is established or any Individual Property
(or any part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or lost or there shall
be any danger of the Lien of the applicable Mortgage being primed by any related Lien.


 




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Section 4.4          Special
Purpose. Without in any way limiting the provisions of this Article 4, Borrower and Operating Lessee hereby
represent and warrant to, and covenant with, Lender that since the date of Borrower’s and Operating Lessee’s formation
and at all times on and after the date hereof and until such time as the Obligations shall be paid and performed in full, Borrower
and Operating Lessee has at all times been and shall at all times be a Special Purpose Bankruptcy Remote Entity. Neither Borrower
nor Operating Lessee shall directly or indirectly make any change, amendment or modification to its organizational documents, or
otherwise take any action which could result in Borrower or Operating Lessee not being a Special Purpose Bankruptcy Remote Entity.


 


Section 4.5          Existence;
Compliance with Legal Requirements. Each of Borrower and Operating Lessee shall do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its existence and all rights, licenses, permits, franchises and all applicable
governmental authorizations necessary for the operation of the Properties and comply with all Legal Requirements applicable to
it and the Properties.


 


Section 4.6          Taxes
and Other Charges; Use and Occupancy Taxes.


 


(a)          Borrower
or Operating Lessee shall pay all Taxes and Other Charges now or hereafter levied, assessed or imposed at least five (5) Business
Days before the same become Due and Payable, and shall furnish to Lender receipts for the payment of the Taxes and the Other Charges
prior to the date the same shall become Due and Payable (provided, however, that provided no Event of Default shall have occurred
and be continuing neither Borrower nor Operating Lessee need pay Taxes directly nor furnish such receipts for payment of Taxes
to the extent that funds to pay for such Taxes have been deposited into the Tax Account pursuant to Section 6.3). Borrower
or Operating Lessee shall promptly pay for all utility services provided to the Properties. After prior notice to Lender, Borrower
or Operating Lessee, at its own expense, may contest by appropriate legal proceeding, conducted in good faith and with due diligence,
the amount or validity of any Taxes or Other Charges, provided that (i) no Default or Event of Default has occurred and remains
uncured; (ii) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances;
(iii) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled
or lost; (iv) Borrower or Operating Lessee shall promptly upon final determination thereof pay the amount of any such Taxes or
Other Charges, together with all costs, interest and penalties which may be payable in connection therewith; (v) such proceeding
shall suspend the collection of Taxes or Other Charges from the applicable Individual Property; (vi) to insure the payment of such
Taxes or Other Charges exceeding $1,000,000 in the aggregate at any one time Borrower shall deposit with Lender cash, or other
security as may be approved by Lender, in an amount equal to one hundred twenty-five percent (125%) of the contested amount, to
insure the payment of any such Taxes or Other Charges, together with a reasonable estimate of all interest and penalties thereon,
(vii) failure to pay such Taxes or Other Charges will not subject Lender to any civil or criminal liability, (viii) such contest
shall not affect the ownership, use or occupancy of the Properties, or of any Individual Property, and (ix) Borrower or Operating
Lessee shall, upon request by Lender, give Lender prompt notice of the status of such proceedings and/or confirmation of the continuing
satisfaction of the conditions set forth in clauses (i) through (viii) of this Section 4.6. Lender
may pay over any such cash or other security held by Lender to the claimant entitled thereto at any time when, in the judgment
of Lender, the entitlement of such claimant is established or any Individual Property (or any part thereof or interest therein)
shall be in danger of being sold, forfeited, terminated cancelled or lost or there shall be any danger of the Lien of the applicable
Mortgage being primed by any related Lien.


 




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(b)          Borrower
or Operating Lessee shall pay all Hotel Taxes now or hereafter payable to the applicable Governmental Authority with respect the
Individual Properties, as the same become due and payable. Within forty-five (45) days following the end of each calendar quarter,
Borrower or Operating Lessee shall provide an Officer’s Certificate setting forth the actual amount of Hotel Taxes due and
the actual amount paid with respect to the Properties for the calendar quarter immediately preceding the date of such certificate.


 


Section 4.7          Litigation.
Borrower or Operating Lessee shall give prompt notice to Lender of any litigation or governmental proceedings pending or threatened
in writing against any Individual Property, Borrower, Operating Lessee, Manager (but only as it relates to any Individual Property
and only if Borrower or Operating Lessee has received notice of any such litigation or governmental proceedings) which might materially
adversely affect such Individual Property or Borrower’s, Operating Lessee’s or Manager’s condition financial
or otherwise or business (including Borrower’s or Operating Lessee’s ability to perform its Obligations hereunder or
under the other Loan Documents but, in the case of Manager’s condition or business, only to the extent Borrower or Operating
Lessee has a reasonable belief that such litigation or proceeding might materially adversely affect Manager’s condition or
business).


 


Section 4.8          Title
to the Property. Each of Borrower and Operating Lessee shall warrant and defend (a) its title to each Individual Property
and every part thereof, subject only to Permitted Encumbrances and (b) the validity and priority of the Liens of the Mortgage,
the Assignment of Leases and this Agreement on each Individual Property, subject only to Permitted Encumbrances, in each case against
the claims of all Persons whomsoever. Borrower or Operating Lessee shall reimburse Lender for any losses, costs, damages or expenses
(including reasonable attorneys’ fees and court costs) incurred by Lender if an interest in any Individual Property, other
than as permitted hereunder, is claimed by another Person.


 


Section 4.9          Financial
Reporting.


 


4.9.1      Generally.
Borrower and Operating Lessee shall keep and maintain or will cause to be kept and maintained proper and accurate books and records,
in accordance with GAAP and the requirements of Regulation AB, reflecting the financial affairs of Borrower and Operating Lessee
and all items of income and expense in connection with the operation of the Properties. Lender shall have the right from time to
time during normal business hours upon reasonable notice Borrower to examine such books and records at the office of Borrower or
other Person maintaining such books and records and to make such copies or extracts thereof as Lender shall desire. After an Event
of Default, Borrower shall pay any reasonable and actual costs incurred by Lender to examine such books, records and accounts,
as Lender shall reasonably determine to be necessary or appropriate in the protection of Lender’s interest.


 




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4.9.2      Quarterly
and Monthly Reports.


 


(a)          Not
later than forty-five (45) days following the end of the first three fiscal quarters, and within ninety (90) days after the end
of the fourth fiscal quarter, Borrower shall deliver to Lender unaudited consolidated financial statements of Borrower and Operating
Lessee, internally prepared on an accrual basis including a consolidated balance sheet as of the end of such quarter and profit
and loss statements for the quarter and year then ended compared to the corresponding period of the previous Fiscal Year, Individual
Property-level profit and loss statements for the previous twelve (12) months then ended, and a summary report detailing monthly
occupancy, including average daily rate, made available to Borrower or Operating Lessee for the subject quarter. Such statements
for each quarter shall be accompanied by an Officer’s Certificate certifying to the best of the signer’s knowledge,
(A) that such statements fairly represent the financial condition and results of operations of Borrower and Operating Lessee and
the Properties on a combined basis as well as each Individual Property (subject to normal year-end adjustments), (B) that as of
the date of such Officer’s Certificate, no Event of Default exists under this Agreement, the Note or any other Loan Document
or, if so, specifying the nature and status of each such Event of Default and the action then being taken by Borrower or proposed
to be taken to remedy such Event of Default, (C) that as of the date of each Officer’s Certificate, no litigation exists
involving Borrower, Operating Lessee or any Individual Property or the Properties in which the amount involved is $1,000,000 (in
the aggregate) or more or in which all or substantially all of the potential liability is not covered by insurance, or, if so,
specifying such litigation and the actions being taking in relation thereto, (D) the amount by which actual Operating Expenses
were greater than or less than the Operating Expenses anticipated in the applicable Annual Budget, and (E) a calculation reflecting
the Debt Yield as of the last day of such fiscal quarter. Such financial statements shall contain such other information as shall
be reasonably requested by Lender for purposes of calculations to be made by Lender pursuant to the terms hereof. All calculations
of the Debt Yield shall be subject to verification by Lender.


 


(b)          Prior
to the occurrence of a Securitization, Borrower shall deliver to Lender, not later than thirty (30) days following the end of each
calendar month, a consolidated profit and loss statement for Borrower (which, to the extent required by GAAP, shall separately
denote any “non-controlling” or “minority” interest in the earnings of any subsidiary of HIT Portfolio I
Holdco, LLC (“Holdco”)) for the month and year then ended compared to the corresponding period of the
previous Fiscal Year and for each Individual Property, a profit and loss statement for the twelve (12) months then ended and a
summary report detailing monthly occupancy, including the daily average rate during the subject month. Such statements for each
month shall be accompanied by an Officer’s Certificate certifying to the best of the signer’s knowledge that such statements
fairly represent the results of operations of Borrower (taking into account any “non-controlling” or “minority”
interest in the earnings of any subsidiary of Borrower) and the Properties and a calculation reflecting the Debt Yield as of the
last day of such calendar month. All calculations of the Debt Yield shall be subject to verification by Lender.


 


4.9.3      Annual
Reports. Borrower shall deliver to Lender:


 


(a)          Intentionally
Omitted;


 




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(b)          Not
later than one hundred twenty (120) days after the end of each Fiscal Year of Hospitality Investors Trust, Inc.’s operations,
audited consolidated financial statements of Hospitality Investors Trust, Inc., certified by an Independent Accountant in accordance
with GAAP, covering the Properties on a combined basis with all other properties of the consolidated group for such Fiscal Year,
including a consolidated balance sheet as of the end of such Fiscal Year and a consolidated statement of operations, which shall
be accompanied by an Officer’s Certificate in the form required pursuant to Section 4.9.2(a) above (it being
acknowledged that a copy of the annual audit report filed by Hospitality Investors Trust, Inc. with the Securities and Exchange
Commission shall satisfy the foregoing requirements); and


 


(c)          Not
later than one hundred twenty (120) days after the end of each Fiscal Year of Borrower’s operations, an annual summary of
any and all FF&E Work, PIP Work and Capital Expenditures made at the Properties on a combined basis, as well as for each Individual
Property where the cost of FF&E Work, PIP Work and Capital Expenditures at such Individual Property exceeds $500,000, during
the prior twelve (12) month period.


 


4.9.4      Other
Reports.


 


(a)          Borrower
shall deliver to Lender, within ten (10) Business Days of Lender’s reasonable request therefor, copies of reports prepared
by Manager in accordance with its obligations under the Management Agreement, including without limitation, any financial reports,
economic and operational trend analyses, or such other information as Borrower or Operating Lessee is entitled to request from
Manager from time to time.


 


(b)          Borrower
and Operating Lessee shall, within ten (10) Business Days after request by Lender or, if all or part of the Loan is being or has
been included in a Securitization (in which case, at Lender’s expense), by the Rating Agencies, furnish or cause to be furnished
to Lender and, if applicable, the Rating Agencies, in such manner and in such detail as may be reasonably requested by Lender or
the Rating Agencies, such reasonable additional information as may be reasonably requested with respect to the Properties as well
as with respect to any Individual Property, including franchise inspection reports and guest satisfaction scores.


 


(c)          Borrower
and Operating Lessee shall submit to Lender the financial data and financial statements required, and within the time periods required,
under clauses (i) and (ii) of Section 9.1(f), if and when available.


 




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4.9.5      Annual
Budget.


 


(a)          Borrower
or Operating Lessee shall submit to Lender by December 31 of each year the Annual Budget for the succeeding Fiscal Year; Borrower
shall also submit any updates to such Annual Budget; provided that during the continuance of any Trigger Period, Borrower shall
submit an Annual Budget to Lender by December 1 of each year. Each Annual Budget shall include Operating Expenses and Capital Expenditure
which are based upon, and consistent with, what is reasonable and customary for properties similar in size, location and nature
to the Properties. During the continuance of any Trigger Period, the Annual Budget then currently in place shall be deemed approved,
but Lender shall have the right to approve any amendment thereto and each subsequent Annual Budget (which approval shall not be
unreasonably withheld, conditioned or delayed so long as no Event of Default is continuing) and shall further have the right to
require Borrower to furnish Lender on a biannual basis for its approval an update of such Annual Budget (which update shall be
subject to Lender’s approval, such approval not to be unreasonably withheld, conditioned or delayed so long as no Event of
Default is continuing). Annual Budgets and/or updates thereof submitted to Lender in accordance herewith and, if Lender approval
is then required hereunder, approved or deemed approved by Lender in accordance with Section 4.9.5(b) hereof, shall
hereinafter be referred to as an “Approved Annual Budget”. During the continuance of a Trigger Period,
until such time that any Annual Budget has been approved by Lender, the prior Approved Annual Budget shall apply for all purposes
hereunder (with adjustments as reasonably determined by Lender to reflect actual increases in Taxes, Insurance Premiums and utilities
expenses and variable Operating Expenses that directly relate to increases in revenue). None of Borrower, Operating Lessee, or
Manager shall change or modify an Approved Annual Budget, as it may be updated in accordance herewith, that has been approved or
deemed approved by Lender without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed
so long as there is no Event of Default then continuing (until such time as the applicable Trigger Period ends, after which unless
and until a new Trigger Period shall begin, no Lender consent shall be required and Borrower may change or modify an Approved Annual
Budget in accordance with the terms of this Section 4.9.5).


 


(b)          In
the event Borrower is required to obtain Lender’s approval of a proposed Annual Budget (or any proposed modification thereof)
pursuant to this Section 4.9.5, Lender’s approval shall be deemed given by Lender if (I) the first correspondence
from Borrower to Lender requesting such approval (A) is enclosed in an envelope marked “PRIORITY”, (B) contains a legend,
prominently displayed at the top of each page thereof, in bold, all caps and fourteen (14) point or larger font stating that Borrower
is requesting the Lender’s approval of the proposed Annual Budget (or the proposed modification thereof) under Section 4.9.5
of the Loan Agreement and that Lender’s failure to respond to such request within ten (10) Business Days following its receipt
of such request may result in such request being deemed granted, and (C) is accompanied by a copy of the proposed Annual Budget
(or the proposed modification thereof) and all information and documentation (and in such detail) as is reasonably necessary to
allow Lender to adequately and completely evaluate the request (which information may be provided electronically in the form of
a CD Rom or other portable electronic media enclosed with such notice), (II) Lender shall fail to respond to such request within
ten (10) Business Days following its receipt of such request, (III) Borrower shall deliver to Lender a second written request for
approval, which request is delivered in the same form and manner as contemplated in clause (I) above and states that
Lender’s failure to respond to such request within five (5) Business Days following its receipt of such second request, shall
result in such request being deemed granted, and (IV) Lender shall fail to respond to such request in the manner contemplated in
clause (III) above within such five (5) Business Day period. In the event Lender timely objects (stating the basis
for its objection in reasonable detail) to a proposed Annual Budget (or the proposed modification thereof) in accordance with the
foregoing, Borrower shall promptly revise, or cause to be revised, such Annual Budget (or the proposed modification thereof) and
resubmit the same to Lender. Lender’s approval of a revised Annual Budget (or revised modification thereof) shall be deemed
given by Lender if such revision is submitted to Lender in accordance with clauses (I) and (III) above and Lender
shall fail to respond in accordance with clauses (II) and (IV) above.


 




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4.9.6      Excess
Operating Expenses.


 


(a)          In
the event that during a Trigger Period Borrower or Operating Lessee incurs any Operating Expenses in excess of Approved Operating
Expenses (excluding any Restricted Payments and any Incentive Management Fees, and excluding amounts permitted to be remitted to
Borrower from Cash Collateral Funds pursuant to Section 6.10(b)) (“Excess Operating Expenses”),
then Borrower or Operating Lessee shall promptly deliver to Lender, for Lender’s information, upon Lender’s request,
a reasonably detailed explanation of such Excess Operating Expenses. During the continuance of any Trigger Period, all Excess Operating
Expenses must be approved by Lender in writing (such expenses, if approved, or deemed approved in accordance with Section 4.9.6(b)
below, the “Approved Excess Operating Expenses”) prior to the disbursement of any funds therefor, such
approval not to be unreasonably withheld, conditioned or delayed provided no Event of Default shall then exist. During the continuance
of any Trigger Period, any funds distributed to Borrower for the payment of Approved Excess Operating Expenses pursuant to Section 6.11.1(a)(xi)
shall be used by Borrower or Operating Lessee only to pay for such Approved Excess Operating Expenses or to reimburse Borrower
or Operating Lessee for such Approved Excess Operating Expenses, as applicable.


 


(b)          In
the event Borrower is required to obtain Lender’s approval of Excess Operating Expenses pursuant to this Section 4.9.6,
Lender’s approval shall be deemed given by Lender if (I) the first correspondence from Borrower to Lender requesting such
approval (A) is enclosed in an envelope marked “PRIORITY”, (B) contains a legend, prominently displayed at the top
of each page thereof, in bold, all caps and fourteen (14) point or larger font stating that Borrower is requesting the Lender’s
approval of Excess Operating Expenses under Section 4.9.6 of the Loan Agreement and that Lender’s failure to respond
to such request within ten (10) Business Days following its receipt of such request may result in such request being deemed granted,
and (C) is accompanied by an explanation of such Excess Operating Expenses in reasonable detail as is necessary to allow Lender
to adequately and completely evaluate the request, (II) Lender shall fail to respond to such request within ten (10) Business Days
following its receipt of such request, (III) Borrower shall deliver to Lender a second written request for approval, which request
is delivered in the same form and manner as contemplated in clause (I) above and states that Lender’s failure
to respond to such request within five (5) Business Days following its receipt of such second request, shall result in such request
being deemed granted, and (IV) Lender shall fail to respond to such request in the manner contemplated in clause (III)
above within such five (5) Business Day period.


 


4.9.7      Hotel
Accounting. All property level (but not upper-tier or consolidated) monthly and other operating statements to be delivered
by or on behalf of Borrower or Operating Lessee hereunder shall be (and all accompanying Officer’s Certificates shall state
that they have been) prepared based upon the Uniform System of Accounts for Hotels, current edition.


 


Section 4.10        Access
to Property. Borrower and Operating Lessee shall permit agents, representatives, consultants and employees of Lender to
inspect any Individual Property or any part thereof at reasonable hours upon reasonable advance notice. Lender or its agents, representatives,
consultants and employees as part of any inspection may non-invasively (except as expressly permitted under the Environmental Indemnity)
take soil, air, water, building material and other samples from such Individual Property, subject to the rights of tenants under
Leases.


 




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Section 4.11        Leases.
Any Leases in excess of three thousand (3,000) square feet (each such Lease a “Material Lease”) written
after the date hereof shall be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Upon request, Borrower or Operating Lessee shall furnish Lender with executed copies of all Leases entered
into after the date hereof. All renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing
local market rates. All proposed Leases shall be on commercially reasonable terms and shall not contain any terms which would materially
adversely affect Lender’s rights under the Loan Documents. Prior to entering into any Lease or any modification thereof,
Borrower or Operating Lessee shall obtain or cause the tenant to obtain all licenses, permits, approvals and consents required
as a condition to such Lease and/or to tenant’s operation thereunder, including without limitation any and all consents and
approvals required under any applicable Franchise Agreement, Operations Agreement and/or License. All Leases executed after the
date hereof shall provide that they are subordinate to the Mortgage encumbering the applicable Individual Property and that the
lessee agrees to attorn to Lender or any purchaser at a sale by foreclosure or power of sale. Borrower or Operating Lessee shall,
and shall cause the related Manager to, (i) observe and perform the obligations imposed upon the lessor under the Leases in a commercially
reasonable manner; (ii) enforce (if and to the extent commercially reasonable to do so under the circumstances) the terms, covenants
and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed in a commercially reasonable
manner or terminate or amend such lease, in either case in a manner not to impair materially the value of the Individual Property
involved except that no termination by Borrower or Operating Lessee or acceptance of surrender by a tenant of any Material Lease
shall be permitted unless by reason of a tenant default and then only in a commercially reasonable manner to preserve and protect
the Individual Property; provided, however, that no such termination or surrender of any Material Lease will be permitted
without the written consent of Lender; (iii) not collect any of the Rents relating to the Leases more than one (1) month in advance
(other than security deposits); (iv) not execute any other assignment of lessor’s interest in the Leases or the Rents or
any other Gross Revenues (except as contemplated by the Loan Documents); (v) not alter, modify or change the terms of the Leases
in a manner inconsistent with the provisions of the Loan Documents; and (vi) execute and deliver at the request of Lender all such
further assurances, confirmations and assignments in connection with the Leases as Lender shall from time to time reasonably require.
Notwithstanding anything to the contrary contained herein, neither Borrower nor Operating Lessee shall enter into a lease of all
or substantially all of any Individual Property (other than the Operating Leases) without Lender’s prior written consent,
which consent maybe withheld in Lender’s sole and absolute discretion. Lender’s approval of a Material Lease shall
be deemed given by Lender if (I) the first correspondence from Borrower to Lender requesting such approval (A) is enclosed in an
envelope marked “PRIORITY”, (B) contains a legend, prominently displayed at the top of each page thereof, in bold,
all caps and fourteen (14) point or larger font stating that Borrower or Operating Lessee is requesting Lender’s approval
of a Material Lease under Section 4.11 of the Loan Agreement and that Lender’s failure to respond to such request within
ten (10) Business Days following its receipt of such request may result in such request being deemed granted, and (C) is accompanied
by an a copy of such proposed Material Lease together with an explanation thereof in such reasonable detail as is necessary to
allow Lender to adequately and completely evaluate the request, (II) Lender shall fail to respond to such request within ten (10)
Business Days following its receipt of such request, (III) Borrower or Operating Lessee shall deliver to Lender a second written
request for approval, which request is delivered in the same manner as contemplated in clause (I) above and states
that Lender’s failure to respond to such request within five (5) Business Days following its receipt of such second request,
shall result in such request being deemed granted, and (IV) Lender shall fail to respond to such request in the manner contemplated
in clause (III) above within such five (5) Business Day period.


 




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Section 4.12        Repairs;
Maintenance and Compliance; Alterations.


 


4.12.1    Repairs;
Maintenance and Compliance. Borrower and Operating Lessee shall at all times maintain, preserve and protect all franchises
and trade names, and Borrower and Operating Lessee shall cause each Individual Property to be maintained in a good and safe condition
and repair and shall not remove, demolish or alter the Improvements or Equipment (except for alterations performed in accordance
with Section 4.12.2 below and normal replacement of Equipment with Equipment of equivalent value and functionality).
Borrower shall promptly comply with all Legal Requirements and immediately cure properly any violation of a Legal Requirement.
Borrower and Operating Lessee shall promptly notify Lender in writing after Borrower or Operating Lessee first receives notice
of any such non-compliance. Borrower and Operating Lessee shall promptly repair, replace or rebuild any part of any Individual
Property that becomes damaged, worn or dilapidated (subject to Article V) and shall complete and pay for any Improvements
at any time in the process of construction or repair. Borrower and Operating Lessee acknowledges and agrees that, with respect
to any Individual Properties that have fewer parking spaces than are required under the applicable zoning regulations, (a) each
such Individual Property could be brought into compliance with the applicable zoning regulations with respect to parking count
solely by restriping the parking lot(s) and/or parking garage(s) located at such Individual Property and (b) Borrower and Operating
Lessee shall bring each such Individual Property into compliance with applicable zoning regulations with respect to parking count
promptly following the request by any Governmental Authority to do so.


 




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4.12.2    Alterations.
Borrower and Operating Lessee may, without Lender’s consent, perform alterations to the Improvements and Equipment which
(i) do not constitute a Material Alteration (or are otherwise approved by Lender), (ii) do not materially adversely affect Borrower’s
or Operating Lessee’s financial condition or the value or net operating income of the Properties or of any Individual Property,
and (iii) are in the ordinary course of Borrower’s and Operating Lessee’s business (it being understood that nothing
in this clause (iii) shall prohibit Borrower from carrying out FF&E Work to the extent the same constitutes an
Approved FF&E Expense or PIP Work to the extent the same constitutes an Approved Scheduled PIP Expense). Neither Borrower nor
Operating Lessee shall perform any Material Alteration without Lender’s prior written consent not to be unreasonably withheld,
conditioned or delayed. Lender may, as a condition to giving its consent to a Material Alteration with respect to any one or more
Individual Properties, require that Borrower or Operating Lessee deliver to Lender security for payment of the cost of such Material
Alteration and as additional security for Borrower’s and Operating Lessee’s Obligations under the Loan Documents, which
security may be any of the following: (i) cash, (ii) a Letter of Credit, (iii) U.S. Obligations, or (iv) other securities
acceptable to Lender, provided that in the case of this clause (iv), Lender shall have received a Rating Agency Confirmation
as to the form and issuer of same. Such security shall be in an amount equal to the total unpaid amounts incurred and to be incurred
with respect to such alterations to the Improvements at such Individual Property(ies) (other than such amounts to be paid or reimbursed
by tenants under the Leases) in excess of the Alteration Threshold. Not more than once per month during the course of the Material
Alteration, upon Borrower’s or Operating Lessee’s written request and provided each of the conditions below shall have
been satisfied, Lender will disburse funds from any Material Alteration security that is cash to fund (or reimburse Borrower or
Operating Lessee, as applicable, for its funding of) the cost of the Material Alterations or, to the extent applicable, provide
its written consent to the reduction of any Letter of Credit in consideration of Borrower’s or Operating Lessee’s funding
of the cost of the Material Alterations (such reduction being in the amount of such funding), in each case, within twenty (20)
days following Lender’s receipt of Borrower’s or Operating Lessee’s written request. Lender’s obligation
to make disbursements hereunder shall be subject to the satisfaction of each of the following conditions: (x) as of the date of
Borrower’s or Operating Lessee’s request, and as of the date of disbursement, no Event of Default shall have occurred
and be continuing, (y) Borrower’s or Operating Lessee’s written request shall be accompanied by: (1) copies of all
bills and invoices evidencing such costs (and the same shall be subject to Lender’s reasonable review), (2) an Officer’s
Certificate from Borrower (A) stating that the items to be funded by the requested disbursement are costs of an approved Material
Alteration, and a description thereof, (B) stating that the portion of such approved Material Alteration to be funded by the requested
disbursement has been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements, (C)
stating that the portion of such Material Alteration to be funded has not been the subject of a previous disbursement and that
all prior releases, disbursement, or returns of security have been applied by Borrower or Operating Lessee to the costs of such
Material Alteration in accordance with Borrower’s past requests, (3) evidence satisfactory to Lender in its reasonable discretion
that the balance of the cash portion of the Material Alteration security or the undrawn portion of any Letter of Credit given as
security for such Material Alteration, after giving effect to the requested disbursement, will be sufficient to cover the remaining
cost of such Material Alteration, (4) evidence that all contracts, subcontractors and materialmen who provided work materials or
services in connection with such portion of the Material Alterations covered by such disbursement have been paid in full (or will
be paid in full from such disbursement) and have delivered appropriate lien waivers and/or releases (or will deliver them in connection
with such disbursement); (5) at Lender’s option, but no more frequently than once per calendar quarter, a title search for
the related Individual Property indicating that such Individual Property is free from all Liens, claims and other encumbrances
not previously approved by Lender and which are not otherwise Permitted Encumbrances, and (6) such other evidence as Lender shall
reasonably request to demonstrate that the portion of such Material Alteration to be funded by the requested disbursement has been
completed and paid for or will be paid upon such disbursement to Borrower or Operating Lessee. Upon substantial completion of any
Material Alteration, Borrower or Operating Lessee shall provide evidence satisfactory to Lender that (i) the Material Alteration
was constructed in accordance with applicable Legal Requirements, (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 liens, and (iii) all material licenses and permits 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. If Borrower or Operating Lessee
has provided cash security, as provided above, except to the extent applied by Lender to fund such Material Alterations, such cash
shall be released by Lender to fund such Material Alterations, and if Borrower or Operating Lessee has provided non-cash security,
as provided above, except to the extent applied by Lender to fund such Material Alterations, Lender shall release and return such
security upon Borrower’s satisfaction of the requirements of the preceding sentence.


 




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Section 4.13        Approval
of Major Contracts. Borrower and Operating Lessee shall be required to obtain Lender’s prior written approval of
any and all Major Contracts affecting any Individual Property, which approval may be granted or withheld in Lender’s reasonable
discretion and which approval shall be deemed given by Lender if (I) the first correspondence from Borrower to Lender requesting
such approval (A) is enclosed in an envelope marked “PRIORITY”, (B) contains a legend, prominently displayed at the
top of each page thereof, in bold, all caps and fourteen (14) point or larger font stating that Borrower or Operating Lessee is
requesting the Lender’s approval of a Major Contract under Section 4.14 of the Loan Agreement and that Lender’s
failure to respond to such request within ten (10) Business Days following its receipt of such request may result in such request
being deemed granted, and (C) is accompanied by an a copy of such proposed Major Contract together with an explanation thereof
in such reasonable detail as is necessary to allow Lender to adequately and completely evaluate the request, (II) Lender shall
fail to respond to such request within ten (10) Business Days following its receipt of such request, (III) Borrower or Operating
Lessee shall deliver to Lender a second written request for approval, which request is delivered in the same manner as contemplated
in clause (I) above and states that Lender’s failure to respond to such request within five (5) Business Days
following its receipt of such second request, shall result in such request being deemed granted, and (IV) Lender shall fail to
respond to such request in the manner contemplated in clause (III) above within such five (5) Business Day period.


 


Section 4.14        Property
Management.


 


4.14.1    Management
Agreements. Borrower and Operating Lessee shall (i) use commercially reasonable efforts to cause Manager to manage the
Properties in accordance with the applicable Management Agreement and in accordance with all applicable Legal Requirements, (ii)
diligently perform and observe all of the terms, covenants and conditions of each of the Management Agreements on the part of Borrower
and/or Operating Lessee to be performed and observed, (iii) promptly notify Lender of any material default (after the expiration
of any applicable cure periods) under any Management Agreement of which it is aware, (iv) in the event of and upon Lender’s
reasonable request from time to time, promptly deliver to Lender a copy of any financial statements, business plans, capital expenditures
plans, reports and estimates received by it under the Management Agreements that are so requested by Lender, and (v) promptly enforce
the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreements.
If Borrower or Operating Lessee shall default in the performance or observance of any material term, covenant or condition of any
Management Agreement on the part of Borrower or Operating Lessee, as applicable, to be performed or observed and such default is
not cured within thirty (30) days of written notice from Lender (or if an Event of Default exists), then, without limiting Lender’s
other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower or Operating
Lessee from any of its Obligations hereunder or under the Management Agreements, Lender shall have the right, but shall be under
no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions
of the Management Agreements on the part of Borrower to be performed or observed.


 




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4.14.2    Prohibition
Against Termination or Modification.


 


(a)          Except
as set forth in clause (b) below, neither Borrower nor Operating Lessee shall (i) surrender, terminate, cancel, materially
modify, renew or extend any Management Agreement (other than a renewal or extension of a Management Agreement in accordance with
its terms), (ii) enter into any other agreement relating to the management or operation of any Individual Property with any Manager
or any other Person, (iii) consent to the assignment by any Manager of its interest under the related Management Agreement, or
(iv) waive or release any of its material rights and remedies under any Management Agreement, in each case without the express
consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, with respect to
the appointment of a new manager, such consent may be conditioned upon Borrower or Operating Lessee delivering to Lender a Rating
Agency Confirmation from each applicable Rating Agency as to such new manager and evidence that such replacement will not violate
or cause a breach or default under any Franchise Agreement to the extent such violation, breach or default (with or without the
passage of time) would result in an Event of Default, and that any approvals required under any Franchise Agreement to the replacement
of Manager have been obtained. If at any time Lender consents to the appointment of a new manager, such new manager and Borrower
and Operating Lessee shall, as a condition of Lender’s consent, execute (i) a management agreement in form and substance
reasonably acceptable to Lender, and (ii) a subordination of management agreement in a form reasonably acceptable to Lender.


 


(b)          Notwithstanding
anything to the contrary herein or in the other Loan Documents (and without limiting Borrower’s and Operating Lessee’s
right to replace a Manager with Lender’s consent pursuant to clause (a) above), Borrower and Operating Lessee
shall have the right to replace one or more Managers with one or more Qualified Managers without Lender’s consent and without
any Rating Agency Confirmation, provided that each of the following conditions shall have been satisfied:


 


(i)           Lender
shall have received written notice of the intended replacement(s) not less than fifteen (15) days prior to the date(s) on which
such proposed replacement(s) are to occur;


 


(ii)          As
of the date of giving such notice and as of the effective date of such replacement no Event of Default shall have occurred and
be continuing;


 


(iii)         Such
notice shall identify the Individual Property as to which Borrower wishes to replace the Manager and the Qualified Manager with
whom Borrower or Operating Lessee intends to replace the applicable Manager, and as of the date of giving such notice and as of
the effective date of such replacement, (x) no such Qualified Manager shall be subject to any bankruptcy or similar insolvency
proceeding, and (y) there shall have been no material adverse change in the condition of any such Qualified Manager, financial
and otherwise, since the Closing Date; provided, however, that the replacement property management company identified by Borrower
shall be a “Qualified Manager” for purposes of this subsection (b) only if such replacement property company
does not manage more than seventy-five percent (75%) of the total number of keys of the Individual Properties;


 




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(iv)         Each
Qualified Manager identified by Borrower or Operating Lessee shall enter into one or more new Management Agreements, which agreements
shall (A) not provide for Base Management Fees in excess of three percent (3.0%) of the monthly Operating Income for the Individual
Properties managed by such Qualified Manager unless otherwise reasonably agreed by Lender in writing, and (B) otherwise be on terms
and conditions approved by Lender (which approval will not be unreasonably withheld, conditioned or delayed); provided that any
new Management Agreement which satisfies clause (A) above and is in form and substance substantially the same as any
existing Management Agreement by and between a Qualified Manager and the applicable Individual Borrowers or Operating Lessee that
exist as of the Closing Date shall be deemed to be approved by Lender;


 


(v)          Lender
shall have received evidence reasonably satisfactory to it (which may be in the form of an Officer’s Certificate) that such
replacement(s) of such Manager(s) are not prohibited by and would not permit the applicable Franchisor to terminate any Franchise
Agreement, and will not result in or cause any breach or default under any Franchise Agreement to the extent such violation, breach
or default (with or without the passage of time) would result in an Event of Default, and that any approvals required under any
Franchise Agreement to the replacement of such Manager(s) have been obtained;


 


(vi)         Concurrently
with such replacement(s), Borrower or Operating Lessee shall have paid (or escrowed in accordance with the terms of the Management
Agreement(s) being replaced) any termination or transition costs and expenses, termination fees or their equivalent, to which any
Manager being replaced is entitled under its Management Agreement; and


 


(vii)        Each
such Qualified Manager shall enter into an assignment of management agreement and subordination of management fees which either
is (A) in form and substance substantially the same as the assignment of management agreement and subordination of management fees
entered into by any Qualified Manager on the Closing Date or (B) in form and substance approved by Lender (which approval will
not be unreasonably withheld, conditioned or delayed).


 




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4.14.3    Replacement
of Manager. In each case to the extent permitted under the applicable Assignment of Management Agreement, Lender shall
have the right to require Borrower and Operating Lessee to replace any Manager with a Person chosen by Borrower or Operating Lessee
and, unless such replacement is a Qualified Manager, approved by Lender (provided, that such approval of a Manager that is not
a Qualified Manager may be conditioned upon Borrower or Operating Lessee delivering a Rating Agency Confirmation as to such new
manager and management agreement) upon the occurrence of any one or more of the following events: (i) at any time after the Loan
has been accelerated in accordance with Section 8.2.1, the Maturity Date has occurred, or Lender has commenced a foreclosure
action, applied for the appointment of a receiver or exercised other similar remedies with respect to an Event of Default, (ii)
if such Manager shall be in material default under the Management Agreement that causes a material adverse effect (in Lender’s
reasonable determination) on Borrower, Operating Lessee or their respective business, net cash flow, operations or financial condition
or on the Properties then under management pursuant to such Management Agreement or the use, value, operation or net cash flow
thereof or Borrower’s or Operating Lessee’s interest therein or Lender’s security therein, and such default is
not cured within thirty (30) days after notice thereof from Lender to Borrower; provided if such default cannot reasonably be cured
within such thirty (30) day period Borrower shall have an additional sixty (60) days in which to cure such default so long as it
is diligently pursuing a cure, (iii) if such Manager shall become insolvent or a debtor in any bankruptcy or insolvency proceeding
(provided that if such proceeding is involuntary, the same shall not have been dismissed within ninety (90) days of filing), or
(iv) if at any time such Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds (unless
such gross negligence, fraud, willful misconduct or misappropriation of funds is the act of any employee of such Manager other
than a senior officer or other individual controlling such Manager and within thirty (30) days of such Manager’s discovery
thereof, such employee has been terminated by that Manager and that Manager has fully compensated Borrower or Operating Lessee,
as applicable, for any losses suffered as a result of such gross negligence, fraud, willful misconduct or misappropriation of funds).
If any of the events listed in subparagraphs (i)-(iv) above has occurred, Lender shall have the right to replace the applicable
Manager with any Qualified Manager if (A) neither Borrower nor Operating Lessee is diligently working to replace the Manager and
keeping Lender reasonably apprised of its efforts in connection therewith, and Borrower or Operating Lessee fails to commence and
continue thereafter diligently working to replace the applicable Manager within ten (10) Business Days after written notice from
Lender, or (B) Borrower or Operating Lessee fails to actually replace the Manager with a Manager approved by Lender within one
hundred twenty (120) days after Lender’s initial notice to Borrower or Operating Lessee to replace the Manager; provided
that if Borrower or Operating Lessee is unable to replace the Manager within such one hundred twenty (120) days and Borrower or
Operating Lessee continues to diligently work to do so, then Borrower and Operating Lessee shall have up to an additional sixty
(60) days to replace the Manager.


 


4.14.4    Brand
Manager Rights. Lender acknowledges that pursuant to the Management Agreements, the Brand Managers retain control and discretion
over certain matters customarily subject to Lender approval and have the right to take certain actions that may be restricted under
the Loan Documents (including matters relating to FF&E, leases, casualty and condemnation, alterations, leasing and budgets).
Lender acknowledges that any restrictions herein or in the other Loan Documents on the actions of Borrower and Operating Lessee
and any approvals Borrower or Operating Lessee is required to obtain from Lender shall be subject to the rights and discretion
of the applicable Brand Manager with respect to such Individual Properties pursuant to the terms of the applicable Management Agreements.


 


Section 4.15        Performance
by Borrower; Compliance with Agreements.


 


(a)          Each
of Borrower and Operating Lessee shall in a timely manner observe, perform and fulfill each and every covenant, term and provision
of each Loan Document executed and delivered by, or applicable to, Borrower and/or Operating Lessee, and shall not enter into or
otherwise suffer or permit any amendment, waiver, supplement, termination or other modification of any Loan Document executed and
delivered by, or applicable to, Borrower without the prior consent of Lender.


 


(b)          Each
of Borrower and Operating Lessee shall at all times comply in all material respects with all Operations Agreements. Each of Borrower
and Operating Lessee agrees that without the prior written consent of Lender, neither Borrower nor Operating Lessee will amend,
modify or terminate any of the Operations Agreements.


 




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Section 4.16        Licenses;
Intellectual Property; Website.


 


4.16.1    Licenses.
Borrower or Operating Lessee shall keep and maintain all Licenses necessary for the operation of each Individual Property as a
hotel. Neither Borrower nor Operating Lessee shall transfer any Licenses required for the operation of each Individual Property
(except in connection with a Permitted Direct Assumption). Following the occurrence and during the continuation of any Event of
Default, Borrower and Operating Lessee shall upon any request of Lender cooperate with Lender (and its nominees and successors
and assigns) in (i) the transfer to Lender (or such nominee, successor or assign) of any Licenses (including, without limitation,
liquor licenses) necessary or appropriate for the operation of any of the Properties; (ii) the obtaining by Lender (or such nominee,
successor or assign) of any Licenses (including, without limitation, liquor licenses) necessary or appropriate for the operation
of any of the Properties; and (iii) the continuation by Borrower or Operating Lessee or any tenant under any Lease or by any Manager
on behalf of Borrower or Operating Lessee of any existing licenses and permits (including, without limitation, liquor licenses)
and/or arrangements for liquor sales and service to be conducted by third party vendors, under catering licenses or otherwise,
until new licenses and permits are obtained.


 


4.16.2    Intellectual
Property. Borrower or Operating Lessee shall keep and maintain all Intellectual Property relating to the use or operation
of each Individual Property and all Intellectual Property shall be held by and (if applicable) registered in the name of Borrower
or Operating Lessee. Neither Borrower nor Operating Lessee shall Transfer or let lapse any Intellectual Property without Lender’s
prior consent.


 


4.16.3    Website.
Any website with respect to any Individual Property (other than tenant websites) or Borrower or Operating Lessee shall be maintained
by or on behalf of Borrower or Operating Lessee and any such website shall be registered in the name of Borrower or Operating Lessee.
Neither Borrower nor Operating Lessee shall Transfer any such website without Lender’s prior consent.


 


Section 4.17        Further
Assurances. Borrower and Operating Lessee shall, at Borrower’s or Operating Lessee’s sole cost and expense:


 


(a)          furnish
to Lender, to the extent not already furnished to Lender on or before the Closing Date, all instruments, documents, boundary surveys,
footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements,
and each and every other document, certificate, agreement and instrument required to be furnished by Borrower and Operating Lessee
pursuant to the terms of the Loan Documents or which are reasonably requested by Lender in connection therewith;


 


(b)          cure
any defects in the execution and delivery of the Loan Documents and execute and deliver, or cause to be executed and delivered,
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 Obligations, as Lender may reasonably
require including, without limitation, the execution and delivery of all such writings necessary to transfer any licenses identified
by Lender in the name of Lender or its designee after the occurrence and during the continuation of an Event of Default; provided
that no such cure, document, instrument, certificate, assignment or other writing reduces the rights or increases the obligations
of Borrower, Operating Lessee or any Guarantor under the Loan Documents; and


 




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(c)          do
and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying
out of the intents and purposes of this Agreement and the other Loan Documents, as Lender may reasonably require from time to time.


 


Section 4.18        Estoppel
Statement.


 


(a)          After
request by Lender, Borrower shall within ten (10) Business Days furnish Lender with a statement, duly acknowledged and certified,
stating (i) the Outstanding Principal Balance of the Loan, (ii) the Interest Rate, (iii) the date installments of interest and/or
principal were last paid, (iv) any known offsets or defenses to the payment and performance of the Obligations, if any, and (v)
that this Agreement and the other Loan Documents have not been modified or if modified, giving particulars of such modification.


 


(b)          Borrower
and Operating Lessee shall use commercially reasonable efforts to deliver to Lender, within thirty (30) days of Lender’s
request, an estoppel certificate from each tenant under any Lease in form and substance reasonably satisfactory to Lender; provided,
that neither Borrower nor Operating Lessee shall be required to deliver such certificates more frequently than the lesser of (x)
two (2) times in any calendar year or (y) the number of requests permitted to be made under the applicable Lease in any calendar
year; provided, however, that there will be no limit on the number of times Borrower and Operating Lessee may be required to use
commercially reasonable efforts to obtain such certificates if an Event of Default has occurred and is continuing (subject to the
applicable terms of each Lease).


 


(c)          Borrower
and Operating Lessee shall use commercially reasonable efforts to deliver to Lender, within thirty (30) days of Lender’s
request, estoppel certificates from each party under any Operations Agreement, in form and substance reasonably satisfactory to
Lender; provided, that neither Borrower nor Operating Lessee shall be required to deliver such certificates more than three (3)
times during the Term and not more frequently than once per calendar year (or twice during any calendar year in which a Securitization
occurs).


 


(d)          Intentionally
omitted.


 


(e)          Borrower
and Operating Lessee shall use commercially reasonable efforts to deliver to Lender, within thirty (30) days of Lender’s
request, estoppel certificates from each Franchisor, in form and substance reasonably satisfactory to Lender; provided, that neither
Borrower nor Operating Lessee shall be required to deliver such certificates more than three (3) times during the Term and not
more frequently than once per calendar year (or twice during any calendar year in which a Securitization occurs).


 


Section 4.19        Notice
of Default. Borrower shall promptly advise Lender of the occurrence of any Default or Event of Default of which Borrower
or Operating Lessee has knowledge.


 


Section 4.20        Cooperate
in Legal Proceedings. Borrower and Operating Lessee shall cooperate fully with Lender with respect to any proceedings before
any court, board or other Governmental Authority which may in any way affect the rights of Lender hereunder or any rights obtained
by Lender under any of the other Loan Documents and, in connection therewith, permit Lender, at its election, to participate in
any such proceedings.


 




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Section 4.21        Indebtedness.
Neither Borrower nor Operating Lessee shall directly or indirectly create, incur or assume any indebtedness other than (i) the
Debt and the Other Obligations, (ii) ordinary course equipment or personal property financing that is secured only by the financed
equipment or personal property; (iii) unsecured trade payables incurred in the ordinary course of business relating to the ownership
and operation of the Properties, which in the case of such unsecured trade payables (A) are not evidenced by a note, (B) do not
exceed, at any time, together with amounts payable under clause (ii), a maximum aggregate amount of four percent (4%)
of the original principal amount of the Loan, and (C) are paid within ninety (90) days of the date incurred unless such amount
is being contested in good faith, (iv) Taxes and Other Charges not yet Due and Payable, unless contested in good faith, (v) insurance
premiums, Capital Expenditures, obligations to Tenants and customers, Property expenses and other obligations incurred in accordance
with the Loan Documents, (vi) contractual indemnity obligations entered into in the ordinary course of business, and (vii) indebtedness
secured by Permitted Encumbrances (collectively, “Permitted Indebtedness”).


 


Section 4.22        Business
and Operations. Borrower and Operating Lessee will continue to engage in the businesses presently conducted by it as and
to the extent the same are necessary for the ownership, maintenance, management and operation of each Individual Property. Borrower
and Operating Lessee will qualify to do business and will remain in good standing under the laws of each jurisdiction as and to
the extent the same are required for the ownership, maintenance, management and operation of each Individual Property.


 


Section 4.23        Dissolution.
Neither Borrower nor Operating Lessee shall (i) engage in any dissolution, liquidation or consolidation, division or merger with
or into any other business entity, (ii) engage in any business activity not related to the ownership and operation of the Properties,
or (iii) transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of the property
or assets of Borrower or Operating Lessee except to the extent expressly permitted by the Loan Documents, in each case without
obtaining the prior consent of Lender.


 


Section 4.24       Debt
Cancellation. Neither Borrower nor Operating Lessee shall cancel or otherwise forgive or release any claim or debt (other
than the surrender or termination of Leases in accordance herewith) owed to Borrower or Operating Lessee by any Person, except
for adequate consideration and in the ordinary course of Borrower’s or Operating Lessee’s business.


 


Section 4.25        Affiliate
Transactions. Neither Borrower nor Operating Lessee shall enter into, or be a party to, any transaction with an Affiliate
of Borrower or Operating Lessee or any of the partners, members or shareholders, as applicable, of Borrower or Operating Lessee
except in the ordinary course of business and on terms which are no less favorable to Borrower, Operating Lessee or such Affiliate
than would be obtained in a comparable arm’s-length transaction with an unrelated third party.


 


Section 4.26        No
Joint Assessment. Neither Borrower nor Operating Lessee shall suffer, permit or initiate the joint assessment of any Individual
Property (i) with any other real property constituting a tax lot separate from such Individual Property, and (ii) with any portion
of such Individual Property which may be deemed to constitute personal property, or any other procedure whereby the Lien of any
taxes which may be levied against such personal property shall be assessed or levied or charged to such Individual Property.


 




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Section 4.27        Principal
Place of Business. Neither Borrower nor Operating Lessee shall change its principal place of business from the address
set forth on the first page of this Agreement without first giving Lender thirty (30) days prior written notice.


 


Section 4.28        Change
of Name, Identity or Structure. No Individual Borrower nor Operating Lessee shall change its respective name, identity
(including its trade name or names) or convert from a single-member limited liability company structure, as applicable, without
notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and without first
obtaining the prior written consent of Lender. Borrower and Operating Lessee shall deliver to Lender, prior to or contemporaneously
with the effective date of any such change, any financing statement or financing statement change required by Lender to establish
or maintain the validity, perfection and priority of the security interest granted herein. At the request of Lender, Borrower or
Operating Lessee, as applicable, shall execute a certificate in form reasonably satisfactory to Lender listing the trade names
under which Borrower or Operating Lessee, as applicable, intends to operate each Individual Property, and representing and warranting
that Borrower or Operating Lessee, as applicable, does business under no other trade name with respect to such Individual Property.


 


Section 4.29        Costs
and Expenses.


 


(a)          Except
as otherwise expressed herein or in any of the other Loan Documents, Borrower shall pay or, if Borrower fails to pay, reimburse
Lender upon receipt of notice from Lender, for all reasonable costs and expenses (including reasonable attorneys’ fees and
disbursements) incurred by Lender in connection with (i) Borrower’s and Operating Lessee’s ongoing performance of and
compliance with Borrower’s and Operating Lessee’s agreements and covenants contained in this Agreement and the other
Loan Documents on its part to be performed or complied with after the Closing Date, including confirming compliance with environmental
and insurance requirements; (ii) Lender’s ongoing performance of and compliance with all agreements and covenants contained
in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iii) the negotiation,
preparation, execution and delivery of any consents, amendments, waivers or other modifications to this Agreement and the other
Loan Documents and any other documents or matters requested by Borrower or Operating Lessee; (iv) filing and recording of any Loan
Documents; (v) title insurance, surveys, inspections and appraisals (A) required in connection with the diligence preceding the
Closing Date or as a condition to the closing of the Loan, even if provided after the date hereof if ordered in connection with
such diligence or closing, or (B) expressly required at other times in accordance with the terms of this Agreement or the other
Loan Documents; (vi) the creation, perfection or protection of Lender’s Liens in the Properties and the Accounts (including
fees and expenses for title and lien searches, intangibles taxes, personal property taxes, mortgage recording taxes, due diligence
expenses, travel expenses, accounting firm fees, costs of appraisals, environmental reports and Lender’s Consultant, surveys
and engineering reports); (vii) enforcing or preserving any rights in response to third party claims or the prosecuting or defending
of any action or proceeding or other litigation, in each case against, under or affecting Borrower, Operating Lessee, the Loan
Documents, the Properties, or any other security given for the Loan; and (viii) fees charged by Servicer (except to the extent
expressly provided in Section 10.21 or as otherwise expressly limited hereunder; provided that if another provision
of this Agreement requires the payment of any fee to Lender and/or Servicer with respect to any matter, no additional fee charged
by Servicer shall be payable by Borrower or Operating Lessee with respect to such matter), and if a Securitization has occurred,
by the Rating Agencies in connection with the Loan or any modification thereof; and (ix) enforcing any Obligations of or collecting
any payments due from Borrower or Operating Lessee under this Agreement, the other Loan Documents or with respect to the Properties
or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of
a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that neither Borrower nor Operating
Lessee shall be liable for the payment of any such costs and expenses to the extent the same arise by reason of the gross negligence,
illegal acts, fraud or willful misconduct of Lender.


 




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(b)          In
addition, in connection with any Rating Agency Confirmation, Review Waiver or other Rating Agency consent, approval or review requested
by Borrower or Operating Lessee or required hereunder (other than the initial review of the Loan by the Rating Agencies in connection
with a Securitization), Borrower shall pay all of the reasonable costs and expenses of Lender and the Servicer and the costs and
expenses of each Rating Agency in connection therewith, and, if applicable, shall pay any fees imposed by any Rating Agency in
connection therewith.


 


(c)          Any
costs due and payable to Lender may be paid, at Lender’s election in its sole discretion, from any amounts in the Deposit
Account. Any costs and expenses due and payable by Borrower or Operating Lessee hereunder which are not paid by Borrower within
ten (10) days after written notice thereof may be paid from any amounts in the Deposit Account, with notice thereof to Borrower.
The obligations and liabilities of Borrower and Operating Lessee under this Section 4.29 shall (i) become part of the
Obligations, (ii) be secured by the Loan Documents and (iii) survive the Term and the exercise by Lender of any of its rights or
remedies under the Loan Documents, including the acquisition of any Individual Property by foreclosure or a conveyance in lieu
of foreclosure.


 


Section 4.30        Indemnity.
Borrower shall indemnify, defend and hold harmless Lender from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the
reasonable fees and disbursements of counsel for Lender in connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not Lender shall be designated a party thereto), other than breakage costs, that may be imposed
on, incurred by, or asserted against Lender in any manner relating to or arising out of (i) any breach by Borrower or Operating
Lessee of its Obligations under, or any material misrepresentation by Borrower or Operating Lessee contained in, this Agreement
or the other Loan Documents; (ii) the use or intended use of the proceeds of the Loan; (iii) any information provided by or on
behalf of Borrower or Operating Lessee, or contained in any documentation approved by Borrower or Operating Lessee, in either case,
to the extent delivered to Lender pursuant to or in connection with this Agreement or as a condition to the Loan; (iv) ownership
of any Mortgage, any Individual Property or any interest therein, or receipt of any Gross Revenue (including, subject to Section 2.8,
due to any Increased Costs, Special Taxes (other than Excluded Taxes) or Other Taxes, excluding interest and penalties on any Tax
if such interest and penalties arose solely as a result of the negligence of Lender); (v) any accident, injury to or death of persons
or loss of or damage to property occurring in, on or about any Individual Property or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (vi) any use, nonuse or condition in, on or about any Individual Property
or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (vii) performance of any labor
or services or the furnishing of any materials or other property in respect of any Individual Property; (viii) any failure of any
Individual Property to comply with any Legal Requirement; (ix) any claim by brokers, finders or similar persons claiming to be
entitled to a commission in connection with any Lease or other transaction involving any Individual Property or any part thereof,
or any liability asserted against Lender with respect thereto; (x) the claims of any lessee of any portion of any Individual Property
or any Person acting through or under any lessee or otherwise arising under or as a consequence of any Lease; (xi) the claims of
any Manager or any Person acting through or under such Manager or otherwise arising under or as a consequence of any Management
Agreement; and (xii) the claims of any Franchisor or any Person acting through or under any Franchisor or otherwise arising under
or as a consequence of any Franchise Agreement (collectively, the “Indemnified Liabilities”); provided,
however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities
arise from the active gross negligence, illegal acts, fraud or willful misconduct of Lender. To the extent that the undertaking
to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or
public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment
and satisfaction of all Indemnified Liabilities incurred by Lender; provided, further, that Borrower shall not have
any obligation to Lender hereunder for an Indemnified Liability if all of the following apply: (a) the Loan is included in a Securitization
Vehicle, (b) the Indemnified Liability is caused by  the  Securitization Vehicle failing to have, or maintain its, REMIC
or Grantor Trust status, as applicable, and (c) the reason for such failure is other than a breach by Borrower or Operating
Lessee of its Obligations under, or any material misrepresentation by Borrower or Operating Lessee contained in, this Agreement
or the other Loan Documents.


 




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Section 4.31        ERISA.


 


(a)          Neither
Borrower nor Operating Lessee shall engage in any transaction which would cause any obligation, or action taken or to be taken,
hereunder (or the exercise by Lender or any assignee of any of its rights under the Note, this Agreement or the other Loan Documents)
to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Code.


 


(b)          Neither
Borrower nor Operating Lessee shall maintain, sponsor, contribute to or agree to contribute to, or suffer or permit any ERISA Affiliate
of Borrower or Operating Lessee to, maintain, sponsor, contribute to or agree to contribute to, any “employee benefit plan”
(as defined in Section 3(3) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 of the Code or
permit the assets of Borrower or Operating Lessee to become “plan assets,” within the meaning of 29 C.F.R. 2510.3-101,
as modified in application by Section 3(42) of ERISA.


 


(c)          Each
of Borrower and Operating Lessee shall deliver to Lender such certifications or other evidence from time to time throughout the
Term, as requested by Lender in its sole discretion, that (A) none of Borrower, Operating Lessee or any Guarantor is or maintains
an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title IV of ERISA, or
a “governmental plan” within the meaning of Section 3(32) of ERISA; (B) none of Borrower, Operating Lessee or
any Guarantor is subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans;
and (C) the assets of Borrower, Operating Lessee and Guarantors do not constitute “plan assets” within the meaning
of 29 C.F.R §2510.3-101 as modified in application by Section 3(42) of ERISA of any “benefit plan investor”
as defined in Section 3(42) of ERISA.


 




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Section 4.32        Patriot
Act Compliance.


 


(a)          Each
of Borrower and Operating Lessee will comply with the Patriot Act and all applicable requirements of Government Authorities having
jurisdiction over Borrower with respect to money laundering and terrorism and will use its good faith and commercially reasonable
efforts to comply with all other applicable requirements of Governmental Authorities having jurisdiction over Borrower, Operating
Lessee and/or any Individual Property. Lender shall have the right to audit Borrower’s and Operating Lessee’s compliance
with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Borrower, Operating Lessee
and/or any Individual Property, including those relating to money laundering and terrorism. In the event that Borrower or Operating
Lessee fails to comply with the Patriot Act or any such requirements of Governmental Authorities, then Lender may, at its option,
cause Borrower or Operating Lessee, as applicable, to comply therewith and any and all costs and expenses incurred by Lender in
connection therewith shall be secured by the Mortgage and the other Loan Documents and shall be immediately due and payable.


 


(b)          None
of the funds or other assets of any Borrower, Operating Lessee or any other Loan Party constitute property of, or are beneficially
owned, directly or indirectly, by any person, entity or government subject to trade restrictions under United States law, including
but not limited to, the Patriot Act (including anti-terrorism provisions thereof), the International Emergency Economic Powers
Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive
Orders or regulations promulgated thereunder with the result that the investment in Borrower or any other Loan Party (whether directly
or indirectly), is prohibited by law or the Loan made by the Lender is in violation of law (“Embargoed Person”).


 


(c)          None
of the funds or other assets of any Borrower, Operating Lessee or
any other Loan Party constitute property of, or are beneficially owned, directly or indirectly, by any Embargoed Person.


 


(d)          No
Embargoed Person has any interest of any nature whatsoever in Borrower, Operating Lessee or
any other Loan Party with the result that the investment in Borrower, Operating Lessee or
any other Loan Party (whether directly or indirectly), is prohibited by law or the Loan is in violation of law.


 


(e)          None
of the funds of Borrower, Operating Lessee or any other Loan Party
have been derived from or are the proceeds of, any unlawful activity with the result that the investment in Borrower, Operating
Lessee or any other Loan Party (whether directly or indirectly), is prohibited
by law or the Loan is in violation of law.


 


Nothing contained in this Section 4.32
shall apply, and no representation or warranty is made with respect, to any public equity holder of any Person by virtue of such
public equity holder being a holder of publicly traded shares or other publicly traded equity interests in any Person which is
listed on the New York Stock Exchange or another nationally or internationally recognized stock exchange or is quoted on a national
quotation system.


 




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Section 4.33        Intentionally
Omitted.


 


Section 4.34        Hotel
Covenants.


 


(a)          Each
of Borrower and Operating Lessee shall cause the hotel located on each Individual Property to be operated pursuant to the applicable
Franchise Agreement.


 


(b)          Each
of Borrower and Operating Lessee shall (i) promptly perform and/or observe all of the covenants and agreements required to be performed
and observed by it under each Franchise Agreement and do all things necessary to preserve and to keep unimpaired its material rights
thereunder; (ii) promptly notify Lender of any default under any Franchise Agreement of which it is aware; and (iii) promptly enforce
the performance and observance of all of the covenants and agreements required to be performed and/or observed by each Franchisor
under each Franchise Agreement.


 


(c)          Neither
Borrower nor Operating Lessee shall, without Lender’s prior written consent (which consent shall not be unreasonably withheld,
conditioned or delayed) (1) surrender, terminate or cancel any Franchise Agreement; (2) reduce the term of any Franchise Agreement;
(3) increase the amount of any charges under any Franchise Agreement; or (4) otherwise materially modify, change, supplement, alter
or amend, or waive or release any of its rights and remedies under, any Franchise Agreement in a manner adverse to Borrower, Operating
Lessee or Lender.


 


(d)          Intentionally
omitted.


 


(e)          To
the extent not previously provided to and approved by Lender in the Approved Flagging Budget for an Individual Property, Borrower
or Operating Lessee shall provide to Lender a budget for all New/Renewal Flagging Costs and Change of Control Flagging Costs (collectively,
the “Flagging Costs”). The budgeting and delivery of security for Flagging Costs shall be governed by
the following principles:


 


(i)           Budget
Approval. With respect to any Flagging Costs for a particular Individual Property, Borrower or Operating Lessee shall provide
a budget therefor for Lender’s approval, which approval shall not be unreasonably withheld, conditioned or delayed (provided
that the requirement for such approval shall be deemed to have been waived if (I) the correspondence from Borrower to Lender requesting
such approval (A) is enclosed in an envelope marked “PRIORITY”, (B) contains a legend, prominently displayed at the
top of each page thereof, in bold, all caps and fourteen (14) point or larger font stating that Borrower or Operating Lessee is
requesting the Lender’s approval of the proposed budget for the Franchise Agreement under Section 4.34(e) hereof,
as applicable, and that Lender’s failure to respond to such request within five (5) Business Days following its receipt of
such request shall result in such request being deemed granted, (C) is accompanied by a copy of the proposed budget (which information
may be provided electronically in the form of a CD Rom or other portable electronic media enclosed with such notice) and (D) is
also sent via electronic mail to Lender’s e-mail address provided by Lender to Borrower from time to time, (II) Lender shall
fail to respond to such request within five (5) Business Days following its receipt of such request, (III) Borrower shall deliver
to Lender a second written request for approval, which request is delivered in the same form and manner as contemplated in clause (I)
above and states that Lender’s failure to respond to such request within two (2) Business Days following its receipt of such
second request, shall result in such request being deemed granted, and (IV) Lender shall fail to respond to such request within
such two (2) Business Day period), and which upon Lender’s approval thereof, shall constitute the Approved Flagging Budget
for such Flagging Costs for such Individual Property.


 




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(ii)          New/Renewal
Flagging Costs. Borrower shall post additional security with Lender if (and only if): (x) the New/Renewal Flagging Costs for
such Individual Property are greater than an amount equal to (A) the Approved Scheduled PIP Expenses remaining for such Individual
Property plus (B) the Alteration Threshold applicable to an Individual Property. Any additional security required to be posted
by Borrower pursuant to this paragraph (ii) shall be posted pursuant to paragraph (iv) below in an amount
equal to the total New/Renewal Flagging Costs for such Individual Property (to the extent exceeding the Alteration Threshold).


 


(iii)         Change
of Control Flagging Costs. Concurrently with the closing of an Assumption or any other change of Control of Borrower that results
in any Change of Control Flagging Costs, Borrower shall post additional security with Lender in an amount equal to the portion
of the Change of Control Flagging Costs required to be incurred by Borrower or Operating Lessee in the 24-month period immediately
following the Assumption or such other change of Control of Borrower (for the avoidance of doubt, the remaining Change of Control
Flagging Costs shall not be required to be reserved with Lender) without duplication of any amounts previously reserved pursuant
to paragraph (ii) above. Any additional security required to be posted by Borrower pursuant to this paragraph (iii)
shall be posted pursuant to paragraph (iv) below.


 


(iv)         Posting
of Security. Any security delivered by Borrower pursuant to paragraph (ii) or paragraph (iii) above
shall be in cash or the form of security required for Material Alterations under Section 4.12.2 hereof (and if cash,
shall be deposited into the Scheduled PIP Reserve Account and disbursed in accordance with Section 6.5.2). If such
security is in the form of a Letter of Credit or other non-cash security permitted under Section 4.12.2, then, in lieu
of disbursements from the Scheduled PIP Reserve Account, Lender shall grant approved reductions in the amount of such Letter of
Credit or other security upon satisfaction of the same conditions that are applicable to disbursements of Scheduled PIP Reserve
Funds from the Scheduled PIP Reserve Account in accordance with Section 6.5.2. In no event shall there be any duplication
of any reserve or security requirements by reason of the obligations under Section 6.5.1(a), paragraph (ii)
above and paragraph (iii) above.


 


(f)           Subject
to Borrower’s rights under paragraph (d) above, Borrower or Operating Lessee shall timely exercise each individual
option, if any, to extend or renew the term of any Franchise Agreement.


 




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(g)          Borrower
or Operating Lessee shall complete and pay for in full any PIP Work in a good, workmanlike and lien free manner within the time-frame
set forth in the applicable PIP, subject in each case to any extensions permitted by the applicable Franchisor.


 


(h)          Without
in any way limiting the covenants set forth in the Loan Documents, Borrower and Operating Lessee shall: (i) cause the hotels located
on the Properties to be operated, repaired and maintained in a manner to provide commercially reasonable amenities, services and
facilities, taken as a whole for each such Individual Property, substantially equivalent or superior in all material respects to
hotels of similar average room rate and targeted market segment from time to time operating in the same or comparable geographic
area of the Property, taking into consideration the age and location of the hotels located on the Properties and (ii) maintain
Inventory in amounts sufficient to meet the hotel industry standards in all material respects for hotels of similar average room
rate and targeted market segment from time to time operating in the same or comparable geographic area of the Property, taking
into consideration the age and location of the hotels located on the Properties.


 


Section 4.35        Bankruptcy
Related Covenants. To the extent permitted by applicable Legal Requirements, neither Borrower nor Operating Lessee shall
seek substantive consolidation into the bankrupt estate of any Guarantor in connection with a proceeding under the Bankruptcy Code
or under federal, state or foreign insolvency law involving any Guarantor.


 


(a)          To
the extent permitted by applicable Legal Requirements, neither Borrower nor Operating Lessee shall, nor shall Borrower or Operating
Lessee cause or permit any Mezzanine Borrower, any Guarantor, any other, or any Affiliate of the foregoing to, contest, oppose
or object to any motion made by Lender to obtain relief from the automatic stay or seek to reinstate the automatic stay in connection
with a proceeding under the Bankruptcy Code or under any other federal, state or foreign insolvency law involving any Guarantor.


 


(b)          To
the extent permitted by applicable Legal Requirements, neither Borrower nor Operating Lessee shall, and shall not cause or permit
Mezzanine Borrower or any Guarantor, or any Affiliate of the foregoing to, provide, originate, acquire an interest in or solicit
(in writing) or accept from any Guarantor or any Affiliate of any Guarantor, any debtor-in-possession financing on behalf of any
Guarantor in the event that any Guarantor is the subject of a proceeding under the Bankruptcy Code or under federal, state or foreign
insolvency law involving any Guarantor.


 


Section 4.36        Deposits.
All Security Deposits and all Advance Deposits, shall be held in compliance with all applicable Legal Requirements and shall not
be commingled with any other funds of Borrower. During the continuance of an Event of Default, Borrower and Operating Lessee shall,
upon Lender’s request, if permitted by applicable Legal Requirements, cause all such Security Deposits (and any interest
theretofore earned thereon) and all such Advance Deposits (and any interest theretofore earned thereon) to be transferred into
the Deposit Account (which shall then be held by Deposit Bank in separate Accounts), which shall be held by Deposit Bank subject
to the terms of the Leases or Advance Booking Agreement, as the case may be. Any bond or other instrument which Borrower or Operating
Lessee is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements (i) shall be maintained in
full force and effect in the full amount of such deposits unless replaced by cash deposits as herein above described, (ii) shall,
if permitted pursuant to any Legal Requirements, name Lender as payee or mortgagee thereunder (or at Lender’s option, be
fully assignable to Lender), and (iii) shall in all respects comply with any applicable Legal Requirements. Borrower and Operating
Lessee shall, upon request, provide Lender with evidence reasonably satisfactory to Lender of Borrower’s and Operating Lessee’s
compliance with the foregoing.


 




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ARTICLE
5


 


INSURANCE,
CASUALTY AND CONDEMNATION


 


Section 5.1          Insurance.


 


5.1.1      Insurance
Policies.


 


(a)          Borrower,
at its sole cost and expense, shall obtain and maintain during the entire Term, or cause to be maintained, insurance policies for
Borrower and each of the Properties providing at least the following coverages:


 


(i)           Property
insurance against loss or damage by hail, wind (including named storms), fire, lightning and such other perils as are included
in a standard “special form” policy or “all-risk” policy, and against loss or damage by all other risks
and hazards covered by a standard extended coverage insurance policy, with no exclusion for damage or destruction caused by acts
of terrorism (or, subject to Section 5.1.1(i) below, standalone coverage with respect thereto) riot and civil commotion,
vandalism, malicious mischief, burglary and theft (A) in an amount equal to one hundred percent (100%) of the “Full
Replacement Cost” of the Properties, which for purposes of this Agreement shall mean actual replacement value (exclusive
of costs of excavations, foundations, underground utilities and footings) with a waiver of depreciation; (B) to be written on a
no coinsurance form or containing an agreed amount endorsement with respect to the Improvements and personal property at the Properties
waiving all co-insurance provisions; (C) providing for no deductible in excess of $250,000, except for windstorm, flood and earthquake,
which shall not exceed 5% of the total insurable value of the Properties; and (D) containing “Ordinance or Law Coverage”
if any of the Improvements or the use of the Properties or any Individual Property shall at any time constitute legal non-conforming
structures or uses, and compensating for loss to the undamaged portion of the building (with a limit equal to replacement cost),
the cost of demolition and the increased costs of construction, each in amounts as reasonably required by Lender. In addition,
Borrower shall obtain: (y) if any portion of the Improvements or Personal Property is currently or at any time in the future located
in a federally designated special flood hazard area (“SFHA”), flood hazard insurance covering all such
Improvements and/or Personal Property located in the SFHA in an amount equal to (1) the maximum amount of building and, if applicable,
contents insurance available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National
Flood Insurance Reform Act of 1994, as each may be amended (the “Flood Insurance Acts”) plus (2) such additional coverage
as Lender shall require, subject to a deductible not to exceed an amount equal to the maximum available through the Flood Insurance
Acts; and (z) earthquake insurance in amounts and in form and substance satisfactory to Lender, provided that the insurance pursuant
to clauses (y) and (z) hereof shall otherwise be on terms consistent with the comprehensive all risk insurance policy
required under this subsection (i);


 




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(ii)          commercial
general liability insurance, coverages against claims for personal injury, bodily injury, death or property damage occurring upon,
in or about each Individual Property, including liquor liability, such insurance (A) to be on the so-called “occurrence”
form and containing minimum limits per occurrence of One Million and No/100 Dollars ($1,000,000.00) per location, with a combined
limit per policy year, excluding umbrella coverage, of not less than Two Million and No/100 Dollars ($2,000,000.00) per location;
and (B) to cover at least the following hazards: (1) premises and operations; (2) products and completed operations on an “if
any” basis; (3) independent contractors; and (4) contractual liability for all insured contracts to the extent the same is
available;


 


(iii)         rental
loss and/or business income interruption insurance (A) with loss payable to Lender; (B) covering all risks required to be covered
by the insurance provided for in subsection (i) above, subsection (vi) below and Section 5.1.1(h) below;
(C) covering a period of restoration of eighteen (18) months and containing an extended period of indemnity endorsement which provides
that after the physical loss to the Improvements and Personal Property has been repaired, the continued loss of income will be
insured until such income either returns to the same level it was at prior to the loss, or the expiration of six (6) months from
the date that the Individual Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding
that the policy may expire prior to the end of such period; and (D) in an amount equal to one hundred percent (100%) of the projected
Gross Revenue (less non-continuing expenses) from the Individual Property for a period of eighteen (18) months. The amount of such
business income insurance shall be determined prior to the date hereof and at least once each year thereafter based on Borrower’s
reasonable estimate of the Gross Revenue (less non-continuing expenses) from each Individual Property for the succeeding twenty-four
(24) month period. All proceeds payable to Lender pursuant to this subsection shall be held by Lender and shall be applied to the
Obligations secured by the Loan Documents from time to time due and payable hereunder and under the Note; provided, however, that
nothing herein contained shall be deemed to relieve Borrower of its Obligations to pay the Debt on the respective dates of payment
provided for in the Note and the other Loan Documents except to the extent such amounts are actually paid out of the proceeds of
such business income insurance;


 


(iv)         at
all times during which structural construction, repairs or alterations are being made with respect to any Improvements, and only
if the property and liability coverage forms do not otherwise apply, (A) commercial general liability and umbrella liability insurance
covering claims related to the construction, repairs or alterations being made which are not covered by or under the terms or provisions
of the commercial general liability and umbrella liability insurance policy required herein this Section 5.1.1(a);
and (B) the insurance provided for in subsection (i) above written in a so-called builder’s risk completed value form
(1) on a non-reporting basis, (2) against all risks insured against pursuant to subsection (i) above, (3) including permission
to occupy the Individual Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;


 




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(v)          workers’
compensation, subject to the statutory limits of the state in which each Individual Property is located, and employer’s liability
insurance with limits which are required from time to time by Lender in respect of any work or operations on or about any Individual
Property, or in connection with the Properties or their operation (if applicable);


 


(vi)         comprehensive
boiler and machinery/equipment breakdown insurance, if applicable, in amounts as shall be reasonably required by Lender on terms
consistent with the commercial property insurance policy required under subsection (i) above;


 


(vii)        umbrella
liability insurance in addition to primary coverage in an amount not less than Twenty-Five Million and No/100 Dollars ($25,000,000.00)
per occurrence, per location, on terms consistent with the commercial general liability insurance policy required under subsection
(ii) above and subsection (viii) below;


 


(viii)      motor
vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles and including garage keeper
liability, containing minimum limits per occurrence, including umbrella coverage, with limits which are reasonably required from
time to time by Lender (if applicable);


 


(ix)         [reserved];


 


(x)          insurance
against employee dishonesty with respect to any employees of Borrower in an amount acceptable to Lender with a deductible not greater
than Twenty Five Thousand and No/100 Dollars ($25,000.00); and


 


(xi)         upon
sixty (60) days’ notice, such other reasonable insurance and in such commercially reasonable amounts as Lender from time
to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties
similar to the Properties located in or around the regions in which the Properties are located.


 


(b)          All
insurance provided for in Section 5.1.1(a) shall be obtained under valid and enforceable policies (collectively, the
“Policies” or in the singular, the “Policy”) and shall be subject to the reasonable
approval of Lender as to form and substance, including insurance companies, amounts, deductibles, loss payees and insureds. Not
less than ten (10) days prior to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance
evidencing the Policies (and, upon the written request of Lender, copies of such Policies) accompanied by evidence satisfactory
to Lender of payment of the premiums then due thereunder (the “Insurance Premiums”), shall be delivered
by Borrower to Lender. Notwithstanding the foregoing, as a condition of permitting the payment of the Insurance Premiums to be
financed through a third-party premium financing company under a premium finance agreement (“Premium Finance Agreement”)
(A) Borrower shall submit to Lender evidence of payment of each and every installment due under the Premium Finance Agreement as
each installment becomes due and payable, and (B) the premium financing company shall have agreed to provide Lender with notice
in the event of cancellation of the Policies that are subject to the Premium Finance Agreement.


 




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(c)          Any
blanket insurance Policy shall be subject to Lender approval and shall otherwise provide the same protection as would a separate
Policy insuring only the Properties in compliance with the provisions of Section 5.1.1(a) (any such blanket policy,
an “Acceptable Blanket Policy”); provided further that, with respect to earthquake insurance required
herein, if the properties are insured under a blanket policy, such earthquake insurance shall be in an amount equal to the aggregate
exceedance probability gross loss estimates for a 475-year return period as indicated by a portfolio seismic risk analysis of all
high risk locations covered by such earthquake insurance, including the Properties. Such analysis shall be approved by Lender and
secured by the applicable Borrower utilizing the most current RMS software (or its equivalent) and to include consideration of
loss amplification and business interruption. Borrower shall notify Lender of any material changes to the blanket policy and associated
limits under the policy as of Closing Date or an aggregation of the insured values covered under the blanket policy, including
the addition of locations subject to the perils of flood, wind/named storm and earthquake or the reduction of flood, wind/named
storm and/or earthquake limits, and such changes shall be subject Lender’s approval.


 


(d)          All
Policies of insurance provided for or contemplated by Section 5.1.1(a) shall name Borrower as a named insured and,
with respect to the Policies of liability insurance, except for the Policies referenced in Section 5.1.1(a)(v) and
(viii), shall name Lender and its successors and/or assigns as the additional insured, as its interests may appear, and
in the case of Policies of property insurance, including but not limited to special form/all-risk, boiler and machinery, terrorism,
windstorm, flood and earthquake insurance, shall contain a standard non-contributing mortgagee clause in favor of Lender providing
that the loss thereunder shall be payable to Lender unless below the threshold for Borrower to handle such claim without Lender
intervention as provided in Section 5.2 below. Additionally, if Borrower obtains property insurance coverage in addition
to or in excess of that required by Section 5.1.1(a)(i), then such insurance policies shall also contain a standard
non-contributing mortgagee clause in favor of Lender providing that the loss thereunder shall be payable to Lender.


 


(e)          All
Policies of insurance provided for in Section 5.1.1(a) shall:


 


(i)           with
respect to the Policies of property insurance, contain clauses or endorsements to the effect that, (1) no act or negligence
of Borrower, or anyone acting for Borrower, or of any Tenant or other occupant, or failure to comply with the provisions of any
Policy, which might otherwise result in a forfeiture of the insurance or any part thereof, or foreclosure or similar action, shall
in any way affect the validity or enforceability of the insurance insofar as Lender is concerned, (2) the Policies shall not be
cancelled without at least 30 days’ written notice to Lender, except ten (10) days’ notice for non-payment of premium
and (3) the issuer(s) of the Policies shall give written notice to Lender if the issuers elect not to renew the Policies prior
to its expiration;


 


(ii)          with
respect to all Policies of liability insurance, if obtainable by Borrower using commercially reasonable efforts, contain clauses or
endorsements to the effect that, (1) the Policy shall not be canceled without at least thirty (30) days’ written notice to
Lender and any other party named therein as an additional insured (other than in the case of non-payment in which case only ten
days’ prior notice, or the shortest time allowed by applicable Legal Requirement (whichever is longer), will be required)
and (2) the issuers thereof shall give notice to Lender if the issuers elect not to renew such Policies prior to its expiration.
If the issuers cannot or will not provide notice, the Borrower shall be obligated to provide such notice; and


 




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(iii)         not
contain any clause or provision that would make Lender liable for any Insurance Premiums thereon or subject to any assessments
thereunder.


 


(f)           If
at any time Lender is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Lender
shall have the right without notice to Borrower, to take such action or obtain such insurance as Lender reasonably deems necessary
to protect its interest in the Properties as Lender in its sole discretion deems appropriate, and all premiums incurred by Lender
in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Lender upon
demand and until paid shall be secured by the Mortgage and shall bear interest at the Default Rate.


 


(g)          In
the event of foreclosure of any Mortgage or other transfer of title to some or all of the Properties in extinguishment in whole
or in part of the Obligations, all right, title and interest of Borrower in and to the Policies then in force concerning the Properties
and all proceeds payable thereunder with respect to the Properties shall thereupon vest in the purchaser at such foreclosure or
Lender or other transferee in the event of such other transfer of title.


 


(h)          The
property insurance, commercial general liability, umbrella liability insurance and rental loss and/or business interruption insurance
required under Sections 5.1.1(a)(i), (ii), (iii) and (vii) above shall cover perils of terrorism
and acts of terrorism (or at least not specifically exclude same) and Borrower shall maintain property insurance, commercial general
liability, umbrella liability insurance and rental loss and/or business interruption insurance for loss resulting from perils and
acts of terrorism on terms (including amounts and deductibles) consistent with those required under Sections 5.1.1(a)(i),
(ii), (iii) and (vii) above (or at least not specifically excluding same) at all times during the term of
the Loan.


 


(i)           Notwithstanding
anything in subsection (a)(i) or (h) above to the contrary, Borrower shall be required to obtain and maintain coverage in
its property insurance Policy (or by a separate Policy) against loss or damage by terrorist acts in an amount equal to 100% of
the “Full Replacement Cost” of the Properties plus the rental loss and/or business interruption coverage under subsection
(a)(iii) above; provided that such coverage is commercially available. In the event that such coverage with respect to terrorist
acts is not included as part of the “all risk” property policy required by subsection (a)(i) above, Borrower
shall, nevertheless be required to obtain coverage for terrorism (as standalone coverage) in an amount equal to 100% of the “Full
Replacement Cost” of the Properties plus the rental loss and/or business interruption coverage under subsection (a)(iii)
above; provided that such coverage is commercially available. Borrower shall obtain the coverage required under this clause (i)
from a carrier which otherwise satisfies the rating criteria specified in Section 5.1.2 below (a “Qualified
Carrier”) or in the event that such coverage is not available from a Qualified Carrier, Borrower shall obtain such
coverage from the highest rated insurance company providing such coverage. For so long TRIPRA is in effect and continues to cover
both foreign and domestic acts, Lender shall accept terrorism insurance with coverage against acts which are “certified”
within the meaning of TRIPRA.


 




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5.1.2      Insurance
Company. All Policies required pursuant to Section 5.1.1 (i) shall be issued by companies approved to do business
in the states where the Properties are located, with (1) a financial strength and claims paying ability rating of (x) “A”
or better by S&P and (y) “A2” or better by Moody’s, to the extent Moody’s rates the Securities and
rates the applicable insurer (provided, however for multi-layered policies, (A) if four (4) or fewer insurance companies issue
the Policies, then at least seventy-five percent (75%) of the insurance coverage represented by the Policies must be provided by
insurance companies with a rating of “A” or better by S&P and “A2” or better by Moody’s, to the
extent Moody’s rates the Securities and rates the applicable insurer, with no remaining carrier below “BBB” by
S&P and “Baa2” or better by Moody’s, to the extent Moody’s rates the Securities and rates the applicable
insurer, or (B) if five (5) or more insurance companies issue the Policies, then at least sixty percent (60%) of the insurance
coverage represented by the Policies must be provided by insurance companies with a rating of “A” or better by S&P
and “A2” or better by Moody’s, to the extent Moody’s rates the Securities and rates the applicable insurer,
with no remaining carrier below “BBB” and “Baa2” or better by Moody’s, to the extent Moody’s
rates the Securities and rates the applicable insurer, and (2) a rating of A:X or better by A.M. Best (notwithstanding the foregoing,
Lender accepts Starr Surplus Lines insurance Company, rated A XV with AM Best, provided that (1) the rating of Starr Surplus Lines
insurance Company is not withdrawn or downgraded below the date hereof and (2) at renewal of the current policy term, Borrower
shall replace Starr Surplus Lines insurance Company with an insurance company meeting the rating requirements set forth hereinabove);
(ii) shall, with respect to all property insurance policies and rental loss and/or business interruption insurance policies, contain
a Standard Mortgagee Clause/Lender’s Loss Payable Endorsement, or their equivalents, naming Lender as the person to whom
all payments made by such insurance company shall be paid; (iii) shall contain a waiver of subrogation against Lender; (iv) shall
contain such provisions as Lender deems reasonably necessary or desirable to protect its interest including endorsements providing
(A) that neither Borrower, Lender nor any other party shall be a co-insurer under said Policies, and (B) in addition to complying
with any other requirements expressly set forth in Section 5.1, for a deductible per loss acceptable to Lender but
in no event in an amount greater than that which is customarily maintained by prudent owners of properties with a standard of operation
and maintenance comparable to and in the general vicinity of the Properties and as is generally allowed by prudent institutional
commercial mortgage lenders originating comparable mortgage loans for securitization; and (v) shall be satisfactory in form and
substance to Lender and shall be approved by Lender as to amounts, form, risk coverage, deductibles, loss payees and insureds.
In addition to the insurance coverages described in Section 5.1.1 above, Borrower shall obtain such other insurance
as may from time to time be required by Lender in order to protect its interests. Complete copies of the Policies shall be delivered
to Lender at the address below (or to such other address or Person as Lender shall designate from time to time by notice to Borrower)
on the date hereof with respect to the current Policies and within thirty (30) days after the effective date thereof with respect
to all renewal Policies:


 


German American Capital Corporation


60 Wall Street, 10th Floor


New York, New York 10005


Attention: Karen Bernsohn


 


Borrower shall pay the Insurance Premiums annually
in advance as the same become due and payable and shall furnish to Lender evidence of the renewal of each of the Policies with
receipts for the payment of the Insurance Premiums or other evidence of such payment reasonably satisfactory to Lender (provided,
however, that Borrower shall not be required to pay such Insurance Premiums nor furnish such evidence of payment to Lender in the
event that the amounts required to pay such Insurance Premiums have been deposited into the Insurance Account pursuant to Section 6.4
hereof). Within thirty (30) days after request by Lender, Borrower shall obtain such increases in the amounts of coverage required
hereunder as may be reasonably requested by Lender, taking into consideration changes in the value of money over time, changes
in liability laws, changes in prudent customs and practices.


 




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Section 5.2          Casualty.
If any Individual Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”),
Borrower shall give prompt notice thereof to Lender. Following the occurrence of a Casualty, subject to Borrower’s rights
under Section 2.4.4(b) and Section 2.5.3 hereof, Borrower or Operating Lessee, regardless of whether insurance
proceeds are available, shall proceed to restore, repair, replace or rebuild such Individual Property in accordance with Legal
Requirements to be of at least equal value and of substantially the same character as prior to such damage or destruction as soon
as reasonably practicable (but in no event later than one hundred twenty (120) days after such Casualty). Lender may, but shall
not be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender may participate in any settlement
discussions with any insurance companies (and shall approve any final settlement) (i) if an Event of Default is continuing or (ii)
with respect to any Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or greater than
the Alteration Threshold with respect to the affected Individual Property, and Borrower shall deliver to Lender all instruments
required by Lender to permit such participation. Provided no Event of Default is continuing, in the event of a Casualty where Net
Proceeds or the costs of completing the Restoration are two percent (2%) of the Allocated Loan Amount of any Individual Property
or less, Borrower, notwithstanding Section 5.4, may directly obtain and apply the Net Proceeds; provided that such
Net Proceeds must be used towards the Restoration in accordance with the terms hereof. Except as set forth in the foregoing sentence,
any Insurance Proceeds in connection with any Casualty (whether or not Lender elects to settle and adjust the claim or Borrower
or Operating Lessee settles such claim) shall be due and payable solely to Lender and held by Lender in accordance with the terms
of this Agreement. In the event Borrower, Operating Lessee or any party other than Lender is a payee on any check representing
Insurance Proceeds with respect to any Casualty, Borrower or Operating Lessee, as applicable, shall immediately endorse, and cause
all such third parties to endorse, such check payable to the order of Lender. Borrower and Operating Lessee each hereby irrevocably
appoints Lender as its attorney-in-fact, coupled with an interest, to endorse any such check payable to the order of Lender. Borrower
and Operating Lessee each hereby release Lender from any and all liability with respect to the settlement and adjustment by Lender
of any claims in respect of any Casualty.


 


Section 5.3          Condemnation.
Borrower shall promptly give Lender notice of the actual or threatened (in writing) commencement of any proceeding for the Condemnation
of all or any portion of any Individual Property and shall deliver to Lender copies of any and all papers served in connection
with such proceedings. Lender may participate in any such proceedings, and Borrower shall from time to time deliver to Lender all
instruments requested by it to permit such participation. Borrower shall, at its expense, diligently prosecute any such proceedings,
and shall consult with Lender, its attorneys and experts, and cooperate with them in the carrying on or defense of any such proceedings.
Notwithstanding any taking by any public or quasi-public authority through Condemnation or otherwise (including, but not limited
to, any transfer made in lieu of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Debt at
the time and in the manner provided for its payment in the Note and in this Agreement and the Debt shall not be reduced until any
Award shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction
or discharge of the Debt. Lender shall not be limited to the interest paid on the Award by the condemning authority but shall be
entitled to receive out of the Award interest at the rate or rates provided herein or in the Note. Subject to Borrower’s
rights under Section 2.4.4(b) and Section 2.5.3, if any Individual Property or any portion thereof is taken
by a condemning authority, Borrower or Operating Lessee shall promptly commence and diligently prosecute the Restoration of such
Individual Property and otherwise comply with the provisions of Section 5.4, whether or not an Award is available to
pay the costs of such Restoration. If such Individual Property is sold, through foreclosure or otherwise, prior to the receipt
by Lender of the Award, Lender shall have the right, whether or not a deficiency judgment on the Note shall have been sought, recovered
or denied, to receive the Award, or a portion thereof sufficient to pay the Debt.


 




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Section 5.4          Restoration.
The following provisions shall apply in connection with the Restoration of any Individual Property:


 


(a)          If
the Net Proceeds shall be less than the Alteration Threshold with respect to the affected Individual Property, the Net Proceeds
will be disbursed by Lender to Borrower promptly upon receipt, provided that all of the conditions set forth in Section 5.4(b)(i)
are met and Borrower delivers to Lender a written undertaking to expeditiously commence and to satisfactorily complete with due
diligence the Restoration in accordance with the terms of this Agreement.


 


(b)          If
the Net Proceeds are equal to or greater than the Alteration Threshold with respect to the affected Individual Property, the Net
Proceeds will be held by Lender and Lender shall make the Net Proceeds available for the Restoration in accordance with the provisions
of this Section 5.4. The term “Net Proceeds” shall mean: (i) the net amount of all Insurance
Proceeds received by Lender pursuant to Section 5.1.1(a)(i), (iv), and (vi) and Section 5.1.1(h)
as a result of such damage or destruction, after deduction of its reasonable costs and expenses, or (ii) the net amount of the
Award, after deduction of its reasonable costs and expenses (including, but not limited to, reasonable counsel fees), if any, in
collecting same (“Condemnation Proceeds”), whichever the case may be.


 


(i)           The
Net Proceeds shall be made available to Borrower for Restoration upon the determination of Lender (to be made reasonably) that
the following conditions are met:


 


(A)         no
Event of Default shall have occurred and be continuing;


 


(B)         (1)
in the event the Net Proceeds are Insurance Proceeds, less than thirty percent (30%) of the total floor area of the Improvements
on the affected Individual Property has been damaged, destroyed or rendered permanently unusable as a result of such Casualty or
(2) in the event the Net Proceeds are Condemnation Proceeds, less than ten percent (10%) of the land constituting the Individual
Property is taken, and such land is located along the perimeter or periphery of the Individual Property, and no portion of the
Improvements is located on such land;


 




    	 	-100-	 



     


    

  


(C)         the
Franchise Agreement (subject to the rights of Borrower and Operating Lessee under Section 4.34(c)), if any, for the
affected Individual Property, shall remain in full force and effect during and after the completion of the Restoration without
a material reduction in any amounts payable to, or a material increase in any amount payable by, Borrower or Operating Lessee in
connection therewith, and (ii) the Management Agreement for the affected Individual Property shall remain in full force and effect
during and after the completion of the Restoration without a material reduction in any amount payable to, or an increase in any
amount payable by, Borrower or Operating Lessee in connection therewith;


 


(D)         Borrower
or Operating Lessee shall commence the Restoration as soon as reasonably practicable (but in no event later than one hundred twenty
(120) days after such Casualty or Condemnation, whichever the case may be, occurs) and shall diligently pursue the same to satisfactory
completion;


 


(E)         Intentionally
omitted;


 


(F)         Lender
shall be satisfied that the Restoration will be completed on or before the earliest to occur of (1) the date six (6) months prior
to the Stated Maturity Date, (2) intentionally omitted, (3) such time as may be required under applicable Legal Requirements in
order to repair and restore the applicable Individual Property to the condition it was in immediately prior to such Casualty or
as nearly as possible to the condition it was in immediately prior to such Condemnation as applicable, or (4) six (6) months prior
to the expiration of the insurance coverage referred to in Section 5.1.1(a)(iii);


 


(G)         the
affected Individual Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable
Legal Requirements;


 


(H)         the
Restoration shall be done and completed by Borrower or Operating Lessee in an expeditious and diligent fashion and in compliance
with all applicable Legal Requirements;


 


(I)          such
Casualty or Condemnation, as applicable, does not result in the loss of access to the affected Individual Property or the related
Improvements;


 


(J)          the
pro forma Net Operating Income for the applicable Individual Property following restoration and stabilization is equal to or greater
than seventy-five percent (75%) of the Net Operating Income for the applicable Individual Property as of the Closing Date;


 


(K)         Borrower
shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s or Operating
Lessee’s, as applicable, architect or engineer estimating the entire cost of completing the Restoration, which budget shall
be reasonably acceptable to Lender; and


 


(L)         the
Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable
determination to cover the cost of the Restoration, as specified in the budget delivered to Lender pursuant to clause (K).


 




    	 	-101-	 



     


    

  


(ii)          The
Net Proceeds shall be held by Lender in the Casualty and Condemnation Account and, until disbursed in accordance with the provisions
of this Section 5.4(b), shall constitute additional security for the Debt and Other Obligations under the Loan Documents.
The Net Proceeds shall be disbursed promptly by Lender to, or as directed by, Borrower from time to time during the course of the
Restoration, upon receipt of evidence reasonably satisfactory to Lender that (A) all materials installed and work and labor performed
(except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been
paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices
of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Individual Property which have not
either been fully bonded to the satisfaction of Lender and discharged of record or in the alternative fully insured to the satisfaction
of Lender by the title company issuing the Title Insurance Policy.


 


(iii)         All
plans and specifications required in connection with the Restoration shall be subject to the prior approval of Lender and an independent
consulting engineer selected by Lender (the “Casualty Consultant”). Lender shall have the use of the
plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity
of the contractors, subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been
engaged, shall be subject to the reasonable approval of Lender and the Casualty Consultant. All costs and expenses incurred by
Lender in connection with recovering, holding and advancing the Net Proceeds for the Restoration including, without limitation,
reasonable attorneys’ fees and disbursements and the Casualty Consultant’s fees and disbursements, shall be paid by
Borrower.


 


(iv)         In
no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually
incurred from time to time for work in place as part of the Restoration, as certified by the Casualty Consultant, less the Casualty
Retainage. The term “Casualty Retainage” shall mean, as to each contractor, subcontractor or materialman
engaged in the Restoration, an amount equal to ten percent (10%) of the costs actually incurred for work in place as part of the
Restoration, as certified by the Casualty Consultant, until the Restoration has been completed; provided, however, that if any
contract pursuant to which such contractor, subcontractor or materialman is to be engaged provides that the amount which Borrower
or Operating Lessee, as applicable, may retain shall be reduced to five percent (5%) or more (but less than ten percent (10%) upon
fifty percent (50%) completion of the Restoration), then Borrower may request Lender’s consent to such lower Casualty Retainage
and Lender shall not unreasonably withhold, condition or delay its consent thereto. The Casualty Retainage shall in no event, and
notwithstanding anything to the contrary set forth above in this Section 5.4(b), be less than the amount actually held
back by Borrower or Operating Lessee, as applicable, from contractors, subcontractors and materialmen engaged in the Restoration.
The Casualty Retainage shall not be released until the Casualty Consultant certifies to Lender that the Restoration has been completed
in accordance with the provisions of this Section 5.4(b) and that all approvals necessary for the re-occupancy and
use of the Individual Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory
to Lender that the costs of the Restoration have been paid in full or will be paid in full out of the Casualty Retainage; provided,
however, that Lender will release the portion of the Casualty Retainage being held with respect to any contractor, subcontractor
or materialman engaged in the Restoration as of the date upon which (i) the Casualty Consultant certifies to Lender that such contractor,
subcontractor or materialman has satisfactorily completed all work and has supplied all materials in accordance with the provisions
of such contractor’s, subcontractor’s or materialman’s contract, (ii) the contractor, subcontractor or materialman
delivers the lien waivers and evidence of payment in full of all sums due to the contractor, subcontractor or materialman as may
be reasonably requested by Lender or by the title company issuing the Title Insurance Policy, and (iii) Lender receives an
endorsement to the Title Insurance Policy insuring the continued priority of the Lien of the Mortgage and evidence of payment
of any premium payable for such endorsement. If required by Lender, the release of any such portion of the Casualty Retainage shall
be approved by the surety company, if any, which has issued a payment or performance bond with respect to the contractor, subcontractor
or materialman.


 




    	 	-102-	 



     


    

  


(v)         Lender
shall not be obligated to make disbursements of the Net Proceeds more frequently than once every calendar month.


 


(vi)        If
at any time the Net Proceeds or the undisbursed balance thereof shall not, in the opinion of Lender in consultation with the Casualty
Consultant, be sufficient to pay in full the balance of the costs which are estimated by the Casualty Consultant to be incurred
in connection with the completion of the Restoration, Borrower shall deposit the deficiency (the “Net Proceeds Deficiency”)
with Lender (for deposit into the Casualty and Condemnation Account) before any further disbursement of the Net Proceeds shall
be made. The Net Proceeds Deficiency deposited with Lender shall be deposited by Lender into the Casualty and Condemnation Account
and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the
disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 5.4(b) shall constitute additional
security for the Obligations.


 


(vii)       The
excess, if any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after
the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 5.4(b),
and the receipt by Lender of evidence satisfactory to Lender that all costs incurred in connection with the Restoration have been
paid in full, shall be promptly remitted by Lender to (A) Borrower, provided no Trigger Period, Event of Default or Mezzanine Loan
Default shall have occurred and shall be continuing, or (B) Mezzanine Lender, in the event no Event of Default shall have occurred
and be continuing but provided a Mezzanine Loan Default then exists. In the event a Trigger Period then exists (other than a Trigger
Period caused solely by the occurrence and continuance of a Mezzanine Loan Default), all excess Net Proceeds shall be deposited
into the Cash Management Account.


 




    	 	-103-	 



     


    

 


(c)         Notwithstanding
anything to the contrary set forth in this Agreement, including the provisions of this Section 5.4, if the Loan is
included in a REMIC Trust, then Lender shall be satisfied that immediately following a release of any portion of the Lien of any
Mortgage following a Casualty or Condemnation, (i) the Loan will meet the REMIC Requirements after giving effect to any prepayment
under clause (ii), and (ii) taking into account any proposed Restoration of the remaining Properties, if the ratio
of the unpaid principal balance of the Loan to the value of the remaining Properties is greater than 125% (such value to be determined,
in Lender’s reasonable discretion, by any commercially reasonably method permitted to a REMIC Trust; and which shall exclude
the value of personal property or going concern value, if any, other than as permitted to be included therein by Treas. Reg. §1.860G-2(a)(4)),
the Outstanding Principal Balance must be paid down by an amount equal to the least of the following amounts: (x) the net Award
(after payment of Lender’s reasonable costs and expenses and any other fees and expenses that have been approved by Lender)
or the net Insurance Proceeds (after payment of Lender’s reasonable costs and expenses and any other fees and expenses that
have been approved by Lender), as the case may be, or (y) a “qualified amount” as the term is defined in the IRS Revenue
Procedure 2010-30, as the same may be amended, replaced, supplemented or modified from time to time, unless Lender receives an
opinion of counsel that if such amount is not paid, the applicable Securitization will not fail to maintain its status as a REMIC
Trust as a result of the related release of such portion of the Lien of the Mortgage. If and to the extent the preceding sentence
applies, only such amount of the net Award or net Insurance Proceeds (as applicable), if any, in excess of the amount required
to pay down the principal balance of the Loan may be released for purposes of Restoration or released to Borrower as otherwise
expressly provided in this Section 5.4.


 


(d)         All
Net Proceeds not required (i) to be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds
pursuant to Section 5.4(b)(vii) may be retained and applied by Lender in accordance with Section 2.4.4
hereof, or, at the discretion of Lender, the same may be paid, either in whole or in part, to Borrower for such purposes as Lender
shall approve, in its discretion.


 


(e)         In
the event of foreclosure of any Mortgage, or other transfer of title to any Individual Property in extinguishment in whole or in
part of the Debt all right, title and interest of Borrower or Operating Lessee in and to the Policies that are not blanket Policies
then in force concerning such Individual Property and all proceeds payable thereunder shall thereupon vest in the purchaser at
such foreclosure or Lender or other transferee in the event of such other transfer of title.


 


(f)          Notwithstanding
anything to the contrary contained herein, if in connection with a Casualty any insurance company makes a payment under a property
insurance Policy that Borrower proposes be treated as business or rental interruption insurance, then, notwithstanding any designation
(or lack of designation) by the insurance company as to the purpose of such payment, as between Lender and Borrower, such payment
shall not be treated as business or rental interruption Insurance Proceeds unless Borrower has demonstrated to Lender’s satisfaction
that the remaining Net Proceeds that have been received from the property insurance companies together with any amount reserved
with Lender in respect of a deficiency are sufficient to pay 100% of the cost of the Restoration or, if such Net Proceeds are to
be applied to repay the Obligations in accordance with the terms hereof, that such remaining Net Proceeds will be sufficient to
satisfy the Obligations in full.


 




    	 	-104-	 



     


    

 


ARTICLE
6



CASH MANAGEMENT AND RESERVE FUNDS


 


Section 6.1        Cash
Management Arrangements. Borrower or Operating Lessee, as applicable, shall deliver irrevocable written instructions to
each of the credit card companies or credit card clearing banks delivering receipts or Hotel Revenue from any of the Properties,
in form and substance reasonably acceptable to Lender (provided that, absent manifest error, the customary form required by any
particular credit card company or credit card clearing bank shall be deemed acceptable to Lender with respect to such company or
bank, as the case may be), directing each such credit card company or credit card clearing bank to deliver all receipts payable
to Borrower or Operating Lessee or to Manager on behalf of or for the account of Borrower or Operating Lessee, with respect to
any the Properties directly to the applicable Clearing Account. Without in any way limiting the foregoing, if Borrower, Operating
Lessee or Manager receives any Gross Revenue from the Properties or any other amount which would be included in the Operating Income
of the Properties, then (i) such amounts shall be deemed to be collateral for the Obligations and shall be held in trust for the
benefit, and as the property, of Lender, (ii) such amounts shall not be commingled with any other funds or property of Borrower,
Operating Lessee or Manager, and (iii) Borrower, Operating Lessee or Manager, as applicable shall deposit such amounts in the applicable
Property Account or, at Borrower’s option, a Clearing Account on a daily basis. Following the occurrence and during the continuation
of an Event of Default, Lender, at its option may, and Borrower or Operating Lessee shall at Lender’s direction, and in all
events at Borrower’s expense, deliver the written instructions in the form attached hereto as Exhibit A to each
tenant under any Lease at any of the Properties directing each such tenant to deliver all Rents payable thereunder directly to
the applicable Clearing Account. Following any cure of such Event of Default, which cure has been accepted by Lender or waiver
or other termination of such Event of Default (assuming that no other Event of Default then exists), Lender shall, at Borrower’s
request and at Borrower’s expense, promptly revoke such written instructions and direct each such tenant to resume delivering
all Rents payable under the Lease directly to the Borrower or Operating Lessee. Each Property Account shall be subject to a standing
instruction from Borrower requiring that all funds on deposit therein (other than any Security Deposits or Advance Deposits that
are being held in accordance with the terms of this Agreement, unless and until any such Security Deposits or Advance Deposits
have been forfeited or applied in accordance with the terms of the applicable Lease or Advance Booking Agreement) shall be swept
to the applicable Clearing Account on a weekly basis. Neither Borrower nor Operating Lessee nor Managers, on behalf of Borrower
or Operating Lessee, shall have any right to withdraw funds from the Property Accounts (other than any Security Deposits or Advance
Deposits that have been forfeited or applied in accordance with the terms of the applicable Lease or Advance Booking Agreement).
So long as no Event of Default or Trigger Period then exists, funds deposited into the Clearing Accounts shall be swept on each
Business Day or at such other frequency as Borrower shall elect by the Clearing Account Banks into one or more accounts designated
by Borrower. Each Property Account and Clearing Account shall be pledged to Lender as security for the Obligations. Upon the occurrence
of an Event of Default or a Trigger Period and until such time as such Event of Default or Trigger Period, as applicable, shall
be cured or no longer shall exist, neither Borrower, Operating Lessee, Manager nor any Persons claiming thereunder shall have any
right to withdraw any funds from any Clearing Account and all funds deposited into the Clearing Accounts shall be swept by the
Clearing Account Bank on a daily basis into the Deposit Account and applied and disbursed in accordance with this Agreement and
the Cash Management Agreement. Manager shall have access to funds in the Disbursement Account to be applied in accordance with
the Management Agreement. Funds in the Deposit Account shall be invested in Permitted Investments, as more particularly set forth
in the Cash Management Agreement. To the extent not already in existence, Lender may also establish subaccounts of the Deposit
Account which shall at all times be Eligible Accounts (subject to the terms of the Cash Management Agreement) (and may be ledger
or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Accounts”).
The Deposit Account and all other Accounts will be under the sole control and dominion of Lender, and neither Borrower nor Operating
Lessee nor any Manager on behalf of Borrower or Operating Lessee shall have any right of withdrawal therefrom; provided, the foregoing
shall not restrict Manager’s access to the Borrower Accounts. Borrower shall pay for all expenses of opening and maintaining
all of the above Accounts and all of the Borrower Accounts. The Property Accounts may, at Borrower’s option, be subaccounts
of the Clearing Account.


 




    	 	-105-	 



     


    

 


Section 6.2         Intentionally
Omitted.


 


Section 6.3         Tax
Funds.


 


6.3.1       Deposits
of Tax Funds.


 


(a)         During
the continuance of a Trigger Period or an Event of Default, Borrower shall deposit with Lender on or before each Monthly Payment
Date, an amount equal to one-twelfth of the Taxes that Lender reasonably estimates will be payable during the next ensuing twelve
(12) months (initially, $166,775), in order to accumulate sufficient funds to pay all such Taxes at least thirty (30) days prior
to the date they respectively become Due and Payable (the “Due Date” with respect to such applicable
Taxes), which amounts shall be transferred into an Account (the “Tax Account”). Amounts deposited from
time to time into the Tax Account pursuant to this Section 6.3.1 are referred to herein as the “Tax Funds”.
If at any time Lender reasonably determines that the Tax Funds will not be sufficient to pay the Taxes, assuming subsequent monthly
deposits in accordance herewith, Lender shall notify Borrower of such determination and the monthly deposits for Taxes shall be
increased by the amount that Lender reasonably estimates is sufficient to make up the deficiency at least ten (10) days prior to
the respective Due Dates for the Taxes; provided, that if Borrower receives notice of any deficiency after the date that is ten
(10) days prior to the Due Date for such Taxes, Borrower will deposit with or on behalf of Lender such amount within two (2) Business
Days after its receipt of such notice. For the avoidance of doubt, to the extent that any Individual Property or Properties has
been released from the Lien under the Loan Documents in accordance with the terms hereof, the funds required to be deposited into
the Tax Account by Borrower shall be appropriately reduced for the remainder of the Fiscal Year.


 


(b)         Notwithstanding
the foregoing, provided that Borrower and Operating Lessee are maintaining the applicable Individual Property in accordance with
the requirements of the Management Agreement (as determined by the applicable Manager) and the Loan Documents (as reasonably determined
by Lender), to the extent Taxes for the applicable Individual Property are reserved for in a Manager-Held Reserve for Taxes for
such period pursuant to and in accordance with the Management Agreement (and provided that Lender shall have a security interest
in such Manager-Held Reserve), then the amount of the monthly deposit into the Tax Account shall be reduced on a dollar-for-dollar
basis by such amount so reserved.


 




    	 	-106-	 



     


    

 


6.3.2       Release
of Tax Funds. Provided no Enforcement has occurred and is continuing, Lender shall direct Servicer to apply Tax Funds in
the Tax Account to payments of Taxes (subject to Borrower’s right to contest the same in accordance with Section 4.6).
In making any payment relating to Taxes, Lender may do so according to any bill, statement or estimate procured from the appropriate
public office (with respect to Taxes) 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 the amount of the Tax Funds shall exceed the amounts
due for Taxes and provided that no Trigger Period exists, Lender shall, in its sole discretion, return any excess to Borrower or
credit such excess against future payments to be made to the Tax Funds. Any Tax Funds remaining in the Tax Account after the Obligations
have been paid in full or a Trigger Period is no longer continuing shall be returned to Borrower.


 


Section 6.4          Insurance
Funds.


 


6.4.1       Deposits
of Insurance Funds.


 


(a)          During
the continuance of a Trigger Period or an Event of Default, Borrower shall deposit with or on behalf of Lender, on or before each
Monthly Payment Date, an amount equal to one-twelfth of the Insurance Premiums that Lender reasonably estimates based on the most
recent bill will be payable for the renewal of the coverage afforded by the Policies upon the expiration thereof, in order to accumulate
sufficient funds to pay all such Insurance Premiums on or prior to the earlier of (A) at least thirty (30) days prior to the date
on which such payments are due and payable and (B) the expiration of the Policies, which amounts shall be transferred into an Account
established at Deposit Bank to hold such funds (the “Insurance Account”). Amounts deposited from time
to time into the Insurance Account pursuant to this Section 6.4.1 are referred to herein as the “Insurance
Funds”. If at any time Lender reasonably determines that the Insurance Funds will not be sufficient to pay the Insurance
Premiums, assuming subsequent monthly deposits in accordance herewith, Lender shall notify Borrower of such determination and the
monthly deposits for Insurance Premiums shall be increased by the amount that Lender reasonably estimates is sufficient to make
up the deficiency at least thirty (30) days prior to expiration of the Policies. For the avoidance of doubt, to the extent that
an Individual Property or Properties has been released from the Lien under the Loan Documents in accordance with the terms hereof,
the funds required to be deposited into the Insurance Account by Borrower shall be appropriately reduced for the remainder of the
Fiscal Year. The foregoing requirements are hereby waived with respect to any insurance maintained under a blanket Policy that
satisfies the requirements set forth in Section 5.1.1(c).


 


(b)          Notwithstanding
the foregoing, provided that Borrower and Operating Lessee are maintaining the applicable Individual Property in accordance with
the requirements of the Management Agreement (as determined by the applicable Manager) and the Loan Documents (as reasonably determined
by Lender), to the extent Insurance Premiums for the applicable Individual Property are reserved for in a Manager-Held Reserve
for Insurance Premiums for such period pursuant to and in accordance with the Management Agreement (and provided that Lender shall
have a security interest in such Manager-Held Reserve), then the amount of the monthly deposit into the Insurance Account shall
be reduced on a dollar-for-dollar basis by such amount so reserved.


 







    	 	-107-	 



     


    

  


6.4.2       Release
of Insurance Funds. Provided no Enforcement has occurred and is continuing, Lender shall direct Servicer to apply Insurance
Funds in the Insurance Account to the timely payment of Insurance Premiums, provided Borrower shall furnish Lender with all bills,
invoices and statements for the Insurance Premiums for which such funds are required at least thirty (30) days prior to the date
on which such charges first become payable. In making any payment relating to Insurance Premiums, Lender may do so according to
any bill, statement or estimate procured from the insurer or its agent, without inquiry into the accuracy of such bill, statement
or estimate. If the amount of the Insurance Funds shall exceed the amounts due for Insurance Premiums and provided that no Trigger
Period exists, Lender shall, in its sole discretion, return any excess to Borrower or credit such excess against future payments
to be made to the Insurance Funds. Any Insurance Funds remaining in the Insurance Account after the Obligations have been paid
in full or a Trigger Period is no longer continuing shall be returned to Borrower.


 


Section 6.5         Scheduled
PIP Reserve Funds.


 


6.5.1       Deposits
of Scheduled PIP Reserve Funds. Subject to Section 4.34(e), Borrower shall deposit with or on behalf of Lender such amounts
as and when required pursuant to Section 4.34(e) (such account, the “Scheduled PIP Reserve Account” and
any such funds therein, the “Scheduled PIP Reserve Funds”).


 


6.5.2       Release
of Scheduled PIP Reserve Funds. Provided no Event of Default is continuing and no Enforcement has occurred, Lender shall
direct Servicer to disburse Scheduled PIP Reserve Funds for payment of Approved Scheduled PIP Expenses within ten (10) days after
the delivery by Borrower to Lender of a request therefor (but not more often than once each calendar month), provided that: (i)
such disbursement is for Approved Scheduled PIP Expenses; (ii) Lender has received invoices evidencing that the costs for which
such disbursements are requested are due and payable (other than for costs and expenses less than or equal to $10,000) and are
in respect of Approved Scheduled PIP Expenses; (iii) Borrower has applied any amounts previously received by it in accordance with
this Section for the Approved Scheduled PIP Expenses to which specific draws made hereunder relate and received any lien waivers
or other releases (with respect to any expenses greater than $10,000) which would customarily be obtained with respect to the work
in question; (iv) intentionally omitted, and (v) the request for the disbursement is accompanied by an Officer’s Certificate
from Borrower stating that (A) the conditions in the foregoing clauses (ii) and (iii) have been satisfied, (B)
that the Approved Scheduled PIP Expenses to be funded by such disbursement have been completed in a good and workmanlike manner
and in accordance with all applicable Legal Requirements, (C) that the copies of invoices and evidence of lien waivers (to the
extent required above) attached to such Officer’s Certificate are true, complete and correct in all material respects, to
the Borrower’s knowledge, and (D) upon such disbursement to Borrower, the Approved Scheduled PIP Expenses to be funded by
the requested disbursement will be paid promptly in accordance with the invoices and lien waivers (where applicable) presented.
Lender shall not be required to disburse Scheduled PIP Reserve Funds more frequently than once each calendar month. Lender shall
direct Servicer to disburse any remaining Scheduled PIP Reserve Funds to Borrower (or if an Event of Default or Mezzanine Loan
Default is continuing, then with respect to the Scheduled PIP Reserve Funds remitted during an Event of Default or Trigger Period,
to the Cash Collateral Account) within ten (10) days of the earliest to occur of (x) Borrower delivering an Officer’s Certificate
from Borrower stating that all Approved Scheduled PIP Expenses have been fully paid for and completed in a good, workmanlike and
Lien-free manner in accordance with all Legal Requirements, (y) intentionally omitted, and (z) regardless of whether an Event of
Default or Mezzanine Loan Default exists, repayment of the Loan in full.


 




    	 	-108-	 



     


    

 


Section 6.6         Intentionally
Omitted.


 


Section 6.7         Intentionally
Omitted.


 


Section 6.8         FF&E
Reserve Funds.


 


6.8.1       Deposits
of FF&E Reserve Funds.


 


(a)         Borrower
shall deposit or cause to be deposited with or on behalf of Lender on or before each Monthly Payment Date, an amount equal to the
greater of (i) four percent (4.0%) of the Adjusted Operating Income for the Properties for the calendar month which is two calendar
months prior to the calendar month in which such Monthly Payment Date occurs and (ii) the amounts actually required (and not waived)
by a Franchisor pursuant to a Franchise Agreement, for the repair and replacement of FF&E and Routine Capital Expenditures
(collectively, the “FF&E Work”), which amounts shall be transferred into an Account established for
such purposes (such account, the “FF&E Reserve Account”). Amounts deposited from time to time into
the FF&E Reserve Account pursuant to this Section 6.8.1 are referred to herein as the “FF&E Reserve
Funds”.


 


(b)         Notwithstanding
the foregoing, provided that Borrower and Operating Lessee are maintaining the applicable Individual Property in accordance with
the requirements of the Management Agreement (as determined by the applicable Manager) and the Loan Documents (as reasonably determined
by Lender), to the extent funds for FF&E Work for the applicable Individual Property are reserved for in a Manager-Held Reserve
for FF&E Work for such period pursuant to and in accordance with the Management Agreement (and provided that Lender shall have
a security interest in such Manager-Held Reserve), then the amount of the monthly deposit into the FF&E Reserve Account shall
be reduced on a dollar-for-dollar basis by such amount so reserved.


 


6.8.2       Release
of FF&E Reserve Funds. Provided no Event of Default is continuing and no Enforcement has occurred, and subject to the
last sentence of this Section 6.8.2, Lender shall direct Servicer to disburse FF&E Reserve Funds to Borrower out
of the FF&E Reserve Account, within ten (10) days after the delivery by Borrower to Lender of a request therefor (but not more
often than once each calendar month), in increments of at least $10,000, provided that: (i) intentionally omitted; (ii) Lender
has received invoices evidencing that the costs for which such disbursements are requested are due and payable (other than for
costs and expenses less than or equal to $10,000) and are in respect of Approved FF&E Expenses; (iii) Borrower has applied
any amounts previously received by it in accordance with this Section for the Approved FF&E Expenses to which specific draws
made hereunder relate and received any lien waivers or other releases (with respect to any Approved FF&E Expense greater than
$10,000) which would customarily be obtained with respect to the work in question; (iv) intentionally omitted; and (v) the request
for the disbursement is accompanied by an Officer’s Certificate from Borrower stating that (A) the conditions in the foregoing
clauses (ii), (iii) and (iv) have been satisfied, (B) that the Approved FF&E Expenses to be funded
by such disbursement have been completed in a good and workmanlike manner and in accordance with all applicable Legal Requirements,
(C) that the copies of invoices and evidence of lien waivers (to the extent required above) attached to such Officer’s Certificate
are true, complete and correct to the Borrower’s knowledge, and (D) upon such disbursement to Borrower, the Approved FF&E
Expenses to be funded by the requested disbursement will be paid promptly in accordance with the invoices and lien waivers (where
applicable) presented. Lender shall not be required to disburse FF&E Reserve Funds more frequently than once each calendar
month, and Lender shall not be required to make disbursements from the FF&E Reserve Account unless such requested disbursement
is in an amount greater than $10,000 (or a lesser amount if the total amount in the FF&E Reserve Account is less than $10,000,
in which case only one disbursement of the amount remaining in the account shall be made).


 




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Section 6.9         Casualty
and Condemnation Account. Borrower shall pay, or cause to be paid, to Lender all Insurance Proceeds or Awards due to any
Casualty or Condemnation where Net Proceeds or the costs of completing the Restoration of the affected Individual Property are
more than two percent (2%) of the Allocated Loan Amount for such Individual Property in accordance with the provisions of Sections 5.2
and 5.3, which amounts shall be transferred into an Account (the “Casualty and Condemnation Account”).
Amounts deposited from time to time into the Casualty and Condemnation Account pursuant to this Section 6.9 are referred
to herein as the “Casualty and Condemnation Funds”. All Casualty and Condemnation Funds shall be held,
disbursed and/or applied in accordance with the provisions of Section 5.4 hereof.


 


Section 6.10       Cash
Collateral Funds.


 


(a)          If
a Trigger Period shall be continuing, all Available Cash shall be paid to Lender, which amounts shall be transferred by Lender
into an Account (the “Cash Collateral Account”) to be held by Lender as cash collateral for the Debt.
Amounts on deposit from time to time in the Cash Collateral Account pursuant to this Section 6.10 are referred to as
the “Cash Collateral Funds”. Any Cash Collateral Funds on deposit in the Cash Collateral Account not
previously disbursed or applied shall be disbursed to Borrower upon the termination of such Trigger Period free and clear of any
Lien or continuing security interest under the Loan Documents (including under Section 6.12 of this Agreement); provided,
however, if the Loan has been fully repaid and the Mezzanine Loan has not been fully repaid and a Trigger Period is continuing
under the Mezzanine Loan, then all Cash Collateral Funds on deposit in the Cash Collateral account not previously disbursed or
applied shall be disbursed to Mezzanine Lender. Notwithstanding the foregoing, Lender shall have the right, but not the obligation,
at any time during the continuance of an Event of Default, in its sole and absolute discretion to apply any and all Cash Collateral
Funds then on deposit in the Cash Collateral Account to the Debt or Other Obligations, in such order and in such manner as Lender
shall elect in its sole and absolute discretion, including to make a prepayment of principal (together with the applicable Spread
Maintenance Premium, if any, applicable thereto) or any other amounts due hereunder.


 




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(b)         During
a Trigger Period, so long as no Event of Default has occurred and is continuing, upon written request of Borrower, Lender shall
disburse Cash Collateral Funds for (i) payment of documented Individual Property-level expenses pursuant to an Approved Annual
Budget, including, without limitation, Operating Expenses and Capital Expenditures pursuant to the Approved Annual Budget, to the
extent not already paid by Manager, (ii) emergency repairs and/or life safety issues at the Property to the extent not already
paid by Manager or required to be reimbursed to Manager, (iii) Hotel Taxes to the extent not already paid by Manager or required
to be reimbursed to Manager, (iv) costs incurred in connection with the purchase of any FF&E or PIP Work to the extent not
already paid by Manager or required to be reimbursed to Manager and without duplication of amounts disbursed from the Scheduled
PIP Reserve Account or FF&E Reserve Account), (v) costs incurred in connection with the purchase of any Interest Rate Cap Agreement
or Replacement Interest Rate Cap Agreement required under the Loan Documents or the Mezzanine Loan Documents, (vi) intentionally
omitted, (vii) legal fees arising in connection with the Property or Borrower’s ownership and operation of the Property;
provided that Cash Collateral Funds shall not be used for legal fees in connection with (A) the enforcement of any Borrower’s
or Mezzanine Borrower’s rights under the Loan Documents or the Mezzanine Loan Documents, as applicable or (B) any defense
of any enforcement by Lender or Mezzanine Lender of its rights under the Loan Documents or Mezzanine Loan Documents, as applicable,
(viii) (A) audit, accounting and tax expenses arising in connection with the Property or Borrower’s ownership and operation
of the Property to the extent not already paid by Manager or required to be reimbursed to Manager, including allocated corporate
overhead of Guarantor and (B) Lender approved portfolio-level expenses, which when aggregated with allocated corporate overhead
of Guarantor shall not be in an amount not to exceed $50,000 annually, (ix) costs of Restoration in excess of available Net Proceeds,
(x) Debt Service, New Mezzanine Loan Debt Service, and Mezzanine Debt Service, (xi) any fees and costs (excluding principal and
interest which are covered solely by clause (vi) and (x) of this subsection (b)) payable by Borrower
or Mezzanine Borrower, including to Lender or Mezzanine Lender, subject to and in compliance with the Loan Documents and the Mezzanine
Loan Documents, (xii) costs associated with existing Leases or any new Leases entered into pursuant to the terms of this Agreement,
including costs related to tenant improvement allowances, leasing commissions and Tenant-related Capital Expenditures, (xiii) payment
of shortfalls in the required deposits into the Reserve Accounts (in each case, to the extent required in the Loan Agreement, the
Mezzanine Loan Agreements, the New Mezzanine Loan Documents or the Cash Management Agreement), (xiv) intentionally omitted, (xv)
management and franchise fees, (xvi) disbursements to Borrower to be distributed to its equityholders in order to make distributions
required to be paid to enable REIT Guarantor to pay any dividends with respect to preferred interests that REIT Guarantor issued
to satisfy the “100 shareholders” REIT qualification requirement under Section 856(a)(5) of the Code in an amount
not to exceed $70,000 annually and (xvii) such other items as reasonably approved by Lender.


 


Section 6.11       Property
Cash Flow Allocation.


 


6.11.1     Order
of Priority of Funds in Deposit Account. On each Business Day during a Trigger Period, except during the continuance of
an Event of Default, all funds deposited into the Deposit Account shall be applied in the following amounts and order of priority:


 


(i)          First,
to the Tax Account, all funds necessary to make the required payments of Tax Funds on the next Monthly Payment Date as required
under Section 6.3;


 


(ii)         Second,
to the Insurance Account, all funds necessary to make the required payments of Insurance Funds on the next Monthly Payment Date
as required under Section 6.4;


 


(iii)        Third,
to the Debt Service Account, all funds necessary to pay the Monthly Debt Service Payment Amount on the next Monthly Payment Date,
taking into account any payments received pursuant to the Interest Rate Cap Agreement (provided, however, that amounts allocated
to the Debt Service Account pursuant to this subparagraph (v) shall be held in the Debt Service Account until such
Monthly Payment Date, at which time, such amounts shall be applied in accordance with the terms of Section 2.3.1);


 




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(iv)        Fourth,
to the Debt Service Account, all funds necessary to pay any other amounts due and payable under the Loan Documents on or prior
to the next Monthly Payment Date (to the extent ascertainable on such Business Day) (provided, however, that amounts allocated
to the Debt Service Account pursuant to this subparagraph (vi) shall be held in the Debt Service Account until such
time such amounts are due and payable under the Loan Documents, at which time, such amounts shall be applied in accordance with
the Loan Documents);


 


(v)         Fifth,
subject to the terms of the Cash Management Agreement, to Borrower, funds necessary to pay (without duplication) (A) any Approved
Operating Expenses (excluding any Incentive Management Fees) and Hotel Taxes, to the extent not previously paid by Manager from
the application of funds pursuant to subparagraph (i) above, as applicable), (B) any Emergency Expenses, (C) any Approved
Capital Expenditures, (D) any Approved FF&E Expenses, to the extent the Available FF&E Reserve Funds are insufficient to
cover such Approved FF&E Expenses and (E) any Flagging Costs pursuant to an Approved Flagging Budget, to the extent that amounts
contained in the PIP Reserve Account and the Available FF&E Credit are insufficient to cover such Flagging Costs;


 


(vi)        Sixth,
to the FF&E Reserve Account, all funds necessary to make the required payments of FF&E Reserve Funds on the next Monthly
Payment Date as required under Section 6.8;


 


(vii)       Intentionally
omitted;


 


(viii)      Seventh,
provided no Event of Default has occurred and is continuing hereunder, to the Mezzanine Debt Service Account, all funds necessary
to pay the Mezzanine Monthly Debt Service Payment Amount on the next Monthly Payment Date as set forth in the most recently received
Mezzanine Lender Monthly Debt Service Notice Letter from Mezzanine Lender (plus, if applicable, interest at the Default Rate (as
defined in the Mezzanine Loan Agreement) and all other amounts (excluding principal) then due and payable to Mezzanine Lender under
the Mezzanine Loan Documents) (provided, however, that amounts allocated to the Mezzanine Debt Service Account pursuant
to this subparagraph (ix) shall be held in the Mezzanine Debt Service Account until such next Monthly Payment Date,
at which time, such amounts shall be transferred to the Mezzanine Account; and provided further that if Lender receives
written notice from Mezzanine Lender that the amount paid to the Mezzanine Account pursuant to the most recently received Mezzanine
Lender Monthly Debt Service Notice Letter was not the correct amount to be paid pursuant to the Mezzanine Loan Documents, then
an adjustment shall be made to the amount paid to the Mezzanine Account on the immediately succeeding Monthly Payment Amount in
order to correct such error);


 


(ix)         Intentionally
omitted;


 




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(x)          Eighth,
subject to the terms of the Cash Management Agreement, to Borrower, funds necessary to pay Approved Excess Operating Expenses;


 


(xi)         Lastly
all amounts remaining after payment of the amounts set forth in clauses (i) through (x) above (the “Available
Cash”), to the Cash Collateral Account to be held or disbursed in accordance with Section 6.10.


 


6.11.2     Failure
to Make Payments. The failure of sufficient amounts to be deposited into the Deposit
Account in order to be able to disburse all amounts required under clauses (i) through (vi), (viii) and (ix)
of Section 6.11.1 in full on the following Monthly Payment Date shall, subject to applicable cure periods set forth
in Article VIII, constitute an Event of Default under this Agreement; provided, however, if adequate funds are available
in the Deposit Account for such payments, the failure by the Deposit Bank to allocate such funds into the appropriate Accounts
shall not constitute an Event of Default.


 


6.11.3     Application
After Event of Default. Notwithstanding anything to the contrary contained in this Article 6,
upon the occurrence and during the continuance of an Event of Default, Lender, at its option, may apply any Gross Revenue (other
than Security Deposits or Advance Deposits until forfeited or applied in accordance with the terms of the applicable Lease or
Advance Booking Agreement, as the case may be) then in the possession of Lender, Servicer or Deposit Bank (including any Reserve
Funds on deposit in any Cash Management Account) to the payment of the Debt in such order, proportion and priority as Lender may
determine in its sole and absolute discretion. Lender’s right to withdraw and apply any of the foregoing funds shall be
in addition to all other rights and remedies provided to Lender under the Loan Documents; provided, however, that
Lender shall permit the funding of Approved Operating Expenses (excluding any Incentive Management Fees), and, if applicable,
Emergency Expenses (with such Gross Revenue being disbursed for Emergency Expenses as if the prioritization set forth in Section
6.11.1 had been applied with respect to such Gross Revenue), unless and until, the effective date of the termination of the
applicable Manager pursuant to the terms of the applicable Assignment of Management Agreement. Lender’s right to withdraw
and apply any of the foregoing funds shall be in addition to all other rights and remedies provided to Lender under the Loan Documents,
but subject to the limitations set forth in this Section 6.11.3.


 


6.11.4     Mezzanine
Lender Monthly Debt Service Notice. Lender agrees to deliver each Mezzanine Lender Monthly
Debt Service Notice Letter and corresponding disbursement instructions to Deposit Bank within two (2) Business Days of Lender’s
receipt thereof to the extent any Mezzanine Lender is entitled to a payment pursuant to the terms of Section 6.11.1
above.


 


Section 6.12      Security
Interest in Reserve Funds. As security for payment of the Debt and the performance by
Borrower and Operating Lessee of all other terms, conditions and provisions of the Loan Documents, each of Borrower and Operating
Lessee hereby pledges and assigns to Lender, and grants to Lender a security interest in, all Borrower’s and Operating Lessee’s
right, title and interest in and to all Gross Revenue and in and to all payments to or monies held in the Deposit Account and
the Accounts required to be established or maintained, as the case may be, pursuant to this Agreement (collectively, the “Cash
Management Accounts”). Each of Borrower and Operating Lessee hereby grants to Lender
a continuing security interest in, and agrees to hold in trust for the benefit of Lender, all Gross Revenues in its possession
prior to the (i) payment of such Gross Revenue to Lender or (ii) deposit of such Gross Revenue into the Deposit Account. Neither
Borrower nor Operating Lessee shall, without obtaining the prior written consent of Lender, further pledge, assign or grant any
security interest in any Cash Management Account, or permit any Lien to attach thereto, or any levy to be made thereon, or any
UCC 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. Upon the occurrence and during
the continuance of an Event of Default, Lender may, subject to Section 6.11.3 above, apply any sums in any Cash Management
Account in any order and in any manner as Lender shall 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 Mortgage or exercise its other rights
under the Loan Documents. Cash Management Accounts shall not constitute trust funds and may be commingled with other monies held
by Lender. Provided no Event of Default exists, all interest which accrues on the funds in any Account (other than the Tax Account
and the Insurance Account) shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and
disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment
in full of the Debt, all remaining funds in the Accounts, if any, shall be promptly (a) deposited in the Mezzanine Account, to
be disbursed in accordance with the terms of the Mezzanine Loan Documents, or (b) if the “Debt” (as such term is used
in the Mezzanine Loan Agreement) is to be simultaneously repaid with the Debt, paid to the Borrower.


 




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Section 6.13      Account
Activation Notices. Lender agrees that unless an Event of Default or a Trigger Period
shall have occurred, Lender shall not be entitled to deliver any Activation Notice (as defined in the Cash Management Agreement).
Following the cure of any such Event of Default, which cure has been accepted by Lender or waiver of such Event of Default (assuming
that no other Event of Default then exists), and upon the ending of any such Trigger Period, Lender shall promptly deliver a De-Activation
Notice (as defined in the Cash Management Agreement) to each Clearing Account Bank to which it had previously delivered an Activation
Notice in connection with such Event of Default or Trigger Period, as applicable.


 


Section 6.14      Appointment
of Account Representative. Each Individual Borrower and Individual Operating Lessee
hereby designates HIT 2PK TRS Mezz, LLC as the respective owners of all or substantially all of the limited liability company
or limited partnership interests of the applicable Individual Operating Lessees and agent for Borrower and Operating Lessee (“Account
Representative”), as the contractual representative of the Borrower and Operating
Lessee with respect to the Clearing Accounts and the Deposit Account in connection with the Clearing Account Agreements and the
Cash Management Agreement. Each Individual Borrower and Individual Operating Lessee jointly and severally hereby appoints the
Account Representative as its agent to establish or maintain, as the case may be, in its name on behalf of the Borrower and the
Operating Lessee, each Clearing Account, each Disbursement Account and the Deposit Account, and to receive (i) all Gross Revenues
of the Properties into the applicable Clearing Account, (ii) all disbursements from the Clearing Accounts to the account designated
in accordance with the Clearing Account Agreements, and (iii) to receive all Gross Revenues of the Properties into the Deposit
Account in accordance with the Cash Management Agreement (and the Account Control Agreements therein referenced). The Account
Representative shall have and may exercise such powers under the Clearing Account Agreements and the Cash Management Agreement
as are specifically delegated to the Account Representative by the terms of each thereof, together with such powers as are reasonably
incidental thereto. As security for payment of the Debt and the performance by Borrower and Operating Lessee of all other terms,
conditions and provisions of the Loan Documents, each of Borrower and Operating Lessee hereby pledges and assigns to Lender, and
grants to Lender a security interest in, all of Borrower’s and Operating Lessee’s right, title and interest in and
to the Clearing Accounts and all payments to or monies held therein.


 




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ARTICLE
7



PERMITTED TRANSFERS


 


Section 7.1         Loan
Assumption.


 


(a)         Notwithstanding
anything to the contrary contained in this Agreement or any of the other Loan Documents, from and after the earlier to occur of
(i) ten (10) Business Days after the Securitization of the entire Loan or (ii) ten (10) months after the Closing Date, Borrower
shall have the right to convey all of the Properties to a new borrower (the “Transferee Borrower”) and
have the Transferee Borrower assume all of Borrower’s obligations under this Agreement and the Loan Documents, and have one
or more Replacement Guarantors assume all of the obligations of Guarantor under the Loan Documents from and after the date of such
assumption (collectively, a “Permitted Direct Assumption”), provided that the following conditions are
satisfied (either prior to, or contemporaneously with, the closing of such Permitted Direct Assumption):


 


(i)          No
Event of Default shall be continuing as of the date of the closing of the Permitted Direct Assumption;


 


(ii)         Borrower
shall have provided Lender with not less than thirty (30) days’ prior written notice of the Permitted Direct Assumption,
and if Lender’s consent and a Rating Agency Confirmation is not required pursuant to clause (iii) below, such
notice shall include information establishing and Borrower and Transferee Borrower certifying that Transferee Borrower is (A) a
Qualified Transferee, (B) a Person who is Controlled by one or more Qualified Equityholders that either (x) satisfy the Control
Party Asset Threshold and the Experience Threshold or (y) are Pre-Approved Control Parties, and (C) a Person in whom no less than
thirty-five percent (35%) of the equity interests in the aggregate are directly or indirectly owned by one or more Qualified Equityholders;


 


(iii)        Prior
to a Securitization, Lender shall have provided its consent to the Permitted Direct Assumption (not to be unreasonably withheld,
conditioned or delayed if the proposed Transferee Borrower satisfies the Control Party Asset Threshold and the Experience Threshold)
and, from and after a Securitization, Lender shall have received a Rating Agency Confirmation with respect to such Permitted Direct
Assumption, provided that neither Lender’s consent nor a Rating Agency Confirmation shall be required with respect to the
identity of the Transferee Borrower so long as the Transferee Borrower (A) is a Qualified Transferee, (B) a Person who is Controlled
by one or more Qualified Equityholders described in clauses (i), (ii), (iii) or (v) of the definition
of Qualified Equityholder that either (x) prior to, and immediately after, giving effect to the Permitted Direct Assumption, satisfy
the Control Party Asset Threshold and the Experience Threshold or (y) are Pre-Approved Control Parties, and (C) a Person in whom
no less than thirty-five percent (35%) of the equity interests in the aggregate are directly or indirectly owned by one or more
Qualified Equityholders. In the event that a proposed Transferee Borrower does not meet the test described in the foregoing clauses (B)
and (C), and therefore, Lender’s consent and a Rating Agency Confirmation are required under this clause (iii),
then, for purposes of Lender’s decision whether to grant or withhold its consent, the failure by the proposed Transferee
Borrower to satisfy such test will not be considered presumptive that such proposed Transferee Borrower is not qualified to own
and operate the Properties; provided, however, that Lender may consider in deciding whether to consent to such proposed Transferee
Borrower, among other things, the assets, net worth and experience of such proposed Transferee Borrower, together with its constituent
owners and controlling parties, and any other matters that Lender reasonably deems relevant;


 




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(iv)        Transferee
Borrower shall have executed and delivered to Lender customary assumption agreements (the “Assumption Agreement”),
whereby it assumes and agrees to pay the Debt as and when due and shall have assumed the other Obligations of Borrower under the
Loan Documents, subject to the provisions of Section 10.1, and, prior to or concurrently with the closing of such Permitted
Direct Assignment, Transferee Borrower and its direct constituent partners, members or shareholders as Lender may reasonably require,
shall have executed and delivered, without any out-of-pocket cost or expense to Lender, such customary documents, agreements and
other customary deliverables as Lender shall reasonably require to evidence and effectuate said assumption (it being understood
and agreed that none of the documents and agreements described in this paragraph may expand the liabilities or obligations, or
reduce the rights and remedies, of Transferee Borrower relative to those of Borrower immediately prior to the closing of the Permitted
Direct Assumption);


 


(v)         Borrower
and Transferee Borrower shall have furnished any information reasonably requested by Lender related to and for the preparation
of, and shall authorize Lender to file, new fixture filings and financing statements, and fixture filing and financing statement
amendments, to the fullest extent permitted by applicable law;


 


(vi)        Transferee
Borrower shall have furnished to Lender customary documents reasonably satisfactory to Lender evidencing the organization, good
standing, qualification and authority of Transferee Borrower, Replacement Guarantor and the other parties executing the Assumption
Agreement, the replacement guaranty, the replacement environmental indemnity and/or the other documents and agreements required
to be delivered pursuant to the terms of this Section 7.1(a), which documents shall include certified copies of all
documents relating to the organization, formation and good standing of Transferee Borrower and Replacement Guarantor and of the
entities, if any, which are constituent and controlling shareholders, partners or members of Transferee Borrower or Replacement
Guarantor, as applicable;


 


(vii)       where
Transferee Borrower has elected to exercise the right to replace one or more Managers pursuant to Section 4.14.2(b)
in connection with the Permitted Direct Assumption, Transferee Borrower shall have provided one or more new management agreements
with one or more new Managers with respect to the Individual Properties managed by such replaced Manager(s) in accordance with
the requirements of Section 4.14.2(b) hereof and shall have collaterally assigned to Lender as additional security
and subordinated to the Lien of the Mortgages each such new management agreement pursuant to an Assignment of Management Agreement
in form and substance substantially similar to the Assignment of Management Agreement delivered on the Closing Date or otherwise
reasonably satisfactory to Lender; and, in any event, the Individual Properties shall be managed by one or more Qualified Managers;


 




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(viii)      Transferee
Borrower shall have delivered to Lender, without any out-of-pocket cost or expense to Lender, an endorsement to each of Lender’s
Title Insurance Policies, as modified by the Assumption Agreement, insuring the Lien of the applicable Mortgage as a valid first
lien on the Individual Properties encumbered thereby and naming the Transferee Borrower as owner of such Individual Properties,
which endorsement must insure that, as of the date of the recording of the Assumption Agreement, such Individual Properties will
not be subject to any additional exceptions or liens other than those contained in the applicable Title Insurance Policy issued
on the Closing Date and the Permitted Encumbrances, provided that, unless Transferee Borrower so elects, no such endorsement shall
be required to extend the effective date of the applicable Title Insurance Policy unless such extension is required in the applicable
jurisdiction in order to satisfy the foregoing criteria;


 


(ix)         Transferee
Borrower shall have furnished to Lender, if required by Lender, (x) if the Loan is included in a REMIC Trust, a REMIC Opinion in
form and substance reasonably satisfactory to Lender, (y) an Additional Insolvency Opinion, in form and substance reasonably satisfactory
to Lender, and (z) one or more opinions of counsel reasonably satisfactory to Lender (A) that Transferee Borrower’s formation
documents comply with the single purpose and bankruptcy remote entity requirements set on forth Schedule V,
(B) that the assumption of the Loan has been duly authorized and that the Assumption Agreement and other loan documents required
to be delivered by Transferee Borrower and/or Replacement Guarantor pursuant to this Section 7.1(a) have been duly
authorized, executed and delivered and are valid, binding and enforceable against Transferee Borrower or Replacement Guarantor,
as applicable, in accordance with their terms, (C) that Transferee Borrower and Replacement Guarantor and any entity which is a
constituent and controlling stockholder, member or general partner of Transferee Borrower or Replacement Guarantor, as applicable,
have been duly organized, and are in existence and good standing, (D) as to such other matters as were required in connection with
the origination of the Loan (but instead with respect to the assumption transaction and documentation) and (E) such other opinions
as are reasonably required by Lender or required by any Rating Agency and which are customary in connection with the transfer and
assumption of similar loans;


 


(x)          Transferee
Borrower shall have delivered to Lender (A) Patriot Act, OFAC and bankruptcy searches satisfactory to Lender and (B) pending litigation,
judgment, state and federal tax lien and UCC searches reasonably satisfactory to Lender, with respect to (w) Transferee Borrower,
(x) each Replacement Guarantor, (y) any other Person that Controls Transferee Borrower or owns an equity interest in Transferee
Borrower which equals or exceeds ten percent (10%) that did not own an equity interest in Borrower which equals or exceeds ten
percent (10%) on the Closing Date, and (z) any other Person reasonably required by Lender in order for Lender to fulfill its regulatory
compliance guidelines (where such guidelines are of general applicability and are applied without prejudice); provided, however,
that (1) with respect to any bankruptcy search under clauses (x), (y) or (z) above, such search shall
be deemed satisfactory if it evidences that the Replacement Guarantor or other Person, as applicable, is not currently the subject
of any bankruptcy proceeding and has not been subject to any voluntary or involuntary bankruptcy proceeding in the past seven (7)
years (other than, in the case of an involuntary proceeding, as may have been dismissed) and (2) UCC searches shall be deemed to
be satisfactory so long as they do not evidence any security interest in any collateral for the Loan or any security interest in
any direct or indirect equity interest in Transferee Borrower;


 




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(xi)         Transferee
Borrower and the Persons that control Transferee Borrower must be able to satisfy all Special Purpose Bankruptcy Remote Entity
(provided that this requirement will only be applicable to Transferee Borrower and any Person, if any, that is a general partner
or managing member of Transferee), ERISA and embargoed persons representations, warranties and covenants in this Agreement, and
the Permitted Direct Assumption shall not result in Borrower or any ERISA Affiliate incurring any liability under Section 4201
of ERISA due to a complete or partial withdrawal, as such terms are defined in Part I of Subtitle E of Title IV of ERISA, from
any Employee Plan that is a “multiemployer plan,” as such term is defined in Section 4001(a)(3) of ERISA;


 


(xii)        Transferee
Borrower shall have paid Lender the Assumption Fee and all reasonable, out-of-pocket expenses incurred by Lender in connection
with the Permitted Direct Assumption (whether or not the same is consummated), including any Rating Agency fees (if applicable),
but excluding any servicing or special servicing fees (other than the Assumption Fee);


 


(xiii)       Lender
shall have received a replacement guaranty and environmental indemnity (in form and substance substantially the same as the Guaranty
and Environmental Indemnity, provided, however, that in the case of a Permitted Direct Assumption, such replacement guaranty shall
not include any recourse liability under Section 10.1(ix) or for breach of the representations and covenants set forth
in Schedule V hereof by the predecessor borrower or any affiliates of such predecessor borrower) by one or more
replacement guarantors and indemnitors (A) who in the aggregate, satisfy the Financial Covenants and at least one of which is a
Qualified Equityholder (provided that a replacement guarantor and indemnitor otherwise satisfying clause (v) of the definition
of Qualified Equityholder shall not be required to satisfy the requirements set forth in clause (A) of the proviso thereto)
and (B) each of whom satisfies the applicable search criteria described in clause (x) above and (C) each of whom owns
a direct or indirect interest in Transferee Borrower and at least one of whom Controls Transferee Borrower (collectively, the “Replacement
Guarantor”), where such Replacement Guarantor has undertaken at least the obligations as set forth in the Guaranty
and Environmental Indemnity arising only from acts, conditions and events occurring from and after the closing date of the Permitted
Direct Assumption;


 







    	 	-118-	 



     


    

  


(xiv)      the
Permitted Direct Assumption shall not violate or result in a breach of or default under any Franchise Agreement where such breach
or default, if not cured prior to the expiration of any applicable cure period, would make the agreement terminable at the option
of the franchisor thereunder, and all requisite consents to such conveyance shall have been obtained from the applicable parties
to such Franchise Agreements and Lender shall have received satisfactory evidence of the same; provided, however, that Borrower
may, on the closing date of the Permitted Direct Assumption, (A) replace any Franchise Agreement by a new Franchise Agreement in
accordance with Section 4.34 hereof and/or (B) replace any Franchise Agreement with a new Franchise Agreement with
the same Franchisor under, and in a form and on the terms, in each case, not materially different than the form and terms of, the
replaced Franchise Agreement if such new Franchise Agreement is required by such Franchisor in connection with the Permitted Direct
Assumption;


 


(xv)       Transferee
Borrower shall make any deposits into the Scheduled PIP Reserve Account as may be required under Section 4.34(e);


 


(xvi)      the
assumption documentation, legal opinions and organizational documents of Transferee Borrower and any other Person that is required
to be a Special Purpose Bankruptcy Remote Entity under this Agreement (but not the identity of Transferee Borrower or such other
Persons other than as required under clause (iii) above) will be subject to a Rating Agency Confirmation; and


 


(xvii)     such
conveyance is permitted under and consummated in compliance with the Mezzanine Loan Documents, and Transferee Borrower shall have
delivered evidence reasonably satisfactory to Lender of the same.


 


(b)          Notwithstanding
anything to the contrary contained in this Agreement or any of the other Loan Documents, from and after the earlier to occur of
(i) ten (10) Business Days after the Securitization of the entire Loan or (ii) ten (10) months after the Closing Date, a Transfer
of more than sixty-five percent (65%) of the direct or indirect equity interests in the Mezzanine Borrower to any entity that is
not a Pre-Approved Control Party or a change of Control in Borrower, in each case that is not otherwise permitted hereunder (such
entity, the “Indirect Transferee”), and the assumption by one or more Replacement Guarantors of all of
the obligations of Guarantor under the Loan Documents from and after the date of such Transfer in connection with such Transfer
(collectively, a “Permitted Indirect Assumption”) shall be permitted under this Agreement and the Loan
Documents, provided that either such transaction is a Permitted Transfer or otherwise the following conditions are satisfied (either
prior to, or contemporaneously with, the closing of such Permitted Indirect Assumption):


 


(i)          No
Event of Default shall be continuing as of the date of the closing of the Permitted Indirect Assumption;








 


(ii)         Borrower
shall have provided Lender with not less than thirty (30) days’ prior written notice of the Permitted Indirect Assumption,
and if Lender’s consent and a Rating Agency Confirmation is not required pursuant to clause (iii) below, such
notice shall include information establishing and Borrower and Indirect Transferee certifying that Indirect Transferee is (A) a
Qualified Transferee, (B) a Person who is Controlled by one or more Qualified Equityholders that either (x) satisfy the Control
Party Asset Threshold and the Experience Threshold or (y) are Pre-Approved Control Parties, and (C) a Person in whom no less than
thirty-five percent (35%) of the equity interests in the aggregate are directly or indirectly owned by one or more Qualified Equityholders;


 




    	 	-119-	 



     


    

  


(iii)        Prior
to a Securitization, Lender shall have provided its consent to the Permitted Indirect Assumption (not to be unreasonably withheld,
conditioned or delayed if the proposed Indirect Transferee satisfies the Control Party Asset Threshold and the Experience Threshold)
and, from and after a Securitization, Lender shall have received a Rating Agency Confirmation with respect to such Permitted Indirect
Assumption, provided that neither Lender’s consent nor a Rating Agency Confirmation shall be required so long as the Indirect
Transferee is (A) a Qualified Transferee, (B) a Person who is Controlled by one or more Qualified Equityholders described in clauses (i),
(ii), (iii) or (v) of the definition of Qualified Equityholder that either (x) prior to, and immediately after,
giving effect to the Permitted Indirect Assumption, satisfy the Control Party Asset Threshold and the Experience Threshold or (y)
are Pre-Approved Control Parties, and (C) a Person in whom no less than thirty-five percent (35%) of the equity interests in the
aggregate are directly or indirectly owned by one or more Qualified Equityholders. In the event that a proposed Indirect Transferee
does not meet the test described in the foregoing clause (B), and therefore, Lender’s reasonable consent or a
Rating Agency Confirmation are required under this clause (iii), then, for purposes of Lender’s decision whether
to grant or withhold its consent, the failure by the proposed Indirect Transferee to satisfy such test will not be considered presumptive
that such proposed Indirect Transferee is not qualified to own a direct or indirect equity interest in Borrower; provided, however,
that Lender may consider in deciding whether to consent to such proposed Indirect Transferee, among other things, the assets, net
worth and experience of such proposed Indirect Transferee, together with its constituent owners and controlling parties, and any
other matters that Lender reasonably deems relevant;


 


(iv)        Intentionally
omitted;


 


(v)         Indirect
Transferee shall have furnished to Lender customary documents reasonably satisfactory to Lender evidencing the organization, good
standing, qualification and authority of Indirect Transferee, Replacement Guarantor and the other parties executing the replacement
guaranty, the replacement environmental indemnity and/or the other documents and agreements required to be delivered pursuant to
the terms of this Section 7.1(b), which documents shall include certified copies of all documents relating to the organization,
formation and good standing of Indirect Transferee and Replacement Guarantor and of the entities, if any, which are constituent
and controlling shareholders, partners or members of Indirect Transferee or Replacement Guarantor, as applicable;


 


(vi)        where
Borrower has elected to exercise the right to replace one or more Managers pursuant to Section 4.14.2(b) in connection
with the Permitted Indirect Assumption, Borrower shall have provided one or more new management agreements with one or more new
Managers with respect to the Individual Properties managed by such replaced Manager(s) in accordance with the requirements of Section 4.14.2(b)
hereof and shall have collaterally assigned to Lender as additional security and subordinated to the Lien of the Mortgages each
such new management agreement pursuant to an Assignment of Management Agreement in form and substance substantially similar to
the Assignment of Management Agreement delivered on the Closing Date or otherwise reasonably satisfactory to Lender; and, in any
event, the Individual Properties shall be managed by one or more Qualified Managers;


 




    	 	-120-	 



     


    

 


(vii)       Borrower
shall have furnished to Lender, (y) an Additional Insolvency Opinion, in form and substance reasonably satisfactory to Lender,
and (z) one or more opinions of counsel reasonably satisfactory to Lender (A) that the loan documents, if any, required to be delivered
by Borrower, Indirect Transferee and/or Replacement Guarantor pursuant to this Section 7.1(b) have been duly authorized,
executed and delivered and are valid, binding and enforceable against Borrower, Indirect Transferee (if applicable) or Replacement
Guarantor, as applicable, in accordance with their terms, (B) that Indirect Transferee and Replacement Guarantor and any entity
which is a constituent and controlling stockholder, member or general partner of Indirect Transferee or Replacement Guarantor,
as applicable, have been duly organized, and are in existence and good standing, (C) as to such other matters as were required
in connection with the origination of the Loan with respect to Guarantor and the direct owner of the Mezzanine Borrower and (D)
such other opinions as are reasonably required by Lender or required by any Rating Agency and which are customary in connection
with the equity transfers of borrowers under similar loans;


 


(viii)      Borrower
shall have delivered to Lender (A) Patriot Act, OFAC and bankruptcy searches satisfactory to Lender and (B) pending litigation,
judgment, state and federal tax lien and UCC searches reasonably satisfactory to Lender, with respect to (w) Indirect Transferee,
(x) each Replacement Guarantor, (y) any other Person that Controls Borrower or owns an equity interest in Borrower which equals
or exceeds ten percent (10%) that did not own an equity interest in Borrower which equals or exceeds ten percent (10%) on the Closing
Date, and (z) any other Person reasonably required by Lender in order for Lender to fulfill its regulatory compliance guidelines
(where such guidelines are of general applicability and are applied without prejudice); provided, however, that (1) with respect
to any bankruptcy search under clauses (x), (y) or (z) above, such search shall be deemed satisfactory
if it evidences that the Replacement Guarantor or other Person, as applicable, is not currently the subject of any bankruptcy proceeding
and has not been subject to any voluntary or involuntary bankruptcy proceeding in the past seven (7) years (other than, in the
case of an involuntary proceeding, as may have been dismissed) and (2) UCC searches shall be deemed to be satisfactory so long
as they do not evidence any security interest in any collateral for the Loan or any security interest in any direct or indirect
equity interest in Borrower;


 


(ix)         Borrower
must continue to satisfy all Special Purpose Bankruptcy Remote Entity representations, warranties and covenants in this Agreement,
and Indirect Transferee and the Persons that control Indirect Transferee must be able to satisfy all ERISA and embargoed persons
representations, warranties and covenants in this Agreement, and the Permitted Indirect Assumption shall not result in Borrower
or any ERISA Affiliate incurring any liability under Section 4201 of ERISA due to a complete or partial withdrawal, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA, from any Employee Plan that is a “multiemployer plan,”
as such term is defined in Section 4001(a)(3) of ERISA;


 




    	 	-121-	 



     


    

 


(x)          Borrower
shall have paid Lender the Assumption Fee and all reasonable, out-of-pocket expenses incurred by Lender in connection with the
Permitted Indirect Assumption (whether or not the same is consummated), including any Rating Agency fees (if applicable), but excluding
any servicing or special servicing fees (other than the foregoing Assumption Fee);


 


(xi)         Lender
shall have received a replacement guaranty and environmental indemnity (in form and substance substantially the same as the Guaranty
and Environmental Indemnity) by one or more Replacement Guarantor(s) (A) who in the aggregate, satisfy the Financial Covenants
and at least one of which is a Qualified Equityholder (provided that a replacement guarantor and indemnitor otherwise satisfying
clause (v) of the definition of Qualified Equityholder shall not be required to satisfy the requirements set forth in clause
(A) of the proviso thereto), (B) each of whom satisfies the applicable search criteria described in clause (viii)
above and (C) each of whom owns a direct or indirect interest in Borrower and at least one of whom Controls Borrower, where such
Replacement Guarantor has undertaken at least the obligations as set forth in the Guaranty and Environmental Indemnity arising
only from acts, conditions and events occurring from and after the closing date of the Permitted Indirect Assumption; and


 


(xii)        the
Permitted Indirect Assumption shall not violate or result in a breach of or default under any Franchise Agreement where such breach
or default, if not cured prior to the expiration of any applicable cure period, would make the agreement terminable at the option
of the franchisor thereunder, and all requisite consents to such conveyance shall have been obtained from the applicable parties
to such Franchise Agreements and Lender shall have received satisfactory evidence of the same; provided, however, that Borrower
may, on the closing date of the Permitted Indirect Assumption, (A) replace any Franchise Agreement by a new Franchise Agreement
in accordance with Section 4.34 hereof and/or (B) replace any Franchise Agreement with a new Franchise Agreement with
the same Franchisor under, and in a form and on the terms, in each case, not materially different than the form and terms of, the
replaced Franchise Agreement if such new Franchise Agreement is required by such Franchisor in connection with the Permitted Indirect
Assumption;


 


(xiii)       Borrower
shall make any deposits into the Scheduled PIP Reserve Account as may be required under Section 4.34(e); and


 


(xiv)      such
Transfer is permitted under and consummated in compliance with the Mezzanine Loan Documents, and Borrower shall have delivered
evidence reasonably satisfactory to Lender of the same.


 


(c)          Upon
the closing of any Permitted Direct Assumption and satisfaction of the requirements set forth above in Section 7.1(a),
Borrower shall be forever released from any further liability under this Agreement and the other Loan Documents for acts or circumstances
that first arise from and after the date of the closing of the Permitted Direct Assumption, other than those arising out of the
acts of Borrower or its Affiliates.


 


(d)          Upon
the provision of a replacement Guaranty and Environmental Indemnity by a Replacement Guarantor and closing of any Assumption permitted
by this Section 7.1, Guarantor shall be forever released from any further liability under the Guaranty and Environmental
Indemnity on the terms set forth in the Guaranty and Environmental Indemnity, respectively.


 




    	 	-122-	 



     


    

  


(e)          If
following an Assumption permitted by this Section 7.1, all or any portion of the equity interests in Borrower or Transferee
Borrower, as applicable, will be owned, directly or indirectly, by a real estate investment trust (within the meaning of Section 856(a)
of the Code), then concurrently with such Assumption, Borrower or Transferee Borrower, as applicable, shall have the right to enter
into one or more subordinate or replacement operating leases of the Properties that will produce “rents from real property”
for purposes of Section 856(d) of the Code and/or “real property rents” for purposes of Section 7704 of the
Code with one or more newly-formed Special Purpose Bankruptcy Remote Entity(ies) (with appropriate changes to Schedule V
with respect to such entity to account for each such entity’s form of organization, assets, purpose and business, provided
that each such entity shall be a Delaware limited partnership, a Delaware limited liability company or a Delaware corporation)
that will be under common ownership and Control with Borrower and will elect to be treated as a “taxable REIT subsidiary”
under Section 856(l) of the Code (a “TRS Lessee”). In connection with Borrower or Transferee Borrower,
as applicable, entering into such subordinate or replacement operating lease(s) of the Properties with a TRS Lessee, Borrower or
Transferee Borrower, as applicable, may elect notwithstanding any provisions of the Loan Documents to the contrary, to transfer
any applicable Franchise Agreement(s), Management Agreement(s) and other contracts, agreements, licenses, permits, instruments
or other assets or obligations of the Borrower, as appropriate, to the TRS Lessee (without creating a breach or default thereunder),
or, to the extent such agreements are not transferrable, to cause the TRS Lessee to enter into replacement Franchise Agreements(s)
and/or Management Agreement(s) (with the same third-parties under, and in a form and on the terms, in each case, not materially
different than the form and terms of, the replaced agreements, except to the extent expressly permitted hereunder), or other agreements
(subject to the other terms of this Agreement). Borrower’s or Transferee Borrower’s, as applicable, exercise of the
rights set forth in this paragraph (e) shall be subject to and conditioned upon (i) delivery to Lender of (A) an unconditional
subordination of each operating lease executed by Borrower or Transferee Borrower, as applicable, and TRS Lessee, (B) a joinder
executed by TRS Lessee with respect to the Loan Documents (other than the Note and the Guaranty), (C) documents, instruments and
certificates with respect to TRS Lessee of the same type (with appropriate changes to account for such entity’s form of organization,
assets, purpose and business, provided that each such entity shall be a Delaware limited partnership, a Delaware limited liability
company or a Delaware corporation) as are required to be delivered to Lender with respect to a Transferee Borrower pursuant to
Section 7.1(a) above and (D) such additional documents, instruments and certificates customary for a similar transaction
involving a “taxable subsidiary” both as Lender may reasonably request and in form and substance reasonably satisfactory
to Lender and subject to a Rating Agency Confirmation, and (ii) payment to Lender of its reasonable out-of-pocket costs and expenses
incurred in connection with the foregoing. The parties to each operating lease shall have the right, from time to time, to amend
the percentage rent due thereunder.


 


(f)          In
connection with any Assumption permitted by this Section 7.1, upon Borrower’s written request, Lender shall provide
a statement running to the benefit of the Transferee Borrower or the Indirect Transferee, as applicable, and their successors and
assigns, duly acknowledged and certified, setting forth (i) the Outstanding Principal Balance, (ii) the nondefault interest rate,
(iii) any amounts due or owing and unpaid under the Loan Documents, (iv) each date installments of interest and/or principal or
any other amounts accruing under the Loan Documents were last paid, as well as a list of any installments of interest or other
amounts accruing under the Loan Documents paid with respect to any period in which the date of the Assumption falls, (v) any offsets
or defenses to the payment and performance of the Obligations, if any, actually known to Lender and (vi) that this Agreement and
the other Loan Documents have not been modified or if modified, giving particulars of such modification. Except with respect to
Lender’s statements relating to clauses (i), (ii) and (iv) above, which statements may be relied
upon by Transferee Borrower or the Indirect Transferee, as applicable, and their successors and assigns, compliance by Lender with
the requirements of this paragraph shall be for informational purposes only and shall not be deemed to be an estoppel by Lender
or a waiver of any rights or remedies of Lender hereunder or under any other Loan Document.


 




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Section 7.2         Permitted
Transfers. Notwithstanding anything to the contrary contained in Section 4.2 or elsewhere in this Agreement
or any of the other Loan Documents, the following Transfers (herein, the “Permitted Transfers”) shall
be permitted hereunder without Lender’s consent and without a Rating Agency Confirmation (provided that, for the avoidance
of doubt, and notwithstanding anything to the contrary contained herein, except in connection with the origination of the Mezzanine
Loan and the foreclosure of any Mezzanine Loan, the direct Transfer of an equity interests in any Person that constitutes collateral
for a Mezzanine Loan shall not be a Permitted Transfer):


 


(a)          a
Lease entered into in accordance with the Loan Documents;


 


(b)         an
Assumption in accordance with Section 7.1;


 


(c)          a
Permitted Encumbrance;


 


(d)         any
listing of equity interests in any Guarantor or Qualified Equityholder on the New York Stock Exchange, the Toronto Stock Exchange,
NASDAQ Global Select Market or any other nationally recognized stock exchange or market, and any sale, conveyance, mortgage, grant,
bargain, encumbrance, pledge, assignment or transfer of publicly traded shares or other publicly traded interests in any Guarantor
or any indirect equity owner of any Guarantor;


 


(e)          a
Transfer (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest, except as permitted under clause (g))
or issuance of a direct or indirect interest in any Qualified Equityholder provided that:


 


(i)           after
giving effect to such Transfer, one or more Pre-Approved Control Parties (and, after a Permitted Direct Assumption or Permitted
Indirect Assumption, one or more Qualified Equityholders that acquired their interest in Borrower through such Permitted Direct
Assumption or Permitted Indirect Assumption) shall continue to own at least thirty-five percent (35%) of all equity interests (direct
or indirect) of Borrower and Operating Lessee and Control Borrower and Operating Lessee;


 


(ii)          if
such Transfer would cause any Person (other than any Pre-Approved Control Party), together with its Affiliates, to Control Borrower
that did not Control Borrower prior to such Transfer or to increase its direct or indirect interest in Borrower or Operating Lessee
to an amount which equals or exceeds ten percent (10%) that did not own, together with its Affiliates, an equity interest in Borrower
which equals or exceeds ten percent (10%) prior to such Transfer, then such transferee is a Qualified Transferee and Lender shall
receive not less than fifteen (15) days advance written notice of such Transfer;


 




    	 	-124-	 



     


    

 


(iii)         such
Transfer is not prohibited by and would not permit the Franchisor to terminate any Franchise Agreement and will not result in or
cause any breach or default under any Franchise Agreement to the extent such violation, breach or default (with or without the
passage of time) would result in an Event of Default (in each case unless the approval of such Franchisor has been obtained), and
any approvals required under any Franchise Agreement to the Transfer have been obtained;


 


(iv)         if
such Transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in Borrower or Operating
Lessee and such Person did not together with its Affiliates own more than 49% of the direct or indirect equity interest in Borrower
or Operating Lessee prior to such Transfer, Borrower shall have delivered to Lender with respect to such Person an Additional Insolvency
Opinion in form and substance reasonably satisfactory to Lender which Additional Insolvency Opinion satisfies all then applicable
Rating Agency criteria; and


 


(v)          Borrower
shall reimburse Lender for any and all reasonable out of pocket legal expenses incurred by it in connection with such Transfer;


 


(f)           provided
that no Event of Default shall then exist, a Transfer (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security
interest, except as permitted under clause (g) below) of Control of Borrower or Operating Lessee or of a direct or
indirect interest in the Mezzanine Borrower provided that:


 


(i)           after
giving effect to such Transfer, one or more Qualified Equityholders shall collectively own at least thirty-five percent (35%) of
all equity interests (direct or indirect) of Borrower and Operating Lessee;


 


(ii)          after
giving effect to such Transfer, one or more Pre-Approved Control Parties shall collectively Control Borrower and Operating Lessee;


 


(iii)         each
of Borrower and Operating Lessee shall continue to be a Special Purpose Bankruptcy Remote Entity;


 


(iv)         if
such Transfer would cause the transferee (other than any Pre-Approved Control Party), together with its Affiliates, to Control
Borrower that did not Control Borrower prior to such Transfer or to increase its direct or indirect interest in Borrower or Operating
Lessee to an amount which equals or exceeds ten percent (10%) that did not own, together with its Affiliates, an equity interest
in Borrower which equals or exceeds ten percent (10%) prior to such Transfer, then such transferee is a Qualified Transferee and
Lender shall receive not less than thirty (30) days advance written notice of such Transfer;


 




    	 	-125-	 



     


    

 


(v)         such
Transfer is not prohibited by and would not permit the Franchisor to terminate any Franchise Agreement and will not result in or
cause any breach or default under any Franchise Agreement to the extent such violation, breach or default (with or without the
passage of time) would result in an Event of Default (in each case unless the approval of such Franchisor has been obtained), and
any approvals required under any Franchise Agreement to the Transfer have been obtained;


 


(vi)        intentionally
omitted;


 


(vii)       if
such Transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in Borrower or Operating
Lessee and such Person did not together with its Affiliates own more than 49% of the direct or indirect equity interest in Borrower
or Operating Lessee prior to such Transfer, Borrower shall have delivered to Lender with respect to such Person an Additional Insolvency
Opinion in form and substance reasonably satisfactory to Lender which Additional Insolvency Opinion satisfies all then applicable
Rating Agency criteria; and


 


(viii)      Borrower
shall reimburse Lender for any and all reasonable out of pocket legal expenses incurred by it in connection with such Transfer;


 


(g)         (i)
any pledge of an indirect equity interest in the Mezzanine Borrower by a Multi-Asset Person to secure an upper tier corporate or
similar loan facility that is secured by all or a substantial portion of such Multi-Asset Person’s assets; and (ii) any pledge
of a direct or indirect equity interest in a Multi-Asset Person;


 


(h)         provided
no Event of Default shall then exist (unless the Substitute Guarantor arises in connection with a Permitted Transfer among Pre-Approved
Control Parties (or their respective wholly-owned subsidiaries) pursuant to Section 7.2(i)), a Guarantor or a Replacement
Guarantor may be replaced by a Person (the “Substitute Guarantor”), whereupon such Substitute Guarantor
shall be a Replacement Guarantor hereunder, provided that:


 


(i)          there
shall be no change of Control of Borrower or Operating Lessee as a result of such replacement (unless such Change in Control is
otherwise a Permitted Transfer);


 


(ii)         such
Substitute Guarantor already has an indirect equity interest in the Mezzanine Borrower, or acquires an indirect equity interest
in the Mezzanine Borrower pursuant to a Permitted Transfer;


 


(iii)        such
Substitute Guarantor is a Qualified Transferee approved by Lender in its sole discretion or a Pre-Approved Control Party;


 


(iv)        such
Substitute Guarantor, together with the remaining Guarantors after such Transfer, satisfy the Financial Covenants as demonstrated
to Lender’s reasonable satisfaction (with such supporting evidence as Lender may reasonable require), and the Guarantors
(and Pre-Approved Control Parties or the related Qualified Equityholder with respect to an Assumption (or Qualified Equityholders,
if there is more than one acquiring Qualified Equityholder at the time of such Assumption)) continue to own at least thirty-five
(35%) percent, and Control Borrower or Operating Lessee;


 




    	 	-126-	 



     


    

 


(v)         such
Substitute Guarantor executes and delivers to Lender a replacement guaranty and environmental indemnity (in form and substance
substantially the same as the Guaranty and Environmental Indemnity, and additionally including the joinder, agreement and reaffirmation
of the Substitute Guarantor and remaining Guarantors of the joint and several liability of the Substitute Guarantor and the remaining
Guarantors thereunder and under the Guaranty and Environmental Indemnity to which they are party), where such Substitute Guarantor
has undertaken at least the obligations as set forth in the Guaranty and Environmental Indemnity arising only from acts, conditions
and events occurring from and after the date of the replacement;


 


(vi)        Lender
shall have received one or more opinions of counsel to the Substitute Guarantor and remaining Guarantors in form and substance
reasonably satisfactory to Lender (A) that the replacement guaranty and environmental indemnity have been duly authorized, executed
and delivered and are valid, binding and enforceable against each such Substitute Guarantor and remaining Guarantors, in accordance
with their terms, and (B) that such Substitute Guarantor and each remaining Guarantor and any entity which is a constituent and
controlling stockholder, member or general partner of such Substitute Guarantor and each remaining Guarantor, as applicable, have
been duly organized, and are in existence and good standing;


 


(vii)       Lender
shall have received an Additional Insolvency Opinion with respect to such Transfer (if one has occurred), replacement and replacement
guaranty and environmental indemnity, in form and substance reasonably satisfactory to Lender and shall satisfy all then applicable
Rating Agency criteria; and


 


(viii)      Borrower
shall reimburse Lender for any and all reasonable out of pocket legal expenses incurred by it in connection with such Transfer
(if one has occurred) and such replacement, including any Rating Agency fees;


 


Upon the execution and
delivery of a replacement guaranty and environmental indemnity by a Substitute Guarantor permitted by this Section 7.2(h),
the Guarantor(s) who have been replaced by the Substitute Guarantor shall be forever released from any further liability under
the Guaranty and Environmental Indemnity arising from any circumstance, condition, action or event first occurring after the effective
date of such replacement to the extent the same is not caused by such replaced Guarantor(s); provided, however, that such replaced
Guarantor(s) shall remain liable under the Guaranty and Environmental Indemnity for any obligations thereunder arising from any
action or event occurring prior to the effective date of such replacement and for any actions of such replaced Guarantor.


 


(i)          any
Transfer of direct or indirect equity interests in, and/or Control of, Borrower and/or Operating Lessee among the Pre-Approved
Control Parties (including any Transfer through one or more of their respective wholly-owned and Controlled subsidiaries) provided
that:


 


(i)          after
giving effect to such Transfer, one or more Pre-Approved Control Parties shall collectively Control Borrower and Operating Lessee;


 


(ii)         each
of Borrower and Operating Lessee shall continue to be a Special Purpose Bankruptcy Remote Entity;


 






    	 	-127-	 



     


    

  


(iii)        intentionally
omitted;


 


(iv)        such
Transfer is not prohibited by and would not permit the Franchisor to terminate any Franchise Agreement and will not result in or
cause any breach or default under any Franchise Agreement to the extent such violation, breach or default (with or without the
passage of time) would result in an Event of Default (in each case unless the approval of such Franchisor has been obtained), and
any approvals required under any Franchise Agreement to the Transfer have been obtained;


 


(v)         if
such Transfer results in any Person acquiring more than 49% of the direct or indirect equity interest in Borrower or Operating
Lessee and such Person did not own more than 49% of the direct or indirect equity interest in Borrower or Operating Lessee on the
Closing Date, Borrower shall have delivered to Lender with respect to such Person an Additional Insolvency Opinion in form and
substance reasonably satisfactory to Lender which Additional Insolvency Opinion satisfies all then applicable Rating Agency criteria;


 


(vi)        Guarantor
(or Substitute Guarantor) shall continue to have an indirect equity interest in the Mezzanine Borrower;


 


(vii)       The
Guarantors (and/or one or more Substitute Guarantors) after such Transfer, shall continue to satisfy the Financial Covenants as
demonstrated to Lender’s reasonable satisfaction (with such supporting evidence as Lender may reasonably require), and the
Pre-Approved Control Parties (which for purposes of this clause (vii) shall include Qualified Equityholders that acquired
their interest in Borrower as a result of a Permitted Direct Assumption or a Permitted Indirect Assumption) continue to own at
least thirty-five (35%) percent, and Control Borrower and Operating Lessee; and


 


(viii)      Borrower
shall reimburse Lender for any and all reasonable out of pocket legal expenses incurred by it in connection with such Transfer;


 


(j)          following
an Assumption resulting in two or more Qualified Equityholders, in the aggregate, indirectly owning thirty-five percent (35%) or
more of and Controlling Borrower and Operating Lessee (each, an “Existing Qualified Equityholder”), a
Transfer (but not a mortgage, pledge, hypothecation, encumbrance or grant of a security interest) of a direct or indirect interest
in the Mezzanine Borrower from one Existing Qualified Equityholder to another Existing Qualified Equityholder (the “QEH
Transferee”) that results in the QEH Transferee owning indirectly thirty-five percent (35%) or more of Borrower and
Operating Lessee, and/or results in a change of Control of Borrower and Operating Lessee, shall be permitted without Lender’s
consent provided that:


 


(i)          Intentionally
omitted;


 


(ii)         such
Transfer is not prohibited by and would not permit the Franchisor to terminate any Franchise Agreement and will not result in or
cause any breach or default under any Franchise Agreement to the extent such violation, breach or default (with or without the
passage of time) would result in an Event of Default (in each case unless the approval of such Franchisor has been obtained), and
that any approvals required under any Franchise Agreement to the Transfer have been obtained;


 




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(iii)        If
such Transfer results in no Guarantor Controlling Borrower and Operating Lessee or Guarantors not owning, directly or indirectly,
in the aggregate, at least thirty-five percent (35%) of the equity interests in Borrower and Operating Lessee, then Lender shall
have received not less than fifteen (15) days’ notice of such Transfer and a replacement guaranty and environmental indemnity
(in form and substance substantially the same as the Guaranty and Environmental Indemnity) by one or more replacement guarantors
and indemnitors (A) who in the aggregate, satisfy the Financial Covenants and (B) each of whom satisfies the applicable search
criteria described in clause (iv) below and (C) each of whom owns a direct or indirect interest in Transferee Borrower
and at least one of whom Controls Transferee Borrower (collectively, the “QEH Replacement Guarantor”),
where such QEH Replacement Guarantor has undertaken at least the obligations as set forth in the Guaranty and Environmental Indemnity
arising only from acts, conditions and events occurring from and after the closing date of the Transfer;


 


(iv)        Lender
shall have received (A) Patriot Act, OFAC and bankruptcy searches satisfactory to Lender and (B) pending litigation, judgment,
state and federal tax lien and UCC searches reasonably satisfactory to Lender, with respect to each QEH Replacement Guarantor;
provided, however, that (1) with respect to any bankruptcy search, such search shall be deemed satisfactory if it evidences that
the QEH Replacement Guarantor, if any, is not currently the subject of any bankruptcy proceeding and has not been subject to any
voluntary or involuntary bankruptcy proceeding in the past seven (7) years (other than, in the case of an involuntary proceeding,
as may have been dismissed) and (2) UCC searches shall be deemed to be satisfactory so long as they do not evidence any security
interest in any collateral for the Loan or any security interest in any direct or indirect equity interest in Borrower;


 


(v)         If
a QEH Replacement Guarantor is required under paragraph (iii) above, Lender shall have received an opinion of counsel
in form and substance reasonably satisfactory to Lender (A) that the replacement guaranty and environmental indemnity have been
duly authorized, executed and delivered and are valid, binding and enforceable against QEH Replacement Guarantor, in accordance
with their terms, and (B) that QEH Replacement Guarantor and any entity which is a constituent and controlling stockholder, member
or general partner of QEH Replacement Guarantor, as applicable, have been duly organized, and are in existence and good standing;


 


(vi)        If
such Transfer results in any Person acquiring more than 49% of the direct or indirect equity interests in Borrower or Operating
Lessee and such Person did not own more than 49% of the direct or indirect equity interests in Borrower or Operating Lessee prior
to such Transfer, Lender shall have received an Additional Insolvency Opinion with respect to the Transfer, in form and substance
reasonably satisfactory to Lender which Additional Insolvency Opinion satisfies all then applicable Rating Agency criteria;


 




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(vii)       Borrower
shall reimburse Lender for any and all reasonable out of pocket legal expenses incurred by it in connection with such Transfer
including any Rating Agency fees; and


 


Upon the execution and
delivery of a replacement guaranty and environmental indemnity by a QEH Replacement Guarantor required by this Section 7.2(j),
the Guarantor(s) who have been replaced by the QEH Replacement Guarantor shall be forever released from any further liability under
the Guaranty and Environmental Indemnity arising from any circumstance, condition, action or event first occurring after the closing
date of the Transfer to the extent the same is not caused by such replaced Guarantor(s); provided, however, that such replaced
Guarantor(s) shall remain liable under the Guaranty and Environmental Indemnity for any obligations thereunder arising from any
action or event occurring prior to the closing date of the Transfer.


 


Section 7.3          Cost
and Expenses; Copies.


 


(a)          Borrower
shall pay all reasonable costs and expenses of Lender in connection with any Transfer, including, without limitation, all reasonable
fees and expenses of Lender’s counsel, whether internal or outside, and the reasonable cost of any required counsel opinions
related to REMIC (if the Loan is included in a REMIC Trust) or other securitization (if the Loan is otherwise included in a Securitization)
or tax issues and any Rating Agency fees (in the case of any Transfer requiring Rating Agency Confirmation).


 


(b)          Borrower
shall provide Lender with copies of all organizational documents relating to any Permitted Transfer to the extent expressly required
hereunder.


 


ARTICLE
8



DEFAULTS


 


Section 8.1        Events
of Default. Each of the following events shall constitute an event of default hereunder (an “Event of Default”):


 


(i)          if
(A) the Obligations are not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest, and, if
applicable, principal due under the Note is not paid in full within two (2) calendar days following the applicable Monthly Payment
Date, (C) any prepayment of principal due under this Agreement or the Note is not paid when due, (D) the Spread Maintenance Premium
is not paid when due or (E) any deposit to the Reserve Funds is not made within three (3) calendar days following the required
deposit date therefor (provided that it shall not be an Event of Default under clause (B) or (E) if as of the
applicable due date for the payment of such amounts there are sufficient funds remaining in the Deposit Account (other than funds
previously allocated to the various Accounts) to pay such amounts when due and Lender’s access to such funds has not been
inhibited in any manner whatsoever due to circumstances or events which are directly related to Borrower or Operating Lessee and
no other monetary Event of Default is then continuing);


 




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(ii)         if
any other amount payable pursuant to this Agreement, the Note or any other Loan Document (other than as set forth in the foregoing
clause (i)) is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document,
with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower (provided that
it shall not be an Event of Default under this clause (ii) if as of the applicable due date for the payment of such
amounts there are sufficient funds remaining in the Deposit Account (other than funds previously allocated to the various Accounts),
after the application of such funds pursuant to Sections 6.11.1(a)(i), (ii), (iii) and (iv) hereof, to pay such
amounts when due and Lender’s access to such funds has not been inhibited in any manner whatsoever due to circumstances or
events which are directly related to Borrower or Operating Lessee and no other monetary Event of Default is then continuing);


 


(iii)        subject
to Borrower’s right to contest as set forth in Section 4.6, if any of the Taxes or Other Charges are not paid
when Due and Payable (provided that it shall not be an Event of Default if there are sufficient funds in the Tax Account to pay
such amounts when due, no other monetary Event of Default is then continuing and Servicer fails to make such payment in violation
of this Agreement) and such default is not remedied within ten (10) Business Days;


 


(iv)        if
Borrower fails to maintain in full force and effect Policies reflecting and satisfying the insurance coverages, amounts and other
requirements set forth in this Agreement, of if certificates evidencing the insurance provided pursuant to the Policies are not
delivered to Lender within five (5) days of Lender’s written request (provided that it shall not be an Event of Default if
(x) such failure results from the failure to timely pay any premium and there are then sufficient funds in the Insurance Account
to pay such premiums when due, no other monetary Event of Default is then continuing and (y) Servicer fails to make such payment
in violation of this Agreement);


 


(v)         a
voluntary Transfer other than a Permitted Transfer occurs, or any other Transfer which is not a Permitted Transfer, and to which
no other clause of this Section 8.1(a) applies, occurs and is not cured within thirty (30) days following Borrower’s
receipt of written notice of such impermissible Transfer from Lender;


 


(vi)        if
any certification, representation or warranty made by any Individual Borrower, Operating Lessee or any Guarantor herein or in any
other Loan Document, or in any report, certificate, financial statement or other instrument, agreement or document furnished to
Lender shall have been false or misleading in any material respect as of the date such representation or warranty was made; provided,
however, that as to any such false or misleading representation or warranty which (a) was unintentionally made to Lender and (b)
which can be made true and correct by action of Borrower or Operating Lessee, Borrower and Operating Lessee shall have a period
of thirty (30) days following written notice thereof to Borrower to undertake and complete all action necessary to make such representation
or warranty, true and correct in all material respects; provided, further, that if the same cannot be cured within such thirty
(30) day period, if Borrower or Operating Lessee commences to take action to cure such breach within such thirty (30) day period
and thereafter diligently and expeditiously proceeds to cure the same, Borrower shall have such additional time as is reasonably
necessary to effect such cure, but in no event in excess of an additional ninety (90) days;


 




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(vii)       if
any Individual Borrower, Operating Lessee, or any Guarantor shall make an assignment for the benefit of creditors;


 


(viii)      if
a receiver, liquidator or trustee shall be appointed for any Individual Borrower, Operating Lessee, or any Guarantor, or if any
Individual Borrower, Operating Lessee, or any Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against,
consented to, or acquiesced in by, any Individual Borrower, Operating Lessee, or any Guarantor or if any proceeding for the dissolution
or liquidation of any Individual Borrower, Operating Lessee, or any Guarantor, shall be instituted, or if Borrower or Operating
Lessee is substantively consolidated with any other Person; provided, however, if such appointment, adjudication, petition, proceeding
or consolidation was involuntary and not consented to by any Individual Borrower, Operating Lessee, or any Guarantor, upon the
same not being discharged, stayed or dismissed within ninety (90) days following its filing;


 


(ix)         if
any Individual Borrower or Operating Lessee attempts to assign its rights under this Agreement or any of the other Loan Documents
or any interest herein or therein in contravention of the Loan Documents;


 


(x)          if
any of the assumptions contained in the Insolvency Opinion, or in any other non-consolidation opinion delivered to Lender in connection
with the Loan, or in any other non-consolidation opinion delivered subsequent to the closing of the Loan, is or shall become untrue
in any material respect, subject to the cure periods set forth in clause (xi);


 


(xi)         a
breach of the covenants set forth in Sections 4.4; provided, however, such violation or breach shall not constitute
an Event of Default in the event that (1) such violation or breach is not intentional, (2) such violation or breach is immaterial,
(3) such violation or breach shall be remedied in a timely and expedient manner and in any event within not more than 60 days,
and (4) within fifteen (15) Business Days following the request of Lender, but not prior to the date on which such violation or
breach shall have been remedied in accordance with the immediately foregoing clause (3), Borrower delivers to Lender
a substantive non-consolidation opinion, or a modification of the Insolvency Opinion, to the effect that such breach or violation
shall not in any way impair, negate or adversely change the opinions rendered in the Insolvency Opinion, which opinion or modification
and any counsel delivering such opinion or modification shall be acceptable to Lender in its reasonable discretion;


 


(xii)        intentionally
omitted;


 


(xiii)      a
breach of the covenants set forth in Sections 4.31 or 4.23 hereof;


 


(xiv)      subject
to Borrower’s right to contest set forth in Section 4.3 of this Agreement, if any Individual Property becomes
subject to any mechanic’s, materialman’s or other Lien except a Permitted Encumbrance that is not bonded over or otherwise
removed or paid within ten (10) Business Days following notice of such breach;


 




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(xv)       the
alteration, improvement, demolition or removal of any material portion of the Improvements without the prior written consent of
Lender, other than in accordance with this Agreement and the Leases at the Individual Properties entered into in accordance with
the Loan Documents;


 


(xvi)      if,
without Lender’s prior written consent, other than in accordance with Section 4.14, (i) any Management Agreement
is terminated, or (ii) there is a material change in any Management Agreement;


 


(xvii)     a
breach of any representation, warranty or covenant contained Section 3.1.18 hereof that is not remedied within the
thirty (30) days following notice of such breach;


 


(xviii)    if
any Individual Borrower or Operating Lessee breaches any covenant contained in Section 4.9 hereof and such breach continues
for ten (10) Business Days following Lender’s delivery of notice of such breach;


 


(xix)       intentionally
omitted;


 


(xx)        if
without Lender’s prior consent, there is any material change in any Franchise Agreement (or any replacement Franchise Agreement),
or a Franchise Agreement shall be terminated or cancelled, unless Borrower or Operating Lessee shall have replaced such Franchise
Agreement in accordance with the terms of Section 4.34 within ninety (90) days;


 


(xxi)       if
a default has occurred and continues beyond any applicable cure period under any Franchise Agreement if such default permits the
applicable Franchisor to terminate or cancel such Franchise Agreement, unless Borrower or Operating Lessee shall have replaced
such Franchise Agreement in accordance with the terms of Section 4.34 within ninety (90) days after such default;


 


(xxii)      if
there shall be a default under any of the other Loan Documents beyond any applicable cure periods contained therein, whether as
to any Individual Borrower, Operating Lessee, any Guarantor, or any Individual Property, or if any other such event shall occur
or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Obligations
or to permit Lender to accelerate the maturity of all or any portion of the Obligations;


 


(xxiii)     if
any Individual Borrower or Operating Lessee shall fail to comply with any of the terms, covenants or conditions of Section 9.3
hereof and such failure shall continue for ten (10) Business Days after notice thereof from Lender to Borrower.


 


(xxiv)    if
Borrower fails to obtain or maintain an Interest Rate Cap Agreement or replacement thereof in accordance with Section 2.6
and/or Section 2.7 hereof; provided that with respect to a failure under Section 2.6 only, no Event of
Default shall occur under this clause (xxiv) unless such failures continues for five (5) Business Days after Lender
delivers notice to Borrower thereof (it being agreed that such cure period shall not apply with respect to Borrower’s delivery
of a Replacement Interest Rate Cap Agreement in connection with its exercise of an Extension Option under Section 2.7);


 




    	 	-133-	 



     


    

  


(xxv)     if
Guarantors breach the Financial Covenants, if any, under the Guaranty and a Substitute Guarantor that satisfies the Financial Covenants,
does not assume the obligations of Guarantors under the Guaranty and the Environmental Indemnity; or


 


(xxvi)    if
any Individual Borrower or Operating Lessee shall continue to be in Default under any of the other terms, covenants or conditions
of this Agreement or any other Loan Document not specified in subsections (i) to (xxv) above, for thirty (30)
days after notice to Borrower from Lender; provided, however, that if such Default is a Default which cannot be cured by the payment
of a sum of money and is otherwise susceptible of cure but cannot reasonably be cured within such 30-day period, and provided further
that Borrower shall have commenced to cure such Default within such 30-day period and shall thereafter diligently and expeditiously
proceed to cure the same, such 30-day period shall be extended for such time as is reasonably necessary for Borrower in the exercise
of due diligence to cure such Default, such additional period not to exceed ninety (90) days; provided, however that
such additional ninety (90) period shall be extended for an additional thirty (30) days provided that Borrower shall have continuously
diligently and expeditiously proceeded to cure the applicable Default and that notwithstanding the foregoing, such Default has
not been cured and provided, further, that Borrower continues to diligently and expeditiously proceed to cure the same and it is
reasonably likely that such Default shall be cured in such additional 30-day period.


 


Section 8.2         Remedies.


 


8.2.1       Acceleration.
Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vii), (viii) or (ix)
of Section 8.1 above) and at any time thereafter, Lender may, in addition to any other rights or remedies available
to it pursuant to this Agreement and the other Loan Documents or at law or in equity, take such action, without notice or demand
(and Borrower hereby expressly waives any such notice or demand), that Lender deems advisable to protect and enforce its rights
against Borrower and/or Operating Lessee and in and to the Properties, including declaring the Obligations to be immediately due
and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower
and/or Operating Lessee and the Properties, including all rights or remedies available at law or in equity; and upon any Event
of Default described in clauses (vii), (viii) or (ix) of Section 8.1 above, the Obligations of Borrower
hereunder and under the other Loan Documents shall immediately and automatically become due and payable in full, without notice
or demand, and each of Borrower and Operating Lessee hereby expressly waives any such notice or demand, anything contained herein
or in any other Loan Document to the contrary notwithstanding.


 


8.2.2       Suspension
of Lender’s Performance. Upon the occurrence of an Event of Default, in addition
to any other rights or remedies available to Lender pursuant to this Agreement and the other Loan Documents or at law or in equity,
Lender may, at its option, cease or suspend any and all performance required of Lender under the Loan Documents.


 




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8.2.3       Remedies
Cumulative. During the continuance of an Event of Default, all or any one or more of the rights, powers, privileges and
other remedies available to Lender against Borrower or Operating Lessee under this Agreement or any of the other Loan Documents
executed and delivered by, or applicable to, Borrower or Operating Lessee or at law or in equity may be exercised by Lender at
any time and from time to time, whether or not all or any of the Obligations shall be declared due and payable, and whether or
not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under
any of the Loan Documents with respect to the Properties. The rights, powers and remedies of Lender under this Agreement shall
be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Operating Lessee
pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers
and remedies may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender
may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other
rights and remedies of Lender permitted by law or contract or as set forth herein or in the other Loan Documents or by equity.
Without limiting the generality of the foregoing, if an Event of Default is continuing (i) Lender shall not be subject to any “one
action” or “election of remedies” law or rule, and (ii) all Liens and other rights, remedies or privileges provided
to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Properties and the Mortgage
has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Obligations or the Obligations have been paid in
full. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy,
right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time
and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower or Operating Lessee
shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or Operating Lessee or to impair
any remedy, right or power consequent thereon.


 


8.2.4       Severance 


 


(a)          During
the continuance of an Event of Default, Lender shall have the right from time to time to partially foreclose the Mortgages in any
manner and for any amounts secured by the Mortgages then due and payable as determined by Lender in its sole discretion, including
the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more
scheduled payments of principal and interest, Lender may foreclose one or more of the Mortgages to recover such delinquent payments,
or (ii) in the event Lender elects to accelerate less than the entire Outstanding Principal Balance, Lender may foreclose one or
more of the Mortgages to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured
by one or more of the Mortgages as Lender may elect. Notwithstanding one or more partial foreclosures, the Properties shall remain
subject to the Mortgages to secure payment of the sums secured by the Mortgages and not previously recovered.


 


(b)          During
the continuance of an Event of Default, Lender shall have the right from time to time to sever the Note and the other Loan Documents
into one or more separate notes, mortgages and other security documents in such denominations as Lender shall determine in its
sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower and Operating Lessee
shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other
documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance
reasonably satisfactory to Lender. Borrower and Operating Lessee each hereby absolutely and irrevocably appoints Lender as its
true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable
to effect the aforesaid severance, Borrower and Operating Lessee each ratifying all that its said attorney shall do by virtue thereof;
provided, however, Lender shall not make or execute any such documents under such power until three (3) days after notice has been
given to Borrower by Lender of Lender’s intent to exercise its rights under such power.


 




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(c)          Any
amounts recovered from the Properties or any other collateral for the Loan after an Event of Default may be applied by Lender toward
the payment of any interest and/or principal of the Loan and/or any other amounts due under the Loan Documents, in such order,
priority and proportions as Lender in its sole discretion shall determine.


 


8.2.5       Lender’s
Right to Perform. If Borrower or Operating Lessee fails to perform any covenant or obligation contained herein and such
failure shall continue for a period of five (5) Business Days after Borrower’s receipt of written notice thereof from Lender,
without in any way limiting Lender’s right to exercise any of its rights, powers or remedies as provided hereunder, or under
any of the other Loan Documents, Lender may, but shall have no obligation to, perform, or cause the performance of, such covenant
or obligation, and all costs, expenses, liabilities, penalties and fines of Lender incurred or paid in connection therewith shall
be payable by Borrower to Lender upon demand and if not paid shall be added to the Obligations (and to the extent permitted under
applicable laws, secured by the Mortgage and the other Loan Documents) and shall bear interest thereafter at the Default Rate.
Notwithstanding the foregoing, Lender shall have no obligation to send notice to Borrower of any such failure (provided that if
Lender elects to exercise its right in the preceding sentence it shall notify Borrower of such exercise; provided, that Lender’s
failure to so notify Borrower shall not invalidate such action or give rise to any liability on the part of Lender or defense,
effect or counterclaim on the part of Borrower).


 


ARTICLE
9

SALE AND SECURITIZATION OF MORTGAGE


 


Section 9.1         Sale
of Mortgage and Securitization.


 


(a)          Lender
shall have the right, at Lender’s cost and without the consent of Borrower, any Guarantor or any Affiliate of Borrower or
any Guarantor, (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests
in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization.
The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary
Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to
as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary
Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note
and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.


 


(b)          If
requested by Lender, Borrower and Operating Lessee shall use commercially reasonable efforts to and shall cause Guarantors to use
commercially reasonable efforts to assist Lender, at Lender’s expense, in satisfying the market standards to which Lender
customarily adheres or which may be required by prospective investors, the Rating Agencies, applicable Legal Requirements and/or
otherwise in the marketplace in connection with any Secondary Market Transactions, and shall in any event upon Lender’s request,
at Lender’s expense:


 




    	 	-136-	 



     


    

 


(i)          (A)
provide updated financial and other customary information with respect to the Properties, the business operated at the Properties,
Borrower, Operating Lessee and each Manager, including, without limitation, the information set forth on Exhibit B
attached hereto, (B) provide updated budgets and rent rolls (including itemized percentage of floor area occupied and percentage
of aggregate base rent for each tenant) relating to the Properties, and (C) provide updated appraisals, market studies, property
condition reports and other due diligence investigations of the Properties (the “Updated Information”),
together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel
acceptable to Lender and the Rating Agencies;


 


(ii)         cause
counsel to provide legal opinions of counsel, which may be relied upon by Lender, trustee in any Securitization, underwriters,
NRSROs and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware and federal bankruptcy
law relating to limited partners and/or limited liability companies, any other matters covered in the opinions delivered to Lender
at Closing or as required by the Rating Agencies with respect to the Properties, the Loan Documents, and Borrower and Operating
Lessee and their respective Affiliates, which counsel and opinions shall be reasonably satisfactory to Lender and satisfactory
to the Rating Agencies; and


 


(iii)        execute
amendments to the Loan Documents and Borrower’s and Operating Lessee’s organizational documents requested by Lender;
provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification
or amendment would (A) cause the initial weighted average of the interest rates of the Loan immediately after the effective date
of such modification to exceed the weighted average interest rate of the Loan immediately prior to such modification, (B) cause
the outstanding principal balance of the Loan immediately after the effective date of such modification to exceed the outstanding
principal balance of the Loan in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any
representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date),
(E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor
under the Loan Documents other than to a de minimis extent.


 


(c)          If,
at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one
or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or
otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties
collectively, will be a Significant Obligor, Borrower shall, at Lender’s expense, furnish to Lender upon reasonable request
the following financial information:


 




    	 	-137-	 



     


    

 


(i)          if
Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such
Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of
all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related
Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the
Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data
meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of
Regulation AB), or


 


(ii)         if
Lender reasonably expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such
Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected
to be included in the Securitization, the financial statements in respect of the Properties required under Item 1112(b)(2)
of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender reasonably
determines to be a Significant Obligor) for the two most recent Fiscal Years and applicable interim periods, meeting the requirements
of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the
three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X.


 


(d)         Further,
if reasonably requested by Lender, Borrower shall, promptly at Lender’s expense, furnish to Lender financial data or financial
statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any tenant of
any Individual Property (if available and not subject to requirements of confidentiality under the terms of the applicable Lease)
if, in connection with a Securitization, Lender expects there to be, as of the cutoff date for such Securitization, a concentration
with respect to such tenant or group of Affiliated tenants within all of the mortgage loans included or expected to be included
in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor. Borrower shall,
at Lender’s expense, use commercially reasonable efforts to furnish to Lender, in connection with the preparation of the
Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such tenants meeting (if
available and not subject to requirements of confidentiality under the terms of the applicable Lease) the requirements of Item 1112(b)(1)
or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and
either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange
Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required
to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.


 


(e)          If
Lender reasonably determines in good faith that Borrower alone or Borrower and one or more Affiliates of Borrower collectively,
or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall,
at Lender’s expense, furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the
requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities
are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y)
comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or
applicable Legal Requirements.


 




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(f)          Any
financial data or financial statements provided pursuant to this Section 9.1 shall be furnished at Lender’s expense
to Lender within the following time periods:


 


(i)          with
respect to information requested in connection with the preparation of Disclosure Documents for a Securitization, within ten (10)
Business Days after notice from Lender; and


 


(ii)         with
respect to ongoing information required under Section 9.1(d) and (e) above, (1) not later than thirty (30) days after
the end of each fiscal quarter of Borrower and (2) not later than seventy-five (75) days after the end of each Fiscal Year of Borrower.


 


(g)         If
reasonably requested by Lender, Borrower shall, at Lender’s expense, provide Lender, promptly following Lender’s reasonable
request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender
shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment,
modification or replacement thereto or other Legal Requirements identified by Lender and relating to a Securitization or as shall
otherwise be reasonably requested by Lender or, in the case of a private securitization such statements or information as Lender
shall reasonably determine to be necessary to be included.


 


(h)         If
requested by Lender, whether in connection with a Securitization or at any time thereafter during which the Loan and any Related
Loans are included in a Securitization, Borrower shall provide Lender, promptly upon request, a list of tenants (including all
affiliates of such tenants) that in the aggregate (1) occupy 10% or more (but less than 20%) of the total floor area of the improvements
or represent 10% or more (but less than 20%) of aggregate base rent, and (2) occupy 20% or more of the total floor area of the
improvements or represent 20% or more of aggregate base rent.


 


(i)          All
financial statements provided by Borrower or Operating Lessee pursuant to this Section 9.1(c), (d), (e)
or (f) shall be prepared in accordance with the Uniform System of Accounts and reconciled in accordance with GAAP (or otherwise
in accordance with an Acceptable Accounting Method) and shall meet the applicable requirements of Regulation S-K or Regulation
S-X, as applicable, Regulation AB, and other applicable Legal Requirements. All financial statements provided by Borrower pursuant
to clause (c) or (d) relating to a Fiscal Year shall be audited by Independent Accountants in accordance with
GAAP, Regulation S-X or Regulation S-K, as applicable, Regulation AB, and all other applicable Legal Requirements, shall be accompanied
by the manually executed report of the Independent Accountants thereon, which report shall meet the requirements of Regulation
S-K or Regulation S-X, as applicable, Regulation AB, and all other applicable Legal Requirements, and shall be further accompanied
by a manually executed written consent of the Independent Accountants, in form and substance acceptable to Lender, to the inclusion
of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such Independent
Accountants and the reference to such Independent Accountants as “experts” in any Disclosure Document and Exchange
Act Filing (or comparable information is required to otherwise be available to holders of the Securities under Regulation AB or
applicable Legal Requirements), all of which shall be provided at the same time as the related financial statements are required
to be provided. All other financial statements of the Borrower shall be certified by the chief financial officer of Borrower, which
certification shall state that such financial statements meet the requirements set forth in the first sentence of this paragraph.


 




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(j)          If
reasonably requested by Lender, Borrower shall review any information regarding the Properties, tenants, Borrower, Operating Lessee
and Guarantors which is contained in any Disclosure Document (including any interim drafts thereof and any amendments or supplements
thereto) in order to confirm that to its knowledge, no such Disclosure Document contains any untrue statement of a material fact
or omits any material fact necessary to make the statements made therein, in the light of the circumstances under which they were
made, not misleading, and to the extent any such Disclosure Document contains any such material misstatements or omissions to correct
any such material misstatements or omissions within five (5) Business Days following Borrower’s receipt thereof. Borrower
shall not be liable hereunder for any material misstatement or omission contained in the Disclosure Document due to Lender’s
failure to incorporate Borrower’s requested changes or modifications.


 


(k)          For
all purposes under this Agreement, if any Securities are offered pursuant to a “private” Securitization pursuant to
an exemption under Rule 144A or Regulation D under the Securities Act, the provisions of Regulation AB, Regulation S-K, Regulation
S-X and any other disclosure provisions of the Securities Act and/or Exchange Act, as applicable, shall be deemed to apply to such
“private” Securitization as if such offering of Securities were being conducted pursuant to a registered public offering
under the Securities Act.


 


Section 9.2          Securitization
Indemnification.


 


(a)          Borrower
understands that information about the Borrower, Operating Lessee and the Properties, tenants, Managers and Guarantors provided
to Lender by Borrower or Operating Lessee and their agents, counsel and representatives may be included in preliminary and final
disclosure documents in connection with a Securitization, including an offering circular, any free writing prospectus, a prospectus,
prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”)
and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended
(the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and may be made available to investors or prospective investors in the Securities, investment banking firms,
NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to a Securitization. Borrower
also understands that the findings and conclusions of any third-party due diligence report obtained by Lender, the Issuer or the
Securitization placement agent or underwriter may be made publicly available if required, and in the manner prescribed, by Section 15E(s)(4)(A)
of the Exchange Act and any rules promulgated thereunder.


 




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(b)         Borrower
hereby agrees to indemnify Lender (and for purposes of this Section 9.2, Lender shall include the initial lender, its
successors and assigns, and their respective officers and directors) and each Person who controls the Lender within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Lender Group”),
the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall
include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of
their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”)
for any actual losses (i.e., non-consequential), claims, damages or liabilities (collectively, the “Liabilities”)
to which Lender, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out
of, or are based upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the information about
the Borrower, Operating Lessee, the Properties, Guarantors, tenants and Managers provided to Lender by Borrower and its agents,
counsel and representatives (it being agreed that no Manager is an agent or representative of Borrower for the purpose of this
sentence), (B) the omission or alleged omission to state therein a material fact required to be stated in such information or necessary
in order to make the statements in such information, in light of the circumstances under which they were made, not misleading,
or (C) a breach of the representations and warranties made by Borrower or Operating Lessee in Section 3.1.31 of this
Agreement (Full and Accurate Disclosure). Borrower also agrees to reimburse Lender, the Lender Group, the Issuer and/or the Underwriter
Group for any legal or other expenses reasonably incurred by Lender, the Lender Group, the Issuer and/or the Underwriter Group
in connection with investigating or defending the Liabilities. Borrower’s liability under this paragraph will be limited
to Liability that arises out of, or is based upon, an untrue statement or omission made in reliance upon, and in conformity with,
information furnished to Lender by or on behalf of Borrower or Operating Lessee in connection with the preparation of the Disclosure
Document or in connection with the underwriting or closing of the Loan, including financial statements of Borrower and Operating
Lessee, operating statements and rent rolls with respect to the Properties, provided Borrower is given the opportunity to review
and ensure the accuracy of any information in the Disclosure Document provided by or on behalf of Borrower or Operating Lessee
in connection with the preparation of the Disclosure Document and provided, further, that Borrower shall not have any liability
hereunder as a result of any untrue statement or alleged untrue statement or omission or alleged omission contained in the Disclosure
Document due to Lender’s failure to incorporate therein Borrower’s requested changes or modifications (in each case
excluding (x) any underwritten financial information, (y) any information (including financial information or forecasted information)
contained in any third party report commissioned by Lender, such as appraisals, property condition reports and environmental reports,
and (z) any projections or forecasts). This indemnification provision will be in addition to any liability which Borrower may otherwise
have. Borrower acknowledges and agrees that any Person that is included in the Lender Group, the Issuer and/or the Underwriter
Group that is not a direct party to this Agreement shall be deemed to be a third-party beneficiary to this Agreement with respect
to this Section 9.2(b). Within five (5) Business Days after Lender’s written request, Borrower shall execute
and deliver to Lender a separate indemnification and reimbursement agreement in favor of the Lender Group, the Issuer and the Underwriter
Group in form and substance consistent with the indemnification and reimbursement obligations of Borrower under this Section 9.2(b).


 


(c)         In
connection with any Exchange Act Filing or other reports containing comparable information that is required to be made “available”
to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to (i) indemnify Lender, the
Lender Group, the Issuer and the Underwriter Group for Liabilities to which Lender, the Lender Group, the Issuer and/or the Underwriter
Group may become subject insofar as the Liabilities arise out of, or are based upon, an alleged untrue statement or alleged omission
or an untrue statement or omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf
of Borrower or Operating Lessee in connection with the preparation of the Disclosure Document or in connection with the underwriting
or closing of the Loan, including financial statements of Borrower and Operating Lessee, operating statements and rent rolls with
respect to the Properties, provided Borrower is given the opportunity to review and ensure the accuracy of any information in the
Disclosure Document provided by or on behalf of Borrower in connection with the preparation of the Disclosure Document and (ii)
reimburse Lender, the Lender Group, the Issuer and/or the Underwriter Group for any out-of-pocket legal or other expenses reasonably
incurred by Lender, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the
Liabilities.


 




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(d)         Promptly
after receipt by an indemnified party under this Section 9.2 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9.2, notify
the indemnifying party in writing of the commencement thereof, but the failure to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have to any indemnified party under Sections 9.2(b)
and 9.2(c) hereof except to the extent that failure to notify causes prejudice to the indemnifying party. If any action
is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or they)
may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying
party to such indemnified party pursuant to the immediately preceding sentence of this Section 9.2(d), such indemnifying
party shall pay for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense
thereof; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the indemnifying party, or the indemnifying party shall have
failed to designate within a reasonable period of time counsel reasonably satisfactory to the indemnified party, the indemnified
party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party at the cost of the indemnifying party. The indemnifying party shall
not be liable for the expenses of more than one separate counsel unless an indemnified party shall have reasonably concluded that
there may be legal defenses available to it that are different from or additional to those available to the indemnifying party.
Without the prior written consent of Lender (which consent shall not be unreasonably withheld or delayed), no indemnifying party
shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not any indemnified party is an actual or potential party
to such claim, action, suit or proceeding) unless the indemnifying party shall have given Lender reasonable prior written notice
thereof and shall have obtained an unconditional release of each indemnified party hereunder from all liability arising out of
such claim, action, suit or proceedings, and such settlement requires no statement as to, or an admission of, fault, culpability
or a failure to act, by or on behalf of the indemnified party.


 




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(e)         In
order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b)
or (c) is for any reason held to be unenforceable as to an indemnified party or insufficient in respect of any Liabilities (or
action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.2(b) or (c),
the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities
(or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors
shall be considered: (i) the Issuer’s and Borrower’s relative knowledge and access to information concerning the matter
with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii)
any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita allocation.


 


(f)          The
liabilities and obligations of both Borrower and Lender under this Section 9.2 shall survive the termination of this
Agreement and the satisfaction and discharge of the Debt.


 


(g)          Borrower
shall jointly and severally indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates
against any Losses to which Lender or its officers, directors, partners, employees, representatives, agents and Affiliates, may
become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining
the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information
provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”)
or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be
stated therein or necessary in order to make the statements in Covered Rating Agency Information, in light of the circumstances
under which they were made, not misleading.


  




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Section 9.3          Severance.


 


9.3.1       Severance
Documentation. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute discretion,
shall have the right, at any time (whether prior to or after any sale, participation or other Secondary Market Transaction with
respect to all or any portion of the Loan), to require Borrower or Operating Lessee (at Lender’s expense) to execute and
deliver (i) “component” notes (including certificating existing uncertificated “component” notes) and/or
modify the Loan or the existing “component note” structure in order to create one or more senior and subordinate notes
(i.e., an A/B or A/B/C structure) and/or one or more additional components of the Note or Notes (including the implementation of
one or more New Mezzanine Loans (in accordance with Section 9.3.2 below))), or make any other change to the Loan or
the Note including but not limited to: reducing the number of Notes, revising the interest rate for the Note, reallocating the
principal balances of the Notes, increasing or decreasing the monthly debt service payments for or eliminating note structure of
the Loan (including the elimination of the related allocations of principal and interest payments), and/or (ii) in conjunction
with, and with the corresponding agreement of, the applicable Mezzanine Lenders, “resize” the Loan and the Mezzanine
Loan to revise the interest rates for the Loan and the Mezzanine Loans reallocate the principal balances of the Loan and the Mezzanine
Loans and/or increasing or decreasing the monthly debt service payments for the Loan and the Mezzanine Loans (such resizing under
this clause (ii), a “Resizing”), provided that, subject to Section 9.3.2, (A)
the outstanding principal balance of the Loan (together with, in the case of a Resizing, the outstanding principal balance of the
Mezzanine Loans subject to such Resizing) in the aggregate immediately after the effective date of such modification equals the
outstanding principal balance (when aggregated, in the case of a Resizing, with the outstanding principal balance of the Mezzanine
Loans subject to such Resizing) immediately prior to such modification, (B) the initial weighted average of the interest rates
for the Loan (when aggregated, in the case of a Resizing, with the interest rates of the Mezzanine Loans subject to such Resizing)
immediately after the effective date of such modification equals the interest rate of the original Note (when aggregated, in the
case of a Resizing, on a weighted average basis with the interest rate of the Mezzanine Loans subject to such Resizing) immediately
prior to such modification, except that the weighted average interest rate may subsequently change as a result of (I) any voluntary
prepayment of the Mezzanine Loan permitted by the terms of this Agreement, (II) any prepayment during the continuance of an Event
of Default or resulting from a Casualty or Condemnation, and (III) any voluntary prepayment of any portion of the Loan, (C) no
principal amortization of the Loan or the Mezzanine Loans shall be required (other than repayment in full on the Maturity Date),
(D) there shall be no change to any Stated Maturity Date and (E) Borrower, Operating Lessee and Guarantors shall not be required
to amend any Loan Documents that would otherwise increase the obligations or reduce the rights of Borrower, Operating Lessee or
any Guarantor under the Loan Documents other than to a de minimis extent, and provided, further, that in all events the aggregate
principal balance of the Loan and the Mezzanine Loans following a Resizing may not exceed the aggregate principal balance of the
Loan and the Mezzanine Loans immediately prior to the Resizing, and the initial weighted average interest rate of the Loan and
the Mezzanine Loans, on a combined basis, following a Resizing may not exceed the weighted average interest rate of the Loan and
the Mezzanine Loans, on a combined basis, immediately before the Resizing. At Lender’s election, each note comprising the
Loan may be subject to one or more Secondary Market Transactions. Lender shall have the right to modify the Note in accordance
with this Section 9.3 and, provided that such modification shall comply with the terms of this Section 9.3,
it shall become immediately effective.


 





9.3.2       New
Mezzanine Loan Option. Lender, without in any way limiting Lender’s other rights hereunder, in its sole and absolute
discretion, shall have the right, at any time (whether prior to or after any Secondary Market Transaction), to create one more
mezzanine loans (each, a “New Mezzanine Loan”) (it being agreed that there shall be no more than two
Mezzanine Loans) to establish different interest rates and to reallocate the Outstanding Principal Balance and Monthly Debt Service
Payment of the Loan to the Loan and such New Mezzanine Loan(s) and to require the payment of the Loan and any New Mezzanine Loan(s)
in such order of priority as may be designated by Lender (including in priority senior to all other Mezzanine Loans, with corresponding
adjustments to each reference to the other Mezzanine Loans to include the New Mezzanine Loan(s) and any payments or prepayments
of principal and interest thereon prior to the other Mezzanine Loans); provided, that (A) the outstanding principal balance
of the Loan and such New Mezzanine Loan(s) immediately after the effective date of the creation of such New Mezzanine Loan(s) equals
the Outstanding Principal Balance immediately prior to such modification, (B) the initial weighted average of the interest rates
for the Loan and such New Mezzanine Loan(s) in the aggregate immediately after the effective date of the creation of such New Mezzanine
Loan(s) equals the interest rate of the Loan immediately prior to such modification (C) no principal amortization of the Loan,
any New Mezzanine Loan(s) or any Mezzanine Loan shall be required (other than repayment in full on the Maturity Date), (D) there
shall be no change to any Stated Maturity Date and (E) Borrower and Guarantors shall not be required to amend any Loan Documents
(or enter into new documents with respect to the New Mezzanine Loan) that would otherwise increase the obligations or reduce the
rights of Borrower or any Guarantor pursuant to the Loan Documents other than to a de minimis extent. Borrower shall cause (at
Lender’s expense) the formation of one special purpose, bankruptcy remote entity as required by Lender in order to serve
as the borrower under any New Mezzanine Loan (each, a “New Mezzanine Loan Borrower”) and the applicable
organizational documents of Borrower shall be amended and modified as necessary or required in the formation of any New Mezzanine
Loan Borrower.


 




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9.3.3       Cooperation;
Execution; Delivery. Borrower and Operating Lessee shall use reasonable efforts to cooperate (at Lender’s expense)
with all reasonable requests of Lender in connection with this Section 9.3. Subject to Section 9.3.2, if
reasonably requested by Lender, Borrower and Operating Lessee shall promptly execute and deliver such documents as shall be required
by Lender and any Rating Agency in connection with any modification or New Mezzanine Loan pursuant to this Section 9.3,
all in form and substance reasonably satisfactory to Lender and satisfactory to any applicable Rating Agency, including, the severance
of security documents if requested and/or, in connection with the creation of any New Mezzanine Loan: (i) execution and delivery
of a promissory note and loan documents necessary to evidence such New Mezzanine Loan, (ii) execution and delivery of such amendments
to the Loan Documents as are necessary in connection with the creation of such New Mezzanine Loan, (iii) delivery of opinions of
legal counsel with respect to due execution, authority and enforceability of any modification documents or documents evidencing
or securing any New Mezzanine Loan, as applicable and (iv) with respect to any New Mezzanine Loan, delivery of an additional Insolvency
Opinion for the Loan and a substantive non-consolidation opinion; each as reasonably acceptable to Lender, prospective investors
and/or the Rating Agencies. In the event Borrower and/or Operating Lessee fails to execute and deliver such documents to Lender
within five (5) Business Days following such request by Lender, Borrower and Operating Lessee each hereby absolutely and irrevocably
appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents
necessary or desirable to effect such transactions, Borrower and Operating Lessee each hereby ratifying all that such attorney
shall do by virtue thereof.


 







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9.3.4       Uncross
of Properties. If at any time following the Closing Date, Lender or its designee shall elect to remove any Individual Property
from a Securitization (the “Affected Property”), Lender shall have the right to (i) sever or divide the
Note and the other Loan Documents in order to allocate to such Affected Property a new note and other loan documents (collectively,
the “New Note”), evidencing a separate loan in the amount of the Allocated Loan Amount applicable to
such Affected Property, including, the transfer of the applicable portion of each of the Reserve Funds relating to the Affected
Property, and (ii) release any cross-default and/or cross-collateralization provisions applicable to such Affected Property; provided,
that (1) such New Note secured by such Affected Property, together with the Loan Documents secured by the remaining Properties,
shall not (A) increase (I) any monetary obligation of Borrower under the Loan Documents, including without limitation, the initial
weighted average interest rate payable under the Note, (x) the stated maturity of the Note, (y) the aggregate amortization of principal
of the Note, (z) any other economic term of the Loan, as any existed prior to the creation of the New Note and splitting of the
Loan; or (II) any other obligation of Borrower under the Loan Documents, including without limitation, not decreasing the time
periods during which the Borrower and the Loan Parties are permitted to perform their obligations under the Loan Documents, or
(B) waive, impair, reduce or release any right of Borrower under the Loan Documents, and (2) subject to the requirements of the
foregoing clause (1), the New Note and related loan documents shall be in substantially the same form as the Loan Documents.
In connection with the removal of any such Affected Property as provided for in this Section 9.3.4, the Loan shall
be reduced by an amount equal to the Allocated Loan Amount applicable to such Affected Property and the new loan secured by such
Affected Property and evidenced by the New Note shall be in an amount equal to such Allocated Loan Amount. Subsequent to the release
of the Affected Property from the lien of the Loan pursuant to this Section 9.3.4, the balance of the Loan shall be
the same as it would have been had a prepayment occurred in an amount equal to the Allocated Loan Amount of the Affected Property.
The New Note shall have (w) the same initial weighted average interest rate payable under the Note, (x) the same stated maturity
of the Note, and (y) no amortization of principal. At the request of Lender, Borrower shall otherwise cooperate with Lender’s
reasonable requests in Lender’s attempt to satisfy the requirements necessary in order for Lender to obtain Rating Agency
Confirmation with respect to such removal of the Affected Property from the Securitization and splitting of the Loan, which requirements
shall include, without limitation: (A) delivery of evidence that would be reasonably satisfactory to a prudent lender that the
single purpose nature and bankruptcy remoteness of the Individual Borrowers owning Properties other than the Affected Property
following such removal have not been adversely affected and are compliant with the terms and provisions of this Agreement (which
evidence may include a “bring-down” of the Insolvency Opinion with respect to additions to or other changes to any
vertical pairings addressed by the Insolvency Opinion delivered on the date hereof, together with any additional qualifications
that may need to be included as a result of the structural changes required pursuant to this Section 9.3.4); and (B)
if the same would be required by a prudent lender in such circumstances, an opinion of counsel that the release of the Affected
Property will not be a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations
of the United States Department of the Treasury, nor cause a Securitization Vehicle to fail to qualify as a REMIC Trust or Grantor
Trust or a tax to be imposed on a Securitization Vehicle. Lender shall cause all costs and expenses incurred by Borrower (and the
Mezzanine Borrower under Section 9.3.4 of the Mezzanine Loan Agreement) in connection with this Section 9.3.4
(including, without limitation, any costs and expenses incurred from time to time by Borrower or any other Loan Parties in connection
with the transfer of the Affected Property to a Special Purpose Bankruptcy-Remote Entity, the formation, maintenance and operation
of such Special Purpose Bankruptcy-Remote Entity and attorneys’ fees and costs) to be paid by Lender or its designee pursuant
to Section 9.4 below.


 


Section 9.4         Costs
and Expenses. Notwithstanding anything to the contrary contained in this Article 9, no Loan Party shall be
required to incur (and Lender shall be required to pay and/or reimburse) any out-of-pocket costs or expenses in the performance
of its obligations under Sections 9.1 or 9.2 (excluding Borrower’s legal fees and the indemnity obligations
set forth therein) or Section 9.3 above (excluding Borrower’s legal fees), including, without limitation, any
transfer taxes incurred as a result of any required restructuring.


 




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Section 9.5         Confidentiality.


 


(a)         Borrower
and Operating Lessee each agrees for itself and on behalf of Guarantors that except as expressly provided below, any reports, statements
or other information required to be delivered or provided under this Agreement or any of the other Loan Documents and furnished
at any time and from time to time by Borrower, Operating Lessee or Guarantors and relating to any Guarantor (“Furnished
Information”) may be included in any Disclosure Document and may be forwarded by Lender to any actual or prospective
investor in the Loan or any Mezzanine Loan, any actual or prospective assignee of the Loan or any Mezzanine Loan,
or beneficial interests in the Loan or any Mezzanine Loan, including investors in Securities, any actual or prospective participant
in the Loan or any Mezzanine Loan, any Rating Agency rating any participations in the Loan and/or Securities, any NRSRO, any underwriter,
any organization maintaining databases on the underwriting and performance of commercial mortgage loans, any of Lender’s
Affiliates involved from time to time in the transactions contemplated by this Agreement and/or in any Securitization and/or in
any assignment of all or any portion of the Mezzanine Loans, any of Lender or such Affiliates’ respective employees, directors,
agents, attorneys, accountants, or other professional advisors, any servicers of the Loan, and/or any Governmental Authorities,
in all cases as Lender determines necessary or desirable in its sole discretion.  Borrower and Operating Lessee each irrevocably
waives any and all rights it may have under any applicable Legal Requirements to prohibit such disclosure, including but not limited
to any right of privacy.


 


Section 9.6        Compliance
with Required Loan Restructurings. Notwithstanding anything to the contrary set forth in the Loan Documents (a) Mezzanine
Borrower may comply in all respects with any requirements to restructure the Mezzanine Loan pursuant to Article 9 of
the Mezzanine Loan Agreement (or any other similar provision in the Mezzanine Loan Documents), (b) any borrower under any future
mezzanine loan that is made or created in accordance with this Article 9 or in accordance with Article 9
of any Mezzanine Loan Agreement may comply in all respects with any requirements to restructure such mezzanine loan as required
under its respective mezzanine loan documents, and (c) no actions taken by any Mezzanine Borrower or any such future mezzanine
borrower in furtherance of the foregoing, including without limitation, any transfers, pledges or amendments to organizational
documents, shall constitute a breach of any provisions of the Loan Documents, or result in a Default or Event of Default hereunder.


 







    	 	-147-	 



     


    

  


ARTICLE
10



MISCELLANEOUS


 


Section 10.1       Exculpation.
Subject to the qualifications below, Lender shall not enforce the liability and obligation of Borrower or Operating Lessee to perform
and observe the Obligations contained in the Note, this Agreement, the Mortgage or the other Loan Documents by any action or proceeding
wherein a money judgment shall be sought against Borrower, Operating Lessee or against any Mezzanine Borrower, any Guarantor, any
Affiliates of the foregoing or any of their respective direct or indirect principals, directors, officers, employees, beneficiaries,
shareholders, partners, members, trustees or agents (each, exclusive of the Borrower and Operating Lessee, an “Other
Exculpated Party”), except that (1) any Other Exculpated Party that is party to any Loan Document or any other separate
written guaranty, indemnity or other agreement given by such Other Exculpated Party in connection with the Loan (including, without
limitation, the Assignment of Management Agreement or any other Loan Document to which such Other Exculpated Party is a party)
shall remain fully liable therefor and the foregoing provisions shall not operate to limit or impair the liabilities and obligations
of such Other Exculpated Party thereunder, and (2) Lender may bring a foreclosure action, an action for specific performance or
any other appropriate action or proceeding to enable Lender to enforce and realize upon its interest under the Note, this Agreement,
the Mortgage and the other Loan Documents, or in the Properties, the Gross Revenue, or any other collateral given to Lender pursuant
to the Loan Documents; provided, however, that, except as specifically provided herein, any judgment in any such action or proceeding
shall be enforceable against Borrower or Operating Lessee only to the extent of Borrower’s and Operating Lessee’s interest
in the Properties, in the Gross Revenue and in any other collateral given to Lender, and Lender, by accepting the Note, this Agreement,
the Mortgage and the other Loan Documents, shall not sue for, seek or demand any deficiency judgment against any of the Exculpated
Parties in any such action or proceeding under or by reason of or under or in connection with the Note, this Agreement, the Mortgage
or the other Loan Documents. The provisions of this Section 10.1 shall not, however, (a) constitute a waiver, release
or impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the right of Lender to name Borrower
or Operating Lessee as a party defendant in any action or suit for foreclosure and sale under the Mortgage; (c) affect the validity
or enforceability of any of the Loan Documents or any guaranty made in connection with the Loan or any of the rights and remedies
of Lender thereunder; (d) impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of the
Assignment of Leases; (f) impair the enforcement of the Environmental Indemnity; (g) constitute a prohibition against Lender to
seek a deficiency judgment against Borrower or Operating Lessee in order to fully realize the security granted by the Mortgage
or to commence any other appropriate action or proceeding in order for Lender to exercise its remedies against the Properties;
(i) waive or impair the liability of any Other Exculpated Party under any Loan Document or any other separate written guaranty,
indemnity or other agreement to which such Other Exculpated Party is a party (including, without limitation, the Assignment of
Management Agreement or any other Loan Document to which such Other Exculpated Party is a party); or (i) constitute a waiver of
the right of Lender to enforce the liability and obligation of Borrower or Operating Lessee, by money judgment or otherwise, to
the extent of any actual loss, damage, out-of-pocket cost or expense, liability, claim or other obligation incurred by Lender (including
reasonable outside attorneys’ fees and costs reasonably incurred) arising out of or in connection with the following (all
such liability and obligation of Borrower or Operating Lessee for any or all of the following being referred to herein as “Borrower’s
Recourse Liabilities”):


 


(i)          fraud
or intentional material misrepresentation committed by Borrower, Operating Lessee, any Guarantor or any Affiliate of Borrower,
Operating Lessee or any Guarantor in connection with the Loan;


 


(ii)         Borrower
or Operating Lessee incurs any Indebtedness in violation of the Loan Documents not otherwise set forth in clause (i)
in the definition of “Springing Recourse Event” below (unless such debt was permitted when incurred but was not repaid
due to the Property’s failure to generate sufficient cash flow or the failure of Lender to release funds from the Accounts);


 


(iii)        Borrower
or Operating Lessee fails to obtain Lender’s prior consent to (a) any Transfer of any Individual Property or (b) any Transfer
of a direct or indirect interest in Borrower, in each case not otherwise set forth in clause (ii) in the definition
of “Springing Recourse Event” below;


 




    	 	-148-	 



     


    

 


(iv)        removal
of personal property from the Properties during an Event of Default by Borrower or Operating Lessee or on behalf of Borrower or
Operating Lessee by any Guarantor or any Affiliate of Borrower, Operating Lessee or any Guarantor, unless replaced with personal
property of substantially the same or greater utility and of the same or greater value;


 


(v)         any
intentional material physical Waste at any Individual Property committed by Borrower or Operating Lessee or on behalf of Borrower
or Operating Lessee by any Guarantor or any Affiliate of Borrower, Operating Lessee or any Guarantor;


 


(vi)        the
material misappropriation by Borrower or Operating Lessee or on behalf of Borrower or Operating Lessee by any Guarantor or any
Affiliate of Borrower, Operating Lessee or any Guarantor of (A) any Insurance Proceeds paid by reason of any Casualty to any Individual
Property, (B) any Awards in connection with the Condemnation of any Individual Property and (C) any Gross Revenues after (or that
results in) a Trigger Period or an Event of Default, in each case, in violation of the Loan Documents; and


 


(vii)       any
breach of any provision of Section 4.4 or Schedule V of this Agreement (other than with respect
to clause (d) of Schedule V (with respect to trade payables only), clause (f) of Schedule V,
clause (j) of Schedule V, clause (o) of Schedule V (with respect
to trade payables only), clause (v) of Schedule V and clause (w) of Schedule V))
other than a Springing Recourse Event described in clause (b)(viii) below.


 







    	 	-149-	 



     


    

  


Notwithstanding anything
to the contrary in this Agreement or any of the other Loan Documents, (A) Lender shall not be deemed to have waived any right which
Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the
full amount of the Obligations or to require that all collateral shall continue to secure all of the Obligations owing to Lender
in accordance with the Loan Documents, and (B) the Obligations shall be fully recourse to Borrower (and guaranteed by any Guarantor
pursuant to the Guaranty) in the event that any of the following occur (each, a “Springing Recourse Event”):
(i) Borrower or Operating Lessee fails to obtain Lender’s prior consent to any financing for borrowed money secured by any
Individual Property, or any voluntary conveyance of a mortgage, deed of trust, security deed, security agreement or similar grant
by Borrower or Operating Lessee of a voluntary Lien upon any Individual Property, or Borrower or Operating Lessee fails to obtain
Lender’s prior consent to any voluntary granting of a security interest in, voluntary pledge of or other voluntary Lien upon
any direct or indirect equity interest in any Individual Borrower, Operating Lessee, or any Mezzanine Borrower, in each case, as
security for any obligations or liabilities that is not permitted under the Loan Documents (excluding, for the avoidance of doubt,
the security interests, pledges or Liens granted under the Loan Documents or Mezzanine Loan Documents securing the Loan or any
Mezzanine Loan), in each case under this clause (i) that is not permitted under the Loan Documents or otherwise cured;
(ii) Borrower fails to obtain Lender’s prior consent to (a) any voluntary transfer of fee title to any Individual Property
that is not permitted under the Loan Documents or otherwise cured, or (b) any voluntary transfer of a direct or indirect interest
in Borrower that results in a change of Control of Borrower, Operating Lessee or Mezzanine Borrower that is not permitted under
the Loan Documents or otherwise cured (specifically excluding from this clause (ii), any transfer of the direct ownership
interests in any Individual Borrower, or any Mezzanine Borrower to any Mezzanine Lender or its designee as result of any foreclosure
upon such ownership interests (or transfer-in-lieu of foreclosure of the ownership interests that are the collateral for the Mezzanine
Loan); (iii) Borrower, Operating Lessee, and/or any Mezzanine Borrower, files a voluntary petition under the Bankruptcy Code or
any other Federal or state bankruptcy or insolvency law; (iv) the filing of an involuntary petition against Borrower, Operating
Lessee, and/or any Mezzanine Borrower under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law by any
other Person in which Borrower, Operating Lessee, and/or any Mezzanine Borrower colludes with or otherwise assists such Person,
and/or Borrower, Operating Lessee, and/or any Mezzanine Borrower solicits or causes to be solicited petitioning creditors for any
involuntary petition against Borrower, Operating Lessee, and/or any Mezzanine Borrower by any Person; (v) Borrower, Operating Lessee,
and/or any Mezzanine Borrower fails to oppose any involuntary petition filed against it by any other Person under the Bankruptcy
Code or any other Federal or state bankruptcy or insolvency law (unless there is no good faith defense to such involuntary petition);
(vi) Borrower, Operating Lessee, or any Mezzanine Borrower or any Affiliate, officer, director or representative which controls
Borrower, Operating Lessee, or such Mezzanine Borrower, as the case may be, consents to, or joins in, an application for the appointment
of a custodian, receiver, trustee or examiner for Borrower, Operating Lessee, and/or any portion of any Individual Property, or
such Mezzanine Borrower, as the case may be; (vii) Borrower, Operating Lessee, and/or any Mezzanine Borrower makes an assignment
for the benefit of creditors or admits, in any legal proceeding, its insolvency or inability to pay its debts as they become due
(in each case except to the extent required by applicable law); or (viii) Borrower or Operating Lessee fails to comply with the
provisions of Section 4.4 or Schedule V of this Agreement (other than those relating to solvency
or adequacy of capital or adequacy of cash flow), and such failure results in an order of substantive consolidation of one (1)
or more of the Individual Borrowers or Operating Lessee with any other Person (other than another Individual Borrower) in a bankruptcy
or similar proceeding under the Bankruptcy Code or any other federal or state bankruptcy or insolvency law.


 


Section 10.2      Survival;
Successors and Assigns. This Agreement and all covenants, agreements, representations and warranties made herein and in
the certificates delivered pursuant hereto shall survive the making by Lender of the Loan and the execution and delivery to Lender
of the Note, and shall continue in full force and effect so long as all or any of the Obligations are outstanding and unpaid unless
a longer period is expressly set forth herein or in the other Loan Documents. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the legal representatives, successors and assigns of such party. All
covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives,
successors and assigns of Lender.








 




    	 	-150-	 



     


    

 


Section 10.3       Lender’s
Discretion; Rating Agency Review Waiver.


 


(a)          Whenever
pursuant to this Agreement Lender exercises any right given to it to approve or disapprove any matter, or any arrangement or term
is to be satisfactory to Lender, the decision of Lender to approve or disapprove such matter or to decide whether arrangements
or terms are satisfactory or not satisfactory shall (except as is otherwise specifically herein provided) be in the sole discretion
of Lender and shall be final and conclusive. Prior to a Securitization, whenever pursuant to this Agreement the Rating Agencies
are given any right to approve or disapprove any matter, or any arrangement or term is to be satisfactory to the Rating Agencies,
the reasonable decision of Lender to approve or disapprove such matter or to decide whether arrangements or terms are satisfactory
or not satisfactory, based upon Lender’s determination of Rating Agency criteria, shall be substituted therefor except as
otherwise specifically herein provided.



 


(b)          Whenever,
pursuant to this Agreement or any other Loan Documents, a Rating Agency Confirmation is required from each applicable Rating Agency,
in the event that any applicable Rating Agency “declines review”, “waives review” or otherwise indicates
in writing or otherwise to Lender’s or Servicer’s satisfaction that no Rating Agency Confirmation will or needs to
be issued with respect to the matter in question (each, a “Review Waiver”), then the Rating Agency Confirmation
requirement shall be deemed to be satisfied with respect to such matter. It is expressly agreed and understood, however, that receipt
of a Review Waiver (i) from any one Rating Agency shall not be binding or apply with respect to any other Rating Agency and (ii)
with respect to one matter shall not apply or be deemed to apply to any subsequent matter for which Rating Agency Confirmation
is required.


 


Section 10.4         Governing
Law.


 


(a)          THIS
AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY LENDER AND ACCEPTED BY BORROWER AND OPERATING LESSEE IN THE STATE
OF NEW YORK, AND THE PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE
PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT
AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE
LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE
LIEN AND SECURITY INTEREST CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED
ACCORDING TO, THE LAW OF THE STATE, COMMONWEALTH OR DISTRICT, AS APPLICABLE, IN WHICH THE APPLICABLE INDIVIDUAL PROPERTY IS LOCATED,
IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, COMMONWEALTH OR DISTRICT, AS APPLICABLE, THE
LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS
ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER AND LENDER EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.


 




    	 	-151-	 



     


    

 


(b)         ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER OR OPERATING LESSEE ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY
AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND BORROWER AND OPERATING LESSEE EACH WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER
HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. DOES HEREBY DESIGNATE AND APPOINT:


 


Corporation
Service company

1180 Avenue of the Americas

suite 210

new york, new york 10036-8401


 


AS ITS AUTHORIZED
AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND BORROWER AND OPERATING LESSEE EACH AGREES THAT SERVICE OF PROCESS UPON
SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL
BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER OR OPERATING LESSEE IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGE IN THE ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK
(WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY
DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING
A SUCCESSOR.


 







    	 	-152-	 



     


    

  


Section 10.5      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 or Operating Lessee therefrom, shall in any event be effective
unless the same shall be in a writing signed by the party or parties against whom enforcement is sought, and then such waiver or
consent shall 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 or Operating Lessee, shall entitle Borrower or Operating Lessee 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, shall operate as or constitute a waiver thereof, nor shall 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 this Agreement or any other Loan Document, Lender
shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement
or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount. Lender shall
have the right to waive or reduce any time periods that Lender is entitled to under the Loan Documents in its sole and absolute
discretion.


 


Section 10.6       Notices.
All notices, demands, requests, consents, approvals or other communications (any of the foregoing, a “Notice”)
required, permitted or desired to be given hereunder shall be in writing and shall be sent by facsimile (with answer back acknowledged)
or by registered or certified mail, postage prepaid, return receipt requested, or delivered by hand or by reputable overnight courier,
addressed to the party to be so notified at its address hereinafter set forth, or to such other address as such party may hereafter,
from time to time, specify in accordance with the provisions of this Section 10.6. Any Notice shall be deemed to have
been received: (a) three (3) days after the date such Notice is mailed, (b) on the date of sending by facsimile if sent during
business hours on a Business Day (otherwise on the next Business Day), (c) on the date of delivery by hand if delivered during
business hours on a Business Day (otherwise on the next Business Day), and (d) on the next Business Day if sent by an overnight
commercial courier, in each case addressed to the parties as follows:


 


	If to Lender:	Deutsche Bank AG, New York Branch
	 	60 Wall Street, 10th Floor
	 	New York, NY  10005
	 	Attention:  General Counsel
	 	Facsimile No. (646) 736-5721
	 	 
	and to:	Deutsche Bank AG, New York Branch
	 	60 Wall Street, 10th Floor
	 	New York, NY  10005
	 	Attention:  Robert W. Pettinato, Jr.
	 	Facsimile No. (212) 797-4489
	 	 
	with a copy to:	Cadwalader, Wickersham & Taft LLP
	 	One World Financial Center
	 	New York, NY  10281
	 	Attention: Bonnie A. Neuman, Esq.
	 	Facsimile No. (212) 504-6666
	 	 
	If to Borrower:	c/o Hospitality Investors Trust, Inc.
	 	3950 University Drive
	 	Fairfax, Virginia
	 	Attention:  General Counsel


 




    	 	-153-	 



     


    

 


	with a copy to:	Cleary Gottlieb Steen & Hamilton LLP
	 	One Liberty Plaza
	 	New York, New York 10006
	 	Attention:  Michael Weinberger, Esq.
	 	Facsimile No. (212) 225-3999


 


Any party may change the address to which
any such Notice is to be delivered by furnishing ten (10) days written notice of such change to the other parties in accordance
with the provisions of this Section 10.6. Notices shall be deemed to have been given on the date as set forth above,
even if there is an inability to actually deliver any such Notice because of a changed address of which no Notice was given, or
there is a rejection or refusal to accept any Notice offered for delivery. Notice for any party may be given by its respective
counsel. Additionally, Notice from Lender may also be given by Servicer and Lender hereby acknowledges and agrees that Borrower
shall be entitled to rely on any Notice given by Servicer as if it had been sent by Lender.


 


Section 10.7      Waiver
of Trial by Jury. BORROWER, OPERATING LESSEE AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE
OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE LOAN DOCUMENTS OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER, OPERATING LESSEE AND LENDER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY
EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.


 


Section 10.8      Headings,
Schedules and Exhibits. The Article and/or Section headings and the Table of Contents in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. The Schedules and Exhibits
annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.


 


Section 10.9      Severability.
Wherever possible, each provision of this Agreement shall be interpreted in such 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 law, 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 10.10     Preferences.
Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower or Operating
Lessee to any portion of the Obligations of Borrower hereunder. To the extent Borrower or Operating Lessee makes a payment or payments
to Lender, which payment or proceeds or any part thereof are 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 Obligations hereunder or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by
Lender.


 




    	 	-154-	 



     


    

 


Section 10.11     Waiver
of Notice. Neither Borrower nor Operating Lessee shall be entitled to any notices of any nature whatsoever from Lender
except with respect to matters for which this Agreement or the other Loan Documents specifically and expressly provide for the
giving of notice by Lender to Borrower or Operating Lessee and except with respect to matters for which Borrower and Operating
Lessee are not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. Borrower and Operating Lessee
each hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or
the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.


 


Section 10.12    Deemed
Distributions Borrower represents that any transfer by Lender of Borrower’s funds (whether pursuant to Section 2.4.4,
Section 6.11 or otherwise) to any Mezzanine Lender pursuant to this Agreement or any other Loan Document is intended
by Borrower to constitute, and Borrower represents that such transfers shall constitute, distributions from Borrower to Mezzanine
Borrower, and shall be treated as such on the books and records of Borrower and Mezzanine Borrower. Borrower agrees that all such
distributions shall comply with the requirements of Section 18-607 of the Delaware Limited Liability Company Act. Borrower
agrees that no provision herein or in any other Loan Document is intended by Borrower to, nor shall any such provision be construed
to create, a debtor-creditor relationship between Borrower and Mezzanine Borrower.


 


Section 10.13    Offsets,
Counterclaims and Defenses. Any assignee of Lender’s interest in and to this Agreement and the other Loan Documents
shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to such documents which Borrower
or Operating Lessee may otherwise have against any assignor of such documents, and no such unrelated counterclaim (other than a
counterclaim which can only be asserted in the suit, action or proceeding by such assignee on this Agreement, the Note, the Mortgage
and any Loan Document and cannot be maintained in a separate action) or defense shall 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 unrelated
offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by Borrower and Operating Lessee.


 


Section 10.14     No
Joint Venture or Partnership; No Third Party Beneficiaries.


 


(a)          Borrower,
Operating Lessee and Lender intend that the relationships created hereunder and under the other Loan Documents be solely that of
borrower and lender. Nothing herein or therein is intended to create a joint venture, partnership, tenancy-in-common or joint tenancy
relationship among Borrower, Operating Lessee and Lender nor to grant Lender any interest in any Individual Property other than
that of mortgagee, beneficiary or lender.


 


(b)          The
Loan Documents are solely for the benefit of Lender, Operating Lessee and Borrower (and the Lender Group, the Issuer and the Underwriter
Group with respect to Section 9.2(b)) and nothing contained in any Loan Document shall be deemed to confer upon anyone
other than Lender, Operating Lessee and Borrower any right to insist upon or to enforce the performance or observance of any of
the obligations contained therein.


 




    	 	-155-	 



     


    

 


Section 10.15     Publicity.
All news releases, publicity or advertising by Borrower, Operating Lessee or their respective Affiliates through any media
intended to reach the general public which refers to the Loan Documents or the financing evidenced by the Loan Documents, to Lender,
the Affiliate of Lender that acts as the issuer with respect to a Securitization or any of their other Affiliates shall be subject
to the prior written approval of Lender.


 


Section 10.16     Waiver
of Marshalling of Assets.


 


(a)          Borrower
acknowledge that Lender has made the Loan to Borrower upon, among other things, the security of its collective interest in the
Properties and in reliance upon the aggregate of the Properties taken together being of greater value as collateral security than
the sum of each Individual Property taken separately. Borrower agrees that the Mortgages are and will be cross-collateralized and
cross-defaulted with each other so that (i) an Event of Default under any of the Mortgages shall constitute an Event of Default
under each of the other Mortgages; (ii) an Event of Default under the Note or this Agreement shall constitute an Event of Default
under each Mortgage; and (iii) each Mortgage shall constitute security for the Note and the Loan as if a single blanket lien were
placed on all of the Properties as security for the Note and the Loan (except where such Mortgage explicitly states a maximum principal
amount to be secured by such Mortgage).


 


(b)          To
the fullest extent permitted by law, Borrower, for itself and its successors and assigns, waives all rights to a marshalling of
the assets of Borrower, Borrower’s members or partners, as applicable, and others with interests in Borrower, and of the
Properties, and shall not assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of
alienation, homestead exemption, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce
or affect the right of Lender under the Loan Documents to a sale of any Individual Property for the collection of the Obligations
without any prior or different resort for collection, or of the right of Lender to the payment of the Obligations out of the net
proceeds of any Individual Property in preference to every other claimant whatsoever.


 


(c)          In
addition, Borrower, for itself and its successors and assigns, waives in the event of foreclosure of any or all of the Mortgages,
any equitable right otherwise available to Borrower which would require the separate sale of the Properties or require Lender to
exhaust its remedies against any Individual Property or any combination of the Properties before proceeding against any other Individual
Property or combination of Properties; and further in the event of such foreclosure Borrower does hereby expressly consents to
and authorizes, at the option of Lender, the foreclosure and sale either separately or together of any combination of the Properties.


 


Section 10.17     Certain
Waivers. Borrower and Operating Lessee each 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 to offset any obligations to make the payments
required by the Loan Documents. No failure by Lender to perform any of its obligations hereunder shall be a valid defense to, or
result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents. Without limiting
any of the other provisions contained herein, Borrower hereby unconditionally and irrevocably waives, to the maximum extent not
prohibited by applicable law, any rights it may have to claim or recover against Lender in any legal action or proceeding any special,
exemplary, punitive or consequential damages.


 




    	 	-156-	 



     


    

 


Section 10.18     Conflict;
Construction of Documents; Reliance. In the event of any conflict between the provisions of this Agreement and any of the
other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented
by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents
shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that,
with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan, without relying
in any manner on any statements, representations or recommendations of Lender or any parent, subsidiary or affiliate of Lender.
Lender shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of
the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any parent,
subsidiary or affiliate of Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives
the right to raise any defense or take any action on the basis of the foregoing with respect to Lender’s exercise of any
such rights or remedies. Borrower acknowledges that Lender engages in the business of real estate financings and other real estate
transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.


 


Section 10.19    Brokers
and Financial Advisors. Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters,
placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower shall indemnify,
defend and hold Lender harmless from and against any and all claims, liabilities, losses, costs and expenses of any kind (including
Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising out of a claim by any Person that
such Person acted on behalf of Borrower or Lender in connection with the transactions contemplated herein. The provisions of this
Section 10.19 shall survive the expiration and termination of this Agreement and the payment of the Obligations.


 


Section 10.20    Prior
Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto
and their respective affiliates in respect of the transactions contemplated hereby and thereby, and all prior agreements among
or between such parties, including any confidentiality agreements or any similar agreements between or among any such parties,
whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.


 


Section 10.21     Servicer.


 


(a)          At
the option of Lender, the Loan may be serviced by a master servicer, primary servicer, special servicer and/or trustee (any such
master servicer, primary servicer, special servicer and trustee, together with its agents, nominees or designees, are collectively
referred to as the “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities
under this Agreement and the other Loan Documents to the Servicer pursuant to a servicing agreement (the “Servicing
Agreement”) between Lender and Servicer. Borrower shall not be responsible for any set-up fees or any other initial
costs relating to or arising under the Servicing Agreement. Borrower shall not be responsible for payment of the annual master
servicing fee due to the Servicer under the Servicing Agreement.


 




    	 	-157-	 



     


    

 


(b)          Notwithstanding
the foregoing, following a Securitization, Borrower shall reimburse Lender on demand for (a) all actual out-of-pocket reasonable
costs and expenses, liquidation fees, workout fees or special servicing fees, in each case as a result of an Event of Default under
the Loan Documents or the Loan becoming specially serviced, or any enforcement, refinancing or restructuring of the credit arrangements
provided for under the Loan Documents in the nature of a “work-out” of the Loan Documents or any insolvency or bankruptcy
of Borrower, in each case without duplication, to the extent default interest paid by Borrower under the Loan Documents is insufficient
to pay the same (after payment of interest payable on advances made by the Servicer) (provided that in any event annual special
servicing fees shall not exceed 0.25% of the then Outstanding Principal Balance amount per annum, workout fees shall not exceed
1.00% of each collection of interest and principal collections of the Loan, and liquidation fees shall not exceed the amount, if
any, by which 1.00% of liquidation proceeds exceeds the amount previously paid in respect of workout fees) and (b) during the continuance
of an Event of Default or at any time the Loan is specially serviced, the reasonable costs of all customary property inspections
and/or appraisals of the Properties (or updates to any existing inspection or appraisal) that Servicer may be required to obtain
pursuant to the applicable trust and servicing or pooling and servicing agreement (other than the cost of regular annual inspections
required to be borne by Servicer under such servicing agreement). Additionally, Borrower shall pay all reasonable out-of-pocket
costs and expenses (but not any additional servicing fee) in connection with any consent requests made by Borrower during the term
of the Loan. For avoidance of doubt, no modification fee or other amount (other than Lender’s reasonable out-of-pocket costs)
shall be payable in connection with (i) any transaction for which a workout fee is paid, or (ii) any assumption of the Loan, except
as expressly provided in Section 7.1. To the extent late charges and default interest under the Loan Documents paid
by Borrower are insufficient to pay the same (and all actual out-of-pocket reasonable costs and expenses, liquidation fees, workout
fees or special servicing fees as a result of an Event of Default under the Loan Documents or the Loan becoming specially serviced,
or any enforcement, refinancing or restructuring of the credit arrangements provided for under the Loan Documents in the nature
of a “work-out” of the Loan Documents or any insolvency or bankruptcy of Borrower, subject to the caps specified herein),
Borrower shall pay the interest payable on advances made by Servicer or the trustee with respect to any delinquent debt service
payments and any protective advances.


 


Section 10.22     Intentionally
Omitted.


 


Section 10.23     Joint
and Several Liability. The representations, covenants, warranties and obligations of Borrower hereunder are joint and several
representations, covenants, warranties and obligations of each and every Individual Borrower. Each Individual Borrower hereby jointly
and severally waives presentment, demand, notice, protest and all other suretyship defenses generally and agrees that (i) any renewal,
extension or postponement of the time of payment or any other indulgence, (ii) any modification, supplement or alteration of any
of the obligations of any Individual Borrower hereunder, or (iii) any substitution, exchange or release of collateral or the addition
or release of any Person primarily or secondarily liable hereunder, may be effected without notice to any Individual Borrower,
and without releasing any Individual Borrower from any liability hereunder. The parties hereto acknowledge that the defined term
“Borrower” has been defined to collectively include each Individual Borrower. It is the intent of the parties
hereto in determining whether (a) a breach of a representation or a covenant has occurred, (b) there has occurred a Default or
Event of Default, or (c) an event has occurred which would create recourse obligations under Section 10.1 of this Agreement,
that any such breach, occurrence or event with respect to any Individual Borrower shall be deemed to be such a breach, occurrence
or event with respect to all Individual Borrowers and that all Individual Borrowers need not have been involved with such breach,
occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Individual Borrower.


 




    	 	-158-	 



     


    

 


10.23.1   Cross Guaranty. In order to induce Lender to extend credit to the Individual Borrowers
comprising Borrower hereunder, each Individual Borrower hereby irrevocably and unconditionally guarantees, as a primary obligor
and not merely as a surety, the payment when and as due of the Obligations of such other Individual Borrowers. Each Individual
Borrower further agrees that the due and punctual payment of such Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such
extension or renewal of any such Obligation.


 


(a)          Each
Individual Borrower waives presentment to, demand of payment from and protest to any Individual Borrower of any of the Obligations,
and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Individual
Borrower hereunder shall not be affected by (a) the failure of Lender to assert any claim or demand or to enforce any right or
remedy against any Individual Borrower under the provisions of this Agreement, any other Loan Document or otherwise; (b) any extension
or renewal of any of the Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms
or provisions of this Agreement, or any other Loan Document or agreement; (d) any default, failure or delay, willful or otherwise,
in the performance of any of the Obligations; (e) the failure of Lender take any steps to perfect and maintain any security interest
in, or to preserve any rights to, any security or collateral for the Obligations, if any; (f) any change in the corporate, partnership
or other existence, structure or ownership of any Individual Borrower or any other guarantor of any of the Obligations; (g) the
enforceability or validity of the Obligations or any part thereof or the genuineness, enforceability or validity of any agreement
relating thereto or with respect to any collateral securing the Obligations or any part thereof, or any other invalidity or unenforceability
relating to or against any Individual Borrower or any other guarantor of any of the Obligations, for any reason related to this
Agreement, any other Loan Document, or any provision of applicable law, decree, order or regulation of any jurisdiction purporting
to prohibit the payment by such Individual Borrower or any other guarantor of the Obligations, of any of the Obligations or otherwise
affecting any term of any of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in
any manner or to any extent vary the risk of such Individual Borrower or otherwise operate as a discharge of a guarantor as a matter
of law or equity or which would impair or eliminate any right of such Individual Borrower to subrogation.


 


(b)          Each
Individual Borrower further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any
bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge
thereof) and not merely of collection, and waives any right to require that any resort be had by Lender to any balance of any deposit
account or credit on the books of Lender in favor of any Individual Borrower or any other Person.


 




    	 	-159-	 



     


    

 


(c)          The
obligations of each Individual Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination
for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason
of the invalidity, illegality or unenforceability of any of the Obligations, any impossibility in the performance of any of the
Obligations or otherwise.


 


(d)          Each
Individual Borrower further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by Lender upon
the bankruptcy or reorganization of any Individual Borrower or otherwise.


 


(e)          In
furtherance of the foregoing and not in limitation of any other right which Lender may have at law or in equity against any Individual
Borrower by virtue hereof, upon the failure of any other Borrower to pay any Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise, each Individual Borrower hereby promises to and
will, upon receipt of written demand by Lender, forthwith pay, or cause to be paid, to Lender in cash an amount equal to the
unpaid principal amount of such Obligations then due, together with accrued and unpaid interest thereon.


 


(f)           Each
Individual Borrower (i) agrees that it shall have no right of subrogation with respect to the obligations of the other Individual
Borrowers; (ii) waives any right to enforce any remedy that Lender now has or may hereafter have against any of the other Individual
Borrowers any endorser or any guarantor of all or any part of such obligations or any other person; and (iii) waives any benefit
of, and any right to participate in, any security or collateral given to Lender to secure the payment or performance of all or
any part of such obligations or any other liability of the other parties to Lender.


 


(g)          Each
Individual Borrower agrees that any and all claims that it may have against any of the other Individual Borrowers, any endorser
or any other guarantor of all or any part of the obligations of the other Individual Borrowers, or against any of their respective
properties, shall be subordinate and subject in right of payment to the prior payment in full of all obligations secured hereby.
Notwithstanding any right of any Individual Borrower to ask, demand, sue for, take or receive any payment from the other Individual
Borrowers, all rights, liens and security interests of an Individual Borrower, whether now or hereafter arising and howsoever existing,
in any assets of any of the other Individual Borrowers (whether constituting part of the security or collateral given to Lender
to secure payment of all or any part of the obligations of the other Individual Borrowers or otherwise) shall be and hereby are
subordinated to the rights of Lender in those assets.


 


(h)          Other
than as expressly set forth in the Loan Documents, nothing shall discharge or satisfy the liability of any Individual Borrower
hereunder except the full performance and payment of the Obligations.


 


Section 10.24    Creation
of Security Interest. Notwithstanding any other provision set forth in this Agreement, the Note, the Mortgage or any of
the other Loan Documents, Lender may at any time create a security interest in all or any portion of its rights under this Agreement,
the Note, the Mortgage and any other Loan Document (including the advances owing to it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve System.


  




    	 	-160-	 



     


    

 


Section 10.25     Assignments
and Participations. In addition to any other rights of Lender hereunder, the Loan, the Note, the Loan Documents and/or
Lender’s rights, title, obligations and interests therein may be sold, assigned, participated or otherwise transferred by
Lender and any of its successors and assigns to any Person at any time in its sole and absolute discretion, in whole or in part,
whether by operation of law (pursuant to a merger or other successor in interest) or otherwise without notice to or consent from
Borrower or any other Person. Upon such assignment, all references to Lender in this Agreement and in any Loan Document (or to
an individual assigning co-lender in the event an individual co-lender make such assignment rather than an assignment in whole
by Lender) shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall
thereafter stand in the place of Lender (or in the case of an individual assigning co-lender in the event an individual co-lender
make such assignment rather than an assignment in whole by Lender, such assignee of or successor in interest to such co-lender)
in all respects. Except as expressly permitted herein, neither Borrower nor Operating Lessee may assign its rights, title, interests
or obligations under this Agreement or under any of the Loan Documents. In the event that the Loan is syndicated to five (5) or
more co-lenders, then such co-lenders shall appoint an administrative agent or lead lender to act on behalf of such co-lenders
and to serve as Borrower’s single point of contact with respect to the Loan Documents.




 


Section 10.26     Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.


 


Section 10.27     Set-Off.
In addition to any rights and remedies of Lender provided by this Agreement and by law, Lender shall have the right in its
sole discretion, without prior notice to Borrower, any such notice being expressly waived by Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by Borrower hereunder (whether at the stated maturity, by acceleration
or otherwise), to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Lender or any Affiliate thereof to or for
the credit or the account of Borrower; provided however, Lender may only exercise such right during the continuance of an Event
of Default. Lender agrees promptly to notify Borrower after any such set-off and application made by Lender; provided that the
failure to give such notice shall not affect the validity of such set-off and application.


 


Section 10.28     [Reserved].


 


Section 10.29     Intercreditor
Agreement. Lender and Mezzanine Lender are or will be parties to a certain intercreditor
agreement (the “Intercreditor Agreement”) memorializing their relative
rights and obligations with respect to the Loan, the Mezzanine Loan, Borrower, Operating Lessee, Mezzanine Borrower, the Properties
and the “Collateral” (as defined in the Mezzanine Loan Agreement). Borrower hereby acknowledges and agrees that (i)
such Intercreditor Agreement is intended solely for the benefit of Lender and Mezzanine Lender and (ii) none of Borrower, Operating
Lessee nor Mezzanine Borrower are intended third-party beneficiaries of any of the provisions therein and shall not be entitled
to rely on any of the provisions contained therein. Lender and Mezzanine Lender shall have no obligation to disclose to Borrower
the contents of the Intercreditor Agreement. Borrower’s obligations hereunder are independent of such Intercreditor Agreement
and remain unmodified by the terms and provisions thereof.


 




    	 	-161-	 



     


    

 


Section 10.30      Note
Register; Participant Register.


 


(a)          Servicer,
as non-fiduciary agent of Borrower, or if there is no Servicer, the administrative agent or lead lender, as non-fiduciary agent
of Borrower, or if there is no administrative agent or lead lender, Borrower (or in the case of assignments to participants, the
applicable Lender pursuant to paragraph (b) below), shall maintain a record within the meaning of U.S. Treasury Regulation
5f.103-1(c) that identifies each owner (including successors, assignees and participants) of an interest in the Loan, including
the name and address of the owner, and each owner’s rights to principal and stated interest (the “Register”)
and shall record all transfers of an interest in the Loan, including each assignment and participation, in the Register. The entries
in the Register shall be conclusive absent manifest error, and Borrower, Lender and Servicer may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The parties
intend for the Loan to be in registered form for tax purposes and to the extent of any conflict with this Section 10.30,
this Section 10.30 shall be construed in accordance with that intent. The Register shall be available for inspection
by Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice. Failure to make any such
recordation, or any error in such recordation, however, shall not affect Borrower’s obligations in respect of the Loan. Borrower
acknowledges that the Notes are in registered form and may not be transferred except by register.


 


(b)          Each
Lender that sells a participation hereunder shall, acting solely for this purpose as an agent of Borrower, maintain a register
on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s
interest in the Loan or other obligations under the Loan Documents (the “Participant Register”); provided,
however, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity
of any participant or any information relating to a participant’s interest in any obligations under any Loan Document) to
any Person except to the extent that such disclosure is necessary to establish that such obligation is in registered form under
U.S. Treasury Regulation 5f.103-1(c).  The entries in the Participant Register shall be conclusive absent manifest error,
and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Servicer shall have no responsibility
for maintaining a Participant Register.


 







    	 	-162-	 



     


    

  


Section 10.31     Borrower
Affiliate Lender.   Lender agrees that the Lender Documents shall not prohibit or restrict Affiliates of
Borrower from purchasing or otherwise acquiring and owning (a) beneficial interests in the Loan as evidenced by any single or
multi class non-voting Securities in respect of any private or public securitization of the Loan or (b) any direct or indirect
interests in any Mezzanine Loan or any of the New Mezzanine Loans (or otherwise impose additional restrictions or requirements
on a transfer to such Affiliate of Borrower), provided, however, that the Lender Documents may include customary restrictions
on the exercise of the rights and remedies by such Affiliates of Borrower under the Loan, any Mezzanine Loan and any New Mezzanine
Loan including, without limitation, (i) restrictions on any such Affiliate having the right to, or exercising, directly or indirectly,
any control, decision-making power, voting rights, notice and cure rights, or other rights that would otherwise benefit a holder
by virtue of its ownership or control of any interest with respect to the Loan, any Mezzanine Loan or any New Mezzanine Loan,
(ii) restrictions on any such Affiliate’s approval and consent rights under any intercreditor agreement, co-lender agreement
or similar agreement, (iii) restrictions on such Affiliate’s initiation of enforcement actions against equity collateral,
(iv) restrictions on the making of protective advances, (v) restrictions on such Affiliate from making or bringing any claim,
in its capacity as a holder of any direct or indirect interest in the Loan, any Mezzanine Loan or any New Mezzanine Loan, against
Lender, any Mezzanine Lender or any New Mezzanine Lender or any agent of any of the foregoing with respect to the duties and obligations
of such Person under the Loan Documents, any Mezzanine Loan Documents, or any New Mezzanine Loan Documents, any intercreditor
agreement or any applicable co-lender agreement or similar agreement and (vi) restrictions on such Affiliate’s access to
any electronic platform for the distribution of materials or information among the Lenders and any New Mezzanine Lender, “asset
status reports” or any correspondence or materials or notices of or participation in any discussions, meetings or conference
calls (among Lenders and any New Mezzanine Lender, any of their respective co-Lender or participants, or otherwise) regarding
or relating to any workout discussions or litigation or foreclosure strategy (or potential litigation strategy) involving the
Loan, any Mezzanine Loan or any New Mezzanine Loan, other than in its capacity as Borrower, Mezzanine Borrower or a New Mezzanine
Borrower to the extent discussions and negotiations are being conducted with Borrower, Mezzanine Borrower or such New Mezzanine
Borrower (as distinct from internal discussions and negotiations among the various creditors).


 


Section 10.32     Acknowledgement
and Consent to Bail-In of EEA Financial Institutions.


 


(a)          Notwithstanding
anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among the respective parties
thereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to
the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and
agrees and consents to, and acknowledges and agrees to be bound by:


 


(i)          the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and


 


(ii)         the
effects of any Bail-In Action on any such liability, including, if applicable:


 


(A)        a
reduction in full or in part or cancellation of any such liability;


 


(B)        a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or


 




    	 	-163-	 



     


    

 


(C)         the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.


 


(b)         As
used in this Section 10.32 the following terms have the following meanings ascribed thereto: (i) “Bail-In
Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in
respect of any liability of an EEA Financial Institution; (ii)”Bail-In Legislation” means, with respect
to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of
the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation
Schedule; (iii) “EEA Financial Institution” means (x) any credit institution or investment firm established
in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; (y) any entity established in an
EEA Member Country which is a parent of an institution described in clause (x) of this definition, or (x) any financial
institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (x) or
(y) of this definition and is subject to consolidated supervision with its parent; (iv) “EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway or any other member state of the European
Economic Area; (v) “EEA Resolution Authority” means any public administrative authority or any person
entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the
resolution of any EEA Financial Institution; (vi) “EU Bail-In Legislation Schedule” means the EU Bail-In
Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time; and (vii)
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down
and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.


 


Section 10.33     Intentionally
Omitted.


 


Section 10.34     Patriot
Act Notice. The Patriot Act requires all financial institutions to obtain, verify and record
certain information that identifies individuals or business entities which open an “account” with such financial institution.
Consequently, Lender may from time-to-time request, and Borrower shall provide to Lender, Borrower’s name, address, tax identification
number and/or such other identification information as shall be necessary for Lender to comply with federal law. An “account”
for this purpose may include, without limitation, a deposit account, cash management service, a transaction or asset account, a
credit account, a loan or other extension of credit and/or other financial services product.


 


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    	 	-164-	 



     


    

 


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


 


	 	LENDER:
	 	 
	 	DEUTSCHE BANK AG, NEW YORK BRANCH
	 	 	 
	 	By: 	/s/ David Goodman
	 	 	Name: David Goodman
	 	 	Title:   Managing Director
	 	 	 
	 	By: 	/s/ Lisa Paterson
	 	 	Name: Lisa Paterson
	 	 	Title:   Managing Director


 


[SIGNATURES CONTINUE ON
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[SIGNATURE PAGE]


 




     


     


    

 


	 	BORROWER:
	 	 
	 	HIT BALTIMORE, LLC, a Delaware limited liability company
	 	 
	 	By:	/s/ Paul C. Hughes
	 	 	Name: Paul C. Hughes
	 	 	Title:   General Counsel and Secretary
	 	 	 
	 	HIT PROVIDENCE, LLC, a Delaware limited liability company
	 	 	 
	 	By:	/s/ Paul C. Hughes
	 	 	Name: Paul C. Hughes
	 	 	Title:   General Counsel and Secretary


 


[SIGNATURE PAGE]


 




     


     


    

 


	 	OPERATING LESSEE:
	 	 
	 	HIT TRS BALTIMORE, LLC, a Delaware limited liability
    company
	 	 
	 	By:	/s/ Paul C. Hughes
	 	 	Name: Paul C. Hughes
	 	 	Title:   General Counsel and Secretary
	 	 	 
	 	HIT TRS PROVIDENCE, LLC, a Delaware limited liability
    company
	 	 	 
	 	By:	/s/ Paul C. Hughes
	 	 	Name: Paul C. Hughes
	 	 	Title:   General Counsel and Secretary


 


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