HighlandM3LoanAgreement




EXHIBIT 10.4




Loan No.: 4571085






MEZZANINE C LOAN AGREEMENT
Dated as of March 6, 2015
Between
ASHFORD A-3 MEZZ LLC and ASHFORD G-3 MEZZ LLC, 
collectively, as Borrower
and
COLUMN FINANCIAL, INC., 
as Lender









20752111.3.BUSINESS 


TABLE OF CONTENTS


Page


		
	ARTICLE 1
	DEFINITIONS; PRINCIPLES OF CONSTRUCTION    2


		
	Section 1.1.
	Definitions    2


		
	Section 1.2.
	Principles of Construction    45


		
	ARTICLE 2
	GENERAL TERMS    46


		
	Section 2.1.
	The Loan    46


		
	Section 2.2.
	Disbursement to Borrower    46


		
	Section 2.3.
	The Note, the Pledge Agreement and Loan Documents    46


		
	Section 2.4.
	Interest Rate    46


		
	Section 2.5.
	Loan Payments    49


		
	Section 2.6.
	Loan Prepayments    54


		
	Section 2.7.
	Taxes    56


		
	Section 2.8.
	Intentionally Omitted    60


		
	Section 2.9.
	Property Releases    60


		
	ARTICLE 3
	CONDITIONS PRECEDENT    63


		
	Section 3.1.
	Conditions Precedent    63


		
	ARTICLE 4
	REPRESENTATIONS AND WARRANTIES    63


		
	Section 4.1.
	Organization    63


		
	Section 4.2.
	Status of Borrower    64


		
	Section 4.3.
	Validity of Documents    64


		
	Section 4.4.
	No Conflicts    64


		
	Section 4.5.
	Litigation    65


		
	Section 4.6.
	Agreements    65


		
	Section 4.7.
	Solvency    66


		
	Section 4.8.
	Full and Accurate Disclosure    66


		
	Section 4.9.
	No Plan Assets    66


		
	Section 4.10.
	Not a Foreign Person    67


		
	Section 4.11.
	Enforceability    67


		
	Section 4.12.
	Business Purposes    67


		
	Section 4.13.
	Compliance    67


		
	Section 4.14.
	Financial Information    68


		
	Section 4.15.
	Condemnation    68


		
	Section 4.16.
	Utilities and Public Access; Parking    68


		
	Section 4.17.
	Separate Lots    69


		
	Section 4.18.
	Assessments    69


		
	Section 4.19.
	Insurance    69


		
	Section 4.20.
	Use of Property    69


		
	Section 4.21.
	Certificate of Occupancy; Licenses    69


		
	Section 4.22.
	Flood Zone    70


		
	Section 4.23.
	Physical Condition    70


		
	Section 4.24.
	Boundaries    70


		
	Section 4.25.
	Leases    70


		
	Section 4.26.
	Filing and Recording Taxes    71


		
	Section 4.27.
	Management Agreement    71


		
	Section 4.28.
	Illegal Activity    72


		
	Section 4.29.
	Construction Expenses    72



20752111.3.BUSINESS     i


TABLE OF CONTENTS
(continued)
Page


		
	Section 4.30.
	Personal Property    72


		
	Section 4.31.
	Taxes    72


		
	Section 4.32.
	Title    72


		
	Section 4.33.
	Federal Reserve Regulations    73


		
	Section 4.34.
	Investment Company Act    73


		
	Section 4.35.
	Property Documents    74


		
	Section 4.36.
	No Change in Facts or Circumstances; Disclosure    74


		
	Section 4.37.
	Intellectual Property    75


		
	Section 4.38.
	Compliance with Prescribed Laws    75


		
	Section 4.39.
	Brokers and Financial Advisors    75


		
	Section 4.40.
	Franchise Agreements    75


		
	Section 4.41.
	PIPS    76


		
	Section 4.42.
	Intentionally Omitted    76


		
	Section 4.43.
	Labor Matters    76


		
	Section 4.44.
	Ground Lease    76


		
	Section 4.45.
	Operating Lease Representations    78


		
	Section 4.46.
	Condominium Representations    78


		
	Section 4.47.
	Affiliates    80


		
	Section 4.48.
	Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower Representations    80


		
	Section 4.49.
	Mortgage Loan Documents    80


		
	Section 4.50.
	Other Mezzanine Loan Documents    80


		
	Section 4.51.
	Mortgage Loan Default, Mezzanine A Loan Default and Mezzanine B Loan Default    81


		
	Section 4.52.
	Survival    81


		
	ARTICLE 5
	BORROWER COVENANTS    81


		
	Section 5.1.
	Existence; Compliance with Requirements    81


		
	Section 5.2.
	Maintenance and Use of Property    83


		
	Section 5.3.
	Waste    83


		
	Section 5.4.
	Taxes and Other Charges    83


		
	Section 5.5.
	Litigation    85


		
	Section 5.6.
	Access to Properties    85


		
	Section 5.7.
	Notice of Default    85


		
	Section 5.8.
	Cooperate in Legal Proceedings    85


		
	Section 5.9.
	Performance by Borrower    85


		
	Section 5.10.
	Awards; Insurance Proceeds    86


		
	Section 5.11.
	Financial Reporting    86


		
	Section 5.12.
	Estoppel Statement    89


		
	Section 5.13.
	Leasing Matters    90


		
	Section 5.14.
	Property Management    92


		
	Section 5.15.
	Liens    94


		
	Section 5.16.
	Debt Cancellation    94


		
	Section 5.17.
	Zoning    94


		
	Section 5.18.
	ERISA    94


		
	Section 5.19.
	No Joint Assessment    95


		
	Section 5.20.
	Intentionally Omitted    95


		
	Section 5.21.
	Alterations    95


		
	Section 5.22.
	Property Documents    96



20752111.3.BUSINESS     ii


TABLE OF CONTENTS
(continued)
Page


		
	Section 5.23.
	Compliance with Prescribed Laws    97


		
	Section 5.24.
	Interest Rate Cap Agreement    97


		
	Section 5.25.
	Franchise Agreement    99


		
	Section 5.26.
	Trade Names    100


		
	Section 5.27.
	Ground Lease    100


		
	Section 5.28.
	The Operating Lease    101


		
	Section 5.29.
	Intentionally Omitted    102


		
	Section 5.30.
	Condominium Covenants    102


		
	Section 5.31.
	Mortgage Loan Reserve Funds    106


		
	Section 5.32.
	Notices    106


		
	Section 5.33.
	Special Distributions    106


		
	Section 5.34.
	Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower Covenants    107


		
	Section 5.35.
	Mortgage Loan, Mezzanine A Loan and Mezzanine B Loan Estoppels    108


		
	Section 5.36.
	Change in Business    109


		
	Section 5.37.
	Limitation on Securities Issuances    109


		
	Section 5.38.
	Acquisition of the Mortgage Loan, the Mezzanine A Loan and the Mezzanine B Loan    110


		
	Section 5.39.
	Material Agreements    110


		
	Section 5.40.
	PIP Guaranty    111


		
	Section 5.41.
	Ritz-Carlton Atlanta and the Crowne Plaza Ravinia Environmental Covenants    112


		
	Section 5.42.
	Hilton Tampa Westshore Environmental Covenants    112


		
	Section 5.43.
	Franchise Extension Payment    112


		
	ARTICLE 6
	ENTITY COVENANTS    113


		
	Section 6.1.
	Single Purpose Entity/Separateness    113


		
	Section 6.2.
	Change of Name, Identity or Structure    118


		
	Section 6.3.
	Business and Operations    118


		
	Section 6.4.
	Independent Director    118


		
	ARTICLE 7
	NO SALE OR ENCUMBRANCE    119


		
	Section 7.1.
	Transfer Definitions    119


		
	Section 7.2.
	No Sale/Encumbrance    120


		
	Section 7.3.
	Permitted Transfers    120


		
	Section 7.4.
	Assumption    122


		
	Section 7.5.
	Immaterial Transfers and Easements, Etc    126


		
	Section 7.6.
	Advised Entity Transfer    127


		
	Section 7.7.
	Replacement Guarantor    127


		
	ARTICLE 8
	INSURANCE; CASUALTY; CONDEMNATION; RESTORATION    128


		
	Section 8.1.
	Insurance    128


		
	Section 8.2.
	Intentionally Omitted    129


		
	Section 8.3.
	Casualty    129


		
	Section 8.4.
	Condemnation    129


		
	Section 8.5.
	Restoration    130


		
	ARTICLE 9
	RESERVE FUNDS    131



20752111.3.BUSINESS     iii


TABLE OF CONTENTS
(continued)
Page


		
	Section 9.1.
	Deposit and Maintenance of Reserve Funds    131


		
	Section 9.2.
	Transfer of Reserve Funds under Mortgage Loan    132


		
	ARTICLE 10
	CASH MANAGEMENT    132


		
	Section 10.1.
	Deposit Account; Cash Management Account    132


		
	Section 10.2.
	Borrower Distributions    133


		
	ARTICLE 11
	EVENTS OF DEFAULT; REMEDIES    133


		
	Section 11.1.
	Event of Default    133


		
	Section 11.2.
	Remedies    138


		
	Section 11.3.
	Right to Cure Defaults    139


		
	ARTICLE 12
	INTENTIONALLY OMITTED    140


		
	ARTICLE 13
	SECONDARY MARKET    140


		
	Section 13.1.
	Transfer of Loan    140


		
	Section 13.2.
	Delegation of Servicing    140


		
	Section 13.3.
	Dissemination of Information    141


		
	Section 13.4.
	Cooperation    141


		
	Section 13.5.
	Securitization    143


		
	Section 13.6.
	Regulation AB Obligor Information    149


		
	Section 13.7.
	Other Regulation AB Information    150


		
	Section 13.8.
	Mezzanine Option    150


		
	Section 13.9.
	Uncross of Properties    152


		
	Section 13.10.
	Intercreditor Agreement    152


		
	ARTICLE 14
	INDEMNIFICATIONS    152


		
	Section 14.1.
	General Indemnification    152


		
	Section 14.2.
	Mortgage and Intangible Tax Indemnification    153


		
	Section 14.3.
	ERISA Indemnification    154


		
	Section 14.4.
	Survival    154


		
	ARTICLE 15
	EXCULPATION    154


		
	Section 15.1.
	Exculpation    154


		
	ARTICLE 16
	NOTICES    159


		
	Section 16.1.
	Notices    159


		
	ARTICLE 17
	FURTHER ASSURANCES    160


		
	Section 17.1.
	Replacement Documents    160


		
	Section 17.2.
	Execution of Pledge Agreement    160


		
	Section 17.3.
	Further Acts, etc    161


		
	Section 17.4.
	Changes in Tax, Debt, Credit and Documentary Stamp Laws    161


		
	Section 17.5.
	Expenses    162


		
	Section 17.6.
	Cost of Enforcement    164


		
	Section 17.7.
	Mortgage Loan Defaults    164



20752111.3.BUSINESS     iv


TABLE OF CONTENTS
(continued)
Page


		
	Section 17.8.
	Discussions with Mortgage Lender, Mezzanine A Lender and Mezzanine B Lender    166


		
	Section 17.9.
	Mezzanine A Loan Defaults and Mezzanine B Loan Defaults    166


		
	Section 17.10.
	Independent Approval Rights    168


		
	ARTICLE 18
	WAIVERS    168


		
	Section 18.1.
	Remedies Cumulative; Waivers    168


		
	Section 18.2.
	Modification, Waiver in Writing    169


		
	Section 18.3.
	Delay Not a Waiver    169


		
	Section 18.4.
	Trial by Jury    169


		
	Section 18.5.
	Waiver of Notice    170


		
	Section 18.6.
	Remedies of Borrower    170


		
	Section 18.7.
	Cross Default; Cross Collateralization; Waiver of Marshalling of Assets    170


		
	Section 18.8.
	Waiver of Statute of Limitations    171


		
	Section 18.9.
	Waiver of Counterclaim    171


		
	ARTICLE 19
	GOVERNING LAW    171


		
	Section 19.1.
	Governing Law    171


		
	Section 19.2.
	Severability    172


		
	Section 19.3.
	Preferences    173


		
	ARTICLE 20
	MISCELLANEOUS    173


		
	Section 20.1.
	Survival    173


		
	Section 20.2.
	Lender’s Discretion    173


		
	Section 20.3.
	Headings    173


		
	Section 20.4.
	Schedules Incorporated    173


		
	Section 20.5.
	Offsets, Counterclaims and Defenses    173


		
	Section 20.6.
	No Joint Venture or Partnership; No Third Party Beneficiaries    174


		
	Section 20.7.
	Publicity    175


		
	Section 20.8.
	Conflict; Construction of Documents; Reliance    175


		
	Section 20.9.
	Duplicate Originals; Counterparts    176


		
	Section 20.10.
	Joint and Several Liability    176


		
	Section 20.11.
	Entire Agreement    176


		
	Section 20.12.
	Contributions and Waivers    176


		
	Section 20.13.
	Qualified Brand Franchise Agreements    180


		
	Section 20.14.
	State Law Provisions    180


Exhibit A        Organizational Chart
Exhibit B        Post 1031 Exchange Organizational Chart 
Exhibit C        Form of U.S. Tax Compliance Certificates
Exhibit D        Recycled Entity Certificate
Exhibit E        Resignation Letters


Schedule I         Mortgage Borrower
Schedule II         Allocated Loan Amount
Schedule III        Franchise Agreement and Franchisor
Schedule IV        Management Agreement and Manager
Schedule V        Operating Lease and Operating Lessee
Schedule VI        Scheduled PIPs

20752111.3.BUSINESS     v


TABLE OF CONTENTS
(continued)
Page


Schedule VII        Reserved
Schedule VIII        Reserved
Schedule IX        Reserved
		
	Schedule X
	Reserved


Schedule XI        Assignment of Management Agreements
Schedule XII        Ground Leases
Schedule XIII        Select Release Properties
Schedule XIV        Prime ROFO Release Properties
Schedule XV        Condominium Documents
Schedule XVI        Reserved
Schedule 4.44        Ground Lease Exceptions 
Schedule 4.46        Condominium Representation Exceptions
Schedule 5.25        Hilton Garden Inn Austin Quality Assurance Inspection Repairs Report





20752111.3.BUSINESS     vi






MEZZANINE C LOAN AGREEMENT
THIS MEZZANINE C LOAN AGREEMENT, dated as of March 6, 2015 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), between COLUMN FINANCIAL, INC., having an address at 11 Madison Avenue, New York, New York 10010 (together with its successors and/or assigns, “Lender”) and ASHFORD A-3 MEZZ LLC and ASHFORD G-3 MEZZ LLC each a Delaware limited liability company, each having an address c/o Ashford Hospitality Trust, 14185 Dallas Parkway, Suite 1100, Dallas, Texas 75254 (together with their successors and/or assigns, individually and/or collectively, as the context may require, “Borrower”).
RECITALS:
WHEREAS, Column Financial, Inc., as mortgage lender (in such capacity, together with its successors and assigns, “Mortgage Lender”), has made a loan (the “Mortgage Loan”) to the entities set forth on Schedule I attached hereto (collectively, “Mortgage Borrower”), pursuant to that certain Loan Agreement, dated as of the date hereof (as as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Mortgage Loan Agreement”), which Mortgage Loan is evidenced by, among other things, the Mortgage Note (as hereinafter defined) and secured by, among other things, the Mortgages (as hereinafter defined); 
WHEREAS, Column Financial, Inc., as mezzanine lender (in such capacity, together with its successors and assigns, “Mezzanine A Lender”) has made a senior mezzanine loan (the “Mezzanine A Loan”) to HH SWAP A LLC and HH SWAP G LLC, each a Delaware limited liability company (collectively, “Mezzanine A Borrower”), pursuant to that certain Mezzanine A Loan Agreement, dated as of the date hereof (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Mezzanine A Loan Agreement”), which Mezzanine A Loan is evidenced by, among other things, the Note (as defined in the Mezzanine A Loan Agreement) and secured by, among other things, the Mezzanine A Pledge Agreement;
WHEREAS, Column Financial, Inc., as mezzanine lender (in such capacity, together with its successors and assigns, “Mezzanine B Lender”) has made a mezzanine loan (the “Mezzanine B Loan”) to HH Mezz Borrower A-2 LLC and HH Mezz Borrower G-2 LLC, each a Delaware limited liability company (collectively, “Mezzanine B Borrower”), pursuant to that certain Mezzanine B Loan Agreement, dated as of the date hereof (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Mezzanine B Loan Agreement”), which Mezzanine B Loan is evidenced by, among other things, the Note (as defined in the Mezzanine B Loan Agreement) and secured by, among other things, the Mezzanine B Pledge Agreement;
WHEREAS, Borrower is the legal and beneficial owner of one hundred percent (100%) of the membership interests in each Mezzanine B Borrower; 

20752111.3.BUSINESS 
1






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 of this Agreement and the other Loan Documents.
NOW, THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:
ARTICLE 1 
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1.    Definitions
For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:
“1031 Exchange” shall mean the transfer of one hundred percent (100%) of PIM H.H. 1031 LLC’s ownership interests in PIM Highland Holding LLC to Guarantor.
“Acceptable Accountant” shall mean a “Big Four” accounting firm or other independent certified public accountant reasonably acceptable to Lender.
“Acceptable Counterparty” shall mean a bank or other financial institution which has (a) a long-term unsecured debt rating of “A+” or higher by S&P (which rating shall not include a “t” or otherwise reflect a termination risk or otherwise be qualified); (b) either (i) a long-term unsecured debt rating of not less than “A2” by Moody’s (which rating shall not include a “t” or otherwise reflect a termination risk or otherwise be qualified) and a short-term senior unsecured debt rating of at least  “P1” from Moody’s (which rating shall not include a “t” or otherwise reflect a termination risk or otherwise be qualified), or (ii) if no short-term debt rating exists, a long-term senior unsecured debt rating of at least “A1” from Moody’s (which rating shall not include a “t” or otherwise reflect a termination risk or otherwise be qualified); and (c) a long-term unsecured debt rating of at least “A” by Fitch (and not on Ratings Watch Negative) and short-term unsecured debt rating of at least “F1” (and not on Ratings Watch Negative) by Fitch.
“Act” shall mean Chapter 18 of Title 6 of the Delaware Code, as amended from time to time, and any successor statute or statutes.
“Additional Permitted Transfer” shall mean each of the following:
(a)    Permitted Encumbrances;

20752111.3.BUSINESS 
2






(b)    the Transfer, issuance, conversion or redemption of stock, membership interests and/or partnership interests in a Parent Entity or, after an Advised Entity Transfer, a comparable parent level entity;
(c)    the disposal or transfer of worn out or obsolete Personal Property;
(d)     other than during the period that is sixty (60) days prior to and sixty (60) days following a Securitization, an Advised Entity Transfer;
(e)    a foreclosure of any Other Mezzanine Loan or an assignment in lieu of foreclosure of such Other Mezzanine Loan; and
(f)    upon not less than thirty (30) days prior written notice to Lender, a pledge of stock, membership interests and/or partnership interests in a Parent Entity or, after an Advised Entity Transfer, a comparable parent level entity, to an institutional lender (as agent), provided that such pledge is pursuant to a corporate credit facility made to a Parent Entity which secures all or substantially all of the assets of such Parent Entity and the repayment of the debt which such pledge secures is not tied solely to the cash flow from one or more Individual Properties.
“Additional Pledgor” shall mean Ashford D-3 Mezz LLC, a Delaware limited liability company. 
“Adjusted Prime Rate” shall mean an interest rate per annum equal to the Prime Rate in effect from time to time plus five percent (5%) per annum.
“Advised Entity” shall mean (a) a private real estate investment trust (or its related operating partnership) or (b) a Public REIT (or its related operating partnership) that, in each case, is externally advised by Ashford, Inc. or its Affiliates.
“Advised Entity Transfer” shall mean, subject to Section 7.6 hereof, the transfer (but not pledge) of one hundred percent (100%) of the indirect equity interests in Borrower and Additional Pledgor to an Advised Entity.
“Affected Property” shall have the meaning set forth in the Mortgage Loan Agreement. 
“Affiliate” shall mean, as to any Person, any other Person that (i) owns directly or indirectly forty percent (40%) or more of all equity interests in such Person, and/or (ii) is in Control of, is Controlled by or is under common Control with such Person.
“Affiliated Manager” shall mean any property manager which is, directly or indirectly, Controlled by, Controlling or under common Control with any Loan Party, Mezzanine D Borrower or any Affiliate of any of the foregoing.

20752111.3.BUSINESS 
3






 “Aggregate PIP Work Costs” shall have the meaning set forth in the Mortgage Loan Agreement.
“Agreement” shall have the meaning set forth in the preamble paragraph hereof.
“Agreements” shall have the meaning set forth in the Mortgage.
“Allocated Loan Amount” shall, for each Individual Property, have the meaning set forth on Schedule II hereto.
“ALTA” shall mean American Land Title Association, or any successor thereto.
“Alteration Threshold” shall have the meaning set forth in the Mortgage Loan Agreement.
“Annual Budget” shall mean the operating and capital budget for the applicable fiscal year of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower detailing on a monthly basis, consistent with the manner in which Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s operating statements are presented, projected cash flow for such fiscal year and all planned capital expenditures for each Individual Property, delivered in accordance with Section 5.11(a)(v) hereof.
“Applicable Contribution” shall have the meaning set forth in Section 20.12 hereof.
“Ashford” shall mean Ashford Hospitality Limited Partnership.
“Assignment of Title Insurance Proceeds” shall mean, collectively (i) that certain Assignment of Title Insurance Proceeds Letter made by HH LC Portfolio LLC and receipt acknowledged by Chicago Title Insurance Company and Stewart Title Guaranty Company, dated on or about the date hereof, with respect to the Individual Property known as Residence Inn Tampa Downtown, Tampa, Florida; and (ii) that certain Assignment of Title Insurance Proceeds Letter made by HH Tampa Westshore LLC and receipt acknowledged by Chicago Title Insurance Company and Stewart Title Guaranty Company, dated on or about the date hereof, with respect to the Individual Property known as Hilton Tampa Airport Westshore, Tampa, Florida.
“Austin Condominium” shall mean the condominium regime established with respect to the Individual Property located in Austin, Texas pursuant to the Austin Condominium Documents.
“Austin Condominium Documents” shall mean those documents set forth on Schedule XV attached hereto, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.

20752111.3.BUSINESS 
4






“Austin License Agreement” shall mean that certain License Agreement, dated February 9, 1998, from City of Austin, as licensor, to HH Austin Hotel Associates, L.P, as successor-in-interest to Highland Hospitality, L.P., as successor-in-interest to THI Austin L.P., as licensee, as the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Austin Parking Agreement” shall mean that certain Parking Lease (Sheraton Austin Hotel Parking Garage) dated November 16, 1994 by and between Waller Hotel G.P., Inc., as landlord and Sabine-Waller Creek, Ltd., as tenant, recorded in the real property records of Travis County, Texas at Volume 12365 Page 1752, as amended by that certain First Amendment to Parking Lease dated December 12, 2006 by and between CP Austin Hotel, L.P., as landlord, and RMC 2004 Portfolio I, LP and RMC 2004 Investors 1-34, LLC, collectively as tenant, recorded in the real property records of Travis County, Texas as Document # 20085130701, as the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Austin Skybridge Agreement” shall mean that certain Amended and Restated Skybridge Maintenance and Easement Agreement dated November 16, 1994 by and between Sabine-Waller Creek, Ltd. and Waller Hotel G.P., Inc., recorded in the real property records of Travis County, Texas at Volume 12365 Page 1808, as amended by that certain First Amendment to Amended and Restated Skybridge Maintenance and Easement Agreement dated December 12, 2006 by and between CP Austin Hotel, L.P., as hotel owner, and RMC 2004 Portfolio I, LP and RMC 2004 Investors 1-34, LLC, collectively as office owner, recorded in the real property records of Travis County, Texas as Document # 2007014688, as the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation in respect of 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, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights.
“Benefit Amount” shall have the meaning set forth in Section 20.12 hereof.
“Borrower” shall have the meaning set forth in the preamble paragraph hereof.
“Boston Restaurant and Bar Lease” shall mean that certain Lease, dated as of February 1, 2006, by HH FP Portfolio LLC, as landlord, and The Boston Leco Corp., as tenant, as amended by that certain First Amendment to Lease, dated as of January 2013.
“Boston Valet Agreement” shall mean that certain Management Agreement, dated January 1, 2004, between Patriot American Hospitality Partnership, L.P., DBA “Wyndham Tremont 

20752111.3.BUSINESS 
5






Boston” a Virginia Limited Partnership (predecessor in interest to HH FP Portfolio LLC), and LAZ Parking  LTD., Inc., a Massachusetts corporation, as amended by that certain Amendment No. 1 to Management Agreement, dated September 13, 2008, between HH FP Portfolio LLC  and LAZ Parking LTD, LLC.
“Brand Manager” shall mean a management company which is an Affiliate of, and manages a brand owned by a Qualified Brand.
“Breakage Costs” shall have the meaning set forth in Section 2.5(g)(iv) hereof.
“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York, or the place of business of the trustee under a Securitization (or, if no Securitization has occurred, Lender), or any servicer of the Loan or the financial institution that maintains any collection account for or on behalf of any servicer of the Loan or any Mortgage Loan Reserve Funds or the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business, except that when used with respect to the determination of LIBOR, “Business Day” shall be a day on which commercial banks are open for international business (including dealings in U.S. Dollar deposits) in London, England.
“Capital Expenditures” shall mean, with respect to any period of time, amounts expended for items capitalized under GAAP and the Uniform System of Accounts (including expenditures for building improvements or major repairs, leasing commissions and tenant improvements).
“Cash Management Account” shall have the meaning set forth in the Mortgage Loan Agreement.
“Cash Management Agreement” shall have the meaning set forth in the Mortgage Loan Agreement.
“Cash Sweep Period” shall have the meaning set forth in the Mortgage Loan Agreement.
“Casualty” shall have the meaning set forth in Section 8.3 hereof.
“Closing Date” shall mean the date of the funding of the Loan.
“Collateral” shall mean (i) the Collateral (as defined in the Pledge Agreement) and (ii) all other collateral for the Loan granted under the Loan Documents. 
“Collateral Assignment of Interest Rate Cap Agreement” shall mean that certain Collateral Assignment of Interest Rate Cap Agreement (Mezzanine C Loan), dated as of the date hereof, executed by Borrower in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.

20752111.3.BUSINESS 
6






“Common Charges” shall have the meaning set forth in Section 4.46 hereof.
“Company” shall have the meaning set forth in Section 6.1(b)(ii) hereof.
“Compensating Interest” shall mean, with respect to any payment or prepayment, (a) if made on a Payment Date, a sum equal to the amount of interest on the principal amount of the Loan paid or prepaid calculated through the end of the Interest Accrual Period in which such payment or prepayment occurs, and (b) if made on a day other than a Payment Date, a sum equal to the amount of interest on the principal amount of the Loan paid or prepaid which would have accrued under this Agreement through the end of the Interest Accrual Period corresponding to the next Payment Date.
“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result, 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.
“Condominium” shall mean, individually and/or collectively (as the context requires), (a) the Austin Condominium, (b) the Gaithersburg Condominium, (c) the Portsmouth Condominium and (d) the Sugar Land Condominium.
“Condominium Board” shall mean, with respect to each Condominium, the board of directors of the applicable condominium association or governing body.
“Condominium Charges” shall have the meaning set forth in the Mortgage Loan Agreement.
“Condominium Documents” shall mean, individually and/or collectively (as the context requires), (a) the Austin Condominium Documents, (b) the Gaithersburg Condominium Documents, (c) the Portsmouth Condominium Documents and (d) the Sugar Land Condominium Documents.
“Condominium Law” shall mean all applicable local, state and federal laws, rules and regulations which effect the establishment and maintenance of condominiums in the applicable State where each Condominium(s) is located.
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consequential Loss” shall have the meaning set forth in Section 2.5(g)(i) hereof.

20752111.3.BUSINESS 
7






“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, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise, and Control shall not be deemed absent solely because another Person shall have veto power with respect to major decisions. The terms “Controlled” and “Controlling” shall have correlative meanings.
“Covered Rating Agency Information” shall have the meaning specified in Section 13.5(f) hereof.
“Credit Suisse” shall have the meaning set forth in Section 13.5(b) hereof.
“Creditors’ Rights Laws” shall mean with respect to any Person any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship, arrangement, adjustment, winding up, liquidation, dissolution, assignment for the benefit of creditors, composition or other relief with respect to its debts or debtors.
“CY Savannah Parking Lease” shall mean that certain Lease Agreement, dated June 23, 2006, by and between The Mayor and Aldermen of the City of Savannah, Georgia, as landlord, and HH LC Portfolio LLC, as tenant.
“DBRS” shall mean DBRS, Inc., and its successors in interest.
“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including, without limitation, any Spread Maintenance Premium or other penalty or premium) due to Lender in respect of the Loan under the Note, this Agreement, the Pledge Agreement or any other Loan Document.
“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments under the Note.
“Debt Service Coverage Ratio” shall have the meaning set forth in the Mortgage Loan Agreement.
“Debt Yield” shall have the meaning set forth in the Mortgage Loan Agreement.
“Deemed Approval Standard” shall mean, with respect to any matter subject to the Deemed Approval Standard, such approval not to be unreasonably withheld, conditioned or delayed, provided that: (i) no event of default shall have occurred and be continuing (either at the date of any notices specified below or as of the effective date of any deemed approval), (ii) Borrower shall have sent Lender a written request for approval with respect to such matter (the “Initial Notice”), which such Initial Notice shall have been (A) accompanied by any and all required information and documentation relating thereto as may be reasonably required in order to approve 

20752111.3.BUSINESS 
8






or disapprove such matter (the “Approval Information”) and (B) marked in bold lettering with the following language:  “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the Initial Notice shall have been marked “PRIORITY-DEEMED APPROVAL MAY APPLY”; (iii) Lender shall have failed to respond in writing (which may be by e-mail) to the Initial Notice within the aforesaid time-frame; (iv) Borrower shall have submitted a second request for approval with respect to such matter in accordance with the applicable terms and conditions hereof (the “Second Notice”), which such Second Notice shall have been (A) accompanied by the Approval Information and (B) marked in bold lettering with the following language:  “LENDER’S RESPONSE IS REQUIRED WITHIN FIVE (5) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the Second Notice shall have been marked “PRIORITY-DEEMED APPROVAL MAY APPLY”; and (v) Lender shall have failed to respond in writing (which may be by email) to the Second Notice within the aforesaid time-frame.  For purposes of clarification, Lender reasonably requesting additional and/or clarified information shall restart the applicable time period upon delivery of all such information for purposes of the foregoing.  In the event Lender fails to grant or withhold its approval and consent to the matter that is the subject of a Borrower request within the time periods specified in the Deemed Approval Standard, then, so long as no Event of Default is continuing, Lender’s approval and consent shall be deemed to have been granted.  Borrower shall pay any out-of-pocket costs and expenses incurred by Lender and Lender’s then current administrative or approval fee not to exceed $5,000 per request for approval and consent by Lender.
“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 be an Event of Default.
“Default Rate” shall mean the lesser of (i) the Maximum Legal Rate, or (ii) four percent (4%) above the Interest Rate.
“Deposit Account” shall have the meaning set forth in the Mortgage Loan Agreement.
“Deposit Account Agreement” shall have the meaning set forth in the Mortgage Loan Agreement.
“Deposit Bank” shall have the meaning set forth in the Mortgage Loan Agreement.
“Determination Date” shall mean, with respect to any Interest Accrual Period, the date that is two (2) Business Days prior to the beginning of such Interest Accrual Period.
“Disclosure Document” shall have the meaning set forth in Section 13.5 hereof.

20752111.3.BUSINESS 
9






“E013224” shall have the meaning set forth in Section 4.38 hereof.
“EBI” shall mean EBI Consulting.
“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 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 maintained with the corporate trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a federally chartered depository institution or trust company acting in its fiduciary capacity is subject to the regulations regarding fiduciary funds on deposit therein under 12 C.F.R. §9.10(b), and in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority.  An Eligible Account shall not be evidenced by a certificate of deposit, passbook or other instrument.
“Eligible Institution” shall mean (a) a depository institution or trust company insured by the Federal Deposit Insurance Corporation (i) the short term unsecured debt obligations or commercial paper of which are rated at least “A-1+” (or its equivalent) from each of the Rating Agencies (in the case of accounts in which funds are held for thirty (30) days or less) and (ii) the long term unsecured debt obligations of which are rated at least “A+” (or its equivalent) from each of the Rating Agencies (in the case of accounts in which funds are held for more than thirty (30) days), or (b) such other depository institution for which a Rating Agency Confirmation has been obtained.
“Embargoed Person” shall have the meaning set forth in Section 4.38 hereof.
“Environmental Consultant” shall mean EBI or any other environmental professional acceptable to Lender. 
“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement (Mezzanine C Loan), dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Environmental Report” shall mean, individually and/or collectively (as the context may require), those certain Phase I environmental reports (or Phase II environmental reports, if required) with respect to each Individual Property and the Previously-Owned Property delivered by Borrower to Lender in connection with the origination of the Loan.
“Equity Collateral” shall have the meaning set forth in Section 13.8 hereof.

20752111.3.BUSINESS 
10






“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statutes thereto and applicable regulations issued pursuant thereto in temporary or final form.
“Event of Default” shall have the meaning set forth in Section 11.1 hereof.
“Exchange Act” shall mean the Securities and Exchange Act of 1934, as amended.
“Exchange Act Filing” shall have the meaning set forth in Section 13.6 hereof.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to Lender or required to be withheld or deducted from a payment to Lender, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Lender being organized under the laws of, or having its principal office or applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Lender with respect to an applicable interest in the Loan pursuant to a law in effect on the date on which (i) Lender acquires such interest in the Loan or (ii) Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.7, amounts with respect to such Taxes were payable either to Lender’s assignor immediately before Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to Lender’s failure to comply with Section 2.7(e) and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Exculpated Parties” shall have the meaning set forth in Section 15.1(a) hereof.
“Extended Franchise Agreement” shall mean any extension of a Franchise Agreement on the same terms as the related Franchise Agreement in effect on the Closing Date, except that such Franchise Agreement shall have a term ending more than five (5) years after the final extended Maturity Date and is otherwise entered into in accordance with the terms of this Agreement and Lender shall have received a new comfort letter (or reaffirmation of the related comfort letter delivered on the Closing Date) in form and substance reasonably acceptable to Lender.
“Extended Management Agreement” shall mean any extension of a Management Agreement on the same terms as the related Management Agreement in effect on the Closing Date, except that such Management Agreement shall have a term ending more than five (5) years after the final extended Maturity Date and is otherwise entered into in accordance with the terms of this Agreement and Lender shall have received a new assignment and subordination of management agreement (or reaffirmation of the related assignment and subordination of management agreement delivered on the Closing Date) in form and substance reasonably acceptable to Lender.
“Extended Maturity Date” shall have the meaning set forth in Section 2.5(c) hereof.

20752111.3.BUSINESS 
11






“Extension Fee” shall mean, with respect to the exercise of each Extension Option (other than the first Extension Option), 0.125% of then outstanding principal amount of the Note.  There will be no Extension Fee due in connection with the exercise of the first Extension Option.
“Extension Option” shall have the meaning set forth in Section 2.5(c) hereof.
“Extension Term” shall have the meaning set forth in Section 2.5(c) hereof.
“FATCA” shall mean Sections 1471 through 1474 of the Internal Revenue 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 Internal Revenue Code.
“FF&E” shall mean all furniture, fixtures, equipment and personal property (including, without limitation, signs and computer hardware and software) located on or used in connection with the operation of the hotel at each Individual Property.
“First Colony Condominium” shall have the meaning set forth on Schedule XV attached hereto. 
“Fitch” shall mean Fitch Ratings, Inc., and its successors in interest.
“Foreign Lender” shall mean (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes.
“Franchise Agreement” shall mean those certain Franchise Agreements between Mortgage Borrower and/or Operating Lessee and Franchisor as further described on Schedule III attached hereto, as the same may be amended or modified from time to time in accordance with the terms and provisions of this Agreement, or, if the context requires, the Replacement Franchise Agreement executed in accordance with the terms and provisions of this Agreement.
“Franchise Extension Payment” shall have the meaning set forth in Section 5.43 hereof.
“Franchisor” shall mean the franchisors as further described on Schedule III attached hereto, or, if the context requires, a Qualified Franchisor.
“Free Prepayment Amount” shall have the meaning set forth in Section 2.6 hereof.
“Funding Borrower” shall have the meaning set forth in Section 20.12 hereof.

20752111.3.BUSINESS 
12






“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.
“Gaithersburg Condominium” shall mean the condominium regimes established with respect to the Individual Property located in Gaithersburg, Maryland pursuant to the Gaithersburg Condominium Documents.
“Gaithersburg Condominium Documents” shall mean those documents set forth on Schedule XV attached hereto, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Gaithersburg Parking Agreement” shall mean, collectively, (i) that certain Temporary Parking Easement Agreement dated August 4, 1988, by and between Washingtonian Investors Limited Partnership, Washingtonian Center Development Limited Partnership and Washingtonian Center Associates Inc. recorded in Liber 8429, folio 187, as may be amended from time to time pursuant to its terms and the Agreement; (ii) that certain Declaration of Parking Easement Agreement and Modification of Temporary Parking Easement Agreement recorded in Liber 9237, folio 166, as may be amended from time to time pursuant to its terms and the Agreement; (iii) that certain Parking Easement Agreement dated January 31, 1994, by and between Federal Deposit Insurance Corporation and RIO Associates Limited Partnership, recorded in Liber 12275, folio 292, as may be amended from time to time pursuant to its terms and the Agreement; (iv) that certain Parking Facilities and Easement Agreement dated January 14, 1998, by and between Washingtonian Associates, L.C. and RIO Associates Limited Partnership, recorded in Liber 15725, folio 146, as may be amended from time to time pursuant to its terms and the Agreement; and (v) that certain Amended and Restated Parking Facilities and Easement Agreement dated as of March 31, 2003, by and between Washingtonian Lake L.L.C., Washingtonian Office Associates, LLC, RIO Center Associates Limited Partnership, Theodore Pedas Revocable Trust/RIO Center, LLC, James Pedas Revocable Trust/RIO Center, LLC and Peterson RIO Center, L.L.C., recorded in Liber 23525, folio 206, and re-recorded on October 19, 2003 in Liber 25495, folio 693, as may be amended from time to time pursuant to its terms and the Agreement.
“Gaithersburg Waterfront Association Agreement” shall mean, collectively, (i) that certain Declaration of Covenants, Conditions, Easements and Restrictions for Washingtonian Waterfront Commercial Association, Inc. dated April 1, 2003 by Washingtonian Lake, L.L.C. and Washingtonian Office Associates, LLC, recorded in Liber 23525, folio 244, as amended by Declaration Supplement dated April 1, 2003, by and between Washingtonian Lake, L.L.C., Washingtonian Office Associates, LLC and CY-Gaithersburg, LLC, recorded in Liber 23525, folio 461, as further amended by Declaration Supplement dated April 1, 2003, by and between Washingtonian Lake, L.L.C. and Washingtonian Office Associates, LLC, recorded in Liber 23525, folio 372, in each case in the Land Records of Montgomery County, Maryland, as such documents may be amended from time to time pursuant to their terms and the Agreement; and (ii) the articles, by-laws, plats and plans and other operating documents under which the Washingtonian Waterfront 

20752111.3.BUSINESS 
13






Commercial Association, Inc. is organized and operated, as such documents may be amended from time to time pursuant to their terms and the Agreement.
“Governmental Authority” shall mean any court, board, agency, department, commission, office or other authority of any nature whatsoever for any governmental unit (federal, state, county, municipal, city, town, special district or otherwise) whether now or hereafter in existence.
“Gross Revenues” shall mean, with respect to any period of time, all revenues and receipts of every kind derived from the management and operation of the Properties from whatever source, computed in accordance with the Uniform System of Accounts and GAAP, including without limitation, all income and proceeds received from rental of rooms, Leases and commercial space, meeting, conference and/or banquet space within the Properties including net parking revenue, all income and proceeds received from food and beverage operations and from catering services conducted from the Properties even though rendered outside of the Properties, all income and proceeds from business interruption, rental interruption and use and occupancy insurance with respect to the operation of the Properties (after deducting therefrom all necessary costs and expenses incurred in the adjustment or collection thereof), all Awards for temporary use (after deducting therefrom all costs incurred in the adjustment or collection thereof and in Restoration of the Properties), all income and proceeds from judgments, settlements and other resolutions of disputes with respect to the foregoing matters which would be includable in this definition of “Gross Revenue” if received in the ordinary course of the operation of the Properties (after deducting therefrom all necessary costs and expenses incurred in the adjustment or collection thereof), and interest on credit accounts, rent concessions or credits, and other required pass-throughs and interest on Mortgage Loan Reserve Funds and any reserves held pursuant to the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement or this Agreement, but specifically excluding (1) gross receipts received by lessees, licensees or concessionaires of the Properties, (2) intentionally omitted, (3) goods and services to be provided at other hotels, although arranged by, for or on behalf of Mortgage Borrower or Manager, (4) income and proceeds from the sale or other disposition of goods, capital assets and other items not in the ordinary course of the operation of the Properties, (5) federal, state and municipal excise, sales and use taxes collected directly from patrons or guests of the Properties as a 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, refunds of amounts not included in Operating Expenses at any time and uncollectible accounts, gratuities collected by employees at the Properties, (6) the proceeds of any permitted financing, (7) other income or proceeds resulting other than from the use or occupancy of the Properties or any part thereof, other than from the sale of goods, services or other items sold on or provided from the Properties in the ordinary course of business, and (8) any credits or refunds made to customers, guests or patrons in the form of allowances or adjustments to previously recorded revenues.
“Ground Lease” shall mean, individually and/or collectively, as the context may require, those certain ground leases set forth on Schedule XII attached hereto.

20752111.3.BUSINESS 
14






“Ground Lease Reserve Account” shall have the meaning set forth in the Mortgage Loan Agreement. 
“Ground Leased Property” shall mean, individually and/or collectively (as the context requires), all or any portion of any Individual Property that is subject to a Ground Lease.
“Ground Lessor Estate” shall mean, individually and/or collectively, as the context requires, (i) with respect to any Ground Leased Property (other than the Individual Property located in Palm Springs, California), the fee interest of the lessor under the applicable Ground Lease in the real property and the improvements demised under such Ground Lease and (ii) with respect to the Individual Property located in Palm Springs, California, the leasehold interest of the lessor under the applicable Ground Lease in the real property and the improvements demised under such Ground Lease.
“Ground Rent” shall have the meaning set forth in the Mortgage Loan Agreement.
“Guarantor” shall mean Ashford or, if the context requires, any Replacement Guarantor and/or additional guarantor in accordance with the terms hereof.
“Guaranty” shall mean that certain Guaranty Agreement (Mezzanine C Loan), dated as of the date hereof, executed by Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“HHSD” shall mean HH Swap D LLC, a Delaware limited liability company.
“Hilton” shall mean Hilton Hotels & Resorts.
“Hyatt” shall mean Hyatt Hotels Corporation.
“IHG” shall mean InterContinental Hotels Group]. 
“Improvements” shall have the meaning set forth in the granting clause of the related Mortgage with respect to each Individual Property.
“Indebtedness” shall mean, for any Person, without duplication: (i) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property for which such Person or its assets is liable, (ii) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable if such amounts were advanced thereunder, (iii) 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, except if the partnership, operating or similar agreement provides that the same is waived to the extent such Person lacks funds to pay the same, (iv) all indebtedness guaranteed by such Person, directly or indirectly, (v) all obligations under leases that constitute 

20752111.3.BUSINESS 
15






capital leases for which such Person is liable, (vi) all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person 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 (vii) any other amounts substantially similar to those listed in clauses (i) through (vi) above.
“Indemnified Parties” shall mean (i) Lender, (ii) any prior owner or holder of the Loan or any portion thereof or Participations in the Loan, (iii) any servicer, sub-servicer or prior servicer or sub-servicer of the Loan, (iv) any Investor or any prior Investor in any Securities, (v) any trustees, custodians or other fiduciaries who hold or who have held a full or partial interest in the Loan for the benefit of any Investor or other third party, (vi) any receiver or other fiduciary appointed in a foreclosure or other enforcement action or other Creditors Rights Laws proceeding, (vii) any officers, directors, shareholders, partners, members, employees, agents, servants, representatives, contractors, subcontractors, affiliates or subsidiaries of any and all of the foregoing, and (viii) the heirs, legal representatives, successors and assigns of any and all of the foregoing (including, without limitation, any successors by merger, consolidation or acquisition of all or a substantial portion of the Indemnified Parties’ assets and business), in all cases whether during the term of the Loan or as part of or following a foreclosure of the Pledge Agreement.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Independent Director” of any corporation or limited liability company shall mean an individual with at least three (3) years of employment experience serving as an independent director at the time of appointment who is provided by, and is in good standing with, CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Stewart Management Company, Lord Securities Corporation or, if none of those companies is then providing professional independent directors or managers or, after a Securitization is not acceptable to the Rating Agencies, another nationally recognized company reasonably approved by Lender and if required by Lender after a Securitization, the Rating Agencies, in each case that is not an Affiliate of such corporation or limited liability company and that provides professional independent directors or managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as a member of the board of directors or board of managers of such corporation or limited liability company and is not, and has never been, and will not while serving as independent director or manager be:
(i)    a member (other than an independent, non-economic “springing” member), partner, equityholder, manager, director, officer or employee of such corporation or limited liability company, or any of its respective equityholders or Affiliates (other than as an independent director or manager of such corporation or limited liability company or an Affiliate of such corporation or limited liability company that is not in the direct chain of ownership of such corporation or limited liability company and that is required by a creditor to be a single purpose bankruptcy remote entity, 

20752111.3.BUSINESS 
16






provided that such independent director or manager is employed by a company that routinely provides professional independent directors or managers in the ordinary course of business);
(ii)    a customer, creditor, supplier or service provider (including provider of professional services) to such corporation or limited liability company or any of its respective equityholders or Affiliates (other than a nationally recognized company that routinely provides professional independent directors or managers and other corporate services to such corporation or limited liability company or any of its respective equityholders or Affiliates in the ordinary course of business);
(iii)    a family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or
(iv)    a Person that Controls or is under common Control with (whether directly, indirectly or otherwise) any of the Persons referred to in clauses (i), (ii) or (iii) above.
A natural person who otherwise satisfies the foregoing definition other than subparagraph (i) by reason of being the independent director or manager of a “special purpose entity” affiliated with such corporation or limited liability company shall nonetheless be qualified to serve as an independent director or manager of such corporation or limited liability company, provided that (a) such “special purpose entity” is not in the direct chain of ownership of such corporation or limited liability company and (b) the fees that such individual earns from serving as independent directors or managers of such Affiliates in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year.  For purposes of this paragraph, a “special purpose entity” is an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to those contained in Section 6.1 hereof.
Notwithstanding any of the foregoing to the contrary, at no time shall the Independent Director of any Borrower or Additional Pledgor also be an Independent Director (as such term is defined herein, in the Mortgage Loan Agreement and in each Other Mezzanine Loan Agreement) of any Mortgage Borrower, Other Mezzanine Borrower, Operating Lessee, HHSD or Additional Pledgor (as such term is defined in each Other Mezzanine Loan Agreement).
“Independent Director Event” shall mean, with respect to an Independent Director, (i) any acts or omissions by such Independent Director that constitute willful disregard of, or bad faith or gross negligence with respect to, such Independent Director’s duties under the applicable organizational documents, (ii) such Independent Director engaging in or being charged with, or being convicted of, fraud or other acts constituting a crime under any law applicable to such Independent Director, (iii) such Independent Director is unable to perform his or her duties as Independent Director due to death, disability or incapacity, (iv) the fees charged for such services of such Independent Director are materially in excess of the fees charged by other providers of 

20752111.3.BUSINESS 
17






Independent Directors listed in the definition of “Independent Director” or (v) such Independent Director no longer meeting the definition of Independent Director in this Agreement.
“Individual Property” shall mean each parcel of real property, the Improvements thereon and all Personal Property owned or leased by Mortgage Borrower and encumbered by a Mortgage, together with all rights pertaining to such Property and Improvements, as more particularly described in each Mortgage and referred to therein as the “Property”.
“Initial Maturity Date” shall mean the Payment Date occurring in April, 2017.
“Insurance Premiums” shall have the meaning set forth in the Mortgage Loan Agreement.
“Insurance Proceeds” shall have the meaning set forth in the Mortgage Loan Agreement.
“Intercreditor Agreement” shall have the meaning set forth in Section 13.10 hereof.
“Interest Accrual Period” shall mean with respect to any Payment Date, the period beginning on and including the Selected Day in the month preceding the month in which such Payment Date occurs and ending on but excluding the Selected Day in the month in which such Payment Date occurs; provided, however, that (x) if Lender has elected pursuant to Section 2.4(e)(i) to change the Selected Day in connection with a Securitization to a day that is earlier in the month than the Selected Day as previously defined, then the Interest Accrual Period applicable to the first Payment Date after the Securitization Closing Date will begin on and include the Selected Day (as changed)  in the month preceding the month in which such Payment Date occurs and end on but exclude the Selected Day (as changed) in the month in which such Payment Date occurs and (y) if Lender has elected to change the Selected Day in connection with a Securitization to a day that is later in the month than the Selected Day as previously defined, then the Interest Accrual Period applicable to the first Payment Date after the Securitization Closing Date will begin on and include the Selected Day (as defined prior to such change) in the month preceding the month in which such Payment Date occurs and end on but exclude the Selected Day (as changed) in the month in which such Payment Date occurs.  Notwithstanding the foregoing, if Lender so elects pursuant to Section 2.4(e)(i), the “Interest Accrual Period” with respect to the first Payment Date after the Securitization Closing Date and each Payment Date thereafter shall be the calendar month preceding such Payment Date.
“Interest Rate” shall mean (a) with respect to the Interim Interest Accrual Period, an interest rate per annum equal to four and five hundred and sixty five one-thousandths percent (4.565%); and (b) with respect to each Interest Accrual Period thereafter, through and including the Interest Accrual Period during which the Maturity Date occurs, an interest rate per annum equal to (i) the LIBOR Rate (in all cases where clause (ii) below does not apply), or (ii) the Adjusted Prime Rate, to the extent provided in accordance with the provisions of Section 2.4(b) hereof.

20752111.3.BUSINESS 
18






“Interest Rate Cap Agreement” shall mean an agreement in form and substance reasonably satisfactory to Lender (together with the confirmation and schedules relating thereto), dated on or about the date hereof, between an Acceptable Counterparty and Borrower, obtained by Borrower and collaterally assigned to Lender pursuant to the Collateral Assignment of Interest Rate Cap Agreement.  The Interest Rate Cap Agreement shall (a) be governed by the laws of the State of New York, (b) have at all times a notional amount equal to the then outstanding principal balance of the Loan, (c) have a term ending on the last day of the Interest Accrual Period during which the Initial Maturity Date occurs, and (d) require the interest rate cap provider to make payments on a Payment Date to or for the benefit of Borrower from time to time equal to the product of (i) the notional amount of such Interest Rate Cap Agreement and (ii) the excess, if any, of LIBOR over the LIBOR Cap Strike Rate.  Following the delivery of a Replacement Interest Rate Cap Agreement to Lender pursuant to the terms of this Agreement, the term “Interest Rate Cap Agreement” shall be deemed to mean such Replacement Interest Rate Cap Agreement.
“Interim Interest Accrual Period” shall mean, with respect to the Loan, the period from and including the Closing Date through but excluding the Selected Day first occurring after the Closing Date, provided, however, there shall be no “Interim Interest Accrual Period” in the event the Closing Date occurs on a Selected Day.
“Internal Revenue Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.
“Investor” shall have the meaning set forth in Section 13.3 hereof.
“IRS” shall mean the United States Internal Revenue Service.
“Issuer Group” shall have the meaning set forth in Section 13.5(b) hereof.
“Issuer Person” shall have the meaning set forth in Section 13.5(b) hereof.
“Kroll” shall mean Kroll Bond Rating Agency, Inc., and its successors in interest.
“Lease” shall have the meaning set forth in the Mortgage with respect to each Individual Property.
“Lease Modification” shall have the meaning set forth in Section 5.13(c) hereof.
“Legal Requirements” shall mean, with respect to each Individual Property, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral, all statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Mortgage Borrower, Operating Lessee, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, 

20752111.3.BUSINESS 
19






such Individual Property or any part thereof or the Collateral or any part thereof, or the Mezzanine A Collateral or any part thereof, or the Mezzanine B Collateral or any part thereof or the construction, use, alteration, ownership or operation thereof (including, without limitation, all Condominium Laws), whether now or hereafter enacted and in force, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, at any time in force affecting such Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Mortgage Borrower, Operating Lessee, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Individual Property or any part thereof, the Collateral or any part thereof or the Mezzanine A Collateral or any part thereof, or the Mezzanine B Collateral or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.
“Lender” shall have the meaning set forth in the preamble paragraph hereof.
“LIBOR” shall mean, with respect to each Interest Accrual Period, a rate of interest per annum obtained by dividing:
(a)    the rate for deposits in U.S. dollars (with respect to the period equal or comparable to the applicable Interest Accrual Period) that appears on Reuters Screen LIBOR01 Page (or the successor thereto) as of 11:00 a.m., London time, on the related Determination Date.  If such rate does not appear on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such Determination Date, LIBOR shall be the arithmetic mean of the offered rates (expressed as a percentage per annum) for deposits in U.S. dollars (with respect to the period equal or comparable to the applicable Interest Accrual Period) that appear on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such Determination Date, if at least two such offered rates so appear.  If fewer than two such offered rates appear on the Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such Determination Date, Lender shall request the principal London Office of any four major reference banks in the London interbank market selected by Lender to provide such bank’s offered quotation (expressed as a percentage per annum) to prime banks in the London interbank market for deposits in U.S. dollars (with respect to the period equal or comparable to the applicable Interest Accrual Period) as of 11:00 a.m., London time, on such Determination Date for the then outstanding principal amount of the Loan.  If at least two (2) such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations.  If fewer than two such quotations are so provided, Lender shall request any three (3) major banks in New York City selected by Lender to provide such bank’s rate (expressed as a percentage per annum) for loans in U.S. dollars to leading European banks for a one-month period as of approximately 11:00 a.m., New York City time on the applicable Determination Date for the then outstanding principal amount of the Loan.  If at least two (2) such rates are so provided, LIBOR shall be the arithmetic mean of such rates, by

20752111.3.BUSINESS 
20






(b)    a percentage equal to one hundred percent (100%) minus the applicable Reserve Percentage then in effect.
LIBOR shall be rounded upward to the nearest the nearest 1/1000th of one percent and may or may not be the lowest rate based upon the market for U.S. Dollar deposits in the London Interbank Eurodollar Market at which Lender prices loans on the date which LIBOR is determined by Lender as set forth above.
“LIBOR Cap Strike Rate” shall mean (a) with respect to the Interest Rate Cap Agreement in place as of the Closing Date, two and ninety-one one hundredths percent (2.91%) per annum and (b) with respect to any Replacement Interest Rate Cap Agreement required in connection with the exercise of any Extension Option, a per annum rate of interest which, when added to the LIBOR Margin then in effect, would result in a Debt Service Coverage Ratio (calculated based on the then current Underwritten Net Cash Flow and assuming that the LIBOR Rate is equal to the sum of the LIBOR Margin plus the Extension LIBOR Strike Price) of not less than 1.30:1.00 (the “Extension LIBOR Strike Price”).
“LIBOR Loan” shall mean, with respect to the Loan, at such time as interest thereon accrues at the LIBOR Rate.
“LIBOR Margin” shall mean 4.39%.
“LIBOR Rate” shall mean the sum of (i) LIBOR plus (ii) the LIBOR Margin for the Loan provided, however, in no event shall LIBOR be deemed to be less than zero.  The determination of the LIBOR Rate by Lender shall be binding upon Borrower absent manifest error.
“Lien” shall mean any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, or any direct or indirect interest in Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, the related Individual Property, any portion thereof or any interest therein or the Collateral, any portion thereof or any interest therein or the Mezzanine A Collateral or any portion thereof or interest therein or the Mezzanine B Collateral or any portion thereof or interest therein, including, without limitation, 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.
“Liquidation Event” shall mean any event of (i) any Casualty to all or any portion of any Individual Property, (ii) any Condemnation of all or any portion of any Individual Property, (iii) a Transfer of any Individual Property in connection with realization thereon by the Mortgage Lender following a Mortgage Loan Default, including without limitation a foreclosure sale, (iv) a Transfer of all or any portion of the Mezzanine A Collateral in connection with realization thereon by Mezzanine A Lender following a Mezzanine A Loan Default, including, without limitation, a 

20752111.3.BUSINESS 
21






foreclosure sale, (v) any refinancing of any Individual Property, the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan , (vi) a Transfer of all or any portion of the Mezzanine B Collateral in connection with realization thereon by Mezzanine B Lender following a Mezzanine B Loan Default, including, without limitation, a foreclosure sale, and (vii) the receipt by Mortgage Borrower of any excess proceeds realized under its Owner’s Title Policy after application of such proceeds by Mortgage Lender pursuant to the Mortgage Loan Documents.
“LLC Agreement” shall have the meaning set forth in Section 6.1(b)(ii) hereof.
“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.
“Loan Bifurcation” shall have the meaning set forth in Section 13.4(f) hereof.
“Loan Documents” shall mean, collectively, this Agreement, the Note, the Pledge Agreement, the Environmental Indemnity, the Guaranty, the Subordination of Management Agreement, the Collateral Assignment of Interest Rate Cap Agreement, the Post Closing Agreement, the PIP Guaranty, the Assignment of Title Insurance Proceeds, the Recycled SPE Certificates, the Operating Lease Subordination Agreement and any and all other documents, agreements and certificates executed and/or delivered in connection with the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Loan Party” shall mean each of Borrower, Mezzanine B Borrower, Mezzanine A Borrower, Mortgage Borrower, HHSD, Additional Pledgor, Mezzanine B Additional Pledgor, Mezzanine A Additional Pledgor, Operating Lessee, SPE Component Entity, Mezzanine A SPE Component Entity, Mezzanine B SPE Component Entity, Mortgage Borrower SPE Component Entity, and Guarantor.
“Losses” shall mean any and all claims, suits, liabilities (including, without limitation, strict liabilities), actions, proceedings, obligations, debts, damages (other than punitive or special damages), losses (other than diminution in value), costs, expenses, fines, penalties, charges, fees, judgments, awards, amounts paid in settlement of whatever kind or nature (including but not limited to reasonable legal fees and other costs of defense).
“LTV Ratio” shall mean, as of the date of its calculation, the ratio of (a) the unpaid aggregate principal balance of the Loan, the Mortgage Loan, the Mezzanine A Loan and the Mezzanine B Loan as of the date of such calculation to (b) to the value of the remaining Properties (as determined by Lender, in its sole discretion, using any commercially reasonable valuation method permitted to a REMIC Trust, but based solely on the value of real property and excluding personal property and going-concern value).
“Major Lease” shall mean as to each Individual Property (i) any Lease which, individually or when aggregated with all other leases at any Individual Property with the same Tenant or its Affiliate (and assuming any expansion rights and other preferential rights to lease additional space set forth in such Lease have been exercised) demises 20,000 square feet or more 

20752111.3.BUSINESS 
22






of such Individual Property’s gross leasable area, (ii) any Lease which contains any option, offer, right of first refusal or other similar entitlement to acquire all or any portion of any Individual Property, (iii) any Lease under which the Tenant is an Affiliate of Mortgage Borrower or Guarantor or is not the result of arm’s length negotiations, (iv) any Lease that is entered into during the continuance of an Event of Default or (v) any instrument guaranteeing or providing credit support for any Lease meeting the requirements of (i), (ii), (iii) or (iv) above.
“Management Agreement” shall mean, with respect to each Individual Property, the property management agreement entered into by and between Mortgage Borrower and/or Operating Lessee and Manager, as further described on Schedule IV attached hereto pursuant to which Manager is to provide management and other services with respect to such Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement.
“Manager” shall mean each manager as further described on Schedule IV attached hereto, or such other entity selected as the manager of the Properties or any Individual Property in accordance with the terms of this Agreement.
“Marriott” shall mean Marriott International, Inc.
“Material Action” shall mean, as to any Person, to file any insolvency, or reorganization case or proceeding, to institute proceedings to have such Person be adjudicated bankrupt or insolvent, to institute proceedings under any applicable insolvency law, to seek any relief under any law relating to relief from debts or the protection of debtors, to consent to the filing or institution of bankruptcy or insolvency proceedings against such Person, to file a petition seeking, or consent to, reorganization or relief with respect to such Person under any applicable federal or state law relating to bankruptcy or insolvency, to seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official of or for such Person or a substantial part of its property or the Collateral, to make any assignment for the benefit of creditors of such Person, to admit in writing such Person’s inability to pay its debts generally as they become due (unless such admission is true), or to take action in furtherance of any of the foregoing.
“Material Adverse Effect” shall mean a material adverse effect on the value, current use or operation of any Individual Property, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral, the business, operations or condition (financial or otherwise) of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine B Additional Pledgor, Mezzanine A Additional Pledgor, HHSD, Mortgage Borrower, Operating Lessee, Additional Pledgor or Guarantor, the security intended to be provided by the Pledge Agreement, the Mezzanine A Pledge Agreement, the Mezzanine B Pledge Agreement or the Mortgage, the current ability of the Properties to generate sufficient cash flow to service the Loan, the Mezzanine A Loan, the Mezzanine B Loan and the Mortgage Loan, or Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s ability to pay its obligations when due, or Borrower’s, HHSD’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mezzanine A Additional Pledgor’s, Mezzanine B 

20752111.3.BUSINESS 
23






Additional Pledgor’s, Mortgage Borrower’s, Operating Lessee’s, Additional Pledgor’s or Guarantor’s ability to perform its obligations under the Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents or the Mortgage Loan Documents, as applicable, to which it is a party.
“Material Agreements” shall mean any contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Properties or any Individual Property that provides for annual payments by Mortgage Borrower, Operating Lessee or any other Loan Party of $50,000.00 or more unless the same is cancelable without penalty or premium on no more than thirty (30) days notice (other than the Management Agreements, the Franchise Agreements, the Leases, the Operating Leases, the Condominium Documents, the Ground Leases and any contract or agreement entered into with respect to any Individual Property or on the behalf of Operating Lessee, Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and/or any other Loan Party by Manager pursuant to the Management Agreement).
“Maturity Date” shall mean the Initial Maturity Date, or if the Initial Maturity Date has been extended pursuant to Section 2.5(c) hereof, the applicable Extended Maturity Date, or such other date on which the final payment of the Debt becomes due and payable, whether at such stated maturity date, by declaration of acceleration, or otherwise.
“Maximum Legal Rate” shall have the meaning set forth in Section 2.4(f) hereof.
“Member” shall have the meaning set forth in Section 6.1(b)(ii) hereof.
“Mezzanine A Additional Pledgor” shall mean HH Mezz Borrower D-1 LLC, a Delaware limited liability company.
“Mezzanine A Borrower” shall mean, individually and/or collectively (as the context requires), HH Swap A LLC and HH Swap G LLC, each a Delaware limited liability company.
“Mezzanine A Cash Management Account” shall mean the “Substitute Cash Management Accounts” as defined in the Mezzanine A Loan Agreement.
“Mezzanine A Collateral” shall mean “Collateral” as such term is defined in the Mezzanine A Loan Documents. 
“Mezzanine A Lender” shall have the meaning set forth in the Recitals.
“Mezzanine A Loan” shall have the meaning set forth in the Recitals.
“Mezzanine A Loan Cash Management Provisions” shall mean the terms and provisions of the Mezzanine A Loan Documents relating to the Mezzanine A Cash Management Account. 

20752111.3.BUSINESS 
24






“Mezzanine A Loan Default” shall mean an “Event of Default” under the Mezzanine A Loan Agreement.
“Mezzanine A Loan Documents” shall mean all documents or instruments evidencing, securing or guaranteeing the Mezzanine A Loan, including without limitation, the Mezzanine A Loan Agreement.
“Mezzanine A Loan Reserve Funds” shall mean any reserve funds required to be established and maintained under the Mezzanine A Loan Documents. 
“Mezzanine A Loan Restoration Provisions” shall mean the terms and conditions of the Mezzanine A Loan Agreement relating to Restoration in connection with a Casualty or Condemnation of a Property.
 “Mezzanine A Pledge Agreement” shall mean “Pledge Agreement” as such term is defined in the Mezzanine A Loan Agreement. 
“Mezzanine A SPE Component Entity” shall mean “SPE Component Entity” as such term is defined in the Mezzanine A Loan Agreement.
“Mezzanine B Additional Pledgor” shall mean HH Mezz Borrower D-2 LLC, a Delaware limited liability company.
“Mezzanine Borrower” shall mean, individually and/or collectively (as the context requires), Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mezzanine D Borrower.
“Mezzanine B Borrower” shall mean, individually and/or collectively (as the context requires), HH Mezz Borrower A-2 LLC and HH Mezz Borrower G-2 LLC, each a Delaware limited liability company.
“Mezzanine B Cash Management Account” shall mean the “Substitute Cash Management Accounts” as defined in the Mezzanine B Loan Agreement.
“Mezzanine B Loan Cash Management Provisions” shall mean the terms and provisions of the Mezzanine B Loan Documents relating to the Mezzanine B Cash Management Account. 
“Mezzanine B Collateral” shall mean “Collateral” as such term is defined in the Mezzanine B Loan Documents. 
“Mezzanine B Lender” shall mean the owner and holder of the Mezzanine B Loan.
“Mezzanine B Loan” shall mean that certain loan made by Mezzanine B Lender to Mezzanine B Borrower on the date hereof pursuant to the Mezzanine B Loan Agreement.

20752111.3.BUSINESS 
25






“Mezzanine B Loan Agreement” shall mean that certain Mezzanine B Loan Agreement dated as of the date hereof between Mezzanine B Borrower and Mezzanine B Lender, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time pursuant to the terms of the Mezzanine B Loan Documents.
“Mezzanine B Loan Default” shall mean an “Event of Default” under the Mezzanine B Loan Agreement.
“Mezzanine B Loan Documents” shall mean all documents or instruments evidencing, securing or guaranteeing the Mezzanine B Loan, including without limitation, the Mezzanine B Loan Agreement.
“Mezzanine B Loan Reserve Funds” shall mean any reserve funds required to be established and maintained under the Mezzanine B Loan Documents.
“Mezzanine B Loan Restoration Provisions” shall mean the terms and conditions of the Mezzanine B Loan Agreement relating to Restoration in connection with a Casualty or Condemnation of a Property.
 “Mezzanine B Pledge Agreement” shall mean “Pledge Agreement” as such term is defined in the Mezzanine B Loan Agreement. 
“Mezzanine B SPE Component Entity” shall mean “SPE Component Entity” as such term is defined in the Mezzanine B Loan Agreement.
“Mezzanine C Loan Subaccount” shall have the meaning set forth in the Cash Management Agreement. 
 “Mezzanine D Borrower” shall mean, individually and/or collectively (as the context requires), HH Mezz Borrower A-4 LLC and HH Mezz Borrower G-4 LLC, each a Delaware limited liability company.
“Mezzanine D Collateral” shall mean “Collateral” as such term is defined in the Mezzanine D Loan Documents. 
“Mezzanine D Lender” shall mean the owner and holder of the Mezzanine D Loan.
“Mezzanine D Loan” shall mean that certain loan made by Mezzanine D Lender to Mezzanine D Borrower on the date hereof pursuant to the Mezzanine D Loan Agreement.
“Mezzanine D Loan Agreement” shall mean that certain Mezzanine D Loan Agreement dated as of the date hereof between Mezzanine D Borrower and Mezzanine D Lender, as the same may be amended, restated, replaced, supplemented, split or otherwise modified from time to time pursuant to the terms of the Mezzanine D Loan Documents.

20752111.3.BUSINESS 
26






“Mezzanine D Loan Default” shall mean an “Event of Default” under the Mezzanine D Loan Agreement.
“Mezzanine D Loan Documents” shall mean all documents or instruments evidencing, securing or guaranteeing the Mezzanine D Loan, including without limitation, the Mezzanine D Loan Agreement.
“Mezzanine D Release Price” shall mean “Release Price” as such term is defined in the Mezzanine D Loan Agreement. 
“Mezzanine Entities” shall have the meaning set forth in Section 7.4 hereof.
“Mezzanine Option” shall have the meaning set forth in Section 13.8 hereof.
“Minimum Net Worth Requirement” shall mean a Net Worth (exclusive of the Properties) equal to One Hundred Million and No/100 Dollars ($100,000,000.00).
“Mold” shall mean any mold, fungi, bacterial or microbial matter present at or in any Individual Property, including, without limitation, building materials which is in a condition, location or a type which may pose a risk to human health or safety or the environment, may result in damage to or would adversely affect or impair the value or marketability of any Individual Property.
“Monthly Payment Amount” shall mean, with respect to each Payment Date, a payment equal to the amount of interest which has accrued during the related Interest Accrual Period, computed at the Interest Rate.
“Moody’s” shall mean Moody’s Investors Service, Inc., and its successors in interest.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, and its successors in interest.
“Mortgage” shall mean that certain first priority mortgage/deed of trust/deed to secure debt and security agreement, dated as of the date hereof, executed and delivered by Mortgage Borrower as security for the Mortgage Loan and encumbering an Individual Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Mortgage Borrower” shall mean, individually and/or collectively (as the context requires), those entities set forth on Schedule I attached hereto.
“Mortgage Borrower SPE Component Entity” shall mean “SPE Component Entity” as defined in the Mortgage Loan Agreement. 
“Mortgage Lender” shall mean the owner and holder of the Mortgage Loan.

20752111.3.BUSINESS 
27






“Mortgage Loan” shall have the meaning set forth in the Recitals.
“Mortgage Loan Agreement” shall have the meaning set forth in the Recitals.
“Mortgage Loan Cash Management Provisions” shall mean the terms and conditions of the Mortgage Loan Documents relating to cash management (including, without limitation, those relating to “Reserve Accounts” and the “Cash Management Account” as such terms is defined in the Mortgage Loan Agreement).
“Mortgage Loan Default” shall mean an “Event of Default” under the Mortgage Loan Agreement.
“Mortgage Loan Documents” shall mean all documents or instruments evidencing, securing or guaranteeing the Mortgage Loan, including without limitation, the Mortgage Loan Agreement.
“Mortgage Loan Reserve Accounts” shall mean the “Reserve Accounts” as defined in the Mortgage Loan Agreement.
“Mortgage Loan Reserve Funds” shall mean the “Reserve Funds” as defined in the Mortgage Loan Agreement.
“Mortgage Loan Restoration Provisions” shall mean the terms and conditions of the Mortgage Loan Agreement relating to Restoration in connection with a Casualty and/or Condemnation of the Property.
“Mortgage Note” shall mean the “Note” as defined in the Mortgage Loan Agreement”
“Net Liquidation Proceeds After Debt Service” shall mean, with respect to any Liquidation Event, all amounts paid to or received by or on behalf of Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Borrower in connection with such Liquidation Event, including, without limitation, proceeds of any sale, refinancing or other disposition or liquidation, less (i) in the event of a Liquidation Event consisting of a Casualty or Condemnation, Lender’s, Mezzanine A Lender’s, Mezzanine B Lender’s and/or Mortgage Lender’s reasonable costs incurred in connection with the recovery thereof, (ii) in the event of a Liquidation Event consisting of a Casualty or Condemnation, the costs incurred by Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower in connection with a Restoration of all or any portion of the applicable Property made in accordance with the Mortgage Loan Documents, the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable, (iii) in the event of a Liquidation Event consisting of a Casualty or Condemnation or a Transfer, amounts required or permitted to be deducted therefrom and amounts paid pursuant to the Mortgage Loan Documents to Mortgage Lender, and amounts required or permitted to be deducted therefrom, the amounts paid pursuant to the Mezzanine A Loan Documents to Mezzanine A Lender (including amounts paid to Mezzanine 

20752111.3.BUSINESS 
28






A Lender under any Owners’ Title Policy) and the amounts paid pursuant to the Mezzanine B Loan Documents to Mezzanine B Lender (including amounts paid to Mezzanine B Lender under any Owners’ Title Policy), (iv) in the case of a foreclosure sale, disposition or transfer of the Property in connection with realization thereon following a Mortgage Loan Default, such reasonable and customary costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions) incurred by Lender, (v) in the case of a foreclosure sale, such costs and expenses incurred by Mortgage Lender under the Mortgage Loan Documents as Mortgage Lender shall be entitled to receive reimbursement for under the terms of the Mortgage Loan Documents, (vi) in the case of a refinancing of the Mortgage Loan, the Mezzanine B Loan or Mezzanine A Loan, such costs and expenses (including attorneys’ fees) of such refinancing incurred by Lender, (vii) the amount of any prepayments required pursuant to the Mortgage Loan Documents in connection with any such Liquidation Event; (viii) in the case of a foreclosure sale, disposition or Transfer of any Mezzanine A Collateral with realization thereon following a Mezzanine A Loan Default, such reasonable and customary costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions), (ix) in the case of a foreclosure sale of any Mezzanine A Collateral, such costs and expenses incurred by Mezzanine A Lender under the Mezzanine A Loan Documents as Mezzanine A Lender shall be entitled to receive reimbursement for under the terms of the Mezzanine  A Loan Documents, and (x) in the case of a foreclosure sale, disposition or Transfer of any Mezzanine B Collateral with realization thereon following a Mezzanine B Loan Default, such reasonable and customary costs and expenses of sale or other disposition (including attorneys’ fees and brokerage commissions) and (xi) in the case of a foreclosure sale of any Mezzanine B Collateral, such costs and expenses incurred by Mezzanine B Lender under the Mezzanine B Loan Documents as Mezzanine B Lender shall be entitled to receive reimbursement for under the terms of the Mezzanine B Loan Documents.
“Net Proceeds” shall have the meaning set forth in the Mortgage Loan Agreement.
“Net Proceeds Deficiency” shall have the meaning set forth in the Mortgage Loan Agreement.
“Net Worth” shall mean net worth as calculated in accordance with GAAP (or other principles acceptable to Lender); provided, however, such calculation shall be based upon the undepreciated book value of assets.
“New Additional Pledgor” shall have the meaning set forth in Section 13.8 hereof.
“New Mezzanine Borrower” shall have the meaning set forth in Section 13.8 hereof.
“New Non-Consolidation Opinion” shall mean a bankruptcy non-consolidation opinion(s) from the counsel to Borrower and Additional Pledgor that delivered the Non-Consolidation Opinion or other outside counsel to Borrower and Additional Pledgor reasonably acceptable to Lender, in form and substance satisfactory to Lender and, after a Securitization, the 

20752111.3.BUSINESS 
29






Rating Agencies, and which is required to be delivered subsequent to the Closing Date pursuant to, and in connection with, this Agreement.
“New Note” shall have the meaning set forth in Section 13.9 hereof.
“New PIP” shall have the meaning set forth in the Mortgage Loan Agreement.
“Non-Consolidation Opinion” shall mean, collectively (i) that certain bankruptcy non-consolidation opinion dated the date hereof delivered by Gardere Wynne Sewell LLP in connection with the Loan and relating to Borrower and (ii) that certain bankruptcy non-consolidation opinion dated the date hereof delivered by Gardere Wynne Sewell LLP in connection with the Loan and relating to Additional Pledgor.
“Note” shall mean that certain Mezzanine C Promissory Note of even date herewith in the principal amount of $62,780,000.00, made by Borrower in favor of Lender, as the same may be amended, restated, replaced, severed, supplemented or otherwise modified from time to time.
“Obligations” shall mean the Debt and all other amounts and other obligations of Borrower or any other Loan Party under each Loan Document. 
“OFAC” shall have the meaning set forth in Section 4.38 hereof.
“Operating Expenses” shall mean, with respect to any period of time, the total of all expenses actually paid or payable in connection with the operation and management of the Properties, determined in accordance with GAAP and the Uniform System of Accounts, including without limitation and without duplication, utilities, routine repairs and maintenance, Insurance Premiums, franchise, license and royalty fees, Taxes and Other Charges, advertising expenses, payroll and related taxes, the cost of inventories and fixed asset supplies consumed in the operation of the Properties, computer processing charges, property management fees, 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, operational equipment and other lease payments as reasonably approved by Lender, but specifically excluding depreciation or amortization, income taxes or other charges in the nature of income taxes, Debt Service, debt service due on each Other Mezzanine Loan and the Mortgage Loan, Capital Expenditures, deposits into the Mortgage Loan Reserve Accounts or any deposits to any reserves required pursuant to the terms of the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement or this Agreement, 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 or transfer of all or any portion of the Properties or in connection with the recovery of Insurance Proceeds or Awards which are applied to prepay the Note, and any item of expense which would otherwise be considered within Operating Expenses pursuant to the provisions above but is paid directly by any Tenant.

20752111.3.BUSINESS 
30






“Operating Lease” shall mean those certain Operating Lease Agreements executed by Mortgage Borrower, as lessor, and Operating Lessee, as lessee, as further described on Schedule V attached hereto, as the same may be amended or modified from time to time in accordance with the terms and provisions of this Agreement.
“Operating Lease Subordination Agreement” shall mean that certain Operating Lease Subordination Agreement (Mezzanine C Loan) dated the date hereof between Lender and Operating Lessee, as the same may be amended or modified from time to time in accordance with the terms and provisions of this Agreement.
“Operating Lessee” shall mean, individually and/or collectively (as the context may require) the operating lessees as further described on Schedule V attached hereto.
“Organizational Documents” shall mean (i) with respect to a corporation, such Person’s certificate of incorporation and by laws, and any shareholder agreement, voting trust or similar arrangement applicable to any of such Person’s authorized shares of capital stock, (ii) with respect to a partnership, such Person’s certificate of limited partnership, partnership agreement, voting trusts or similar arrangements applicable to any of its partnership interests, (iii) with respect to a limited liability company, such Person’s certificate of formation, limited liability company agreement or other document affecting the rights of holders of limited liability company interests, and (iv) any and all agreements between any constituent member, partner or shareholder of the Person in question, including any contribution arrangement or indemnification agreements.  In each case, “Organizational Documents” shall include any indemnity, contribution, shareholders or other agreement among any of the owners of the entity in question.
“Other Charges” shall mean all ground rents, maintenance charges, impositions other than Property Taxes, and any other charges, including, without limitation, 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 any Individual Property or any part thereof.
“Other Connection Taxes” shall mean, with respect to Lender, Taxes imposed as a result of a present or former connection between Lender and the jurisdiction imposing such Tax (other than connections arising from 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 the Loan or any Loan Document).
“Other Mezzanine Borrower” shall mean, individually and/or collectively (as the context may require), Mezzanine A Borrower, Mezzanine B Borrower and Mezzanine D Borrower.
“Other Mezzanine Collateral” shall mean, individually and/or collectively (as the context may require), Mezzanine A Collateral, Mezzanine B Collateral and Mezzanine D Collateral.

20752111.3.BUSINESS 
31






“Other Mezzanine Loan” shall mean, individually and/or collectively (as the context may require), the Mezzanine A Loan, the Mezzanine B Loan and the Mezzanine D Loan.
“Other Mezzanine Loan Agreement” shall mean, individually and/or collectively (as the context may require), the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement and the Mezzanine D Loan Agreement.
“Other Mezzanine Loan Documents” shall mean, individually and/or collectively (as the context may require), the Mezzanine A Loan Documents, the Mezzanine B Loan Documents and the Mezzanine D Loan Documents.
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Outside Date” shall be the date required to complete a PIP pursuant to the terms of the applicable Management Agreement (or Replacement Management Agreement) and/or Franchise Agreement (or Replacement Franchise Agreement), as such date may be extended by Franchisor or Manager from time to time, provided that Lender shall have promptly received notice of such extension.
“Owner’s Title Policy” shall mean that certain ALTA extended coverage owners’ policies of title insurance issued in connection with the closing of the Mortgage Loan (or, if no such policy was issued at such time, the then existing owner’s policy of title insurance) insuring the Mortgage Borrower as the owner of the applicable Property.
“PACE Loan” shall mean any Property-Assessed Clean Energy loan or any similar financing.
“Parent Entity” shall mean (i) Ashford Hospitality Trust, Inc., (ii) Ashford OP General Partner LLC, (iii) Ashford OP Limited Partner LLC, (iv) Ashford Hospitality Limited Partnership, (v) PIM Highland TRS Corporation and (vi) PIM Highland Holding LLC.
“Parsippany Hilton Restaurant Lease” shall mean that certain Lease, dated as of October 28, 1997, by HHC TRS FP Portfolio LLC, as successor-in-interest to IHC Realty Partnership, L.P., as landlord, and RCSH Operations, LLC, as successor-in-interest to Parsteaks, LLC, as tenant, as amended by that certain First Amendment to Lease, dated as of June 4, 2007.
“Participations” shall have the meaning set forth in Section 13.1(a) hereof.
“Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, U.S. Public Law 107 

20752111.3.BUSINESS 
32






56, and the related regulations issued thereunder, including temporary regulations, as the same may be amended from time to time and any successor statutes thereto.
“Payment Date” shall mean, with respect to the Loan, the ninth (9th) day of each month beginning on April 9, 2015, and continuing through and including the Maturity Date, and if such date is not a Business Day, the immediately preceding Business Day, as such Payment Date may be adjusted pursuant to the terms of Section 2.4(e) hereof.
“Permitted Debt” shall mean trade and operational indebtedness incurred in the ordinary course of business relating to the ownership of the Collateral and the routine administration of Borrower, provided such indebtedness is (a) unsecured, (b) not evidenced by a note, (c) on commercially reasonable terms and conditions, and (d) due not more than sixty (60) days past the date incurred and paid on or prior to such date; provided, however, the aggregate amount of the indebtedness described above shall not exceed at any time $10,000.
“Permitted Encumbrances” shall mean, with respect to an Individual Property, the Collateral or the Other Mezzanine Loan Collateral, collectively, (i) the Lien and security interests created by the Loan Documents, the Mortgage Loan Documents and the Other Mezzanine Loan Documents, (ii) all Liens, encumbrances and other matters expressly set forth as exceptions in the Title Insurance Policy, (iii) Liens, if any, for Property Taxes imposed by any Governmental Authority not yet due or delinquent, (iv) Liens relating to Permitted Transfers, (v) Management Agreements, Franchise Agreements and Operating Leases in existence or entered into in accordance with the terms hereof, (vi) Leases and Liens of Tenants, liens and security interests created by licensees and concessionaires in existence or entered into in accordance with the terms hereof, the Mortgage Loan Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement, (vii) Permitted Debt (as defined in this Agreement, the Mortgage Loan Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement), (viii) Liens that are being contested in accordance with the terms hereof, (ix) all easements, rights-of-way, restrictions and other similar non-monetary encumbrances hereafter recorded against and affecting such Individual Property that do not have a Material Adverse Effect and (x) such other title exceptions which (a) do not, individually or in the aggregate, have a Material Adverse Effect or (b) Lender has approved or may approve in writing in Lender’s reasonable discretion. 
“Permitted Transfer” shall have the meaning set forth in Section 7.3 hereof.
“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Personal Property” shall have the meaning set forth in the granting clause of the Mortgages.

20752111.3.BUSINESS 
33






“PIP” shall mean all property improvement plans for replacing the FF&E, remodeling, redecorating and modifying any Individual Property required by Manager or Franchisor, as applicable, pursuant to the terms and conditions of a Management Agreement (including a Replacement Management Agreement) or Franchise Agreement (including a Replacement Franchise Agreement), as applicable, including, the estimate of all costs and expenses related to the foregoing (including, each Scheduled PIP and New PIP) and each Scheduled PIP and New PIP, as the scope and timing thereof may be modified by Franchisor or Manager, as applicable, from time to time, provided that Lender shall have promptly received notice of such modification.
“PIP Guaranty” shall mean that certain PIP Guaranty (Mezzanine C Loan) dated the date hereof executed by Guarantor in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“PIP Required Deposit” shall have the meaning set forth in the Mortgage Loan Agreement.
“PIP Reserve Account” shall have the meaning set forth in the Mortgage Loan Agreement. 
“Pledge Agreement” shall mean that certain Pledge and Security Agreement (Mezzanine C Loan) dated as of the date hereof, executed and delivered by Borrower and Additional Pledgor to Lender as security for the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Pledged Entity” shall mean, individually or collectively, as the context so requires, Mezzanine B Borrower and Mezzanine B Additional Pledgor.
“Pledged Interests” shall mean individually or collectively, as the context so requires, all limited liability company interests, partnership interests and/or manager interests in Mezzanine B Borrower and Mezzanine B Additional Pledgor.
“Policies” shall have the meaning set forth in the Mortgage Loan Agreement and all insurance policies required under Section 8.1(b) hereof.
“Portsmouth Condominium” shall mean the condominium regime established with respect to the Individual Property located in Portsmouth, Virginia pursuant to the Portsmouth Condominium Documents.
“Portsmouth Condominium Documents” shall mean those documents set forth on Schedule XV attached hereto, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Portsmouth Ground Lease” shall have the meaning set forth on Schedule XII attached hereto.

20752111.3.BUSINESS 
34






“Portsmouth Parking Agreement” shall mean, collectively, (i) Lessor and Lessee entered into that certain Parking Maintenance and Operating Agreement dated May 24, 1999; and (ii) that certain Parking Garage Operating Agreement between Lessor and Manager dated May 24, 1999, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Post Closing Agreement” shall mean that certain Post Closing Agreement dated the date hereof between Borrower and Lender, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance thereof or with the terms and conditions of this Agreement.
“Pre-Approved Manager” shall mean (i) Remington and/or (ii) a Brand Manager for a brand comparable or better than the brand being terminated.
“Prescribed Laws” shall mean, collectively, (i) Patriot Act, (ii) E013224, (iii) the International Emergency Economic Power Act, 50 U.S.C. § 1701 et seq., and (iv) all other Legal Requirements relating to money laundering or terrorism.
“Previously-Owned Property” shall mean that certain vacant parcel described in Schedule XVI attached hereto.
“Prime Rate” shall mean, on a particular date, a rate per annum equal to the rate of interest published in The Wall Street Journal as the “prime rate”, as in effect on such day, with any change in the prime rate resulting from a change in such published prime rate to be effective as of the date of the relevant change in such published prime rate; provided, however, that if more than one prime rate is published in The Wall Street Journal for a day, the average of the prime rates shall be used; provided, further, however, that the Prime Rate (or the average of the prime rates) will be rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%.  In the event that The Wall Street Journal should cease or temporarily interrupt publication, then the Prime Rate shall mean the daily average prime rate published in another business newspaper, or business section of a newspaper, of national standing chosen by Lender.  If The Wall Street Journal resumes publication, the substitute index will immediately be replaced by the prime rate published in The Wall Street Journal.  In the event that a prime rate is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index which is readily available to Borrower and verifiable by Borrower but is beyond the control of Lender.  Lender shall give Borrower prompt written notice of its choice of a substitute index and when the change became effective.  Such substitute index will also be rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%.  The determination of the Prime Rate by Lender shall be conclusive and binding absent manifest error.
“Prime ROFO Release” shall mean a release of (i) all or any of the Prime ROFO Release Properties, (ii) at the applicable Release Price, (iii) in connection with a sale of such Prime 

20752111.3.BUSINESS 
35






ROFO Release Properties to Ashford Hospitality Prime Limited Partnership or its Affiliates and (iv) in accordance with Section 2.9 hereof and Section 2.9 of the Mortgage Loan Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement, it being acknowledged and agreed that Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s and Mortgage Borrower’s right to a Prime ROFO Release is exercisable from time to time and at any time during the term of the Loan.
“Prime ROFO Release Properties” shall mean the Individual Properties set forth on Schedule XIV.
“Prohibited Transfer” shall have the meaning set forth in Section 7.2 hereof.
“Properties” shall mean collectively, each and every Individual Property which is subject to the terms of this Agreement.
“Property” shall mean, as the context may require, the Properties or an Individual Property.
“Property Condition Report” shall mean, individually and/or collectively (as the context may require), those certain property condition reports with respect to each Individual Property and delivered to Lender in connection with the origination of the Loan.
“Property Document” shall mean, collectively, (a) the REAs, (b) the Portsmouth Parking Agreements, (c) the Gaithersburg Parking Agreement, (d) the Gaithersburg Waterfront Association Agreement, (e) the Austin License Agreement, (f) the Austin Parking Agreement, (g) the Austin Skybridge Agreement, (h) the Boston Valet Agreement, (i) the Boston Restaurant and Bar Lease, (j) the Parsippany Hilton Restaurant Lease, (k) the Tampa Parking Lease, (l) the CY Savannah Parking Lease, and (m) any other Material Agreements. 
“Property Release” shall have the meaning set forth in Section 2.9 hereof.
“Property 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 any Individual Property or part thereof.
“Property Uncross” shall have the meaning set forth in Section 13.9 hereof.
“Provided Information” shall have the meaning set forth in Section 13.4 hereof.
“Public REIT” shall mean a corporation (a) whose shares are listed on the New York Stock Exchange or such other nationally recognized stock exchange and (b) who is or has elected to be a real estate investment trust.

20752111.3.BUSINESS 
36






“Publicly Traded Company” shall mean corporation whose shares of stock are listed on the New York Stock Exchange or such other nationally recognized stock exchange.
“Qualified Brand” shall mean (i) Marriott, (ii) Hilton, (iii) Hyatt, (iv) IHG and (v) Starwood Hotels and Resorts Worldwide.
“Qualified Franchisor” shall mean either (i) Franchisor, (ii) a franchisor of a brand comparable or better than the brand being terminated and owned by a Qualified Brand or (iii) a reputable and experienced franchisor possessing experience in flagging hotel properties similar in size, scope, use and value as the Properties and which is approved by Lender and which may, at Lender’s option, be conditioned upon Lender’s receipt of a Rating Agency Confirmation, provided that, with respect to any Person that is an Affiliate of Borrower or Mortgage Borrower, Lender has received a New Non-Consolidation Opinion.
“Qualified Manager” shall mean (i) Manager, (ii) a Pre-Approved Manager or (iii) a reputable and experienced professional property management organization approved by Lender and which is approved by Lender and which may, at Lender’s option, be conditioned upon Lender’s receipt of a Rating Agency Confirmation, provided that with respect to any Affiliated Manager, Lender has received a New Non-Consolidation Opinion.
“Rating Agencies” shall mean each of S&P, Moody’s, Fitch, Morningstar, Kroll and DBRS or any other nationally-recognized statistical rating agency (and any successor to any of the foregoing) designated by Lender, provided that each of the foregoing shall be deemed included within the definition of “Rating Agencies” only if such rating agency is rating (or is anticipated by Lender to rate) the Securities.
“Rating Agency Confirmation” shall mean, with respect to any matter, confirmation in writing (which may be in electronic form) by each applicable Rating Agency that a proposed action, failure to act or other event with respect to which such Rating Agency Confirmation is sought will not in and of itself result in the downgrade, withdrawal or qualification of the then-current rating assigned to any Securities (if then rated by such Rating Agency); provided that upon receipt of a written acknowledgment or waiver (which may be in electronic form and whether or not specifically identifying the matter or in general, press release form) from a Rating Agency indicating its decision not to review or to waive review of the matter for which Rating Agency Confirmation is sought, or following the failure of a Rating Agency to respond to the request for which Rating Agency Confirmation is sought within the time frames and in the manner prescribed in any pooling or trust and servicing agreement governing the administration of all or any portion of the Loan, the requirement to obtain Rating Agency Confirmation for such matter at such time will be considered not to apply (as if such requirement did not exist for such matter at such time) with respect to such Rating Agency.  Notwithstanding the foregoing or any other provision hereof, if Lender has determined that there will not be, or that it is likely that there will not be, a Securitization, then all references to Rating Agency Confirmation shall mean that such matter that requires such Rating Agency Confirmation shall be subject to Lender’s consent (such consent not to be 

20752111.3.BUSINESS 
37






unreasonably withheld, conditioned or delayed) or, if so provided herein, the Deemed Approval Standard.
“REA” shall mean any construction, operation and reciprocal easement agreement or similar agreement (including any separate agreement or other agreement between Mortgage Borrower and one or more other parties to an REA with respect to such REA) affecting any Individual Property or portion thereof.
“Recourse Entity” shall mean, individually and/or collectively (as the context may require), Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Operating Lessee, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, SPE Component Entity, Mezzanine A SPE Component Entity, Mezzanine B SPE Component Entity and Mortgage Borrower SPE Component Entity.
“Recycled SPE Certificate” shall have the meaning set forth in Section 6.1(f) hereof.
“Register” shall have the meaning set forth in Section 13.1(b) hereof.
“Regulation AB” shall mean Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarifications and interpretations as have been provided by the United States Securities and Exchange Commission in the adopting release (Asset Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631 (Jan. 7, 2005)) or by the staff of the United States Securities and Exchange Commission, or as may be provided by the United States Securities and Exchange Commission or its staff from time to time.
“Reimbursement Contribution” shall have the meaning set forth in Section 20.12 hereof.
“Reinvestment Yield” means the yield calculated by the linear interpolation of the yields, as reported in the Federal Reserve Statistical Release H.15-Selected Interest Rates under the heading “U.S. government securities” and the sub-heading “Treasury constant maturities” for the week ending prior to the date of prepayment, of the U.S. Treasury constant maturities with maturity dates (one equal to or one longer or shorter) most nearly approximating the Spread Maintenance Date, and converted to a monthly compounded nominal yield.  In the event Release H.15 is no longer published, Lender shall select a comparable publication to determine the Reinvestment Yield.
“Related Loan” shall have the meaning set forth in Section 13.6 hereof.
“Release Date” shall have the meaning set forth in Section 2.9(b) hereof.
“Released Collateral” shall have the meaning set forth in Section 2.9 hereof.

20752111.3.BUSINESS 
38






“Release Price” shall mean (a) with respect to the one-time right to a Select Release, one hundred percent (100%) of the Allocated Loan Amounts related to the Select Release Properties then being released, (b) with respect to the release of any Prime ROFO Release Properties, one hundred five percent (105%) of the Allocated Loan Amounts related to the Prime ROFO Release Properties then being released and (c) with respect to each Individual Property (other than in connection with a Select Release or a Prime ROFO Release), one hundred and twenty percent (120%) of the applicable Allocated Loan Amount.
 “REMIC Opinion” shall mean, with respect to any proposed matter or transaction, an opinion of counsel acceptable to Lender, in form and substance satisfactory to Lender and, if required in accordance with the terms of the transaction documents relating to a Securitization, the Rating Agencies, that the completion of such matter or transaction will not directly or indirectly result in or cause the REMIC Trust or any of its assets to fail to qualify or maintain its status as a REMIC Trust.
“REMIC Trust” shall mean (i) any “real estate mortgage investment conduit” within the meaning of Section 860D of the Internal Revenue Code that holds an interest in all or any portion of the Loan or (ii) any similar trust or Person (including, without limitation, in each case that holds any interest in all or any portion of the Loan).
 “Remington” shall mean Remington Lodging & Hospitality, LLC and/or its Affiliates.
“Renewal Lease” shall have the meaning set forth in Section 5.13(a) hereof.
“Rents” shall have the meaning set forth in the Mortgage.
“Replacement Franchise Agreement” shall mean either (a) (i) a franchise, trademark and license agreement with a Qualified Franchisor substantially in the same form and substance as the Franchise Agreement, or (ii) a franchise, trademark and license agreement with a Qualified Franchisor either (A) on the applicable Franchisor’s then current franchise disclosure document (FDD) with only such modifications as are not materially adverse to Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Lender or (B) in form and substance reasonably approved by Lender, such approval subject to the Deemed Approval Standard and which may, at Lender’s option, be conditioned upon Lender’s receipt of a Rating Agency Confirmation; provided, however, any Replacement Franchise Agreement must have a term that extends at least five (5) years beyond the fully extended Maturity Date of the Loan; and (b) a replacement comfort letter or new comfort letter substantially in the form of the applicable comfort letter delivered to Lender on the Closing Date (or such other form and substance reasonably acceptable to Lender, such approval subject to the Deemed Approval Standard), executed and delivered to Lender by Lender, Operating Lessee, Borrower and such Qualified Franchisor at Borrower’s expense.

20752111.3.BUSINESS 
39






“Replacement Guarantor” shall mean a Person that satisfies, in addition to the requirements set forth in Section 7.7 hereof, each of the following: (a) owns not less than fifty one (51%) of the direct or indirect equity interest in Borrower and Controls each Borrower, (b) has been approved by Lender (which approval shall not be unreasonably withheld, conditioned or delayed) and (c) for which a Rating Agency Confirmation has been received.
“Replacement Interest Rate Cap Agreement” shall mean an interest rate cap agreement from an Acceptable Counterparty with terms that are the same in all material respects as the terms of the Interest Rate Cap Agreement (except in the event Borrower exercises the Extension Option pursuant to Section 2.5(c) hereof, in which case the Replacement Interest Rate Cap Agreement shall have an effective date and term as prescribed in Section 2.5(c) hereof).
“Replacement Management Agreement” shall mean, collectively, (a)(i) with respect to Remington, a management agreement substantially in the form of that certain Master Management Agreement dated March 10, 2011, (ii) with respect to any Property that is managed by a Brand Manager, a management agreement substantially in the form of a Management Agreement in place on the Closing Date (or after the Closing Date in accordance with the terms of this Agreement) with respect to any Individual Property, or (iii) a management agreement approved by Lender with a Qualified Manager, such approval subject to the Deemed Approval Standard;  provided, however, any Replacement Management Agreement must have a term that extends at least five (5) years beyond the fully extended Maturity Date of the Loan; and (b) a subordination of management agreement substantially in the form of the subordination of management agreement executed by such Manager or its Affiliates and delivered on the Closing Date (or after the Closing Date in accordance with this Agreement) related to any Individual Property or otherwise approved by Lender, such approval subject to the Deemed Approval Standard, executed and delivered to Lender by Borrower, Operating Lessee and such Qualified Manager at Borrower’s expense. 
“Required Approval Lease” shall have the meaning set forth in Section 5.13(a) hereof.
“Reserve Percentage” shall mean, with respect to any day of any Interest Accrual Period, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor), for determining the maximum reserve requirement (including basic, supplemental, emergency, special and marginal reserves) generally applicable to financial institutions regulated by the Federal Reserve Board comparable in size and type to Lender or its Loan participants, if any, in respect of “Eurocurrency liabilities” (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on the Loan is determined), whether or not Lender has any Eurocurrency liabilities or such requirement otherwise in fact applies to Lender.  The LIBOR Rate shall be adjusted automatically as of the effective date of each change in the Reserve Percentage.  As of the date hereof, the Reserve Percentage is zero, however, there can be no assurance as to what such amount may be in the future.

20752111.3.BUSINESS 
40






“Restoration” shall have the meaning set forth in the Mortgage Loan Agreement.
“Restoration Threshold” shall have the meaning set forth in the Mortgage Loan Agreement.
“Restricted Party” shall have the meaning set forth in Section 7.1 hereof.
“San Antonio Ground Lease” shall have the meaning set forth on Schedule XII attached hereto.
“Scheduled PIP” shall mean each PIP listed on Schedule VI attached hereto, as the same may be amended in accordance with the terms hereof.
“Securities” shall have the meaning set forth in Section 13.1 hereof.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Securities Liabilities” shall have the meaning set forth in Section 13.5(b) hereof.
“Securitization” shall have the meaning set forth in Section 13.1 hereof.
“Securitization Closing Date” shall mean the date designated or deemed to be designated by Lender as the “Securitization Closing Date” in accordance with Section 2.4(e) hereof.
“Securitization Initialization Period” shall mean, with respect to a Securitization, the period beginning on and including the Securitization Closing Date and ending on and excluding, at the election of Lender, either (x) in the event the first distribution to certificateholders occurs during the Securitization Month, the Selected Day in the Securitization Month or (y) in the event the first distribution to certificateholders occurs during the month following the Securitization Month, the Selected Day in the month after the Securitization Month.
“Securitization Initialization Period LIBOR” shall mean, with respect to a Securitization Initialization Period, LIBOR as determined two Business Days prior to the related Securitization Closing Date.
“Securitization Month” shall mean the month in which the Securitization Closing Date occurs.
“Selected Day” means the fifteenth (15th) day of each calendar month, or such other date as determined by Lender pursuant to Section 2.4(e) hereof.
“Select Release” shall mean a release of (i) all or any of the Select Release Properties, (ii) at the applicable Release Price, (iii) in connection with a sale of such Select Release Property(ies) to Ashford Hospitality Select Limited Partnership or its Affiliates and (iv) in accordance with Section 2.9 hereof and Section 2.9 of the Mortgage Loan Agreement, the Mezzanine B Loan 

20752111.3.BUSINESS 
41






Agreement and the Mezzanine A Loan Agreement, it being acknowledged and agreed that Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s and Mortgage Borrower’s right to a Select Release is a one-time right exercisable at any time.
“Select Release Properties” shall mean the Individual Properties set forth on Schedule XIII.
“Servicer” shall have the meaning set forth in Section 13.2 hereof.
“Servicing Agreement” shall have the meaning set forth in Section 13.2 hereof.
“Severed Loan Documents” shall have the meaning set forth in Section 11.2(c) hereof.
“SPE Component Entity” shall have the meaning set forth in Section 6.1(b)(i) hereof.
“Special Member” shall have the meaning set forth in Section 6.1(b)(ii) hereof.
“Spread Maintenance Date” shall mean the Payment Date occurring on the 18th Payment Date.
“Spread Maintenance Premium” shall mean, with respect to any payment or prepayment, an amount equal to the sum of the present values of each future installment of interest that would be payable under the Loan on the outstanding principal amount of the Loan being paid or prepaid in excess of the Free Prepayment Amount from the date of such payment or prepayment through and including the Spread Maintenance Date, assuming an annual interest rate equal to the LIBOR Margin then applicable to each such future installment of interest, with such future installments of interest to be discounted at an interest rate per annum equal to the Reinvestment Yield. Under no circumstances shall the Spread Maintenance Premium be less than zero. 
“S&P” shall mean Standard & Poor’s Ratings Services, and its successors in interest.
“State” shall mean, with respect to an Individual Property, the State in which such Individual Property or any part thereof is located.
“Subordination of Management Agreement” shall mean, individually and/or collectively, as the context may require, those certain subordination of management agreement and management fees, dated as of the Closing Date, among Lender, Borrower, Operating Lessee and the applicable Manager as set forth on Schedule XI attached hereto, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Substitute Cash Management Accounts” shall have the meaning set forth in Section 9.1(b) hereof.

20752111.3.BUSINESS 
42






“Substitute Guaranty” shall have the meaning set forth in Section 7.7 hereof.
“Substitute Reserves” shall have the meaning set forth in Section 9.1(c) hereof.
“Sugar Land Condominium” shall mean the condominium regimes established with respect to the Individual Property located in Sugar Land, Texas pursuant to the Sugar Land Condominium Documents.
“Sugar Land Condominium Documents” shall mean those documents set forth on Schedule XV attached hereto, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Sugar Land Ground Lease” shall have the meaning set forth on Schedule XII attached hereto.
“Sugar Land Hotel and Conference Center Condominium” shall have the meaning set forth on Schedule XV attached hereto.
“Sugar Land Town Square Condominium” shall have the meaning set forth on Schedule XV attached hereto.
“Survey” shall mean a survey of the Individual Property in question prepared by a surveyor licensed in the State and satisfactory to Lender and the company or companies issuing the Title Insurance Policies, and containing a certification of such surveyor satisfactory to Lender.
“Tampa Parking Lease” shall mean that certain Parking Lease Agreement dated December 7, 1999, by and between McKibbon Hotel Group, Inc., a predecessor-in-interest to MHG of Tampa Land Holdings, LLC (“Tampa Parking Lease Landlord”), and McKibbon Hotel Group of Tampa, Florida #4, L.P., a predecessor-in-interest to HH LC Portfolio LLC (“Tampa Parking Lease Tenant”), as amended by that certain First Amendment to Parking Lease Agreement dated August 2, 2004, by and between Tampa Parking Lease Landlord and a predecessor-in-interest to Tampa Parking Lease Tenant, Highland Hospitality, L.P., a Delaware partnership (“Highland Hospitality”), as further amended by that certain Second Amendment to Parking Lease Agreement dated July 17, 2007, by and between Tampa Parking Lease Landlord, Tampa Parking Lease and Highland Hospitality.
“Tax and Insurance Reserve Account” shall have the meaning set forth in the Mortgage Loan Agreement.
“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.

20752111.3.BUSINESS 
43






“Tenant” shall mean any Person leasing, subleasing or otherwise occupying any portion of any Individual Property under a Lease or other occupancy agreement with Mortgage Borrower or Operating Lessee.
“Title Insurance Policy” shall mean that certain ALTA (or its equivalent) mortgagee title insurance policy issued with respect to each Individual Property and insuring the lien of the Mortgages.
“Transfer” shall have the meaning set forth in Section 7.1 hereof.
“Transferee” shall have the meaning set forth in Section 7.4 hereof.
“Tribunal” shall mean any state, commonwealth, federal, foreign, territorial or other court or governmental department, commission, board, bureau, district, authority, agency, central bank, or instrumentality, or any arbitration authority.
“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State where the applicable Property is located.
“UCC Financing Statements” shall mean the UCC financing statement executed in connection with each Pledge Agreement and the other Loan Documents and filed in the applicable filing offices.
“UCC Title Insurance Policy” shall mean, with respect to the Collateral, a UCC title insurance policy in the form acceptable to Lender issued with respect to the Collateral and insuring the lien of the Pledge Agreement encumbering such Collateral.
“Underwriter Group” shall have the meaning set forth in Section 13.5(b) hereof.
“Underwritten Net Cash Flow” shall have the meaning set forth in the Mortgage Loan Agreement. 
“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.
“Units” shall mean “Units”, “Tracts”, “Lots”, “Master Units” or words of similar import as defined in the Condominium Documents that relate to a physical portion of the property that is designated for separate ownership and occupancy pursuant to, and in accordance with, the Condominium Documents.
“U.S. Person” shall mean a Person that is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code.

20752111.3.BUSINESS 
44






“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.7(e) hereof.
“Waived Cash Management Accounts” shall have the meaning set forth in Section 9.1(b) hereof. 
“Waived Reserve Funds” shall have the meaning set forth in Section 9.1(c) hereof.
“Waived Restoration Provisions” shall have the meaning set forth in Section 8.5(b) hereof.
“Washingtonian Waterfront Condominium” shall have the meaning set forth on Schedule XV attached hereto.
“Zoning Report” shall mean, with respect to each Individual Property, those certain zoning reports listed on Schedule IX attached hereto and made a part hereof.
Section 1.2.    Principles of Construction
All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified.  All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise.  Unless otherwise specified, the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  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.
With respect to terms defined by cross-reference to the Mortgage Loan Documents, the Mezzanine B Loan Documents or the Mezzanine Loan A Documents, as applicable, such defined terms shall have the definitions set forth in the Mortgage Loan Documents, the Mezzanine B Loan Documents or the Mezzanine A Loan Documents, as applicable, in each case as of the date hereof, and no modifications to the Mortgage Loan Documents, the Mezzanine B Loan Documents or the Mezzanine A Loan Documents, as applicable, shall have the effect of changing such definitions for the purpose of this Agreement unless Lender expressly agrees in writing that such definitions as used in this Agreement have been revised or Lender consents in writing to the modification documents.  With respect to any provisions or definitions incorporated by reference herein from the Mortgage Loan Documents, the Mezzanine B Loan Documents or the Mezzanine A Loan Documents, as applicable, such provisions or definitions shall be deemed a part of this Agreement notwithstanding the fact that the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable, shall no longer be effective for any reason, including, without limitation, after the repayment of the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable.
The words “Borrower shall cause Mortgage Borrower” or “Borrower shall cause Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower” or “Borrower shall not permit 

20752111.3.BUSINESS 
45






Mortgage Borrower or “Borrower shall not permit Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower” (or words of similar meaning) shall mean “Borrower shall cause Mezzanine B Borrower to cause Mezzanine A Borrower to cause Mortgage Borrower to” or “Borrower shall not permit Mezzanine B Borrower to permit Mezzanine A Borrower to permit Mortgage Borrower to”, as the case may be, to so act or not to so act, as applicable.
ARTICLE 2     
GENERAL TERMS
Section 2.1.    The Loan
Subject to and upon the terms and conditions set forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept the Loan on the Closing Date.
Section 2.2.    Disbursement to Borrower
Borrower may request and receive only one borrowing in respect of the Loan and any amount borrowed and repaid in respect of the Loan may not be reborrowed.
Section 2.3.    The Note, the Pledge Agreement and Loan Documents
The Loan shall be evidenced by the Note and this Agreement and secured by the Pledge Agreement and the other Loan Documents.
Section 2.4.    Interest Rate
(a)    General.  Interest on the outstanding principal balance of the Loan shall accrue at the Interest Rate from the Closing Date through and including the last day of the Interest Accrual Period during which the Maturity Date occurs.  Except as otherwise set forth herein or in the other Loan Documents, interest shall be paid in arrears.
(b)    Unavailability of LIBOR Rate.  In the event that Lender shall have determined (which determination shall be conclusive and binding upon Borrower absent manifest error) that by reason of circumstances affecting the interbank eurodollar market, adequate and reasonable means do not exist for ascertaining the LIBOR Rate, then Lender shall forthwith give notice by telephone of such determination, confirmed in writing, to Borrower at least one (1) day prior to the applicable Determination Date, with a written confirmation of such determination promptly thereafter.  If such notice is given, the Loan shall bear interest at the Adjusted Prime Rate beginning on the first (1st) day of the next succeeding Interest Accrual Period.  
If, pursuant to the terms of this Agreement, the Loan has been converted to the Adjusted Prime Rate and Lender shall determine (which determination shall be conclusive and binding upon Borrower absent manifest error) that the event(s) or circumstance(s) which resulted in such conversion shall no longer be applicable, Lender shall give notice thereof to Borrower, and 

20752111.3.BUSINESS 
46






the Adjusted Prime Rate shall convert to the LIBOR Rate effective on the first day of the next succeeding Interest Accrual Period. Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to elect to have the Loan bear interest at either the LIBOR Rate or the Adjusted Prime Rate.
(c)    Default Rate.  Upon the occurrence and during the continuance of an Event of Default, interest on the outstanding principal balance of the Loan and, to the extent permitted by law, overdue interest and other amounts due in respect of the Loan shall accrue at a rate per annum equal to the Default Rate and all references in the Note, this Agreement or the other Loan Documents to the “Interest Rate” shall be deemed to refer to the Default Rate.  Interest at the Default Rate shall be computed from the occurrence of the Event of Default until the earlier of (i) the actual receipt and collection of the Debt (or that portion thereof that is then due) and (ii) the cure of such Event of Default.  To the extent permitted by applicable law, interest at the Default Rate shall be added to the Debt, shall itself accrue interest at the same rate as the Loan and shall be secured by the Pledge Agreement.  This paragraph shall not be construed as an agreement or privilege to extend the date of the payment of the Debt, nor as a waiver of any other right or remedy accruing to Lender by reason of the occurrence of any Event of Default; the acceptance of any payment from Borrower shall not be deemed to cure or constitute a waiver of any Event of Default; and Lender retains its rights under the Note, this Agreement and the other Loan Documents to accelerate and to continue to demand payment of the Debt upon the occurrence of and during the continuance of any Event of Default, despite any payment by Borrower to Lender.
(d)    Interest Calculation.  Interest shall be computed based on the daily rate produced assuming a three hundred sixty (360) day year, multiplied by the actual number of days elapsed during each Interest Accrual Period.  Borrower understands and acknowledges that such interest accrual method results in more interest accruing on the Loan than if either a thirty (30) day month and a three hundred sixty (360) day year or the actual number of days and a three hundred sixty five (365) day year were used to compute the accrual of interest on the Loan.  Lender shall determine the Interest Rate applicable to the Loan in accordance with this Agreement and its determination thereof shall be conclusive in the absence of manifest error. The books and records of Lender shall be prima facie evidence of all sums owing to Lender from time to time under this Agreement, but the failure to record any such information shall not limit or affect the obligations of Borrower under the Loan Documents.
(e)    Selected Day and Securitization Closing Date; Securitization Interest Adjustments; Payment Date.  (1)  Lender may in its sole discretion designate the Securitization Closing Date by providing not less than twenty-four (24) hours prior notice to Borrower.  Lender may in its sole discretion designate a day of the calendar month (w) as the Selected Day for purposes of establishing, in accordance with the definition of “Interest Accrual Period”, the beginning and ending dates of the Interest Accrual Period that commences in the month in which the Securitization Closing Date occurs (and, to the extent contemplated in the definition of Interest Accrual Period, the prior month) and each Interest Accrual Period thereafter and/or (y) as the Payment Date commencing in the month in which the Securitization Closing Date occurs and continuing thereafter.  

20752111.3.BUSINESS 
47






In lieu of such designation, Lender may elect that the Interest Accrual Period with respect to the first Payment Date after the Securitization Closing Date and each Payment Date thereafter shall be the calendar month preceding such Payment Date.  The designation of the Selected Day, Payment Date or election of calendar-month Interest Accrual Periods shall be a one-time event; once made, such designation or election shall apply for (1) purposes of establishing, in accordance with the definition of “Interest Accrual Period”, the beginning and ending dates of the Interest Accrual Period that commences in the month in which the Securitization Closing Date occurs (and, to the extent contemplated in the definition of Interest Accrual Period, the prior month) and each Interest Accrual Period thereafter and/or (2) purposes of establishing the Payment Date each month during the term of the Loan.
(i)    With respect to any portion of any Interest Accrual Period that also comprises all or any portion of a Securitization Initialization Period, if the amount of interest payable by Borrower hereunder (based on the Interest Rate using LIBOR as of the applicable Determination Date) is less than the amount of interest which would be payable if the Interest Rate were determined using the Securitization Initialization Period LIBOR in lieu of LIBOR (such deficiency being the “Securitization Interest Adjustment Amount” for such Interest Accrual Period), then Borrower shall pay to Lender on the Payment Date related to any such Interest Accrual Period (or, if such Payment Date occurred prior to the Securitization Closing Date, then on the next succeeding Payment Date) the Securitization Interest Adjustment Amount.
(ii)    Similarly, if Lender exercises its option pursuant to clause (i) of this Section 2.4(e) to elect calendar Interest Accrual Periods for Payment Dates after the Securitization Closing Date, in respect of any portion of the first such calendar Interest Accrual Period that overlaps with an Interest Accrual Period with respect to which a payment was already made on a prior Payment Date, in respect of the number of days of overlap, Borrower shall be credited with the interest already paid and, on the first Payment Date after the Securitization Closing Date, shall be obligated to pay in respect of such overlapping days only an amount equal to the greater of (A)(1) the amount of interest accrued for such overlapping days using LIBOR as determined two Business Days prior to the first day of the month prior to the Securitization Month minus (2) the amount of interest accrued for such overlapping days using the LIBOR determined as of the Determination Date in the month prior to the Securitization Month and (B) zero.
(iii)    In the event that Lender changes the Selected Day to a day pursuant to clause (i) of this Section 2.4(e) to a day that is earlier in the month than the Selected Day as previously defined, then, with respect to the first Payment Date after the Securitization Closing Date and the portion (if any) of the applicable Interest Accrual Period that does not overlap with the Securitization Initialization Period, if Borrower has already paid the amount of interest it owed in respect of such non-overlapping portion as calculated prior to such change in the Selected Day on the most recent Payment Date prior to such change in the Selected Day, then Borrower shall not owe any further amount of interest in respect of such non-overlapping portion.

20752111.3.BUSINESS 
48






(f)    Usury Savings.  This Agreement and the Note are subject to the express condition that at no time shall Borrower be obligated or required to pay interest on the principal balance of the Loan at a rate which could subject Lender to either civil or criminal liability as a result of being in excess of 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 in the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan (such rate, the “Maximum Legal Rate”).  If, by the terms of the Note, this Agreement or the other Loan Documents, Borrower is at any time required or obligated to pay interest on the principal balance due on the Loan at a rate in excess of the Maximum Legal Rate, the Interest Rate or the Default Rate, 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 (and any such payments shall not require the payment of a Spread Maintenance Premium or any other prepayment premium).  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 of interest from time to time in effect and applicable to the Loan for so long as the Loan is outstanding.
Section 2.5.    Loan Payments
(a)    Payment Before Maturity.  On the Closing Date, Borrower shall pay to Lender interest for the Interim Interest Accrual Period and on each Payment Date thereafter through and including the Maturity Date, Borrower shall pay to Lender all interest that has accrued or will accrue during the Interest Accrual Period in which such Payment Date (or Maturity Date, as applicable) occurs.
(b)    Payment on Maturity.  Borrower shall pay to Lender on the Maturity Date the outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts (including, without limitation, any Spread Maintenance Premium or other penalty or premium, if any) due hereunder and under the Note, the Pledge Agreement and the other Loan Documents.
(c)    Extension of the Maturity Date.  Borrower shall have the option to extend the term of the Loan beyond the Initial Maturity Date for four (4) successive terms (each, an “Extension Option”) of one (1) year each to (w) the Payment Date occurring in April, 2018, (x) the Payment Date occurring in April, 2019, (y) the Payment Date occurring in April, 2020 and (z) the Payment Date occurring in April, 2021 (each such date, an “Extended Maturity Date” and each such one-year period an “Extension Term”), respectively, and, as to each Extension Option, upon satisfaction of the following terms and conditions:

20752111.3.BUSINESS 
49






(i)    no Event of Default shall have occurred and be continuing at the time the applicable Extension Option is exercised and on the date that the applicable Extension Term is commenced;
(ii)    Borrower shall notify Lender of its irrevocable election to extend the Maturity Date as aforesaid not earlier than three (3) months, and no later than one (1) month, prior to the then applicable Maturity Date;
(iii)    Borrower shall obtain and deliver to Lender prior to the commencement of such Extension Term, a Replacement Interest Rate Cap Agreement, which Replacement Interest Rate Cap Agreement shall be effective commencing on the first day of such Extension Term and shall have a term extending through and including the end of the Interest Accrual Period in which the applicable Extended Maturity Date falls;
(iv)    (A) each Other Mezzanine Loan shall have been extended in accordance with the terms of the related Other Mezzanine Loan Agreement and (B) the Mortgage Loan shall have been extended in accordance with the terms of the Mortgage Loan Agreement;
(v)    in connection with the exercise of each Extension Option, Borrower shall have paid to Lender the applicable Extension Fee; and 
(vi)    Borrower shall have paid all of Lender’s reasonable out of pocket costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements, in connection with Borrower’s exercise of such Extension Option.
All references in this Agreement and in the other Loan Documents to the Maturity Date shall mean the applicable Extended Maturity Date in the event the applicable Extension Option is exercised.
(d)    Application of Payments.  Prior to the occurrence of an Event of Default, all monthly payments made as scheduled pursuant to this Agreement and the Note shall be applied first, to the payment of interest (calculated at the Interest Rate) due and payable on the Loan and then, the balance toward the reduction of the principal amount of the Debt. Any mandatory prepayment of the principal of the Loan made pursuant to Section 2.6 hereof and any other voluntary prepayments of principal of the Loan made pursuant to Section 2.6, Section 2.9 or otherwise when no Event of Default exists shall be applied, to the extent thereof, by Lender to accrued but unpaid interest on the amount prepaid, to the outstanding principal amount, and any other sums due and unpaid to Lender in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion, including, but not limited to, application to principal installments in inverse order of maturity. Following the occurrence and during the continuance of an Event of Default, any payment made on the Debt shall be applied to accrued but unpaid interest, late charges, accrued fees, the unpaid principal amount of the Debt, and any other sums due and unpaid to Lender 

20752111.3.BUSINESS 
50






in connection with the Loan, in such manner and order as Lender may elect in its sole and absolute discretion.
(e)    Method and Place of Payment.
(i)    Each payment by Borrower hereunder shall be made to Lender at its offices or at such other place as Lender may designate from time to time in writing.
(ii)    All payments and prepayments under this Agreement and the Note shall be made to Lender not later than 2:00 P.M. New York, New York time.
(iii)    Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, such payment shall be made on the first Business Day preceding such Payment Date.
(iv)    All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoff, defense or counterclaims.
(v)    Remittances in payment of any part of the indebtedness other than in the required amount in immediately available U.S. funds shall not, regardless of any receipt or credit issued therefor, constitute payment until the required amount is actually received by the holder hereof in immediately available U.S. funds and shall be made and accepted subject to the condition that any check or draft may be handled for collection in accordance with the practices of the collecting bank or banks.
(f)    Late Payment Charge.  If any principal, interest or other payment due under the Loan Documents (other than the outstanding principal amount of the Loan due on the Maturity Date) is not paid by Borrower on or prior to the date the same is due (after taking into account the payment date convention set forth in Section 2.5(e) hereof) (or such greater period, if any, required by applicable Legal Requirements), Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such unpaid sum or the maximum amount permitted by applicable Legal Requirements 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 Pledge Agreement and the other Loan Documents to the extent permitted by applicable law.
(g)    Additional Payment Provisions.
(i)    If at any time after the date hereof, Lender (which shall include, for purposes of this Section, any corporation controlling Lender and any participant of Lender’s rights hereunder) reasonably determines that due to the adoption or modification of any Legal Requirement regarding taxation, Lender’s required levels of reserves, deposits, Federal Deposit Insurance Corporation insurance or capital (including any allocation of capital requirements or conditions), 

20752111.3.BUSINESS 
51






or similar requirements, or any interpretation or administration thereof by any Tribunal or compliance of Lender with any of such requirements, has or would have the effect of (A) increasing Lender’s costs relating to the Loan, or (B) reducing the yield or rate of return of Lender on the Loan, to a level below that which Lender could have achieved but for the adoption or modification of any such Legal Requirements, Borrower shall, within fifteen (15) days of any request by Lender, pay to Lender such additional amounts as (in Lender’s sole judgment, after good faith and reasonable computation) will compensate Lender for such increase in costs or reduction in yield or rate of return of Lender (a “Consequential Loss”).  No failure by Lender to immediately demand payment of any additional amounts payable hereunder shall constitute a waiver of Lender’s right to demand payment of such amounts at any subsequent time.  Nothing herein contained shall be construed or so operate as to require Borrower to pay any interest, fees, costs or charges greater than is permitted by applicable law.
(ii)    If any requirement of law or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for Lender to make or maintain a Loan with the Interest Rate being based on LIBOR as contemplated hereunder, (A) the obligation of Lender hereunder to make such Loan based on LIBOR or to convert the Loan from the Adjusted Prime Rate to the LIBOR Rate shall be canceled forthwith, and (B) any outstanding LIBOR Loan shall be converted automatically to a loan bearing interest at the Adjusted Prime Rate on the next succeeding Payment Date or within such earlier period as required by law.  Borrower hereby agrees promptly to pay Lender, upon demand, any additional amounts necessary to compensate Lender for any costs 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 Loan hereunder.  If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.5(g)(ii), Lender shall provide Borrower with not less than ninety (90) 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 costs.  Lender’s notice of such costs, as certified to Borrower, shall be conclusive absent manifest error.
(iii)    In the event that any change in any requirement of 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:
shall hereafter impose, modify 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 LIBOR Rate hereunder;
shall hereafter have the effect of reducing the rate of return on Lender’s capital as a consequence of its obligations hereunder to a level below that 

20752111.3.BUSINESS 
52






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 deemed by Lender to be material;
shall subject Lender to any Taxes (other than (I) Indemnified Taxes, (II) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (III) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, or other liabilities or capital attributable thereto; or
shall hereafter impose on Lender any other condition (other than 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, 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 determined by Lender. If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.5(g)(iii), Lender shall provide Borrower with not less than ninety (90) 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 submitted by Lender to Borrower shall be conclusive in the absence of manifest error. This provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents.
(iv)    Borrower agrees to indemnify Lender and to hold Lender harmless from any loss or expense which Lender sustains or incurs as a consequence of (A) any default by Borrower in payment of the principal of or interest on a LIBOR 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 hereunder, (B) any prepayment (whether voluntary or mandatory) of the LIBOR Loan that did not include all interest which had accrued (or would have accrued) at the Interest Rate through the end of the related Interest Accrual Period, 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 hereunder, and (C) the conversion (for any reason whatsoever, whether voluntary or involuntary) of the Interest Rate from the LIBOR Rate to the Adjusted Prime Rate with respect to any portion of the outstanding principal amount of the Loan then bearing interest at the LIBOR Rate on a date other than the Payment Date immediately following the last day of an Interest Accrual Period, including, without limitation, such loss or expenses arising 

20752111.3.BUSINESS 
53






from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a LIBOR Loan hereunder (the amounts referred to in clauses (A), (B) and (C) are herein referred to collectively as the “Breakage Costs”).  This provision 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.
(v)    Within fifteen (15) days after request by Lender (or at the time of any prepayment), Borrower shall pay to Lender such amount or amounts as will compensate Lender for any loss, cost, expense, penalty, claim or liability, including any loss incurred in obtaining, prepaying, liquidating or employing deposits or other funds from third parties and any loss of yield, as determined by Lender in its judgment reasonably exercised incurred by it with respect to the Loan as a result of the payment or prepayment of any amount on a date other than the date such amount is required or permitted to be paid or prepaid; provided that Lender delivers to Borrower a certificate as to the amounts of such costs described herein, which certificate shall be conclusive in the absence of manifest error.  Lender shall have no obligation to purchase, sell and/or match funds in connection with the funding or maintaining of the Loan or any portion thereof.  The obligations of Borrower under this Section shall survive any termination of the Loan Documents and payment of the Note and shall not be waived by any delay by Lender in seeking such compensation.
Section 2.6.    Loan Prepayments
(a)    Voluntary.
(i)    Except as otherwise expressly permitted under this Agreement, including, without limitation, Section 2.9 hereof, no voluntary prepayments, whether in whole or in part, of the Loan or any other amount at any time due and owing under this Agreement can be made by Borrower or any other Person without the express prior written consent of Lender, and Lender shall have no obligation to accept any prepayment except when made in accordance with the terms hereof.  Borrower may on any Business Day at its option and upon giving Lender not less than thirty (30) (and not more than ninety (90)) days prior written notice, prepay the Loan (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of prepayment) (A) on or before the Spread Maintenance Date, in whole or in part, with payment of the Spread Maintenance Premium, and (B) after the Spread Maintenance Date, in whole or in part, without payment of any premium, fee or penalty.  Any prepayment shall include the payment of all additional amounts required to be paid by Borrower and all other amounts owing by Borrower to Lender under the Note, this Agreement and the other Loan Documents, including, without limitation, (1) any Breakage Costs incurred by Lender in connection with the cancellation or termination of a LIBOR or swap contract entered into in connection with the Loan, and (2) Compensating Interest.  As a condition to any prepayment contemplated by this Section 2.6(a), Borrower shall have delivered evidence satisfactory to Lender that each Other Mezzanine Loan and the Mortgage Loan are simultaneously being prepaid on a 

20752111.3.BUSINESS 
54






pro-rata basis in accordance with the terms of the related Other Mezzanine Loan Documents and the Mortgage Loan Documents, respectively.  Notwithstanding the foregoing to the contrary, no prepayment shall be permitted on any day during the period commencing on the first calendar day immediately following a Payment Date to, but not including, the Determination Date occurring in such calendar month.
(ii)    Notwithstanding anything contained herein to the contrary, in connection with any release of one or more Individual Properties (and the related Collateral, as applicable) in accordance with this Agreement, Borrower shall be permitted to prepay the Loan, at any time or times prior to the Spread Maintenance Date without any Spread Maintenance Premium, in an aggregate amount not to exceed forty percent (40%) of the original principal balance of the Loan (the “Free Prepayment Amount”), provided (A) there is no Event of Default continuing as of the date of the applicable prepayment, and (B) Borrower otherwise complies with this Section 2.6.
(b)    Mandatory; Liquidation Event. 
(vii)    In the event of a Liquidation Event, Borrower shall cause the related Net Liquidation Proceeds After Debt Service to be paid directly to Lender.  On each date on which Lender actually receives a distribution of Net Liquidation Proceeds After Debt Service, Lender shall apply such Net Liquidation Proceeds After Debt Service as a prepayment to the outstanding principal balance of the Debt in an amount up to the Release Price associated with the Individual Property (provided that to the extent Net Liquidation Proceeds After Debt Service are less than such Release Price, provided there exists no Event of Default, Borrower shall be permitted to prepay the Loan in an amount equal to the remainder of such Release Price in compliance with the requirements of Section 2.6(a) hereof without payment of any Spread Maintenance Premium) to which such Net Liquidation Proceeds After Debt Service relate together with any Compensating Interest and any Breakage Costs associated therewith and any other sums due in connection therewith. All Net Liquidation Proceeds After Debt Service in excess of such Release Price and Compensating Interest and Breakage Costs associated therewith (if any) and any other sums due in connection therewith shall (i) if an Event of Default has occurred and is continuing, be held and applied by Lender in accordance with the terms of this Agreement and the other Loan Documents and (ii) if no Event of Default has occurred and is continuing be applied as follows: (A) first, to the Mezzanine D Loan up to the Mezzanine D Release Price for the affected Individual Property (together with any Compensating Interest (as defined in the Mezzanine D Loan Agreement) and any Breakage Costs (as defined in the Mezzanine D Loan Agreement) associated therewith and any other sums due in connection therewith), and (B) second, any remaining Net Proceeds shall be deposited into the Cash Management Account and applied by Mortgage Lender in accordance with the terms of the Mortgage Loan Agreement. Borrower shall not be required to pay a Spread Maintenance Premium or any other prepayment premium in connection with any prepayment made pursuant to this Section 2.6(b) solely in connection with a Casualty or Condemnation.

20752111.3.BUSINESS 
55






(viii)    Borrower shall immediately notify Lender of any Liquidation Event once Borrower has knowledge of such event.  Borrower shall be deemed to have knowledge of (1) a sale (other than a foreclosure sale) of any Individual Property, Mezzanine A Collateral or Mezzanine B Collateral, as applicable, on the date on which a contract of sale for such sale is entered into, and a foreclosure sale, on the date notice of such foreclosure sale is given, and (2) a refinancing of the Property, Mezzanine A Collateral or Mezzanine B Collateral, as applicable, on the date on which a commitment for such refinancing is entered into.  The provisions of this Section 2.6(b) shall not be construed to contravene in any manner the restrictions and other provisions regarding refinancing of the Mortgage Loan, the Mezzanine A Loan or the Mezzanine B Loan or Transfer of the Property, the Mezzanine A Collateral or the Mezzanine B Collateral set forth in this Agreement and the other Loan Documents.
(c)    After Event of Default. If, prior to the first (1st) anniversary of the Closing Date, after the occurrence and during the continuance of an Event of Default, Lender shall accelerate the Debt and Borrower thereafter tenders payment of all or any part of the Debt, or if all or any portion of the Debt is recovered by Lender after such Event of Default, Borrower shall pay to Lender, in addition to the Debt and the applicable Spread Maintenance Premium, (i) Compensating Interest, (ii) Breakage Costs, and (iii) an amount equal to one percent (1%) of the outstanding principal balance of the Debt being prepaid.
Section 2.7.    Taxes
(a)    Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of Borrower) requires the deduction or withholding of any Tax from any such payment by Borrower, then Borrower shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.7) the applicable Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)    Payment of Other Taxes.  The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes.
(c)    Indemnification.  The Loan Parties shall jointly and severally indemnify Lender, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.7) payable or paid by Lender or required to be withheld or deducted from a payment to Lender and any reasonable expenses arising therefrom or with respect thereto, whether or not such 

20752111.3.BUSINESS 
56






Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to Borrower by Lender shall be conclusive absent manifest error.
(d)    Evidence of Payments.  As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.7, such Loan Party shall deliver to Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Lender.
(e)    Status of Lenders.
(vi)    In the event Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, Lender shall deliver to Borrower, at the time or times reasonably requested by Borrower, such properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, Lender, if reasonably requested by Borrower, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower as will enable Borrower to determine whether or not Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.7(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in Lender’s reasonable judgment such completion, execution or submission would subject Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of Lender.
(vii)    Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person,
(A)    Lender shall deliver to Borrower from time to time upon the reasonable request of Borrower executed originals of IRS Form W-9 certifying that Lender is exempt from U.S. federal backup withholding tax;
(B)    if Lender becomes a Foreign Lender, Lender shall, to the extent it is legally entitled to do so, deliver to Borrower (in such number of copies as shall be requested by the recipient) on or prior to the date on which Lender becomes a Foreign Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower, whichever of the following is applicable):
(1)    in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or 

20752111.3.BUSINESS 
57






reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)    executed originals of IRS Form W-8ECI;
(3)    in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or
(4)    to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate,  IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(C)    any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower (in such number of copies as shall be requested by Borrower) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower to determine the withholding or deduction required to be made; and
(D)    if a payment made to Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), 

20752111.3.BUSINESS 
58






Lender shall deliver to Borrower at the time or times prescribed by law and at such time or times reasonably requested by Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Borrower as may be necessary for Borrower to comply with their obligations under FATCA and to determine that Lender has complied with Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(E)    Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower in writing of its legal inability to do so.
(f)    Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.7 (including by the payment of additional amounts pursuant to this Section 2.7), 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 2.7 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including 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 2.7(f) (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 2.7(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 2.7(f) 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 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 Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(g)    Survival.  Each party’s obligations under this Section 2.7 shall survive any assignment of rights by, or the replacement of, Lender, and the repayment, satisfaction or discharge of all obligations under any Loan Document.
Section 2.8.    Intentionally Omitted
Section 2.9.    Property Releases

20752111.3.BUSINESS 
59






Provided that no Event of Default shall then exist, Borrower may and may cause Mortgage Borrower to (w) obtain the release of all or any of the Select Release Properties in connection with a Select Release, (x) obtain the release of all or any of the Prime ROFO Release Properties in connection with a Prime ROFO Release or (y) obtain the release of an Individual Property from the Lien of the Mortgage thereon (and related Mortgage Loan Documents) (such release, a “Property Release”) and, in each case, obtain the release of the applicable Borrower’s obligations under the Loan Documents (other than those expressly stated to survive) with respect to the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, then being released and, only to the extent such Mortgage Borrower no longer owns any Property, obtain the release of the Collateral related to such Mortgage Borrower (such obligations or Collateral being released in accordance with the foregoing, the “Released Collateral”), upon the satisfaction of each of the following conditions:
(a)    The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the applicable Release Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(b)    Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of (A) Mortgage Borrower’s request to obtain (i) a release of an Individual Property in connection with a Property Release or a Prime ROFO Release or (ii) to the extent Mortgage Borrower has not yet elected to release all or any of the Select Release Properties pursuant to a Select Release, a release of all or any of the Select Release Properties in connection with a Select Release, and (B) its request to obtain the release, if applicable, of the related Released Collateral (the “Release Date”), which notice shall specify the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, that are the subject of such release and whether such release constitutes a Select Release or a Prime ROFO Release (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release).  For the avoidance of doubt, Mortgage Borrower’s right to release all or any of the Select Release Properties in connection with a Select Release is a one-time right exercisable at any time during the term of the Mortgage Loan and to the extent that Mortgage Borrower elects to exercise its one-time right to a Select Release pursuant to and in accordance with the Mortgage Loan Agreement, Mortgage Borrower shall have no further right to make such an election, regardless of whether all of the Select Release Properties were released in connection with such Select Release. Any Select Release Property not released in connection with a Select Release may be released in accordance with this Section in the same manner as any Individual Property in connection with a Property Release;
(c)    Borrower shall prepay the portion of the Note equal to the applicable Release Price of the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released (together with all (i) accrued and unpaid interest on the principal amount 

20752111.3.BUSINESS 
60






being prepaid, (ii) Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6 hereof) in accordance with the terms and conditions hereof;
(d)    Borrower shall submit to Lender, not less than ten (10) Business Days prior to the Release Date, a release of Lien (and related Loan Documents) for the portion of the Released Collateral being released for execution by Lender.  Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender.  In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released);
(e)    After giving effect to such release, Lender shall have determined that the Debt Yield for the Properties then remaining subject to the Liens of the Mortgages shall be at least equal to the greater of (i) 8.48% and (ii) the Debt Yield for all of the then remaining Properties (including the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, to be released) immediately preceding the release of the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, provided that Borrower shall be permitted to satisfy the requirements of this clause (e) by making a voluntary prepayment of the Loan in accordance with the terms and conditions of this Agreement in an amount sufficient to satisfy the requirements of this clause (e), which prepayment shall include, without limitation, any applicable Spread Maintenance Premium, Breakage Costs and Compensating Interest;
(f)    After giving effect to such release, Lender shall have determined that the Debt Service Coverage Ratio for the Properties then remaining subject to the Liens of the Mortgages shall be at least equal to the greater of (i) 1.83:1.00 and (ii) the Debt Service Coverage Ratio for all of the then remaining Properties (including the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, to be released) immediately preceding the release of the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, provided that Borrower shall be permitted to satisfy the requirements of this clause (f) by making a voluntary prepayment of the Loan in accordance with the terms and conditions of this Agreement in an amount sufficient to satisfy the requirements of this clause (f) (which for purposes of calculating the Debt Service Coverage Ratio should be treated as being made at the beginning of such twelve (12) month period), which prepayment shall include, without limitation, any applicable Spread Maintenance Premium, Breakage Costs and Compensating Interest;
(g)    Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Released Collateral from the lien of 

20752111.3.BUSINESS 
61






the Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith;
(h)    Borrower shall have delivered evidence satisfactory to Lender that (i) each Other Mezzanine Borrower has complied with all of the terms and conditions set forth in the related Other Mezzanine Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section, including, without limitation, that each Other Mezzanine Loan is simultaneously being prepaid at the applicable Release Price (as defined in the related Other Mezzanine Loan Agreement) in accordance with the terms of the related Other Mezzanine Loan Documents and (ii) each Other Mezzanine Lender has delivered (or is simultaneously delivering) such release to the related Other Mezzanine Borrower, if applicable; and 
(i)    Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to a release of the security interest corresponding to the release requested pursuant to this Section, including, without limitation, that the Mortgage Loan is simultaneously being prepaid at the applicable Release Price (as defined in the Mortgage Loan Agreement) in accordance with the terms of the Mortgage Loan Documents and (ii) Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower.
Notwithstanding anything to the contrary contained in this Section 2.9 to the contrary, if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, and any related Released Collateral (as defined in this Agreement and the Mezzanine A Loan Agreement), if applicable (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the applicable Release Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, and/or the Released Collateral or (B) the least of one (1) of the following amounts:  (I) only if the released Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, is sold, the net proceeds of an arm’s length sale of the released Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, to an unaffiliated Person, (II) the fair market value of the released Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the released Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, is not greater than the LTV Ratio of the Collateral immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.

20752111.3.BUSINESS 
62






ARTICLE 3     
CONDITIONS PRECEDENT
Section 3.1.    Conditions Precedent
The obligation of Lender to make the Loan hereunder is subject to the fulfillment by Borrower or waiver by Lender of all of the conditions precedent to closing set forth in the application or term sheet for the Loan delivered by Borrower to Lender and the commitment or commitment rider, if any, to the application for the Loan issued by Lender.  Except as otherwise set forth in the Post Closing Agreement, the making of the Loan shall be deemed Lender’s acknowledgement that all such conditions precedent have been satisfied or waived.
ARTICLE 4     
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender as of the Closing Date that:
Section 4.1.    Organization
Borrower (a) has been duly organized and is validly existing and in good standing with requisite power and authority to own its assets and to transact the businesses in which it is now engaged, (b) is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with its assets, businesses and operations, (c) possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own its assets and to transact the businesses in which it is now engaged, and the sole business of Borrower is the ownership and management of each Mezzanine B Borrower and SPE Component Entity (if any), and (d) has full power, authority and legal right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the Collateral pursuant to the terms of the Loan Documents, and has full power, authority and legal right to keep and observe all of the terms of the Loan Documents to which it is a party.  Borrower represents and warrants that the chart attached hereto as Exhibit A sets forth an accurate listing of the direct and indirect owners of the equity interests in Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, HHSD, Operating Lessee, each Mortgage Borrower SPE Component Entity, SPE Component Entity (if any) and each Guarantor (when not an individual).
Borrower and Additional Pledgor have the power and authority and the requisite ownership interests to control the actions of Mezzanine B Borrower and Mezzanine B Additional Pledgor, respectively, and upon the realization of the Collateral under the Pledge Agreement, Lender or any other party succeeding to Borrower’s or Additional Pledgor’s interest in the Collateral described in the Pledge Agreement will have such control.  Without limiting the foregoing, Borrower and Additional Pledgor each have sufficient control over Mezzanine B Borrower and Mezzanine B Additional Pledgor, as applicable, to cause Mezzanine B Borrower or Mezzanine B Additional 

20752111.3.BUSINESS 
63






Pledgor, as applicable, to (i) take any action on Mezzanine B Borrower’s or Mezzanine B Additional Pledgor’s, as applicable, part required by the Loan Documents and (ii) refrain from taking any action prohibited by the Loan Documents.
Section 4.2.    Status of Borrower
Borrower’s exact legal name is correctly set forth on the first page of this Agreement, on the Pledge Agreement and on any UCC-1 Financing Statements filed in connection with the Loan.  Each Borrower is a limited liability company organized under the laws of the State of Delaware. Borrower’s principal place of business and chief executive office, and the place where Borrower keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording, including software, writings, plans, specifications and schematics, has been for the preceding four months (or, if less, the entire period of the existence of Borrower) the address of Borrower set forth on the first page of this Agreement.  The organizational identification number assigned by the state of incorporation or organization (A) for Ashford A-3 Mezz LLC is 5699171 and (B) for Ashford G-3 Mezz LLC 5699168.
Section 4.3.    Validity of Documents
Borrower has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party.  This Agreement and such other Loan Documents have been duly executed and delivered by or on behalf of Borrower and constitute the legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective 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).
Section 4.4.    No Conflicts
The execution, delivery and performance of this Agreement and the other Loan Documents by Borrower will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance (other than pursuant to the Loan Documents) upon any of the property or assets of Borrower pursuant to the terms of any agreement or instrument to which Borrower is a party or by which any of Borrower’s property or assets is subject, nor will such action result in any violation of the provisions of any statute or any order, rule or regulation of any Governmental Authority having jurisdiction over Borrower or any of Borrower’s properties or assets, in each case which would reasonably be expected to have or does have a Material Adverse Effect, and any consent, approval, authorization, order, registration or qualification of or with any Governmental Authority required for the execution, delivery and performance by Borrower of this Agreement or any of the other Loan Documents has been obtained and is in full force and effect.

20752111.3.BUSINESS 
64






Section 4.5.    Litigation
There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority, arbitral body or other agency now pending or, to Borrower’s knowledge, threatened against or affecting any Loan Party, any of the Collateral, Mezzanine A Collateral, Mezzanine B Collateral or any Individual Property, which actions, suits or proceedings, if determined against any Loan Party, any of the Collateral, any of the Mezzanine A Collateral, Mezzanine B Collateral or any Individual Property, in each case which would reasonably be expected to have or does have a Material Adverse Effect.
Section 4.6.    Agreements
Borrower is not a party to any agreement or instrument or subject to any restriction which would reasonably be expected to have or does have a Material Adverse Effect.  None of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower is in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, any of the Collateral, any of the Mezzanine A Collateral, any of the Mezzanine B Collateral or any Individual Property is bound, which would reasonably be expected to have a Material Adverse Effect.  None of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has any material financial obligation under any agreement or instrument to which Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower is a party or by which Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower or any of the Collateral, any of the Mezzanine A Collateral, any of the Mezzanine B Collateral or any Individual Property is otherwise bound, other than (a) obligations incurred in connection with any Permitted Debt, (b) obligations under the Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents and the Mortgage Loan Documents (c) obligations which have been disclosed to Lender in writing and/or (d) Permitted Encumbrances.  Other than with respect to the Ground Leases, the Operating Leases, the Condominium Documents, the Property Documents, the Management Agreements, the Franchise Agreements and any documents disclosed in the Title Insurance Policies, (i) there are no agreements that are not reflected in the financial statements delivered by, or on behalf of, Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Additional Pledgor (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement), HHSD or Operating Lessee to Lender on or prior to the Closing Date; and (ii) to Borrower’s knowledge, all agreements or other instruments to which Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Additional Pledgor (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement), HHSD or Operating Lessee is a party or otherwise relating to the Individual Properties are either (x) terminable upon no more than thirty (30) days’ prior written notice without penalty or fee or (y) with respect to such agreement or instrument, require Borrower, Mortgage Borrower, Mezzanine A Borrower, Additional Pledgor (as defined in this Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement), Mezzanine B Borrower, HHSD or Operating Lessee to 

20752111.3.BUSINESS 
65






make payments during each calendar year during the term of such agreement or instrument in an aggregate yearly amount with respect to any Individual Property that is less than or equal to $250,000.
Section 4.7.    Solvency
Borrower has (a) not entered into the transaction or executed the Note, this Agreement or any other Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for their obligations under such Loan Documents.  Giving effect to the Loan, the fair saleable value of the assets of Borrower exceeds and will, immediately following the making of the Loan, exceed the total liabilities of Borrower, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities.  No petition in bankruptcy has been filed against any Loan Party or Affiliated Manager in the last ten (10) years, and neither any Loan Party nor Affiliated Manager in the last ten (10) years has made an assignment for the benefit of creditors or taken advantage of any Creditors Rights Laws.  Neither any Loan Party nor Affiliated Manager is contemplating either the filing of a petition by it under any Creditors Rights Laws or the liquidation of all or a major portion of Borrower’s assets or property, and Borrower has no knowledge of any Person contemplating the filing of any such petition against any Loan Party or Affiliated Manager.
Section 4.8.    Full and Accurate Disclosure
No statement of fact made by or on behalf of Borrower in this Agreement or in any of the other Loan Documents or in any other document or certificate delivered by or on behalf of Borrower contains any untrue statement of a material fact or omits to state any material fact, to Borrower’s knowledge, necessary to make statements contained herein or therein not misleading.  There is no material fact presently known to Borrower which has not been disclosed which would reasonably be expected to have or does have a Material Adverse Effect.
Section 4.9.    No Plan Assets
No Loan Party is an employee benefit plan, as defined in Section 3(3) of ERISA, subject to Title I of ERISA and none of the assets of any Loan Party constitutes or will constitute “plan assets” of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101.  No Loan Party is a governmental plan within the meaning of Section 3(32) of ERISA Transactions by or with any Loan Party are not subject to state statutes regulating investment of, and fiduciary obligations with respect to, governmental plans similar to the provisions of Section 406 of ERISA or Section 4975 of the Internal Revenue Code currently in effect, which prohibit or otherwise restrict the transactions contemplated by this Agreement.  With respect to any multiemployer plan to which any Loan Party or any entity that is under common control with any Loan Party within the meaning of ERISA Section 4001(a)(14) is or has been obligated to contribute, neither any Loan Party nor any such entity has incurred any material liability under ERISA Section 515 of ERISA or Title IV of ERISA which is or remains unsatisfied.

20752111.3.BUSINESS 
66






Section 4.10.    Not a Foreign Person
Borrower is not a foreign corporation, foreign partnership, foreign trust, foreign estate or nonresident alien or a disregarded entity owned by any of them (as those terms are defined in the Internal Revenue Code), and if requested by Lender, Borrower will so certify (or in the case of a disregarded entity, its owner will certify) to Lender or a person designated by Lender under penalties of perjury to the accuracy of this representation, and will provide in such certification such additional information as Lender may reasonably request related thereto.
Section 4.11.    Enforceability
The Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, 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, and Borrower has not asserted any right of rescission, set-off, counterclaim or defense with respect thereto.  No Default or Event of Default exists under or with respect to any Loan Document.
Section 4.12.    Business Purposes
The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.
Section 4.13.    Compliance
Except as expressly disclosed in a Zoning Report, a Property Condition Report and/or an Environmental Report, Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Operating Lessee, Additional Pledgor (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement) and each Individual Property, and the use and operation thereof, comply in all material respects with all Legal Requirements, including, without limitation, building and zoning ordinances and codes and the Americans with Disabilities Act.  None of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Operating Lessee, Additional Pledgor (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement) or Mortgage Borrower is in default or in violation of any order, writ, injunction, decree or demand of any Governmental Authority which would reasonably be expected to have a Material Adverse Effect, and none of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Operating Lessee, Additional Pledgor (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement) or Mortgage Borrower has received any written notice of any such default or violation.  There has not been committed by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, or Mortgage Borrower or, to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of any Individual Property any act or omission affording any Governmental Authority the right of forfeiture as against such Individual Property or any part thereof or the Collateral or any part 

20752111.3.BUSINESS 
67






thereof or the Mezzanine A Collateral or any part thereof or the Mezzanine B Collateral or any part thereof or any monies paid in performance of Borrower’s or any of its Affiliates obligations under any of the Loan Documents.
Section 4.14.    Financial Information
All financial data, including, without limitation, the balance sheets, statements of cash flow, statements of income and operating expense and rent rolls, that have been delivered to Lender in respect of each Loan Party, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral and/or each Individual Property (a) are true, complete and correct in all material respects, (b) accurately represent the financial condition of each Loan Party, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral or the Properties, as applicable, as of the date of such reports in all material respects, and (c) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with the Uniform System of Accounts and GAAP throughout the periods covered, except as disclosed therein.  Borrower does not have any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments that are known to Borrower, except as referred to or reflected in said financial statements.  Since the date of such financial statements, there has been no change in the financial condition, operations or business of any Loan Party from that set forth in said financial statements which would reasonably be expected to have or has had a Material Adverse Effect.
Section 4.15.    Condemnation
No Condemnation or other proceeding has been commenced or, to Borrower’s actual knowledge, is threatened or contemplated with respect to all or any portion of the Properties or for the relocation of roadways providing access to any Individual Property.
Section 4.16.    Utilities and Public Access; Parking
Each Individual Property is (i) located on or adjacent to a public road and has access to such road directly, or has access via an irrevocable perpetual easement or right of way permitting ingress and egress to and from a public road and (ii) served by water, sewer, sanitary sewer and storm drain facilities adequate to service such Individual Property for full utilization of such Individual Property for its intended uses.  Except as expressly set forth on a Survey, all public utilities necessary to the full use and enjoyment of each Individual Property as currently used and enjoyed are located either in the public right-of-way abutting such Individual Property (which are connected so as to serve the Individual Property without passing over other property) or in recorded easements serving the Individual Property.  Except as expressly set forth on a Survey, all roads necessary for the use of each Individual Property for its current purposes have been completed and dedicated to public use and accepted by all Governmental Authorities.  Except as expressly set forth in a Zoning Report, each Individual Property has, or is served by, parking to the extent required to comply with all Legal Requirements.

20752111.3.BUSINESS 
68






Section 4.17.    Separate Lots
Each Individual Property is assessed for real estate tax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or improvements is assessed and taxed together with such Individual Property or any portion thereof.
Section 4.18.    Assessments
To Borrower’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 such Individual Property that may result in such special or other assessments.
Section 4.19.    Insurance
Mortgage Borrower has obtained and Borrower has delivered to Lender certified copies of all Policies or, to the extent such Policies are not available as of the Closing Date, certificates of insurance with respect to all such Policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement.  To Borrower’s knowledge, no Person, including Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower, has done, by act or omission, anything which would impair the coverage of any of the Policies.
Section 4.20.    Use of Property
Each Individual Property is used exclusively for hotel purposes and other appurtenant and related uses.
Section 4.21.    Certificate of Occupancy; Licenses
All material certifications, permits, licenses and approvals, including, without limitation, certificates of completion or occupancy and any applicable liquor license required for the legal use, occupancy and operation of each Individual Property for the purpose intended herein, have been obtained and are valid and in full force and effect.  Borrower shall cause Mortgage Borrower to keep and maintain (or cause to be kept and maintained) all licenses necessary for the operation of each Individual Property for the purpose intended herein.  The use being made of each Individual Property is in conformity with the final certificate of occupancy (or compliance, if applicable) and any other permits or licenses issued for such Individual Property.  
Section 4.22.    Flood Zone
None of the Improvements on any Individual Property are located in an area identified by the Federal Emergency Management Agency as an area having special flood hazards, or, if any 

20752111.3.BUSINESS 
69






portion of the Improvements is located within such area, Mortgage Borrower has obtained the insurance prescribed in the Mortgage Loan Agreement.
Section 4.23.    Physical Condition
Except as set forth in the Property Condition Report, to Borrower’s knowledge after due inquiry, the Properties, including, without limitation, 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 (ordinary wear and tear excepted).  Except as set forth in the Property Condition Report, to Borrower’s knowledge after due inquiry, there exists no structural or other material defects or damages in any Individual Property, as a result of a Casualty or otherwise, and whether latent or otherwise.  None of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has received any written notice from any insurance company or bonding company of any defects or inadequacies in any 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 of any termination or threatened termination of any policy of insurance or bond.
Section 4.24.    Boundaries
To Borrower’s knowledge and in reliance on, and except as otherwise specifically disclosed on the applicable Survey, (a) none of the Improvements which were included in determining the appraised value of any Individual Property lie outside the boundaries and building restriction lines of such Individual Property to any material extent, and (b) no improvements on adjoining properties encroach upon such Individual Property and no easements or other encumbrances upon such Individual Property encroach upon any of the Improvements so as to have a Material Adverse Effect.
Section 4.25.    Leases
To Borrower’s knowledge (a) each Major Lease is in full force and effect; (b) the premises demised under the Major Leases have been completed, all alterations or other work required to be performed on the part of Mortgage Borrower or Operating Lessee has been completed, and the Tenants under the Major Leases have accepted possession of and are in physical occupancy of all of their respective demised premises; (c) the Tenants under the Major Leases have commenced the payment of rent under the Major Leases, there are no offsets, claims or defenses to the enforcement thereof, and neither Mortgage Borrower nor Operating Lessee has any monetary obligations to any Tenant under any Major Lease; (d) all Rents due and payable under the Major Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (e) no Tenant has made any written claim of a material default against the landlord under any Major Lease which remains outstanding; (f) there is no present material default by the Tenant under any Major Lease; (g) all security deposits under the Major Leases have been collected 

20752111.3.BUSINESS 
70






by Mortgage Borrower or Operating Lessee; (h) Mortgage Borrower or Operating Lessee is the sole owner of the entire landlord’s interest in each Major Lease; (i) each Major Lease is the valid, binding and enforceable obligation of Mortgage Borrower and/or Operating Lessee and the applicable Tenant thereunder and there are no agreements with the Tenants under the Major Leases other than as expressly set forth in the Major Leases; (j) no Person has any possessory interest in, or right to occupy, any Individual Property or any portion thereof except under the terms of a Lease or as a hotel guest;  (k) none of the Leases contains any option or offer to purchase or right of first refusal or right of first offer to purchase or lease any Individual Property or any part thereof; and (l) neither the Leases nor the Rents have been assigned, pledged or hypothecated except to Mortgage Lender.  Borrower represents that it has heretofore delivered to Lender true, correct and complete copies of all Major Leases and any and all amendments or modifications thereof.
Section 4.26.    Filing and Recording Taxes
All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of each Property to the applicable Mortgage Borrower, the Collateral to Borrower, the Mezzanine A Collateral to Mezzanine A Borrower, the Mezzanine B Collateral to Mezzanine B Borrower, the making of the Mortgage Loan, the Loan, the Mezzanine A Loan, the Mezzanine B Loan or the other transactions contemplated by this Agreement and the other Loan Documents have been paid.  All recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents, including, without limitation, the Pledge Agreement, have been paid or will be paid by Borrower.
Section 4.27.    Management Agreement
The Management Agreement is in full force and effect and there is no default thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred that, with the passage of time and/or the giving of notice would constitute a default thereunder.  No management fees (which are due and payable) under the Management Agreement are accrued and unpaid.  Neither Mortgage Borrower nor Operating Lessee are obligated to pay any key money to any Franchisor or Manager under any Franchise Agreement or Management Agreement, other than (a) with respect to the Individual Property commonly known as Ritz-Carlton Atlanta Downtown and located in Atlanta, Georgia, for which the aggregate amount of key money due to Marriott pursuant to the applicable Management Agreement does not exceed $3,000,000; (b) with respect to the Individual Property commonly known as Renaissance Palm Springs and located in Palm Springs, California, for which the aggregate amount of key money due to Marriott pursuant to the applicable Franchise Agreement does not exceed $2,500,000 and (c) with respect to the Individual Property commonly known as Courtyard Savannah and located in Savannah, Georgia, for which the aggregate amount of key money due to Marriott pursuant to the applicable Franchise Agreement does not exceed $175,000.

20752111.3.BUSINESS 
71






Section 4.28.    Illegal Activity
No portion of the Properties or the Collateral have been or will be purchased, improved, equipped or fixtured with proceeds of any illegal activity, and no part of the proceeds of the Loan, the Mezzanine A Loan, the Mezzanine B Loan or the Mortgage Loan will be used in connection with any illegal activity.
Section 4.29.    Construction Expenses
All costs and expenses of any and all labor, materials, supplies and equipment used in the construction maintenance or repair of the Improvements (which are currently due and payable) have been paid in full.  To Borrower’s knowledge, there are no claims for payment for work, labor or materials affecting the Properties which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents and the Mortgage Loan Documents.
Section 4.30.    Personal Property
Mortgage Borrower has paid in full for, and is the owner of, all Personal Property (other than Tenants’ or Operating Lessee’s property) used in connection with the operation of the Properties, free and clear of any and all security interests, liens or encumbrances, except for Permitted Encumbrances and the Lien and security interest created by the Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents and the Mortgage Loan Documents. 
Section 4.31.    Taxes
Borrower has filed all federal, state, county, municipal, and city income, personal property and other tax returns required to have been filed by it and has paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by it.  Borrower does not know of any basis for any additional assessment in respect of any such taxes and related liabilities for prior years.
Section 4.32.    Title
(a)    Borrower and Additional Pledgor each are the record and beneficial owner of, and has good and marketable title to, the applicable Collateral, free and clear of all Liens whatsoever.  The Pledge Agreement, together with the UCC Financing Statements relating to the Collateral when properly filed in the appropriate records, will create a valid, perfected first priority security interests in and to the Collateral, all in accordance with the terms thereof for which a Lien can be perfected by filing a UCC Financing Statement.  For so long as the Lien of the Pledge Agreement is outstanding, Borrower and Additional Pledgor shall forever warrant, defend and preserve such title and the validity and priority of the Lien of the Pledge Agreement and shall forever warrant and defend such title, validity and priority to Lender against the claims of all persons whomsoever.

20752111.3.BUSINESS 
72






(b)    Each Mortgage Borrower has good, marketable and insurable (i) with respect to the Ground Leased Property, leasehold title and (ii) with respect to each other Individual Property, fee simple title, to the real property comprising part of the Properties and good title to the balance of the Properties, free and clear of all Liens whatsoever except the Permitted Encumbrances.    
(c)    Each of Mezzanine A Borrower and Mezzanine A Additional Pledgor has good and marketable title to the applicable Mezzanine A Collateral free and clear of liens whatsoever except Permitted Encumbrances. Each of Mezzanine B Borrower and Mezzanine B Additional Pledgor has good and marketable title to the applicable Mezzanine B Collateral free and clear of liens whatsoever except Permitted Encumbrances. None of the Permitted Encumbrances, individually or in the aggregate, would reasonably be expected to have nor does have a Material Adverse Effect.  Borrower shall cause (i) Mortgage Borrower to forever warrant, defend and preserve the title to the Property, (ii) Mezzanine A Borrower and Mezzanine A Additional Pledgor to forever warrant, defend and preserve title to the applicable Mezzanine A Collateral and to forever warrant and defend the same against the claims of all persons whomsoever and (iii) Mezzanine B Borrower and Mezzanine B Additional Pledgor to forever warrant, defend and preserve title to the applicable Mezzanine B Collateral and to forever warrant and defend the same against the claims of all persons whomsoever.
Section 4.33.    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 prohibited by the terms and conditions of this Agreement or the other Loan Documents.
Section 4.34.    Investment Company Act
Borrower is not (a) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, or (b) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.
Section 4.35.    Property Documents
(a)    To Borrower’s knowledge, (i) neither Mortgage Borrower, nor any other party is currently in default (nor has any notice been given or received with respect to an alleged or current default) under any of the terms and conditions of any Property Document, (ii) each Property Document remains unmodified and in full force and effect, and (iii) Mortgage Borrower’s interest therein has not been assigned pursuant to any assignment which survives the Closing Date except the assignment to Mortgage Lender pursuant to the Mortgage Loan Documents;

20752111.3.BUSINESS 
73






(b)    To Borrower’s knowledge, all easements granted pursuant to each Property Document which were to have survived the site preparation and completion of construction (to the extent that the same has been completed), remain in full force and effect and have not been released, terminated, extinguished or discharged by agreement or otherwise;
(c)    All sums due and owing by Mortgage Borrower to the other parties to each Property Document (or by the other parties to each Property Document to Mortgage Borrower) pursuant to the terms of each such Property Document, including without limitation, all sums, charges, fees, assessments, costs, and expenses in connection with any taxes, site preparation and construction, non shareholder contributions, and common area and other property management activities have been paid, are current, and no lien has attached on any Individual Property (or threat thereof been made) for failure to pay any of the foregoing; and
(d)    To Borrower’s knowledge, the terms, conditions, covenants, uses and restrictions contained in each Property Document do not conflict in any manner with any terms, conditions, covenants, uses and restrictions contained in any Major Lease or in any agreement between Mortgage Borrower and occupant of any peripheral parcel, including without limitation, conditions and restrictions with respect to kiosk placement, tenant restrictions (type, location or exclusivity), sale of certain goods or services, and/or other use restrictions.
Section 4.36.    No Change in Facts or Circumstances; Disclosure
All information submitted by Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower or their respective agents to Lender and in all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan or in satisfaction of the terms thereof and all statements of fact made by Borrower in this Agreement or in any other Loan Document, are accurate, complete and correct in all material respects.  There has been no material adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading in any material respect or that otherwise would reasonably expected to have or does have a Material Adverse Effect.  Borrower has disclosed to Lender all material facts and has not failed to disclose any material fact that could cause any representation or warranty made herein to be materially misleading.
Section 4.37.    Intellectual Property
To Borrower’s knowledge, all trademarks, trade names and service marks necessary to the business of Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower as presently conducted or as Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower contemplates conducting its business are in good standing and uncontested.  To Borrower’s knowledge, none of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has infringed, is infringing, or has received written notice of infringement with respect to asserted trademarks, trade names and service marks of others.  To Borrower’s knowledge, 

20752111.3.BUSINESS 
74






there is no infringement by others of trademarks, trade names and service marks of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower.
Section 4.38.    Compliance with Prescribed Laws
Neither any Loan Party nor any of their respective Affiliates (other than, so long as Ashford Hospitality Trust, Inc. is a Publicly Traded Company,  any Person that owns any equity interests in Ashford Hospitality Trust, Inc.) is or will be an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order 13224 issued on September 24, 2001 (“E013224”); (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designed National and Blocked Persons,” (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person who may meet the description in (i), (ii) or (iii) above (any and all parties or persons described in (i) - (iv) above are herein referred to as a “Embargoed Person”).  Borrower has implemented procedures to ensure that no Person (other than, so long as Ashford Hospitality Trust, Inc. is a Publicly Traded Company,  any Person that owns any equity interests in Ashford Hospitality Trust, Inc.) who now or hereafter owns a direct or indirect equity interest in Borrower is an Embargoed Person or is Controlled by an Embargoed Person. Borrower and Mortgage Borrower are not in violation of any Prescribed Laws.
Section 4.39.    Brokers and Financial Advisors
Borrower has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement.
Section 4.40.    Franchise Agreements
The Franchise Agreements are in full force and effect and there is no default thereunder by any party thereto and no circumstance, condition or event has occurred that, with the passage of time and/or giving of notice, would constitute a default thereunder or entitle Franchisor to terminate any Franchise Agreement. All franchise fees, reservation fees, royalties, marketing fees and other sums and payable due under the Franchise Agreements have been paid in full or are current.  A true, correct and complete copy of the Franchise Agreements, together with all amendments and ancillary agreements or side letters related thereto, have been delivered to Lender. The Loan, and the encumbrance of the Collateral as security for the Loan, will not cause Mortgage Borrower or Operating Lessee to violate any covenants contained in any Franchise Agreement.
Section 4.41.    PIPS
Other than the Scheduled PIP, there are no PIPs affecting any Individual Property as of the Closing Date.
Section 4.42.    Intentionally Omitted. 

20752111.3.BUSINESS 
75






Section 4.43.    Labor Matters
There are no collective bargaining agreements or similar agreement to which Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower is a party.
Section 4.44.    Ground Lease.
(a)    (1) The Ground Lease is in full force and effect and has not been modified or amended in any manner whatsoever, except as set forth on Schedule XII attached hereto, (ii) there are no existing defaults under the Ground Lease by Mortgage Borrower, or, to Borrower’s knowledge, the lessor thereunder, and, to Borrower’s knowledge, no event has occurred which but for the passage of time, or notice, or both would constitute a default under the Ground Lease, (iii) all rents, additional rents and other sums due and payable under the Ground Lease have been paid in full, (iv) neither Mortgage Borrower nor the lessor under the Ground Lease has commenced any action or given or received any notice for the purpose of terminating the Ground Lease, (v) to Borrower’s knowledge, the lessor under any Ground Lease, as debtor in possession or by a trustee for such lessor, has not given any notice of, and Mortgage Borrower has not consented to, any attempt to sell or transfer the Ground Lessor Estate free and clear of the Ground Lease under Section 363(f) (or any similar provision) of the U.S. Bankruptcy Code, and (vi) to Borrower’s knowledge, the lessor under any Ground Lease is not subject to any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding and the Ground Lessor Estate is not an asset being administered in any voluntary or involuntary bankruptcy, reorganization or insolvency proceeding;
(b)    The Ground Lease permits the interest of the lessee and/or sublessee, as applicable, thereunder to be encumbered by the Mortgages;
(c)    The Ground Lease or a memorandum of Ground Lease has been recorded and, except as indicated in the Owner’s Insurance Policy, Mortgage Borrower’s interest in the Ground Lease is not subject to any Lien (other than the applicable Mortgage);
(d)    Except as set forth on Schedule 4.44, Mortgage Borrower’s interest in the Ground Lease is assignable to Lender, Mezzanine A Lender, Mezzanine B Lender, Mortgage Lender and each of their respective successors and/or assigns, including the trustee of any REMIC Trust, upon notice to, but without the consent of, the lessor thereunder and in the event that it is so assigned, it is further assignable by Lender, Mezzanine A Lender, Mezzanine B Lender, Mortgage Lender and each of their respective successors and/or assigns, including the trustee of any REMIC Trust, without the need to obtain the consent of, such lessor;
(e)    Except as set forth on Schedule 4.44, the Ground Lease requires the lessor thereunder to give notice of any default by Mortgage Borrower to Lender provided Mortgage Borrower gives such lessor written notice of Lender’s address, and the Ground Lease further provides that any right of Mortgage Borrower or the lessor under the Ground Lease to terminate the Ground Lease shall not be effectively exercised by Mortgage Borrower or such lessor, as applicable, nor 

20752111.3.BUSINESS 
76






honored by Mortgage Borrower or such lessor, as applicable, unless such right of termination shall be joined in and consented to by Lender;
(f)    Except as set forth on Schedule 4.44, Lender is permitted an opportunity (including, where necessary, sufficient time to gain possession of the interest of Borrower under the Ground Lease) to cure any default under the Ground Lease, which is curable after the receipt of notice of any default before the lessor thereunder may terminate the Ground Lease;
(g)    Except as set forth on Schedule 4.44, the Ground Lease has a term (with extensions) which extends not less than twenty (20) years beyond the Maturity Date;
(h)    The Ground Lease requires the lessor thereunder to enter into a new lease with any permitted leasehold mortgagee upon termination of the Ground Lease for any reason, including rejection of the Ground Lease by Mortgage Borrower in a bankruptcy proceeding;
(i)    Under the terms of the Ground Lease and the applicable Loan Documents and the Mortgage Loan Documents, taken together, any Net Proceeds will be applied either to the Restoration of all or part of the applicable Ground Leased Property or to the payment of the outstanding principal balance of the Mortgage Loan, the Mezzanine A Loan, the Mezzanine B Loan and the Loan together with any accrued interest thereon in the manner, and subject to the provisions of, the Ground Lease;
(j)    The Ground Lease does not impose commercially unreasonable restrictions on subletting; and 
(k)    Borrower shall not permit Mortgage Borrower to exercise its purchase option right under the Portsmouth Ground Lease without first satisfying any conditions precedent that may be reasonably imposed by Lender to the exercise of such purchase option (including, without limitation, a date down of the applicable Owner’s Insurance Policy, together with any endorsements necessary to insure Mortgage Borrower’s ownership of the fee portion of the applicable Property).  
Section 4.45.    Operating Lease Representations.
(a)    (1) The Operating Leases are in full force and effect, (ii) there are no defaults under the Operating Leases by Mortgage Borrower or Operating Lessee, and no event has occurred which but for the passage of time, or notice, or both would constitute a default under the Operating Leases, (iii) all rents, additional rents and other sums due and payable under the Operating Leases have been paid current, (iv) neither tenant nor the landlord under the Operating Leases has commenced any action or given or received any notice for the purpose of terminating the Operating Leases, (v) no rent or other amounts due under any Operating Lease has been paid more than thirty (30) days in advance of its due date, (vi) Operating Lessee has not filed any claim of offset and, to the best knowledge of Borrower, has no charge, lien or claim of offset under any Operating Lease or otherwise against the rents or other amounts due or to become due thereunder, (vii) Operating Lessee is the owner of the “Tenant’s” or “Lessee’s” interest in each Operating Lease and Mortgage 

20752111.3.BUSINESS 
77






Borrower is the owner of “Landlord’s” or “Lessor’s” interest in each Operating Lease, and (viii) no transfer or assignment of any interest in any Operating Lease currently exists, except as provided to Mortgage Lender and Leases of less than 20,000 square feet, Operating Lessee has not sublet any of the Premises demised pursuant to any Operating Lease.
(b)    Mortgage Borrower’s interest in the Operating Leases is not subject to any Liens (other than the applicable Mortgage); 
(c)    All FF&E (whether now or hereafter acquired) used for the operation of the Properties is owned (and will continue to be owned) by the applicable Mortgage Borrower and all other Personal Property, Fixtures (as defined in the Mortgage) and Equipment (as defined in the Mortgage) relating to the Property and the Operating Lease Property (as defined in the Operating Lease Subordination Agreements) and the ownership and operation thereof are owned by Mortgage Borrower or Operating Lessee. Borrower shall cause Mortgage Borrower and Operating Lessee to cause any FF&E, Personal Property, Fixtures and/or Equipment owned by Operating Lessee at the time the Operating Lease is terminated or cancelled to be transferred to Mortgage Borrower; 
(d)    Operating Lessee owns and maintains Inventory (as defined in the Operating Lease) as is required to operate the Operating Lease Property pursuant to and in accordance with the Operating Lease, the Management Agreement and this Agreement.  Borrower shall cause Mortgage Borrower and Operating Lessee to cause any Inventory owned by Operating Lessee at the time the Operating Lease is terminated or cancelled to be transferred to Mortgage Borrower; and 
(e)    Borrower has delivered to Lender a true, correct and complete copy of the Operating Leases.
Section 4.46.    Condominium Representations.
(a)    To Borrower’s actual knowledge, the Condominium has been legally and validly created pursuant to all Legal Requirements and the Condominium Documents.
(b)    Borrower has delivered to Lender a true, complete and correct copy of each of the Condominium Documents, together with true, complete and correct copies of all amendments and modifications thereto, and none of the Condominium Documents has been otherwise modified, amended or supplemented.
(c)    There currently exists no default or event of default under the Condominium Documents by Mortgage Borrower or, to Borrower’s knowledge, by any other party thereto.  Except pursuant to the Mortgage Loan Documents, Mortgage Borrower’s interest therein has not been assigned. All fees, dues, charges and assessments, whether annual, monthly, regular, special or otherwise, including, any “Common Expenses” (as such term is defined in the Condominium Documents) (collectively, the “Common Charges”) which are due and payable by Mortgage Borrower to date have been fully paid.  There are currently no special or other extraordinary Common 

20752111.3.BUSINESS 
78






Charges pending (other than regular, monthly Common Charges).  Except as set forth on Schedule 4.46, the Condominium Board has not established a working capital or any other similar type of reserve. To Borrower’s knowledge, there are no judgments, suits or claims pending, filed or threatened against the Condominium Board and there are no set-offs, claims, counterclaims or defenses being asserted or, after giving the requisite notice, if any, required under the Condominium Documents, capable of being asserted, for the enforcement of the obligations of any party under the Condominium Documents.  The Condominium Board has the sole power and authority to act on behalf of, and bind, the Condominium.
(d)    Neither the Condominium Board nor any other Person (other than as set forth on Schedule 4.46) has any right of first refusal or option to purchase the Individual Property subject to the Condominium Documents. 
(e)    The members of the Condominium Board appointed by Mortgage Borrower are designated as such on Schedule 4.46.  
(f)    The amount of Common Charges payable by Mortgage Borrower on an annual basis (i) with respect to the Austin Condominium, is $161,779.80, (ii) with respect to the Washingtonian Waterfront Condominium, $0.00, (iii) with respect to the Washingtonian Waterfront Commercial Association, Inc. Condominium, $112,516.68, and (iv) with respect to The Washingtonian Center Association, Inc. Condominium, $17,917.68.
(g)    Upon delivery of the notice required by the Condominium Documents, Lender is (i) with respect to the Austin Condominium, a “Mortgagee” (as such term is defined in the Austin Condominium Documents), (ii) with respect to the Gaithersburg Condominium, a “Mortgagee”, a “First Mortgagee” and an “Institutional Lender” (as such terms are defined in the Gaithersburg Condominium Documents), (iii) with respect to the Portsmouth Condominium, a “Mortgagee” (as such term is defined in the Portsmouth Condominium Documents) and (iv) with respect to the Sugar Land Condominium, a “mortgagee” and a “First Mortgagee” (as such terms are used or defined in the applicable Sugar Land Condominium Documents).
(h)    All conditions of the Condominium Documents which were required to be satisfied, and all approvals which were required to be given in connection with the making of the Loan, have been satisfied, given or waived.
(i)    (i) with respect to the Sugar Land Hotel and Conference Center Condominium, except with respect to any vote requiring the consent of a super-majority or unanimous consent pursuant to and in accordance with the related Condominium Documents, the Condominium Board and Condominium are controlled by members thereof appointed by Mortgage Borrower, (ii) with respect to the Portsmouth Condominium, the Condominium Board and the Condominium are controlled by members thereof appointed by Mortgage Borrower, so long as there is no event of default under the related Ground Lease, (iii) with respect to the Austin Condominium, the Condominium Board and Condominium are not controlled by members thereof 

20752111.3.BUSINESS 
79






appointed by Mortgage Borrower, (iv) with respect to the Gaithersburg Condominium, the Condominium Board and Condominium are not controlled by members thereof appointed by Mortgage Borrower, and (v) with respect to the Sugar Land Condominium (other than the Sugar Land Hotel and Conference Center Condominium), the Condominium Board and Condominium are not controlled by members thereof appointed by Mortgage Borrower.
(j)    To the knowledge of Borrower, neither the Condominium Board nor the Condominium are party to any loan, credit agreement or other arrangement for any extension of credit, whether funded or to be funded.
Section 4.47.    Affiliates
Borrower does not own any equity interests in any Person other than the applicable Pledged Interests.
Section 4.48.    Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower Representations
Borrower has reviewed the representations and warranties made in the (a) Mortgage Loan Documents for the benefit of Mortgage Lender, (b) Mezzanine A Loan Document for the benefit of Mezzanine A Lender, and (c) Mezzanine B Loan Documents for the benefit of Mezzanine B Lender, and, in each case, such representations and warranties are true, correct and complete and such representations and warranties are incorporated herein by this reference as if set forth at length herein.
Section 4.49.    Mortgage Loan Documents
Borrower has or has caused to be delivered to Lender true, complete and correct copies of all Mortgage Loan Documents, and none of the Mortgage Loan Documents has been amended or modified as of the date thereof.
Section 4.50.    Other Mezzanine Loan Documents
Borrower has or has caused to be delivered to Lender true, complete and correct copies of all Other Mezzanine Loan Documents, and none of the Other Mezzanine Loan Documents has been amended or modified as of the date thereof. 
Section 4.51.    Mortgage Loan Default, Mezzanine A Loan Default and Mezzanine B Loan Default
The Mortgage Loan has been fully funded in the amount of $815,000,000.00. The Mezzanine A Loan has been fully funded in the amount of $80,000,000. The Mezzanine B Loan has been fully funded in the amount of $50,000,000.  To the best of Borrower’s knowledge, and 

20752111.3.BUSINESS 
80






belief, after due inquiry, no Mortgage Loan Default, Mezzanine A Loan Default or Mezzanine B Loan Default exists as of the date hereof.
Section 4.52.    Survival
Borrower agrees that, unless expressly provided otherwise, all of the representations and warranties of Borrower set forth in this Article 4 and elsewhere in this Agreement and in the other Loan Documents shall be deemed given and made as of the date hereof and shall survive for so long as any portion of the Debt remains owing to Lender.  All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents by Borrower shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.
ARTICLE 5     
BORROWER COVENANTS
From the date hereof and until repayment of the Debt in full and performance in full of all obligations of Borrower under the Loan Documents or the earlier release of the Lien of the Pledge Agreement encumbering the Collateral (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, Borrower hereby covenants and agrees with Lender that:
Section 5.1.    Existence; Compliance with Requirements
(g)    Borrower shall (and shall cause Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower to) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all of its material rights, licenses, permits and franchises and comply with all applicable material Legal Requirements.  Borrower shall not (and shall not permit Mortgage Borrower or Mezzanine A Borrower to) commit, permit or suffer to exist any act or omission affording any Governmental Authority the right of forfeiture as against any Individual Property or any part thereof or the Collateral or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents.  Borrower shall (and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to) at all times maintain, preserve and protect all franchises and trade names used in connection with the ownership of the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral and the operation of the Properties. Promptly following (but, in no event, later than two (2) Business Days after) the completion of the 1031 Exchange, Borrower shall provide to Lender written notice informing Lender that the 1031 Exchange has been completed and certifying that the Post 1031 Exchange Organizational Chart accurately lists the direct and indirect owners of the equity interests in Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, HHSD, Operating Lessee, each Mortgage Borrower SPE Component Entity and each Guarantor (when not an individual) as of such date.  Borrower expects that the 1031 Exchange will be completed on or about March 14, 2015.

20752111.3.BUSINESS 
81






(h)    After prior written notice to Lender, Borrower, at its own expense, may contest (or cause to be contested) by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the Legal Requirements affecting an Individual Property, provided that (i) no Event of Default has occurred and is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral or any Individual Property is subject and shall not constitute a default thereunder; (iii) none of the Properties, any part thereof or interest therein, the Collateral or any part thereof or interest therein, the Mezzanine A Collateral or any part thereof or interest therein or the Mezzanine B Collateral or any part thereof or interest therein nor Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor or Operating Lessee nor HHSD shall be affected in any material adverse way as a result of such proceeding; (iv) non-compliance with the Legal Requirements shall not impose civil or criminal liability on Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Mortgage Borrower SPE Component Entity, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, any SPE Component Entity, Additional Pledgor, Operating Lessee, HHSD or Lender; (v) Borrower shall (or shall have caused Mortgage Borrower to) have furnished the security as may be required in the proceeding, or required by Lender if no such security has been furnished in the proceeding, to ensure compliance by Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower with the Legal Requirements; and (vi) Borrower shall (or shall have caused Mortgage Borrower, Mezzanine B Borrower and/or Mezzanine A Borrower to) have furnished to Lender all other items reasonably requested by Lender in connection therewith.
(i)    At the request of Lender, Borrower shall (and shall cause Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower to), upon the occurrence and during the continuance of an Event of Default under this Agreement or any of the other Loan Documents, cooperate with Lender to cause all licenses and permits related to each Property to be assigned to Lender (or its nominee) if such permits or licenses are assignable or otherwise cause such licenses or permits to be held by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Manager or Operating Lessee, as applicable, for the benefit of Lender until such time as Lender can obtain such licenses or permits in its own name or the name of a nominee.
Section 5.2.    Maintenance and Use of Property
Borrower shall cause (or shall cause Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower and/or Operating Lessee to cause) the Properties to be maintained in a good, safe and insurable condition and in compliance with all applicable Legal Requirements, and shall promptly (or shall promptly cause Mortgage Borrower and/or Operating Lessee to) make all repairs to the Properties, above grade and below grade, interior and exterior, structural and nonstructural, ordinary and extraordinary, unforeseen and foreseen except where the failure to so comply would not reasonably be expected to have and does not have a Material Adverse Effect.  All repairs made (or caused to be made) by Borrower, Mezzanine B Borrower, Mortgage Borrower or Operating 

20752111.3.BUSINESS 
82






Lessee shall be made in a good and workmanlike manner, shall be equal or better in quality and class to the original work and shall comply with all applicable Legal Requirements and insurance requirements.  The Improvements and the Personal Property shall not be removed, demolished or other than in accordance with the provisions of Section 5.21, materially altered (except for normal replacement of the Personal Property) without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  If under applicable zoning provisions the use of all or any portion of any Individual Property is or shall become a nonconforming use, Borrower will not (and will not cause or permit Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to) cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the express prior written consent of Lender.
Section 5.3.    Waste
Borrower shall not (and shall not cause or permit Mortgage Borrower to) commit or suffer any physical waste of the Properties or make any change in the use of the Properties which will in any way materially increase the risk of fire or other hazard arising out of the operation of any Individual Property, or take any action that would reasonably be expected to invalidate or give cause for cancellation of any Policy, or do or permit to be done thereon anything that would reasonably be expected to in any way impair the value of any Individual Property, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral.  Borrower will not (and will not cause or permit Mortgage Borrower, Mezzanine A Borrower or Mezzanine B Borrower to), without the prior written consent of Lender, permit any drilling or exploration for or extraction, removal, or production of any minerals from the surface or the subsurface of any Individual Property, regardless of the depth thereof or the method of mining or extraction thereof.
Section 5.4.    Taxes and Other Charges
(h)    Borrower shall pay (or cause Mortgage Borrower to pay) all Property Taxes and Other Charges now or hereafter levied or assessed or imposed against the Properties or any part thereof as the same become due and payable; provided, however, Borrower’s obligation to (or cause Mortgage Borrower to pay) directly pay Property Taxes shall be suspended for so long as Mortgage Borrower complies with the terms and provisions of Section 9.4 of the Mortgage Loan Agreement and Section 9.1 hereof.  Borrower shall furnish to Lender receipts for the payment of the Property Taxes and the Other Charges at least five (5) days prior to the date the same shall become delinquent (provided, however, that Borrower is not required to furnish such receipts for payment of Property Taxes in the event that such Property Taxes have been paid by Mortgage Lender pursuant to Section 9.4 of the Mortgage Loan Agreement).  Subject to the terms of Section 5.4(b) hereof, Borrower shall not suffer and shall promptly cause to be paid and discharged any Lien or charge whatsoever which may be or become a Lien or charge against any Individual Property, and shall promptly pay for all utility services provided to the Properties.  If Mortgage Borrower shall fail to pay any Property Taxes or Other Charges in accordance with this Section 5.4 and is not contesting or causing a contesting of such Property Taxes or Other Charges in accordance with Section 5.4(b) below, or if there are insufficient funds in the Tax and Insurance Reserve Account to pay any Property Taxes 

20752111.3.BUSINESS 
83






or Other Charges, Lender shall have the right, but shall not be obligated, to pay such Property Taxes or Other Charges, and Borrower shall repay to Lender, on demand, any amount paid by Lender, with interest thereon at the Default Rate from the date of the advance thereof to the date of repayment, and such amount shall constitute a portion of the Debt secured by the Pledge Agreement.
(i)    After prior written notice to Lender, Borrower, at its own expense, may (or may cause Mortgage Borrower to) contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any Property Taxes or Other Charges, provided that (i) no Event of Default is continuing; (ii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, Mezzanine A Borrower, Mezzanine B Borrower, or Mortgage Borrower is subject and shall not constitute a default thereunder and such proceeding shall be conducted in accordance with all applicable Legal Requirements; (iii) neither the Properties nor any part thereof or direct or indirect interest therein nor the Collateral nor any part thereof or direct or indirect interest therein will be in danger of being sold, forfeited, terminated, canceled or lost; (iv) Borrower shall promptly upon final determination thereof pay (or cause Mortgage Borrower to pay) the amount of any such Property 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 such contested Property Taxes or Other Charges from each Individual Property; (vi) Borrower shall (or shall cause Mortgage Borrower to) furnish such security as may be required in the proceeding, or if no such security has been furnished in the proceeding or to Mortgage Lender, Mezzanine B Lender or Mezzanine A Lender, Borrower shall (or shall cause Mortgage Borrower to) furnish such reserve deposits as may be requested by Lender, to ensure the payment of any such Property Taxes or Other Charges, together with all interest and penalties thereon (unless Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has paid all of the Property Taxes or Other Charges under protest); (vii) failure to pay such Property Taxes or Other Charges will not subject Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower or Lender to any civil or criminal liability; (viii) such contest is not reasonably expected to have and does not have a Material Adverse Effect; and (ix) Borrower 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 5.4(b).  Lender may pay over any such cash deposit or part thereof 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 part thereof or interest therein) shall be in danger of being sold, forfeited, terminated, canceled or lost or there shall be any danger of the Liens of the Mortgages being primed by any related Lien.
(j)    Each Loan Party will timely file all U.S. federal, state, and other material tax returns required to be filed by it and will timely pay all Taxes shown on such returns or any assessments received by it and all other material Taxes (other than any Property Taxes, which shall be governed by Section 5.4(a) and (b)).



20752111.3.BUSINESS 
84






Section 5.5.    Litigation
Borrower shall give prompt written notice to Lender of any litigation or governmental proceedings pending or threatened in writing against any Loan Party, the Collateral or any Individual Property which would reasonably be expected to have or does have a Material Adverse Effect.
Section 5.6.    Access to Properties
Borrower shall cause Mortgage Borrower to permit agents, representatives and employees of Lender to inspect each Individual Property or any part thereof during normal business hours on Business Days upon reasonable advance notice (which may be given telephonically or by e-mail), subject to Borrower’s (or Mortgage Borrower’s) usual and customary safety requirements and accompanied by a representative of Borrower (or Mortgage Borrower).
Section 5.7.    Notice of Default
Borrower shall (and shall cause Mezzanine A Borrower, Mezzanine B Borrower and/or Mortgage Borrower to) promptly advise Lender (a) of any event or condition that  would reasonably be expected to have or does have a Material Adverse Effect of which Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has knowledge, and (b) of the occurrence of any Default or Event of Default of which Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has knowledge.
Section 5.8.    Cooperate in Legal Proceedings
Borrower shall (and shall cause Mezzanine A Borrower, Mezzanine B Borrower and/or Mortgage Borrower to) at Borrower’s expense cooperate fully with Lender with respect to any proceedings before any court, board or other Governmental Authority which would reasonably be expected to have, or does have, a Material Adverse Effect and, in connection therewith, permit Lender, at its election, to participate in any such proceedings, other than those proceedings where Borrower and Lender are adverse parties.
Section 5.9.    Performance by Borrower
Borrower shall (and shall cause Mezzanine A Borrower, Mezzanine B Borrower and/or Mortgage Borrower to) in a timely manner observe, perform and fulfill each and every covenant, term and provision to be observed and performed by Borrower under this Agreement and the other Loan Documents or by Mortgage Borrower under the Mortgage Loan Agreement and the other Mortgage Loan Documents or by Mezzanine A Borrower under the Mezzanine A Loan Agreement and the other Mezzanine A Loan Documents or by Mezzanine B Borrower under the Mezzanine B Loan Agreement and the other Mezzanine B Loan Documents, as applicable, and any other agreement or instrument affecting or pertaining to the Collateral or each Individual Property and any amendments, modifications or changes thereto (except to the extent waived by the counterparty 

20752111.3.BUSINESS 
85






thereto, provided that such action or failure to act by Borrower does not otherwise require Lender’s consent under the Loan Documents).
Section 5.10.    Awards; Insurance Proceeds
Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Mezzanine A Lender under the Mezzanine A Loan Documents and Mezzanine B Lender under the Mezzanine B Loan Documents, Borrower shall cooperate with Lender in obtaining for Lender (to the extent that this Agreement provides for such Awards or Insurance Proceeds to be paid to Lender) the benefits of any Awards or Insurance Proceeds lawfully or equitably payable in connection with the Properties, and Lender shall be reimbursed for any expenses incurred in connection therewith (including reasonable, actual attorneys’ fees and disbursements, the cost of any Restoration Consultant and the payment by Borrower of the expense of an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting any Individual Property or any part thereof) out of such Awards or Insurance Proceeds.
Section 5.11.    Financial Reporting
(a)    Borrower shall keep adequate books and records of account on an accrual basis and in all material respects in accordance with the Uniform System of Accounts and GAAP, consistently applied and shall furnish (or shall cause to be furnished) to Lender:
(i)    prior to the Securitization of the Loan and at any time during a Cash Sweep Period, monthly financial statements, including operating statements and year-to-date, annual and trailing twelve (12) months financial statements (including, operating statements) (provided that Borrower shall not be required to deliver monthly financial statements for the month of January and the last month of a calendar quarter) of the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral and the Collateral prepared and certified by Borrower in a form approved by Lender, detailing Gross Revenues received, Operating Expenses incurred, the net operating income before and after Debt Service and Capital Expenditures and containing occupancy, average daily room, and revenue per available room statistics as well as such other information as is necessary and sufficient to fairly represent the financial position and results of operation of the Properties, within thirty (30) days after the end of each calendar month;
(ii)    quarterly financial statements, including operating statements and year-to-date, annual and trailing twelve (12) months financial statements of the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral and the Collateral on a consolidated basis for all Persons constituting Borrower, prepared and certified by Borrower in a form approved by Lender, detailing Gross Revenues received, Operating Expenses incurred, the net operating income before and after Debt Service and Capital Expenditures and containing occupancy, average daily room, and revenue per available room statistics as well as such other information as is necessary and sufficient to fairly represent the financial position and results of operation of the Properties, within forty-five (45) days after the end of each fiscal quarter;

20752111.3.BUSINESS 
86






(iii)    the most current Smith Travel Research Reports then available (or if not available, any successor thereto) to Mortgage Borrower reflecting market penetration and relevant hotel properties competing with the Properties, within thirty (30) days after the end of each calendar month;
(iv)    (a) annual unaudited financial statements on a consolidated basis for all Persons constituting Borrower, including, a balance sheet, profit and loss statement, statement of cash flows, and statement of change in financial position of Borrower and Guarantor, prepared (1) with respect to Borrower and certified by Borrower and (2) with respect to Guarantor and certified by Guarantor, in each case, within ninety (90) days after the close of each fiscal year of Borrower and Guarantor, as the case may be; provided, however, Guarantor’s obligations under this Section 5.11(a)(iv) shall be deemed satisfied for so long as (1) Guarantor’s financial statements are consolidated with the financial statements of a Publicly Traded Company and (2) on or before the dates required hereunder, Borrower delivers to Lender all financial statements of such Publicly Traded Company, including, without limitation, those required pursuant to the Exchange Act, the Sarbanes-Oxley Act of 2002 and the listing requirements of the applicable stock exchange.
(v)    an Annual Budget (which shall include, among other things, an estimate of the Ground Rent due under each Ground Lease for the calendar year that is the subject of such Annual Budget) not later than thirty (30) days prior to the commencement of each fiscal year of Mortgage Borrower, which shall be subject to the reasonable approval of Lender (to the extent that Mortgage Borrower or Operating Lessee has an approval right over the Annual Budget pursuant to the terms of the applicable Management Agreement), along with any amendments or modifications thereto.  In the event that Lender objects to a proposed Annual Budget submitted by Borrower, Lender shall advise Borrower of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such objections) and Borrower shall promptly cause (or shall cause Mortgage Borrower or Operating Lessee to cause) the revision of such Annual Budget and resubmit the same to Lender.  Lender shall advise Borrower of any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such objections) and Borrower shall promptly cause (or shall cause Mortgage Borrower or Operating Lessee to cause) the revision of the same in accordance with the process described in this subsection until Lender approves the Annual Budget.  Until such time that Lender approves a proposed Annual Budget, which approval shall not be unreasonably withheld, conditioned or delayed, the most recent Annual Budget shall apply; provided that, such approved Annual Budget shall be adjusted to reflect (A) actual increases in Property Taxes, Insurance Premiums, utilities expenses and expenses under the Management Agreement and (B) up to five percent (5%) increases in any budgeted line items provided such increases do not exceed a five percent (5%) increase in the Annual Budget in the aggregate; and
(vi)    a quarterly calculation of the Debt Yield and Debt Service Coverage Ratio for the  immediately preceding twelve (12) months as of the last day of such quarter, prepared and certified by Borrower, within thirty (30) days of the end of the quarter.

20752111.3.BUSINESS 
87






(b)    Borrower shall furnish (or shall cause to be furnished) Lender such other additional financial or management information as may, from time to time, be reasonably required by Lender in form and substance satisfactory to Lender (including, without limitation, any financial reports required to be delivered by any Tenant or any guarantor of any Major Lease pursuant to the terms of such Major Lease or otherwise in Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s possession), and shall furnish to Lender and its agents convenient facilities for the examination and audit of any such books and records.
(c)    Borrower shall promptly furnish (or shall cause to be furnished) to Lender copies of any and all budgets, financial statements or other reports prepared by or on behalf of any Condominium Board, Manager or Franchisor and delivered to Borrower, Mortgage Borrower or Operating Lessee or any of their respective Affiliates pursuant to and in accordance with any Condominium Documents, the Management Agreement (or Replacement Management Agreement) or Franchise Agreement (or Replacement Franchise Agreement), as applicable.
(d)    In the event of any material adverse change (as reasonably determined by Borrower) in the financial or physical condition of any Property (including, without limitation, in the event of any termination of any Major Lease or any termination or cancellation of any terrorism or other insurance required by the Loan Documents), Borrower shall promptly notify Lender in writing of such material adverse change, which notice shall describe such material change in reasonable detail.
(e)    Within thirty (30) days after the end of each calendar year and at any time that Ground Rent under any Ground Lease is adjusted or otherwise modified by the lessor under the Ground Lease pursuant to the terms of the Ground Lease, Borrower shall deliver (or cause to be delivered) to Lender a spreadsheet, together with all back-up documentation as may be reasonably requested by Lender, detailing the percentage rent due under each Ground Lease (if any) for the immediately preceding calendar year.
(f)    All items requiring the certification of Borrower pursuant to this Section 5.11 shall, except where Borrower is an individual, require a certificate executed by an authorized officer of Borrower or the general partner or managing member of Borrower, as applicable, and shall contain a statement by Borrower as to whether there exists, to Borrower’s knowledge, an Event of Default under the Loan Documents, and if an Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.
Section 5.12.    Estoppel Statement
(a)    After request by Lender, Borrower shall within ten (10) Business Days furnish Lender or any proposed assignee of the Loan with a statement, duly acknowledged and certified, setting forth (i) the original principal amount of the Loan, Mezzanine A Loan, the Mezzanine B Loan and the Mortgage Loan, (ii) the rate of interest on the Loan, the Mezzanine A Loan, the Mezzanine B Loan and the Mortgage Loan, (iii) the unpaid principal amount of the Loan, 

20752111.3.BUSINESS 
88






Mezzanine A Loan, the Mezzanine B Loan and the Mortgage Loan, (iv) the date installments of interest and/or principal were last paid under the Loan, Mezzanine A Loan, the Mezzanine B Loan and the Mortgage Loan, (v) the Maturity Date, (vi) offsets or defenses to the payment of the Debt, Mezzanine A Loan, the Mezzanine B Loan or the Mortgage Loan, if any, and (vii) that the Note, this Agreement, the Pledge Agreement and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification.
(b)    Borrower shall cause Mortgage Borrower or Operating Lessee to use commercially reasonable efforts to deliver to Lender, consistent with the terms of the Major Leases but not more than twice in any twelve (12) month period (so long as no Event of Default is then continuing), promptly upon request, duly executed estoppel certificates from any one or more Tenants as required by Lender attesting to such facts regarding the related Major Lease as Lender may require, including, but not limited to attestations that each Major Lease covered thereby is in full force and effect with no defaults thereunder on the part of any party, that none of the Rents have been paid more than one month in advance, except as security, and that the Tenant claims no defense or offset against the full and timely performance of its obligations under the Major Lease.
(c)    Upon Lender’s request, Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to deliver to Lender an estoppel certificate from the lessor under the Ground Lease stating that (i) the Ground Lease is in full force and effect and has not been modified, amended or assigned, (ii) neither the lessor nor Mortgage Borrower is in default under any of the terms, covenants or provisions of the Ground Lease and such lessor knows of no event which, but for the passage of time or the giving of notice or both, would constitute an event of default under the Ground Lease, (iii) neither the lessor nor Mortgage Borrower has commenced any action or given or received any notice for the purpose of terminating the Ground Lease and (iv) all sums due and payable under the Ground Lease have been paid in full.
(d)    Borrower shall, upon request of Lender, cause Mortgage Borrower or Operating Lessee to use commercially reasonable efforts to deliver an estoppel certificate from each Franchisor and Manager stating (i) whether the applicable Franchise Agreement or the applicable Management Agreement, as applicable, is in full force and effect and has been modified, amended or assigned, (ii) whether the Franchisor or Manager, as applicable, or Operating Lessee or Mortgage Borrower is in default under any of the terms, covenants or provisions of the Franchise Agreement or the applicable Management Agreement, as applicable, and whether the Franchisor or Manager, as applicable know of any event which, but for the passage of time or the giving of notice or both, would constitute a default under the Franchise Agreement or the applicable Management Agreement, as applicable,, (iii) whether Franchisor or Manager, as applicable, or Operating Lessee or Mortgage Borrower has commenced any action or given or received any notice for the purpose of terminating the Franchise Agreement or the applicable Management Agreement, as applicable, and (iv) whether all sums due and payable to Franchisor under the Franchise Agreement or the applicable Management Agreement, as applicable, have been paid in full.

20752111.3.BUSINESS 
89






(e)    Within ten (10) Business Days of request by Lender, Borrower shall furnish Lender, an estoppel certificate from any of Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, HHSD and Operating Lessee in form and substance reasonably satisfactory to Lender.
(f)    Borrower shall, upon request of Lender, cause Mortgage Borrower to use commercially reasonable efforts to deliver an estoppel from each Condominium Board in form and substance substantially similar to the related estoppel delivered in connection with the closing of the Loan.
Section 5.13.    Leasing Matters
(a)    Borrower shall be permitted to cause Mortgage Borrower or Operating Lessee to enter into a proposed Lease (including the renewal or extension of an existing Lease (a “Renewal Lease”)) that is not a Major Lease without the prior written consent of Lender, provided such proposed Lease or Renewal Lease (i) provides for rental rates and terms comparable to existing local market rates and terms (taking into account the type and quality of the tenant) as of the date such Lease is executed by Mortgage Borrower or Operating Lessee (unless, in the case of a Renewal Lease, the rent payable during such renewal, or a formula or other method to compute such rent, is provided for in the original Lease), (ii) is an arm’s length transaction with a bona fide, independent third party tenant, (iii) does not contain any terms which would reasonably be expected to have or do have a Material Adverse Effect, (iv) is subject and subordinate to the Mortgages and the Tenant thereunder agrees to attorn to Mortgage Lender and any purchaser at a foreclosure sale and (v) does not contain any option, offer, right of first refusal, right of first offer or other similar right to acquire all or any portion of any Individual Property.  Each Major Lease and all other proposed Leases which do not satisfy the requirements set forth in this subsection (each a “Required Approval Lease”) shall be subject to the prior approval of Lender.  Borrower shall cause Mortgage Borrower and Operating Lessee to promptly deliver to Lender copies of all Leases which are entered into pursuant to this subsection together with Borrower’s certification that Mortgage Borrower or Operating Lessee has satisfied all of the conditions of this Section.  Borrower shall pay the costs and expenses associated with Lender’s counsel review of any Lease for which Lender’s consent may be required under this Section 5.13.
(b)    Borrower shall (and shall cause Mortgage Borrower or Operating Lessee to) (i) observe and perform all the obligations imposed upon the landlord under the Leases in all material respects and shall not do or permit to be done anything to impair the value of any of the Leases as security for the Debt; (ii) promptly send copies to Lender of all notices of material default which Mortgage Borrower or Operating Lessee shall send or receive under a Major Lease; (iii) enforce all of the material terms, covenants and conditions contained in the Leases upon the part of the tenant thereunder to be observed or performed; (iv) not collect any Rents more than one (1) month in advance (except security deposits shall not be deemed Rents collected in advance); (v) hold all security deposits in accordance with the terms of the applicable Lease and Legal Requirements; (vi) not execute any assignment of the landlord’s interest in any of the Leases or the Rents except 

20752111.3.BUSINESS 
90






as contemplated by the Loan Documents; and (vii) not consent to any assignment of or subletting under any Major Leases not in accordance with their terms, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed.
(c)    Borrower shall be permitted to cause Mortgage Borrower or Operating Lessee, without the prior written consent of Lender, to amend, modify or waive the provisions of or terminate, reduce Rents or accept a surrender of space under, or shorten the term of, any Lease which is not a Major Lease (including any guaranty, letter of credit or other credit support with respect thereto) provided that (i) such action (taking into account, in the case of a termination, reduction in rent, surrender of space or shortening of term, the planned alternative use of the affected space) is not reasonably expected to have and does not have a Material Adverse Effect, and (ii) such amendment, modification, waiver, termination, rent reduction, space surrender or term shortening, is otherwise in compliance with the requirements of this Agreement, the Mortgage Loan Agreement and any subordination agreement binding upon Mortgage Lender with respect to such Lease.  A termination of a Lease with a tenant who is in monetary default beyond applicable notice and grace periods shall not be considered an action which has a Material Adverse Effect.  Borrower shall be permitted to cause Mortgage Borrower or Operating Lessee to terminate a Major Lease with a tenant who is in default beyond applicable notice and grace periods without the prior written approval of Lender provided no Cash Sweep Period is continuing.  Any amendment, modification, waiver, termination, rent reduction, space surrender or term shortening which does not satisfy the requirements set forth in this subsection shall be subject to the prior written approval of Lender (not to be unreasonably withheld or delayed) (each, a “Lease Modification”), at Borrower’s expense.  Borrower shall (or shall cause Mortgage Borrower or Operating Lessee to) promptly deliver to Lender copies of amendments, modifications and waivers which are entered into pursuant to this subsection together with Borrower’s certification that it and Mortgage Borrower has satisfied all of the conditions of this subsection.
(d)    Notwithstanding anything contained herein to the contrary, Borrower shall not (and shall not permit Mortgage Borrower or Operating Lessee) to, without the prior written consent of Lender, such consent not to be unreasonably withheld, conditioned or delayed, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Major Lease.
(e)    Notwithstanding anything contained herein to the contrary (unless the same does not require Mortgage Borrower’s or Operating Lessee’s consent pursuant to the terms of the applicable Lease), Borrower shall not permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender, enter into, renew, extend, amend, modify, waive any provisions of, terminate, reduce Rents under, accept a surrender of space under, or shorten the term of any Lease during a Cash Sweep Period.
(f)    Each request by Borrower for approval and consent by Lender pursuant to this Section 5.13 shall be in writing and be subject to the Deemed Approval Standard.

20752111.3.BUSINESS 
91






Section 5.14.    Property Management
(a)    Borrower shall cause Mortgage Borrower or Operating Lessee to (i) diligently perform and observe all of the terms, covenants and conditions required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of any notice of default or other material notice received by Mortgage Borrower or Operating Lessee under the Management Agreement; (iv) promptly give notice to Lender of any notice or information that Mortgage Borrower or Operating Lessee receives which indicates that Manager is terminating the Management Agreement or that Manager is otherwise discontinuing its management of any Individual Property; and (v) promptly enforce the performance and observance of all of the covenants required to be performed and observed by Manager under the Management Agreement.
(b)    Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Mezzanine A Lender under the Mezzanine A Loan Documents and Mezzanine B Lender under the Mezzanine B Loan Documents, if at any time, (i) Manager shall become insolvent or a debtor in a bankruptcy proceeding; (ii) unless managed by a Brand Manager, Lender has accelerated the Loan as a result of an Event of Default hereunder; (iii) a material default has occurred and is continuing under the Management Agreement after the expiration of all notice and cure periods contained thereunder, or (iv) Manager has engaged in gross negligence, fraud, willful misconduct or misappropriation of funds, Borrower shall cause Mortgage Borrower or Operating Lessee to, at the request of Lender and if permitted pursuant to the terms of the Management Agreement, terminate the Management Agreement upon thirty (30) days (or such other period of time as is required under the applicable Management Agreement) prior notice to Manager and promptly (but in no event more than sixty (60) days after such termination) replace Manager with a Qualified Manager pursuant to a Replacement Management Agreement in accordance with the terms hereof.
(c)    Borrower shall not and shall not permit Mortgage Borrower or Operating Lessee to, without the prior written consent of Lender (which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender, terminate or cancel, or consent to the surrender, termination or cancellation of, the Management Agreement or replace Manager or enter into any other management agreement with respect to any Individual Property, except as provided in subsection (e) below; (ii) consent to the assignment by Manager of its interest under the Management Agreement except to a Qualified Manager or (iii) if such action could reasonably be expected to have a Material Adverse Effect, (1) reduce or consent to the reduction of the term of the Management Agreement; (2) increase or consent to the increase of the amount of any charges under the Management Agreement; or (3) otherwise modify, change, supplement, alter or amend, or waive or release any of the terms and conditions under, the Management Agreement in any material respect.  In the event that Borrower, Mortgage Borrower or Operating Lessee replaces Manager at any time during the term of the Loan pursuant to this subsection, such Manager shall be deemed to be a Qualified Manager.

20752111.3.BUSINESS 
92






(d)    Each request by Borrower for approval and consent by Lender pursuant to this Section 5.14 shall be in writing and be subject to the Deemed Approval Standards.
(e)    Notwithstanding the foregoing, provided no Event of Default is continuing, Borrower shall have the right (or Borrower shall have the right to cause Mortgage Borrower or Operating Lessee to or to cause Mortgage Borrower or Operating Lessee to permit Manager), without the prior written approval of Lender (but upon prior written notice to Lender), to terminate a Management Agreement at an Individual Property; provided, however, it shall be an Event of Default hereunder in the event that (A) Borrower shall have failed to pay (or failed to cause Mortgage Borrower or Operating Lessee to pay) any termination fee due to such Manager pursuant to the applicable Management Agreement within the time period specified in such Management Agreement, unless being contested in good faith, (B) Borrower shall have failed to (w) deliver (or cause to be delivered) to Lender a PIP Guaranty to the extent required pursuant to the terms of this Agreement or (y) cause Mortgage Borrower to make the deposit required in connection with any New PIP pursuant to and in accordance with Section 9.9 of the Mortgage Loan Agreement or (C) within sixty (60) days of the termination of such Management Agreement, Borrower fails to (or fails to cause Mortgage Borrower or Operating Lessee to) deliver evidence reasonably acceptable to Lender that a Replacement Management Agreement with a Qualified Manager is in full force and effect at the applicable Individual Property; provided, however, (1) if the terminated Management Agreement was with a Brand Manager (for which no separate Franchise Agreement existed), and the Replacement Management Agreement is with a Qualified Manager that is not a Brand Manager, Mortgage Borrower or Operating Lessee, as applicable, shall deliver evidence to Lender that Mortgage Borrower or Operating Lessee has entered into a Replacement Franchise Agreement with a Qualified Franchisor within such sixty (60) day period and (2) if a Franchise Agreement for the applicable Individual Property exists, and the Replacement Management Agreement is with a Brand Manager for which no separate Franchise Agreement is required by such Brand Manager, Mortgage Borrower or Operating Lessee, as applicable, shall deliver evidence to Lender that Mortgage Borrower or Operating Lessee has terminated the existing Franchise Agreement within such sixty (60) day period.
Section 5.15.    Liens
Borrower shall not, without the prior written consent of Lender, cause or permit Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower or Operating Lessee to create, incur, assume or suffer to exist any Lien on any portion of any Individual Property, the Mezzanine A Collateral, the Mezzanine B Collateral or permit any such action to be taken, except Permitted Encumbrances.  Neither Borrower nor Additional Pledgor shall, without the prior written consent of Lender, create, incur, assume or suffer to exist any Lien on any portion of the Collateral,  or permit any such action to be taken, except Permitted Encumbrances.





20752111.3.BUSINESS 
93






Section 5.16.    Debt Cancellation
Borrower shall not cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance with the Mortgage Loan Agreement, the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement and this Agreement) owed to Borrower by any Person, except for adequate consideration and in the ordinary course of Borrower’s business.  Borrower shall not cause or permit Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Additional Pledgor (as defined in this Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement) or Operating Lessee to cancel or otherwise forgive or release any claim or debt (other than termination of Leases in accordance herewith) owed to Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Additional Pledgor (as defined in this Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement) or Operating Lessee by any Person, except for adequate consideration and in the ordinary course of Mezzanine A Borrower’s, Mezzanine B Borrower’s, Mortgage Borrower’s, HHSD’s, Additional Pledgor’s (as defined in this Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement) or Operating Lessee’s business.
Section 5.17.    Zoning
Borrower shall not cause or permit Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Additional Pledgor or Operating Lessee to (i) initiate or consent to any zoning reclassification of any portion of any Individual Property or seek any variance under any existing zoning ordinance or (ii) use or permit the use of any portion of the Properties in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, in each case without the prior written consent of Lender.
Section 5.18.    ERISA
(a)    Borrower shall not and shall not permit Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD or Additional Pledgor (as defined in this Agreement and each Other Mezzanine Loan Agreement) to engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender 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 ERISA.
(b)    Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (i) no Loan Party is and does maintain an “employee benefit plan” as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a “governmental plan” within the meaning of Section 3(32) of ERISA; (ii) no Loan Party is subject to state statutes regulating investments of, or fiduciary obligations with respect to, governmental plans; and (iii) with respect to each Loan Party one or more of the following circumstances is true:

20752111.3.BUSINESS 
94






(i)    Equity interests in such Loan Party are publicly offered securities, within the meaning of 29 C.F.R. §2510.3 101(b)(2);
(ii)    Less than twenty-five percent (25%) of each outstanding class of equity interests in such Loan Party are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3 101(f)(2); or
(iii)    Such Loan Party qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3 101(c) or (e).
Section 5.19.    No Joint Assessment
Borrower shall not cause or permit Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Additional Pledgor (as defined in this Agreement and each Other Mezzanine Loan Agreement) or Operating Lessee to suffer, permit or initiate the joint assessment of the real property comprising any Individual Property with (a) any other real property constituting a tax lot separate from such Individual Property, or (b) 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 real property.
Section 5.20.    Intentionally Omitted
Section 5.21.    Alterations
Lender’s prior written approval shall be required in connection with any alterations to any Improvements, exclusive of (1) alterations to tenant spaces required under any Lease existing on the date hereof or entered into in accordance with the terms of this Agreement, (2) alterations specifically provided for in an Annual Budget which has been approved by Lender or pursuant to an Annual Budget which Mortgage Borrower or Operating Lessee does not have the right to approve pursuant to the applicable Management Agreement, (3) alterations undertaken as part of a Restoration in accordance with the terms of this Agreement or as required by Franchisor or a Brand Manager to comply with the Franchisor’s or Brand Manager’s standards under the Franchise Agreement or Management Agreement or any (4) PIP required by Franchisor or Brand Manager, (a) that are reasonably expected to have or does have a Material Adverse Effect on any Individual Property, (b) that are structural in nature or have a material adverse effect on any utility or HVAC system contained in the Improvements or the exterior of any building constituting a part of any Improvements or (c) that, together with any other alterations undertaken at the same time (including any related alterations, improvements or replacements), are reasonably anticipated to have a cost in excess of the Alteration Threshold.  If the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements shall at any time exceed the Alteration Threshold (with credit given for any balance in the FF&E Reserve (as defined in the Mortgage Loan Agreement) which is specifically allocated to the applicable Individual Property), Borrower shall promptly 

20752111.3.BUSINESS 
95






deliver to Lender, or shall cause Mortgage Borrower to promptly deliver to Mortgage Lender, as security for the payment of such amounts and as additional security for Borrower’s obligations under the Loan Documents and Mortgage Borrower’s obligations under the Mortgage Loan Documents any of the following: (i) cash, (ii) direct non-callable obligations of the United States of America or other obligations which are “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, to the extent acceptable to the applicable Rating Agencies, or (iii) a letter of credit acceptable to Lender in its sole and absolute discretion.  Such security shall be in an amount equal to the excess of the total unpaid amounts incurred and to be incurred with respect to such alterations to the Improvements over the Alteration Threshold.
Section 5.22.    Property Documents
During the term of the Loan: (a) Borrower shall cause Mortgage Borrower to fulfill and perform each and every material term, covenant and provision of the Property Documents to be fulfilled or performed by Mortgage Borrower thereunder, if any, in a commercially reasonable manner; (b) Borrower shall, in the manner provided for in this Agreement, give (or shall cause to be given) prompt notice to Lender of any material written default notice received by Mortgage Borrower under any Property Document, together with a complete copy of any such notice; (c) Borrower shall cause Mortgage Borrower to enforce, short of termination thereof, the performance and observance of each and every material term, covenant and provision of the Property Documents to be performed or observed, if any, by the other parties thereto in a commercially reasonable manner; and (d) Borrower shall not permit Mortgage Borrower to terminate or cancel (in each case, whether by the express terms of the Property Document or otherwise) or amend any of the terms or provisions of any Property Document, except, in each case, done in the ordinary course of business or as may be commercially reasonable in Mortgage Borrower’s ordinary course of business solely to the extent that such termination or modification is not reasonably likely to have a Material Adverse Effect, without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  Each request by Borrower for approval and consent by Lender pursuant to this Section 5.22 shall be in writing and be subject to the Deemed Approval Standards.
Section 5.23.    Compliance with Prescribed Laws
No Loan Party or any of their respective Affiliates shall (a) conduct any business, or engage in any transaction or dealing, with any Embargoed Person, (b) engage in or conspire to engage in any transaction that evades or avoids or is for the purpose of evading or avoiding any of the prohibitions of EO13224, (c) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the list maintained by OFAC and accessible through the OFAC website) that prohibits or limits any lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower, or (d) fail to provide documentary and other evidence of Borrower’s identity as may be reasonably requested by any Lender at any time in its sole and absolute discretion to enable any Lender to (x) verify Borrower’s identity or to comply with Prescribed Laws, (y) confirm that no Loan Party is an Embargoed Person and (z) confirm that no Loan Party has engaged in any business transaction or dealings with an 

20752111.3.BUSINESS 
96






Embargoed Person, including, but not limited to, the making or receiving of any contribution of funds, goods or services to or for the benefit of an Embargoed Person.  In addition, Borrower hereby agrees to provide to Lender any additional information with respect to Borrower that Lender deems necessary from time to time in order to ensure compliance with Prescribed Laws.
Section 5.24.    Interest Rate Cap Agreement
(a)    Prior to or contemporaneously with the Closing Date, Borrower shall have obtained the Interest Rate Cap Agreement.  The Interest Rate Cap Agreement shall be maintained throughout the term of the Loan with an Acceptable Counterparty.  If, at any time, the interest rate cap provider ceases to be an Acceptable Counterparty, Borrower shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap Agreement at Borrower’s sole cost and expense within ten (10) days of receipt of notice from Lender that the interest rate cap provider is no longer an Acceptable Counterparty.
(b)    Borrower shall collaterally assign to Lender pursuant to the Collateral Assignment of Interest Rate Cap Agreement all of its right, title and interest to receive any and all payments under the Interest Rate Cap Agreement and shall deliver to Lender counterparts of such Collateral Assignment of Interest Rate Cap Agreement executed by Borrower and the Acceptable Counterparty and notify the Acceptable Counterparty of such collateral assignment (either in such Interest Rate Cap Agreement or by separate instrument).  At such time as the Loan is repaid in full, all of Lender’s right, title and interest in the Interest Rate Cap Agreement shall terminate and Lender shall execute and deliver at Borrower’s sole cost and expense, such documents as may be required to evidence Lender’s release of the Collateral Assignment of Interest Rate Cap Agreement and to notify the Acceptable Counterparty of such release.
(c)    Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement.  All amounts paid by the Acceptable Counterparty under the Interest Rate Cap Agreement to Borrower or Lender shall be deposited immediately into the Cash Management Account or as otherwise directed by Lender.  Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Cap Agreement in the event of a default by the Acceptable Counterparty and shall not waive, amend or otherwise modify any of its rights thereunder.
(d)    In the event that Borrower fails to purchase and deliver to Lender the Interest Rate Cap Agreement or any Replacement Interest Rate Cap Agreement as and when required hereunder, or fails to maintain such agreement in accordance with the terms and provisions of this Agreement, Lender may purchase the Interest Rate Cap Agreement or any Replacement Interest Rate Cap Agreement, as applicable, and the cost incurred by Lender in purchasing the Interest Rate Cap Agreement or any Replacement Interest Rate Cap Agreement, as applicable, 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 reimbursed by Borrower to Lender.

20752111.3.BUSINESS 
97






(e)    In connection with the Interest Rate Cap Agreement and any Replacement Interest Rate Cap Agreement, Borrower shall, within ten (10) Business Days (or such other longer period of time as reasonably approved by Lender) of the effectiveness of such Replacement Interest Rate Cap Agreement, obtain and deliver to Lender an opinion from counsel (which counsel may be in house counsel for the Acceptable Counterparty) for the Acceptable Counterparty (upon which Lender and its successors and assigns may rely) which shall provide, in relevant part, that:
(i)    the Acceptable Counterparty 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 or the Replacement Interest Rate Cap Agreement, as applicable;
(ii)    the execution and delivery of the Interest Rate Cap Agreement or the Replacement Interest Rate Cap Agreement, as applicable, by the Acceptable Counterparty, and any other agreement which the Acceptable Counterparty 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, regulation or contractual restriction binding on or affecting it or its property;
(iii)    all consents, authorizations and approvals required for the execution and delivery by the Acceptable Counterparty of the Interest Rate Cap Agreement or the Replacement Interest Rate Cap Agreement, as applicable, and any other agreement which the Acceptable Counterparty 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 or the Replacement Interest Cap Agreement, as applicable, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Acceptable Counterparty and constitutes the legal, valid and binding obligation of the Acceptable Counterparty, enforceable against the Acceptable Counterparty 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).
Section 5.25.    Franchise Agreement
(a)    Except as provided in this Agreement, the Properties shall at all times be operated in accordance with the terms and conditions of the Franchise Agreements.  Borrower shall, or shall cause Mortgage Borrower or Operating Lessee to cause Manager to, (i) pay all sums required to be paid by Mortgage Borrower, Operating Lessee and/or Manager under the Franchise 

20752111.3.BUSINESS 
98






Agreements, (ii) diligently perform, observe and enforce all of the terms, covenants and conditions of the Franchise Agreements, (iii) promptly deliver to Lender a copy of any written notice to Mortgage Borrower or Operating Lessee of any default by Mortgage Borrower, Operating Lessee and/or Manager under the Franchise Agreements and notify Lender of any material default under the Franchise Agreements of which it is aware, (iv) promptly deliver to Lender a copy of any written notice to Franchisor of any default by Franchisor under the Franchise Agreements, (v) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditure plan, notice of non-performance, report, and estimate (a) received by Mortgage Borrower or Operating Lessee under the Franchise Agreements and (b) required to be delivered by Mortgage Borrower, Operating Lessee and/or Manager to Franchisor under the Franchise Agreements, (vi) complete all work required under any PIP on or prior to the Outside Date, (vii) not modify or amend the Franchise Agreements to the extent such modification or amendment could reasonably be expected to have a Material Adverse Effect, and (viii) not terminate, cancel, or replace the Franchise Agreements (except as provided in subsection (b) below), nor replace the Franchisor, nor waive or release any of its rights and remedies under the Franchise Agreements in any material respect, without Lender’s prior written consent.  Each request by Borrower for approval and consent by Lender pursuant to this Section 5.25 shall be in writing and be subject to the Deemed Approval Standard.
(b)    Notwithstanding the foregoing, provided no Event of Default is continuing, Borrower shall have the right (or Borrower shall have the right to permit or cause Mortgage Borrower or Operating Lessee to permit Franchisor to), without the prior written approval of Lender (but upon prior written notice to Lender), to terminate a Franchise Agreement at an Individual Property; provided, however, it shall be an Event of Default hereunder in the event that  (A) Borrower shall have failed to pay (or failed to cause Mortgage Borrower or Operating Lessee to pay) any termination fee or other amounts due to such Franchisor pursuant to the applicable Franchise Agreement within the time period specified in such Franchise Agreement, unless contested in good faith, (B) Borrower shall have failed to (w) deliver (or cause to be delivered) to Lender a PIP Guaranty to the extent required pursuant to the terms of this Agreement or (y) cause Mortgage Borrower to make the deposit required in connection with any New PIP pursuant to and in accordance with Section 9.9 of the Mortgage Loan Agreement or (C) within sixty (60) days of the termination of such Franchise Agreement, Borrower fails to (or fails to cause Operating Lessee to) deliver evidence reasonably acceptable to Lender that a Replacement Franchise Agreement with a Qualified Franchisor or a Replacement Management Agreement with a Brand Manager is in full force and effect at the applicable Individual Property.
(c)    The Individual Property commonly known as the Hilton Garden Inn Austin and located in Austin, Texas, failed its most recent “quality assurance” inspection. Attached hereto as Schedule 5.25 is a true, correct and complete list of the repairs required to be completed in order to resolve such quality assurance inspection failure.  Borrower hereby covenants and agrees to cause Mortgage Borrower to complete such repairs to the extent necessary to resolve such failure in accordance with this Agreement, the Mortgage Loan Agreement, the related Franchise Agreement and all applicable laws.

20752111.3.BUSINESS 
99






Section 5.26.    Trade Names
Except as expressly provided herein, Borrower shall not change (or permit to be changed) the trade name or names under which Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Additional Pledgor or Operating Lessee operates the Collateral, Mezzanine A Collateral, Mezzanine B Collateral or any Individual Property without Lender’s prior written consent.
Section 5.27.    Ground Lease
(a)    With respect to the Ground Lease, Borrower shall cause Mortgage Borrower to (i) except to the extent reserved for by Mortgage Lender pursuant to Section 9.8 of the Mortgage Loan Agreement, pay all rents, additional rents and other sums required to be paid by Mortgage Borrower, as tenant under and pursuant to the provisions of the Ground Lease, (ii) diligently perform and observe all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, (iii) promptly notify Lender of the giving of any written notice by the lessor under any Ground Lease to Mortgage Borrower of any default by Mortgage Borrower, as tenant thereunder, and deliver to Lender a true copy of each such notice within two (2) Business Days of receipt and (iv) promptly notify Lender of any bankruptcy, reorganization or insolvency proceeding of the lessor under any Ground Lease or of any notice thereof, and deliver to Lender a true copy of such notice within two (2) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency proceeding within two (2) Business Days after receipt.  Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, (w) take any action or fail to take any action which would result in the surrender of the leasehold estate created by the Ground Lease or the termination or cancellation of the Ground Lease, (x) modify, change, supplement, alter or amend the Ground Lease, either orally or in writing, or (y) vacate the premises upon the land underlying the Ground Lease.
(b)    With respect to the Ground Lease, if Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower, as tenant thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Ground Lease on the part of Mortgage Borrower to be performed or observed on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Ground Lease shall be kept unimpaired and free from default.  If the landlord under the Ground Lease shall deliver to Lender a copy of any written notice of default under the Ground Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.  Borrower shall cause Mortgage Borrower to exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Lender made at any time within one (1) year prior to the last day upon which any such option may be exercised, and Borrower hereby expressly authorizes and appoints Lender its 

20752111.3.BUSINESS 
100






attorney-in-fact to exercise any such option in the name of and upon behalf of Borrower, which power of attorney shall be irrevocable and shall be deemed to be coupled with an interest.
Section 5.28.    The Operating Lease.
With respect to each Operating Lease,
(a)    Borrower shall (and shall cause Mortgage Borrower to) (i) diligently perform and observe all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, (ii) promptly notify Lender of the giving of any notice under the Operating Lease to Mortgage Borrower of any default by Mortgage Borrower, as landlord thereunder, and deliver to Lender a true copy of each such notice within five (5) Business Days of receipt and (iii) promptly notify Lender of any bankruptcy, reorganization or insolvency of any party under the Operating Lease or of any notice thereof, and deliver to Lender a true copy of such notice within five (5) Business Days of Mortgage Borrower’s receipt, together with copies of all notices, pleadings, schedules and similar matters received by Mortgage Borrower in connection with such bankruptcy, reorganization or insolvency within five (5) Business Days after receipt.  Borrower shall not (and shall not permit Mortgage Borrower to), without the prior consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, (x) surrender the leasehold estate created by the Operating Lease or terminate or cancel (in each case, whether by the express terms of the Operating Lease or otherwise) the Operating Lease or materially modify, change, supplement, alter or amend the Operating Lease, either orally or in writing, without Lender’s prior written consent or (y) consent to, acquiesce in, or fail to object to, any attempt by any party, as debtor in possession or by a trustee for such party, to sell or transfer such party’s estate free and clear of the Operating Lease under section 363(f) of the Bankruptcy Code or otherwise.  Borrower shall (and shall cause Mortgage Borrower to) object to any such attempt, as debtor in possession or by a trustee for any such party, to sell or transfer such estate free and clear of the Operating Lease under section 363(f) of the Bankruptcy Code or otherwise, and in such event shall affirmatively assert and pursue its right to adequate protection under section 363(e) of the Bankruptcy Code.  Borrower hereby assigns to Lender all of its rights under Section 363 of the Bankruptcy Code to consent or object to any sale or transfer of any estate free and clear of the Operating Lease, and grants to Lender the right to object to any such sale or transfer on behalf of Borrower, and Borrower shall not (and shall not permit Mortgage Borrower to) contest any pleadings, motions documents or other actions filed or taken on Lender’s or Borrower’s behalf by Lender in the event that the landlord, as debtor in possession or by a trustee, attempts to sell or transfer the Ground Lessor Estate free and clear of the Operating Lease under section 363(f) of the Bankruptcy Code or otherwise.  
(b)    If Mortgage Borrower shall default in the performance or observance of any term, covenant or condition of the Operating Lease on the part of Mortgage Borrower, as landlord thereunder, and shall fail to cure the same prior to the expiration of any applicable cure period provided thereunder, Lender shall have the right, but shall be under no obligation, to pay any sums and to perform any act or take any action as may be appropriate to cause all of the terms, covenants and conditions of the Operating Lease on the part of Mortgage Borrower to be performed or observed 

20752111.3.BUSINESS 
101






on behalf of Mortgage Borrower, to the end that the rights of Mortgage Borrower in, to and under the Operating Lease shall be kept unimpaired and free from default.  If the tenant or landlord under the Operating Lease shall deliver to Lender a copy of any written notice of default under the Operating Lease, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.
(c)    Notwithstanding anything contained herein to the contrary, upon the expiration of the existing Operating Lease pursuant to its terms, provided no Event of Default is continuing and upon prior written notice to Lender, Borrower shall and shall cause Mortgage Borrower and Operating Lessee to enter into a replacement Operating Lease (or an amendment to the existing Operating Lease) for each Property, which replacement (or amendment, as applicable) Operating Lease shall have a five-year term and contain the same material terms and conditions as are set forth in the existing Operating Lease, except for a modification of the rent which shall be “market rent” in accordance with REIT rule requirements as evidenced by a transfer pricing report prepared by an Acceptable Accountant and delivered to Lender.  Borrower shall promptly delivery a copy of any such extension to Lender.
(d)    Each request by Borrower for approval and consent by Lender pursuant to this Section 5.28 shall be in writing and be subject to the Deemed Approval Standard.
Section 5.29.    Intentionally Omitted. 
Section 5.30.    Condominium Covenants.
(a)    With respect to each Condominium, Borrower covenants as follows:
(i)    it will not permit Mortgage Borrower to, without Lender’s prior written consent, vote to amend, modify, supplement or terminate, or consent to (1) the termination of any of the Condominium Documents or (2) the amendment, modification or supplementation of any of the Condominium Documents, in each case, in any material respect which would materially and adversely affect the applicable Mortgage Borrower, Borrower, Individual Property and related Collateral, Mezzanine A Collateral and Mezzanine B Collateral and Lender’s rights under the Condominium Documents;
(ii)    it will cause Mortgage Borrower to pay (or cause to be paid) all Common Charges and expenses made against, or relating to, those Units then owned or leased by it pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) prior to delinquency, other than assessments or Common Charges that are being contested in good faith pursuant to the applicable Condominium Documents (or Ground Lease, if applicable) and this Agreement. Borrower shall deliver (or cause to be delivered) to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned or leased by Mortgage Borrower. Borrower shall immediately notify Lender of (i) any adjustments made to the amount of any amounts due under 

20752111.3.BUSINESS 
102






the Condominium Documents and (ii) the imposition of any additional Common Charges or assessments under the Condominium Documents; 
(iii)    it will cause Mortgage Borrower to comply in all material respects with all of the terms, covenants and conditions on its part to be complied with, pursuant to the applicable Condominium Documents and any applicable Condominium Laws and rules and regulations that may be adopted for the Condominium as the same shall be in force and effect from time to time;
(iv)    it will cause Mortgage Borrower to take all commercially reasonable actions as may be necessary from time to time to preserve and maintain the Condominium in accordance with the applicable Condominium Law; it will not, permit Mortgage Borrower to, without the prior written consent of Lender, take (and hereby assigns to Lender any right it may have to take) any action to terminate the Condominium, withdraw the Condominium from the Condominium Law, or cause a partition of the Condominium;
(v)    it will not permit Mortgage Borrower to, without Lender’s prior written consent, (A) vote to permit any of the terms or provisions of the Condominium Documents to be materially modified, supplemented or amended, including, without limitation, changing the boundaries of any Unit, changing any ownership percentage interest or vote allocated to a Unit or changing any rights of Mortgage Borrower to appoint members to the Condominium Board or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified and/or (B) relinquish any rights that Mortgage Borrower has under the Condominium Documents;
(vi)    it shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Condominium Board to (a) promptly comply with all Legal Requirements applicable to the Condominium and the Unit which Mortgage Borrower owns, leases or otherwise occupies, (b) to the extent in Mortgage Borrower’s control, promptly repair, replace or rebuild any part of the Condominium and the Units to the extent benefitting the Unit owned, leased or otherwise used by Mortgage Borrower which may be damaged or destroyed by any casualty or which may be affected by any condemnation proceeding and Mortgage Borrower shall not in such event vote to not repair, restore or rebuild such Condominium without the prior written consent of Lender, (c) complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units to the extent required to be completed or paid for by Borrower under the applicable Condominium Documents, (d) to the extent that it has the power and authority to do so, refrain from taking any action with respect to the Condominium and/or the Unit owned or leased by the applicable Mortgage Borrower that would be contrary to or inconsistent with, in any material respect, any applicable covenant contained in this Agreement, the related Ground Lease, the related Mortgage or any other Loan Document, (e) refrain from establishing significant working capital reserves or other similar reserves or to undertake significant capital expenditures without Lender’s prior written consent, provided that Lender’s consent shall not be required for any working capital reserves or other similar reserves intended to cover the costs 

20752111.3.BUSINESS 
103






of repairs, alterations or other work otherwise permitted hereunder or under the related Ground Lease (except to the extent Borrower has approval or consent rights under the Ground Lease with respect thereto) and (f) refrain from creating any new Units or selling any Units; 
(vii)    (1) it has caused Mortgage Borrower to obtain resignation letters from each voting member of the Condominium Board appointed or selected by Mortgage Borrower and any officers of the Condominium appointed by Mortgage Borrower, which resignation letters are attached hereto as Exhibit E and shall be held by Lender in escrow and may, at Lender’s option, be submitted at any time after the acceleration of the Loan following an Event of Default and (2) to the extent any voting member (including any officers or directors) of any Condominium Board is appointed or selected by Borrower after the Closing Date, it shall cause Mortgage Borrower to obtain resignation letters in substantially the same form as the resignations attached hereto as Exhibit E from each voting member of the Condominium Board appointed by or selected by Mortgage Borrower and any officers of the Condominium appointed by Mortgage Borrower to be held by Lender in escrow and may, at Lender’s option, be submitted at any time after the acceleration of the Loan following an Event of Default; and
(viii)    it shall cause Mortgage Borrower to provide to the Condominium Board on the Closing Date a copy of the Mortgage with respect to the Individual Property or portion thereof subject to the Condominium Documents, the name and address of Mortgage Lender, Lender and Servicer (as defined in this Agreement and the Mortgage Loan Agreement), and a general description of the Loan and the Mortgage Loan.
(b)    The provisions of Article 8 of the Mortgage Loan Agreement shall apply to the entirety of any Individual Property that is a Condominium as provided herein, notwithstanding the submission of any portion of such Individual Property to applicable Condominium Law.  Without limiting the generality of the foregoing, Borrower shall cause Mortgage Borrower to, for and on behalf of itself and its direct and indirect successors and assigns as owner(s) or lessee(s) of condominium units in the Condominium or any of them, (i) irrevocably waives, to the extent permitted by law and the Condominium Documents, any applicable law which grants to the trustees or the board of directors of the Condominium and/or the owners and/or lessee(s) of the condominium units rights in the event of a casualty or a condemnation which are inconsistent with the provisions of Article 8 of the Mortgage Loan Agreement and (ii) expressly agrees to the application of the insurance proceeds and condemnation awards in accordance with Article 8 of the Mortgage Loan Agreement to the extent permitted by applicable law and the Condominium Documents.
(c)    Lender shall have the right, subject to any required consent of the Unit owners and, if applicable, lessees, at reasonable times and upon reasonable notice, to inspect the records of the Condominium as provided in the Condominium Documents until such time as the Debt is paid in full.
(d)    Borrower will use (and will cause Mortgage Borrower to use) commercially reasonable efforts to obtain and deliver to the Lender, a true and correct copy of any notice of default 

20752111.3.BUSINESS 
104






or other material notice given to Mortgage Borrower in respect of the observance of the Condominium Documents or any of them.
(e)    Without the prior written consent of the Lender, Borrower shall not permit Mortgage Borrower to vote to approve any of the following matters in connection with any Condominium (unless expressly required under the Condominium Documents): (i) any material and adverse change in the nature and amount of any insurance covering all or a part of the Condominium and the disposition of any proceeds thereof, but only to the extent any of the foregoing violates the Loan Documents; (ii) the manner in which any condemnation or threat of condemnation of all or a part of the applicable Individual Property shall be defended or settled and the disposition of any award or settlement in connection therewith, but only to the extent the foregoing violates the Loan Documents; (iii) any amendment to the Condominium Documents which by its terms requires the consent of Lender and any removal of any portion of the applicable Individual Property from the provisions of the Condominium Law; (iv) the creation of, or any change in, any private restrictive covenant, zoning ordinance, or other public or private restrictions, now or hereafter limiting or defining the uses which may be made of the applicable Individual Property or any part thereof, other than Permitted Encumbrances or (v) any material relocation of the boundaries of the applicable Individual Property.
(f)    During the continuance of an Event of Default, Lender shall have the right, to the extent permitted under the Condominium Documents, but not the obligation, to cure any default by Mortgage Borrower under the Condominium Documents to the extent such default could reasonably be expected to have a Material Adverse Effect on the Individual Property.
(g)    To the extent that any approval rights, consent rights or other rights or privileges are granted to a “Mortgagee”, “First Mortgagee” or other similar term in the Condominium Documents or any other similar mortgagee protection provisions are contained in the Condominium Documents, then such approval rights, consent rights or other rights, protections or privileges shall be deemed to be required by this Agreement or contained in this Agreement, as applicable.
(h)    Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, upon the occurrence and continuance of an Event of Default, Lender may vote in place of Mortgage Borrower and may exercise any and all of the rights and privileges of Mortgage Borrower and Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Mortgage Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents.  Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Common Charges.
(i)    Borrower shall cause Mortgage Borrower to (and shall cause the members of the Condominium Board elected by Mortgage Borrower to) attend each duly called meeting or special meeting of the Condominium Board.  During the continuance of an Event of Default, Lender 

20752111.3.BUSINESS 
105






shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
(j)    To the extent the Condominium Board is controlled by members thereof appointed by Mortgage Borrower, Borrower shall, in addition to the insurance otherwise required under this Agreement, cause (i) all insurance required by the Condominium Documents to be maintained and (ii) any net proceeds of such insurance shall be applied in accordance with the terms and provisions of this Agreement.
Section 5.31.    Mortgage Loan Reserve Funds
Borrower shall cause Mortgage Borrower to deposit and maintain each of the Mortgage Loan Reserve Funds as more particularly set forth in the Mortgage Loan Agreement and to perform and comply with all the terms and provisions relating thereto.
Section 5.32.    Notices
Borrower shall give notice, or cause notice to be given, to Lender promptly upon the occurrence of any Mortgage Loan Default.
Section 5.33.    Special Distributions
On each date on which amounts are required to be disbursed to Lender pursuant to the Mortgage Loan Agreement, the Mezzanine B Loan Agreement or the Mezzanine A Loan Agreement, as applicable, or are required to be paid to Lender pursuant to any of the Loan Documents, Borrower shall exercise its rights under the Organizational Documents of Mortgage Borrower, Mezzanine B Borrower, and/or Mezzanine A Borrower, as applicable, to cause Mortgage Borrower, Mezzanine B Borrower, and/or Mezzanine A Borrower, as applicable, to make to Borrower a distribution in an aggregate amount such that Lender shall receive the amount required to be disbursed pursuant to the Mortgage Loan Agreement, the Mezzanine B Loan Agreement or the Mezzanine A Loan Agreement, as applicable.  If any distributions shall be received by Borrower or any Affiliate of Borrower while an Event of Default exists, Borrower shall hold, or shall cause the same to be held, in trust for the benefit of Lender.
Section 5.34.    Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower Covenants
(e)    Borrower shall cause Mortgage Borrower to comply with all obligations with which Mortgage Borrower has covenanted to comply under the Mortgage Loan Agreement and all other Mortgage Loan Documents whether the Mortgage Loan has been repaid or the related Mortgage Loan Document has been otherwise terminated, unless otherwise consented to in writing by Lender.  Borrower shall cause Mortgage Borrower to promptly notify Lender of all notices received by Mortgage Borrower under or in connection with the Mortgage Loan, including, without limitation, any notice by the Mortgage Lender to Mortgage Borrower of any default by Mortgage 

20752111.3.BUSINESS 
106






Borrower in the performance or observance of any of the terms, covenants or conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed, and deliver to Lender a true copy of each such notice, together with any other consents, notices, requests or other written correspondence between Mortgage Borrower and Mortgage Lender.
(f)    Borrower shall cause Mezzanine A Borrower to comply with all obligations with which Mezzanine A Borrower has covenanted to comply under the Mezzanine A Loan Agreement and all other Mezzanine A Loan Documents whether the Mezzanine A Loan has been repaid or the related Mezzanine A Loan Document has been otherwise terminated, unless otherwise consented to in writing by Lender.  Borrower shall cause Mezzanine A Borrower to promptly notify Lender of all notices received by Mezzanine A Borrower under or in connection with the Mezzanine A Loan, including, without limitation, any notice by the Mezzanine A Lender to Mezzanine A Borrower of any default by Mezzanine A Borrower in the performance or observance of any of the terms, covenants or conditions of the Mezzanine A Loan Documents on the part of Mezzanine A Borrower to be performed or observed, and deliver to Lender a true copy of each such notice, together with any other consents, notices, requests or other written correspondence between Mezzanine A Borrower and Mezzanine A Lender. 
(g)    Borrower shall cause Mezzanine B Borrower to comply with all obligations with which Mezzanine B Borrower has covenanted to comply under the Mezzanine B Loan Agreement and all other Mezzanine B Loan Documents whether the Mezzanine B Loan has been repaid or the related Mezzanine B Loan Document has been otherwise terminated, unless otherwise consented to in writing by Lender.  Borrower shall cause Mezzanine B Borrower to promptly notify Lender of all notices received by Mezzanine B Borrower under or in connection with the Mezzanine B Loan, including, without limitation, any notice by the Mezzanine B Lender to Mezzanine B Borrower of any default by Mezzanine B Borrower in the performance or observance of any of the terms, covenants or conditions of the Mezzanine B Loan Documents on the part of Mezzanine B Borrower to be performed or observed, and deliver to Lender a true copy of each such notice, together with any other consents, notices, requests or other written correspondence between Mezzanine B Borrower and Mezzanine B Lender.
Section 5.35.    Mortgage Loan, Mezzanine A Loan and Mezzanine B Loan Estoppels
(a)    Borrower shall, or shall cause Mortgage Borrower to, use commercially reasonable efforts from time to time, to obtain from the Mortgage Lender such certificates of estoppel with respect to compliance by Mortgage Borrower with the terms of the Mortgage Loan Documents as may be requested by Lender.  In the event or to the extent that Mortgage Lender is not legally obligated to deliver such certificates of estoppel and is unwilling to deliver the same, or is legally obligated to deliver such certificates of estoppel but breaches such obligation, then Borrower shall not be in breach of this provision so long as Borrower furnishes to Lender an estoppel executed by Borrower and Mortgage Borrower and expressly representing to Lender the information reasonably requested by Lender regarding compliance by Mortgage Borrower with the terms of the Mortgage 

20752111.3.BUSINESS 
107






Loan Documents.  Borrower hereby indemnifies Lender from and against all out-of-pocket liabilities, obligations, losses, damages, penalties, assessments, actions, or causes of action, judgments, suits, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ and other professional fees, whether or not suit is brought and settlement costs) and disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Lender based in whole or in part upon any fact, event, condition, or circumstances relating to the Mortgage Loan which was materially misrepresented in, or which due to its material nature warrants disclosure and was omitted from such estoppel executed by Borrower and Mortgage Borrower.
(b)    Borrower shall, or shall cause Mezzanine A Borrower to, use commercially reasonable efforts from time to time, to obtain from the Mezzanine A Lender such certificates of estoppel with respect to compliance by Mezzanine A Borrower with the terms of the Mezzanine A Loan Documents as may be requested by Lender.  In the event or to the extent that Mezzanine A Lender is not legally obligated to deliver such certificates of estoppel and is unwilling to deliver the same, or is legally obligated to deliver such certificates of estoppel but breaches such obligation, then Borrower shall not be in breach of this provision so long as Borrower furnishes to Lender an estoppel executed by Borrower and Mezzanine A Borrower and expressly representing to Lender the information reasonably requested by Lender regarding compliance by Mezzanine A Borrower with the terms of the Mezzanine A Loan Documents.  Borrower hereby indemnifies Lender from and against all out-of-pocket liabilities, obligations, losses, damages, penalties, assessments, actions, or causes of action, judgments, suits, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ and other professional fees, whether or not suit is brought and settlement costs) and disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Lender based in whole or in part upon any fact, event, condition, or circumstances relating to the Mezzanine A Loan which was materially misrepresented in, or which due to its material nature warrants disclosure and was omitted from such estoppel executed by Borrower and Mezzanine A Borrower.
(c)    Borrower shall, or shall cause Mezzanine B Borrower to, use commercially reasonable efforts from time to time, to obtain from the Mezzanine B Lender such certificates of estoppel with respect to compliance by Mezzanine B Borrower with the terms of the Mezzanine B Loan Documents as may be requested by Lender.  In the event or to the extent that Mezzanine B Lender is not legally obligated to deliver such certificates of estoppel and is unwilling to deliver the same, or is legally obligated to deliver such certificates of estoppel but breaches such obligation, then Borrower shall not be in breach of this provision so long as Borrower furnishes to Lender an estoppel executed by Borrower and Mezzanine B Borrower and expressly representing to Lender the information reasonably requested by Lender regarding compliance by Mezzanine B Borrower with the terms of the Mezzanine B Loan Documents.  Borrower hereby indemnifies Lender from and against all out-of-pocket liabilities, obligations, losses, damages, penalties, assessments, actions, or causes of action, judgments, suits, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ and other professional fees, whether or not suit is brought and settlement costs) and disbursements of any kind or nature whatsoever which may be imposed on, 

20752111.3.BUSINESS 
108






incurred by, or asserted against Lender based in whole or in part upon any fact, event, condition, or circumstances relating to the Mezzanine B Loan which was materially misrepresented in, or which due to its material nature warrants disclosure and was omitted from such estoppel executed by Borrower and Mezzanine B Borrower.
Section 5.36.    Change in Business
(a)    Borrower shall not enter into any line of business other than the ownership of the Collateral, or make any material change in the scope or nature of its business purposes, or undertake or participate in activities other than the continuance of its present business.
(b)    Borrower shall not cause Mortgage Borrower to enter into any line of business other than the ownership and operation of the applicable Property, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.
(c)    Borrower shall not cause Mezzanine A Borrower to enter into any line of business other than the ownership and operation of the applicable Mezzanine A Collateral, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.
(d)    Borrower shall not cause Mezzanine B Borrower to enter into any line of business other than the ownership and operation of the applicable Mezzanine B Collateral, or make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business.
Section 5.37.    Limitation on Securities Issuances.  
Borrower shall not issue any membership interests or other securities other than those that have been issued as of the date hereof. 
Section 5.38.    Acquisition of the Mortgage Loan, the Mezzanine A Loan and the Mezzanine B Loan
(a)    No Loan Party or any Affiliate or any Person acting at any such Person’s request or direction, shall acquire or agree to acquire the Mortgage Lender’s, Mezzanine A Lender’s and Mezzanine B Lender’s interest in the Mortgage Loan, Mezzanine A Loan or Mezzanine B Loan, as applicable, or any portion thereof or any interest therein, or any direct or indirect ownership interest in the holder of the Mortgage Loan, Mezzanine A Loan or Mezzanine B Loan, as applicable, via purchase, transfer, exchange or otherwise, and any breach or attempted breach of this provision shall constitute an Event of Default hereunder.  If, solely by operation of applicable subrogation law, Borrower shall have failed to comply with the foregoing, then Borrower: (i) shall immediately notify Lender of such failure; (ii) shall cause any and all such prohibited parties acquiring any interest in the Mortgage Loan Documents, the Mezzanine A Loan Documents or the Mezzanine B 

20752111.3.BUSINESS 
109






Loan Documents, as applicable: (A) not to enforce the Mortgage Loan Documents, the Mezzanine A Loan Document or the Mezzanine B Loan Documents, as applicable; and (B) upon the request of Lender, to the extent any of such prohibited parties has or have the power or authority to do so, to promptly: (1) cancel the promissory note evidencing the Mortgage Loan, the Mezzanine A Loan or the Mezzanine B Loan, as applicable, (2) reconvey and release the Lien securing the Mortgage Loan and any other collateral under the Mortgage Loan Documents, the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable, and (3) discontinue and terminate any enforcement proceeding(s) under the Mortgage Loan Documents, the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable.
(b)    Lender shall have the right at any time to acquire all or any portion of the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable, or any interest in any holder of, or participant in, the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable, without notice or consent of Borrower or any other Loan Party, in which event Lender shall have and may exercise all rights of Mortgage Lender, Mezzanine B Lender or Mezzanine A Lender, as applicable, thereunder (to the extent of its interest), including the right (i) to declare that the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable, is in default and (ii) to accelerate the Mortgage Loan, the Mezzanine B Loan or the Mezzanine A Loan, as applicable, indebtedness, in accordance with the terms thereof and (iii) to pursue all remedies against any obligor under the Mortgage Loan Documents, the Mezzanine B Loan Documents or the Mezzanine A Loan Documents, as applicable.
Section 5.39.    Material Agreements
(a)    Borrower shall not, and shall not permit Mortgage Borrower to, enter into any Material Agreement without the consent of Lender, provided, however, Lender’s consent shall not be required in connection with any Material Agreement contemplated by the Annual Budget approved by Lender in accordance with this Agreement or any contract or agreement entered into by Borrower, Mezzanine A Borrower, Mezzanine B Borrower and/or Mortgage Borrower with a bona-fide third party, in the ordinary course of business, consistent with past business practices, provided the same does not have a Material Adverse Effect.  Lender may condition its consent upon Mortgage Borrower, Mezzanine B Borrower and/or Mezzanine A Borrower also obtaining the consent of Mortgage Lender, Mezzanine B Lender and/or Mezzanine A Lender, if and as applicable.  Upon the request of Lender with respect to Material Agreements, Borrower shall, or shall cause the applicable Loan Party to, use commercially reasonable efforts to deliver to Lender a recognition agreement from such service or material provider, among other things, providing for such Person’s continued performance should Lender become the owner of the Collateral.  Each such Material Agreement and each recognition agreement relating thereto, shall be in form and substance acceptable to Lender in all respects, including the amount of the costs and fees thereunder.  Each request by Borrower for approval and consent by Lender pursuant to this Section 5.38 shall be in writing and be subject to the Deemed Approval Standard.

20752111.3.BUSINESS 
110






(b)    Except as specifically set forth herein, Borrower will not, and will not permit or cause Mortgage Borrower to, amend, modify, supplement, rescind or terminate any Material Agreement that could reasonably be expected to result in an Material Adverse Effect on the Properties or any Individual Property, without Lender’s approval.  If a material or service provider under a Material Agreement is in default in its obligations thereunder to the extent entitling the applicable Loan Party to rescind or terminate that agreement, then Borrower may without the consent of Lender, or if Lender so requires (but not otherwise), Borrower will, or will cause the applicable Loan Party to, promptly use all reasonable efforts to terminate that agreement.
(c)    Borrower shall and shall cause Mortgage Borrower or Operating Lessee to, as applicable, observe and perform each and every term to be observed or performed by such Loan Party under the Material Agreements the non-performance of which would cause a Material Adverse Effect.
Section 5.40.    PIP Guaranty
Notwithstanding anything contained herein to the contrary, in the event that Guarantor fails to satisfy the Minimum Net Worth Requirement, Borrower shall cause Mortgage Borrower to (i) deposit or cause to be deposited into the PIP Reserve Account an amount equal to one hundred percent (100%) of the then-outstanding unreserved Aggregate PIP Work Costs or (ii) cause a Replacement Guarantor to deliver to Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Lender a substitute PIP Guaranty in the form of the PIP Guaranty delivered to Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Lender, respectively, on the Closing Date.  If at any time, the then-outstanding Aggregate PIP Work Costs equal or exceed ten percent (10%) of the then-outstanding principal balance of the Loan, upon Lender’s request, Borrower shall deliver, at Borrower’s sole cost and expense, a New Non-Consolidation Opinion.  If the Borrower is unable to deliver a New Non-Consolidation Opinion in accordance with the immediately preceding sentence, Borrower shall cause Mortgage Borrower to deposit into the PIP Reserve Account an amount equal to the amount by which the then-outstanding Aggregate PIP Work Costs equal or exceed ten percent (10%) of the then-outstanding principal balance of the Loan.
Section 5.41.    Ritz-Carlton Atlanta and the Crowne Plaza Ravinia Environmental Covenants.
Borrower shall cause Mortgage Borrower to comply with the terms, covenants and conditions of Section 5.31 of the Mortgage Loan Agreement.  For purposes of this Agreement, Lender shall have the same approval rights related to the environmental monitoring, investigation and/or remediation as are provided in favor of Mortgage Lender under Section 5.31 of the Mortgage Loan Agreement.  Borrower shall (or shall cause Mortgage Borrower to) deliver to Lender copies of any environmental investigation, monitoring or other reports prepared by an Environmental Consultant (or otherwise in connection with the fulfillment of Mortgage Borrower’s covenants under Section 5.31 of the Mortgage Loan Agreement) which are required to be delivered to Mortgage Lender under the Mortgage Loan Agreement.

20752111.3.BUSINESS 
111






Section 5.42.    Hilton Tampa Westshore Environmental Covenants.
Borrower shall cause Mortgage Borrower to comply with the terms, covenants and conditions of Section 5.32 of the Mortgage Loan Agreement.  For purposes of this Agreement, Lender shall have the same approval rights related to the environmental monitoring, investigation and/or remediation as are provided in favor of Mortgage Lender under Section 5.32 of the Mortgage Loan Agreement.  Borrower shall (or shall cause Mortgage Borrower to) deliver to Lender copies of any environmental investigation, monitoring or other reports prepared by an Environmental Consultant (or otherwise in connection with the fulfillment of Mortgage Borrower’s covenants under Section 5.32 of the Mortgage Loan Agreement) which are required to be delivered to Mortgage Lender under the Mortgage Loan Agreement.
Section 5.43.    Franchise Extension Payment.
Borrower hereby covenants and agrees to cause Mortgage Borrower to deposit with Mortgage Lender, on the Maturity Date (as the same may be extended in accordance with the terms of this Agreement), an amount equal to $13,604,000 (the “Franchise Extension Payment”) into the Special Reserve Account (which Franchise Extension Payment shall be applied in accordance with this Agreement, the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement and the Mortgage Loan Agreement), subject to the remainder of this Section 5.43. If, with respect to each Individual Property set forth on Schedule X attached to the Mortgage Loan Agreement, (i) an Extended Franchise Agreement or Replacement Franchise Agreement or Extended Management Agreement with a Brand Manager or Replacement Management Agreement with a Brand Manager, as applicable, related to any such Individual Property is entered into in accordance with this Agreement, the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement and the Mortgage Loan Agreement prior to the final Maturity Date or (ii) such Individual Property and, if applicable, the related Collateral is released in accordance with this Agreement, the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement and the Mortgage Loan Agreement, in each case, the Franchise Extension Payment shall be reduced dollar for dollar by the amount set forth across from the name of the applicable Individual Property on Schedule X. Additionally, the Franchise Extension Payment shall be reduced dollar for dollar by any Excess Cash (as defined in the Mortgage Loan Agreement) that is deposited into the Special Reserve Account (as defined in the Mortgage Loan Agreement) in accordance with the Loan Documents, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents and the Mortgage Loan Documents during the continuance of any Pre-Expiration Event (as defined in the Mortgage Loan Agreement).
ARTICLE 6     
ENTITY COVENANTS
Section 6.1.    Single Purpose Entity/Separateness
Borrower represents, warrants and covenants as follows:

20752111.3.BUSINESS 
112






(h)    Borrower has not and will not:
(i)    engage in any business or activity other than the ownership and management of the Collateral, and activities incidental thereto;
(ii)    acquire or own any assets other than (A) the Collateral, and (B) such incidental Personal Property as may be necessary for the ownership and management of the Collateral;
(iii)    merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure;
(iv)    (A) fail to observe all organizational formalities necessary to maintain its separate existence, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable Legal Requirements of the jurisdiction of its organization or formation and qualification to do business in the State where the Property is located or (B) amend, modify, terminate or fail to comply with the single purpose entity provisions of its organizational documents, in each case without the prior written consent of Lender;
(v)    own any subsidiary or make any investment in, any Person, other than Mezzanine B Borrower;
(vi)    except as contemplated by the Loan Documents with respect to co-borrowers under the Loan, commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts and, except with respect to prior financings that have been repaid or otherwise discharged or that will be repaid or discharged as of the closing of the Loan and except as contemplated by the Loan Documents, participate in any cash management system with any other Person;
(vii)    incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Debt and Permitted Debt;
(viii)    fail to maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person; except that Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of an Affiliate, provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separate identity of Borrower from such Affiliate and that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, and (B) Borrower’s assets, liabilities and net worth shall also be listed on Borrower’s own separate balance sheet;
(ix)    except for capital contributions or capital distributions permitted under the terms and conditions of Borrower’s organizational documents and properly reflected on 

20752111.3.BUSINESS 
113






its books and records, enter into any transaction, contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Borrower, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
(x)    maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xi)    except as contemplated by the Loan Documents with respect to co-borrowers under the Loan, assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets to secure the obligations of any other Person or hold out its credit or assets as being available to satisfy the obligations of any other Person;
(xii)    make any loans or advances to any Person, or own any stock or securities of, any Person (other than the Collateral), or buy or hold evidence of indebtedness issued by any other Person;
(xiii)    fail to (A) file its own tax returns separate from those of any other Person, except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable Legal Requirements and (B) pay any taxes required to be paid under applicable Legal Requirements; provided, however, that Borrower shall not have any obligation to reimburse its equityholders or their Affiliates for any taxes that such equityholders or their Affiliates may incur as a result of any profits or losses of Borrower;
(xiv)    fail to (A) hold itself out to the public as a legal entity separate and distinct from any other Person, (B) conduct its business solely in its own name, (C) correct any known misunderstanding regarding its separate identity, or (D) hold its assets in its own name;
(xv)    fail to intend to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that the foregoing shall not require Borrower’s members, partners or shareholders to make additional capital contributions to Borrower;
(xvi)    without the unanimous written consent of all its partners or members, as applicable, and the written consent of all directors or managers of Borrower or each SPE Component Entity, as applicable including, without limitation, each Independent Director, take any Material Action;
(xvii)    fail to fairly and reasonably allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such expenses;

20752111.3.BUSINESS 
114






(xviii)    fail to intend to remain solvent or, except as contemplated by the Loan Documents with respect to co borrowers under the Loan, pay its own liabilities (including, without limitation, salaries of its own employees) only from its own funds; provided, however, that the foregoing shall not require Borrower’s members, partners or shareholders to make additional capital contributions to Borrower;
(xix)    acquire obligations or securities of its partners, members, shareholders or other affiliates, as applicable, other than the Collateral;
(xx)    violate or cause to be violated the assumptions made with respect to Borrower and its principals in the Non-Consolidation Opinion or any New Non-Consolidation Opinion;
(xxi)    fail to maintain a sufficient number of employees in light of its contemplated business operations;
(xxii)    fail to maintain and use separate stationery, invoices and checks bearing its own name;
(xxiii)    have any of its obligations guaranteed by an Affiliate, except as contemplated by the Loan Documents and with respect to co-borrowers under the Loan;
(xxiv)    indemnify its partners, officers, directors or members, as the case may be, in each case unless such obligation or indemnification is fully subordinated to the Loan and shall not constitute a claim against it in the event that its cash flow is insufficient to pay the Loan; or
(xxv)    identify itself as a department or division of any other Person.
(i)    (1) If Borrower is a partnership or limited liability company (other than a single-member Delaware limited liability company formed under the Act which complies with the requirements of subsection (b)(ii) below), each general partner in the case of a partnership, or the managing member in the case of a limited liability company (each an “SPE Component Entity”) of Borrower, as applicable, shall be a corporation or a limited liability company whose sole asset is its interest in Borrower, provided that if such SPE Component Entity is a limited liability company (other than a single-member Delaware limited liability company), each of its managing members shall also be a SPE Component Entity.  Each SPE Component Entity (A) will at all times comply with each of the covenants, terms and provisions contained in Sections 6.1(a)(iii) through (vi) and (viii) through (xxiv) inclusive, as well as the requirements of clause (ii) below if such SPE Component Entity is a single member limited liability company formed under the Act, as if such representation, warranty or covenant was made directly by such SPE Component Entity; (B) will not engage in any business or activity other than owning an interest in Borrower; (C) will not acquire or own any assets other than its partnership, membership, or other equity interest in Borrower; (D) will not own any subsidiary, or make any investment in any Person other than its investment in 

20752111.3.BUSINESS 
115






Borrower; (E) will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation) and (F) will cause Borrower to comply with the provisions of this Section 6.1 and Section 6.4.  Prior to the withdrawal or the disassociation of any SPE Component Entity from Borrower, Borrower shall immediately appoint a new general partner or managing member whose articles of incorporation or limited liability company agreement, as applicable, are substantially similar to those of such SPE Component Entity and, if an opinion letter pertaining to substantive consolidation was required at closing, deliver a new opinion letter acceptable to Lender and the Rating Agencies with respect to the new SPE Component Entity and its equity owners.  Notwithstanding the foregoing, to the extent Borrower is a single member Delaware limited liability company, so long as Borrower maintains such formation status and complies with the requirements set forth in subsections (ii) and (iii) below, the SPE Component Entity requirement as set forth in this section shall not be applicable.
(i)    In the event Borrower or SPE Component Entity is a single member limited liability company formed under the Act (as applicable, the “Company”), the limited liability company agreement of the Company (the “LLC Agreement”) shall provide that (A) upon the occurrence of any event that causes the sole member of the Company (“Member”) to cease to be the member of the Company (other than (1) upon an assignment by Member of all of its limited liability company interest in the Company and the admission of the transferee in accordance with the Loan Documents and the LLC Agreement, or (2) the resignation of Member and the admission of an additional member of the Company in accordance with the terms of the Loan Documents and the LLC Agreement), the personal representative of Member shall, within ninety (90) days, agree in writing to continue the existence of the Company and to the admission of such personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that caused the Member to cease to be a member of the Company, and a natural person duly designated under the LLC Agreement any person acting as Independent Director of the Company and executing the LLC Agreement (“Special Member”) shall, without any action of any other Person and simultaneously with the Member ceasing to be the member of the Company, automatically be admitted to the Company and shall continue the existence of the Company without dissolution, and (B) Special Member may not resign from the Company or transfer its rights as Special Member unless (1) a successor Special Member has been admitted to the Company as Special Member in accordance with the requirements of the Act and (2) after giving effect to such resignation, such successor Special Member has also accepted its appointment as an Independent Director.  The LLC Agreement shall further provide that (v) Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute Member, (w) Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of the assets of the Company, (x) pursuant to Section 18-301 of the Act, Special Member shall not be required to make any capital contributions to the Company and shall not receive a limited liability company interest in the Company, (y) Special Member, in its capacity as Special Member, may not bind the Company, and (z) except as required by any mandatory provision of the Act, Special Member, in its capacity as Special Member, shall have no right to vote on, approve or 

20752111.3.BUSINESS 
116






otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company; provided, however, such prohibition shall not limit the obligations of Special Member, in its capacity as Independent Director, to vote on such matters required by the Loan Documents or the LLC Agreement.  Prior to its admission to the Company as Special Member, Special Member shall not be a member of the Company, but the Special Member may serve as an Independent Director of the Company.  Any action initiated by or brought against Member or Special Member under any Creditors Rights Laws shall not cause Member or Special Member to cease to be a member of the Company and upon the occurrence of such an event, the existence of the Company shall continue without dissolution.  The LLC Agreement shall also provide that each of Member and Special Member waives any right it might have to agree in writing to dissolve the Company upon the occurrence of any action initiated by or brought against Member or Special Member under any Creditors Rights Laws, or the occurrence of an event that causes Member or Special Member to cease to be a member of the Company.
(j)    The organizational documents of Borrower and each SPE Component Entity shall provide an express acknowledgment that Lender is an intended third party beneficiary of the “special purpose” provisions of such organizational documents.
(k)    Any payments made pursuant to the Loan Documents to or for the benefit of any Borrower or Other Mezzanine Borrowers shall constitute distributions to or at the discretion of the applicable equity owner of such entity.
(l)    Borrower shall cause (i) Mortgage Borrower and Mortgage Borrower SPE Component Entity to comply with and continue to comply with the provisions of Section 6.1 of the Mortgage Loan Agreement, (ii) Mezzanine A Borrower is to comply with and continue to comply with the provisions of Section 6.1 of the Mezzanine A Loan Agreement and (iii) Mezzanine B Borrower is to comply with and continue to comply with the provisions of Section 6.1 of the Mezzanine B Loan Agreement. 
(m)    Each of Borrower and Additional Pledgor have executed and delivered to Lender the certificate attached hereto as Exhibit D (each such certificate, a “Recycled SPE Certificate”).
Section 6.2.    Change of Name, Identity or Structure
Borrower shall not (and shall not cause or permit any Loan Party to) change or permit to be changed (a) its name, (b)its identity (including its trade name or names), (c) its principal place of business set forth on the first page of this Agreement, (d) the corporate, partnership or other organizational structure of any Loan Party, (e) its state of organization, or (f) its organizational identification number, without in each case notifying Lender of such change in writing at least thirty (30) days prior to the effective date of such change and, in the case of a change in its structure or state of organization, without first obtaining the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.  At the request of Lender, Borrower 

20752111.3.BUSINESS 
117






shall execute a certificate in form satisfactory to Lender listing the trade names under which Mortgage Borrower, Borrower, Mezzanine B Borrower and/or Mezzanine A Borrower intends to operate the Properties, the Collateral, the Mezzanine B Collateral and/or the Mezzanine A Collateral, respectively, and representing and warranting that neither Mortgage Borrower, Borrower, Mezzanine B Borrower or Mezzanine A Borrower does business under no other trade name with respect to the Properties, the Collateral, the Mezzanine B Collateral and/or the Mezzanine A Collateral, respectively.  If Borrower or Additional Pledgor does not now have an organizational identification number and later obtains one, or if the organizational identification number assigned to Borrower or Additional Pledgor subsequently changes, Borrower shall promptly notify Lender of such organizational identification number or change.
Section 6.3.    Business and Operations
Borrower will cause Mortgage Borrower and Operating Lessee to qualify to do business and will remain in good standing under the laws of the States as and to the extent the same are required for the ownership, maintenance, management and operation of the Properties.
Section 6.4.    Independent Director
The organizational documents of Borrower (where Borrower is a corporation or a single member limited liability company formed under the Act) or SPE Component Entity, as applicable, shall include the following provisions: (a) at all times there shall be, and Borrower or SPE Component Entity, as applicable, shall cause there to be, at least two Independent Directors; (b) the board of directors or managers of Borrower or SPE Component Entity, as applicable, shall not take any Material Action which, under the terms of any certificate of incorporation, by-laws, voting trust agreement with respect to any common stock, articles of organization or operating agreement requires unanimous vote of the board of directors or managers of Borrower or SPE Component Entity, as applicable, unless at the time of such action there shall be at least two members of the board of directors or managers who are Independent Directors; (c) Borrower or SPE Component Entity, as applicable, shall not, without the unanimous written consent of its board of directors or managers, including the Independent Directors, on behalf of itself or Borrower, as the case may be, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Directors shall, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, and notwithstanding any duty otherwise existing at law or in equity, consider only the interests of Borrower and the SPE Component Entity (including their respective creditors), and except for its duties to Borrower and the SPE Component Entity with respect to voting on matters as set forth immediately above (which duties shall extend to the constituent equity owners of Borrower and the SPE Component Entity solely to the extent of their respective economic interests in Borrower or the SPE Component Entity but shall exclude (i) all other interests of such constituent equity owners, (ii) the interests of other affiliates of Borrower or the SPE Component Entity, and (iii) the interests of any group of affiliates of which Borrower and the SPE Component Entity are a part), the Independent Directors shall not have any fiduciary duties to such constituent equity owners, any officer or any other Person; provided, however, the 

20752111.3.BUSINESS 
118






foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing; and (d) no Independent Director of Borrower or SPE Component Entity may be removed or replaced other than as a result of an Independent Director Event, and any such removal or replacement shall not occur unless Borrower or SPE Component Entity provides Lender with not less than five (5) Business Days’ prior written notice of (i) any proposed removal of an Independent Director, together with a statement as to the reasons for such removal, and (ii) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Director; provided, however, no resignation or removal of an Independent Director shall be effective until a successor Independent Director is appointed and has accepted his or her appointment.
The representations, warranties and covenants in this Article 6 shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
ARTICLE 7     
NO SALE OR ENCUMBRANCE
Section 7.1.    Transfer Definitions
For purposes of this Article 7 “Restricted Party” shall mean Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine D Borrower, Operating Lessee, HHSD, Additional Pledgor (as defined in this Agreement and each Other Mezzanine Loan Agreement), Guarantor, Mortgage Borrower SPE Component Entity, any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement), any Affiliated Manager, or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine D Borrower, Operating Lessee, HHSD, Additional Pledgor (as such term is defined in this Agreement and each Other Mezzanine Loan Agreement), Guarantor, Mortgage Borrower SPE Component Entity, any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement), any Affiliated Manager or any non-member manager, other than a natural person; and a “Transfer” shall mean a voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of a legal or beneficial interest.
Section 7.2.    No Sale/Encumbrance
(k)    Borrower shall not, without the prior written consent of Lender, cause or permit a Transfer of the Properties or any part thereof or any legal or beneficial interest therein or the Collateral or any part thereof or any legal or beneficial interest therein nor permit a Transfer of an interest in any Restricted Party, nor otherwise permit a dissolution of a Restricted Party, other than pursuant to Leases of space in the Improvements to Tenants in accordance with the provisions 

20752111.3.BUSINESS 
119






of Section 5.13 or as otherwise expressly permitted in accordance with the terms of this Agreement (in each case, a “Prohibited Transfer”).
(l)    A Prohibited Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Mortgage Borrower, Borrower, Mezzanine A Borrower or Mezzanine B Borrower agrees to sell the Properties or any part thereof, the Collateral or any part thereof, the Mezzanine A Collateral or any part thereof or the Mezzanine B Collateral or any part thereof, respectively, for a price to be paid in installments; (ii) an agreement by Mortgage Borrower or Operating Lessee leasing all or a substantial part of the Properties for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgage Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Transfer of such corporation’s stock or the creation or issuance of new stock in one or a series of transactions; (iv) if a Restricted Party is a limited, general or limited liability partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer of the partnership interest of any general or limited partner or any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Transfer of the membership interest of any member or any profits or proceeds relating to such membership interest or the creation or issuance of new membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Transfer of the legal or beneficial interest in such Restricted Party or the creation or issuance of new legal or beneficial interests; or (vii) Borrower or Operating Lessee entering into, or the Property being subject to, any PACE Loan; or (viii) any deed in lieu of foreclosure or assignment in lieu of foreclosure, as applicable, or consensual sale relating to the Property, the Mezzanine B Collateral or Mezzanine A Collateral, as applicable, with or for the benefit of Mortgage Lender, Mezzanine B Lender or Mezzanine A Lender, as applicable, or an Affiliate thereof.
Section 7.3.    Permitted Transfers
Notwithstanding anything contained in the Loan Documents to the contrary, the following Transfers of legal or beneficial equity interests shall not be deemed to be a Prohibited Transfer and shall not require the consent of Lender (each, a “Permitted Transfer”): (a) a Transfer (but not the pledge) by devise or descent or by operation of law upon the death or as a result of the legal incapacity of a natural person of such Person’s interest in a Restricted Party (other than Mortgage Borrower, Borrower, each Other Mezzanine Borrower, Mortgage Borrower SPE Component Entity and SPE Component Entity (as defined in this Agreement or any  Other Mezzanine Loan Agreement)) to the person or persons lawfully entitled thereto, provided Borrower delivers written notice to Lender as soon as practicable thereafter and that such Restricted Party is promptly reconstituted, if applicable, following the death or incapacity of such person; (b) Transfers (but not pledges) made in good faith for estate planning purposes of an individual’s interests in any Restricted Party (other than Mortgage Borrower, Borrower, each Other Mezzanine Borrower, 

20752111.3.BUSINESS 
120






Mortgage Borrower SPE Component Entity and SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement)) to the spouse or any lineal descendant of such individual, or to a trust for the benefit of any one or more of such individual, spouse or lineal descendant, provided such Restricted Party is reconstituted, if required, following such Transfer; (c) the Transfer (but not the pledge) of the stock, partnership or membership interests (as the case may be) in a Restricted Party (other than Mortgage Borrower, Borrower, each Other Mezzanine Borrower, Mortgage Borrower SPE Component Entity and SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement)); (d) an Additional Permitted Transfer; provided, however, with respect to clauses (a), (b), (c) and (d) above, other than with respect to a foreclosure of an Other Mezzanine Loan or assignment in lieu thereof (i) other than after an Advised Entity Transfer, no such Transfers shall result in a change in Control of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, Guarantor, any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement), HHSD, Mortgage SPE Component Entity or any Affiliated Manager, (ii) following such Transfer, a Guarantor (including a Replacement Guarantor) shall own not less than fifty-one percent (51%) of the direct or indirect equity interests in, and Control, Borrower, Mezzanine A Borrower, Mezzanine B Borrower Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement) and Mortgage SPE Component Entity, (iii) following such Transfer, Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement) and Mortgage SPE Component Entity shall continue to satisfy the requirements of Section 6.1 hereof, (iv) as a condition to each such Transfer, (A) except with respect to clause (a), (b), and (c) of the definition of Additional Permitted Transfers, Lender shall receive not less than thirty (30) days prior written notice of such proposed Transfer, (B) Borrower shall continue to comply with the representations, warranties and covenants contained in the Loan Documents (and upon request of Lender, deliver to Lender a statement signed by an authorized offer of Borrower which certifies to such compliance), and (C) to the extent any transferee will own twenty percent (20%) or more of the direct or indirect ownership interests in Borrower immediately following such transfer (provided such transferee owned less than twenty percent (20%) of the direct or indirect ownership interests in Borrower as of the Closing Date), Lender may request and Borrower shall deliver, at Borrower’s sole cost and expense, customary searches (including without limitation credit, judgment, lien, litigation, bankruptcy, criminal and watch list) the results of which shall be acceptable to Lender with respect to such transferee; and (D) if such Transfer shall cause any transferee, together with its Affiliates, to acquire direct or indirect equity interests in Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD or any SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement), or Mortgage SPE Component Entity aggregating to more than forty-nine percent (49%), or to increase its equity interests in Borrower, Mezzanine A Borrower, 

20752111.3.BUSINESS 
121






Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, any SPE Component Entity (as defined in this Agreement and the Mezzanine A Loan Agreement) or Mortgage SPE Component Entity from an amount that is less than forty-nine percent (49%) to an amount that is greater than forty-nine percent (49%), Borrower shall deliver a New Non-Consolidation Opinion addressing such Transfer or (e) the sale, transfer or issuance of shares of common stock in any Restricted Party (other than Mortgage Borrower, Borrower, each Other Mezzanine Borrower, Mortgage Borrower SPE Component Entity and SPE Component Entity (as defined in this Agreement and each Other Mezzanine Loan Agreement)) that is publicly traded and listed on the New York Stock Exchange or another nationally recognized publicly-traded stock exchange.  Upon request from Lender, Borrower shall promptly deliver to Lender an updated organizational chart reflecting each Transfer made pursuant to this Section 7.3.  All out-of-pocket reasonable costs and expenses incurred by Lender in connection with its review of any of the foregoing Transfers shall be paid by Borrower whether or not any such Transfer is consummated.
Notwithstanding anything to the contrary contained in this Article 7, Borrower and Additional Pledgor must at all times own one hundred percent (100%) of the direct equity interests in each Pledged Entity. 
Section 7.4.    Assumption
Notwithstanding the foregoing provisions of this Article 7, other than during the period that is sixty (60) days prior to and sixty (60) days following a Securitization, Lender shall not unreasonably withhold consent to a one-time Transfer (x) of the Properties in their entirety or (y) one hundred percent (100%) of the indirect legal and beneficial interests in Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower and Mortgage Borrower SPE Component Entity and the assumption of the Loan, Mezzanine A Loan, Mezzanine B Loan and the Mortgage Loan by, any Person (a “Transferee”) provided that each of the following terms and conditions are satisfied:
(j)    no Event of Default shall be continuing at the time the notice in clause (b) below is received by Lender or at the time of the Transfer;
(k)    Borrower shall deliver written notice to Lender of the terms of such proposed Transfer not less than thirty (30) days before the date on which such Transfer is scheduled to close and, concurrently therewith, all such information concerning the proposed Transfer and Transferee as Lender shall reasonably require in evaluating an initial extension of credit, which information shall include, without limitation, a fully executed copy of the purchase and sale agreement and all amendments and assignments thereof, as well as the sources and uses of funds or closing or settlement statement relating to the Transfer.  Lender shall have the right to approve or disapprove the proposed Transfer based on its (or the servicer’s on behalf of Lender) then current underwriting and credit requirements for similar loans secured by similar properties which loans are sold in the secondary market, such approval not to be unreasonably withheld.  In determining whether to give or withhold 

20752111.3.BUSINESS 
122






its approval of the proposed Transfer, Lender shall consider the experience and track record of Transferee and its principals in owning and operating facilities similar to the Properties, the financial strength of Transferee and its principals, the general business standing of Transferee and its principals and Transferee’s and its principals’ relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided, however, that, notwithstanding Lender’s agreement to consider the foregoing factors in determining whether to give or withhold such approval, such approval shall be given or withheld based on what Lender determines to be commercially reasonable and, if given, may be given subject to such conditions as Lender may deem reasonably appropriate; and without limiting the foregoing, all  of the direct or indirect ownership interests in Transferee, as applicable, all payments thereon and all proceeds thereof shall be pledged to Lender on terms no less favorable then the pledge of the Collateral under the Pledge Agreement; 
(l)    Borrower shall pay to Lender, concurrently with the closing of such proposed Transfer, (i) a non refundable assumption fee in an amount equal to one percent (1.0%) of the then outstanding principal balance of the Note, and (ii) all out of pocket costs and expenses, including reasonable attorneys’ fees and disbursements and Rating Agency fees, incurred by Lender in connection with the proposed Transfer (which shall be paid whether or not the proposed Transfer actually occurs);
(m)    (A) To the extent the Permitted Transfer is a Transfer of all of the Properties, the applicable Transferee shall assume all of the obligations of Mortgage Borrower under the Mortgage Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender; (B) to the extent the Permitted Transfer is a Transfer of the Mezzanine A Collateral, the applicable Transferee shall assume all of the obligations of Mezzanine A Borrower under the Mezzanine A Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonable satisfactory to Lender; (C) to the extent the Permitted Transfer is a Transfer of the Mezzanine B Collateral, the applicable Transferee shall assume all of the obligations of Mezzanine B Borrower under the Mezzanine B Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonable satisfactory to Lender; and (D) to the extent the Permitted Transfer is a Transfer of all of the Collateral, the applicable Transferee shall assume all of the obligations of Borrower under the Loan Documents in a manner reasonably satisfactory to Lender in all respects, including, without limitation, by entering into an assumption agreement in form and substance reasonably satisfactory to Lender;
(n)    (i) the applicable Transferee (A) shall assume and agree to pay the Debt (as defined in the Mortgage Loan Agreement) as and when due and shall assume all other obligations of Mortgage Borrower under the Mortgage Loan Documents subject to the provisions of Article 15 thereof; (B) shall acquire and agree to pay the Debt (as defined in the Mezzanine A Loan Agreement) as and when due and shall assume all other obligations of Mezzanine A Borrower under the Mezzanine A Loan Documents subject to the provisions of Section 15 thereof; (C) shall acquire 

20752111.3.BUSINESS 
123






and agree to pay the Debt (as defined in the Mezzanine B Loan Agreement) as and when due and shall assume all other obligations of Mezzanine B Borrower under the Mezzanine B Loan Documents subject to the provisions of Section 15 thereof; and (D) shall assume and agree to pay the Debt as and when due and shall assume all other obligations of Borrower under the Loan Documents subject to the provisions of Article 15 hereof and, prior to or concurrently with the closing of such Transfer, Transferee and its constituent partners, members or shareholders as Lender may require, including, without limitation, all of the entities which own interests similar to the interests in Mezzanine B Borrower owned by Borrower (the “Mezzanine Entities”) shall execute, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate said assumption, including, without limitation, a pledge and security agreement, whereby all of the direct ownership interests in all entities owned by the Mezzanine Entities, all payments with respect to such ownership interests and all proceeds of such ownership interests shall be pledged to Lender on terms satisfactory to Lender and (ii) if required by Lender, a Replacement Guarantor shall assume the obligations of Guarantor under the Loan Documents with respect to all acts and events occurring or arising after the closing of the Transfer and the then existing Guarantor shall be released under the Guaranty with respect to all acts and events first occurring or arising after the date of such Transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such delivery, whether or not discovered prior or subsequent to the date of such delivery or were caused by Guarantor or its Affiliates; provided, however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after the Transfer of the Properties, Collateral, the Mezzanine B Collateral or the Mezzanine A Collateral, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or its Affiliates;
(o)    Borrower and Transferee, without any cost to Lender, shall furnish any information requested by Lender for the preparation of, and shall authorize Lender to file, new financing statements and financing statement amendments and other documents to the fullest extent permitted by applicable Legal Requirements, and shall execute any additional documents reasonably requested by Lender;
(p)    Transferee shall deliver to Lender, without any cost or expense to Lender, a UCC Title Insurance Policy insuring that equity interests of all owners of the Collateral are vested in the Mezzanine Entities and such certificates and other similar materials as Lender may deem necessary at the time of the transfer, all in form and substance satisfactory to Lender;
(q)    To the extent the Permitted Transfer is a Transfer of all of the Properties, Lender shall have approved the Transferee’s owner’s title insurance policy with respect to the Property, subject only to Permitted Encumbrances; 
(r)    Transferee shall furnish to Lender, all documents evidencing Transferee’s and Mezzanine Entities’ organization and good standing, and the qualification of the signers to execute the assumption of the applicable Debt (as defined in this Agreement, the Mezzanine A Loan 

20752111.3.BUSINESS 
124






Agreement, the Mezzanine B Loan Agreement and the Mortgage Loan Agreement), which documents shall include certified copies of all documents relating to the organization and formation of Transferee and of the entities, if any, which are partners or members of Transferee.  Transferee and such constituent partners, members or shareholders of Transferee (as the case may be), as Lender shall require, shall comply with the covenants set forth in Article 6 hereof and in Sections 5.18 and 5.23 hereof;
(s)    To the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under any Management Agreement or provide a new management agreement with a new manager which meets with the requirements of Section 5.14 hereof and assign to Lender as additional security such new management agreement pursuant to an Assignment of Management Agreement  in form and substance reasonably satisfactory to Lender;
(t)    Intentionally Omitted;
(u)    Transferee shall furnish to Lender, if required by Lender, a REMIC Opinion, a New Non-Consolidation Opinion, and an opinion of counsel satisfactory to Lender and its counsel (A) that Transferee’s formation documents provide for the matters described in subparagraph (g) above, (B) that the assumption of the Debt has been duly authorized, executed and delivered, and that the assumption agreement and the other Loan Documents are valid, binding and enforceable against Transferee in accordance with their terms, (C) that Transferee and any entity which is a controlling stockholder, member or general partner of Transferee, have been duly organized, and are in existence and good standing, and (D) with respect to such other matters as Lender may reasonably request;
(v)    if required by Lender, Lender shall receive a Rating Agency Confirmation;
(w)    To the extent the Permitted Transfer is a Transfer of all of the Properties, Transferee shall assume the obligations of Mortgage Borrower or Operating Lessee under the Franchise Agreement or enter into (i) a Replacement Franchise Agreement with a Qualified Franchisor and (i) a tri-party or similar agreement with such Qualified Franchisor and Lender that is in form and substance reasonably satisfactory to Lender;
(x)    (1) The Mortgage Loan shall simultaneously be assumed by Transferee in accordance with the Mortgage Loan Agreement and in a manner acceptable to Lender in all respects and Transferee shall deliver to Lender, all agreements and documents required to be delivered to Mortgage Lender pursuant to Section 7.4 of the Mortgage Loan Agreement; and (2) each Other Mezzanine Loan shall simultaneously be assumed by the applicable indirect equity owners of Transferee in accordance with the related Other Mezzanine Loan Agreement; and

20752111.3.BUSINESS 
125






(y)    Borrower’s obligations under the purchase and sale agreement pursuant to which the Transfer is proposed to occur shall expressly be subject to the satisfaction of the terms and conditions of this Section 7.4.
The consent of Lender with respect to a Transfer of the Collateral in its entirety to, and the assumption of the Loan by, a Transferee pursuant to this Section 7.4 shall not be construed to be a waiver of the right of Lender to consent to any subsequent Transfer of the Collateral.  Upon the Transfer of the Collateral pursuant to this Section 7.4, Borrower and Guarantor (if a Replacement Guarantor has assumed the obligations of Guarantor under the Loan Documents pursuant to this Section 7.4) shall be relieved of all liability under the Loan Documents for acts, events, conditions, or circumstances occurring or arising after the date of such transfer, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer or were caused by Guarantor, Borrower or their respective Affiliates; provided, however, Borrower and/or Guarantor shall bear the burden of proof to show that an event triggering liability of Borrower and/or Guarantor under the Loan Documents first occurred after the Transfer of the Properties, Collateral, the Mezzanine B Collateral or the Mezzanine A Collateral, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Borrower, Guarantor or any of their respective Affiliates;
Section 7.5.    Immaterial Transfers and Easements, Etc.
(a)    Borrower shall be permitted to cause Mortgage Borrower to, in accordance with the terms of the Mortgage Loan Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement, without the consent of Lender, (i) make immaterial Transfers of unimproved, non-income producing portions of an Individual Property to Governmental Authorities for dedication or public use and (ii) grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone or other fiber optic or other data transmission lines, electric lines or other utilities or for other similar purposes, provided that no such Transfer, conveyance or encumbrance set forth in the foregoing clauses (i) and (ii) shall materially impair the utility and operation of such Individual Property or reasonably be expected to, or does, have a Material Adverse Effect.  In connection with any Transfer permitted pursuant to this Section 7.5, Borrower shall (i) provide fifteen (15) days’ prior written notice to Lender, (ii) execute and deliver to Lender the equivalent of all documents required to be delivered to Mortgage Lender pursuant to Section 7.5 of the Mortgage Loan Agreement and (iii) reimburse Lender for all of Lender’s reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with such Transfer (which shall be paid by Borrower whether or not the proposed Transfer actually occurs).
(b)    Notwithstanding the foregoing provisions of this Section 7.5, for so long as the Loan is included in a REMIC Trust in connection with a Securitization, no release of the Outparcel (as defined in the Mortgage Loan Agreement) from the Lien of the Mortgages and no release of the related Collateral from the Lien of the Pledge Agreement will be permitted unless, immediately 

20752111.3.BUSINESS 
126






after the Release, either (i) the LTV Ratio is equal to or less than one hundred twenty-five percent (125%) (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any) or (ii) the principal balance of the Loan is paid down by the least of the following amounts:  (A) an amount equal to the net proceeds or other compensation paid by a Governmental Authority in connection with a Transfer described in Section 7.5(a)(i), (B) the fair market value of the Outparcel at the time of release, or (C) an amount such that the LTV Ratio (as so determined by Lender) does not increase after the release, unless Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Section 7.6.    Advised Entity Transfer
(a)    As a condition precedent to an Advised Entity Transfer, Borrower shall provide Lender with at least thirty (30) days prior written notice and comply with the applicable provisions set forth in Section 7.3 hereof and Section 7.4(a) and (j) hereof and Section 7.4(a), (j) and (k) of the Mortgage Loan Agreement.
Section 7.7.    Replacement Guarantor. If at any time during the term of the Loan, Borrower elects in connection with a Transfer (including, without limitation, an Advised Entity Transfer), then (A) Borrower shall have the right to cause a Replacement Guarantor to execute and deliver a replacement Guaranty, PIP Guaranty and Environmental Indemnity substantially in the form of the Guaranty, PIP Guaranty or Environmental Indemnity, as applicable, or otherwise in form acceptable to Lender (collectively, a “Substitute Guaranty”), (B) under such Substitute Guaranty, Replacement Guarantor shall assume all obligations of Guarantor under each of the Guaranty, PIP Guaranty and the Environmental Indemnity, (C) Replacement Guarantor shall furnish to Lender all documents evidencing Replacement Guarantor’s organization and good standing, and the qualification of the signers to execute the Substitute Guaranty and any other Loan Documents, which documents shall include certified copies of all documents relating to the organization and formation of Replacement Guarantor and of the entities, if any, which are partners or members of Replacement Guarantor, and (D) Replacement Guarantor shall furnish to Lender a New Non-Consolidation Opinion and an opinion of counsel satisfactory to Lender and its counsel (I) that Replacement Guarantor’s formation documents provide for the matters described in the foregoing clause (C), (II) that the substitution of the Replacement Guarantor has been duly authorized, executed and delivered, and that the Substitute Guaranty and the other Loan Documents are valid, binding and enforceable against Replacement Guarantor in accordance with their terms, (III) that Replacement Guarantor and any entity which is a controlling stockholder, member or general partner of Replacement Guarantor have been duly organized, and are in existence and good standing, and (IV) with respect to such other matters as Lender may reasonably request.  Upon the execution and delivery by such Replacement Guarantor of a Substitute Guaranty, Guarantor shall be relieved of all liability under the Loan Documents for acts, events, conditions, or 

20752111.3.BUSINESS 
127






circumstances occurring or arising after the date of delivery of such evidence, except to the extent that such acts, events, conditions, or circumstances are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such delivery, whether or not discovered prior or subsequent to the date of such delivery, or were caused by such Guarantor or its Affiliates, provided that Guarantor shall bear the burden of proof to show that the event triggering liability under the Loan Documents first occurred after such transfer or ownership, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or its Affiliates.  In the event that Borrower replaces Guarantor with a Replacement Guarantor, Borrower shall deliver the financial statements of the Replacement Guarantor as required pursuant to Section 5.11 of this Agreement with respect to such Guarantor.
ARTICLE 8     
INSURANCE; CASUALTY; CONDEMNATION; RESTORATION
Section 8.1.    Insurance
(m)    Notwithstanding that the Mortgage Loan, the Mezzanine B Loan and/or the Mezzanine A Loan may have been repaid or prepaid in full, Borrower shall cause Mortgage Borrower to maintain at all times during the term of the Loan the insurance required under the Mortgage Loan Agreement, the Mezzanine A Loan Agreement and/or the Mezzanine B Loan Agreement, including, without limitation, meeting all insurer requirements thereunder.  In addition, Borrower shall cause Lender to be named as an additional named insured under each of the insurance policies described in Section 8.1(a) of the Mortgage Loan Agreement.  Prior to expiration of the Policies, evidence of the renewal of the Policies reasonably acceptable to Lender shall be furnished to Lender (to be followed by complete copies of the Policies upon request).  Within forty five (45) days following inception of policies (or such earlier date on which the Insurance Premiums are due and payable), Borrower shall provide satisfactory evidence of payment of Insurance Premiums. Borrower shall also cause all Policies required under this Section 8.1 to provide for at least ten (10) days prior notice to Lender in the event of policy cancellation for nonpayment and at least thirty (30) days prior notice to Lender in the event of any other policy cancellation.  
(n)    Borrower shall promptly forward to Lender a copy of each written notice received by Borrower or Mortgage Borrower of any modification, reduction or cancellation of any of the Policies or of any of the coverages afforded under any of the Policies.  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 to take such action as Lender deems necessary to protect its interest in the Collateral, including, without limitation, the obtaining of such insurance coverage as Lender in its sole discretion deems appropriate after ten (10) days’ notice to Borrower if prior to the date upon which any such coverage will lapse or at any time Lender deems necessary (regardless of prior notice to Borrower) to avoid the lapse of any such coverage.  All premiums incurred by Lender in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by 

20752111.3.BUSINESS 
128






Borrower to Lender upon demand and, until paid, shall be secured by the Pledge Agreement and shall bear interest at the Default Rate.
Section 8.2.    Intentionally Omitted
Section 8.3.    Casualty
If any Individual Property shall be damaged or destroyed, in whole or in part, by fire or other casualty (a “Casualty”), Borrower shall cause Mortgage Borrower to give prompt notice of such damage to Lender and shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration in accordance with the Mortgage Loan Agreement.  Lender may, but shall not be obligated to, make proof of loss if not made promptly by Borrower.  Borrower shall permit Mortgage Borrower to adjust all claims for Insurance Proceeds that are in amounts less than the Restoration Threshold and Lender shall have the right to approve any adjustment of claims for Insurance Proceeds in amounts equal to or in excess of the Restoration Threshold; provided, however, if an Event of Default has occurred and is continuing, Lender shall, subject to the rights of Mortgage Lender set forth in the Mortgage Loan Agreement, have the exclusive right to participate in the adjustment of claims for Insurance Proceeds.  Borrower shall cooperate with Lender in obtaining for Lender the benefits of any Insurance Proceeds lawfully or equitably payable in connection with any Individual Property and Borrower shall reimburse Lender for any expenses incurred by Lender in connection therewith, including without limitation, reasonable out-of-pocket attorneys’ fees.
Section 8.4.    Condemnation
Borrower shall cause Mortgage Borrower to promptly give Lender notice of the actual or threatened commencement of any proceeding for the Condemnation of any Individual Property of which Mortgage Borrower has knowledge and shall deliver to Lender copies of any and all documents served in connection with such proceedings.  Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender may participate in any such proceedings, and Borrower shall cause Mortgage Borrower from time to time deliver to Lender all documents requested by it to permit such participation.  Borrower shall cause Mortgage Borrower to, 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.  If the Property or any portion thereof is taken by a condemning authority, Borrower shall cause Mortgage Borrower to promptly commence and diligently prosecute the Restoration of such Individual Property and otherwise comply with the provisions of Section 8.5 of the Mortgage Loan Agreement, whether or not Mortgage Lender makes any Net Proceeds available pursuant to Section 8.5 of the Mortgage Loan Agreement.

20752111.3.BUSINESS 
129






Section 8.5.    Restoration
(b)    Borrower shall, or shall cause Mortgage Borrower to, deliver to Lender all reports, plans, specifications, documents and other materials that are delivered to Mortgage Lender under the Mortgage Loan Agreement in connection with a Restoration of the Property after a Casualty or Condemnation and to otherwise comply in all respects with Section 8.5 of the Mortgage Loan Agreement in connection with any Restoration.  If any Insurance Proceeds or Awards are to be disbursed by Mortgage Lender for restoration, Borrower shall deliver or cause to be delivered to Lender copies of all written correspondence delivered to and received from Mortgage Lender, Mezzanine A Lender or Mezzanine B Lender that relates to the Restoration and release of the Insurance Proceeds or Awards.
(c)    Notwithstanding any provision in this Agreement to the contrary, all Insurance Proceeds and Awards will be made available to Mortgage Borrower in accordance with the Mortgage Loan Agreement.  If at any time and for any reason the Mortgage Loan Restoration Provisions, the Mezzanine A Loan Restoration Provisions and the Mezzanine B Loan Restoration Provisions cease to exists or are waived or modified in any material respect (such provisions, the “Waived Restoration Provisions”) to the extent permitted to do so pursuant to the Mortgage Loan Documents, the Mezzanine A Loan Documents or the Mezzanine B Loan Documents (in each case, if applicable), Borrower shall promptly (i) notify Lender of the same, (ii) execute any amendments to this Agreement and/or the other Loan Documents implementing the Waived Restoration Provisions as may be required by Lender (provided such amendments are substantially similar to the provisions set forth in the Mortgage Loan Agreement, the Mezzanine A Loan Agreement and the Mezzanine B Loan Agreement relating to the same) and shall cause Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower to acknowledge and agree to the same and (iii) remit to Lender (and shall cause Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower to remit to Lender) any Net Proceeds related to the Waived Restoration Provisions pursuant to the terms of the Mortgage Loan Documents, the Mezzanine A Loan Documents and the Mezzanine B Loan Documents.  In the event the Mortgage Loan, the Mezzanine A Loan and/or the Mezzanine B Loan has been paid in full and Lender receives (or Borrower is entitled to receive) any Insurance Proceeds or Awards, Lender shall (or Borrower shall cause such Insurance Proceeds or Awards to be delivered to Lender and Lender shall) either apply such proceeds to the Debt or for the Restoration of the Property in accordance with the same terms and conditions contained in the Mortgage Loan Agreement.  
ARTICLE 9     
RESERVE FUNDS
Section 9.1.    Deposit and Maintenance of Reserve Funds  
(a)    Borrower shall cause Mortgage Borrower to deposit and maintain each of the Mortgage Loan Reserve Funds as required under the Mortgage Loan Documents and to perform and comply with all the terms and provisions relating thereto; provided, however, in the event 

20752111.3.BUSINESS 
130






Mortgage Borrower does not (or is not required to) make such deposits pursuant to the Mortgage Loan Documents, Borrower shall be obligated to make, or to cause to be made such deposits to Lender hereunder substantially in accordance with the provisions of the Mortgage Loan Agreement, as more fully set forth in Section 9.1 hereof.  If requested by Lender, Borrower will promptly provide evidence reasonably acceptable to Lender of compliance with the foregoing. 
(b)    Notwithstanding anything to the contrary contained in this Agreement, if at any time and for any reason the Mortgage Loan Cash Management Provisions, the Mezzanine A Loan Cash Management Provisions and the Mezzanine B Loan Cash Management Provisions cease to exist or are waived or modified in any material respect and/or the Cash Management Account, the Mezzanine A Cash Management Account and the Mezzanine B Cash Management Account are no longer being maintained (in each case, including, without limitation, due to any waiver, amendment or refinance) (such accounts, the “Waived Cash Management Accounts”), to the extent permitted to do so pursuant to the Mortgage Loan Documents, the Mezzanine B Loan Documents, the Mezzanine A Loan Documents and the Mezzanine B Loan Documents (in each case, if applicable), Borrower shall promptly (i) notify Lender of the same and establish and maintain with Lender and for the benefit of Lender accounts in replacement and substitution thereof (the “Substitute Cash Management Accounts”), which Substitute Cash Management Accounts shall be subject to the same terms and conditions applicable under the Mortgage Loan Documents, the Mezzanine A Loan Documents and the Mezzanine B Loan Documents, (ii) execute any amendments to this Agreement and/or the Loan Documents relating to the Substitute Cash Management Accounts required by Lender and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to acknowledge and agree to the same, and (iii) remit to Lender (and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to remit to Lender) any amounts remaining in the Waived Cash Management Accounts.
(c)    Notwithstanding anything to the contrary contained in this Agreement, if at any time and for any reason the Mortgage Loan Reserve Funds, the Mezzanine A Loan Reserve Funds and the Mezzanine B Loan Reserve Funds required to be maintained pursuant to the Mortgage Loan Agreement, the Mezzanine B Loan Documents and the Mezzanine A Loan Documents (in each case, if applicable) are no longer being maintained (including, without limitation, because the Mortgage Loan has been paid off or otherwise satisfied) and/or are reduced, waived or modified in any material respect (in each case, including, without limitation, due to any waiver, amendment or refinance) (such Mortgage Loan Reserve Funds, the Mezzanine A Loan Reserve Funds and the Mezzanine B Loan Reserve Funds, the “Waived Reserve Funds”), Borrower shall promptly (i) notify Lender of the same and establish and maintain with Lender and for the benefit of Lender reserves in replacement and substitution thereof (the “Substitute Reserves”), which Substitute Reserves shall be subject to all of the same terms and conditions applicable under the Mortgage Loan Documents, the Mezzanine A Loan Documents and the Mezzanine B Loan Documents (ii) execute any amendments to this Agreement and/or the Loan Documents relating to the Substitute Reserves required by Lender and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to acknowledge and agree to the same, and (iii) remit to Lender (and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to remit to Lender) 

20752111.3.BUSINESS 
131






any Mortgage Loan Reserve Funds, Mezzanine A Loan Reserve Funds or Mezzanine B Loan Reserve Funds remaining in the Waived Reserve Funds.
Section 9.2.    Transfer of Reserve Funds under Mortgage Loan
If Borrower is required to deposit with Lender reserves pursuant to this Article 9, Borrower shall enter into a cash management agreement for the benefit of Lender for the purpose of covering deposits to the required reserve accounts substantially similar to the terms of the Cash Management Agreement.  
In the event that any Mortgage Loan Reserve Account or the Cash Management Account is required to be established and maintained by Borrower in accordance with the foregoing, Borrower shall cause any amounts, if any, that would have been deposited into the applicable Mortgage Loan Reserve Accounts, Mezzanine A Loan Reserve Accounts, Mezzanine B Loan Reserve Accounts or the Cash Management Account, Mezzanine A Cash Management Account or Mezzanine B Cash Management Account in accordance with the terms of the Mortgage Loan Agreement, the Mezzanine A Loan Agreement or the Mezzanine B Loan Agreement, as applicable, to be deposited with Lender in accordance with the terms of this Article 9 (and Borrower shall execute any and all amendments to the Cash Management Agreement, the Deposit Account Agreement and Article 10 of this Agreement as shall be necessary in connection with establishing and maintaining the applicable Mortgage Loan Reserve Accounts or the Cash Management Account, as applicable).  
ARTICLE 10     
CASH MANAGEMENT
Section 10.1.    Deposit Account; Cash Management Account
(z)    Borrower has caused Mortgage Borrower to establish the Deposit Account as required by Section 10.1 of the Mortgage Loan Agreement, and during the term of the Loan (and without regard to whether the Mortgage Loan shall then be outstanding) Borrower shall cause (1) Mortgage Borrower to at all times comply with the provisions of Article 10 of the Mortgage Loan Agreement, (2) Mezzanine A Borrower to at all times comply with the provisions of Article 10 of the Mezzanine A Loan Agreement and (3) Mezzanine B Borrower to at all times comply with the provisions of Article 10 of the Mezzanine B Loan Agreement. 
(aa)    Borrower has caused Mortgage Borrower to establish the Cash Management Account, which Cash Management Account shall be under the sole dominion and control of Mortgage Lender.  Borrower will cause Mortgage Borrower to at all times comply with the provisions of Article 10 of the Mortgage Loan Agreement and the Cash Management Agreement.  Borrower will not cause or permit Mortgage Borrower in any way to alter or modify the Cash Management Account and will notify Lender of the account number thereof.  Mortgage Lender shall have the sole right to make withdrawals from the Cash Management Account and all costs and expenses for 

20752111.3.BUSINESS 
132






establishing and maintaining the Cash Management Account shall be paid by Mortgage Borrower.  Borrower shall direct, or cause Mortgage Borrower to direct, that all cash distributions from the Cash Management Account be paid to Lender in accordance with the Cash Management Agreement (including the Net Liquidation Proceeds After Debt Service) be deposited into the Mezzanine C Loan Subaccount maintained in accordance with the Cash Management Agreement.  Disbursements from the Mezzanine C Loan Subaccount will be made to Lender in accordance with the terms and conditions of this Agreement and the Cash Management Agreement. 
(bb)    The insufficiency of funds on deposit in the Mezzanine C Loan Subaccount shall not relieve Borrower from the obligation to make any payments, as and when due pursuant to this Agreement and the other Loan Documents, and such obligations shall be separate and independent, and not conditioned on any event or circumstance whatsoever other than any notices expressly required by the terms of the Loan Documents.
(cc)    During the continuance of an Event of Default, Borrower shall not make any distributions to its members. 
Section 10.2.    Borrower Distributions
All transfers of Mortgage Borrower’s funds from the Cash Management Account or pursuant to any of the Loan Documents are intended by Borrower and Mortgage Borrower to constitute and shall constitute distributions from Mortgage Borrower to Borrower, and must comply with the requirements as to distributions of all applicable Legal Requirements. No provision of the Loan Documents shall create a debtor-creditor relationship between Mortgage Borrower and Lender.
ARTICLE 11     
EVENTS OF DEFAULT; REMEDIES
Section 11.1.    Event of Default
The occurrence of any one or more of the following events shall constitute an “Event of Default”:
(c)    if any portion of the Debt is not paid on or prior to the date the same is due or if the entire Debt is not paid on or before the Maturity Date;
(d)    except as otherwise expressly provided in the Loan Documents, if any of the Property Taxes or Other Charges are not paid when the same are due and payable, unless sufficient money has been deposited with Mortgage Lender in accordance with the terms of the Mortgage Loan Agreement for payment of amounts then due and payable and Mortgage Lender’s access to such money has not been constrained or restricted in any manner;
(e)    if (i) the Policies are not kept in full force and effect, (ii) the Acord 28 (or similar) certificate is not delivered to Lender in accordance with Section 8.1 within five (5) Business 

20752111.3.BUSINESS 
133






Days of written request therefor or (iii) certified copies of the Policies are not delivered to Lender upon request, provided such copies are available;
(f)    if (i) Borrower breaches in any material respect any covenant with respect to itself or any SPE Component Entity) contained in Article 6, (ii) if Additional Pledgor breaches in any material respect any covenant with respect to itself contained in Section 4 of the Pledge Agreement, (iii) if Operating Lessee breaches in any material respect any covenant with respect to itself contained in Paragraph 16 of the Operating Lease Subordination Agreement or (iv) a Prohibited Transfer occurs;
(g)    if any representation or warranty of, or with respect to, any Loan Party or any member, general partner, principal or beneficial owner of any Loan Party, made herein, in any other Loan Document, or in any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan shall have been false or misleading in any material respect when made; provided, however, (i) if such Loan Party, or any member, general partner, principal or beneficial owner of any of such Loan Party did not know any such representation or warranty was false and misleading in any material respect when it made it, (ii) if the condition causing the representation or warranty to be false or misleading is susceptible of being cured, and (iii) if the condition once cured would not cause a Material Adverse Effect, then such false or misleading representation or warranty shall be an Event of Default hereunder only if such condition is not cured within ten (10) days after written notice to Borrower from Lender; provided, however, that if such Default is susceptible of cure but cannot reasonably be cured within such ten (10) day period and Borrower shall have commenced such cure within such ten (10) day period and thereafter diligently and expeditiously proceeds to cure the same, such ten (10) day period shall be extended for a period reasonably required to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(h)    if any of the assumptions contained in the Non-Consolidation Opinion or in any New Non-Consolidation Opinion, is or shall become untrue in any material respect;
(i)    if (i) any Loan Party or any managing member or general partner of any Loan Party shall commence any case, proceeding or other action (A) under any Creditors Rights Laws, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Loan Party or any managing member or general partner of any Loan Party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Loan Party or any managing member or general partner of any Loan Party any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty (60) days; or (iii) there shall be commenced against any Loan Party or any managing member or general partner of any Loan Party any case, proceeding or other action seeking issuance of a 

20752111.3.BUSINESS 
134






warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) any Loan Party or any managing member or general partner of any Loan Party shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clauses (i), (ii), or (iii) above; or (v) any Loan Party or any managing member or general partner of any Loan Party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due;
(j)    if Borrower or Additional Pledgor shall be in default beyond applicable notice and grace periods under the Pledge Agreement or other security agreement covering any part of the Collateral, whether it be superior or junior in lien to the Pledge Agreement;
(k)    unless the same is being contested in accordance with the terms hereof, if any Individual Property becomes subject to any mechanic’s, materialman’s or other Lien other than a Lien for any Property Taxes or Other Charges not then due and payable and the Lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;
(l)    unless the same is being contested in accordance with the terms hereof, if any federal tax lien is filed against any Loan Party, any member or general partner of any Loan Party, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral or any Individual Property and same is not discharged of record (by payment, bonding or otherwise) within thirty (30) days after same is filed;
(m)    unless Lender reasonably determines that the same is adequately covered by insurance, if a final non-appealable judgment is filed against Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, SPE Component Entity, Mortgage Borrower SPE Component Entity, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor and Operating Lessee in excess of $100,000 which is not vacated, dismissed, discharged or bonded over within thirty (30) days;
(n)    if any default occurs under any guaranty or indemnity executed in connection herewith and such default continues after the expiration of applicable grace periods, if any;
(o)    reserved;
(p)    if Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower breaches the provisions of Section 5.14, Section 5.22(d) or Section 5.25 hereof;
(q)    if Borrower shall fail to cause Mortgage Borrower to pay any rent or any additional rent or other charge mentioned in or made payable by the Ground Lease when said rent or other charge is due and payable; provided, however, no Event of Default shall be deemed to have occurred hereunder by reason of the failure to pay the rent or other sums pursuant to the Ground Lease where sums sufficient to timely pay such amount are then available from funds held by Lender, 

20752111.3.BUSINESS 
135






Mezzanine A Lender, Mezzanine B Lender or Mortgage Lender, as applicable, in the Ground Lease Reserve Account (as defined in the Mortgage Loan Agreement) established hereunder or thereunder, as applicable, and Lender, Mezzanine A Lender, Mezzanine B Lender or Mortgage Lender, as applicable, is then entitled to fund such amount from such subaccount and Lender fails to pay the same;
(r)    if there shall occur any default by Mortgage Borrower or Operating Lessee, as tenant under the Ground Lease, in the observance or performance of any term, covenant or condition of the Ground Lease on the part of Mortgage Borrower or Operating Lessee to be observed or performed and said default is not cured following the expiration of any applicable grace and notice periods therein provided, or if the leasehold estate created by the Ground Lease shall be surrendered or if the Ground Lease shall cease to be in full force and effect or such Ground Lease shall be terminated or canceled for any reason (whether by act or omission of Borrower, Mortgage Borrower or Operating Lessee or otherwise) or under any circumstances whatsoever, or if any of the terms, covenants or conditions of such Ground Lease shall in any manner be modified, changed, supplemented, altered, or amended without the consent of Lender;
(s)    if there shall occur any default by Operating Lessee, as tenant, or Mortgage Borrower, as landlord, under the Operating Lease, in the observance or performance of any term, covenant or condition of the Operating Lease on the part of Operating Lessee or Mortgage Borrower, as applicable, to be observed or performed and said default is not cured following the expiration of any applicable grace, notice and cure periods therein provided, or if the leasehold estate created by the Operating Lease shall be surrendered or if the Operating Lease shall cease to be in full force and effect or the Operating Lease shall be terminated or canceled for any reason (including, without limitation, by its terms), or if any of the terms, covenants or conditions of the Operating Lease shall in any material manner be modified, changed, supplemented, altered, or amended in violation of the terms of this Agreement;
(t)    intentionally omitted;
(u)    intentionally omitted;
(v)    if Borrower breaches the provisions of Section 5.24 hereof; 
(w)    if Mortgage Borrower shall be in default beyond applicable notice and grace periods under the Condominium Documents for more than ten (10) Business Days in the case of any default which can be cured by the payment of a sum of money or for thirty (30) Business Days in the case of any other default, provided that if such default (other than any default which can be cured by the payment of a sum of money) cannot reasonably be cured within such thirty (30) Business Day period and Mortgage Borrower shall have commenced to cure such default within such thirty (30) Business Day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) Business Day period shall be extended for so long as it shall require Mortgage 

20752111.3.BUSINESS 
136






Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of sixty (60) Business Days; 
(x)    if any voluntary prepayment of the Mortgage Loan or any Other Mezzanine Loan is made at any time, unless such prepayment of the Mortgage Loan and/or such Other Mezzanine Loan is on a pro rata basis with the Loan, the Mortgage Loan and each Other Mezzanine Loan; 
(y)    any deed in lieu of foreclosure or assignment in lieu of foreclosure, as applicable, or consensual sale relating to any Property, Mezzanine A Collateral or Mezzanine B Collateral with or for the benefit of Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender or any of their respective Affiliates thereof unless Borrower has provided (or caused to be provided) Lender with at least ninety (90) days prior written notice of Mortgage Borrower’s Mezzanine A Borrower’s or Mezzanine B Borrower’s, as applicable, good faith intention to deliver a deed in lieu of foreclosure or assignment in lieu of foreclosure, as applicable, or consensual sale of the Property, Mezzanine A Collateral or Mezzanine B Collateral, as applicable; 
(z)    if a Mortgage Loan Default shall occur;
(aa)    any assignment in lieu of foreclosure or consensual sale relating to all or any portion of any Mezzanine A Collateral or Mezzanine B Collateral with or for the benefit of Mezzanine A Lender or Mezzanine B Lender or any Affiliate thereof, unless Borrower has provided (or caused to be provided) Lender with at least ninety (90) days prior notice of the Mezzanine A Borrower’s or Mezzanine B Borrower’s, as applicable good faith intention to deliver an assignment in lieu of foreclosure or consensual sale of all or any portion of the Mezzanine A Collateral or Mezzanine B Collateral.
(bb)    any deed in lieu of foreclosure or consensual sale relating to any Property with or for the benefit of Mortgage Lender or an Affiliate thereof unless Borrower has provided (or caused to be provided) Lender with at least ninety (90) days prior written notice of Mortgage Borrower’s good faith intention to deliver a deed in lieu of foreclosure or consensual sale of the Property; 
(cc)    If a Mezzanine A Loan Default shall occur; 
(dd)    If a Mezzanine B Loan Default shall occur; or
(ee)    if Borrower shall continue to be in default under any other term, covenant or condition of this Agreement or any of the Loan Documents not covered in the foregoing clauses of this Section 11.1, for more than ten (10) days after notice from Lender in the case of any default which can be cured by the payment of a sum of money or for thirty (30) days after notice from Lender in the case of any other default, provided that if such default (other than any default which can be cured by the payment of a sum of money) cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day 

20752111.3.BUSINESS 
137






period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of sixty (60) days.
Section 11.2.    Remedies
(d)    Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in Section 11.1(g) above with respect to Borrower and SPE Component Entity only) 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, that Lender deems advisable to protect and enforce its rights against Borrower and in the Collateral, including, without limitation, declaring the Debt 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 the Collateral, including, without limitation, all rights or remedies available at law or in equity.  Upon any Event of Default described in Section 11.1(g) above (with respect to Borrower and SPE Component Entity only), the Debt and all other obligations of Borrower hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.  For the purpose of carrying out the provisions and exercising the rights, powers and privileges granted in this Section 11.2, Borrower hereby irrevocably appoints Lender as its true and lawful attorney-in-fact to execute, acknowledge and deliver any instruments and do and perform any acts such as are referred to in this Section in the name and on behalf of Borrower.  This power of attorney is a power coupled with an interest and cannot be revoked.
(e)    Upon the occurrence and 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 under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower 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 Debt 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.  Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender has determined 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, equity or contract or as set forth herein or in the other Loan Documents.
(f)    Upon the occurrence and 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, pledge agreements and other security documents (the “Severed Loan 

20752111.3.BUSINESS 
138






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 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 hereby absolutely and irrevocably appoints Lender as its respective 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 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.  Borrower shall be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower only as of the Closing Date.
(g)    If an Event of Default shall have occurred and be continuing, any amounts recovered from any Collateral may be applied to the repayment of the Debt in such order, proportion and priority as Lender may determine in its sole and absolute discretion. 
Section 11.3.    Right to Cure Defaults
Upon the occurrence and during the continuance of an Event of Default, Lender may, but without any obligation to do so and without notice to or demand on Borrower and without releasing Borrower from any obligation hereunder, make any payment or do any act required of Borrower hereunder in such manner and to such extent as Lender may deem necessary to protect the security hereof.  Lender is authorized to enter upon the Property for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in the Property for such purposes, and the cost and expense thereof (including reasonable attorneys’ fees to the extent permitted by law), with interest as provided in this Section 11.3, shall constitute a portion of the Debt and shall be due and payable to Lender upon demand.  All such costs and expenses incurred by Lender in remedying such Event of Default or such failed payment or act or in appearing in, defending, or bringing any action or proceeding shall bear interest at the Default Rate, for the period after notice from Lender that such cost or expense was incurred to the date of payment to Lender.  All such costs and expenses incurred by Lender together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Debt and be secured by the liens, claims and security interests provided to Lender under the Loan Documents and shall be immediately due and payable upon demand by Lender therefor.
ARTICLE 12     
INTENTIONALLY OMITTED

20752111.3.BUSINESS 
139






ARTICLE 13     
SECONDARY MARKET
Section 13.1.    Transfer of Loan
(a)    Lender may, at any time, sell, transfer or assign the Loan or any portion thereof or interest therein, or grant participations therein (“Participations”) or issue pass-through certificates or other securities (“Securities”) evidencing a beneficial interest in a rated or unrated public offering or private placement (each of the foregoing, a “Securitization”).  Borrower agrees that each participant hereunder shall be entitled to the benefits of Section 2.5(g) and Section 2.7 (subject to the requirements and limitations therein, including the requirements under Section 2.7(e) (it being understood that the documentation required under Section 2.7(e) shall be delivered to the participating Lender)) to the same extent as if it were Lender and had acquired its interest by assignment; provided that such participant shall not be entitled to receive any greater payment under Section 2.5(g) or Section 2.7, with respect to any Participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in any requirement of law that occurs after the participant acquired the applicable Participation.
(b)    Column Financial, Inc. (or a person delegated by Column Financial, Inc.), acting solely for this purpose as an agent of Borrower, shall maintain a register for the recordation of the names and addresses of the Lenders, and the principal amounts (and stated interest) of the Loan owing to each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and Borrower and Lender shall 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.  Failure to make any such recordation or any error in such recordation, however, shall not affect Borrower’s obligations in respect of the Loan.  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.
Section 13.2.    Delegation of Servicing
At the option of Lender, the Loan may be serviced by one or more servicers (each a, “Servicer”) selected by Lender and Lender may delegate all or any portion of its responsibilities under this Agreement and the other Loan Documents to such servicer or servicers pursuant to a servicing agreement between Lender and such servicer (a “Servicing Agreement”).  Borrower shall be responsible for any reasonable set-up fees or any other initial costs relating to or arising under the Servicing Agreement and neither Borrower nor any other Loan Party shall be responsible for payment of the regular monthly master servicing fee or trustee fee due to Servicer or the trustee under the Servicing Agreement or any fees or expenses required to be borne by Servicer.

20752111.3.BUSINESS 
140






Section 13.3.    Dissemination of Information
Lender may forward to each purchaser, transferee, assignee, or servicer of, and each participant, or investor in, the Loan, or any interest therein, or any Securities or any of their respective successors (collectively, the “Investor”) or any Rating Agency evaluating the Loan (and any other 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 other Person in anticipation of a Securitization) or any Securities, each prospective Investor, and any organization maintaining databases on the underwriting and performance of commercial loans, all documents and information which Lender now has or may hereafter acquire relating to the Debt and to Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mortgage Borrower, any managing member or general partner thereof, Guarantor, Ashford, Operating Lessee, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Mortgage Borrower SPE Component Entity, any SPE Component Entity (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement), the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral and the Properties, including financial statements, whether furnished by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower or otherwise, as Lender determines necessary or desirable.  Borrower irrevocably waives any and all rights it may have under applicable Legal Requirements to prohibit such disclosure, including but not limited to any right of privacy.
Section 13.4.    Cooperation
Subject to the terms of Section 13.8 hereof, at the request of the holder of the Note and, to the extent not already required to be provided by Borrower under this Agreement, Borrower shall (and shall cause Mortgage Borrower, Mezzanine B Borrower and Mezzanine A Borrower to) use reasonable efforts to provide information not in the possession of the holder of the Note in order to satisfy the market standards to which the holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Securitization, including, without limitation, to:
(g)    provide updated financial, budget and other information with respect to the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Properties, Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, any SPE Component Entity (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement), Mortgage Borrower SPE Component Entity and Guarantor and provide modifications and/or updates to the appraisals, market studies, environmental reviews and reports (Phase I reports and, if appropriate, Phase II reports) and engineering reports of the Properties obtained in connection with the making of the Loan (all of the foregoing being referred to as the “Provided Information”), together, if customary, with appropriate verification and/or consents of 

20752111.3.BUSINESS 
141






the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;
(h)    make changes to the special purpose entity provisions of the organizational documents of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, any SPE Component Entity (as defined in this Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement), Mortgage Borrower SPE Component Entity and their respective principals;
(i)    cause counsel to render or update existing opinion letters as to enforceability and non-consolidation, which may be relied upon by the holder of the Note, the Rating Agencies and their respective counsel, which shall be dated as of the closing date of the Securitization;
(j)    permit site inspections, appraisals, market studies and other due diligence investigations of the Properties, as may be reasonably requested by the holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Securitization;
(k)    make the representations and warranties with respect to the Properties, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Guarantor, Operating Lessee, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, and the Loan Documents as are made in the Loan Documents and such other representations and warranties as may be reasonably requested by the holder of the Note or the Rating Agencies;
(l)    execute (and cause Additional Pledgor, Operating Lessee, HHSD and Guarantor, as applicable, to execute) such amendments to the Loan Documents as may be requested by the holder of the Note or the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a pari passu or senior/subordinate note structure or reallocate the principal balances and interest rates of the Loan and the Other Mezzanine Loans amongst each other (a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity, the aggregate principal balance of the Loan or the amortization of principal as set forth herein or in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, principal balances and amortization schedules on the components/notes, but which components shall have the same weighted average interest rate as the original Note prior to the Loan Bifurcation as well as the same aggregate principal balance and weighted amortization schedule except following an Event of Default or following any prepayment (whether resulting from the application of Net Proceeds after a Casualty or Condemnation or otherwise) of the Loan which is not made on a pro rata basis with the Mortgage Loan and each Other Mezzanine Loan (including the New Mezzanine Loan) in accordance with this Agreement, the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, (ii) modify or amend any other economic 

20752111.3.BUSINESS 
142






term of the Loan, or (iii) otherwise increase the obligations or decrease the rights of Borrower under the Loan Documents;
(m)    deliver to Lender and/or any Rating Agency, (i) one or more certificates executed by an officer of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Operating Lessee, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, HHSD or Guarantor, as applicable, certifying as to the accuracy, as of the closing date of the Securitization, of all representations made by Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, Operating Lessee, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, HHSD or Guarantor, as applicable, in the Loan Documents to which it is a party as of the Closing Date in all relevant jurisdictions or, if such representations are no longer accurate, certifying as to what modifications to the representations would be required to make such representations accurate as of the closing date of the Securitization, and (ii) certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, Additional Pledgor, HHSD and Guarantor as of the date of the closing date of the Securitization;
(n)    have reasonably appropriate personnel (including senior management of Borrower) participate in a bank meeting and/or presentation for the Rating Agencies or Investors;
(o)    cooperate with and assist Lender in obtaining ratings of the Securities from two (2) or more of the Rating Agencies;
(p)    supply to Lender such documentation, financial statements and reports in form and substance required for Lender to comply with Regulations S-X and AB of the federal securities laws, if applicable; and
(q)    Upon Lender’s modification of the Selected Day or Payment Date pursuant to the terms of Section 2.4(e) above, Borrower shall promptly deliver to Lender such modifications to the Interest Rate Cap Agreement and the Collateral Assignment of Interest Rate Cap reasonably required by Lender as result of such designation.
Other than cost and expenses of attorneys engaged by Borrower or its Affiliates, Borrower shall not be obligated to incur any material cost or expense in connection with complying with requests made under this Section 13.4.
Section 13.5.    Securitization
(g)    Borrower understands that certain of the Provided Information may be included in disclosure documents in connection with the Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the 

20752111.3.BUSINESS 
143






Securities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization.  In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(h)    Borrower agrees to provide, and to cause Guarantor, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor and Operating Lessee to provide, in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral and/or the Properties) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) certifying that Borrower, Additional Pledgor and Guarantor have examined the following portions (it being acknowledged and agreed that Lender shall highlight such portions of any document referenced in clauses (i) and (ii) above or any other document that Borrower, Additional Pledgor and Guarantor will be reviewing and covering in its indemnification certificate pursuant to this Section) of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties, the Collateral, the Mezzanine A Collateral and/or the Mezzanine B Collateral), as applicable, including without limitation, the sections entitled “Description of the Properties”, “Description of the Collateral”, “Description of the Mezzanine A Collateral” and “Description of the Mezzanine B Collateral” or similar sections (including any schedules, exhibits or annexes but excluding any financial projections of Lender or any other Person (other than Borrower, Guarantor or their respective Affiliates) and any financial summaries from any third party sources), and all sections relating to Borrower, Other Mezzanine Borrowers, Mortgage Borrower, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, HHSD, Guarantor, Franchisor, Manager, Affiliates of the foregoing, comfort letters, Management Agreements, Franchise Agreements, the Properties, the Operating Leases, the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, the Ground Leases and the Condominium Documents and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) certifying that Mortgage Borrower, Operating Lessee, HHSD and Guarantor have examined the following portions (it being acknowledged and agreed that Lender shall highlight such portions of any document referenced in clauses (i) and (ii) above or any other document that Mortgage Borrower, Operating Lessee, HHSD and Guarantor will be reviewing and covering in its indemnification certificate pursuant to this Section) of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties, the Collateral, the Mezzanine A Collateral and/or the Mezzanine B Collateral), as applicable, including without 

20752111.3.BUSINESS 
144






limitation, the sections entitled “Description of the Properties”, “Description of the Collateral”, “Description of the Mezzanine A Collateral” and “Description of the Mezzanine B Collateral” or similar sections (including any schedules, exhibits or annexes but excluding any financial projections of Lender or any other Person (other than Borrower, Guarantor or their respective Affiliates) and any financial summaries from any third party sources), and all sections relating to Borrower, Other Mezzanine Borrowers, Mortgage Borrower, HHSD, Additional Pledgor (as defined in this Agreement and each Other Mezzanine Loan Agreement), Operating Lessee, Guarantor, Franchisor, Manager, Affiliates of the foregoing, comfort letters, Management Agreements, Franchise Agreements, the Properties, the Operating Leases, the Mezzanine A Collateral, the Mezzanine B Collateral, the Ground Leases and the Condominium Documents and any risks or special considerations relating thereto, and that, to the best of Mortgage Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (C) certifying that Mezzanine A Borrower, Mezzanine A Additional Pledgor and Guarantor have examined the following highlighted portions (it being acknowledged and agreed that Lender shall highlight such portions of any document referenced in clauses (i) and (ii) above or any other document that Mezzanine A Borrower, Mezzanine A Additional Pledgor and Guarantor will be reviewing and covering in its indemnification certificate pursuant to this Section) of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties, the Collateral, the Mezzanine A Collateral and/or the Mezzanine B Collateral), as applicable, including without limitation, the sections entitled “Description of the Properties”, “Description of the Collateral”, “Description of the Mezzanine A Collateral” and “Description of the Mezzanine B Collateral” or similar sections (including any schedules, exhibits or annexes but excluding any financial projections of Lender or any other Person (other than Borrower, Guarantor or their respective Affiliates) and any financial summaries from any third party sources), and all sections relating to Borrower, Other Mezzanine Borrowers, Mortgage Borrower, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, Guarantor, Franchisor, Manager, Affiliates of the foregoing, comfort letters, Management Agreements, Franchise Agreements, the Properties, the Operating Leases, the Mezzanine A Collateral, the Mezzanine B Collateral, the Ground Leases and the Condominium Documents and any risks or special considerations relating thereto, and that, to the best of Mortgage Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (D) certifying that Mezzanine B Borrower, Mezzanine B Additional Pledgor and Guarantor have examined the following highlighted portions (it being acknowledged and agreed that Lender shall highlight such portions of any document referenced in clauses (i) and (ii) above or any other document that Mezzanine B Borrower, Mezzanine B Additional Pledgor and Guarantor will be reviewing and covering in its indemnification certificate pursuant to this Section) of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties, the Collateral, the Mezzanine A Collateral 

20752111.3.BUSINESS 
145






and/or the Mezzanine B Collateral), as applicable, including without limitation, the sections entitled “Description of the Properties”, “Description of the Collateral”, “Description of the Mezzanine A Collateral” and “Description of the Mezzanine B Collateral” or similar sections (including any schedules, exhibits or annexes but excluding any financial projections of Lender or any other Person (other than Borrower, Guarantor or their respective Affiliates) and any financial summaries from any third party sources), and all sections relating to Borrower, Other Mezzanine Borrowers, Mortgage Borrower, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Operating Lessee, Guarantor, Franchisor, Manager, Affiliates of the foregoing, comfort letters, Management Agreements, Franchise Agreements, the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral, the Ground Leases and the Condominium Documents and any risks or special considerations relating thereto, and that, to the best of Mortgage Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (E) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors), Credit Suisse Securities (USA) LLC and its successors in interest (“Credit Suisse”), and the Affiliate of Lender or Credit Suisse that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Issuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, the Mezzanine A Collateral, the Properties and/or the Mezzanine B Collateral) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, the Mezzanine A Collateral, the Properties and/or the Mezzanine B Collateral) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, the Properties, the Mezzanine A Collateral and/or the Mezzanine B Collateral) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (F) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (E) or (F) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity (only to the extent that Borrower was provided an 

20752111.3.BUSINESS 
146






opportunity to review and notified Lender that such statement or omission was not in conformity with information furnished to Lender) with information furnished to Lender or any member of the Issuer Group or  Underwriter Group by or on behalf of Borrower, Mortgage Borrower, Guarantor or any other Loan Party in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral or the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor or any other Loan Party, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral and the Properties.  This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor and any other Loan Party may otherwise have.  Moreover, the indemnification provided for in clause (E) above shall be effective whether or not an indemnification certificate described in (A), (B), (C) and (D) above is provided and shall be applicable based on information previously provided by Borrower, Mezzanine A Borrower, Mezzanine B Borrower Mortgage Borrower, Guarantor or their Affiliates if Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Guarantor do not provide the indemnification certificate.  
(i)    In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in light of the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(j)    Promptly after receipt by an indemnified party under this Section 13.5 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 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission 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 hereunder except to the extent that failure to notify causes prejudice to the indemnifying party.  In the event that 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 under this Section 13.5 the indemnifying party shall be responsible for any 

20752111.3.BUSINESS 
147






reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; 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, 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 or parties.  The indemnifying party shall not be liable for the expenses of more than one such 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 another indemnified party.
(k)    In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages or 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 indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which 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.
(l)    Borrower shall, and shall cause Guarantor to, indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of 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 the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
(m)    All reasonable costs and expenses incurred by Borrower (other than all attorneys’ fees and costs incurred by Borrower or its Affiliates) or Lender in connection with this Section 13.5 shall be paid by Lender.

20752111.3.BUSINESS 
148






(n)    The liabilities and obligations of Borrower and Lender under this Section 13.5 shall survive the satisfaction of this Agreement and the satisfaction and discharge of the Debt.
Section 13.6.    Regulation AB Obligor Information
(f)    If, at the time one or more Disclosure Documents are being prepared for a securitization, Lender expects that Borrower alone or Borrower and one or more affiliates of Borrower collectively, or the Collateral or any portion of the Collateral, the Mezzanine A Collateral or any portion of the Mezzanine A Collateral, the Mezzanine B Collateral or any portion of the Mezzanine B Collateral or the Properties alone or the Properties and any other parcel(s) of real property, together with improvements thereon and personal property related thereto, that is “related”, within the meaning of the definition of Significant Obligor (as defined in Item 1101(k) of Regulation AB), to the Properties (a “Related Property”) collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB and meeting the requirements thereof, if Lender expects that the principal amount of the Loan, together with any loans made to an affiliate of Borrower or secured by a Related Property that is included in a securitization with the Loan (a “Related Loan”), as of the cut-off date for such securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such securitization and at any time during which the Loan and any Related Loans are included in a securitization does, 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, as applicable, in the securitization or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB and meeting the requirements thereof, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such securitization and at any time during which the Loan and any Related Loans are included in a securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the securitization.  Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the securitization (an “Exchange Act Filing”) is not required.
(g)    If requested by Lender, Borrower shall furnish, or shall cause the applicable tenant to furnish, to Lender financial data and/or financial statements in accordance with Regulation AB for any tenant of any Individual Property if, in connection with a securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the loans included or expected to be included, as applicable, in such securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor; provided, however, that 

20752111.3.BUSINESS 
149






in the event the related lease does not require the related tenant to provide the foregoing information, Borrower shall use commercially reasonable efforts to cause the applicable tenant to furnish such information.
(h)    Notwithstanding anything contained herein to the contrary, the provisions regarding the delivery of REMIC Opinions will only apply if all or any portion of the Loan has been securitized.  
Section 13.7.    Other Regulation AB Information
In addition to, and notwithstanding anything to the contrary in the foregoing provisions of, this Article 13, in the event Lender reasonably determines, in connection with a Securitization, that financial statements and financial data required in order to comply with Regulation AB or any amendment, modification or replacement thereto or any other requirement of law applicable to the Securitization (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), Lender may request, and Borrower shall promptly provide, such other financial statements and financial data as Lender reasonably determines to be necessary or appropriate for such compliance.  Without limiting the generality of the foregoing, if reasonably requested by the holder of the Note, Borrower shall promptly provide the holder of the Note with any financial statements or financial, statistical, operating or other information as the holder of the Note shall reasonably determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or any other requirement of law applicable to the Securitization in connection with any Disclosure Document, any filing under the Exchange Act or any report that is required to be made available to holders of the Securities under Regulation AB or other requirement of law or as shall otherwise be reasonably requested by the holder of the Note.
Section 13.8.    Mezzanine Option.  Borrower acknowledges and agrees that Mortgage Lender shall have the option set forth in Section 13.8 of the Mortgage Loan Agreement, Mezzanine A Lender shall have the option set forth in Section 13.8 of the Mezzanine A Loan Agreement and Mezzanine B Lender shall have the option set forth in Section 13.8 of the Mezzanine B Loan Agreement. Borrower shall cooperate with Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Lender in Mortgage Lender’s, Mezzanine B Lender’s and/or Mezzanine A Lender’s exercise, from time to time, of any and all such options in good faith and in a timely manner, which cooperation shall include, but not be limited to, cooperating with respect to all of the actions and items specified and/or referenced in Section 13.8 of the Mortgage Loan Agreement, Section 13 of the Mezzanine A Loan Agreement and Section 13 of the Mezzanine B Loan Agreement (subject to the limitations set forth therein, mutatis mutandis). Lender, without in any way limiting Lender’s other rights hereunder, shall have the one-time unilateral right, in its sole and absolute discretion, to require Borrower to divide the Loan into two mezzanine loans (the “(the “Mezzanine Option”) for which different interest rates and debt service payments may be established for each loan in such order of priority as may be designated by Lender; 

20752111.3.BUSINESS 
150






provided, that (i) the total amounts for such mezzanine loans shall equal the amount of the Loan immediately prior to the restructuring, (ii) the weighted average interest rate of such mezzanine loans shall on the date created equal the interest rate which was applicable to the Loan immediately prior to the restructuring except following an Event of Default or following any prepayment (whether resulting from the application of Net Proceeds after a Casualty or Condemnation or otherwise) of the Loan which is not made on a pro rata basis with the Mortgage Loan and each Other Mezzanine Loan (including the New Mezzanine Loan) in accordance with this Agreement, the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, (iii) the debt service payments on the two mezzanine loans shall on the date created equal the debt service payment which was due under the Loan immediately prior to the restructuring; and provided further that any such restructuring carried out after the closing of the Loan shall be at no material cost to Borrower and (iv) the Allocated Loan Amounts shall be allocated between such mezzanine loans on a pro rata basis.  Borrower shall cooperate with all reasonable requests of Lender in order to restructure the Loan and create the two mezzanine loans and shall (A) execute and deliver (1) such documents including, without limitation, in the case of the new mezzanine loan, a mezzanine note, a mezzanine loan agreement, a pledge and security agreement and a mezzanine deposit account agreement, and (2) such amendments to the Loan Documents and organizational documents, (B) cause Borrower’s counsel to deliver such legal opinions, (C) create such bankruptcy remote borrower (the “New Mezzanine Borrower”), which such New Mezzanine Borrower shall own, directly or indirectly, 100% of the equity ownership interests in Mezzanine B Borrower (the “Equity Collateral”), and (D) create such bankruptcy remote additional pledgor (the “New Additional Pledgor”), which such New Additional Pledgor shall own, directly or indirectly, 100% of the equity ownership interests in Mezzanine B Additional Pledgor, and, in the case of each of (A), (B), (C) and (D) above, as shall be reasonably required by Lender and required by any Rating Agency in connection therewith, all in form and substance reasonably satisfactory to Lender and satisfactory to any such Rating Agency, including the severance of this Agreement, the Pledge Agreement and other Loan Documents if requested.  In the event such documents are in a form reasonably acceptable to Borrower and Borrower fails to execute and deliver such documents to Lender within ten (10) Business Days following such request by Lender, Borrower 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 ratifying all that such attorney shall do by virtue thereof.  It shall be an Event of Default if Borrower fails to comply with any of the terms, covenants or conditions of this Section 13.8 after the expiration of ten (10) Business Days after notice thereof. Borrower shall be required to pay the costs and expenses of its own legal counsel in complying with the terms of this Section 13.8. 
Section 13.9.    Uncross of Properties.  If pursuant to Section 13.9 of the Mortgage Loan Agreement any Affected Property (as defined in the Mortgage Loan Agreement) is uncrossed from the Mortgage Loan with the consent of Mortgage Lender 

20752111.3.BUSINESS 
151






as required thereunder (a “Property Uncross”), Borrower shall reasonably cooperate with Lender in connection with any corresponding uncrossing or severing of a pro rata portion of the Loan and/or such other modifications to the Loan as Lender may reasonably require in connection with any Property Uncross. In no event shall Borrower be obligated in connection with a Property Uncross to satisfy any requirement of the Rating Agencies or enter into any amendment or modification of the Loan Documents which would, in the aggregate, increase any monetary or other material obligation of Borrower under the Loan Documents. Lender shall cause all reasonable costs and expenses (other than attorneys’ fees and costs incurred by Borrower and its Affiliates) incurred by Borrower in connection with this Section 13.9 to be paid by Lender. 
Section 13.10.    Intercreditor Agreement
(c)    Lender, Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Mezzanine D Lender are parties to a certain intercreditor agreement dated as of the date hereof (the “Intercreditor Agreement”) memorializing their relative rights and obligations with respect to the Loan, the Mortgage Loan, the Mezzanine A Loan, the Mezzanine B Loan, the Mezzanine D Loan, Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine D Borrower and the Properties.  Mortgage Borrower, Borrower and each Other Mezzanine Borrower hereby acknowledge and agree that (i) such Intercreditor Agreement is intended solely for the benefit of Lender, Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Mezzanine D Lender and (ii) Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower and Mezzanine D Borrower are not 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, Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Mezzanine D 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.
(d)    In the event Lender is required pursuant to the terms of the Intercreditor Agreement to pay over any payment or distribution of assets, whether in cash, property or securities which is applied to the Debt, including, without limitation, any proceeds of the Property previously received by Lender on account of the Loan to the Mortgage Lender, then Borrower agrees to indemnify Lender for any amounts so paid, and any amount so paid shall continue to be owing pursuant to the Loan Documents as part of the Debt notwithstanding the prior receipt of such payment by Lender.
ARTICLE 14     
INDEMNIFICATIONS
Section 14.1.    General Indemnification. Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly 

20752111.3.BUSINESS 
152






arising out of or in any way relating to any one or more of the following: (a) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Properties or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (b) any use, nonuse or condition in, on or about the Properties or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (c) performance of any labor or services or the furnishing of any materials or other property in respect of the Properties or any part thereof; (d) any failure of the Properties to be in compliance with any Legal Requirements; (e) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease or Ground Lease; (f) the holding or investing of the Mortgage Loan Reserve Accounts or the Cash Management Account or the performance of the Required Work, (g) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the Loan; or (h) any failure to pay recordation taxes, documentary stamp taxes, intangible personal property taxes or other costs and expenses as set forth in Section 17.2 hereof (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that such Indemnified Liabilities arise (1) from the gross negligence, illegal acts, fraud or willful misconduct of Lender or (2) with respect to an act and event first occurring or arising (I) after the date Mortgage Borrower no longer owned fee (or leasehold, as applicable) title to the Properties as a result of a foreclosure or deed-in-lieu of foreclosure of the Mortgage Loan or (II) following a foreclosure or assignment-in-lieu of the Loan or an Other Mezzanine Loan, except to the extent that such acts or events are the proximate result of acts or events that existed prior to the date of such transfer, whether or not discovered prior or subsequent to the date of such transfer or were caused by Guarantor or any of its Affiliates; provided that Borrower shall bear the burden of proof to show that the event triggering liability hereunder first occurred after such transfer of ownership, was not the proximate result of events that first occurred prior to such transfer or ownership and was not caused by Guarantor or any of its Affiliates. 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 Legal Requirements to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties.
Section 14.2.    Mortgage and Intangible Tax Indemnification
Borrower shall pay and, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to, any tax on or with respect to the making and/or recording of the Pledge Agreement, the UCC Financing Statement, the Note or any of the other Loan Documents, but excluding any income, franchise or other similar taxes.

20752111.3.BUSINESS 
153






Section 14.3.    ERISA Indemnification
Borrower shall, at its sole cost and expense, protect, defend, indemnify, release and hold harmless the Indemnified Parties from and against any and all Losses (including, without limitation, reasonable attorneys’ fees and costs incurred in the investigation, defense, and settlement of Losses incurred in correcting any prohibited transaction or in the sale of a prohibited loan, and in obtaining any individual prohibited transaction exemption under ERISA that may be required, in Lender’s sole discretion) that the Indemnified Parties may incur, directly or indirectly, as a result of a default under Section 4.9 or Section 5.18 of this Agreement.
Section 14.4.    Survival
The obligations and liabilities of Borrower under this Article 14 shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of an assignment in lieu of foreclosure of the Pledge Agreement.
ARTICLE 15     
EXCULPATION
Section 15.1.    Exculpation
(g)    Except as otherwise provided herein or in the other Loan Documents, Lender shall not enforce the liability and obligation of Borrower to perform and observe the obligations contained herein or in the other Loan Documents by any action or proceeding wherein a money judgment shall be sought against (1) Borrower (except as set forth in this Section 15.1 and the Environmental Indemnity), (2) Guarantor (except as set forth in the Guaranty, the PIP Guaranty and the Environmental Indemnity), (3) any Affiliate of Borrower, Mortgage Borrower, Mezzanine B Borrower or Mezzanine A Borrower, (4) any Person owning, directly or indirectly, any legal or beneficial interest in Borrower or any Affiliate of Borrower or (5) any direct or indirect limited partner, member, principal, officer, beneficiary, trustee, advisor, employee, agent, shareholder, Affiliate or director of any Persons described in clauses (1) through (5) above (collectively, subject to the exceptions in clauses (i) and (ii) below, the “Exculpated Parties”), except that Lender may bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Lender to enforce and realize upon this Agreement, the Note, the Pledge Agreement and the other Loan Documents, and the interest in the Collateral and any other collateral given to Lender created by this Agreement, the Note, the Pledge Agreement and the other Loan Documents; provided, however, that any judgment in any such action or proceeding shall be enforceable against Borrower, only to the extent of Borrower’s interest in the Collateral and in any other collateral given to Lender.  Lender, by accepting this Agreement, the Note, the Pledge Agreement and the other Loan Documents, agrees that it shall not, except as otherwise provided in this Section 15.1, sue for, seek or demand any deficiency judgment against any Exculpated Party in any such action or proceeding, under or by reason of or under or in connection with this Agreement, the Note, the Pledge Agreement 

20752111.3.BUSINESS 
154






or the other Loan Documents.  The provisions of this Section 15.1 shall not, however, (i) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note, the Pledge Agreement or the other Loan Documents; (ii) impair the right of Lender to name Borrower or Additional Pledgor as a party defendant in any action or suit for foreclosure and sale under this Agreement and the Pledge Agreement; (iii) affect the validity or enforceability of any indemnity (including, without limitation, those contained in Article 14 of this Agreement and the Environmental Indemnity), guaranty, master lease or similar instrument made in connection with this Agreement, the Note, the Pledge Agreement and the other Loan Documents; (iv) impair the right of Lender to obtain the appointment of a receiver; (v) impair the enforcement of the provisions contained in the Pledge Agreement; or (vi) impair the right of Lender to obtain a deficiency judgment or other judgment on the Note against Borrower if necessary to obtain any Net Liquidation Proceeds After Debt Service to which Lender would otherwise be entitled under this Agreement; provided, however, Lender shall only enforce such judgment to the extent of the Insurance Proceeds and/or Awards.
(h)    Notwithstanding the provisions of this Section 15.1 to the contrary, Borrower shall be personally liable to Lender for Losses due to:
(i)    fraud or intentional misrepresentation by any Loan Party or any Affiliate of any of the foregoing in connection with the execution and the delivery of this Agreement, the Note, the Pledge Agreement, any of the other Loan Documents, or any certificate, report, financial statement or other instrument or document furnished to Lender at the time of the closing of the Loan or during the term of the Loan;
(ii)    the gross negligence or willful misconduct of an Exculpated Party;
(iii)    Remington’s or any Exculpated Party’s misapplication or misappropriation of Rents or Net Liquidation Proceeds After Debt Service or any distributions or other payments with respect thereto in violation of this Agreement;
(iv)    any Exculpated Party’s misapplication or misappropriation of tenant security deposits (including the failure to deliver to Lender or Mortgage Lender, as applicable, tenant security deposits upon foreclosure or deed in lieu thereof, to the extent not applied in accordance with the applicable Leases prior to the occurrence of an Event of Default) or Rents collected in advance;
(v)    the misapplication or the misappropriation of Insurance Proceeds or Awards by any Exculpated Party;
(vi)    Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s failure to pay Property Taxes, Ground Rent, Insurance, Other Charges and/or Condominium Charges (provided that (1), in each case, there shall be no liability hereunder to the extent that (A) sums sufficient to pay such amounts have been deposited in escrow with Lender, 

20752111.3.BUSINESS 
155






Mezzanine A Lender, Mezzanine B Lender or Mortgage Lender, as applicable, pursuant to the terms hereof, the Mezzanine A Loan Documents, the Mezzanine B Loan Documents or the Mortgage Loan Documents, as applicable, and none of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower has made a claim against such escrowed amounts or otherwise taken action to restrict Lender, Mezzanine A Lender, Mezzanine B Lender or Mortgage Lender, as applicable, from applying such sums for the purpose of paying such items) or (B) there is insufficient cash flow from the operation of the Properties to pay such items and (2) there shall be no liability for Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgagor Borrower’s failure to pay Condominium Charges unless such failure results in a Lien that is equal to or superior in priority to the Mortgage), charges for labor or materials or other charges that can create liens on any Individual Property beyond any applicable notice and cure periods specified herein;
(vii)    Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s failure to return or to reimburse Lender for all Personal Property (whether owned by Mortgage Borrower or Operating Lessee) taken from any Individual Property by or on behalf of Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mortgage Borrower, HHSD, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor or Operating Lessee and not replaced with Personal Property of the same utility and of the same or greater value;
(viii)    intentional physical waste to any Individual Property caused by the intentional acts or omissions of any Exculpated Party when there is sufficient cash flow from the operation of any Individual Property to avoid such waste from occurring;
(ix)    failure to purchase or replace (as applicable) any Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable), in each case, as and when required by the terms hereof;
(x)    Borrower’s, Mezzanine A Borrower’s, Mezzanine B Borrower’s or Mortgage Borrower’s assertion or raising of any defense to a proceeding instituted by Lender (whether judicial or otherwise) for the foreclosure of the Pledge Agreement or the Collateral following an Event of Default caused by Borrower’s failure to timely pay the Monthly Payment Amount or the Debt due on the Maturity Date, which defense is determined by a court of competent jurisdiction to be without merit, frivolous or brought in bad faith;
(xi)    Borrower’s failure to cause Mortgage Borrower to pay to Mortgage Lender any deposit (including, without limitation, each PIP Required Deposit) as and when required pursuant to the terms hereof and Section 9.9 of the Mortgage Loan Agreement, the Mezzanine B Loan Agreement and the Mezzanine A Loan Agreement;
(xii)    the breach of any representation, warranty or covenant of (i) any Borrower with respect to itself or any SPE Component Entity set forth (A) in Article 6 hereof (other than Section 6.1(a)(xv) and (xviii)) or (B) in any Recycled SPE Certificate delivered by such Person, (ii) Additional Pledgor with respect to itself as set forth (A) in Section 4(m) of the Pledge Agreement 

20752111.3.BUSINESS 
156






(other than Section 4(m)(15) and (18) thereof) or (B) any Recycled SPE Certificate delivered by such Person or (iii) Operating Lessee with respect to itself as set forth in Paragraph 16 of the Operating Lease Subordination Agreement (other than with respect to Paragraphs 16(xv) and (xviii); 
(xiii)    any violation or breach of any indemnifications set forth in Sections 13.5(b), (c), (d), (e) and (f) hereof or Section 14.1(g) hereof; 
(xiv)    Mortgage Borrower’s prior ownership of the Previously-Owned Property; 
(xv)    with respect to the Individual Property commonly known as the Sugar Land Marriott Town Square Hotel and Conference Center and located in Sugar Land, Texas, failure of Borrower to (a) deliver (or to cause to be delivered) to the ground lessor under the related Ground Lease audited financial statements or (b) maintain (or cause to be maintained) the ARR Subaccount 1 and ARR Subaccount 2 (each as defined in the related Ground Lease), in each case, pursuant to and in accordance with the terms of the related Ground Lease; 
(xvi)    with respect to the Individual Property commonly known as the Crowne Plaza Ravinia and located in Atlanta, Georgia, any amounts paid by Lender to the related Franchisor to reimburse such Franchisor for advertising assistance provided to Mortgage Borrower pursuant to the terms of the related Franchise Agreement; 
(xvii)    with respect to the Individual Properties commonly known as the Ritz-Carlton Atlanta Downtown, Renaissance Palm Springs and Courtyard Savannah, any amounts paid by Lender to the related Manager in respect of unreimbursed or unamortized key money in connection with the termination of such Manager under the related Management Agreement; or
(xviii)    Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Mezzanine B Additional Pledgor, Mezzanine A Additional Pledgor or Additional Pledgor making a distribution (other than deemed distributions caused by Mortgage Lender pursuant to and in accordance with the terms of the Cash Management Agreement and Article 10 of the Mortgage Loan Agreement) to its direct or indirect legal and beneficial owners after the occurrence and during the continuance of an Event of Default in violation of this Agreement and the other Loan Documents. 
(i)    Notwithstanding the foregoing, the agreement of Lender not to pursue recourse liability as set forth in subsection (a) above SHALL BECOME NULL AND VOID and shall be of no further force and effect and the Debt shall be fully recourse to Borrower in the event (i) of a breach by any Recourse Entity of any of the covenants set forth in Article 6 hereof, Paragraph 16 of the Operating Lease Subordination Agreement or Section 4 of the Pledge Agreement and any Recycled SPE Certificate, as applicable, that is cited as a factor in a court’s decision that results in a substantive consolidation (other than a substantive consolidation petitioned for or joined in by Lender) of such Recourse Entity with any other Person (excluding another Borrower, SPE Component Entity or Additional Pledgor) in a proceeding under any Creditors’ Rights Laws, (ii) 

20752111.3.BUSINESS 
157






any Recourse Entity incurs any voluntary Indebtedness other than the Debt and Permitted Debt (excluding Indebtedness relating to mechanic’s or other similar liens, such as statutory liens, judgment liens or lis pendens) without the prior written consent of Lender or except as expressly permitted in this Agreement, (iii) of the occurrence of a Prohibited Transfer (excluding (A) a foreclosure of the Collateral or assignment in lieu of foreclosure of the Collateral, (B) a foreclosure of the Other Mezzanine Collateral or assignment in lieu of foreclosure of the Other Mezzanine Collateral or (C) a foreclosure of the Property or deed in lieu of foreclosure of the Property, provided that Borrower has provided (or caused to be provided) Lender with at least ninety (90) days prior written notice of Mortgage Borrower’s good faith intention to deliver a deed in lieu of foreclosure or consensual sale of the Property) or any encumbrance on any Property (other than Permitted Encumbrances), (iv) the Properties or any part thereof or the Collateral or any part thereof or the Mezzanine A Collateral or any part thereof or the Mezzanine B Collateral or any part thereof shall become an asset in a bankruptcy or insolvency proceeding initiated by any Recourse Entity, (v) any Recourse Entity, Guarantor or any Affiliate, officer, director, or representative which Controls, directly or indirectly, any Recourse Entity or Guarantor files, or joins in the filing of, a voluntary or an involuntary petition against any Recourse Entity under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for the filing of any involuntary petition against any Recourse Entity from any Person under any Creditors Rights Laws; (vi) any Recourse Entity files an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under any Creditors Rights Laws, or solicits or causes to be solicited petitioning creditors for any involuntary petition from any Person; (vii) other than with the written consent of Lender, any Affiliate, officer, director, or representative which Controls any Recourse Entity consents to or acquiesces in or joins in an application for the appointment of a custodian, receiver, trustee, or examiner for such Recourse Entity or any portion of the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral; (viii) any amendment or modification of the Ground Lease in violation of the terms hereof which would reasonably be expected to have or does have a Material Adverse Effect, or (ix) any cancellation or termination of the Ground Lease, or the surrender of the leasehold estate thereunder in violation of the terms hereof; provided, however, Borrower’s liability pursuant to Section 15.1(c)(viii) and (ix) shall be limited to an amount equal to one hundred and twenty percent (120%) of the Allocated Loan Amount attributable to the applicable Property. 
(j)    Nothing herein shall be deemed to be a waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provision of the U.S. Bankruptcy Code to file a claim for the full amount of the indebtedness secured by the Pledge Agreement or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with this Agreement, the Note, the Pledge Agreement or the other Loan Documents.
(k)    Notwithstanding anything to the contrary in this Section 15.1 or any Loan Document to the contrary, Borrower and Guarantor shall have no liability under this Section 15.1 to the extent such liability solely arises (i) as a result of an act or omission of (1) Mortgage Lender or a third-party purchaser following Mortgage Lender or such third-party taking title to the Properties pursuant to a foreclosure, deed-in-lieu of foreclosure or otherwise or (2) a court appointed receiver 

20752111.3.BUSINESS 
158






after such receiver takes control of the day-to-day operations of the Properties or (ii) as a result of an act or omission of Lender, Mezzanine A Lender, Mezzanine B Lender, Mezzanine D Lender, a third-party purchaser or any Affiliate or subsidiary of any of the foregoing following a foreclosure or an assignment-in-lieu of foreclosure of the Loan, the Mezzanine A Loan, the Mezzanine B Loan or the Mezzanine D Loan, unless in each case such act or omission was caused by any Exculpated Party (but only prior to such Exculpated Party becoming an Affiliate of Lender, the Mortgage Lender or an Other Mezzanine Lender or any purchaser at any foreclosure of the Loan, the Mortgage Loan or an Other Mezzanine Loan) or such acts or omissions are the proximate result of acts, events, conditions, or circumstances that existed prior to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, whether or not discovered prior or subsequent to the date of such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, provided however, Guarantor shall bear the burden of proof to show that an event triggering liability of Guarantor under the Guaranty first occurred after such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure, was not the proximate result of events that first occurred prior to such foreclosure, deed in lieu of foreclosure or assignment in lieu of foreclosure and was not caused by any Exculpated Party (but only prior to such Exculpated Party becoming an Affiliate of Lender, the Mortgage Lender or an Other Mezzanine Lender or any purchaser at any foreclosure of the Loan, the Mortgage Loan or an Other Mezzanine Loan) or their respective Affiliates.
ARTICLE 16     
NOTICES
Section 16.1.    Notices
All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested, (b) expedited prepaid overnight delivery service, either commercial or United States Postal Service, with proof of attempted delivery, or by (c) telecopier (with answer back acknowledged provided an additional notice is given pursuant to subsection (b) above), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section):
If to Lender:    Column Financial, Inc.
11 Madison Avenue 
New York, New York 10010 
Attention:  N. Dante LaRocca
Facsimile No.:  (646) 935-8520


With a copy to:        Dechert LLP
Cira Centre
2929 Arch Street

20752111.3.BUSINESS 
159






Philadelphia, Pennsylvania 19104
Attention:  David W. Forti, Esq.
Facsimile No.:  (215) 655-2647


If to Borrower:    c/o Ashford Hospitality Trust
14185 Dallas Parkway, Suite 1100
Dallas, Texas 75254
Attention: David Brooks
Facsimile No.: (972) 980-2705
With a copy to:    Gardere Wynne Sewell LLP
1601 Elm Street, Suite 3000
Dallas, Texas  75201
Attention: Cynthia Nelson, Esq.
Facsimile No.: (214) 999-3884
A notice shall be deemed to have been given:  in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery and telecopy, upon the first attempted delivery on a Business Day.
ARTICLE 17     
FURTHER ASSURANCES
Section 17.1.    Replacement Documents
Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record:  (i) with respect to any Loan Document other than the Note, Borrower will issue, in lieu thereof, a replacement of such other Loan Document, dated the date of such lost, stolen, destroyed or mutilated Loan Document in the same principal amount thereof and otherwise of like tenor and (ii) with respect to the Note, (a) Borrower will execute a reaffirmation of the Debt as evidenced by such Note acknowledging that Lender has informed Borrower that the Note was lost, stolen destroyed or mutilated and that such Debt continues to be an obligation and liability of Borrower as set forth in the Note, a copy of which shall be attached to such reaffirmation and (b) if requested by Lender, Borrower will execute a replacement note and Lender or Lender’s custodian (at Lender’s option) shall provide to Borrower Lender’s (or Lender’s custodian’s) then standard form of lost note affidavit (without indemnification), which such form shall be reasonably acceptable to Borrower.
Section 17.2.    Execution of Pledge Agreement
Upon the execution and delivery of the Pledge Agreement and thereafter, Borrower shall from time to time cause the Pledge Agreement and any of the other Loan Documents creating 

20752111.3.BUSINESS 
160






a lien or security interest or evidencing the lien hereof upon the Collateral and each instrument of further assurance to be filed, registered or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Collateral.  Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Pledge Agreement, the other Loan Documents, any note, any security instrument with respect to the Collateral and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Pledge Agreement or the Loan, any security instrument with respect to the Collateral or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.  Borrower hereby agrees that, in the event it is determined that any recordation taxes, documentary stamp taxes, intangible personal property taxes or other costs and expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, the Pledge Agreement, the other Loan Documents are due, Borrower shall indemnity and hold harmless the Indemnified Parties for any such recordation taxes, documentary stamp taxes, intangible personal property taxes or other costs and expenses, including all penalties and interest accessed or charged in connection therewith. 
Section 17.3.    Further Acts, etc.
Borrower will, at the cost of Borrower, and without expense to Lender, do, execute, acknowledge and deliver all and every further acts, assignments, security agreements, pledges, control agreements, notices of assignments, transfers and assurances as Lender shall, from time to time, reasonably require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender the property and rights hereby granted, bargained, sold, conveyed, confirmed, pledged, assigned, warranted and transferred or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Agreement and the Pledge Agreement, or for complying with all Legal Requirements.  Borrower, on demand, will execute and deliver, and in the event it shall fail to so execute and deliver, hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements and financing statement amendments to evidence more effectively, perfect and maintain the priority of the security interest of Lender in the Collateral.  Borrower grants to Lender an irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including without limitation, such rights and remedies available to Lender pursuant to this Section 17.3.
Section 17.4.    Changes in Tax, Debt, Credit and Documentary Stamp Laws
(a)    If any law is enacted or adopted or amended after the date of this Agreement which deducts the Debt from the value of any Collateral for the purpose of taxation or which imposes 

20752111.3.BUSINESS 
161






a tax, either directly or indirectly, on the Debt or Lender’s interest in the Collateral, Borrower will pay the tax, with interest and penalties thereon, if any.  If Lender is advised by counsel chosen by it that the payment of tax by Borrower would be unlawful or taxable to Lender or unenforceable or provide the basis for a defense of usury then Lender shall have the option by written notice of not less than one hundred twenty (120) days to declare the Debt immediately due and payable.
(b)    Borrower will not claim or demand or be entitled to any credit or credits on account of the Debt for any part of the Property Taxes or Other Charges assessed against an Individual Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of an Individual Property, or any part thereof, for real estate tax purposes by reason of the Pledge Agreement or the Debt.  If such claim, credit or deduction shall be required by law, Lender shall have the option, by written notice of not less than one hundred twenty (120) days, to declare the Debt immediately due and payable.
(c)    If at any time the United States of America, any State thereof or any subdivision of any such State shall require revenue or other stamps to be affixed to the Note, the Pledge Agreement, or any of the other Loan Documents or impose any other tax or charge on the same, Borrower will pay for the same, with interest and penalties thereon, if any.
Section 17.5.    Expenses
Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender (including, following a Securitization, the securitization trust, any servicer, trust advisor, trustee or certificate administrator) upon receipt of written notice from Lender for all reasonable out-of-pocket costs and expenses (including reasonable, actual attorneys’ fees and disbursements and all actual disbursements of internal counsel) reasonably incurred by Lender in accordance with this Agreement (all of which shall be deemed part of the Debt) in connection with (a) the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral); (b) Lender’s customary surveillance and actions to monitor Borrower’s ongoing performance of and compliance with Borrower’s respective 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, without limitation, confirming compliance with environmental and insurance requirements; (c) following a request by Borrower, Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (d) any prepayment, release of any Individual Property, the Mezzanine A Collateral, the Mezzanine B Collateral or the Collateral, assumption or modification of the Loan; (e) unless otherwise expressly provided herein, the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other 

20752111.3.BUSINESS 
162






documents or matters requested by Borrower or Lender; (f) unless otherwise expressly provided herein, securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement or other Loan Documents or with respect to the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral and the Collateral; (g) without duplication of costs and expenses incurred pursuant to clause (a) above, the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Lien in favor of Lender pursuant to this Agreement and the other Loan Documents; (h) 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, this Agreement, the other Loan Documents, the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral and the Collateral, or any other security given for the Loan; (i) any breach of the Loan Documents by Borrower, Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, HHSD, Operating Lessee, Additional Pledgor, Mezzanine A Additional Pledgor, Mezzanine B Additional Pledgor, Guarantor or any Affiliate of any of the foregoing; (j) the preservation or protection of the collateral (including, without limitation, taxes and insurance, property inspections and appraisals, legal fees and litigation expenses) following or resulting from an Event of Default under the Loan Documents; (k) enforcing any obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Properties, the Mezzanine A Collateral, the Mezzanine B Collateral and the Collateral 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; (l) any amounts charged by any Franchisor in connection with the preparation, negotiation, execution, and delivery of any comfort letter, new comfort letter or replacement comfort letter or (m) any other amounts required under Section 13.10 hereof; provided, however, that Borrower shall not 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.
In the event that Borrower takes any action or requests any consent or approval of Lender (including, following a Securitization, the securitization trust, any servicer, trust advisor, trustee or certificate administrator) under the provisions of this Agreement or any other Loan Document and the taking of such action by Borrower or the giving of such consent or approval by Lender is or may be conditioned upon the receipt of a Rating Agency Confirmation, or, in accordance with the terms of the transaction documents relating to a Securitization, a Rating Agency Confirmation is required in order for such action to be taken by Borrower or the consent of Lender to be given, or, following or resulting from a default by Borrower or the Loan becoming a specially serviced loan, a Rating Agency Confirmation is otherwise required in connection with the servicing of the Loan or the administration of the securitization trust, Borrower shall provide any indemnities required and, unless otherwise expressly provided herein, pay all of the out-of-pocket costs and expenses of Lender, Lender’s servicer and each Rating Agency in connection therewith (including reasonable attorneys’ fees and expenses), and, if applicable, shall pay any fees imposed by any Rating Agency as a condition to the delivery of such confirmation.



20752111.3.BUSINESS 
163






Section 17.6.    Cost of Enforcement
In the event (a) that the Pledge Agreement is foreclosed in whole or in part, (b) of the bankruptcy, insolvency, rehabilitation or other similar proceeding in respect of Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower or any of their respective constituent Persons or an assignment by Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower or any of their respective constituent Persons for the benefit of its creditors, or (c) Lender exercises any of its other remedies under this Agreement or any of the other Loan Documents, Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs, incurred by Lender or Borrower in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or use taxes, all of which shall be deemed part of the Debt.  In addition, Borrower shall be responsible for any fees and expenses of Lender or any securitization trust, servicer, special servicer, trust advisor, trustee, certificate administrator and any third-party fees and expenses, including, without limitation, attorneys’ fees and disbursements, incurred or arising as a result of or following a request by Borrower, an Event of Default, a failure to pay sums when due as and when required under the Loan Documents, the Loan being transferred to a special servicer and while the Loan is a specially serviced loan, including, without limitation, (i) interest on advances made by the servicer, special servicer, trustee or certificate administrator; (ii) special servicer fees, workout fees, liquidation fees, as well as other compensation payable to the special servicer as a result of any Individual Property becoming a foreclosed property; (iii) indemnification obligations to any such persons and any of their respective directors, officers, members, managers, partners, employees, agents, Affiliates or other “controlling persons” within the meaning of the Securities Act of 1933; and (iv) taxes payable from the assets of the securitization trust and tax related expenses, but only to the extent Borrower is otherwise required to pay the same under the Loan Documents or by law.  Notwithstanding the foregoing, all of such costs and expenses set forth in clauses (i) through (iv) of the preceding sentence shall exclude (x) the regular monthly fee due to the servicer, the trustee and the certificate administrator, (y) those costs and expenses which are identified pursuant to the servicing agreement with respect to such securitization trust as expenses to be borne by the servicer, special servicer, trust advisor, trustee or certificate administrator without reimbursement as an advance or otherwise from the securitization trust (including without limitation such person’s ordinary overhead expenses and the expenses of such person associated with maintaining a fidelity bond or errors and omissions insurance with respect to itself, preparing annual compliance statements with respect to its own performance and preparing and filing and maintaining ordinary tax information reports and returns for the securitization trust) and (z) those costs and expenses incurred as a result of the gross negligence or willful misconduct of the servicer, special servicer, trustee or certificate administrator.
Section 17.7.    Mortgage Loan Defaults
(a)    Without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, if there shall occur any default under the Mortgage Loan Documents or if Mortgage Lender asserts that Mortgage Borrower has 

20752111.3.BUSINESS 
164






defaulted in the performance or observance of any term, covenant or condition of the Mortgage Loan Documents (whether or not the same shall have continued beyond any applicable notice or grace periods, whether or not Mortgage Lender shall have delivered proper notice to Mortgage Borrower, and without regard to any other defenses or offset rights Mortgage Borrower may have against Mortgage Lender), Borrower hereby expressly agrees that Lender shall have the immediate right, without notice to or demand on Borrower, Mezzanine A Borrower, Mezzanine B Borrower or Mortgage Borrower, but shall be under no obligation: (i) to pay all or any part of the Mortgage Loan, and any other sums, that are then due and payable and to perform any act or take any action on behalf of Mortgage Borrower, as may be appropriate, to cause all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower to be performed or observed thereunder to be promptly performed or observed; and (ii) to pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral.  Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender.  All sums so paid and the costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, shall constitute a portion of the Debt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within two Business Days following demand therefor.
(b)    Subject to the rights of tenants, Borrower hereby grants, and shall cause Mortgage Borrower to grant, Lender and any Person designated by Lender the right to enter upon any Individual Property at any time for the purpose of carrying out the rights granted to Lender under this Section 17.7.  Borrower shall not, and shall not cause or permit Mortgage Borrower or any other Person to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default or asserted default under the Mortgage Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral, including the Properties in accordance with the provisions of this Agreement and the other Loan Documents.
(c)    Borrower hereby indemnifies Lender from and against all out-of-pocket liabilities, obligations, losses, damages, penalties, assessments, actions, or causes of action, judgments, suits, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ and other professional fees, whether or not suit is brought, and settlement costs), and disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Lender as a result of the foregoing actions.  Lender shall have no obligation to Borrower, Mortgage Borrower or any other party to make any such payment or performance.  Borrower shall not impede, interfere with, hinder or delay, and shall cause Mortgage Borrower to not impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default or asserted default under the Mortgage Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a default or asserted default under the Mortgage Loan.

20752111.3.BUSINESS 
165






(d)    If Lender shall receive a copy of any notice of default under the Mortgage Loan Documents sent by Mortgage Lender to Mortgage Borrower, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.  As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender’s exercise of its rights and remedies provided in this Section other than claims arising out of the fraud, illegal acts, gross negligence or willful misconduct of Lender.  Lender shall have no duty to confirm, inquire or determine whether a Mortgage Loan Default has occurred. Lender may rely on any notice it believes in good faith to be genuine and given by, or on behalf of, Mortgage Lender.
(e)    Any default under the Mortgage Loan which is cured by Lender, whether or not such cure is prior to the expiration of any applicable grace, notice or cure period under the Mortgage Loan Documents, shall constitute an immediate Event of Default under this Agreement without any notice, grace or cure period otherwise applicable under this Agreement.
(f)    In the event that Lender makes any payment in respect of the Mortgage Loan, Lender shall be subrogated to all of the rights of Mortgage Lender under the Mortgage Loan Documents against the Property and Mortgage Borrower in addition to all other rights Lender may have under the Loan Documents or applicable law.
Section 17.8.    Discussions with Mortgage Lender, Mezzanine A Lender and Mezzanine B Lender
In connection with the exercise of its rights set forth in the Loan Documents, Lender shall have the right at any time to discuss the Collateral, the Mezzanine A Collateral, the Mezzanine B Collateral, Properties, the Mortgage Loan, the Mezzanine A Loan, the Mezzanine B Loan, the Loan or any other matter directly with Mortgage Lender, Mezzanine B Lender or Mezzanine A Lender or Mortgage Lender’s, Mezzanine B Lender’s or Mezzanine A Lender’s consultants, agents or representatives without notice to or permission from Borrower or any other Loan Party, and Lender shall not have any obligation to disclose such discussions or the contents thereof with Borrower or any other Loan Party.
Section 17.9.    Mezzanine A Loan Defaults and Mezzanine B Loan Defaults
(a)    Without limiting the generality of the other provisions of this Agreement, and without waiving or releasing Borrower from any of its obligations hereunder, if there shall occur any default under the Mezzanine A Loan Documents or the Mezzanine B Loan Documents or if Mezzanine A Lender or Mezzanine B Lender asserts that Mezzanine A Borrower or Mezzanine B Borrower, as applicable, has defaulted in the performance or observance of any terms, covenant or condition of the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable (whether or not the same shall have continued beyond any applicable notice or grace periods, whether or not Mezzanine A Lender or Mezzanine B Lender, as applicable, shall have 

20752111.3.BUSINESS 
166






delivered proper notice to Mezzanine A Borrower or Mezzanine B Borrower, as applicable, and without regard to any other defenses or offset rights Mezzanine A Borrower or Mezzanine B Borrower, as applicable, may have against Mezzanine A Lender or Mezzanine B Lender, as applicable), Borrower hereby expressly agrees that Lender shall have the immediate right, without notice to demand on Borrower or Mezzanine B Borrower or Mezzanine A Borrower, as applicable, but shall be under no obligation: (i) to pay all or any part of the Mezzanine A Loan or the Mezzanine B Loan, as applicable, and any other sums, that are then due and payable and to perform any act or take any action on behalf of Mezzanine A Borrower or Mezzanine B Borrower, as applicable, as may be appropriate, to cause all of the terms, covenants and conditions of the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable, on the part of Mezzanine A Borrower or Mezzanine B Borrower, as applicable, to be performed or observed thereunder to be promptly performed or observed; and (ii) to pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral.  Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender.  All sums so paid and the costs and expenses incurred by Lender in exercising rights under this Section (including, without limitation, reasonable attorneys’ and other professional fees), with interest at the Default Rate, for the period from the date of demand by Lender to Borrower for such payments to the date of payment to Lender, shall constitute a portion of the Debt, shall be secured by the Pledge Agreement and shall be due and payable to Lender within two (12) Business Days following demand therefor.
(b)    Borrower shall not, and shall not cause or permit Mezzanine A Borrower, Mezzanine B Borrower or any other Person to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default or asserted default under the Mezzanine A Loan or the Mezzanine B Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral, including the Mezzanine A Collateral, the Mezzanine B Collateral and the Properties, in accordance with the provisions of this Agreement and the other Loan Documents.  
(c)    Borrower hereby indemnifies Lender from and against all out-of-pocket liabilities, obligations, losses, damages, penalties, assessments, actions or causes of action, judgments, suits, claims, demands, costs, expenses (including, without limitation, reasonable attorneys’ and other professional fees, whether or not suit is brought, and settlement costs), and disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Lender as a result of the foregoing actions.  Lender shall have no obligation to Borrower, Mezzanine A Borrower, Mezzanine B Borrower or any other party to make any such payment or performance.  Borrower shall not impede, interfere with, hinder or delay, and shall not cause Mezzanine A Borrower or Mezzanine B Borrower to not impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default or asserted default under the Mezzanine A Loan or the Mezzanine B Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a default or asserted default under the Mezzanine A Loan or the Mezzanine B Loan. 

20752111.3.BUSINESS 
167






(d)    If Lender shall receive a copy of any notice of default sent by (i) Mezzanine A Lender to Mezzanine A Borrower or (ii) Mezzanine B Lender to Mezzanine B Borrower, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon.  As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender’s exercise of its rights and remedies provided in this Section other than claims arising out of the fraud, illegal acts, gross negligence or willful misconduct of Lender.
(e)    Any default under the Mezzanine A Loan or the Mezzanine B Loan which is cured by Lender, whether or not such cure is prior to the expiration of any applicable grace, notice or cure period under the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, shall constitute an immediate Event of Default under this Agreement without any notice, grace or cure period otherwise applicable under this Agreement.
In the event that Lender makes any payment in respect of the Mezzanine A Loan or the Mezzanine B Loan, Lender shall be subrogated to all of the rights of Mezzanine A Lender or the Mezzanine B Lender, as applicable, under the Mezzanine A Loan Documents or the Mezzanine B Loan Documents, as applicable, against the Mezzanine A Collateral and Mezzanine A Borrower or the Mezzanine B Collateral or Mezzanine B Borrower, as applicable, in addition to all other rights Lender may have under the Loan Documents or applicable law.
Section 17.10.    Independent Approval Rights
If any action, proposed action or other decision is consented to or approved by Mortgage Lender, Mezzanine B Lender or Mezzanine A Lender, as applicable, such consent or approval shall not be binding or controlling on Lender to the extent Lender has a consent or approval right under the Loan Documents.  Borrower hereby acknowledges and agrees that (i) the risks of Mortgage Lender in making the Mortgage Loan and the risks of Mezzanine A Lender in making the Mezzanine A Loan and the risks of Mezzanine B Lender in making the Mezzanine B Loan are different from the risks of Lender in making the Loan, (ii) in determining whether to grant, deny, withhold or condition any requested consent or approval Mortgage Lender, Mezzanine A Lender, Mezzanine B Lender and Lender may reasonably reach different conclusions, and (iii) Lender has an absolute independent right to grant, deny, withhold or condition any requested consent or approval based on its own point of view.  Further, the denial by Lender of a requested consent or approval shall not create any liability or other obligation of Lender if the denial of such consent or approval results directly or indirectly in a default under the Mortgage Loan, the Mezzanine B Loan or Mezzanine A Loan, and Borrower hereby waives any claim of liability against Lender arising from any such denial.
ARTICLE 18     
WAIVERS
Section 18.1.    Remedies Cumulative; Waivers

20752111.3.BUSINESS 
168






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 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 singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion.  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 shall not be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.
Section 18.2.    Modification, Waiver in Writing
No modification, amendment, extension, discharge, termination or waiver of any provision of this Agreement, or of the Note, or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any event be effective unless the same shall be in a writing signed by the party 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, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.
Section 18.3.    Delay Not a Waiver
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 the Note or under any other Loan Document, or any other instrument given as security therefor, 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, the Note 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, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount.
Section 18.4.    Trial by Jury
BORROWER 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 

20752111.3.BUSINESS 
169






AND VOLUNTARILY BY BORROWER 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 OF LENDER AND BORROWER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER AND LENDER.
Section 18.5.    Waiver of Notice
Borrower shall not 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 and except with respect to matters for which Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice.  Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Lender to Borrower.
Section 18.6.    Remedies of Borrower
In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, Borrower agrees that neither Lender nor its agents shall be liable for any monetary damages, and Borrower’s sole remedies shall be limited to commencing an action seeking injunctive relief or declaratory judgment.  The parties hereto agree that any action or proceeding to determine whether Lender has acted reasonably shall be determined by an action seeking declaratory judgment.  Lender agrees that, in such event, it shall cooperate in expediting any action seeking injunctive relief or declaratory judgment.
Section 18.7.    Cross Default; Cross Collateralization; Waiver of Marshalling of Assets
(a)    Borrower acknowledges that Lender has made the Loan to Borrower upon the security of its collective interest in the Collateral and in reliance upon the aggregate of the Collateral taken together being of greater value as collateral security than the sum of each of the individual interests in the Pledged Entities taken separately.  Borrower agrees that (i) an Event of Default under the Pledge Agreement shall constitute an Event of Default under the Note and each of the other Loan Documents; and (ii) an Event of Default under the Note or this Agreement shall constitute an Event of Default under the Pledge Agreement.
(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 partners and others with interests in Borrower, and of the Collateral, or to a sale in inverse order of alienation in 

20752111.3.BUSINESS 
170






the event of foreclosure of all or any of the Pledge Agreement, and agrees not to 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 the Collateral for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Collateral or the Properties in preference to every other claimant whatsoever.
Section 18.8.    Waiver of Statute of Limitations
Borrower hereby expressly waives and releases, to the fullest extent permitted by law, the pleading of any statute of limitations as a defense to payment of the Debt or performance of its Other Obligations.
Section 18.9.    Waiver of Counterclaim
Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Lender or its agents.
ARTICLE 19     
GOVERNING LAW
Section 19.1.    Governing Law
(a)    THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER 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 CONFLICTS OF LAWS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) 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 LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH ANY COLLATERAL IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, 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 HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE 

20752111.3.BUSINESS 
171






AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS 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.
(b)    ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS 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 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 JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING.  BORROWER DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
1180 Avenue of the Americas, Suite 210
New York, New York 10036
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 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 IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK.  BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED 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.
Section 19.2.    Severability
Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Legal Requirements, but if any provision of this Agreement shall be prohibited by or invalid under applicable Legal Requirements, such 

20752111.3.BUSINESS 
172






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 19.3.    Preferences
To the extent Borrower 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 Creditors Rights Laws, 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.
ARTICLE 20     
MISCELLANEOUS
Section 20.1.    Survival
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 Debt is 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.
Section 20.2.    Lender’s Discretion
Whenever pursuant to this Agreement, Lender exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Lender, the decision of Lender to approve or disapprove 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.
Section 20.3.    Headings
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.



20752111.3.BUSINESS 
173






Section 20.4.    Schedules Incorporated
The Schedules 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 20.5.    Offsets, Counterclaims and Defenses
Any assignee of Lender’s interest in and to this Agreement, the Note 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 may otherwise have against any assignor of such documents, and no such unrelated counterclaim 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.
Section 20.6.    No Joint Venture or Partnership; No Third Party Beneficiaries
(f)    Borrower 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 between Borrower and Lender nor to grant Lender any interest in the Collateral other than that of secured creditor, beneficiary or lender.
(g)    This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein.  All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.
(h)    The general partners, members, principals and (if Borrower is a trust) beneficial owners of Borrower are experienced in the ownership and operation of properties similar to the Properties and the Collateral, and Borrower and Lender are relying solely upon such expertise and business plan in connection with the ownership and operation of the Properties and the Collateral.  Borrower is not relying on Lender’s expertise, business acumen or advice in connection with the Properties and/or the Collateral.

20752111.3.BUSINESS 
174






(i)    Notwithstanding anything to the contrary contained herein, Lender is not undertaking the performance of (i) any obligations under the Leases; or (ii) any obligations with respect to such agreements, contracts, certificates, instruments, franchises, permits, trademarks, licenses and other documents.
(j)    By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Agreement, the Pledge Agreement, the Note or the other Loan Documents, including, without limitation, any officer’s certificate, balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.
(k)    Borrower recognizes and acknowledges that in accepting this Agreement, the Note, the Pledge Agreement and the other Loan Documents, Lender is expressly and primarily relying on the truth and accuracy of the representations and warranties set forth in Article 4 of this Agreement without any obligation to investigate the Properties or the Collateral and notwithstanding any investigation of the Properties or the Collateral by Lender; that such reliance existed on the part of Lender prior to the date hereof, that the warranties and representations are a material inducement to Lender in making the Loan; and that Lender would not be willing to make the Loan and accept this Agreement, the Note, the Pledge Agreement and the other Loan Documents in the absence of the warranties and representations as set forth in Article 4 of this Agreement.
Section 20.7.    Publicity
All news releases, publicity or advertising by Borrower or its Affiliates through any media intended to reach the general public which refers to the Loan, Lender or any of its Affiliates shall be subject to the prior written approval of Lender, not to be unreasonably withheld.  Lender shall be permitted to make any news releases, publicity or advertising by Lender or its Affiliates through any media intended to reach the general public which refers to the Loan, the Properties, the Collateral, Borrower and their respective Affiliates without the approval of Borrower or any such Persons.  Borrower also agrees that Lender may share any information pertaining to the Loan with Credit Suisse, including its bank subsidiaries, and any other Affiliates of the foregoing, in connection with the sale or transfer of the Loan or any Participations and/or Securities created.
Section 20.8.    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 

20752111.3.BUSINESS 
175






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 20.9.    Duplicate Originals; Counterparts
This Agreement and each of the other Loan Documents may be executed in any number of duplicate originals, and each duplicate original shall be deemed to be an original.  This Agreement and each of the other Loan Documents (and each duplicate original) also may be executed in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed agreement even though all signatures do not appear on the same document.
Section 20.10.    Joint and Several Liability
If Borrower consists of more than one Person or entity, the obligations and liabilities of each such Person hereunder are joint and several.
Section 20.11.    Entire Agreement
This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written between Borrower and Lender are superseded by the terms of this Agreement and the other Loan Documents.
Section 20.12.    Contributions and Waivers
(c)    As a result of the transactions contemplated by this Agreement, each Borrower will benefit, directly and indirectly, from each Borrower’s obligation to pay the Debt and perform its Obligations and in consideration therefore each Borrower desires to enter into an allocation and contribution agreement among themselves as set forth in this Section to allocate such benefits among themselves and to provide a fair and equitable agreement to make contributions among each of Borrowers in the event any payment is made by any individual Borrower hereunder to Lender (such payment being referred to herein as a “Contribution”, and for purposes of this Section, includes any exercise of recourse by Lender against any collateral of a Borrower and application of proceeds of such collateral in satisfaction of such Borrower’s obligations, to Lender under the Loan Documents).

20752111.3.BUSINESS 
176






(d)    Each Borrower shall be liable hereunder with respect to the Obligations only for such total maximum amount (if any) that would not render its Obligations hereunder or under any of the Loan Documents subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any State law.
(e)    In order to provide for a fair and equitable contribution among Borrowers in the event that any Contribution is made by an individual Borrower (a “Funding Borrower”), such Funding Borrower shall be entitled to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and to the extent set forth in this Section.
(f)    For purposes hereof, the “Benefit Amount” of any individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and its Affiliates from extensions of credit made by Lender to (a) such Borrower and (b) to the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have guaranteed or mortgaged their Properties to secure the Obligations of such Borrower to Lender.
(g)    Each Borrower shall be liable to a Funding Borrower in an amount equal to the greater of (A) the (i) ratio of the Benefit Amount of such Borrower to the total amount of Obligations, multiplied by (ii) the amount of Obligations paid by such Funding Borrower, or (B) ninety-five percent (95%) of the excess of the fair saleable value of the property of such Borrower over the total liabilities of such Borrower (including the maximum amount reasonably expected to become due in respect of contingent liabilities) determined as of the date on which the payment made by a Funding Borrower is deemed made for purposes hereof (giving effect to all payments made by other Funding Borrowers as of such date in a manner to maximize the amount of such Contributions).
(h)    In the event that at any time there exists more than one Funding Borrower with respect to any Contribution (in any such case, the “Applicable Contribution”), then Reimbursement Contributions from other Borrowers pursuant hereto shall be allocated among such Funding Borrowers in proportion to the total amount of the Contribution made for or on account of the other Borrowers by each such Funding Borrower pursuant to the Applicable Contribution. In the event that at any time any Borrower pays an amount hereunder in excess of the amount calculated pursuant to this Section above, that Borrower shall be deemed to be a Funding Borrower to the extent of such excess and shall be entitled to a Reimbursement Contribution from the other Borrowers in accordance with the provisions of this Section.
(i)    Each Borrower acknowledges that the right to Reimbursement Contribution hereunder shall constitute an asset in favor of Borrower to which such Reimbursement Contribution is owing.

20752111.3.BUSINESS 
177






(j)    No Reimbursement Contribution payments payable by a Borrower pursuant to the terms of this Section shall be paid until all amounts then due and payable by all of Borrowers to Lender, pursuant to the terms of the Loan Documents, are paid in full in cash.  Nothing contained in this Section shall limit or affect in any way the Obligations of any Borrower to Lender under this Note or any other Loan Documents.
(k)    Each Borrower waives:
(A)    any right to require Lender to proceed against any other Borrower or any other person or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy in Lender’s power before proceeding against Borrower;
(B)    the defense of the statute of limitations in any action against any other Borrower or for the collection of any indebtedness or the performance of any obligation under the Loan;
(C)    any defense based upon any legal disability or other defense of any other Borrower, any guarantor of any other person or by reason of the cessation or limitation of the liability of any other Borrower or any guarantor from any cause other than full payment of all sums payable under the Note, this Agreement and any of the other Loan Documents;
(D)    any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or any principal of any other Borrower or any defect in the formation of any other Borrower or any principal of any other Borrower;
(E)    any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal;
(F)    any defense based upon any failure by Lender to obtain collateral for the indebtedness or failure by Lender to perfect a lien on any collateral;
(G)    presentment, demand, protest and notice of any kind;
(H)    any defense based upon any failure of Lender to give notice of sale or other disposition of any collateral to any other Borrower or to any other person or entity or any defect in any notice that may be given in connection with any sale or disposition of any collateral;
(I)    any defense based upon any failure of Lender to comply with applicable laws in connection with the sale or other disposition of any collateral, 

20752111.3.BUSINESS 
178






including, without limitation, any failure of Lender to conduct a commercially reasonable sale or other disposition of any collateral;
(J)    any defense based upon any election by Lender, in any bankruptcy proceeding, of the application or non-application of Section 1111(6)(2) of the Bankruptcy Code or any successor statute;
(K)    any defense based upon any use of cash collateral under Section 363 of the Bankruptcy Code;
(L)    any defense based upon any agreement or stipulation entered into by Lender with respect to the provision of adequate protection in any bankruptcy proceeding;
(M)    any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code;
(N)    any defense based upon the avoidance of any security interest in favor of Lender for any reason;
(O)    any defense based upon any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding, including any discharge of, or bar or stay against collecting, all or any of the obligations evidenced by the Note or owing under any of the Loan Documents; and
(P)    any defense or benefit based upon Borrower’s, or any other party’s, resignation of the portion of any obligation secured by the applicable Mortgages to be satisfied by any payment from any other Borrower or any such party.
(l)    Each Borrower waives:
(A)    all rights and defenses arising out of an election of remedies by Lender even though the election of remedies, such as nonjudicial foreclosure with respect to security for the Loan or any other amounts owing under the Loan Documents, has destroyed Borrower’s rights of subrogation and reimbursement against any other Borrower;
(B)    all rights and defenses that Borrower may have because any of the Debt is secured by indirect interests in real property. This means, among other things: (i) Lender may collect from Borrower without first foreclosing on any real or personal property collateral pledged by any other Borrower, (ii) if Lender forecloses on any Collateral pledged by any other Borrower, (a) the amount of the 

20752111.3.BUSINESS 
179






Debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, (b) Lender may collect from Borrower even if any other Borrower, by foreclosing on the Collateral, has destroyed any right Borrower may have to collect from any other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because any of the Debt is secured by indirect interests in real property; and
(C)    any claim or other right which Borrower might now have or hereafter acquire against any other Borrower or any other person that arises from the existence or performance of any obligations under the Note, this Agreement, the Mortgages or the other Loan Documents, including, without limitation, any of the following: (i) any right of subrogation, reimbursement, exoneration, contribution, or indemnification; or (ii) any right to participate in any claim or remedy of Lender against any other Borrower or any collateral security therefor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law.
Section 20.13.    Qualified Brand Franchise Agreements.  For the avoidance of doubt, nothing contained in this Agreement or any of the other Loan Documents, is, or shall be deemed to constitute, a collateral assignment, pledge or grant of a security interest by Mortgage Borrower or Operating Lessee to Lender with respect to any Franchise Agreement with Marriott, Hyatt, Hilton or IHG or any of their respective affiliates in violation of such Franchise Agreement.
Section 20.14.    State Law Provisions.  To the extent that a court of competent jurisdiction would deem the laws of the State of California to be applicable to this Agreement and the other Loan Documents, Borrower makes the following waivers:
(A)    Each Borrower hereby waives the rights and benefits under California Civil Code (“CC”) Section 2819, and agrees that by doing so such Borrower’s liability shall continue even if the Lender alters any obligations under the Loan Documents in any respect or Lender’s remedies or rights against any Borrower are in any way impaired or suspended without such Borrower’s consent.
(B)    Each Borrower hereby waives any and all benefits and defenses under CC Section 2810 and agrees that by doing so such Borrower is liable even if such Borrower had no liability at the time of execution of the Note or thereafter ceased to be liable.  Each Borrower hereby waives any and all benefits and defenses under CC Section 2809 and agrees that by doing so such Borrower’s liability may be larger in amount and more burdensome than that of any other Borrower.
(C)    Each Borrower hereby waives any and all benefits and defenses under CC Sections 2845, 2849, 2850, 2899 and 3433, including, without limitation, the right to require the Lender to (i) proceed against such Borrower or any other guarantor or pledgor, (ii) proceed against or exhaust any security or collateral the Lender may hold, or (iii) pursue any other right or remedy 

20752111.3.BUSINESS 
180






for such Borrower’s benefit, and agrees that the Lender may proceed against such Borrower for the Obligations without taking any action against any other Borrower or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral the Lender holds.  Each Borrower agrees that the Lender may unqualifiedly exercise in its sole and absolute discretion, any or all rights and remedies available to it against such Borrower or any other guarantor or pledgor without impairing the Lender’s rights and remedies in enforcing this Agreement and any other Loan Document, under which Borrower’s liabilities shall remain independent and unconditional.  Each Borrower agrees that the Lender’s exercise of certain of such rights or remedies may affect or eliminate such Borrower’s right of subrogation or recovery against any other Borrower and that such Borrower may incur partially or totally non-reimbursable liability under this Agreement and the other Loan Documents.  Without limiting the generality of the foregoing, each Borrower expressly waives any and all benefits and defenses under or based upon (1) California Code of Civil Procedure (“CCP”) Section 580a or 726(b), which would otherwise limit such Borrower’s liability after a non-judicial or judicial foreclosure sale to the difference between the obligations guaranteed herein and the fair market value or fair value, respectively, of the Collateral or interests sold at such non-judicial or judicial foreclosure sale, (2) CCP Sections 580b and 580d, which would otherwise limit the Lender’s right to recover a deficiency judgment with respect to purchase money obligations and after a non-judicial or judicial foreclosure sale, respectively, (3) CCP Section 726 which, among other things, would otherwise require the Lender to exhaust all of its security before a personal judgment may be obtained for a deficiency, and (4) Union Bank v. Gradsky or subsequent judicial decisions arising out of or related to CCP Sections 726, 580a, 580b or 580d.
(D)    Without limiting the generality of the foregoing, each Borrower waives all rights and defenses arising out of an election of remedies by the Lender, even though that election of remedies, such as a nonjudicial or judicial foreclosure with respect to security for a Obligation, has destroyed such Borrower’s rights of subrogation and reimbursement against any other Borrower by the operation of Section 580d of the California Code of Civil Procedure or otherwise.  In addition, each Borrower waives all rights and defenses that such Borrower may have because the Obligation is secured by indirect interests in real property.  This means, among other things:
(a)    the Lender may collect from any Borrower without first foreclosing on any real or personal property collateral pledged by any other Borrower; and 
(b)    if the Lender forecloses on any Collateral pledged by a Borrower:
(i)    the amount of the Obligation may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and 
(ii)    the Lender may collect from any Borrower even if the Lender, by foreclosing on the Collateral, has destroyed any right any other Borrower may have to collect from such Borrower.

20752111.3.BUSINESS 
181






This is an unconditional and irrevocable waiver of any rights and defenses each Borrower may have because the Obligation is secured by indirect interests in real property.  These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure.
(E)    Each Borrower hereby waives all benefits and defenses under CC Sections 2847, 2848 and 2849 and agrees that such Borrower shall have no right of subrogation or reimbursement against any other Borrower, no right of subrogation against any collateral or security provided for in the Loan Documents and no right of contribution against any other guarantor or pledgor unless and until all amounts due under the Loan Documents have been paid in full and the Lender has released, transferred or disposed of all of its right, title and interest in any collateral or security.  To the extent any Borrower’s waiver of these rights of subrogation, reimbursement or contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, each Borrower agrees that its rights of subrogation and reimbursement against any other Borrower and such Borrower’s right of subrogation against any collateral or security shall be unconditionally junior and subordinate to the Lender’s rights against it and any other Borrower and to the Lender’s right, title and interest in such collateral or security, and each Borrower’s right of contribution against any other guarantor or pledgor shall be unconditionally junior and subordinate to the Lender’s rights against such other guarantor or pledgor.
(F)    WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR ANY OTHER PROVISION HEREOF, TO THE EXTENT PERMITTED BY LAW, EACH BORROWER EXPRESSLY WAIVES AND AGREES NOT TO ASSERT ANY AND ALL RIGHTS AND DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS 2787 TO 2855 INCLUSIVE AND CHAPTER 2 OF TITLE 14, 2899 AND 3433 AND UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580A, 580B, 580D AND 726.


[NO FURTHER TEXT ON THIS PAGE]



20752111.3.BUSINESS 
182






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.
BORROWERS:
ASHFORD A-3 MEZZ LLC, a Delaware limited liability company


By:    /s/ DAVID A. BROOKS (Seal)
Name: David A. Brooks 
Title:   President




ASHFORD G-3 MEZZ LLC, a Delaware limited liability company


By:    /s/ DAVID A. BROOKS (Seal)
Name: David A. Brooks 
Title:   President















LENDER:
COLUMN FINANCIAL, INC.


By: /s/ Jeremy Stoler (Seal)
Name:  Jeremy Stoler
Title:









EXHIBIT A 
 
Organizational Chart 









20752111.3.BUSINESS 






EXHIBIT B 
 
Post 1031 Exchange Organizational Chart
 


20752111.3.BUSINESS 






EXHIBIT C 
 
Forms of U.S. Tax Compliance Certificates 
 
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Mezzanine C Loan Agreement dated as of [______________] (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Agreement”), between Column Financial, Inc., as Lender, and [______________], as Borrower.
Pursuant to the provisions of Section 2.7(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan (as well as any Note evidencing such Loan) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Borrower, and (2) the undersigned shall have at all times furnished Borrower with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.


	
		
	[NAME OF LENDER]

	By: 

	 
	Name:

	 
	Title:




Date: ________ __, 20[  ]

20752111.3.BUSINESS 








(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Mezzanine C Loan Agreement dated as of [______________] (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Agreement”), between Column Financial, Inc., as Lender, and [______________], as Borrower.
Pursuant to the provisions of Section 2.7(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
	
		
	[NAME OF PARTICIPANT]



	By: 

	 
	Name:

	 
	Title:






Date: ________ __, 20[  ]

20752111.3.BUSINESS 








(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Mezzanine C Loan Agreement dated as of [______________] (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Agreement”), between Column Financial, Inc., as Lender, and [______________], as Borrower.
Pursuant to the provisions of Section 2.7(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Participation, (iii) with respect such Participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
	
		
	[NAME OF PARTICIPANT]

	By: 

	 
	Name:

	 
	Title:

	 
	 




Date: ________ __, 20[  ]

20752111.3.BUSINESS 








(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Mezzanine C Loan Agreement dated as of [______________] (as amended, restated, replaced, supplemented or otherwise modified from time to time, the “Agreement”), between Column Financial, Inc., as Lender, and [______________], as Borrower.
Pursuant to the provisions of Section 2.7(e) of the Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan (as well as any Note evidencing such Loan) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan (as well as any Note evidencing such Loan), (iii) with respect to the extension of credit pursuant to this Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform Borrower, and (2) the undersigned shall have at all times furnished Borrower with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Agreement.
	
		
	[NAME OF PARTICIPANT]

	By: 

	 
	Name:

	 
	Title:

	 
	 




Date: ________ __, 20[  ]

20752111.3.BUSINESS 






EXHIBIT D


Recycled Entity Certificate


[See attached]

20752111.3.BUSINESS 






EXHIBIT E


Resignation Letters


[See attached]



20752111.3.BUSINESS 









20752111.3.BUSINESS 






SCHEDULE I
Mortgage Borrowers
	
				
	Name of Mortgage Borrower
	Organizational Number
	Type of Entity
	State of Formation

	HH Churchill Hotel Associates, L.P.
	4065147
	Limited partnership
	Delaware

	HH FP Portfolio LLC
	3830654
	Limited liability company
	Delaware

	HH Denver LLC
	3849976
	Limited liability company
	Delaware

	HH Gaithersburg LLC
	4145240
	Limited liability company
	Delaware

	HH LC Portfolio LLC
	3885655
	Limited liability company
	Delaware

	HH Austin Hotel Associates, L.P.
	4321155
	Limited partnership
	Delaware

	HH Baltimore LLC
	3818746
	Limited liability company
	Delaware

	HH Tampa Westshore LLC
	3748161
	Limited liability company
	Delaware

	HH Savannah LLC
	3818753
	Limited liability company
	Delaware

	HH San Antonio LLC
	4386105
	Limited liability company
	Delaware

	HH DFW Hotel Associates, L.P.
	3847840
	Limited partnership
	Delaware

	HH Texas Hotel Associates, L.P.
	3482995
	Limited partnership
	Delaware

	HH Melrose Hotel Associates, L.P.
	4118310
	Limited partnership
	Delaware

	HH Palm Springs LLC
	3982832
	Limited liability company
	Delaware

	Portsmouth Hotel Associates LLC
	3005218
	Limited liability company
	Delaware





20752111.3.BUSINESS 






	
				
	HH Atlanta LLC
	4218175
	Limited liability company
	Delaware

	HH Chicago LLC
	4288485
	Limited liability company
	Delaware





20752111.3.BUSINESS 






SCHEDULE II
Allocated Loan Amounts
	
		
	1. Hilton Tampa Westshore FL
	$1,257,289

	2. Residence Inn Tampa Downtown FL
	$1,032,103

	3. Courtyard Gaithersburg MD
	$1,698,278

	4. Renaissance Portsmouth VA
	$942,967

	5. The Churchill DC
	$2,772,603

	6. The Melrose DC
	$4,372,363

	7. Hilton Garden Inn BWI Airport MD
	$1,154,079

	8. Hilton Garden Inn Virginia Beach MD
	$1,449,635

	9. The Silversmith IL
	$1,294,820

	10. Courtyard Denver Airport CO
	$1,857,785

	11. Marriott Omaha NE
	$2,692,850

	12. Renaissance Palm Springs CA
	$3,016,555

	13. Hilton Parsippany NJ
	$3,115,074

	14. Hyatt Regency Wind Watch NY
	$1,998,526

	15. Hampton Inn Parsippany NJ
	$1,313,585

	16. Courtyard Boston Downtown MA
	$5,207,428

	17. Marriott DFW Airport TX
	$4,316,066

	18. Marriott San Antonio Plaza TX
	$1,989,144

	19. Marriott Sugar Land TX
	$4,691,376

	20. Hilton Garden Inn Austin Downtown TX
	$2,683,467

	21. Hyatt Regency Savannah GA
	$4,133,103

	22. Ritz-Carlton Atlanta GA
	$4,100,263

	23. Crowne Plaza Ravinia GA
	$3,846,929

	24. Courtyard Savannah GA
	$1,843,711











20752111.3.BUSINESS 






SCHEDULE III
Franchise Agreements and Franchisors
	
				
	Properties
	Franchisors
	Operating Lessees
	Franchise Agreements

	Crowne Plaza Atlanta  - Ravinia
	IHG
	HHC TRS FP Portfolio LLC
	Crowne Plaza License Agreement, dated as of July 17, 2007, by Holiday Hospitality Franchising Inc., a Delaware corporation (“Crowne Plaza Licensor”), and HHC TRS FP Portfolio LLC, a Delaware limited liability company (“TRS FP Portfolio”), as amended by that certain Addendum to License Agreement, dated as of March 27, 2008, by Crowne Plaza Licensor and TRS FP Portfolio, as further amended by that certain Agreement, dated as of March 10, 2011, by Crowne Plaza Licensor and PIM Ashford Subsidiary II, LLC, a Delaware limited liability company, as further amended by that certain Second Addendum to License Agreement, dated as of March 10, 2011, by Crowne Plaza Licensor and TRS FP Portfolio, as further amended by that certain Third Addendum to License Agreement, dated as of March 10, 2011, by Crowne Plaza Licensor and TRS FP Portfolio.







20752111.3.BUSINESS 






	
				
	Properties
	Franchisors
	Operating Lessees
	Franchise Agreements

	Hampton Inn Parsippany
	Hilton
	HHC TRS FP Portfolio LLC
	Franchise Agreement, dated as of August 29, 2014, by Hampton Inns Franchise LLC, a Delaware limited liability company (“Hampton Inns”), and TRS FP Portfolio, as amended by that Certain Amendment to Franchise Agreement, dated as of March 6, 2015, by and between TRS FP Portfolio and Hampton Inns.

	Hilton Parsippany
	Hilton
	HHC TRS FP Portfolio LLC
	Franchise Agreement, dated as of August 29, 2014, by Hilton Franchise LLC, a Delaware limited liability company (“Hilton Franchise”), and TRS FP Portfolio, as amended by that certain Amendment to Franchise Agreement, dated as of March 6, 2015, by and between TRS FP Portfolio and Hilton Franchise.

	Hilton Tampa Westshore
	Hilton
	HHC TRS Tampa LLC
	Amended and Restated Franchise License Agreement, dated as of September 21, 2012, by Hilton Franchise and HHC TRS Tampa LLC, a Delaware limited liability company (“TRS Tampa”), as amended by that certain Amendment to Franchise Agreement, dated as of March 6, 2015, by and between TRS Tampa and Hilton Franchise.

	Hyatt Regency Wind Watch Long Island
	Hyatt
	HHC TRS FP Portfolio LLC
	Franchise Agreement, dated as of December 7, 2011, by Hyatt Franchising L.L.C., a Delaware limited liability company, and TRS FP Portfolio.





20752111.3.BUSINESS 






	
				
	Properties
	Franchisors
	Operating Lessees
	Franchise Agreements

	Omaha Marriott
	Marriott
	HHC TRS LC Portfolio LLC
	Relicensing Franchise Agreement, dated as of July 17, 2007, by Marriott International, Inc., a Delaware corporation (“Marriott”), and TRS LC Portfolio LLC (“TRS LC Portfolio”).

	Plaza San Antonio Marriott
	Marriott
	HHC TRS Portsmouth LLC
	Relicensing Franchise Agreement, dated as of July 17, 2007, by Marriott and HHC TRS Portsmouth LLC, a Delaware limited liability company (“TRS Portsmouth”).

	Sugar Land Marriott Town Square Hotel and Conference Center
	Marriott
	HHC TRS LC Portfolio LLC
	Relicensing Franchise Agreement, dated as of December 19, 2003, by Marriott and HHC TRS Sugar Land LLC, a Delaware limited liability company (“TRS Sugar Land”), as amended by that certain First Amendment to Marriott Hotel Relicensing Franchise Agreement and Settlement and Release of Claims, dated as of March 23, 2004, by Marriott and TRS Sugar Land.

	Renaissance Palm Springs
	Marriott
	HHC TRS Portsmouth LLC 
	Relicensing Franchise Agreement, dated as of March 10, 2011, by Marriott and TRS Portsmouth.

	Portsmouth Renaissance Hotel and Waterfront Conference Center
	Marriott
	HHC TRS Portsmouth LLC
	Relicensing Franchise Agreement, dated as of July 17, 2007, by Marriott and TRS Portsmouth.

	Courtyard Savannah Historic District
	Marriott
	HHC TRS Savannah LLC
	Relicensing Franchise Agreement, dated as of March 10, 2011, by Marriott and TRS LC Portfolio, as amended by that certain Amendment to Courtyard by Marriott Relicensing Franchise Agreement, dated as of April 26, 2012, by Marriott and TRS LC Portfolio.





20752111.3.BUSINESS 






	
				
	Properties
	Franchisors
	Operating Lessees
	Franchise Agreements

	Hilton Garden Inn Austin Downtown
	Hilton
	HHC TRS Austin LLC
	Amended and Restated Franchise License Agreement, dated as of June 29, 2007, by Hilton and HHC TRS Austin LLC, a Delaware limited liability company (“TRS Austin”), as amended by that certain Amendment to Franchise License Agreement, dated as of March 10, 2011, by HLT Existing Franchise Holding LLC, a Delaware limited liability company, as successor in interest to Hilton (“Hilton Successor”), and TRS Austin, as further amended by that certain Amendment to Franchise Agreement, dated as of March 6_, 2015, by and between TRS Austin and Hilton Successor.

	Hilton Garden Inn BWI Airport
	Hilton
	HHC TRS Baltimore LLC
	Franchise License Agreement, dated as of July 17, 2007, by Hilton and HHC TRS Baltimore LLC, a Delaware limited liability company (“TRS Baltimore”), as amended by that certain Amendment to Franchise License Agreement, dated as of March 10, 2011, by Hilton and TRS Baltimore, as further amended by that certain Amendment to Franchise Agreement, dated as of March 6, 2015, by and between TRS Baltimore and Hilton Successor.





20752111.3.BUSINESS 






	
				
	Properties
	Franchisors
	Operating Lessees
	Franchise Agreements

	Hilton Garden Inn Virginia Beach Town Center
	Hilton
	HHC TRS LC Portfolio LLC
	Amended and Restated Franchise License Agreement, dated as of July 17, 2007, by Hilton and TRS LC Portfolio, as amended by that certain Amendment to Franchise License Agreement, dated as of March 10, 2011, by Hilton Successor and TRS LC Portfolio, as further amended by that certain Amendment to Franchise Agreement, dated as of March 6, 2015, by and between TRS LC Portfolio and Hilton Successor.

	Residence Inn Tampa Downtown
	Marriott
	HHC TRS LC Portfolio LLC
	Relicensing Franchise Agreement, dated as of March 10, 2011, by Marriott and TRS LC Portfolio, as amended by that certain Amendment to Residence Inn by Marriott Relicensing Franchise Agreement, dated as of April 26, 2012, by Marriott and TRS LC Portfolio.





20752111.3.BUSINESS 






SCHEDULE IV
Management Agreements and Managers
	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	The Churchill Hotel


	HH Churchill Hotel Associates, L.P.
	Hyatt
	That certain Hotel Master Management Agreement, dated March 10, 2011, by and between HHC TRS LC Portfolio LLC, HHC TRS Portsmouth LLC, HHC TRS Tampa LLC, HHC TRS Baltimore LLC, HHC TRS FP Portfolio LLC, HHC TRS Melrose LLC, HHC TRS Chicago LLC, HHC TRS Highland LLC, HHC TRS Austin LLC, HHC TRS Princeton LLC and Remington Lodging & Hospitality, LLC, as amended by that certain Addendum to Hotel Master Management Agreement, dated December 8, 2011, from HHC TRS LC Portfolio LLC, HHC TRS Portsmouth LLC, HHC TRS Tampa LLC,  HHC TRS Baltimore LLC, HHC TRS Melrose LLC, HHC TRS Chicago LLC, HHC TRS Highland LLC, HHC TRS Austin LLC, HHC TRS OP LLC, HHC TRS FP Portfolio LLC and HHC TRS Princeton LLC to Remington Lodging & Hospitality, LLC and Remington Boston Employers, LLC, as amended by that certain Addendum to Hotel Master Management Agreement, dated May 1, 2012, from HHC TRS LC Portfolio LLC, HHC TRS Portsmouth LLC, HHC TRS Tampa LLC,  HHC TRS Baltimore LLC, HHC TRS Melrose LLC, HHC TRS Chicago LLC, HHC TRS Highland LLC, HHC TRS Austin LLC, HHC TRS FP Portfolio LLC, HHC TRS Princeton LLC and HHC TRS OP LLC to Remington Lodging & Hospitality, LLC and Remington Boston Employers, LLC, as amended by that certain Addendum to Hotel Master Management Agreement, dated May 1, 2012, from HHC TRS LC Portfolio LLC, HHC TRS Portsmouth LLC, HHC TRS Tampa LLC,  HHC TRS Baltimore LLC, HHC TRS Melrose LLC, HHC TRS Chicago LLC, HHC TRS Highland LLC, HHC TRS Austin LLC, HHC TRS FP Portfolio LLC, HHC TRS Princeton LLC and HHC TRS OP LLC to Remington Lodging & Hospitality, LLC and Remington Boston Employers, LLC (the “Remington Management Agreement”)





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Courtyard Boston Tremont


	HH FP Portfolio LLC
	Marriott
	That certain Management Agreement, dated September 22, 2004, between HHC TRS FP Portfolio LLC and Courtyard Management Corporation, as amended by that certain First Amendment to Management Agreement, dated October 15, 2004, between HHC TRS FP Portfolio LLC and Courtyard Management Corporation, as amended by that certain Second Amendment to Management Agreement, dated August 5, 2005, between HHC TRS FP Portfolio LLC and Courtyard Management Corporation, as amended by that certain Side Letter Agreement, dated March 2, 2007, between HHC TRS FP Portfolio and Courtyard Management Corporation, as amended by that certain Third Amendment to Management Agreement, dated March 10, 2011, as amended by that certain Letter Agreement, dated January 29, 2005 from Courtyard Management Corporation and accepted by HHC TRS FP Portfolio LLC, as amended by that certain Letter Agreement dated February 3, 2006 from Courtyard Management Corporation and accepted and agreed to by HHC TRS FP Portfolio LLC, as amended by that certain Side Letter Agreement, dated March 2, 2007, between Courtyard Management Corporation and HHC TRS FP Portfolio LLC, as amended by that certain Letter Agreement, dated July 17, 2007, between Courtyard Management Corporation and HHC TRS FP Portfolio LLC, as amended by that certain Letter Agreement, dated July 17, 2007, between Courtyard Management Corporation and HHC TRS FP Portfolio LLC, as amended by that certain Letter Agreement, dated July 17, 2007, between Courtyard Management Corporation and HHC TRS FP Portfolio LLC, as amended by that certain Liquor License Agreement, dated July 17, 2007, between Courtyard Management Corporation, HH FP Portfolio LLC and HHC TRS FP Portfolio LLC, and as amended by that certain Real Estate and Personal Property Taxes Agreement, dated February 26, 2010, between Courtyard Management Corporation, HHC TRS Baltimore LLC, HHC TRS Portsmouth LLC and HHC TRS FP Portfolio LLC.





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Courtyard Denver Airport


	HH Denver LLC
	Marriott
	That certain Management Agreement, dated December 28, 1995, between LC Fulenwider Inc. and Courtyard Management Corporation, as amended by that certain Assignment and First Amendment of Management Agreement, dated September 10, 1996, between LC Fulenwider Inc., 6901 Tower LLC, and Courtyard Management Corporation, as amended by that certain Second Amendment to Management Agreement, dated September 17, 2004, between HHC TRS OP LLC and Courtyard Management Corporation, as assigned by that certain Assignment and Assumption and Third Amendment of Management Agreement, dated July 17, 2007, among TRS OP, HHC TRS Portsmouth LLC, HH Denver LLC and Courtyard Management Corporation, as amended by that certain Fourth Amendment to Management Agreement, dated March 6, 2009, by HHC TRS Portsmouth LLC and Courtyard Management Corporation, as amended by that certain Fifth Amendment to Management Agreement, dated March 10, 2011, between HHC TRS Portsmouth LLC and Courtyard Management Corporation, as amended by that certain Sixth Amendment to Management Agreement, dated July, 2013, between HHC TRS Portsmouth LLC and Courtyard Management Corporation, as amended by that certain Amendment to Management Agreement, dated July, 2013, between HHC TRS Portsmouth LLC and Courtyard Management Corporation, as amended by that certain Letter Agreement, dated July 17, 2007, from HH Denver LLC and HHC TRS OP LLC to Courtyard Management Corporation, as amended by that certain Letter Agreement, dated July 17, 2007, as amended by that certain Letter Agreement, dated July 17, 2007, between Courtyard Management Corporation and HHC TRS OP LLC, as amended by that certain Mutual Release, dated July 17, 2007, between TRS OP, HH DFW Hotel Associates, L.P., HHC TRS Nashville LLC, HH Nashville LLC, HHC TRS FP Portfolio LLC, HH FP Portfolio LLC, HH Denver LLC, HHC TRS Highland LLC, HH Gaithersburg LLC, HHC TRS Atlanta LLC, HH Atlanta LLC, Highland Hospitality, L.P., Marriott International, Inc., Marriott Hotel Services, Inc., Renaissance Hotel Management Company, LLC, Courtyard Management Corporation, and The Ritz-Carlton Hotel Company, L.L.C., as amended by that certain Liquor License Agreement, dated July 17, 2007, between Courtyard Management Corporation, HH FP Portfolio LLC and HHC TRS FP Portfolio LLC, as amended by that certain Real Estate and Property Taxes Agreement, dated February 26, 2010, between Courtyard Management Corporation, HHC TRS Baltimore LLC, HHC TRS Portsmouth LLC and HHC TRS FP Portfolio LLC.





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Courtyard Gaithersburg 


	HH Gaithersburg LLC
	Marriott
	That certain Management Agreement between CY-Gaithersburg LLC and Courtyard Management Corporation, dated June 29, 2004, as Amended by that certain Letter Agreement, dated May 30, 2006, between CY-Gaithersburg LLC and Courtyard Management Corporation, as assigned by that certain Consent and Assignment and Assumption of Management Agreement, dated June 1, 2006, by and among CY-Gaithersburg LLC, HHC TRS Highland LLC, HH Gaithersburg LLC and Courtyard Management Corporation, as amended by that certain First Amendment of Management Agreement, dated June 1, 2006, between HHC TRS Highland LLC and Courtyard Management Corporation, as amended by that certain Assignment, Assumption and Second Amendment of Management Agreement, dated July 17, 2007, between HHC TRS Highland LLC, HHC TRS Baltimore, HH Gaithersburg LLC and Courtyard Management Corporation, as further amended by that certain Third Amendment to Management Agreement, dated March 10, 2011, between HHC TRS Baltimore LLC and Courtyard Management Corporation, as amended by that certain Letter Agreement, dated July 17, 2007, between HHC TRS Baltimore LLC and Courtyard Management Corporation, as amended by that certain Mutual Release, Dated July 17, 2007, between Marriott Hotel Services, Inc., Renaissance Hotel Management Company, LLC, Courtyard Management Corporation, The Ritz-Carlton Hotel Company, LLC, HHC TRS Portsmouth LLC, HHC TRS Nashville LLC, HHC TRS FP Portfolio LLC, and HHC TRS Baltimore LLC, as amended by that certain Liquor License Agreement, dated July 17, 2007, between Courtyard Management Corporation, HH FP Portfolio LLC and HHC TRS FP Portfolio LLC, as amended by that certain Real Estate and Property Taxes Agreement, dated February 26, 2010, between Courtyard Management Corporation, HHC TRS Baltimore LLC, HHC TRS Portsmouth LLC and HHC TRS FP Portfolio LLC.

	Courtyard Savannah Historic District


	HH LC Portfolio LLC
	Marriott
	The Remington Management Agreement

	Crowne Plaza Atlanta  - Ravinia


	HH FP Portfolio LLC
	Marriott
	The Remington Management Agreement

	Hampton Inn Parsippany


	HH FP Portfolio LLC
	Remington
	The Remington Management Agreement





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Hilton Garden Inn Austin


	HH Austin Hotel Associates, L.P.
	Remington
	The Remington Management Agreement

	Hilton Garden Inn BWI Airport


	HH Baltimore LLC
	Remington
	The Remington Management Agreement

	Hilton Garden Inn Virginia Beach Town Center


	HH LC Portfolio LLC
	Remington
	The Remington Management Agreement

	Hilton Parsippany


	HH FP Portfolio LLC
	Remington
	The Remington Management Agreement

	Hilton Tampa Westshore


	HH Tampa Westshore LLC
	Remington
	The Remington Management Agreement





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Hyatt Regency Savannah


	HH Savannah LLC
	Remington
	That certain Management Agreement, dated May 8, 1979,  between Waterfront Hotel Company and Hyatt corporation as amended by that certain Second Amendment to Management Agreement, dated December 21, 1993, between Waterfront Hotel Company and Hyatt Corporation, as amended by that certain Third Amendment to Management Agreement, dated August 12, 2004, between Waterfront Hotel Company and Hyatt Corporation, as amended by that certain Fourth Amendment to Management Agreement, dated March 10, 2011, between HHC TRS Savannah LLC and Hyatt Corporation, as amended by that certain Assignment and Assumption of Management Agreement, dated December 31, 2003, between AP/APMC Savannah L.P. and HHC TRS OP LLC, as amended by that certain Assignment and Assumption of Contract, Purchase Orders, Tenant Leases and Equipment Leases, dated December 31, 2003 between AP/AMC Savannah, L.P. and HHC TRS OP LLC, as amended by that certain Assignment and Assumption of Management Agreement, dated July 9, 2004, between HHC TRS OP LLC and HHC TRS Holding Corporation, as amended by that certain Assignment and Assumption of Management Agreement, dated July 9, 2004, between HHC TRS Holding Corporation and HHC TRS Savannah LLC, as amended by that certain Addendum to Management Agreement, dated January 31, 2005, between HHC TRS Savannah LLC and Hyatt Corporation, as amended by that certain Confirmation Agreement, dated July 26, 2006, between HHC TRS Savannah LLC and Hyatt Corporation, as amended by that certain Fifth Amendment to Management Agreement, dated as of December 19, 2014 by and between HHC TRS Savannah LLC, and Hyatt Corporation

	Hyatt Regency Wind Watch Long Island


	HH FP Portfolio LLC
	Remington
	The Remington Management Agreement

	Plaza San Antonio Marriott


	HH San Antonio LLC
	Remington
	The Remington Management Agreement





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Dallas-Fort Worth Airport Marriott


	HH DFW Hotel Associates, L.P.
	Remington
	That certain Amended and Restated Management Agreement, dated December 29, 2001, between Host Marriott L.P. and Marriott Hotel Services Inc., as amended by that certain First Amendment to Amended and Restated Management Agreement, dated April 22, 2005, between Host Marriott L.P. and Marriott Hotel Services Inc., as amended by that certain Assignment, Assumption and Second Amendment to Amended and Restated Management Agreement, dated July 17, 2007, between HHC TRS OP LLC, HHC TRS Portsmouth LLC, HH DFW Hotel Associates, L.P. and Marriott Hotel Services Inc., as Amended by that Second Amendment to Amended and Restated Management Agreement, dated March 6, 2009, between HHC TRS Portsmouth LLC and Marriott Hotel Services, Inc., as amended by that certain Third Amendment to Amended and Restated Management Agreement, dated March 10, 2011, between HHC TRS Portsmouth LLC and Marriott Hotel Services, Inc., as amended by that certain Letter Agreement, dated July 17, 2007, between HHC TRS Portsmouth LLC and Marriott Hotel Service, Inc., as amended by that certain Letter Agreement, dated July 17, 2007, between Marriott Hotel Service Inc. and HHC TRS Portsmouth LLC, as amended by that certain Mutual Release, dated July 17, 2007, by and between HHC TRS OP LLC, HH DFW Hotel Associates, L.P., HHC TRS Nashville LLC, HH Nashville LLC, HHC TRS FP Portfolio LLC, HH FP Portfolio LLC, HH Denver LLC, HH TRS Highland LLC, HH Gaithersburg LLC, HH TRS Atlanta LLC, HH Atlanta LLC, Highland Hospitality, L.P. and Marriott International, Inc., Marriott Hotel Services, Inc., Renaissance Hotel Management Company, LLC, Courtyard Management Corporation and The Ritz-Carlton Hotel Company, L.L.C., as amended by that certain Liquor License Agreement between Marriott Hotel Services, Inc., HH DFW Hotel Associates, L.P. and HHC TRS Portsmouth LLC.

	Omaha Marriott


	HH LC Portfolio LLC
	Remington
	The Remington Management Agreement

	Sugar Land Marriott Town Square Hotel and Conference Center


	HH Texas Hotel Associates L.P.
	Remington
	The Remington Management Agreement

	The Melrose Hotel


	HH Melrose Hotel Associates, L.P.
	Remington
	The Remington Management Agreement





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Renaissance Palm Springs


	HH Palm Springs LLC
	Remington
	The Remington Management Agreement

	Portsmouth Renaissance Hotel and Waterfront Conference Center


	Portsmouth Hotel Associates LLC
	Remington
	The Remington Management Agreement

	Residence Inn Tampa Downtown


	HH LC Portfolio LLC
	Remington
	The Remington Management Agreement





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	Ritz-Carlton Atlanta Downtown


	HH Atlanta LLC
	Remington
	That certain Amended and Restated Management Agreement, dated January 1, 2002, between Host Marriott, L.P. and The Ritz-Carlton Hotel Company, L.L.C., as amended and assigned by that certain Amended and Restated Consent, Assignment and Assumption and Amendment of Management Agreement, dated as of January 1, 2002, between Host Marriott, L.P., CCRC Atlanta LLC, and The Ritz-Carlton Hotel Company, L.L.C., as amended by that certain Assignment and Assumption of Management Agreement, dated September 26, 2006, between The Ritz-Carlton Hotel Company L.L.C., Host Hotels & Resorts, L.P. and HHC TRS Atlanta LLC, as amended by that certain Amendment to Amended and Restated Management Agreement, dated April 30, 2008, between The Ritz-Carlton Hotel Company, L.L.C. and HHC TRS Atlanta LLC, as amended by that certain Second Amendment to Amended and restated Management Agreement, dated March 6, 2009, between HHC TRS Atlanta LLC and The Ritz-Carlton Hotel Company, L.L.C., as amended by that certain Letter Agreement, dated May 18, 2010, between The Ritz-Carlton Hotel Company, L.L.C. and HHC TRS Atlanta LLC, as amended by that certain Third Amendment to Amended and Restated Management Agreement, dated March 10, 2011, between HHC TRS Atlanta LLC and The Ritz-Carlton Hotel Company, L.L.C., as amended by that certain Letter Agreement dated January 1, 2006, from Marriott International on behalf of The Ritz-Carlton Hotel Company, L.L.C., and agreed and accepted by Host Hotels & Resorts, L.P., as amended by that certain Letter Agreement dated January 1, 2006, from Marriott International on behalf of The Ritz-Carlton Hotel Company, L.L.C., and agreed and accepted by Host Hotels & Resorts, L.P., as amended by that certain Letter Agreement, dated July 17, 2007, between The Ritz-Carlton Hotel Company, L.L.C. and HHC TRS Atlanta LLC, as amended by that certain Letter Agreement, dated July 17, 2007, between The Ritz-Carlton Hotel Company, L.L.C. and HHC TRS Atlanta LLC, as amended by that certain Liquor License Agreement, dated July 17, 2007, between The Ritz-Carlton Hotel Company, L.L.C., HH Atlanta LLC and HHC TRS Atlanta LLC, as amended by that certain Mutual Release, dated July 17, 2007, by and between HHC TRS OP LLC, HH DFW Hotel Associates, L.P., HHC TRS Nashville LLC, HH Nashville LLC, HHC TRS FP Portfolio LLC, HH FP Portfolio LLC, HH Denver LLC, HHC TRS Highland LLC, HH Gaithersburg LLC, HHC TRS Atlanta LLC, HH Atlanta LLC, Highland Hospitality, L.P., Marriott International, Inc., Marriott Hotel Services, Inc., Renaissance Hotel Management Company, LLC, Courtyard Management Corporation and The Ritz-Carlton Hotel Company, L.L.C.







20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Managers
	Management Agreements

	The Silversmith Hotel Chicago Downtown


	HH Chicago LLC
	Remington
	The Remington Management Agreement.





20752111.3.BUSINESS 






SCHEDULE V
Operating Leases and Operating Lessees
	
				
	Properties
	Borrowers
	Operating Lessees
	Operating Leases

	The Churchill Hotel
	HH Churchill Hotel Associates, L.P.
	HHC TRS Highland LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Churchill Hotel Associates, L.P., as lessor, and HHC TRS Highland LLC, as lessee.

	Courtyard Boston Tremont


	HH FP Portfolio LLC
	HHC TRS FP Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH FP Portfolio LLC, as lessor, and HHC TRS FP Portfolio LLC, as lessee.

	Courtyard Denver Airport


	HH Denver LLC
	HHC TRS Portsmouth LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Denver LLC, as lessor, and HHC TRS Portsmouth LLC, as lessee.

	Courtyard Gaithersburg 


	HH Gaithersburg LLC
	HHC TRS Baltimore LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Gaithersburg LLC, as lessor, and HHC TRS Baltimore LLC, as lessee.

	Courtyard Savannah Historic District


	HH LC Portfolio LLC
	HHC TRS LC Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH LC Portfolio LLC, as lessor, and HHC TRS LC Portfolio LLC, as lessee.

	Crowne Plaza Atlanta  - Ravinia


	HH FP Portfolio LLC
	HHC TRS FP Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH FP Portfolio LLC, as lessor, and HHC TRS FP Portfolio LLC, as lessee.





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Operating Lessees
	Operating Leases

	Hampton Inn Parsippany


	HH FP Portfolio LLC
	HHC TRS FP Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH FP Portfolio LLC, as lessor, and HHC TRS FP Portfolio LLC, as lessee.

	Hilton Garden Inn Austin


	HH Austin Hotel Associates, L.P.
	HHC TRS Austin LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Austin Hotel Associates, L.P., as lessor, and HHC TRS Austin LLC, as lessee.

	Hilton Garden Inn BWI Airport


	HH Baltimore LLC
	HHC TRS Baltimore LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Baltimore LLC, as lessor and HHC TRS Baltimore LLC, as lessee.

	Hilton Garden Inn Virginia Beach Town Center


	HH LC Portfolio LLC
	HHC TRS LC Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH LC Portfolio LLC, as lessor, and HHC TRS LC Portfolio LLC, as lessee.

	Hilton Parsippany


	HH FP Portfolio LLC
	HHC TRS FP Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH FP Portfolio LLC, as lessor, and HHC TRS FP Portfolio LLC, as lessee.

	Hilton Tampa Westshore


	HH Tampa Westshore LLC
	HHC TRS Tampa LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Tampa Westshore LLC, as lessor, and HHC TRS Tampa LLC, as lessee.

	Hyatt Regency Savannah


	HH Savannah LLC
	HHC TRS Savannah LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Savannah LLC, as lessor, and HHC TRS Savannah LLC, as lessee.





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Operating Lessees
	Operating Leases

	Hyatt Regency Wind Watch Long Island


	HH FP Portfolio LLC
	HHC TRS FP Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH FP Portfolio LLC, as lessor, and HHC TRS FP Portfolio LLC, as lessee.

	Plaza San Antonio Marriott


	HH San Antonio LLC
	HHC TRS Portsmouth LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH San Antonio LLC, as lessor, and HHC TRS Portsmouth LLC, as lessee.

	Dallas-Fort Worth Airport Marriott


	HH DFW Hotel Associates, L.P.
	HHC TRS Portsmouth LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH DFW Hotel Associates, L.P., as lessor, and HHC TRS Portsmouth LLC, as lessee.

	Omaha Marriott


	HH LC Portfolio LLC
	HHC TRS LC Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH LC Portfolio LLC, as lessor, and HHC TRS LC Portfolio LLC, as lessee.

	Sugar Land Marriott Town Square Hotel and Conference Center


	HH Texas Hotel Associates L.P.
	HHC TRS LC Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Texas Hotel Associates, L.P., as lessor, and HHC TRS LC Portfolio LLC, as lessee.

	The Melrose Hotel


	HH Melrose Hotel Associates, L.P.
	HHC TRS Melrose LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Melrose Hotel Associates, L.P., as lessor, and HHC TRS Melrose LLC, as lessee.





20752111.3.BUSINESS 






	
				
	Properties
	Borrowers
	Operating Lessees
	Operating Leases

	Renaissance Palm Springs


	HH Palm Springs LLC
	HHC TRS Portsmouth LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Palm Springs LLC, as lessor, and HHC TRS Portsmouth LLC, as lessee.

	Portsmouth Renaissance Hotel and Waterfront Conference Center


	Portsmouth Hotel Associates LLC
	HHC TRS Portsmouth LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by Portsmouth Hotel Associates, LLC, as lessor, and HHC TRS Portsmouth LLC, as lessee.

	Residence Inn Tampa Downtown


	HH LC Portfolio LLC
	HHC TRS LC Portfolio LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH LC Portfolio LLC, as lessor, and HHC TRS LC Portfolio LLC, as lessee.

	Ritz-Carlton Atlanta Downtown


	HH Atlanta LLC
	HHC TRS Atlanta LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Atlanta LLC, as lessor, and HHC TRS Atlanta LLC, as lessee.

	The Silversmith Hotel Chicago Downtown


	HH Chicago LLC
	HHC TRS Chicago LLC
	That certain Amended and Restated Lease Agreement, dated as of March 10, 2011, by HH Chicago LLC, as lessor, and HHC TRS Chicago LLC, as lessee.





20752111.3.BUSINESS 






SCHEDULE VI
Scheduled PIP
[See attached]

20752111.3.BUSINESS 






SCHEDULE VII
Reserved

20752111.3.BUSINESS 






SCHEDULE VIII
Reserved

20752111.3.BUSINESS 






SCHEDULE IX
Reserved

20752111.3.BUSINESS 






SCHEDULE X
Reserved



20752111.3.BUSINESS 






SCHEDULE XI
Subordination of Management Agreements
		
	1.
	Assignment and Subordination of Management Agreement and Consent of Manager (Remington Properties) (Mezz C) between HHC TRS Tampa LLC, HHC TRS Highland LLC, HHC TRS Baltimore LLC, HHC TRS Portsmouth LLC, HHC TRS Austin LLC, HHC TRS Chicago LLC, HHC TRS Melrose LLC, HHC TRS LC Portfolio LLC, HHC TRS Atlanta LLC, HHC TRS FP Portfolio LLC, Borrower, Lender, Remington, HHC TRS Baltimore II LLC, PIM TRS Boston Back Bay LLC and HHC TRS Princeton LLC;




		
	2.
	Subordination, Non-Disturbance and Attornment Agreement (Hyatt Regency Savannah) (Mezz C) between HHC TRS Savannah LLC, HH Savannah LLC, Hyatt Corporation and Lender;




		
	3.
	Subordination, Non-Disturbance and Attornment Agreement (Gaithersburg Courtyard) (Mezz C) between Courtyard Management Corporation, HHC TRS Baltimore LLC, HH Gaithersburg LLC, Ashford A-3 Mezz LLC and Lender;




		
	4.
	Subordination, Non-Disturbance and Attornment Agreement (Boston Courtyard) (Mezz C) between Courtyard Management Corporation, HHC TRS FP Portfolio LLC, HH FP Portfolio LLC, Ashford A-3 Mezz LLC and Lender;




		
	5.
	Subordination, Non-Disturbance and Attornment Agreement (Atlanta Ritz Carlton) (Mezz C) between The Ritz-Carlton Hotel Company, L.L.C., HHC TRS Atlanta LLC, HH Atlanta LLC, Ashford A-3 Mezz LLC and Lender;




		
	6.
	Subordination, Non-Disturbance and Attornment Agreement (Marriott DFW) (Mezz C) between Marriott Hotel Services, Inc., HHC TRS Portsmouth LLC, HH DFW Hotel Associates, L.P., Ashford G-3 Mezz LLC and Lender; and 




		
	7.
	Subordination, Non-Disturbance and Attornment Agreement (Marriott Denver) (Mezz C) between Courtyard Management Corporation, HHC TRS Portsmouth LLC, HH Denver LLC, Ashford A-3 Mezz and Lender.









20752111.3.BUSINESS 






SCHEDULE XII
Ground Leases


Full: 
Palm Springs Ground Lease:
That certain Business Lease No. PSL-315, dated February 28, 1984 (the “Original Master Lease”), between the parties identified on Addendum No. 1 thereto (collectively, including their respective successors in interest, the “Master Ground Lessor”), as lessors, and Shale Energy Corporation of America, a Texas corporation (“SENCA”), as lessee, as assigned by that certain Assignment of Option to Lease, dated December 31, 1984, between SENCA and SENCA Palm Springs Inc., a California corporation (“SENCA-PS”), as further assigned by that Agreement to Assign and Assume Lease, dated July 20, 1989, between SENCA-PS and the City of Palm Springs, a municipal corporation (the “City”) and that certain Agreement of Assignment, dated September 28, 1989, between SENCA-PS and the City, as amended by that certain Amendment No. 1 to PSL-315, dated August 10, 1995, between the United States Secretary of the Interior (the “Secretary”), acting on behalf of the Master Ground Lessor, and Sumitomo Bank of California, a California banking corporation, as further amended by that certain Amendment to Lease, dated as of October 28, 1998, between the Secretary, the Master Ground Lessor, and the City, as further amended by that certain First Amendment to Business Lease-315, dated  April 7, 2004, between the Ground Lessor and the City, as further amended by that certain Second Amendment to Business Lease-315, dated February 9, 2006, between the Ground Lessor and the City, as further amended by that certain Estoppel Certificate (Business Lease No. PSL-315), dated July 17, 2007, from the Secretary, acting on behalf of the Master Ground Lessor, for the benefit of Borrower and certain other parties (the Original Master Lease, as so amended and assigned, the “Master Lease”), together with that certain Sublease (Hotels I-XI), dated December 31, 1984, between SENCA-PS, as original sublandlord, and The Community Redevelopment Agency of The City of Palm Springs, California, a public body (the “Agency”), as subtenant, as assigned by that certain Agreement of Assignment, dated September 28, 1989, from SENCA PS to City, as amended by that certain Supplement (for Purpose of Conforming Legal Description) to Sublease, dated December 3, 1992, between the City, in its capacity as sublandlord (the “Sublessor” and together with the Master Ground Lessor, individually and/or collectively, as the context may require, the “Ground Lessor”) and the Agency, as amended by that certain Assignment and Amendment of Sublease and Termination of Sub-Subleases, dated November 5, 1998, between the Agency, Sublessor, AP/APH Palm Springs, L.P., a Delaware limited partnership (“AP/APH”), and the other parties thereto identified therein, as further assigned by that certain Assignment of Sublease, dated November 5, 1998, among Agency, City, and AP/APH, as further amended and assigned by that certain Assignment and Termination of Sub-subleases, dated November 5, 1998, between Agency, AP/APH, and the other parties thereto, as further assigned by that certain Assignment of Ground Sublease, dated July 14, 2005, between AP/APH, Sublessor, and the other parties thereto, as further amended by that certain Estoppel Certificate, dated July 17, 2007, from Sublessor, for the benefit of Borrower and certain other parties, as further amended by that certain Estoppel Certificate, dated on or about March 2011, from Sublessor, for the benefit of Borrower and certain other parties; 

20752111.3.BUSINESS 






Approval of Leasehold Deed of Trust, Assignment of Leases And Rents, Security Agreement and Fixture Filing, dated as of March 5, from the United States Department of the Interior Bureau of Indian Affairs; 
ESTOPPEL CERTIFICATE (Business Lease PSL-315), dated as of March 3, 2015 by the United States Secretary of the Interior, to and for the benefit of HH Palm Springs LLC, a Delaware limited liability company, PIM Highland Holding LLC, a Delaware limited liability company, Ashford, Lender, Mortgage Lender and Other Mezzanine Lenders; and 
Estoppel Certificate Regarding Sublease (Hotels I–XI), effective as of February 24, 2015 given by The City of Palm Springs, a municipal corporation (successor in interest to SENCA Palm Springs, Inc., a California corporation), as sublandlord, HH Palm Springs LLC, a Delaware limited liability company, PIM Highland Holding LLC, a Delaware limited liability company, Ashford, Lender, Mortgage Lender and Other Mezzanine Lenders.


Portsmouth Ground Lease:
That certain Hotel Lease Agreement, dated as of May 24, 1999, between the Economic Development Authority of the City of Portsmouth, Virginia (as successor by name change to Industrial Development Authority of the City of Portsmouth) “Lessor”) and Portsmouth Hotel Associates, LLC (“Lessee”), as evidenced by that certain Memorandum of Lease between Lessor and Lessee, recorded in the clerk’s office of the Circuit Court of Portsmouth, Virginia at Book 1260, Page 1051; 
That certain Conference Center Lease Agreement, dated as of May 24, 1999, between the Economic Development Authority of the City of Portsmouth, Virginia (as successor by name change to Industrial Development Authority of the City of Portsmouth) (“Lessor”) and Portsmouth Hotel Associates, LLC (“Lessee”), as evidenced by that certain Memorandum of Lease between Lessor and Lessee, recorded in the clerk’s office of the Circuit Court of Portsmouth, Virginia at Book 1260, Page 1057; and 
Ground Lessor’s Estoppel Certificate dated February 24, 2015, by Economic Development Authority of the City of Portsmouth, Virginia (successor by name change to Industrial Development Authority of the City of Portsmouth), a political subdivision and body politic and corporate, organized under the laws of the Commonwealth of Virginia, and acknowledged and agreed solely for purposes of certain provisions therein, Portsmouth Hotel Associates, LLC, a Delaware limited liability company, to and for the benefit of (i) Portsmouth Hotel Associates, LLC, (ii) PIM Highland Holding LLC, a Delaware limited liability company, Ashford Hospitality Limited Partnership, a Delaware limited partnership, and each of their respective affiliates, and (iii) Column Financial Inc., as mortgage lender and as mezzanine lender, and each of their successors and/or assigns.

20752111.3.BUSINESS 






Partial: 
Atlanta Ground Lease:
That certain Cross-Lease and Easement Agreement, by and between One Ninety One Peachtree Associates (the “Original Landlord”) and Peachtree Palace Venture (the “Original Tenant”), dated as of February 10, 1988, as evidenced by (a) Indenture of Lease dated February 10, 1988, between Original Landlord and Original Tenant, recorded in Deed Book 11321, Page 66, Fulton County, Georgia Records (the “Official Records”), and (b) Indenture of Lease and Easement Grant dated February 10, 1988, between Original Landlord and Original Tenant, recorded in Deed Book 11321, Page 66 of the Official Records, as assigned by that certain Assignment and Assumption Agreement of Cross-Lease and Easement Agreement, by and between Original Tenant, as assignor, and HMH Properties, Inc., as assignee, dated as of September 19, 1996 and recorded in Deed Book 21499, Page 140 of the Official Records, as further assigned by that certain Assignment and Assumption Agreement of Cross-Lease and Easement Agreement, by and between Host Hotels & Resorts, L.P., as assignor, and HH Atlanta LLC (the “Tenant”), as assignee, dated as of September 22, 2006 and recorded in Deed Book 43534, Page 223 of the Official Records, as further assigned by that certain Assignment and Assumption of Cross-Lease and Easement Agreement, by and between Original Landlord, as assignor, and 191 Peachtree Project, LLC (the “Landlord”), as assignee, dated as of March 29, 2012; and 
That certain estoppel dated February 26, 2015, by 191 Peachtree Project, LLC, as successor-in-interest to One Ninety One Peachtree Associates, LLC, a Georgia limited liability company, to and for the benefit of (i) HH Atlanta LLC, a Delaware limited liability company (ii) PIM Highland Holding LLC, a Delaware limited liability company, and Ashford, and each of their respective affiliates, and (iii) Column Financial Inc., as mortgage lender, and any and all mezzanine lenders and their respective successors and assigns.
Austin Ground Lease:
That certain Office Lease, dated as of November 16, 1994, between Sabine-Waller Creek, Ltd., predecessor-in-interest to Sabine Residences, L.P., as landlord, and Waller Hotel G.P., Inc., predecessor-in-interest to HH Austin Hotel Associates, L.P., as tenant; and 
That certain Estoppel Certificate (Office Lease) dated February 25, 2015 by Sabine Residences, L.P., as ground landlord, for the benefit of HH Austin Hotel Associates, L.P., as ground tenant, PIM Highland Holding LLC, Ashford, and each of their respective affiliates; and Lender, Mortgage Lender and Other Mezzanine Lender, and each of their respective affiliates.
San Antonio Ground Lease:
That certain lease agreement dated as of February 9, 1979 between City of San Antonio, as lessor, and Plaza Nacional Group, Ltd., predecessor-in-interest to HH San Antonio LLC, as lessee, as amended by that certain Amendment to Plaza Nacional German-English School Lease dated October 3, 1985 between City of San Antonio, as lessor, and Plaza Nacional-San Antonio Limited, predecessor-in-interest to HH San Antonio LLC, as lessee; and 

20752111.3.BUSINESS 






Landlord Estoppel Certificate dated February 26, 2015 by City of San Antonio, as ground landlord, for the benefit of HH Austin Hotel Associates, L.P., as ground tenant, PIM Highland Holding LLC, Ashford, and each of their respective affiliates; and Lender, Mortgage Lender and Other Mezzanine Lender, and each of their respective affiliates.
Sugar Land Ground Lease:
That certain Conference Center and Parking Lease Agreement, dated as of February 28, 2002, between Sugar Land Town Square Development Authority and HH Texas Hotel Associates, L.P. (f/k/a Sugar Land Hotel Associates, L.P.), as amended pursuant to that certain first amendment to Conference Center and Parking Lease Agreement, dated as of August 5, 2003, and as further amended pursuant to that certain Second Amendment to Conference Center and Parking Lease Agreement, dated as of April 19, 2005; and 
Lease Estoppel Certificate dated February 24, 2015, by Sugar Land Town Square Development Authority, a local government corporation organized and existing under Subchapter D of Chapter 431, Texas Transportation Code, to and for the benefit of (i) HH Texas Hotel Associates, L.P. (f/k/a Sugar Land Hotel Associates, L.P.), a Delaware limited partnership, (ii) PIM Highland Holding LLC, a Delaware limited liability company, Ashford Hospitality Limited Partnership, a Delaware limited partnership, and each of their respective affiliates, and (iii) Column Financial Inc., as mortgage lender and as mezzanine lender, and each of their successors and/or assigns.
Wind Watch Hauppauge Ground Lease:
That certain Lease Agreement, dated as of February 28, 1990, between Long Island Lighting Company (the “Wind Watch Landlord”) and Colony Hill Associates (the “Original Wind Watch Tenant”), as evidenced by that certain Memorandum of Lease, between Wind Watch Landlord and Original Wind Watch Tenant, dated February 28, 1990 and recorded in the Office of the Clerk of the County of Suffolk in Liber 1048 cp 246, as amended by that certain Lease Amendment, dated as of September 24, 1996, between Wind Watch Landlord and Original Wind Watch Tenant, as assigned by that certain Quitclaim Assignment and Assumption of Lease, dated as of September 24, 1996, from Original Wind Watch Tenant, as assignor, to PAH Windwatch, LLC (“PAH”), as assignee, as further amended by that certain Second Amendment of Lease, dated as of September 24, 1996, between Wind Watch Landlord and PAH, as assigned to HH FP Portfolio LLC (the “New Wind Watch Tenant”) by that certain Assignment of Ground Lease, dated as of August 19, 2004, by and between PAH and New Wind Watch Tenant and recorded in the Office of the Clerk of the County of Suffolk in Liber 12345, page 941, and evidenced by that certain Consent to Assignment of Lease, dated as of August 19, 2004, by and between Landlord, PAH and New Wind Watch Tenant; and 
That certain Estoppel Certificate dated March 5, 2015, by Long Island Electric Utility Servco LLC, as agent and acting on behalf of the Long Island Lighting Company d/b/a LIPA to and for the benefit of (i) HH FP Portfolio LLC, a Delaware limited liability company (ii) PIM Highland Holding LLC, a Delaware limited liability company, and Ashford, and each of their respective affiliates, and (iii) Column Financial Inc., as mortgage lender, and any and all mezzanine lenders and their respective successors and assigns.  

20752111.3.BUSINESS 






SCHEDULE XIII
Select Release Properties


	
	
	1. Residence Inn Tampa Downtown FL

	2. Courtyard Gaithersburg MD

	3. Hilton Garden Inn BWI Airport MD

	4. Hilton Garden Inn Virginia Beach MD

	5. Courtyard Denver Airport CO

	6. Hampton Inn Parsippany NJ

	7. Hilton Garden Inn Austin Downtown TX

	8. Courtyard Savannah GA



















20752111.3.BUSINESS 






SCHEDULE XIV
Prime ROFO Release Properties
	
	
	 

	1. The Churchill DC

	2. The Melrose DC

	3. Courtyard Boston Downtown MA

	4. Ritz-Carlton Atlanta GA













20752111.3.BUSINESS 






SCHEDULE XV
Condominium Documents


Austin Condominium Documents: 
The Sabine Master Condominium Declaration dated April 27, 2007 by Sabine Residences, L.P., as master declarant; and as further amended by First Amendment to Sabine Master Condominium Declaration dated December 30, 2009 by The Sabine Master Condominium Association, Inc., as master association.
Gaithersburg Condominium Documents:
1)    Washingtonian Waterfront Condominium
(a)    Declaration for Washingtonian Waterfront Condominium, dated April 1, 2003, by Washingtonian Lake, L.L.C., recorded in Liber 23525 at folio 390, as amended by Amendment to Declaration for Washingtonian Waterfront Condominium dated May 26, 2006, recorded in Liber 32513 at folio 522, in each case in the Land Records of Montgomery County, Maryland
(b)    Bylaws of Council of Unit Owners of Washingtonian Waterfront Condominium
2)    Washingtonian Waterfront Commercial Association, Inc. Condominium
(a)    Declaration of Covenants, Conditions, Easements and Restrictions for Washingtonian Waterfront Commercial Association, Inc., dated April 1, 2003, by Washingtonian Lake, L.L.C. and Washingtonian Office Associates, LLC, recorded in Liber 23525 at folio 244, as amended by Declaration Supplement, dated April 1, 2003, by and between Washingtonian Lake, L.L.C. and Washingtonian Office Associates, LLC, recorded in Liber 23525 at folio 372, as further amended by Declaration Supplement dated April 1, 2003, by and between Washingtonian Lake, L.L.C., Washingtonian Office Associates, LLC, and CY-Gaithersburg, LLC recorded in Liber 23525 at folio 461, and as further amended by First Supplementary Declaration dated December 2, 2008, by and between Washingtonian Lake, L.L.C., Washingtonian Waterfront Commercial Association, Inc. recorded in Liber 36284 at folio 143, in each case in the Land Records of Montgomery County, Maryland
(b)    Articles of Incorporation of Washingtonian Waterfront Commercial Association, Inc.
(c)    Bylaws of Washingtonian Waterfront Commercial Association, Inc.
3)    The Washingtonian Center Association, Inc. Condominium
(a)    Declaration of Covenants, Conditions, Restrictions and Easements, dated May 23, 1986, by Washingtonian Investors Limited Partnership, recorded in Liber 7144 at folio 287, as amended and affected by: First Supplement to Declaration of Covenants, Conditions, Restrictions and Easements for Washingtonian Center, dated January 29, 1988, recorded in Liber 9123 at folio 600; Second Supplement to Declaration of Covenants, Conditions, Restrictions and Easements for 

20752111.3.BUSINESS 






Washingtonian Center, dated April 10, 1990, recorded in Liber 9268 at folio 504; Third Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated March 15, 1990, recorded in Liber 9237 at folio 004; Fourth Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated May 2, 1997, recorded in Liber 14856 at folio 256; Fifth Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated May 23, 2008, recorded in Liber 35818 at folio 391; Sixth Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated October 1, 2008, recorded in Liber 36088 at folio 006; Seventh Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated January 12, 2009, recorded in Liber 36421 at folio 217; Eighth Supplement to Declaration of Covenants, Conditions, Restrictions and Easements, dated October 28, 2011, recorded in Liber 42601 at folio 095; Agreement Regarding Covenants, Conditions and Restrictions, dated May 2, 1997, recorded in Liber 14856 at folio 329; Agreement Regarding Covenants, Conditions and Restrictions, dated June 18, 1999, recorded in Liber 17219 at folio 125; Assignments of Declarant's interest, dated October 19, 1994, recorded in Liber 10987 at folio 232 and in Liber 13024 at folio 136; Agreement Regarding Covenants, Conditions, Restrictions and Easements, dated April 1, 2003, by and between Washingtonian Associates, L.C., The Washingtonian Center Association, Inc. and CY-Gaithersburg, LLC, recorded in Liber 23525 at folio 532; Notice of Approval of Plans and Specifications recorded in Liber 23525 at folio 550; Notice of Approval of Final Plans and Specifications recorded in Liber 29208 at folio 648, in each case in the Land Records of Montgomery County, Maryland
(b)    Articles of Incorporation of The Washingtonian Center Association, Inc.
(c)    Bylaws of The Washingtonian Center Association, Inc.
Portsmouth Condominium Documents:
1)    Declaration of Condominium for Portsmouth Conference Center Hotel, a Condominium, by Economic Development Authority of the City of Portsmouth, Virginia (successor by name change to Industrial Development Authority of the City of Portsmouth, Virginia), dated March 3, 1999, and recorded on April 2, 1999, in Deed Book 1255, page 723, in the office of the Clerk of the Circuit Court of the City of Portsmouth, Virginia
2)    Articles of Incorporation of Portsmouth Conference Center Hotel Association
3)    Bylaws of Portsmouth Conference Center Hotel Association
Sugar Land Condominium Documents:
1)    Sugar Land Hotel and Conference Center Condominium
(a)    Condominium Declaration for Sugar Land Hotel and Conference Center, a Condominium, by Town Center Lakeside, Ltd., dated February 28, 2002, and recorded under Clerk’s File Number 2002020609 of the Official Public Records of Fort Bend County, Texas

20752111.3.BUSINESS 






(b)    Articles of Incorporation of Sugar Land Hotel and Conference Center Association, Inc.
(c)    Bylaws of Sugar Land Hotel and Conference Center Association, Inc.
2)    Sugar Land Town Square Parking Condominium 
(a)    Condominium Declaration for Sugar Land Town Square Parking Condominium, by Town Center Lakeside, Ltd., as declarant, Sugar Land Town Square Development Authority, as conference parking unit owner, and Sugar Land Hotel Associates, L.P. (n/k/a HH Texas Hotel Associates, L.P.), as conference parking unit lessee, dated June 25, 2003, and recorded under Clerk’s File Number 2003119601 of the Official Public Records of Fort Bend County, Texas (the “Original Declaration”), and amended and corrected by those certain instruments recorded under Clerk’s File Numbers 2005154466, 2006054380, 2006128021, 2009028341 and 2013107851, respectively, of the Official Public Records of Fort Bend County, Texas
(b)    Articles of Incorporation of Sugar Land Town Square Parking Association, Inc. 
(c)    Bylaws of Sugar Land Town Square Parking Association, Inc. 
3)    Sugar Land Town Square Condominium:
(a)    Declaration for Sugar Land Town Square, by Town Center Lakeside, Ltd., dated February 20, 2002, and recorded under Clerk’s File Number 2002020602 of the Official Public Records of Fort Bend County, Texas (the “Original Declaration”), and amended and corrected by those certain instruments recorded under Clerk’s File Numbers 2002133375, 2005008449 and 2008075480, respectively, of the Official Public Records of Fort Bend County, Texas
(b)    Articles of Incorporation of Sugar Land Town Square Property Owners’ Association, Inc. 
(c)    Bylaws of Sugar Land Town Square Property Owners’ Association, Inc. 
4)    (a)    First Colony Condominium
(i)    Declaration of Covenants, Conditions, and Restrictions for the First Colony Property Owners’ Association, Inc., by Sugar Land Properties Incorporated, dated December 15, 1993, and recorded under Clerk’s File Number 9383229 in the Real Property Records of Fort Bend County, Texas and in Volume 2603, Page 1235, et seq., of the Official Public Records of Fort Bend County, Texas, and amended by that certain instrument recorded under Clerk’s File Numbers 9478085 in the Real Property Records of Fort Bend County, Texas and in Volume 2603, Page 1235, et seq., of the Official Public Records of Fort Bend County, Texas
(ii)    Amended and Restated Annexation and Supplemental Amendment to Declaration for Town Center North 
(iii)    Articles of Incorporation of First Colony Property Owners’ Association, Inc.

20752111.3.BUSINESS 






(iv)    Bylaws of First Colony Property Owners’ Association, Inc.

20752111.3.BUSINESS 






SCHEDULE XVI


Previously-Owned Property


[Attached please find the Legal Description of the Wind Watch vacant “office parcel”]

20752111.3.BUSINESS 






SCHEDULE 4.44 
 
Ground Lease Exceptions




Section 4.44(a)


		
	•
	Under the Palm Springs Ground Lease, the landlord under the master lease was required to deliver an appraisal at least six months prior to the beginning of the 2015 calendar year but failed to deliver such appraisal.  An appraisal is currently being obtained and upon completion of the appraisal, the gross minimum annual rent will be adjusted retroactively.


		
	·
	Under the Sugar Land Ground Lease, Borrower is required to deliver annual audited financial reports for the Marriott Sugar Land hotel and conference center. Borrower does not provide such annual audited reports but does provide unaudited financial reports for the Marriott Sugar Land. The ground lessor has indicated in the estoppel delivered in connection with the closing of the Loan that it has been provided with acceptable unaudited financial information.  Pursuant to Section 15.1 hereof, Borrower and Guarantor will be liable for loss recourse in the event Lender suffers any loss because of Borrower’s failure to deliver audited financial statements as required by the Sugar Land Ground Lease.


Section 4.44(d)


		
	·
	The Portsmouth Ground Lease imposes certain restrictions on assignments of the applicable Mortgage Borrower’s interest in the Portsmouth Ground Lease to entities that are neither Lender (including its successors and assigns (including the trustee of a REMIC Trust)) nor affiliates of Lender (including its successors and assigns (including the trustee of a REMIC Trust)), provided that no consent of the lessor will be needed if such transferee is a “Leasehold Mortgagee” (as such term is defined in the Portsmouth Ground Lease) or satisfies the following conditions: (i) has demonstrated experience in managing and operating conference centers, either free-standing or in conjunction with the management and operation of hotels, or in managing or operating hotels a substantial business of which involves the provision of conference facilities; and (ii) among other things, (a) has a verifiable net worth of not less than 10% of the then replacement cost of the Hotel (as defined in the Portsmouth Ground Lease); (b) is approved by the applicable Franchisor under the related Franchise Agreement and by each Leasehold Mortgagee (as defined in the Portsmouth Ground Lease) (if contractually required); (c) has not, and whose officers, directors, partners or principals have not, been convicted of a felony and is known to have not engaged in criminal activity or other activity involving moral turpitude (including an affiliate of such entity); (d) does not, as its primary business, own, lease or operate any casino or gambling facility (including an affiliate of such entity); and (e) does not own or operate a distillery, winery or brewery or distributorship of alcoholic beverages if such leasing ownership or operation might reasonably impair the ability of the tenant under the Portsmouth Ground Lease or its affiliates to obtain or retain alcoholic beverage licenses for the Hotel (as defined in the Portsmouth Ground Lease) or the Conference Center (as defined in the Portsmouth Ground Lease).



20752111.3.BUSINESS 






		
	·
	The San Antonio Ground Lease permits assignment of the San Antonio Ground Lease by ground tenant, provided that the prior written approval of the ground lessor is obtained which approval will not be unreasonably withheld. The approval of the ground lessor can only be given pursuant to an ordinance enacted by the City Council. Note: The San Antonio Ground Lease covers two (2) small buildings (one 6,598 sq feet, and the other 4,200 square feet) that are not part of the hotel.  In the appraisal delivered to Lender on or prior to the Closing Date, no value was


Section 4.44(e)
		
	·
	Under the Austin Ground Lease, the ground lessor is not required to obtain Lender’s consent to terminate the Austin Ground Lease in the event of the following: (i) demolition, destruction or condemnation of all or a substantial portion of the parking garage or the building, where (a) ground lessor does not have finances to restore following such casualty or condemnation or (b) ground lessor deems it not economically desirable to restore following such casualty or condemnation, or (ii) if the Skybridge Agreement (as defined in the Austin Ground Lease), the Sabine Deed (as defined in the Austin Ground Lease), Waller Deed (as defined in the Austin Ground Lease) or Easement Agreement (as defined in the Austin Ground Lease) becomes invalid or unenforceable by judicial determination.


		
	·
	The Wind Watch Ground Lease requires that notice of default be sent to the mortgage lender, and contemplates mortgage lender consent for terminations, but does not extend either of these protections to the mezzanine lender.  Note, termination of the Wind Watch Ground Lease in violation of the Loan Documents will trigger recourse liability pursuant to Section 15.1 hereto.


		
	·
	Under the San Antonio Ground Lease the ground lessor is not required to give notice of any default by Mortgage Borrower to Lender.  The San Antonio Ground Lease does not contain any provisions requiring Lender consent prior to the termination of the San Antonio Ground Lease. Note: Termination of the San Antonio Ground Lease in violation of the Loan Documents will trigger recourse liability pursuant to Section 15.1 of this Agreement.  The San Antonio Ground Lease covers two (2) small buildings (one 6,598 sq feet, and the other 4,200 square feet) that are not part of the hotel.  In the appraisal delivered to Lender on or prior to the Closing Date, no value was attributed to the Ground Leased Property covered by the San Antonio Ground Lease.


Section 4.44(f)
		
	·
	There are no provisions in the San Antonio Ground Lease permitting Lender an opportunity to cure any default under the San Antonio Ground Lease before the ground lessor may terminate the San Antonio Ground Lease. Note: Termination of the San Antonio Ground Lease in violation of the Loan Documents will trigger recourse liability pursuant to Section 15.1 of this Agreement. The San Antonio Ground Lease covers two (2) small buildings (one 6,598 sq feet, and the other 4,200 square feet) that are not part of the hotel.  In the appraisal 



20752111.3.BUSINESS 






delivered to Lender on or prior to the Closing Date, no value was attributed to the Ground Leased Property covered by the San Antonio Ground Lease.
		
	·
	The Wind Watch Ground Lease provides the mortgage lender with an opportunity to cure defaults, but does not extend that protection to the mezzanine lender.


Section 4.44(g)
		
	·
	San Antonio Ground Lease, which expires in 2028. Note: The San Antonio Ground Lease covers two (2) small buildings (one 6,598 sq feet, and the other 4,200 square feet) that are not part of the hotel.  In the appraisal delivered to Lender on or prior to the Closing Date, no value was attributed to the Ground Leased Property covered by the San Antonio Ground Lease. 


Section 4.44(h)
		
	·
	Under the Austin Ground Lease, the ground lessor is not required to enter into a new lease with Lender in the event the Austin Ground Lease is terminated because of: (i) a demolition, destruction or condemnation of all or a substantial portion of the parking garage or the building, where (a) ground lessor does not have the finances to restore following such casualty or condemnation or (b) ground lessor deems it not economically desirable to restore following such casualty or condemnation, or (ii) if the Skybridge Agreement (as defined in the Austin Ground Lease), the Sabine Deed (as defined in the Austin Ground Lease), Waller Deed (as defined in the Austin Ground Lease) or Easement Agreement (as defined in the Austin Ground Lease) becomes invalid or unenforceable by judicial determination.


		
	·
	There are no provisions in the San Antonio Ground Lease requiring lessor to enter into a new lease with Lender upon termination of the San Antonio Ground Lease: The San Antonio Ground Lease covers two (2) small buildings (one 6,598 sq feet, and the other 4,200 square feet) that are not part of the hotel.  In the appraisal delivered to Lender on or prior to the Closing Date, no value was attributed to the Ground Leased Property covered by the San Antonio Ground Lease.


		
	·
	Under the Wind Watch Hauppauge Ground Lease (which Ground Lease only covers a portion of the parking that is not necessary for zoning), the ground lessor is required to enter into a new lease with Lender upon the termination of the Wind Watch Hauppauge Ground Lease by the ground lessor as a result of a default by Borrower under the Wind Watch Hauppauge Ground Lease but is not required to enter into a new lease with Lender in the event the Wind Watch Hauppauge Ground Lease is terminated because of a rejection of the same in a bankruptcy proceeding.  Note: The Wind Watch Hauppauge Ground Lease prohibits the ground lessor from accepting a mutual termination or surrender of the Wind Watch Hauppauge Ground Lease without Lender’s consent while the Loan is outstanding.  Also termination of the Wind Watch Hauppauge Ground Lease in violation of the Loan Documents will trigger recourse liability pursuant to Section 15.1 of this Agreement. 





20752111.3.BUSINESS 






Section 4.44(i)
		
	·
	The Portsmouth Ground Lease requires that the net proceeds of all insurance proceeds, condemnation and similar awards be held in trust and used for the purposes and distributed in accordance with the provisions of the Portsmouth Ground Lease and the Portsmouth Condominium Documents.  The Portsmouth Ground Lease and the Portsmouth Condominium Documents generally require that the net proceeds be used to repair and reconstruct the improvements on the Ground Leased Property covered by the Portsmouth Ground Lease.


		
	·
	The Sugar Land Ground Lease generally requires that the net proceeds of all insurance proceeds, condemnation and similar awards be used to repair and reconstruct the improvements on the Ground Leased Property covered by the Sugar Land Ground Lease.





20752111.3.BUSINESS 






SCHEDULE 4.46


Condominium Representation Exceptions


Section 4.46(c)


		
	·
	With respect to the Sugar Land Town Square Parking Condominium, the related Condominium Board maintains reserves for capital projects and budget shortfalls due to catastrophic and unplanned expenditures, in each case as approved from time to time by the related Condominium Board.


		
	·
	With respect to the Sugar Land Town Square Condominium, the related Condominium Board maintains reserves for capital projects and budget shortfalls due to catastrophic and unplanned expenditures, in each case as approved from time to time by the related Condominium Board.


		
	·
	With respect to the First Colony Condominium, the related Condominium Board maintains reserves for capital projects and budget shortfalls due to catastrophic and unplanned expenditures, in each case as approved from time to time by the related Condominium Board.




Section 4.46(d)


		
	·
	With respect to each Individual Property that is governed by a Franchise Agreement with Marriott or its Affiliates, the related Franchisor has a right of first refusal to approve a transfer of a controlling interest in franchisee and, in connection with any transfer of the hotel or any equity interests in franchisee to a competing brand, such Franchisor has a right of first refusal to purchase the hotel itself or to terminate the related Franchise Agreement. Please note that pursuant to the comfort letter executed by such Franchisor and delivered to Lender in connection with the closing of the Loan, the foregoing rights of first refusal of Franchisor were subordinated to the Loan and will remain subordinate to the Loan so long as the Pledge Agreement remains in effect, the Loan is in compliance with the requirements pertaining to financings in the applicable Franchise Agreement and Lender is a bona fide lender and not a competitor.  Mezzanine foreclosures are permitted under the comfort letter executed by such Franchisor and delivered to Lender in connection with the closing of the Loan, provided that if the foreclosing Lender desires to keep the Franchise Agreement in place, it must provide evidence to the Franchisor that such entity is not a competitor and complies with certain OFAC and anti-money laundering tests. 


		
	·
	With respect to the Individual Property commonly known as Portsmouth Renaissance Hotel and Waterfront Conference Center and located in Portsmouth, Virginia,  the related Franchisor has a right of first refusal to approve a transfer of a controlling interest in franchisee and, in connection with any transfer of the hotel or any equity interests in franchisee to a competing brand, such Franchisor has a right of first refusal to purchase the 



20752111.3.BUSINESS 






hotel itself or to terminate the related Franchise Agreement. Please note that pursuant to the comfort letter executed by such Franchisor and delivered to Lender in connection with the closing of the Loan, the foregoing rights of first refusal of Franchisor were subordinated to the Loan and will remain subordinate to the Loan so long as the applicable Mortgage remains validly recorded, the Loan is in compliance with the requirements pertaining to financings in the applicable Franchise Agreement and Lender is a bona fide lender and not a competitor. Mezzanine foreclosures are permitted under the comfort letter executed by such Franchisor and delivered to Lender in connection with the closing of the Loan, provided that if the foreclosing Lender desires to keep the Franchise Agreement in place, it must provide evidence to the Franchisor that such entity is not a competitor and complies with certain OFAC and anti-money laundering tests.
		
	·
	With respect to the Individual Property commonly known as (a) Courtyard Gaithersburg and located in Gaithersburg, Maryland and (b) Courtyard Boston Tremont and located in Boston, Massachusetts, the related Manager has a right of first offer to purchase the hotel in the event that the owner decides to sell or lease such Individual Property. The foregoing right of Manager does not apply to any exercise of Lender’s remedies.


		
	·
	 Pursuant to that certain Right of First Offer Agreement between Ashford Hospitality Trust, Inc. (“Ashford Trust”) and Ashford Hospitality Prime, Inc. (“Ashford Prime”), Ashford Trust grants to Ashford Prime a right of first offer in certain assets and Ashford Prime grants to Ashford Trust a right of first offer in certain portfolio assets, which include the Ritz-Carlton Atlanta, Courtyard Boston, The Churchill and The Melrose. The rights of first offer do not apply to a transfer of the direct or indirect equity interest in the owner of an asset to a lender and shall not apply to any transfer of an asset of equity interest by foreclosure or deed in lieu of foreclosure pursuant to a mortgage, pledge or security agreement. Furthermore, the rights of first offer are subordinate to any other right to purchase in favor of a third party, including, a franchisor or manager.


Section 4.46(e)


Condominium Board Members Appointed by Borrower 


Portsmouth Condominium
		
	·
	Doug Smolinski


		
	·
	Doug Smolinski


Sugar Land Condominium
Sugar Land Hotel and Conference Center Condominium
		
	·
	Jennifer Hannson


		
	·
	Jennifer Hannson



20752111.3.BUSINESS 






		
	·
	Jennifer Hannson


Sugar Land Town Square Parking Condominium
		
	·
	Jennifer Hannson


Sugar Land Town Square Condominium
		
	·
	Jennifer Hannson


Gaithersburg Condominium
Washingtonian Waterfront Condominium
		
	·
	Doug Smolinski


		
	·
	Mitch Roberts







20752111.3.BUSINESS 






SCHEDULE 5.25


Hilton Garden Inn Austin Quality Assurance Inspection Repairs Report


[See Attached]



20752111.3.BUSINESS