**Exhibit10.6**

 

APN:

 

WhenRecorded Return To:

 

Patrick M. Arnold

Powell Coleman & Arnold LLP

8080 North Central Expwy, Suite 1380

Dallas, Texas 75206

 

**NOTWITHSTANDINGANYTHING CONTAINED HEREIN TO THE CONTRARY, THE MAXIMUM AMOUNT OF PRINCIPALINDEBTEDNESS SECURED BY THIS SECURITY INSTRUMENT AT THE TIME OF EXECUTIONHEREOF FOR WHICH UNDER ANY CONTINGENCY MAY BECOME SECURED BY THIS SECURITYINSTRUMENT AT ANY TIME HEREAFTER IS $8,116,841.**

 

**Construction Leasehold Mortgage, Assignment,Security Agreement and Fixture Filing**

 

by

 

Rest Easy LLC,

a Delaware limited liability company,

as Borrower,

 

to and in favor of

 

Behringer Harvard PAL I, LLC,

a Delaware limited liability company,

as Lender

 

This document serves as a Fixture Filing under the Oklahoma UniformCommercial Code.

 

Borrower’s Organizational Identification Number is 23-3013107.

 

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**ConstructionLeasehold Mortgage, Assignment,Security Agreement and Fixture Filing**

 

This Construction Leasehold Mortgage, Assignment,Security Agreement and Fixture Filing (“**Mortgage**”) ismade as of the 14th day of August, 2009, by Rest Easy LLC, a Delaware limitedliability company (herein referred to as “**Borrower**”),whose address is c/o Actus Lend Lease LLC, 1801 West End Avenue, Suite 1700,Nashville, TN 37203, in favor of **BehringerHarvard PAL I, LLC**, a Delaware limited liability company (togetherwith its successors and assigns, “**Lender**”),whose address is 15601 Dallas Parkway, Suite 600, Addison, Texas 75001.

 

**Recitals**

** **

Borrower is the lessee under (i) that certainDepartment of the Army Lease and Conveyance of Improvements DACA65-1-09-47,dated as of August 14, 2009 (as it may be amended from time to time, the “**Ground****Lease**”) withthe United States of America, acting by and through the Secretary of the Army(together with its successors and assigns, the “**Landlord**”)with respect to thereal property legally described on Exhibit A attached hereto, a Memorandum of which isintended to be recorded immediately prior hereto, and (ii) certainAncillary Leases (as defined in the Junior Loan Agreement) (collectively, theGround Lease and the Ancillary Leases are referred to herein as the “**Lease**”) with respect to the property described on Exhibit B attached hereto and Borrower isjustly indebted to Lender in the maximum principal sum of up to $25,000,000(the “**Junior Loan**”), as evidenced by thatcertain Junior Loan Note, dated as of the date hereof (as it may be amendedfrom time to time, the “**Junior****Note**”) payable by the Borrower to the Lender in saidprincipal amount, and that certain Junior Loan Agreement, dated as of the datehereof, by and between Borrower and Lender (as it may be amended from time totime, the “**Junior****LoanAgreement**”).  As a conditionprecedent to making the Junior Loan, Lender has required that Borrower executeand deliver this Mortgage to Lender.  TheJunior Note, the Junior Loan Agreement, this Mortgage and all other instrumentsand documents executed by Borrower that evidence, secure or set forth any ofthe Borrower’s obligations relating to the Junior Loan, as the same may fromtime to time be extended, amended, restated, supplemented or otherwisemodified, and whether now in existence or hereafter made and entered into, arecollectively referred to as the “**Junior Loan Documents**.”  Capitalized terms used herein but nototherwise defined shall have the meanings ascribed to such terms in the JuniorLoan Agreement.

 

Now, therefore, in order to induce Lender to makethe Junior Loan to Borrower, Borrower agrees as follows:

 

# Article I

# Granting Clauses;Condition of Grant.

#  

Section 1.1             Conveyancesand Security Interests.

 

In order to secure the prompt payment andperformance of the Obligations, Borrower:

 

(a)          herebyirrevocably and unconditionally grants, mortgages, conveys, transfers andassigns to Lender, under and subject to the terms and conditions set forthherein, for the benefit of Lender, with power of sale and right of entry andpossession (to the extent permitted by Law), the leasehold estate created by the Lease and all othertenancy, term, right, title and interest of Borrower, of whatever character(whether vested or contingent), in and to (1) the real property describedon Exhibit A and Exhibit B attachedhereto together with any and all rights, privileges and benefits, ofwhatever character derived by Borrower, or to which Borrower may be entitled,under or by virtue of the Lease, including, without limitation: (i) anyand all rights to exercise options (including, without limitation, options topurchase, renew, extend, terminate, reject or assume), give consents andreceive payments, reimbursements and refunds; (ii) any and all rights tomodify, change, supplement, alter, amend, terminate, cancel, sever or surrenderthe Lease and any and all rights to release or discharge the Landlord of orfrom the obligations, covenants, conditions and agreements by the Landlord tobe kept, observed or performed thereunder; (iii) any and all claims andrights to the payment of damages that may presently exist or hereafter ariseunder or in connection with the Lease or the rights of Borrower thereunder,including, without

 

----

 

limitation, any such claim or right that may arise as a result of therejection or disaffirmance of the Lease by the Landlord, or by any trustee ofthe Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C.§§ 101 *et seq.*, asamended (the “**Code**”); (iv) any and allrights, privileges and benefits, of whatever character, to which Borrower mayhereafter be entitled pursuant to Section 365 of the Code, including,without limitation, all of Borrower’s rights to remain in possession afterrejection or disaffirmance of the Lease by the Landlord or by any trustee ofthe Landlord (collectively, the “**Land**”) and (2) allbuildings, structures and other improvements now or hereafter existing, erectedor placed on the Land, together with any on-site improvements and off-siteimprovements in any way used or to be used in connection with the use,enjoyment, occupancy or operation of the Land (collectively, excluding theExcluded Improvements (as defined in the Lease), the “**Improvements**”),together with (i) all estates, title interests, title reversion rights,remainders, increases, issues, profits, rights of way or uses, additions,accretions, servitudes, strips, gaps, gores, liberties, privileges, waterrights, water courses, alleys,  passages,ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances,easements, rights-of-way, rights of ingress or egress, parking rights, timber,crops, mineral interests and other rights, now or hereafter owned by Borrowerand belonging or appertaining to the Land or Improvements; (ii) all Claimswhatsoever of Borrower with respect to the Land or Improvements, either in lawor in equity, in possession or in expectancy; (iii) all estate, right,title and interest of Borrower in and to all streets, roads and public places,opened or proposed, now or hereafter adjoining or appertaining to the Land orImprovements; and (iv) all options to purchase the Land or Improvements,or any portion thereof or interest therein, and any greater estate in the Landor Improvements, and all additions to and Proceeds of the foregoing(collectively, the “**Real Property**”);

 

(b)           grantsto Lender a security interest in all personal property of any kind or naturewhatsoever, whether tangible or intangible and whether now owned or hereafteracquired, in which Borrower now has or hereafter acquires an interest and whichis used in the construction of, or is placed upon, or is derived from or usedin connection with the maintenance, use, occupancy or enjoyment of, theProperty (as hereinafter defined), including (i) all fixtures, equipment,systems, machinery, furniture, furnishings, appliances, inventory, goods,building and construction materials, supplies and other articles of personalproperty, of every kind and character, tangible and intangible (includingsoftware which is owned by Borrower embedded therein), now owned or hereafteracquired by Borrower, which are now or hereafter attached to or situated in, onor about the Land or Improvements, or used in or necessary to the complete andproper planning, development, use, occupancy or operation thereof, or acquired(whether delivered to the Land or stored elsewhere) for use or installation inor on the Land or Improvements, and all additions to the foregoing, all ofwhich are hereby declared to be permanent accessions to the Land (collectively,the “**Accessories**”); (ii) subject to theterms of the Lock Box Agreement, all accounts of Borrower within the meaning ofthe Uniform Commercial Code of the State (as defined herein), derived from orarising out of the use, occupancy or enjoyment of the Property or for servicesrendered therein or thereon (collectively, the “**Accounts**”);(iii) all franchise, license, management or other agreements with respectto the operation of the Real Property or the business conducted therein(provided all of such agreements shall be subordinate to this Mortgage, andLender shall have no responsibility for the performance of Borrower’sobligations thereunder) and all general intangibles (including paymentintangibles, trademarks, trade names, goodwill, software and symbols) relatedto the Real Property or the operation thereof which are owned by Borrower; (iv) allsewer and water taps, appurtenant water stock or water rights, any Type 2nonirregation grandfathered water rights, contractual rights to water,allocations and agreements for utilities, bonds, letters of credit, permits,certificates, licenses, guaranties, warranties, causes of action, judgments,Claims, profits, security deposits, utility deposits, and all rebates orrefunds of fees, Taxes, assessments, charges or deposits paid to anyGovernmental Authority related to the Real Property or the operation thereof; (v) allof Borrower’s rights and interests under all Swap Contracts, including allrights to the payment of money from Lender under any Swap Contract and allaccounts, deposit accounts and general intangibles, including paymentintangibles, described in any Swap Contract; (vi) all insurance policiesheld by Borrower with respect to the Property or Borrower’s operation thereof;and (vii) subject to the terms of the Lock Box Agreement, all money,instruments and documents (whether tangible or electronic) arising from or byvirtue of any transactions related to the Property, and all deposits anddeposit accounts of Borrower with Lender related to the Property, including anysuch deposit account from which Borrower may from time to time authorize Lenderto debit and/or credit payments due with respect to the Junior Loan; togetherwith all additions to and proceeds of all of the foregoing (collectively,the “**Personalty**”) (the Real Property and thePersonalty shall be collectively referred to herein as the “**Property**”);

 

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(c)           assignsto Lender, and grants to Lender a security interest in, Borrower’s right, titleand interest in anyand all judgments, awards of damages (including severance and consequentialdamages), payments, proceeds, settlements, amounts paid for a taking in lieu ofCondemnation, or other compensation heretofore or hereafter made, includinginterest thereon, and the right to receive the same, as a result of, or inconnection with, any Condemnation or threatened Condemnation (the “**CondemnationAwards**”) and all Insurance Proceeds; and

 

(d)           assignsto Lender, and grants to Lender a security interest in, all of Borrower’sright, title and interest in, but not any of Borrower’s obligations orliabilities under, all (i) contracts for services to be rendered, work tobe performed or materials to be supplied in the development of the Land or theconstruction or repair of Improvements, including all agreements witharchitects, engineers or contractors for such services, work or materials; (ii) allplans, drawings and specifications for the development of the Land or theconstruction or repair of Improvements; (iii) all permits, licenses,variances and other rights or approvals issued by or obtained from anyGovernmental Authority or other Person in connection with the development ofthe Land or the construction or repair of Improvements; and (iv) allamendments of or supplements to any of the foregoing (collectively, the “**Design and Construction Documents**”).

 

All Persons who may have or acquire an interest inall or any part of the Property will be deemed to have notice of, and will bebound by, the terms of the Obligations and each other agreement or instrumentmade or entered into in connection with each of the Obligations.  Such terms include any provisions in the JuniorNote, the Junior Loan Agreement and/or any Swap Contract which provide that theinterest rate on one or more of the Obligations may vary from time totime.  The definition of “Obligations”includes future advances.

 

Section 1.2             AbsoluteAssignment of Rents.

 

In consideration of the making of the Junior Loan byLender to Borrower and other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, Borrower absolutely andunconditionally assigns any and all Rents received in connection with theProject to Lender, subject to the terms of the Lock Box Agreement.  This assignment is, and is intended to be, anunconditional, absolute and present assignment from Borrower to Lender of allof Borrower’s right, title and interest in and to the Rents and not an assignmentin the nature of a pledge of the Rents or the mere grant of a security interesttherein.  For so long as this Mortgageshall be in effect or until Lender shall otherwise consent in writing, all suchRents shall be paid to the Cash Management Agent as set forth in the Lock BoxAgreement.  All such sums received byBorrower from and after the date hereof shall be deemed received in trust andshall be turned over immediately to Cash Management Agent.

 

Section 1.3             SecurityAgreement, Fixture Filing and Financing Statement.

 

This Mortgage creates a security interest in thePersonalty, and, to the extent the Personalty is not real property, thisMortgage constitutes a security agreement from Borrower to Lender under theUniform Commercial Code of the State.  Inaddition to all of its other rights under this Mortgage and otherwise, Lendershall have all of the rights of a secured party under the Uniform CommercialCode of the State, as in effect from time to time, or under the UniformCommercial Code in force from time to time in any other state to the extent thesame is applicable Law.  This Mortgageshall be effective as a financing statement filed as a fixture filing withrespect to all fixtures included within the Property and is to be filed forrecord in the real estate records of each county where any part of the Property(including such fixtures) is situated. This Mortgage shall also be effective as a financing statement withrespect to any other Property as to which a security interest may be perfectedby the filing of a financing statement and may be filed as such in anyappropriate filing or recording office. The respective mailing addresses of Borrower and Lender are set forth inthe opening paragraph of this Mortgage. A carbon, photographic or other reproduction of this Mortgage or anyother financing statement relating to this Mortgage shall be sufficient as afinancing statement for any of the purposes referred to in this Section.  Borrower hereby irrevocably authorizes Lenderat any time and from time to time to file any initial financing statements,amendments thereto and continuation statements as authorized by applicable Law,reasonably required by Lender to establish or maintain the validity, perfectionand priority of the security interests granted in this Mortgage.  The foregoing authorization includesBorrower’s irrevocable authorization for Lender at any time and from 

 

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time to time to file any initial financingstatements and amendments thereto and continuation statements that indicate thePersonalty (a) as “all assets of Borrower, wherever located” or words ofsimilar effect, regardless of whether any particular asset comprised in thePersonalty falls within the scope of the Uniform Commercial Code of the Stateor the jurisdiction where the initial financing statement or amendment isfiled, or (b) as being of an equal or lesser scope or with greater detail.

 

Section 1.4             Releaseof Mortgage and Termination of Assignments and Financing Statements.

 

If and when Borrower has paid and performed all ofthe Obligations, and no further advances are to be made under the Junior LoanAgreement, Lender will provide a release of the Property from the lien of thisMortgage and termination statements for filed financing statements, if any, toBorrower.  Borrower shall be responsiblefor the recordation of such release and the payment of any recording and filingcosts.  Upon the recording of suchrelease and the filing of such termination statements, the absolute assignmentset forth in Section 1.2 shall automatically terminate and becomenull and void.

 

# Article II

# Representationsand Warranties.

#  

Borrower makes the following representations andwarranties to Lender:

 

Section 2.1             Titleto Real Property.

 

Borrowerhas a valid interest in the Real Property, free and clear of all liens,encumbrances and charges (the “**Encumbrances**”) other than (a) any matters set forth in any policy oftitle insurance issued to Lender and insuring Lender’s interest in the Propertywhich are acceptable to Lender as of the date hereof, (b) the liens andinterests of this Mortgage, the Senior Loan and the Subordinate Loan and (c) anyother Encumbrance that Lender shall expressly approve in its sole and absolutediscretion, as******evidencedby a “marked-up” commitment (or pro-forma policy) for title insurance initialedon behalf of Lender (the “**Permitted Encumbrances**”).  Borrower has full power and lawful authorityto grant the Real Property to Lender in the manner and form herein done orintended and forever warrant and defend Borrower’s title in the Real Propertyagainst the claims of all persons, subject to the Permitted Encumbrances.  This Mortgage constitutes a valid second lienupon and security interest in Borrower’s right, title and interest in and tothe Real Property.

 

Section 2.2             Titleto Other Property.

 

Borrowerhas good title to the Personalty, and the Personalty is not subject to anyEncumbrance other than the Permitted Encumbrances.

 

# Article III

# AffirmativeCovenants.

#  

Section 3.1             Obligations.

 

Borrower agrees to promptly pay and perform all ofthe Obligations, time being of the essence in each case.

 

Section 3.2             PropertyAssessments; Documentary Taxes.

 

Borrower willpromptly pay in full and discharge on or before the due date thereof all Taxesand assessments of every nature which may be levied or assessed against theProperty.

 

Section 3.3             Compliancewith Laws.

 

Except as expressly permitted in the Lease withrespect to pre-existing conditions, Borrower will comply with and not violate,and cause to be complied with and not violated, all present and future Lawsapplicable to the Property and its use and operation.

 

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Section 3.4             Maintenanceand Repair of the Property.

 

Borrower, at Borrower’s sole expense, will (a) keepand maintain (or cause to be kept and maintained) the Property in goodcondition, working order and repair, and (b) make (or cause to be made)all necessary or appropriate repairs to the Property, so that each part of theProperty shall at all times be in a good condition and fit and proper for therespective purposes for which they were originally intended, erected, orinstalled.

 

Section 3.5             Additionsto Security.

 

All right, title and interest of Borrower in and toall Improvements hereafter constructed or placed on the Property shall, withoutany further mortgage, conveyance, assignment or other act by Borrower, becomesubject to the lien of this Mortgage as fully and completely, and with the sameeffect, as though now owned by Borrower and specifically described in thegranting clauses hereof.  Borrower agrees,however, to execute and deliver to Lender such further documents as may bereasonably required by the terms of the Junior Loan Agreement and the otherJunior Loan Documents to confirm and evidence such lien.

 

Section 3.6             Performance of Lease.

 

Borrowershall (i) fulfill, perform and observe in all respects each and everymaterial condition and material covenant of Borrower contained in the Lease; (ii) giveprompt notice to Lender of any claim or event of default or noncompliance underthe Lease given to Borrower by Landlord or given by Borrower to Landlord,together with a complete copy or statement of any information submitted orreferenced in support of such claim or event of default; (iii) at the solecost and expense of Borrower, enforce the performance and observance of eachand every material covenant and material condition of the Lease to be performedor observed by any other party to the Lease unless such enforcement is waivedin writing by Lender; (iv) appear in and defend any action challenging thevalidity, enforceability or priority of the lien created hereby or the validityor enforceability of the Lease; and (v) timely exercise all renewaloptions under the Lease while any Obligation under the Junior Loan remainsoutstanding.  The Lease shall not bemodified, amended, terminated, cancelled or surrendered by Borrower withoutLender’s prior written consent.  Withoutlimiting the generality of the foregoing, Borrower shall not, without Lender’sprior written consent, elect to treat the Lease or the leasehold estate createdthereunder as terminated under Section 365 of the Code, after rejection ordisaffirmance of the Lease by the Landlord (whether as debtor in possession orotherwise) or by any trustee of the Landlord, and any such election made withoutsuch consent shall be void and ineffective. Borrower shall not assign, transfer, mortgage, pledge or hypothecate theLease or any interest therein to any party other than Lender, Senior Lender orSubordinate Lender without first obtaining Lender’s prior written consent.  Borrower shall not waive or release anyperson from the observance or performance of any material obligation to beperformed under the terms of the Lease or liability on account of any materialwarranty given thereunder.  Any modification,amendment, termination, cancellation, surrender, assignment, transfer,mortgage, pledge, hypothecation, waiver or release in violation of theforegoing shall be null and void and of no force and effect.  Borrower agrees that if Borrower, at any timewhile the Obligations are outstanding, acquires fee title or any greater estatethan it holds as of the date of this Mortgage in and to the Land or the RealProperty, the lien of this Mortgage shall automatically attach, extend to,cover and encumber such fee title or other greater estate, and that Borrowershall execute such further documents and take such further actions as Lendermay reasonably request to confirm such lien. Without limiting the foregoing sentence, unless Lender otherwiseconsents or elects, fee title to the Real Property and the leasehold interestin the Land created by the Lease shall not merge, but shall always be keptseparate and distinct, notwithstanding the union of such estates in Borrower,Lender or any other person by purchase, operation of Law, foreclosure of thisMortgage, sale of the Real Property pursuant to this Mortgage or otherwise.

 

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# Article IV

# Negative Covenants.

#  

Section 4.1             Encumbrances.

 

Borrower will not permit any of the Property tobecome subject to any Encumbrance other than the Permitted Encumbrances.  Within sixty (60) days after the filing ofany mechanic’s lien or other lien or Encumbrance against the Property, Borrowerwill promptly discharge the same by payment or recording a bond or otherwise aspermitted by Law.  So long as Lender’ssecurity has been protected by the recording of a bond or otherwise in a mannersatisfactory to Lender in its sole and absolute discretion, Borrower shall havethe right to contest in good faith any Claim or Encumbrance, provided thatBorrower does so diligently and without prejudice to Lender or delay incompleting construction of the Improvements. Borrower shall give Lender Notice of any default under any lien andNotice of any foreclosure or threat of foreclosure with respect to any of theProperty.

 

Section 4.2             Transferof the Property.

 

Borrower will not, without the prior written consentof Lender, transfer pursuant to a direct or indirect sale, assignment orconveyance, whether made voluntarily or by operation of Law or otherwise, andwhether made with or without consideration, or contract to do so, all or anypart of the Property or any legal or beneficial interest therein (except as maybe permitted in this Mortgage).  Exceptas set forth in the Junior Loan Agreement, the transfer of any membershipinterest in Borrower (whether in one or more transactions during the term ofthe Obligations) shall be deemed to be a prohibited transfer of the Property.

 

Section 4.3             Removal,Demolition or Alteration of Improvements.

 

Except to the extent permitted by the followingsection, no Improvements shall be removed, demolished or materially alteredwithout the prior written consent of Lender.

 

Section 4.4             AdditionalImprovements.

 

Borrower will not construct, demolish or materiallyalter any Improvements other than those presently on the Land, those describedin the Junior Loan Agreement and those described in the Design/Build Agreementfor the LSCR Phase of the IDP, without the prior written consent of Lender.  Subject to, and in accordance with, the termsand conditions of the Design/Build Agreement, Borrower will complete and payfor, within a reasonable time, any Improvements which Borrower is permitted toconstruct on the Land.  Borrower willconstruct and erect any permitted Improvements (a) strictly in accordancewith the Lease, any other contracts with Landlord, all applicable Laws (as setforth in the Lease) and any private restrictive covenants, (b) entirely onlots or parcels of the Land, (c) so as not to encroach upon any easementor right of way or upon the land of others, and (d) wholly within anybuilding restriction and setback lines applicable to the Land.

 

Section 4.5             RestrictiveCovenants, Zoning, etc.

 

Without the prior written consent of Lender,Borrower will not initiate, join in, or consent to any change in, anyrestrictive covenant, easement, zoning ordinance, or other public or privaterestrictions limiting or defining the uses which may be made of the Property,or consent to or vote in favor of the inclusion of the Property in anycommunity facilities or limited improvement district or any other improvement,assessment or similar district.  Borrower(a) will promptly perform and observe, and cause to be performed andobserved, all of the material terms and conditions of all agreements affectingthe Property, and (b) will do or cause to be done all things reasonablynecessary to preserve intact and unimpaired any and all easements,appurtenances and other interests and rights in favor of, or constituting anyportion of, the Property.

 

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# Article V

# Events of Default.

#  

The occurrence or happening, from time to time, ofany one or more of the following shall constitute an Event of Default underthis Mortgage:

 

Section 5.1             JuniorLoan Agreement.

 

The occurrence of an Event of Default under theJunior Loan Agreement.

 

Section 5.2             Transfers.

 

Borrower, without the prior written consent ofLender, transfers pursuant to a direct or indirect sale, assignment orconveyance, whether made voluntarily or by operation of Law or otherwise, andwhether made with or without consideration, or contract to do so, all or anypart of the Property or any legal or beneficial interest therein.

 

Section 5.3             OtherObligations.

 

Borrower fails to promptly perform or comply withany of the Obligations set forth in this Mortgage (other than those expresslydescribed in other Sections of this Article V), and such failurecontinues uncured for a period of ninety (90) days after Notice from Lender toBorrower, unless (a) such failure, by its nature, is not capable of beingcured within such period and (b) within such period, Borrower commences tocure such failure and thereafter diligently prosecutes the cure thereof andprovides evidence of such efforts upon request to Lender.

 

# Article VI

# Rights and Remedies.

#  

Upon the happening and during the continuance of anyEvent of Default, Lender shall have the right, in addition to any other rightsor remedies available to Lender under any of the Junior Loan Documents orapplicable Law, to exercise any one or more of the following rights, powers orremedies:

 

Section 6.1             Acceleration.

 

Lendermay accelerate all Obligations under the Junior Loan Documents whereupon suchObligations shall become immediately due and payable, without notice ofdefault, notice of acceleration or intention to accelerate, presentment ordemand for payment, protest, notice of protest, notice of nonpayment ordishonor, or notices or demands of any kind or character (all of which arehereby waived by Borrower).

 

Section 6.2             Foreclosure; Power of Sale.

 

Lender,shall have all of the rights and may exercise all of the powers set forth inapplicable Law of the State.  Lender,pursuant to the power of sale herein conferred if such power of sale is allowedunder applicable Law, may sell the Property in its entirety or in parcels, andby one or by several sales, as deemed appropriate by Lender in its sole andabsolute discretion.  If Lender choosesto have more than one foreclosure sale, Lender may cause the foreclosure salesto be held simultaneously or successively, on the same day, or on suchdifferent days and at such different times as Lender may elect.  Lender shall receive and apply the proceedsfrom the sale of the Property, or any portion thereof, in accordance withapplicable Law.  Immediately upon thefirst delivery or publication of any advertisement or notice of sale, thereshall become due and owing by Borrower all Expenses incident to any foreclosureproceedings under this Mortgage together with fees and expenses of the Lender,and no Person shall be required to receive only the aggregate amount of theObligations to the date of payment unless the same is accompanied by a tenderof such Expenses and fees.  All Expensesincurred by Lender must be paid by Borrower as part of any reinstatementtendered in connection with a sale of the Property.  Lender may bid and become the purchaser ofall or any part of the Property at any foreclosure sale hereunder.

 

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Section 6.3             Judicial Action.

 

Lendershall have the right from time to time to sue Borrower for any sums (whetherinterest, damages for failure to pay principal or any installments thereof,taxes, or any other sums required to be paid under the terms of this Mortgage,as the same become due), without regard to whether or not any of the otherObligations shall be due, and without prejudice to the right of Lenderthereafter to enforce any appropriate remedy against Borrower, including anaction of foreclosure or an action for specific performance, for a Default (asdefined in the Junior Loan Agreement) or Event of Default existing at the timesuch earlier action was commenced.

 

Section 6.4             Collection of Rents.

 

Uponthe occurrence and during the continuance of an Event of Default, Lender shallhave the right to (i) take possession of any or all of the Property, withthe power to protect and preserve the Property, to operate the Propertypreceding foreclosure or sale, (ii) subject to the terms of the Lock BoxAgreement, to collect all Rents from the Property and apply the proceedsagainst the sums due under this Mortgage, and (iii) exercise all otherrights with respect to the Property described in this Mortgage.  Borrower hereby appoints Lender as Borrower’sattorney-in-fact with full power of substitution, which appointment shall takeeffect upon the occurrence and during the continuance of an Event of Defaultand is coupled with an interest and, subject to a cure of such Event of Defaultin accordance with the terms of the Junior Loan Documents, is irrevocable priorto the full and final payment and performance of the Obligations, in Borrower’sname or in Lender’s name: (a) subject to the terms and conditions of theLock Box Agreement, to endorse all checks and other instruments received inpayment of Rents and to deposit the same in any account selected by Lender; (b) togive receipts and releases in relation thereto; (c) to institute,prosecute and/or settle actions for the recovery of Rents; (d) to modifythe terms of any agreements relating to the Rents payable thereunder; and (e) todo all other acts and things with respect to the Rents which Lender may deemnecessary or desirable to protect the security for the Obligations.

 

Section 6.5             Taking Possession or Control ofthe Property.

 

As amatter of right without regard to the adequacy of the security, and to theextent permitted by Law without notice to Borrower, Lender shall be entitled,upon application to a court of competent jurisdiction, to the immediateappointment of a receiver for all or any part of the Property and the Rents,whether such receivership may be incidental to a proposed sale of the Propertyor otherwise, and Borrower hereby consents to the appointment of such areceiver and agrees that such receiver shall have all of the rights and powersgranted to Lender pursuant to Section 6.4.  In addition, to the extent permitted by Law,and with or without the appointment of a receiver, or an application therefor,Lender may (a) enter upon, and take possession of (and Borrower shallsurrender actual possession of), the Property or any part thereof, withoutnotice to Borrower and without bringing any legal action or proceeding, or, ifnecessary by force, legal proceedings, ejectment or otherwise, and (b) removeand exclude Borrower and its agents and employees therefrom.

 

Section 6.6             Management of the Property.

 

Uponobtaining possession of the Property or upon the appointment of a receiver asdescribed in Section 6.5, Lender or the receiver, as the case maybe, may, at its sole option, (a) make all necessary or proper repairs toor upon the Property, (b) operate, maintain, control, make secure andpreserve the Property, and (c) complete the construction of any unfinishedImprovements on the Property and, in connection therewith, continue any and alloutstanding contracts for the erection and completion of such Improvements andmake and enter into any further contracts which may be necessary, either intheir or its own name or in the name of Borrower (the costs of completing suchImprovements shall be Expenses secured by this Mortgage and shall accrueinterest as provided in the Junior Loan Agreement and the other Junior LoanDocuments).  Lender or such receivershall be under no liability for, or by reason of, any such taking ofpossession, entry, holding, removal, maintaining, operation or management,except for gross negligence or willful misconduct.  The exercise of the remedies provided in thisSection shall not cure or waive any Event of Default, and the enforcementof such remedies, once commenced, shall continue for so long as Lender shallelect, notwithstanding the fact that the exercise of such remedies may have,for a time, cured the original Event of Default.

 

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Section 6.7             Uniform Commercial Code.

 

Lendermay proceed under the Uniform Commercial Code as to all or any part of thePersonalty, and in conjunction therewith may exercise all of the rights,remedies and powers of a secured creditor under the Uniform CommercialCode.  Upon the occurrence and during thecontinuation of any Event of Default, Borrower shall assemble all of theAccessories and make the same available within the Improvements.  Any notification required by the UniformCommercial Code shall be deemed reasonably and properly given if sent inaccordance with the Notice provisions of this Mortgage at least ten (10) daysbefore any sale or other disposition of the Personalty.  Disposition of the Personalty shall be deemedcommercially reasonable if made pursuant to a public sale advertised at leasttwice in a newspaper of general circulation in the community where the Propertyis located.  It shall be deemedcommercially reasonable for the Lender to dispose of the Personalty withoutgiving any warranties as to the Personalty and specifically disclaiming alldisposition warranties.  Alternatively,Lender may choose to dispose of some or all of the Property, in any combinationconsisting of both Personalty and Real Property, in one sale to be held inaccordance with the Law and procedures applicable to real property, aspermitted by Article 9 of the Uniform Commercial Code.  Borrower agrees that such a sale ofPersonalty together with Real Property constitutes a commercially reasonablesale of the Personalty.

 

Section 6.8             Application of Proceeds.

 

Unless otherwise provided by applicable Law, allproceeds from the sale of the Property or any part thereof pursuant to therights and remedies set forth in this Article VI and any otherproceeds received by Lender from the exercise of any of its other rights andremedies hereunder or under the other Junior Loan Documents shall, subject tothe terms and conditions of the Lock Box Agreement, be applied first to pay allExpenses and next in reduction of the other Obligations, in such manner andorder as Lender may elect.

 

Section 6.9             Other Remedies.

 

Lender shall have the right from time to time toprotect, exercise and enforce any legal or equitable remedy against Borrowerprovided under the Junior Loan Documents or by applicable Laws.

 

# Article VII

# Miscellaneous.

#  

Section 7.1             Rights,Powers and Remedies Cumulative.

 

Each right, power and remedy of Lender as providedfor in this Mortgage, or in any of the other Junior Loan Documents or now orhereafter existing by Law, shall be cumulative and concurrent and shall be inaddition to every other right, power or remedy provided for in this Mortgage,or in any of the other Junior Loan Documents or now or hereafter existing byLaw, and the exercise or beginning of the exercise by Lender of any one or moreof such rights, powers or remedies shall not preclude the simultaneous or laterexercise by Lender of any or all such other rights, powers or remedies.

 

Section 7.2             NoWaiver by Lender.

 

No course of dealing or conduct by or among Lenderand Borrower shall be effective to amend, modify or change any provisions ofthis Mortgage or the other Junior Loan Documents.  No failure or delay by Lender to insist uponthe strict performance of any term, covenant or agreement of this Mortgage orof any of the other Junior Loan Documents, or to exercise any right, power orremedy consequent upon a breach thereof, shall constitute a waiver of any suchterm, covenant or agreement or of any such breach, or preclude Lender fromexercising any such right, power or remedy at any later time or times.  By accepting payment after the due date ofany of the Obligations, Lender shall not be deemed to waive the right either torequire prompt payment when due of all other Obligations, or to declare anEvent of Default for failure to make prompt payment of any such otherObligations.  Neither Borrower nor anyother Person now or hereafter obligated for the payment of the whole or anypart of the Obligations shall be relieved of such liability by reason of (a) thefailure of Lender to comply with any request of Borrower or of any other Personto take action to foreclose this Mortgage or otherwise enforce any of theprovisions of this Mortgage, or (b) any agreement or stipulation betweenany subsequent 

 

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owner or owners of the Property and Lender,or (c) Lender’s extending the time of payment or modifying the terms of thisMortgage or any of the other Junior Loan Documents without first havingobtained the consent of Borrower or such other Person.  Regardless of consideration, and without thenecessity for any notice to or consent by the holder of any subordinate lien onthe Property, Lender may release any Person at any time liable for any of theObligations or any part of the security for the Obligations and may extend thetime of payment or otherwise modify the terms of this Mortgage or any of theother Junior Loan Documents without in any way impairing or affecting the lienof this Mortgage or the priority of this Mortgage over any subordinatelien.  The holder of any subordinate lienshall have no right to terminate any Lease regardless of whether or not suchLease is subordinate to this Mortgage. Lender may resort to the security or collateral described in thisMortgage or any of the other Junior Loan Documents in such order and manner asLender may elect in its sole discretion.

 

Section 7.3             Waiversand Agreements Regarding Remedies.

 

To the full extent Borrower may do so, Borrowerhereby:

 

### (a)           agrees that it will not at any time plead, claim ortake advantage of any Laws now or hereafter in force providing for anyappraisement, valuation, stay, extension or redemption, and waives and releasesall rights of redemption, valuation, appraisement, stay of execution, extensionand notice of election to accelerate the Obligations;

###  

### (b)           waives all rights to a marshalling of the assets ofBorrower, including the Property, or to a sale in the inverse order ofalienation in the event of a foreclosure of the Property, and agrees not toassert any right under any Law pertaining to the marshalling of assets, thesale in inverse order of alienation, the exemption of homestead, the administrationof estates of decedents, or other matters whatsoever to defeat, reduce oraffect the right of Lender under the terms of this Mortgage to a sale of theProperty without any prior or different resort for collection, or the right ofLender to the payment of the Obligations out of the proceeds of sale of theProperty in preference to every other claimant whatsoever;

###  

### (c)           waives any right to bring or utilize any defense,counterclaim or setoff, other than one which denies the existence orsufficiency of the facts upon which any foreclosure action is grounded.  If any defense, counterclaim or setoff, otherthan one permitted by the preceding clause, is timely raised in a foreclosureaction, such defense, counterclaim or setoff shall be dismissed.  If such defense, counterclaim or setoff isbased on a Claim which could be tried in an action for money damages, suchClaim may be brought in a separate action which shall not thereafter beconsolidated with the foreclosure action. The bringing of such separate action for money damages shall not bedeemed to afford any grounds for staying the foreclosure action; and

###  

### (d)           waives and relinquishes any and all rights andremedies which Borrower may have or be able to assert by reason of theprovisions of any Laws pertaining to the rights and remedies of sureties; and

###  

### (e)           to the maximum extentpermitted by Law, Borrower waives any right to assert that the Property wascreated in violation of applicable subdivision ordinances and regulations andagrees to take all actions and execute all documents requested by Lender inconnection with compliance with or exemption from all applicable subdivisionordinances and regulations.

###  

Section 7.4             Successorsand Assigns*.*

 

All of the grants, covenants, terms, provisions andconditions of this Mortgage shall run with the Land and shall apply to and bindthe successors and assigns of Borrower (including any permitted subsequentowner of the Property), and inure to the benefit of Lender and its successorsand assigns.

 

Section 7.5             NoWarranty by Lender.

 

By inspecting the Property or by accepting orapproving anything required to be observed, performed or fulfilled by Borroweror to be given to Lender pursuant to this Mortgage or any of the other JuniorLoan Documents, Lender shall not be deemed to have warranted or represented thecondition, sufficiency, legality, effectiveness or legal effect of the same,and such acceptance or approval shall not constitute any warranty orrepresentation with respect thereto by Lender.

 

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Section 7.6             Amendments.

 

This Mortgage may not be modified or amended exceptby an agreement in writing, signed by the party against whom enforcement of thechange is sought.

 

Section 7.7             Severability.

 

In the event any one or more of the provisions ofthis Mortgage shall for any reason be held to be invalid, illegal orunenforceable, in whole or in part or in any other respect, or in the event anyone or more of the provisions of the Junior Loan Documents operates or wouldprospectively operate to invalidate this Mortgage, then and in either of thoseevents, at the option of Lender, such provision or provisions only shall bedeemed null and void and shall not affect the validity of the remainingObligations, and the remaining provisions of the Junior Loan Documents shallremain operative and in full force and effect and shall in no way be affected,prejudiced or disturbed thereby.

 

Section 7.8             Notices.

 

All Notices, demands or documents to be deliveredunder this Mortgage shall be given in writing in the manner provided for thegiving of notices under the Junior Loan Agreement.

 

Section 7.9             Rules ofConstruction.

 

The words “hereof,” “herein,” “hereunder,” “hereto,”and other words of similar import refer to this Mortgage in its entirety.  The terms “agree” and “agreements” mean andinclude “covenant” and “covenants.”  Thewords “include” and “including” shall be interpreted as if followed by thewords “without limitation.”  The headingsof this Mortgage are for convenience of reference only and shall not beconsidered a part hereof and are not in any way intended to define, limit orenlarge the terms hereof.  All references(a) made in the neuter, masculine or feminine gender shall be deemed tohave been made in all such genders, (b) made in the singular or pluralnumber shall be deemed to have been made, respectively, in the plural orsingular number as well, (c) to the Junior Loan Documents are to the sameas extended, amended, restated, supplemented or otherwise modified from time totime unless expressly indicated otherwise, (d) to the Land, Improvements,Personalty, Real Property or Property shall mean all or any portion of each ofthe foregoing, respectively, and (e) to Articles or Sections are to therespective Articles or Sections contained in this Mortgage unless expresslyindicated otherwise.  Any term used ordefined in the Uniform Commercial Code of the State, as in effect from time totime, which is not defined in this Mortgage shall have the meaning ascribed tothat term in the Uniform Commercial Code of the State.  If a term is defined in Article 9 of theUniform Commercial Code of the State differently than in another Article ofthe Uniform Commercial Code of the State, the term shall have the meaningspecified in Article 9.

 

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Section 7.10           Governing Law.   This Mortgage shall be construed, governedand enforced in accordance with the Laws in effect from time to time in theState.

 

Section 7.11           Entire Agreement.  The Junior Loan Documents constitute theentire understanding and agreement between Borrower and Lender with respect tothe transactions arising in connection with the Obligations, and supersede allprior written or oral understandings and agreements between Borrower and Lenderwith respect to the matters addressed in the Junior Loan Documents.  In particular, and without limitation, theterms of any commitment by Lender to make the Junior Loan are merged into theJunior Loan Documents.  Except asincorporated in writing into the Junior Loan Documents, there are no representations,understandings, stipulations, agreements or promises, oral or written, withrespect to the matters addressed in the Junior Loan Documents.

 

Section 7.12           Certain Provisions Incorporated byReference.

 

The provisions of the Junior Loan Agreement and theJunior Note (and any other Junior Loan Document) that govern adjustments, ifany, to the interest rate and payment amount, the accrual of interest andincreases, if any, in the principal balance, are incorporated in this Mortgageby reference as though fully set forth herein.

 

Section 7.13           Nature of Obligations.

 

Except as provided in that certain Guaranty andIndemnity (as defined in the Junior Loan agreement) of even date herewith, theobligations of Borrower hereunder to pay and perform the Obligations(including, without limitation, such Obligations as are evidenced by the JuniorNote) shall be without recourse to Borrower’s members, shareholders, officers,affiliates, directors, partners, agents, employees or consultants, or anyaffiliate of any such person, or to the property or assets of any suchperson.  Notwithstanding anything to the contrary herein, nothing herein shall bedeemed to be a waiver of any right which Lender may have under Sections 506(a),506(b), 1111(b) or any other provision of the Federal Bankruptcy Code orany similar federal or state statute to file a claim for the full amount of theObligations secured hereby or to require that all Collateral shall continue tosecure all Obligations owing to Lender in accordance with the Junior Note, thisDeed of Trust and the other Junior Loan Documents.  The foregoing will in no way limit Lender’srecourse to the Collateral following an Event of Default or limit the liabilityunder any Contract to which any Affiliate of Borrower is a party and which hasbeen assigned to Junior Lender as Collateral for the Junior Loan, including butnot limited to the Construction Guaranty of even date herewith and any Contractassigned as Collateral under the Assignment of Contracts, Permits and Approvalsof even date herewith executed by Borrower and the other parties thereto andthe Collateral Assignment of Lodging Management Agreement also of even dateherewith executed by Borrower and the other parties thereto.

 

Section 7.14           Use of Loan Proceeds.

 

This Mortgage secures a loan made for the purpose ofbuilding or improving a building.

 

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# Article VIII

State Specific Provisions

 

Section 8.1             Principles of Construction.

 

In the event of any inconsistencies between the termsand conditions of this Article 8 and the other provisions of thisMortgage, the terms and conditions of this Article 8 shall control and bebinding.

 

Section 8.2             Definitions.

 

The term “**State**” as usedherein shall mean the State of Oklahoma.

 

Section 8.3             Construction Mortgage.

 

This Mortgage is also a “construction mortgage” asthat term is defined in the version of Uniform Commercial Code enacted in theState.

 

Section 8.4             Certain Matters Relating to PropertyLocated in Oklahoma.

 

Withrespect to Property located in the State of Oklahoma, notwithstanding anythingcontained herein to the contrary:

 

### (a)           Term.  The Obligations secured by this Mortgage arepayable on or before September 1, 2016 as more particularly described inthe Junior Loan Documents.

###  

### (b)           Power of Sale.Lender may elect to use the non-judicial power of sale which is hereby grantedand conferred. Such power of sale shall be exercised by giving Borrower noticeof Lender’s intent to foreclose by power of sale and setting forth among otherthings, the nature of the breach(es) or default(s) and the action requiredto effect a cure thereof and the time period within which such cure may beeffected all in compliance with the Oklahoma Power of Sale Mortgage ForeclosureAct, 46 Okla. Stat. Section 40 et seq. (the “Act”), as the same may beamended from time to time or other applicable statutory authority. If no cureis effected within the statutory time limits, Lender may accelerate theindebtedness secured by this Mortgage without further notice (the Act’s cureperiod shall run concurrently with any contractual provisions for notice and/orcure period before acceleration of the indebtedness) and may then proceed inthe manner and subject to the conditions of the Act to send to Borrower andother necessary parties a notice of sale and to sell and convey the Propertyand other collateral in accordance with the above referenced statutes. The saleshall be made at one or more sales, as an entirety or in parcels, upon suchnotice, at such time and places, subject to all conditions and with theproceeds thereof to be applied all as provided in the Act. No action of Lenderbased upon the provisions contained herein or contained in the Act, including,without limitation, the giving of the notice of intent to foreclose by power ofsale or the notice of sale, shall constitute an election of remedies whichwould preclude Lender from pursuing judicial foreclosure before or at any timeafter commencement of the power of sale foreclosure procedure. Borrower fullyunderstands the consequences of conferring on Lender the above-described powerof sale, and if Lender elects to enforce this Mortgage by exercising such powerof sale, Borrower hereby expressly waives, to the fullest extent permitted byLaw, any right to a judicial hearing prior to the sale of the Property.

###  

**A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE.A POWER OF SALE MAY ALLOW THE MORTGAGEE (LENDER) TO TAKE THE MORTGAGEDPROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPONDEFAULT BY THE MORTGAGOR (BORROWER) UNDER THIS MORTGAGE.**

 

(c)           Judicial Foreclosure.Whether or not proceedings have commenced by the exercise of the power of saleabove given, Lender in lieu of proceeding with the power of sale may at itsoption declare the whole amount of the indebtedness remaining unpaid,immediately due and payable without notice, and proceed by suit or suits inequity or at law to foreclose this Mortgage.

 

(d)           Waiver ofAppraisement. Notwithstanding anything to the contrary contained in thisMortgage or the other Junior Loan Documents, if the Lender elects to forecloseupon this Mortgage by judicial proceedings, appraisement 

 

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of the Property is waived or not waived at the option of the Lender.Such option can be exercised at or prior to the time judgment is rendered inany judicial foreclosure thereof.

 

(e)           Mortgage Tax.  Borrower shall pay the Oklahoma Real EstateMortgage Tax to be paid upon the recording of the Mortgage pursuant to 68 Okla.Stat. Section 1901 etseq.

 

Section 8.5             Maximum Principal Indebtedness.

 

Notwithstandinganything else in the Mortgage to the contrary, the maximum amount of principaldebt secured by this Mortgage, not including funds disbursed to protect thesecurity of the Mortgage, shall not exceed at any one time $8,116,841.

 

[*Remainder ofpage intentionally left blank; signature page follows*]

 

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IN WITNESS WHEREOF, Borrowerhas caused this Mortgage to be executed as of the day and year first writtenabove.

 
|   | BORROWER:                                                   |
|--------|-------------------------------------------------------------|
|   |                                                        |
|   | **REST EASY LLC, a Delaware limited****liability  company** |
|   |                                                        |
|   | By:                                                         | RE  MANAGING MEMBER LLC, its managing member |
|   |                                                        |
|   |                                                        | By: | Actus Lend Lease Holdings LLC,its sole member |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   |                                                        |   | By: | /s/  Marc Sierra |
|   |                                                        |   |   | Mark  Sierra |
|   |                                                        |   |   | Executive  Vice President |

 

 
| STATE OF  | )     |
|-----------|-------|
|      | ) ss. |
| COUNTY OF | )     |

 

This instrument wasacknowledged before me on August         ,2009, by                                            ,as                                        of Actus Lend Lease Holdings LLC, as sole member of RE Managing Member LLC, asthe managing member of Rest Easy LLC, a Delaware limited liability company.

 
| /s/  Susan Gaw Henderson |   |
|--------------------------|--------|
| Notary Public            |   |
|                     |   |
| My Commission Expires:   |   |
| Commission No.:          |   |
|                     |   |
| [AFFIX NOTARY SEAL]      |   |

 

**[Signature page to PAL Junior Mortgage(Fort Sill)]**

 

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**Exhibit A**

 

**Legal Description**

 

LEGAL DESCRIPTION FT. SILL FOR PARCEL-A

 

All that certain lot, piece or parcel of land,belonging, lying, situate in Fort Sill Military Reservation, Comanche County,Oklahoma being known and designated as Parcel-A, as shown on the surveyentitled, “ALTA Survey Privatization Army Lodging Parcel-A / Main Lodging, FortSill, Oklahoma”, dated July 15, 2009 and being more particularly describedas follows:

 

Commencing at a found chiseled “X” in the concretemedian on the overpass of Ft. Sill Blvd., the chiseled “X” is 8.9 feet West ofthe East edge of the median, 9.1 feet East of the West edge of the median and38.8 feet North of the end of the concrete. Chiseled “X” being the Northeastcorner of Section 24, Township 2 North, Range 12 West, I. M. Meridian, inFort Sill, Comanche County, Oklahoma. As referenced by the Certified CornerRecord, dated 16 September 2003, filed by Edward Deral Paulk, Jr.,license number, L.S. 1279, said chiseled “X” having the following coordinates:X= 1846766.423 Y= 474992.679, NAD 1983 (ADJ 1993 HARN) Oklahoma State PlaneCoordinates for the South Zone in U.S. Survey feet, go N22°53’18”E a distance of 10113.21feet to a 2 1⁄2” aluminum disk stamped “A-01” set flush with the ground on top ofa 5/8” X 24” iron rod, set at the edge of the pavement on the West side ofGeronimo Road, said disk being the POINT OF BEGINNING.

 

Thence from said “Pointof Beginning” along said edge of the pavement on the West side of Geronimo Road S24°07’13”W a distance of 155.42 feet toa point, thence S21°22’21”W a distance of 51.53 feet to a point, thence S15°55’36”Wa distance of 41.33 feet to a monument stamped “A-02”, thence continuing alongsaid edge of pavement S11°57’59”W a distance of 1051.26 feet to a monumentstamped “A-03”, set at said edge of pavement, thence S50°39’31”E a distance of5.70 feet to a monument stamped “A-04”, set at the back of the curb on the Westside of Geronimo Road, thence along said back of curb following an arc 42.11feet to the right, having a radius of 26.64 feet, the chord of which isS57°26’39”W for a distance of 37.86 feet to a monument stamped “A-05”, set atthe back of the curb on the North side of Fergusson Road, thence along saidback of curb N76°45’32”W a distance of 1243.48 feet to a monument stamped“A-06”, thence along an arc 184.22 feet to the right, having a radius of 678.97feet, the chord of which is N69°17’35”W for a distance of 183.65 feet to amonument stamped “A-07”, thence leaving said back of curb N30°46’11”E adistance of 367.39 feet to a monument stamped “A-08”, thence N38°47’32”E adistance of 542.31 feet to a monument stamped “A-09”, set at the Northwestcorner of a culvert drain concrete headwall, thence N77°11’52”W a distance of231.44 feet to a monument stamped “A-10”, set at the back of the curb on theEast side of a driveway, thence N72°06’20”W a distance of 92.72 feet to amonument stamped “A-11”, thence N58°40’27”W a distance of 113.27 feet to amonument stamped “A-12”, set at the back of the curb on the East side of CondonRoad, thence crossing the Main Driveway in line with the back of the curb on theEast side of Condon Road N44°44’40”E a distance of 58.05 feet to a monumentstamped “A-13”, set at the back of the curb on the East side of Condon Road,thence S63°35’26”E a distance of 132.37 feet to a monument stamped “A-14”, setat the North edge of the sidewalk on the North side of the Main Driveway,  thence along said sidewalk S76°59’28”E adistance of 384.36 feet to a monument stamped “A-15”, set at the North edge ofsaid sidewalk, thence N12°53’07”E a distance of 418.28 feet to a monumentstamped “A-16”, set at the Northeast corner of a parking lot, thenceS75°44’16”E a distance of 1008.17 feet back to the POINT OF BEGINNING.

 

The above described parcel contains 36.80 acres (1602919 sq. ft.).

 

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LEGAL DESCRIPTION FT. SILL FOR PARCEL-B

 

All that certain lot, piece or parcel of land,belonging, lying, situate in Fort Sill Military Reservation, Comanche County,Oklahoma being known and designated as Parcel-B, as shown on the surveyentitled, “ALTA Survey Privatization Army Lodging Parcel-B / SW Corner MainLodging, Fort Sill, Oklahoma”, dated July 15, 2009 and being moreparticularly described as follows:

 

Commencing at a found chiseled “X” in the concretemedian on the overpass of Ft. Sill Blvd., the chiseled “X” is 8.9 feet West ofthe East edge of the median, 9.1 feet East of the West edge of the median and38.8 feet North of the end of the concrete. Chiseled “X” being the Northeastcorner of Section 24, Township 2 North, Range 12 West, I. M. Meridian, inFort Sill, Comanche County, Oklahoma. As referenced by the Certified CornerRecord, dated 16 September 2003, filed by Edward Deral Paulk, Jr.,license number, L.S. 1279, said chiseled “X” having the following coordinates:X= 1846766.423 Y= 474992.679, NAD 1983 (ADJ 1993 HARN) Oklahoma State PlaneCoordinates for the South Zone in U.S. Survey feet, go N12°05’33”E a distance of 8722.75 feetto a 2 1⁄2” aluminum disk stamped “B-01” set flush with the ground on top of a5/8” X 24” iron rod, set at the backof the curb on the North side of Fergusson Road, said disk being thePOINT OF BEGINNING.

 

Thence from said “Pointof Beginning” go alongsaid back of curb on  an arc 51.57 feetto the right, having a radius of 29.24 feet, the chord of which is N22°15’03”Wfor a distance of 45.14 feet to a monument stamped “B-02”, set at the back ofthe curb on the East side of Condon Road, thence along said back of curbN28°46’30”E a distance of 247.62 feet to a point at the back of said curb,thence along an arc 221.78 feet to the right, having a radius of 1198.31 feet,the chord of which is N35°34’09”E for a distance of 221.47 feet to a point atthe back of said curb, thence N42°14’15”E a distance of 386.01 feet to a pointat the back of said curb, thence along an arc 14.04 feet to the right, having aradius of 21.10 feet, the chord of which is N55°37’33”E for a distance of 13.79feet to a monument stamped “A-12”, set at the back of the curb on the East sideof Condon Road, thence S58°40’27”E a distance of 113.27 feet to a monumentstamped “A-11”, thence S72°06’20”E a distance of 92.72 feet to a monumentstamped “A-10”, set at the back of the curb on the East side of a driveway,thence S77°11’52”E a distance of 231.44 feet to a monument stamped “A-09”, setat the Northwest corner of a culvert drain concrete headwall, thence S38°47’32”Wa distance of 542.31 feet to a monument stamped “A-08”, thence S30°46’11”W adistance of 367.39 feet to a monument stamped “A-07”, set at the back of thecurb on the North side of Fergusson Road, thence, at the back of said curb,along an arc 193.37 feet to the left, having a radius of 903.01 feet, the chordof which is N65°36’46”W for a distance of 193.00 feet to a point at the back ofsaid curb, thence N72°46’26”W a distance of 218.80 feet back to the POINT OFBEGINNING.

 

The above described parcel contains 8.75 acres (380935 sq. ft.).

 

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LEGAL DESCRIPTION FT. SILL FOR PARCEL-C

 

All that certain lot, piece or parcel of land,belonging, lying, situate in Fort Sill Military Reservation, Comanche County,Oklahoma being known and designated as Parcel-C, as shown on the surveyentitled, “ALTA Survey Privatization Army Lodging Parcel-C / Garage #418, FortSill, Oklahoma”, dated July 15, 2009 and being more particularly describedas follows:

 

Commencing at a found chiseled “X” in the concretemedian on the overpass of Ft. Sill Blvd., the chiseled “X” is 8.9 feet West ofthe East edge of the median, 9.1 feet East of the West edge of the median and38.8 feet North of the end of the concrete. Chiseled “X” being the Northeastcorner of Section 24, Township 2 North, Range 12 West, I. M. Meridian, inFort Sill, Comanche County, Oklahoma. As referenced by the Certified CornerRecord, dated 16 September 2003, filed by Edward Deral Paulk, Jr.,license number, L.S. 1279, said chiseled “X” having the following coordinates:X= 1846766.423 Y= 474992.679, NAD 1983 (ADJ 1993 HARN) Oklahoma State PlaneCoordinates for the South Zone in U.S. Survey feet, go N23°28’03”E a distance of 13711.57feet to a 2 1⁄2” aluminum disk stamped “C-01” set flush with the ground on top of a 5/8” X 24” iron rod, set at the edge ofthe asphalt on the North side of Ganahl Road, said disk being the POINTOF BEGINNING.

 

Thence from said “Pointof Beginning” go N77°34’22”Wa distance of 76.74 feet to a monument stamped “D-02”, set at the edge of theparking lot on the North side of Ganahl Road, thence along the South edge of the parking lot N75°28’16”W a distance of57.60 feet to a monument stamped “D-03”, set at said edge of the asphalt atSouthwest corner of parking area, thence along the West edge of the parking lotN10°24’26”E a distance of 26.87 feet to a monument stamped “D-04”, set at theNorthwest corner of the parking area, thence along North side of parking areaS76°38’37”E a distance of 58.32 feet to a monument stamped “D-01”, set at the Northeastcorner of the parking area, thence S84°43’05”E a distance of 74.67 feet to amonument stamped “D-12”, being part of RCI Parcel-D, thence along said RCIParcel-D boundary S8°03’57”W a distance of 37.42 feet back to the POINT OFBEGINNING.

 

The above described parcel contains 0.09 acres (4059.7 sq. ft.).

 

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LEGAL DESCRIPTION FT. SILL FOR PARCEL-E

 

All that certain lot, piece or parcel of land,belonging, lying, situate in Fort Sill Military Reservation, Comanche County,Oklahoma being known and designated as Parcel-E, as shown on the surveyentitled, “ALTA Survey Privatization Army Lodging Parcel-E / Comanche House,Fort Sill, Oklahoma”, dated July 15, 2009 and being more particularlydescribed as follows:

 

Commencing at a found chiseled “X” in the concretemedian on the overpass of Ft. Sill Blvd., the chiseled “X” is 8.9 feet West ofthe East edge of the median, 9.1 feet East of the West edge of the median and38.8 feet North of the end of the concrete. Chiseled “X” being the Northeastcorner of Section 24, Township 2 North, Range 12 West, I. M. Meridian, inFort Sill, Comanche County, Oklahoma. As referenced by the Certified CornerRecord, dated 16 September 2003, filed by Edward Deral Paulk, Jr.,license number, L.S. 1279, said chiseled “X” having the following coordinates:X= 1846766.423 Y= 474992.679, NAD 1983 (ADJ 1993 HARN) Oklahoma State PlaneCoordinates for the South Zone in U.S. Survey feet, go N22°53’09”E a distance of 13664.97feet to a 2 1⁄2” aluminum disk stamped “E-01” set flush with the ground on top of a 5/8” X 24” iron rod, set at the back of the curb on the West side ofGeronimo Road, said disk being the POINT OF BEGINNING.

 

Thence from said “Pointof Beginning” go alongsaid back of curb  S10°21’30”W a distanceof 204.59 feet to a monument stamped “E-02”, thence along an arc 29.78 feet tothe right, having a radius of 19.31 feet, the chord of which is S54°43’38”W fora distance of 26.91 feet, to a monument stamped “E-03”, set at the back of thecurb on the North side of Hamilton Road, thence N79°10’20”W a distance of182.11 feet to a monument stamped “E-04”, set at the back of the curb on theNorth side of Hamilton Road and at the East side of a sidewalk, thence alongsaid edge of sidewalk  N10°40’01”E adistance of 57.01 feet to a monument stamped “E-05”, thence N56°13’23”E adistance of 72.68 feet to a monument stamped “E-06”, set at the edge of theasphalt of a dead-end service road, thence S31°53’52”E a distance of 14.60 feetto a monument stamped “E-07”, set at the edge of the asphalt of said dead-endservice road, thence N55°47’15”E a distance of 83.13 feet to a monument stamped“E-08”, set at the West edge of a parking area, thence N28°12’32”E a distanceof 35.80 feet to a monument stamped “E-09”, set at the Northwest corner of saidparking area, thence, along the East edge of an asphalt driveway,  along an arc 44.51 feet to the right, havinga radius of 61.59 feet, the chord of which is N22°41’18”E for a distance of43.54 feet to a point, thence N49°55’28”E a distance of 28.56 feet to amonument stamped “E-10”, set at the back of the curb on the South side ofGeronimo Road, thence along said back of curb S67°58’43”E a distance of 24.91 feet to a point, thence along an arc32.84 feet to the right, having a radius of 29.51 feet, the chord of which isS21°43’40”E for a distance of 31.17 feet back to the POINT OF BEGINNING.

 

The above described parcel contains 0.72 acres (31354.8 sq. ft.).

 

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**Exhibit B**

 

**Description of Ancillary Leases**

 

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**Scheduleto Exhibit 10.6**

 

**SubstantiallyIdentical Mortgages Omitted**

 
| **State** | ** ** | **County**    | ** ** | **Subject U.S. Army Installation** |
|-----------|------------|---------------|------------|------------------------------------|
|      |       |          |       |                               |
| Louisiana |       | Vernon Parish |       | Fort Polk                          |
| Kansas    |       | Leavenworth   |       | Fort Leavenworth                   |
| Hawaii    |       | Honolulu      |       | Tripler/ Fort  Shafter             |
| Alabama   |       | Dale          |       | Fort Rucker                        |
| Kansas    |       | Riley         |       | Fort Riley,  Parcels A and E       |
| Kansas    |       | Geary         |       | Fort Riley,  Parcels B, C and D    |

 

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