LEASE AGREEMENT


 


DATED AS OF MARCH 13, 2014


 


BETWEEN


 


ARC HOSPITALITY BALTIMORE, LLC,


 


A Delaware limited liability company


 


AS LESSOR


 


AND


 


ARC HOSPITALITY TRS BALTIMORE, LLC


 


A Delaware limited liability company


 


AS LESSEE


 




    	 



    	 



    

 


LEASE AGREEMENT


 


THIS LEASE AGREEMENT
(hereinafter called “Lease”), made as of the 13th day of March, 2014, by and between ARC
Hospitality Baltimore, LLC, a Delaware limited liability company
(hereinafter called “Lessor”), and ARC
Hospitality TRS Baltimore, LLC, a Delaware limited liability company
(hereinafter called “Lessee”), provides as follows.


 


WITNESSETH:


 


Lessor owns a fee title
or leasehold interest to the Leased Property (as defined below) and desires to lease to Lessee, and Lessee desires to lease from
Lessor, the Leased Property on the terms set forth herein.


 


NOW, THEREFORE, Lessor
and Lessee, intending to be legally bound, agree that Lessor, in consideration of the payment of rent by Lessee to Lessor, the
covenants and agreements to be performed by Lessee, and upon the terms and conditions hereinafter stated, does hereby rent and
lease unto Lessee, and Lessee does hereby rent and lease from Lessor, the Leased Property (as defined below).


 


ARTICLE
I


 


Section
1.1.          Leased Property.


 


The Leased Property
is comprised of all of Lessor’s right, title and interest in the following:


 


(a)          a
parcel or parcels of land or ground leasehold interest described on Exhibit A attached hereto and by reference incorporated herein
(the “Land”);


 


(b)          all
buildings, structures and other improvements of every kind including, but not limited to, alleyways and connecting tunnels, sidewalks,
utility pipes, conduits and lines (on-site and offsite), parking areas and roadways appurtenant to such buildings and structures
presently situated upon the Land (collectively, the “Leased Improvements”);


 


(c)          all
easements, rights and appurtenances relating to the Land and the Leased Improvements;


 


(d)          all
equipment, machinery, fixtures, and other items of property required for or incidental to the use of the Leased Improvements as
a hotel, including all components thereof, now and hereafter permanently affixed to or incorporated into the Leased Improvements,
including, without limitation, all furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal, air-cooling and air-conditioning systems and apparatus,
sprinkler systems and fire and theft protection equipment, all of which to the greatest extent permitted by law are hereby deemed
by the parties hereto to constitute real estate, together with all replacements, modifications, alterations and additions thereto
(collectively, the “Fixtures”);


 






    	 



    	 



    

 


(e)          all
furniture and furnishings and all other items of personal property located on, and used in connection with, the operation of the
Leased Improvements as a hotel, together with all replacements, modifications, alterations and additions thereto;


 


(f)          all
existing leases of space within the Leased Property (including any security deposits or collateral held by Lessor pursuant thereto);
and


 


(g)          the
rights of Lessor in any Franchise Agreement with respect to the Leased Improvements.


 


For all purposes hereunder,
the term “Leased Property” shall mean the specific parcel or parcels of Land together with all items of property described
in Section 1.1(b) through (g) above relating to said parcel or parcels of land.


 


THE LEASED PROPERTY IS DEMISED IN ITS PRESENT
CONDITION WITHOUT REPRESENTATION OR WARRANTY (EXPRESSED OR IMPLIED) BY LESSOR AND SUBJECT TO ALL THE RIGHTS OF PARTIES IN POSSESSION,
AND TO THE EXISTING STATE OF TITLE INCLUDING ALL COVENANTS, CONDITIONS, RESTRICTIONS, EASEMENTS AND OTHER MATTERS OF RECORD INCLUDING
ALL APPLICABLE LEGAL REQUIREMENTS, THE LIEN OF FINANCING INSTRUMENTS, MORTGAGES, DEEDS OF TRUST AND SECURITY DEEDS, AND INCLUDING
OTHER MATTERS WHICH WOULD BE DISCLOSED BY AN INSPECTION OF THE LEASED PROPERTY OR BY AN ACCURATE SURVEY THEREOF.


 


Section
1.2.          Term


 


The term of the Lease
(the “Term”) is set forth on Exhibit B attached hereto.


 


ARTICLE
II


 


Section
2.1.          Definitions.


 


For all purposes of
this Lease, except as otherwise expressly provided or unless the context otherwise requires, (a) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as well as the singular, (b) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles as are
at the time applicable, (c) all references in this Lease to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this Lease and (d) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Lease as a whole and not to any
particular Article, Section or other subdivision.


 






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Additional
Charges - As defined in Section 3.3.


 


Affiliate
- As used in this Lease, the term “Affiliate” of a person shall mean (a) any person that, directly or indirectly, controls
or is controlled by or is under common control with such person, (b) any other person that owns, beneficially, directly or indirectly,
five percent (5%) or more of the outstanding capital stock, shares or equity interests of such person, or (c) any officer, director,
employee, partner or trustee of such person or any person controlling, controlled by or under common control with such person (excluding
trustees and persons serving in similar capacities who are not otherwise an Affiliate of such person). The term “person”
means and includes individuals, corporations, general and limited partnerships, stock companies or associations, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business trusts, or other entities and governments and agencies
and political subdivisions thereof. For the purposes of this definition, “control” (including the correlative meanings
of the terms “controlled by” and “under common control with”), as used with respect to any person, shall
mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such
person, through the ownership of voting securities, partnership interests or other equity interests.


 


Annual Budget
- As used in this Lease, the term “Annual Budget” shall mean an operating and capital budget prepared by Lessee and
delivered to Lessor in accordance with Section 3.6.


 


Award
- As defined in Section 15.1(c).


 


Base Rate
- The prime rate of interest announced publicly by Citibank, N.A., in New York, New York, from time to time. If no such rate is
announced or becomes discontinued, then such rate as is published in The Wall Street Journal as the prime rate from time to time.


 


Base Rent
- As defined in Article III.


 


Beverage
Revenue - Gross revenue from (i) the sale of wine, beer, liquor or other alcoholic beverages, whether sold in the bar or lounge,
delivered to a guest room, sold at meetings or banquets or at any other location at the Leased Property or (ii) non-alcoholic beverages
sold in the bar or lounge. Such revenues shall not include the following:


 


(a)          Any
gratuity or service charge added to a customer’s bill or statement in lieu of a gratuity which is paid to an employee;


 


(b)          Credits,
rebates, or refunds; and


 


(c)          Sales
taxes or taxes of any other kind imposed on the sale of alcoholic or other beverages.


 






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Business
Day - Each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which national banks in the City of New York,
New York, or in the municipality wherein the applicable Leased Property is located are closed.


 


Capital
Expenditures - As used in this Lease, the term “Capital Expenditures” shall mean expenditures for capital improvements
to the Leased Property and replacement or refurbishing of the Improvements, Fixtures, Furniture and Equipment and of other equipment
and systems that constitute portions of the Leased Property in connection with its Primary Intended Use, and the cost of all approvals,
licenses, permits and other authorizations necessary to complete such improvements, replacements and refurbishings, all as designated
as capital improvements by and determined in accordance with generally accepted accounting principles.


 


Capital
Impositions - Taxes, assessments or similar charges imposed upon or levied against the Leased Property for the costs of public
improvements, including, without limitation, roads, sidewalks, public lighting fixtures, utility lines, storm sewers, drainage
facilities and similar improvements.


 


CERCLA
- The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.


 


Code
- The Internal Revenue Code of 1986, as amended.


 


Commencement
Date - As defined on Exhibit B.


 


Condemnation,
Condemnor - As defined in Section 15.1.


 


Consolidated
Financials - For any fiscal year or other accounting period for Lessee and its consolidated subsidiaries, statements of earnings
and retained earnings and cash flow and for the period from the beginning of the respective fiscal year to the end of such period
and the related balance sheet as at the end of such period, together with the notes thereto, all in reasonable detail and setting
forth in comparative form the corresponding figures for the corresponding period in the preceding fiscal year, and prepared in
accordance with generally accepted accounting principles and certified by Lessee’s Chief Accounting Officer. Date of Taking
- As defined in Section 15.1(b).


 


Eligible
Independent Contractor - A management company that meets all of the following requirements:


 


(a)          The
management company does not own, directly or indirectly, more than 35% of the outstanding stock of American Realty Capital Hospitality
Trust, Inc. after applying the constructive ownership rules in Section 318(a) of the Code as modified by Section 856(c)(5) of the
Code.


 






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(b)          If
the management company is a corporation, no more than 35% of the total combined voting power of its outstanding stock (or 35% of
the total shares of all classes of its outstanding stock) or, if it is not a corporation, no more than 35% of the ownership interest
in its assets or net profits is owned, directly or indirectly, by one or more Persons owning 35% or more of the outstanding stock
of American Realty Capital Hospitality Trust, Inc. in each case after applying the constructive ownership rules in Section 318(a)
of the Code as modified by Section 856(c)(5) of the Code.


 


(c)          Neither
American Realty Capital Hospitality Trust, Inc., American Realty Capital Hospitality Operating Partnership, L.P., Lessor, nor Lessee,
any entity in which any of the foregoing owns an interest thereof derives any income from the management company.


 


(d)          At
the time that the management company enters into a management agreement with Lessee to operate the Leased Property, the management
company (or any “related person” within the meaning of Section 856(d)(9)(F) of the Code) is actively engaged in the
trade or business of operating “qualified lodging facilities” within the meaning of Section 856(d)(9)(D) of the Code
for a Person who is not a “related person” within the meaning of Section 856(d)(9)(F) of the Code with respect to American
Realty Capital Hospitality Trust, Inc. or Lessee (an “Unrelated Person”).


 


Encumbrance
- As defined in Article XXXIV.


 


Environmental
Authority - Any department, agency or other body or component of any Government that exercises any form of jurisdiction or
authority over Lessor, Lessee or the Leased Property under any Environmental Law.


 


Environmental
Authorization - Any license, permit, order, approval, consent, notice, registration, filing or other form of permission or
authorization required under any Environmental Law.


 


Environmental
Laws - All applicable federal, state, local and foreign laws and regulations relating to the environment (including without
limitation, ambient air, surface water, ground water, land surface or subsurface strata), including without limitation laws and
regulations relating to emissions, discharges, Releases or threatened Releases of Hazardous Materials or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials and
laws relating to health or safety. Environmental Laws include but are not limited to CERCLA, FIFRA, RCRA, SARA, OSHA and TSCA.


 


Environmental
Liabilities - Any and all obligations to pay the amount of any judgment or settlement, the cost of complying with any settlement,
judgment or order for injunctive or other equitable relief, the cost of compliance or corrective action in response to any notice,
demand or request from an Environmental Authority, the amount of any civil penalty or criminal fine, and any court costs and reasonable
amounts for attorney’s fees, fees for witnesses and experts, and costs of investigation and preparation for defense of any
claim or any Proceeding, regardless of whether such Proceeding is threatened, pending or completed, that may be or have been asserted
against or imposed upon Lessor, Lessee, any Predecessor, the Leased Property or any property used therein and arising out of:


 






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(a)          Failure
of Lessee, Lessor, any Predecessor or the Leased Property to comply at any time with all Environmental Laws;


 


(b)          Presence
of any Hazardous Materials in excess of allowable limits under any Environmental Laws on, in, under, at or in any way affecting
the Leased Property;


 


(c)          A
Release at any time of any Hazardous Materials on, in, at, under or in any way affecting the Leased Property;


 


(d)          Identification
by an Environmental Authority of Lessee, Lessor or any Predecessor as a potentially responsible party under CERCLA or under any
Environmental Law similar to CERCLA;


 


(e)          Presence
at any time of any above-ground and/or underground storage tanks, as defined in RCRA or in any applicable Environmental Law on,
in, at or under the Leased Property or any adjacent site or facility; or


 


(f)          Any
and all claims for injury or damage to persons or property arising out of exposure to Hazardous Materials originating or located
at the Leased Property, or resulting from operation thereof or any adjoining property.


 


Event of
Default - As defined in Section 16.1.


 


Existing
Leases - As defined in the Preamble.


 


Fair Market
Rental - The fair market rental of the Leased Property means the rental which a willing tenant not compelled to rent would
pay a willing landlord not compelled to lease for the use and occupancy of the Leased Property pursuant to the Lease for the Term
in question, (a) assuming that Lessee is not in default thereunder and (b) determined in accordance with the appraisal procedures
set forth in Article XXXIII or in such other manner as shall be mutually acceptable to Lessor and Lessee.


 


Fair Market
Value - The fair market value of Lessee’s leasehold interest in the Leased Property or of any other property means an
amount equal to the price that a willing buyer not compelled to buy would pay a willing seller not compelled to sell for such property,
(a) determined in accordance with the appraisal procedures set forth in Article XXXIII or in such other manner as shall be
mutually acceptable to Lessor and Lessee, (b) assuming that such seller must pay any customary closing costs and title premiums,
and (c) taking into account the positive or negative effect on the value of the property attributable to the interest rate, amortization
schedule, maturity date, prepayment penalty and other terms and conditions of any encumbrance that is assumed by the transferee.


 






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FIFRA -
The Federal Insecticide, Fungicide, and Rodenticide Act, as amended.


 


Fiscal Year
- The 12-month period from January 1 to December 31.


 


Fixtures
- As defined in Section 1.1.


 


FF&E
Reserve – Any reserve required under the Franchise Agreement, a management agreement, or the like to fund the purchases
of furniture, fixtures, and equipment.


 


Food Revenue
- Gross revenue from the sale, for on-site consumption, of food and non-alcoholic beverages sold at the Leased Property, including
in respect to guest rooms, banquet rooms, meeting rooms and other similar rooms. Such revenues shall not include the following:


 


(a)          Vending
machine sales;


 


(b)          Any
gratuities or service charges added to a customer’s bill or statement in lieu of a gratuity which is paid to an employee;


 


(c)          Non-alcoholic
beverages sold in the bar or lounge; and


 


(d)          Sales
taxes or taxes of any other kind imposed on the sale of food or non-alcoholic beverages


 


Food and
Beverage Revenue (F&B Revenue) – The sum of Food Revenue and Beverage Revenue, as each is defined in this section
2.1 of the Lease.


 






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Franchise
Agreement - Any franchise agreement or license agreement with a franchisor under which the Hotel is operated.


 


Franchisor
- For the purposes of this Lease, the Franchisor is Marriott International, Inc.


 


Furniture
and Equipment - For purposes of this Lease, the terms “furniture and equipment” shall mean collectively all furniture,
furnishings, wall coverings, fixtures and hotel equipment and systems located at, or used in connection with, the Hotel, together
with all replacements therefor and additions thereto, including, without limitation, (i) all equipment and systems required for
the operation of kitchens and bars, if any, laundry and dry cleaning facilities, (ii) office equipment, (iii) dining room wagons,
materials handling equipment, cleaning and engineering equipment, (iv) telephone and computerized accounting systems, and (v) vehicles.


 


Government
- The United States of America, any state, district or territory thereof, any foreign nation, any state, district, department,
territory or other political division thereof, or any political subdivision of any of the foregoing.


 


Gross Operating
Expenses - For purposes of this Lease, the term “Gross Operating Expenses” with respect to the Leased Property
shall mean the “Deductions” as defined in the Management Agreement.


 


Gross Operating
Profit - Gross Operating Profit with respect to the Leased Property shall mean, for any Fiscal Year, the excess of Gross Revenues
for such Fiscal Year over Gross Operating Expenses for such Fiscal Year.


 


Gross Revenues
- As set forth in the Management Agreement.


 


Hazardous
Materials - Hazardous Materials shall mean and include:


 


(a)          Solid,
gaseous, or liquid wastes (including hazardous wastes), hazardous air pollutants, hazardous substances, hazardous materials, regulated
substances, restricted hazardous wastes, hazardous chemical substances, mixtures, toxic substances, pollutants or contaminants
or terms of similar import as such terms are defined in any Environmental Law as such definition may change from time to time;


 


(b)          Any
substance or material which now or in the future is known to constitute a threat to health, safety, property or the environment
or which has been or in the future is determined by an Environmental Authority to be capable of posing a risk of injury to health,
safety, property or the environment or exposure to which is prohibited, limited or regulated by any Environmental Law or any Environmental
Authority, including all of those materials, wastes and substances designated now or in the future as hazardous or toxic by any
Environmental Authority; and


 






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(c)          Any
petroleum, or petroleum products or byproducts, radioactive materials, polychlorinated biphenols, asbestos, whether friable or
non-friable, and urea formaldehyde foam insulation or radon gas.


 


Hotel - Each hotel and/or
other facility offering lodging and other services or amenities being operated or proposed to be operated on the Leased Property
as listed on Exhibit A attached hereto.


 


Impositions - Collectively,
all taxes (including, without limitation, all ad valorem, sales and use, single business, gross receipts, transaction privilege,
rent or similar taxes as the same relate to or are imposed upon Lessee or its business conducted upon the Leased Property), assessments
(including, without limitation, all assessments under private covenants and for public improvements or benefit, whether or not
commenced or completed prior to the date hereof and whether or not to be completed within the Term), water, sewer or other rents
and charges, excises, tax inspection, authorization and similar fees and all other governmental charges, in each case whether general
or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Leased Property or the business
conducted thereon by Lessee (including all interest and penalties thereon caused by any failure in payment by Lessee), which at
any time prior to, during or with respect to the Term hereof may be assessed or imposed on or with respect to or be a lien upon
(a) Lessor’s interest in the Leased Property, (b) the Leased Property, or any part thereof or any rent therefrom or any estate,
right, title or interest therein, or (c) any occupancy, operation, use or possession of, or sales from, or activity conducted on
or in connection with the Leased Property, or the leasing or use of the Leased Property or any part thereof by Lessee. Nothing
contained in this definition of Impositions shall be construed to require Lessee to pay (1) any tax based on net income (whether
denominated as a franchise or capital stock or other tax) imposed on Lessor or any other person, or (2) any net revenue tax of
Lessor or any other person, or (3) any tax imposed with respect to the sale, exchange or other disposition by Lessor of the Leased
Property or the proceeds thereof, or (4) any single business, gross receipts (other than a tax on any rent received by Lessor from
Lessee), transaction, privilege or similar taxes as the same relate to or are imposed upon Lessor, except to the extent that any
tax, assessment, tax levy or charge that Lessee is obligated to pay pursuant to the first sentence of this definition and that
is in effect at any time during the Term hereof is totally or partially repealed, and a tax, assessment, tax levy or charge set
forth in clause (1) or (2) is levied, assessed or imposed expressly in lieu thereof.


 


Indemnified Party - Either
of a Lessee Indemnified Party or a Lessor Indemnified Party.


 


Indemnifying Party - Any
party obligated to indemnify an Indemnified Party pursuant to Section 8.3 or Article XXII.


 



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Insurance
Requirements - All terms of any insurance policy required by this Lease and all requirements of the issuer of any such policy.


 


Inventory
- All “Inventories of Merchandise” and “Inventories of Supplies” as defined in the Uniform System, including,
but not limited to, linens and other non-depreciable personal property.


 


Land
- As defined in Article I.


 


Lease
- This Lease.


 


Leased Improvement,
Leased Property - Each as defined in Article I.


 


Legal Requirements
– All federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting either the Leased Property or the maintenance, construction, use or alteration thereof (whether
by Lessee or under Lessee’s control), whether or not hereafter enacted and in force, including (a) all laws, rules or regulations
pertaining to the environment, occupational health and safety and public health, safety or welfare, and (b) any laws, rules or
regulations that may (1) require repairs, modifications or alterations in or to the Leased Property or (2) in any way adversely
affect the use and enjoyment thereof; and all permits, licenses and authorizations and regulations relating thereto and all covenants,
agreements, restrictions and encumbrances contained in any instruments, either of record or known to Lessee (other than encumbrances
created by Lessor without the consent of Lessee), at any time in force affecting the Leased Property.


 


Lending
Institution - Any insurance company, credit company, federally insured commercial or savings bank, national banking association,
savings and loan association, employees welfare, pension or retirement fund or system, corporate profit sharing or pension trust,
college or university, or real estate investment trust, including any corporation qualified to be treated for federal tax purposes
as a real estate investment trust, such trust having a net worth of at least $10,000,000.


 


Lessee
- The Lessee designated on this Lease and its respective permitted successors and assigns.


 


Lessee Indemnified
Party - Lessee, any Affiliate of Lessee, any other Person against whom any claim for indemnification may be asserted hereunder
as a result of a direct or indirect ownership interest (including a stockholder’s interest) in Lessee, the officers, directors,
partners, members, stockholders, employees, agents and representatives of Lessee and any corporate stockholder, agent, or representative
of Lessee, and the respective heirs, personal representatives, successors and assigns of any such officer, director, partner, member,
stockholder, employee, agent or representative.


 


Lessor’s
Personal Property - As defined in Section 6.2.


 






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Lessor
- The Lessor designated on this Lease and its respective successors and assigns.


 


Lessor Indemnified
Party - Lessor, any Affiliate of Lessor, any other Person against whom any claim for indemnification may be asserted hereunder
as a result of a direct or indirect ownership interest (including a stockholder’s or partnership interest) in Lessor, the
officers, directors, partners, members, stockholders, employees, agents and representatives of the general partner of Lessor and
any partner, agent, or representative of Lessor, and the respective heirs, personal representatives, successors and assigns of
any such officer, director, partner, member, stockholder, employee, agent or representative.


 


Management
Agreement - The agreement pursuant to which the Manager operates the Leased Property. Initially, the Management Agreement shall
mean the Management Agreement dated January 27, 2014, between Lessee and AMERICAN REALTY CAPITAL HOSPITALITY PROPERTIES, LLC as
it may be amended or supplemented from time to time, a copy of which is attached as Exhibit D hereto.


 


Manager
- As defined in Section 19.3.


 


Monthly Revenues
Computations - As defined in Exhibit C attached hereto


 


Notice - A notice
given pursuant to Article XXXII.


 


Officer’s
Certificate - A certificate of Lessee reasonably acceptable to Lessor, signed by the chief accounting officer or another officer
authorized so to sign by the board of directors or by-laws of Lessee, or any other person whose power and authority to act has
been authorized by delegation in writing by any such officer.


 


OSHA - The Occupational
Health and Safety Act, as amended.


 


Overdue
Rate - On any date, a rate equal to the Base Rate plus 2% per annum, but in no event greater than the maximum rate then permitted
under applicable law.


 


Payment Date -
Any due date for the payment of any installment of Base Rent.


 


Percentage
Rent - As defined in Section 3.1(b).


 


Person
- Any Government, natural person, corporation, general or limited partnership, limited liability company, stock company or association,
joint venture, association, company, trust, bank, trust company, land trust, business trust, or other entity.


 


Personal
Property Taxes - All personal property taxes imposed on the furniture, furnishings or other items of personal property located
on, and used in connection with, the operation of the Leased Improvements as a hotel (including all Inventory and other personal
property owned by Lessee), together with all replacement, modifications, alterations and additions thereto.


 






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Predecessor
- Any Person whose liabilities arising under any Environmental Law have or may have been retained or assumed by Lessee, either
contractually or by operation of law, relating to the Leased Property.


 


Primary Intended
Use - As defined in Section 7.2(b).


 


Proceeding
- Any judicial action, suit or proceeding (whether civil or criminal), any administrative proceeding (whether formal or informal),
any investigation by a governmental authority or entity (including a grand jury), and any arbitration, mediation or other non-judicial
process for dispute resolution..


 


RCRA
- The Resource Conservation and Recovery Act, as amended.


 


Real Estate
Taxes - All real estate taxes, including general and special assessments, if any, which are imposed upon the Land, and any
improvements thereon.


 


Release
- A “Release” as defined in CERCLA or in any Environmental Law, unless such Release has been properly authorized and
permitted in writing by all applicable Environmental Authorities or is allowed by such Environmental Law without authorizations
or permits.


 


Rent
- Collectively, the Base Rent, Percentage Rent and Additional Charges.


 


Room Revenues
- Gross Revenue from the rental of guestrooms, whether to individuals, groups or transients, at the Hotel, excluding the following:


 


(a)          the
amount of all credits, rebates or refunds to customers, guests or patrons;


 


(b)          all
sales taxes or any other taxes imposed on the rental of such guest rooms;


 


(c)          any
fees collected for amenities including, but not limited to: telephone, laundry, movies or concessions; and


 


(d)          accounts
receivable that previously have been included in Room Revenues but which have remained uncollected for at least 180 days and have
become, in the reasonable judgment of Lessee, uncollectable.


 


SARA - The Superfund
Amendments and Reauthorization Act of 1986, as amended.


 


State - The State or Commonwealth
of the United States in which the Leased Property is located.


 


Subsidiaries - Persons
in which a party owns, directly or indirectly, more than 50% of the voting stock or control, as applicable (individually, a “Subsidiary”).


 






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Taking - A taking or voluntary
conveyance during the Term of all or part of the Leased Property, or any interest therein or right accruing thereto or use thereof,
as the result of, or in settlement of, any Condemnation or other eminent domain proceeding affecting the Leased Property whether
or not the same shall have actually been commenced.


 


Term - As defined in Section
1.2.


 


TSCA - The Toxic Substances
Control Act, as amended.


 


Uneconomic for its Primary
Intended Use - A state or condition of the Leased Property such that, in the good faith judgment of Lessee, reasonably exercised
and evidenced by the resolution of the board of directors or other governing body of Lessee, the Leased Property cannot be operated
on a commercially practicable basis for its Primary Intended Use, taking into account, among other relevant factors, the number
of usable rooms and projected revenues, such that Lessee intends to, and shall, complete the cessation of operations from the Leased
Property.


 


Uniform System - Shall
mean the Uniform System of Accounts for Hotels (9th Revised Edition, 1996) as published by the Hotel Association of New York City,
Inc., as same may hereafter be revised.


 


Unsuitable for its Primary
Intended Use - A state or condition of the Leased Property such that, in the good faith judgment of Lessee, reasonably exercised
and evidenced by the resolution of the board of directors or other governing body of Lessee, due to casualty damage or loss through
Condemnation, the Leased Property cannot function as an integrated hotel facility consistent with standards applicable to a well
maintained and operated hotel.


 


ARTICLE
III


 


Section
3.1.          Rent.


 


Lessee will pay to
Lessor in lawful money of the United States of America which shall be legal tender for the payment of public and private debts,
in immediately available funds, at Lessor’s address set forth in Article XXXII hereof or at such other place or to such other
Person, as Lessor from time to time may designate in a Notice, the greater of (i) Base Rent and Additional Charges and (ii) Percentage
Rent and Additional Charges , during the Term, as follows:


 


(a)          Base
Rent: An annual sum in the amount set forth on Exhibit C hereto as the “Base Rent” for the Leased Property, payable
in arrears in equal, consecutive monthly installments, on or before the tenth day of each calendar month during the Term; provided,
however, that the first and last monthly payments of Base Rent shall be prorated as to any partial month (subject to adjustment
as provided in Sections 5.2, 14.5, 15.3, 15.5, and 15.6); and


 






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(b)          Percentage
Rent: Starting on the first full month of the Term after the Commencement Date occurs, Tenant shall pay monthly percentage
rent (“Percentage Rent”), on or before the tenth day of each calendar month during the Term, in an amount equal to
Monthly Revenues Computation, as defined on Exhibit C.


 


If less than all of
a month falls within the Term, the Leasee will forgo the above determination and the Rent for that month shall equal (i) the Base
Rent calculated as indicated above multiplied by (ii) a fraction equal to (A) the number of days in the month that fall within
the Term divided by (B) the total number of days in the month.


 


(c)          Officer’s
Certificates. Additionally, if requested by Lessor, an Officer’s Certificate shall be delivered to Lessor monthly, together
with such monthly Percentage Rent payment, setting forth the calculation of such rent payment for such month within 15 days after
each of the first three months of each Fiscal Year (or part thereof) in the Term. Such monthly payments shall be based on the formula
set forth in Section 3.1(b). There shall be no reduction in the Base Rent regardless of the result of the Monthly Revenues Computations.


 


In addition, on or
before February 15 of each year, if requested by Lessor, Lessee shall deliver to Lessor an Officer’s Certificate reasonably
acceptable to Lessor setting forth the computation of the actual Percentage Rent that accrued for each month of the Fiscal Year
that ended on the immediately preceding December 31 and shall pay to Lessor Percentage Rent, if due and payable, for the last month
of the applicable Fiscal Year. Additionally, if the annual Percentage Rent due and payable for any Fiscal Year (as shown in the
applicable Officer’s Certificate) exceeds the amount actually paid as Percentage Rent by Lessee for such year, Lessee also
shall pay such excess to Lessor at the time such certificate is delivered. If the Percentage Rent actually due and payable for
such Fiscal Year is shown by such certificate to be less than the amount actually paid as Percentage Rent for the applicable Fiscal
Year, Lessor shall reimburse such amount to Lessee or alternatively, at the Lessor’s option, credit such amount against subsequent
months’ Base Rent and, to the extent necessary, subsequent months’ Percentage Rent payments. Any such credit to Base
Rent shall not be applied for purposes of calculating Percentage Rent payable for any subsequent month.


 


Any difference between
the annual Percentage Rent due and payable for any Fiscal Year (as shown in the applicable Officer’s Certificate or as adjusted
pursuant to Section 3.3) and the total amount of monthly payments for such Fiscal Year actually paid by Lessee as Percentage Rent,
whether in favor of Lessor or Lessee, shall bear interest at the Overdue Rate, which interest shall accrue from the due date of
the last monthly payment for the Fiscal Year until the amount of such difference shall be paid or otherwise discharged. Any such
interest payable to Lessor shall be deemed to be and shall be payable as Additional Charges.


 


The obligation to pay
Percentage Rent shall survive the expiration or earlier termination of the Term, and a final reconciliation, taking into account,
among other relevant adjustments, any adjustments which are accrued after such expiration or termination date but which related
to Percentage Rent accrued prior to such termination date, and Lessee’s good faith best estimate of the amount of any unresolved
contractual allowances, shall be made not later than one year after such expiration or termination date, but Lessee shall advise
Lessor within 60 days after such expiration or termination date of Lessee’s best estimate at that time of the approximate
amount of such adjustments, which estimate shall not be binding on Lessee or have any legal effect whatsoever.


 






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Section
3.2.          Confirmation of Percentage Rent.


 


Lessee shall utilize,
or cause to be utilized, an accounting system for the Leased Property in accordance with its usual and customary practices, and
in accordance with generally accepted accounting principles and the Uniform System, that will accurately record all data necessary
to compute Percentage Rent, and Lessee shall retain, for at least four (4) years after the expiration of each Fiscal Year (and
in any event until the reconciliation described in Section 3.1(c) for such Fiscal Year has been made), reasonably adequate records
conforming to such accounting system showing all data necessary to compute Percentage Rent for the applicable Fiscal Years. Lessor,
at its expense (except as provided herein below), shall have the right from time to time by its accountants or representatives
to audit the information that formed the basis for the data set forth in any Officer’s Certificate provided during the preceding
four (4) Fiscal Years under Section 3.1(c) and, in connection with such audits, to examine all Lessee’s records (including
supporting data and sales and excise tax returns and franchise reports) reasonably required to verify Percentage Rent (and for
no other purpose), subject to any prohibitions or limitations on disclosure of any such data under Legal Requirements. If any such
audit discloses a deficiency in the payment of Percentage Rent, and either Lessee agrees with the result of such audit or the matter
is otherwise determined or compromised, Lessee shall forthwith pay to Lessor the amount of the deficiency, as finally agreed or
determined, together with interest at the Overdue Rate from the date when said payment should have been made to the date of payment
thereof; provided, however, that as to any audit that is commenced more than two (2) years after the date Percentage Rent for any
Fiscal Year is reported by Lessee to Lessor, the deficiency, if any, with respect to such Percentage Rent shall bear interest at
the Overdue Rate only from the date such determination of deficiency is made unless such deficiency is the result of gross negligence
or willful misconduct on the part of Lessee, in which case interest at the Overdue Rate will accrue from the date such payment
should have been made to the date of payment thereof. If any such audit discloses that the Percentage Rent actually due from Lessee
for any Fiscal Year exceeds that reported by Lessee by more than 3%, Lessee shall pay the cost of such audit and examination. Any
proprietary information obtained by Lessor pursuant to the provisions of this Section shall be treated as confidential, except
that such information may be used, subject to appropriate confidentiality safeguards, in any litigation between the parties and
except further that Lessor may disclose such information to prospective lenders. The obligations of Lessee contained in this Section shall
survive the expiration or earlier termination of this Lease.


 






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Section 3.3.          Additional
Charges.







 


In addition to the
Base Rent and Percentage Rent, (a) Lessee also will pay and discharge as and when due and payable all other amounts, liabilities,
obligations and Impositions that Lessee assumes or agrees to pay under this Lease, and (b) in the event of any failure on the part
of Lessee to pay any of those items referred to in clause (a) of this Section 3.3, Lessee also will promptly pay and discharge
every fine, penalty, interest and cost that may be added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) of this Section 3.3 being additional rent hereunder and being referred to herein collectively as the “Additional
Charges”), and Lessor shall have all legal, equitable and contractual rights, powers and remedies provided either in this
Lease or by statute or otherwise in the case of non-payment of the Additional Charges as in the case of non-payment of the Base
Rent. If any installment of Base Rent, Percentage Rent or Additional Charges (but only as to those Additional Charges that are
payable directly to Lessor) shall not be paid on its due date, Lessee will pay Lessor on demand, as Additional Charges, a late
charge (to the extent permitted by law) computed at the Overdue Rate on the amount of such installment, from the due date of such
installment to the date of payment thereof. To the extent that Lessee pays any Additional Charges to Lessor pursuant to any requirement
of this Lease, Lessee shall be relieved of its obligation to pay such Additional Charges to the entity to which they would otherwise
be due and Lessor shall pay same from monies received from Lessee.


 


Section
3.4.          Rent Payable Without Deduction.




 


The Rent shall be paid
so that this Lease shall yield to Lessor the full amount of the installments of Base Rent, Percentage Rent and Additional Charges
throughout the Term, all as more fully set forth in Article V, but subject to any other provisions of this Lease that expressly
provide for adjustment or abatement of Rent or other charges or expressly provide that certain expenses or maintenance (not including
Capital Impositions, Real Estate Taxes, Personal Property Taxes and Capital Impositions) shall be paid or performed by Lessor.
In order that the Hotel yield the maximum amount of Rent under this Lease, Lessee does hereby covenant and agree that it shall
not barter or trade for goods or services from providers thereof to the Hotel in exchange for free or reduced rates for guestrooms
or other goods and services provided by or at the Hotel for its guests.


 


Section
3.5.          Conversion of Property.




 


If, during the Term,
Lessee desires to provide food and beverage operations at the Hotel which differ materially from the food and beverage operations
provided at the commencement of the Term (for example, eliminating full service food and beverage operations), Lessee shall give
notice of such desire to Lessor. Lessor and Lessee shall then commence negotiations to adjust Rent to reflect the proposed change
to the operation of the Hotel, each acting reasonably and in good faith. All other terms of this Lease will remain substantially
the same. During negotiations, which shall not extend beyond 60 days, Lessee shall not “convert” the Hotel and shall
continue fulfilling its obligations under the existing terms of this Lease. If no agreement is reached after such 60-day period,
Lessee shall withdraw such notice and this Lease shall continue in full force.


 


Section
3.6.          Annual Budget.




 


Lessee shall submit
to Lessor with respect to the Hotel:


 


(a)          An
annual operating budget (“Annual Budget”) delivered at the times and prepared in the manner described in the Management
Agreement.


 






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(b)          A
capital budget (“Capital Budget”) delivered at the times and prepared in the manner described in the Management Agreement.
The Capital Budget shall be prepared in accordance with the Uniform System to the extent applicable.


 


Section
3.7.          Approval of Capital Budget.




 


Lessor and Lessee shall
endeavor in good faith to approve the Capital Budget within the time periods specified in the Management Agreement. Within the
time periods specified in the Management Agreement, Lessor shall give Lessee written notice either (a) that Lessor approves the
Capital Budget (which approval may not be unreasonably withheld, conditioned or delayed) or (b) indicating with reasonable specificity
the respects in which Lessor objects to the Capital Budget. In the latter event, Lessor and Lessee shall act promptly, reasonably
and in good faith to seek to resolve Lessor’s objections. In the event that Lessor and Lessee fail to reach agreement with
respect to the Capital Budget within thirty (30) days after receipt of Lessor’s written notice, Lessee and Lessor shall refer
any disputed Capital Budget matter to arbitration using procedures set forth in Article XXXIX hereto and each party shall endeavor
to cause such arbitration to be completed as quickly as possible, but in any event not later than six (6) months following referral
to arbitration. While any arbitration is pending, Lessee shall continue to operate the Hotel in accordance with the terms of this
Lease, including without limitation, making all Capital Expenditures for approved portions of the Capital Budget and mandatory
projects to the extent such mandatory projects are included in the Capital Budget. Lessor shall be obligated to make all Capital
Expenditures which are required pursuant to a Capital Budget which has been approved or deemed approved in accordance with the
procedures set forth above.


 


Section
3.8.          Approval of Annual Budget.




 


Lessor and Lessee shall
endeavor in good faith to approve the Annual Budget within the time periods specified in the Management Agreement. Within the time
periods specified in the Management Agreement, Lessor shall give Lessee written notice either (a) that Lessor approves the Annual
Budget (which approval may not be unreasonably withheld, conditioned or delayed) or (b) indicating with reasonable specificity
the respects in which Lessor objects to the Annual Budget. In the latter event, Lessor and Lessee shall act promptly, reasonably
and in good faith to seek to resolve Lessor’s objections. In the event that Lessor and Lessee fail to reach agreement with
respect to the Annual Budget within thirty (30) days after receipt of Lessor’s written notice, any contested matter within
the Annual Budget then remaining shall be submitted to arbitration in accordance with the procedure therefor set forth in Article
XXXIX of this Lease.


 


Section
3.9.          Capital Projects.




 


(a)          The
selection of all design professionals and contractors for capital projects shall be made by Lessor and Lessor shall provide at
its expense all materials and services for capital projects.


 


(b)          Lessee
shall cooperate with Lessor with respect to capital projects. Notwithstanding anything in the foregoing which may be construed
to the contrary, Lessee shall have no obligation to perform any such capital projects unless Lessee agrees to perform and be responsible
for same in accordance with a written agreement therefor between Lessor and Lessee.


 






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Section
3.10.         Books and Records.




 


Lessee shall keep full
and adequate books of account and other records reflecting the results of operation of the Hotel on an accrual basis, all in accordance
with the Uniform System and generally accepted accounting principles to the extent applicable and the obligations of Lessee under
this Lease. The books of account and all other records relating to or reflecting the operation of the Hotel shall be kept either
at the Hotel or at Lessee’s executive offices and shall be available to Lessor and its representatives and its auditors or
accountants, at all reasonable times for examination, audit, inspection, and transcription. All of such books and records pertaining
to the Hotel including, without limitation, books of account, guest records and front office records, at all times shall be the
property of Lessor and shall not be removed from the Hotel or Lessee’s executive offices without Lessor approval.


 


ARTICLE
IV


 


Section
4.1.          Payment of Impositions.




 


Subject to Article
XII relating to permitted contests (a) Lessee will pay, or cause to be paid, all Impositions (including Real Estate Taxes, Personal
Property Taxes and Capital Impositions) before any fine, penalty, interest or cost may be added for non-payment, such payments
to be made directly to the taxing or other authorities where feasible, and will promptly furnish to Lessor copies of official receipts
or other satisfactory proof evidencing such payments, and (b) Lessee’s obligation to pay such Impositions shall be deemed
absolutely fixed upon the date such Impositions become a lien upon the Leased Property or any part thereof. Lessee will pay, or
cause to be paid, all Real Estate Taxes, Personal Property Taxes and Capital Impositions before they become delinquent. If any
such Imposition may, at the option of the taxpayer, lawfully be paid in installments (whether or not interest shall accrue on the
unpaid balance of such Imposition), Lessee may exercise the option to pay the same (and any accrued interest on the unpaid balance
of such Imposition) in installments and in such event, shall pay such installments during the Term (subject to Lessee’s right
of contest pursuant to the provisions of Article XII) as the same respectively become due and before any fine, penalty, premium,
further interest or cost may be added thereto. Lessor, at its expense, shall, to the extent required or permitted by applicable
law, prepare and file all tax returns in respect of Lessor’s net income, gross receipts, sales and use, single business,
transaction privilege, rent, ad valorem, franchise taxes, Real Estate Taxes, Personal Property Taxes, Capital Impositions and taxes
on its capital stock, and Lessee, at its expense, shall, to the extent required or permitted by applicable laws and regulations,
prepare and file all other tax returns and reports in respect of any Imposition as may be required by governmental authorities.
If any refund shall be due from any taxing authority in respect of any Imposition paid by Lessee, the same shall be paid over to
or retained by Lessee if no Event of Default shall have occurred hereunder and be continuing. If an Event of Default shall have
occurred and be continuing, any such refund shall be paid over to or retained by Lessor. Any such funds retained by Lessor due
to an Event of Default shall be applied as provided in Article XVI. Lessor and Lessee shall, upon request of the other, provide
such data as is maintained by the party to whom the request is made with respect to the Leased Property as may be necessary to
prepare any required returns and reports. Lessee shall file all Personal Property Tax returns in such jurisdictions where it is
legally required to so file. Lessor, to the extent it possesses the same, and Lessee, to the extent it possesses the same, will
provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property classified
as personal property. Where Lessor is legally required to file Personal Property Tax returns, Lessee shall provide Lessor with
copies of assessment notices in sufficient time for Lessor to file a protest. Lessor may, upon notice to Lessee, at Lessor’s
option and at Lessor’s sole expense, protest, appeal, or institute such other proceedings (in its or Lessee’s name)
as Lessor may deem appropriate to effect a reduction of real estate or personal property assessments for those Impositions to be
paid by Lessor, and Lessee, at Lessor’s expense as aforesaid, shall fully cooperate with Lessor in such protest, appeal,
or other action. Lessor hereby agrees to indemnify, defend, and hold harmless Lessee from and against any claims, obligations,
and liabilities against or incurred by Lessee in connection with such cooperation. Billings for reimbursement of Personal Property
Taxes by Lessee to Lessor shall be accompanied by copies of a bill therefor and payments thereof which identify the personal property
with respect to which such payments are made. Lessor, however, reserves the right to effect any such protest, appeal or other action
and, upon notice to Lessee, shall control any such activity, which shall then go forward at Lessor’s sole expense. Upon such
notice, Lessee, at Lessor’s expense, shall cooperate fully with such activities.


 






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Section
4.2.          Notice of Impositions.




 


Lessor shall give prompt
Notice to Lessee of all Impositions payable by Lessee hereunder of which Lessor at any time has knowledge, provided that Lessor’s
failure to give any such Notice shall in no way diminish Lessee’s obligations hereunder to pay such Impositions, but such
failure shall obviate any default hereunder for a reasonable time after Lessee receives Notice of any Imposition which it is obligated
to pay during the first taxing period applicable thereto and Lessor will pay any interest, penalty or fine caused by Lessor’s
failure to give such Notice.


 


Section
4.3.          Adjustment of Impositions.




 


Impositions payable
by Lessee imposed in respect of the tax-fiscal period during which the Term terminates shall be adjusted and prorated between Lessor
and Lessee, whether or not such Imposition is imposed before or after such termination, and Lessee’s obligation to pay its
prorated share thereof after termination shall survive such termination.


 


Section
4.4.          Utility Charges.




 


Lessee will be solely
responsible for obtaining and maintaining utility services to the Leased Property and will pay or cause to be paid all charges
for electricity, gas, oil, water, sewer and other utilities used in the Leased Property during the Term.


 






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Section 4.5.          Insurance
Premiums.




 


To the extent provided
in Section 13.1, Lessor and Lessee will pay or cause to be paid in a timely manner all premiums for the insurance coverages required
to be maintained by them under Article VIII.


 





Section 4.6.          Franchise
Fees.




 


Lessee will pay or
cause to be paid in a timely manner all franchise fees due and owing in accordance with the terms and conditions of the Franchise
Agreement.


 


ARTICLE
V


 





Section 5.1.          No
Termination, Abatement, etc.




 


Except as otherwise
specifically provided in this Lease, and except in the event of termination of the Franchise Agreement solely by reason of any
action or inaction by Lessor, Lessee, to the extent permitted by law, shall remain bound by this Lease in accordance with its terms
and shall neither take any action without the written consent of Lessor to modify, surrender or terminate the same, nor seek nor
be entitled to any abatement, deduction, deferment or reduction of the Rent, or setoff against the Rent, nor shall the obligations
of Lessee be otherwise affected by reason of (a) any damage to, or destruction of, the Leased Property or any portion thereof from
whatever cause or any Taking of the Leased Property or any portion thereof, (b) any claim which Lessee has or might have against
Lessor by reason of any default or breach of any warranty by Lessor under this Lease or any other agreement between Lessor and
Lessee, or to which Lessor and Lessee are parties, (c) any bankruptcy, insolvency, reorganization, composition, readjustment, liquidation,
dissolution, winding up or other proceedings affecting Lessor or any assignee or transferee of Lessor, or (d) for any other cause
whether similar or dissimilar to any of the foregoing other than a discharge of Lessee from any such obligations as a matter of
law. Except in the event of a constructive eviction of Lessee from the Leased Property for any reason other than an Event of Default,
Lessee hereby specifically waives all rights, arising from any occurrence whatsoever, which may now or hereafter be conferred upon
it by law to (1) modify, surrender or terminate this Lease or quit or surrender the Leased Property or any portion thereof, or
(2) entitle Lessee to any abatement, reduction, suspension or deferment of the Rent or other sums payable by Lessee hereunder,
except as otherwise specifically provided in this Lease. The obligations of Lessee hereunder shall be separate and independent
covenants and agreements and the Rent and all other sums payable by Lessee hereunder shall continue to be payable in all events
unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Lease or by termination of
this Lease other than by reason of an Event of Default.


 






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Section 5.2.          Abatement
Procedures.




 


In the event of a partial
Taking of the Leased Property as described in Section 15.5, the Lease shall not terminate with respect to the affected Leased Property,
but the Base Rent shall be abated in the manner and to the extent that is fair, just and equitable to both Lessee and Lessor, taking
into consideration, among other relevant factors, the number of usable rooms, the amount of square footage, or the revenues affected
by such partial Taking. If Lessor and Lessee are unable to agree upon the amount of such abatement within 30 days after such partial
Taking, the matter may be submitted by either party to arbitration pursuant to the arbitration procedures set forth in Article
XXXIX.


 


ARTICLE
VI


 





Section 6.1.          Ownership
of the Leased Property.




 


Lessee acknowledges
that the Leased Property is the property of Lessor and that Lessee has only the right to the possession and use of the Leased Property
upon the terms and conditions of this Lease.


 





Section 6.2.          Lessor’s
Personal Property.




 


Lessee will obtain,
maintain and replace, at Lessee’s cost and expense, throughout the Term such Inventory as is required to operate the Leased
Property in the manner contemplated by this Lease. Lessee may (and shall as provided hereinbelow), at its expense, install, affix
or assemble or place on any parcels of the Land or in any of the Leased Improvements, any items of personal property (including
Inventory). This Inventory, Leased Improvements, and personal property is and will be owned by and acquired for Lessor, excluding
de minimis items not used to operate the Leased Property in the manner contemplated by this Lease, and subject to Section 19.1.
Lessee, at the commencement of the Term, and from time to time thereafter, shall provide Lessor with an accurate list of all such
items of personal property (collectively, including Inventory, the “Lessor’s Personal Property”). Lessee, only
in the ordinary course of business, may remove any of Lessor’s Personal Property set forth on such list at any time during
the Term. Upon the expiration or any prior termination of the Term, Lessee shall leave all of Lessor’s Personal Property
and vacate the Leased Property in accordance with this Lease. Any de minimis items Lessee is entitled to remove from the Leased
Property not removed by Lessee within thirty (30) days following the expiration or earlier termination of the Term shall be considered
abandoned by Lessee and may be appropriated, sold, destroyed or otherwise disposed of by Lessor without first giving Notice thereof
to Lessee, without any payment to Lessee and without any obligation to account therefor. Lessee will, at its expense, restore the
Leased Property to the condition required by Section 9.1(d).


 


Except as hereinafter
set forth, Lessee may make such financing arrangements, title retention agreements, leases or other agreements with respect to
Lessor’s Personal Property as it sees fit provided that Lessee first advises Lessor, in writing, of any such arrangement
and such arrangement expressly provides that in the event of Lessee’s default thereunder, Lessor (or its designee) may assume
Lessee’s obligations and rights under such arrangement. Lessee shall have the right to lease a van for the purposes of providing
shuttle service to hotel guests; provided that the terms and conditions of such lease are approved by Lessor and any secured lender
with respect to the Leased Property.


 






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ARTICLE
VII


 





Section 7.1.          Condition
of the Leased Property.




 


Lessee acknowledges
receipt and delivery of possession of the Leased Property as of the Commencement Date and that Lessee has examined and otherwise
has knowledge of the condition of the Leased Property and has found the same to be satisfactory for its purposes hereunder. Lessee
is leasing the Leased Property “as is” in its present condition. Lessee waives any claim or action against Lessor in
respect of the condition of the Leased Property. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN TO THE CONTRARY, LESSOR MAKES
NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY, OR ANY PART THEREOF, EITHER AS TO ITS FITNESS
FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, IT BEING AGREED THAT LESSEE TAKES THE LEASED PROPERTY SUBJECT TO ALL SUCH RISKS. LESSEE ACKNOWLEDGES THAT THE
LEASED PROPERTY HAS BEEN INSPECTED BY LESSEE AND IS SATISFACTORY TO IT. Provided, however, to the extent permitted by law, Lessor
hereby assigns to Lessee all of Lessor’s rights to proceed against any predecessor in title other than Lessee (or an Affiliate
of Lessee which conveyed the Property to Lessor) for breaches of warranties or representations or for latent defects in the Leased
Property. Lessor shall fully cooperate with Lessee in the prosecution of any such claim, in Lessor’s or Lessee’s name,
all at Lessee’s sole cost and expense. Lessee hereby agrees to indemnify, defend and hold harmless Lessor from and against
any claims, obligations and liabilities against or incurred by Lessor in connection with such cooperation.


 





Section 7.2.          Use
of the Leased Property.




 


(a)          Lessee
covenants that it will (with Lessor’s commercially reasonable cooperation to the extent necessary and required) proceed with
all due diligence and will exercise its commercially reasonable efforts to obtain and to maintain all approvals needed to use and
operate the Leased Property under applicable local, state and federal law.


 


(b)          Lessee
shall use, or cause to be used, the Leased Property only as a hotel facility, and for such other uses as may be necessary or incidental
to such use or such other use as otherwise approved by Lessor (the “Primary Intended Use”). Lessee shall not use the
Leased Property or any portion thereof for any other use without the prior written consent of Lessor, which consent may be granted,
denied or conditioned in Lessor’s reasonable discretion. No use shall be made or permitted to be made of the Leased Property,
and no acts shall be done, which will cause the cancellation or increase the premium of any insurance policy covering the Leased
Property or any part thereof (unless another adequate policy satisfactory to Lessor is available and Lessee pays any premium increase),
nor shall Lessee sell or permit to be kept, used or sold in or about the Leased Property any article which may be prohibited by
law or fire underwriter’s regulations. Lessee shall, at its sole cost, comply with all of the requirements pertaining to
the Leased Property of any insurance board, association, organization or company necessary for the maintenance of insurance, as
herein provided, covering the Leased Property and Lessor’s Personal Property, except that Lessee shall have no obligation
to complete capital improvements to the Leased Property. Lessee will have exclusive possession of the Hotel and exclusive control
of the day to day operations of the Hotel.


 






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(c)          Subject
to the provisions of Articles XIV, XV, XXI and XXII and other express provisions in this Lease, with respect to the Leased Property,
Lessee covenants and agrees that during the Term it will (1) operate continuously the Leased Property as a hotel facility, (2)
keep in full force and effect and comply with all the provisions of the Franchise Agreement (except that Lessee shall have no obligation
to take any actions that are the responsibility of Lessor hereunder or to complete any capital improvements to the Leased Property
required by the franchisor unless Lessor funds the cost thereof), (3) not terminate or amend the Franchise Agreement without the
consent of Lessor (not to be unreasonably withheld, conditioned or delayed), (4) maintain appropriate certifications and licenses
for such use and (5) seek to maximize the Gross Revenues generated therefrom consistent with sound business practices and Lessee’s
concurrent goal of maximizing its net operating income therefrom. Lessor covenants and agrees that, with respect to the Leased
Property, during the Term it will (1) not take or allow any Affiliate to take or fail to take any action that would interfere with,
restrict or prohibit Lessee’s operation of the Leased Property for its Primary Intended Use, including, without limitation,
modifying, amending or terminating any Franchise Agreement or any licenses, franchises, permits, easements, leases, undertakings
or agreements held by Lessor or such Affiliate and pertaining to the Leased Property, (2) comply with all the provisions of any
Franchise Agreement relating to Capital Expenditures (to the extent such Capital Expenditures are provided for in the Capital Budget),
the payment of any Real Estate Taxes, Personal Property Taxes, Capital Impositions and other requirements thereof that are not
the responsibility of Lessee hereunder and (3) seek to maximize the net income generated by Lessee from the Leased Property consistent
with Lessor’s concurrent goal of maximizing the Gross Revenues generated therefrom.


 


(d)          Lessee
shall not commit or suffer to be committed any waste on the Leased Property, nor shall Lessee cause or permit any nuisance thereon.


 


(e)          Lessee
shall neither suffer nor permit the Leased Property or any portion thereof, or Lessor’s Personal Property, to be used in
such a manner as (1) might reasonably tend to impair Lessor’s (or Lessee’s, as the case may be) title thereto or to
any portion thereof, or (2) may reasonably make possible a claim or claims of adverse usage or adverse possession by the public,
as such, or of implied dedication of the Leased Property or any portion thereof, except as necessary in the ordinary and prudent
operation of the Hotels.


 






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Section 7.3.          Lessor
to Grant Easements, etc.




 


Lessor will, from time
to time, so long as no Event of Default has occurred and is continuing, at the request of Lessee and at Lessee’s cost and
expense (but subject to the approval of Lessor, which approval shall not be unreasonably withheld or delayed), (a) grant easements
and other rights in the nature of easements with respect to the Leased Property to third parties, (b) release existing easements
or other rights in the nature of easements which are for the benefit of the Leased Property, (c) dedicate or transfer unimproved
portions of the Leased Property for road, highway or other public purposes, (d) execute petitions to have the Leased Property
annexed to any municipal corporation or utility district, (e) execute amendments to any covenants and restrictions affecting the
Leased Property and (f) execute and deliver to any person any instrument appropriate to confirm or effect such grants, releases,
dedications, transfers, petitions and amendments (to the extent of its interests in the Leased Property), but only upon delivery
to Lessor of an Officer’s Certificate stating that such grant, release, dedication, transfer, petition or amendment does
not interfere with the proper conduct of the business of Lessee on the Leased Property and does not materially reduce the value
of the Leased Property.


 





Section 7.4.          Reservation
by Lessor.




 


Notwithstanding anything
contained in this Lease to the contrary, Lessor expressly reserves from the operation of this Lease and the Leased Property the
right of Lessor or third party lessees of Lessor to place communications equipment on the roof of the Leased Improvements or elsewhere
on the Land and to receive all rental and income therefrom. Such communications equipment shall include, but not be limited to,
satellite dishes, antennas, wires, conduits, cables and associated allied materials, machinery and equipment as necessary to properly
complete the installation, maintenance and operation of such communications equipment (“the Installations”). Lessor
covenants and agrees that the Installations shall be in such locations so that their use (including installation, operations, maintenance,
repair and removal) shall not unreasonably interfere with or impede the use by Lessee of the Leased Property pursuant to this Lease.
Lessor shall be responsible for the Installations being in compliance with all applicable federal, state and local laws and ordinances.
As between Lessor and Lessee, Lessor shall be responsible for the Installations being insured under appropriate casualty and general
liability insurance coverages and in that regard, Lessor agrees to indemnify and hold Lessee harmless from and against any and
all loss, costs, claim and liability, including reasonable attorney’s fees, for injuries to all persons and for damage to
or loss of all property, including the Leased Property, arising or alleged to arise from any act or omission of Lessor or third
party lessees of Lessor, including their agents, employees or contractors, relating to the installation, maintenance, repair, operation
or removal of the Installations.


 


ARTICLE
VIII


 





Section 8.1.          Compliance
with Legal and Insurance Requirements, etc.




 


Subject to Sections
8.2 and 8.3(b) below and Article XII relating to permitted contests, Lessee, at its expense, will promptly (a) comply with
all applicable Legal Requirements and Insurance Requirements in respect of the use, operation, maintenance, repair and restoration
of the Leased Property, and (b) procure, maintain and comply with all appropriate licenses and other authorizations required
for any use of the Leased Property and Lessor’s Personal Property then being made, and for the proper operation and maintenance
of the Leased Property or any part thereof, except that Lessee shall have no obligation to complete capital improvements to the
Leased Property.


 






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Section 8.2.          Legal
Requirement Covenants.




 


Subject to Section 8.3(b)
below, Lessee covenants and agrees that the Leased Property and Lessor’s Personal Property shall not be used for any unlawful
purpose, and that Lessee shall not permit or suffer to exist any unlawful use of the Leased Property by others. Lessee shall acquire
and maintain all appropriate licenses, certifications, permits and other authorizations and approvals needed to operate the Leased
Property in its customary manner for the Primary Intended Use, and any other lawful use conducted on the Leased Property as may
be permitted from time to time hereunder. Lessee further covenants and agrees that Lessee’s use of the Leased Property and
maintenance, alteration, and operation of the same, and all parts thereof, shall at all times conform to all Legal Requirements,
unless the same are finally determined by a court of competent jurisdiction to be unlawful (and Lessee shall use reasonable efforts
to cause all such sub-tenants, invitees or others to so comply with all Legal Requirements). Lessee may, however, upon prior Notice
to Lessor, contest the legality or applicability of any such Legal Requirement or any licensure or certification decision if Lessee
maintains such action in good faith, with due diligence, without prejudice to Lessor’s rights hereunder, and at Lessee’s
sole expense. If by the terms of any such Legal Requirement compliance therewith pending the prosecution of any such proceeding
may legally be delayed without the incurrence of any lien, charge or liability of any kind against the Hotel or Lessee’s
leasehold interest therein and without subjecting Lessee or Lessor to any liability, civil or criminal, for failure so to comply
therewith, Lessee may delay compliance therewith until the final determination of such proceeding. If any lien, charge or civil
or criminal liability would be incurred by reason of any such delay, Lessee, on the prior written consent of Lessor, which consent
shall not be unreasonably withheld, may nonetheless contest as aforesaid and delay as aforesaid provided that such delay would
not subject Lessor to criminal liability and Lessee both (a) furnishes to Lessor security reasonably satisfactory to Lessor against
any loss or injury by reason of such contest or delay and (b) prosecutes the contest with due diligence and in good faith.


 





Section 8.3.          Environmental
Covenants.




 


Lessor and Lessee (in
addition to, and not in diminution of, Lessee’s covenants and undertakings in Sections 8.1 and 8.2 hereof) covenant and agree
as follows:


 


(a)          At
all times hereafter until the later of (i) such time as all liabilities, duties or obligations of Lessee to Lessor under the Lease
have been satisfied in full and (ii) such time as Lessee completely vacates the Leased Property and surrenders possession of the
same to Lessor, Lessee shall fully comply with all Environmental Laws applicable to the Leased Property and the operations thereon,
except to the extent that such compliance would require the remediation of Environmental Liabilities for which Lessee has no indemnity
obligations under Section 8.3(c). Lessee agrees to give Lessor prompt written notice of (1) all Environmental Liabilities; (2)
all pending, threatened or anticipated Proceedings, and all notices, demands, requests or investigations, relating to any Environmental
Liability or relating to the issuance, revocation or change in any Environmental Authorization required for operation of the Leased
Property; (3) all Releases at, on, in, under or in any way affecting the Leased Property, or any Release known by Lessee at, on,
in or under any property adjacent to the Leased Property; and (4) all facts, events or conditions that could reasonably lead to
the occurrence of any of the above-referenced matters.


 






    	25



    	 



    

 


(b)          Lessor
hereby agrees to defend, indemnify and save harmless any and all Lessee Indemnified Parties from and against any and all Environmental
Liabilities other than Environmental Liabilities to the extent caused by the grossly negligent acts or failures to act of Lessee.


 


(c)          Lessee
hereby agrees to defend, indemnify and save harmless any and all Lessor Indemnified Parties from and against any and all Environmental
Liabilities to the extent caused by the grossly negligent acts or failures to act of Lessee.


 


(d)          If
any Proceeding is brought against any Indemnified Party in respect of an Environmental Liability with respect to which such Indemnified
Party may claim indemnification under either Section 8.3(b) or (c), the Indemnifying Party, upon request, shall at its sole
expense resist and defend such Proceeding, or cause the same to be resisted and defended by counsel designated by the Indemnified
Party and approved by the Indemnifying Party, which approval shall not be unreasonably withheld; provided, however, that such approval
shall not be required in the case of defense by counsel designated by any insurance company undertaking such defense pursuant to
any applicable policy of insurance. Each Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel will be at the sole expense of such Indemnified
Party unless such counsel has been approved by the Indemnifying Party, which approval shall not be unreasonably withheld. The Indemnifying
Party shall not be liable for any settlement of any such Proceeding made without its consent, which shall not be unreasonably withheld,
but if settled with the consent of the Indemnifying Party, or if settled without its consent (if its consent shall be unreasonably
withheld), or if there be a final, nonappealable judgment for an adversary party in any such Proceeding, the Indemnifying Party
shall indemnify and hold harmless the Indemnified Parties from and against any liabilities incurred by such Indemnified Parties
by reason of such settlement or judgment.


 


(e)          If
at any time any Indemnified Party has reason to believe circumstances exist which could reasonably result in an Environmental Liability,
upon reasonable prior written notice to Lessee stating such Indemnified Party’s basis for such belief, an Indemnified Party
shall be given immediate access to the Leased Property (including, but not limited to, the right to enter upon, investigate, drill
wells, take soil borings, excavate, monitor, test, cap and use available land for the testing of remedial technologies), Lessee’s
employees, and to all relevant documents and records regarding the matter as to which a responsibility, liability or obligation
is asserted or which is the subject of any Proceeding; provided that such access may be conditioned or restricted as may be reasonably
necessary to ensure compliance with law and the safety of personnel and facilities or to protect confidential or privileged information.
All Indemnified Parties requesting such immediate access and cooperation shall endeavor to coordinate such efforts to result in
as minimal interruption of the operation of the Leased Property as practicable.


 






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(f)          The
indemnification rights and obligations provided for in this Article VIII shall be in addition to any indemnification rights and
obligations provided for elsewhere in this Lease.


 


(g)          The
indemnification rights and obligations provided for in this Article VIII shall survive the termination of this Lease.


 


For purposes of this
Section 8.3, all amounts for which any Indemnified Party seeks indemnification shall be computed net of (a) any actual income
tax benefit resulting therefrom to such Indemnified Party, (b) any insurance proceeds received (net of tax effects) with respect
thereto, and (c) any amounts recovered (net of tax effects) from any third parties based on claims the Indemnified Party has against
such third parties which reduce the damages that would otherwise be sustained; provided that in all cases, the timing of the receipt
or realization of insurance proceeds or income tax benefits or recoveries from third parties shall be taken into account in determining
the amount of reduction of damages. Each Indemnified Party agrees to use its reasonable efforts to pursue, or assign to Lessee
or Lessor, as the case may be, any claims or rights it may have against any third party which would materially reduce the amount
of damages otherwise incurred by such Indemnified Party.


 


Notwithstanding anything
to the contrary contained in this Lease, if Lessor shall become entitled to the possession of the Leased Property by virtue of
the termination of the Lease or repossession of the Leased Property, then Lessor may assign its indemnification rights under Section 8.3
of this Lease (but not any other rights hereunder) to any Person to whom Lessor subsequently transfers the Leased Property, subject
to the following conditions and limitations, each of which shall be deemed to be incorporated into the terms of such assignment,
whether or not specifically referred to therein:


 


(1)         The
indemnification rights referred to in this Section may be assigned only if a known Environmental Liability then exists or
if a Proceeding is then pending or, to the knowledge of Lessee or Lessor, then threatened with respect to the Leased Property;


 


(2)         Such
indemnification rights shall be limited to Environmental Liabilities relating to or specifically affecting the Leased Property;
and


 


(3)         Any
assignment of such indemnification rights shall be limited to the immediate transferee of Lessor, and shall not extend to any such
transferee’s successors or assigns.


 






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ARTICLE
IX


 





Section 9.1.          Maintenance
and Repair.




 


(a)          Unless
caused by Lessee’s gross negligence or willful misconduct or that of its employees or agents, Lessee shall not be required
to bear the cost of any Capital Expenditures, including any expenditures for items classified as capital items under U.S. generally
accepted accounting principles. Except to the extent required by Article XXXVIII or elsewhere in this Lease, however, nothing herein
shall be construed to require Lessor to build or rebuild any improvement on the Leased Property, or to fund or make any repairs,
replacements, alterations, restorations or renewals of any nature or description to the Leased Property, whether ordinary or extraordinary,
foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto, in connection with this Lease, or to maintain
the Leased Property in any way. Except as expressly set forth elsewhere in this Lease, Lessee hereby waives, to the extent permitted
by law, the right to make repairs at the expense of Lessor pursuant to any law in effect at the time of the execution of this Lease
or hereafter enacted. Lessor shall have the right to give, record and post, as appropriate, notices of nonresponsibility under
any mechanic’s lien laws now or hereafter existing. Notwithstanding anything in the foregoing to the contrary, to the extent
any equipment used in the operation of the Hotel as of the Commencement Date is leased equipment and not owned equipment, Lessor
shall have no obligation to acquire such leased equipment or replace such leased equipment with owned equipment during the Term
and therefore, to the extent Lessee elects to acquire or replace any such leased equipment with owned equipment, the cost to acquire
such owned equipment shall not be charged to Lessor under any of the provisions of this Lease or reduce any amounts to which Lessor
is entitled under this Lease.


 


(b)          Except
for conditions caused by Lessor’s or its agents’ or employees’ breach of this Lease or their gross negligence
or willful misconduct or resulting from Force Majeure, Lessee will keep the Leased Property and all private roadways, sidewalks
and curbs appurtenant thereto that are under Lessee’s control, including windows and plate glass, parking lots, mechanical,
electrical and plumbing systems and equipment (including conduit and ductware), and non-load bearing interior walls, in good order
and repair, except for ordinary wear and tear (whether or not the need for such repairs occurred as a result of Lessee’s
use, any prior use, the elements or the age of the Leased Property, or any portion thereof), and, except as otherwise provided
in Article XIV or XV, with reasonable promptness, make all necessary and appropriate repairs thereto of every kind and nature,
whether interior or exterior, ordinary or extraordinary, foreseen or unforeseen, except repairs (i) arising by reason of a condition
existing prior to the commencement of the Term (concealed or otherwise), or (ii) capital improvements requiring Capital Expenditures
required by any governmental agency having jurisdiction over the Leased Property, or (iii) capital improvements or repairs to the
structural elements of the Leased Improvements, or (iv) other capital improvements to the Leased Improvements, the cost of which
would constitute Capital Expenditures. Lessee shall obtain and maintain in effect maintenance contracts throughout the Term with
reputable service firms on all serviceable systems and assets included with the Fixtures which constitute a portion of the Leased
Property, unless such services can be competently provided by Lessee’s employees, in which event such services may be provided
by Lessee’s employees. All repairs shall, to the extent reasonably achievable, be at least equivalent in quality to the original
work. Lessee will not take or omit to take any action, the taking or omission of which might materially impair the value or the
usefulness of the Leased Property or any part thereof for its Primary Intended Use. Notwithstanding any other provision of this
Lease, however, other than under Articles XIV and XV on the conditions set forth therein, Lessee shall not be required to bear
the costs of complying with this Section with respect to Capital Expenditures, including any items classified as capital items
under U.S. generally accepted accounting principles, but shall be required to comply with this Section as to such items if
and to the extent that amounts are available therefor from the reserve required to be established by Lessor under Article XX or
are otherwise provided by Lessor. Lessor shall be responsible for all such Capital Expenditures, including, without limitation,
Capital Expenditures required to comply with all Legal Requirements (including, without limitation, all Environmental Laws, the
Americans with Disabilities Act and any state or local handicap access laws and regulations and all zoning and land use laws and
regulations) and Capital Expenditures required to comply with any Franchise Agreement; subject to Lessor’s right to approve
the Capital Budget for such Leased Property. If Lessor fails to make any Capital Expenditure required by any Franchisor and such
refusal results in a default under or termination of the related Franchise Agreement, Lessor shall be responsible for all damages,
termination payments payable by Lessee under the terms of such Franchise Agreement, application fees for a new franchise license
reasonably approved by Lessor, increased royalty fees and other costs arising out of such refusal or out of the resulting need
to apply for and enter into a substitute franchise license agreement.


 






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(c)          Nothing
contained in this Lease and no action or inaction by Lessor shall be construed as (1) constituting the request of Lessor, expressed
or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services
or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition of or to
the Leased Property or any part thereof, or (2) giving Lessee any right, power or permission to contract for or permit the performance
of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any
claim against Lessor in respect thereof or to make any agreement that may create, or in any way be the basis for any right, title,
interest, lien, claim or other encumbrance upon the estate of Lessor in the Leased Property, or any portion thereof.


 


(d)          Lessee
will, upon the expiration or prior termination of the Term, vacate and surrender the Leased Property and Lessor’s Personal
Property to Lessor in the condition in which the Leased Property was originally received from Lessor, except as repaired, rebuilt,
restored, altered or added to as permitted or required by the provisions of this Lease and except for ordinary wear and tear (subject
to the obligation of Lessee to maintain the Leased Property in accordance with Section 9.1(b) above during the entire Term of the
Lease), or damage by casualty or Condemnation (subject to the obligations of Lessee to restore or repair as set forth in the Lease).


 


(e)          If
Lessor fails to make any emergency Capital Expenditures promptly following Notice from Lessee of an emergency situation, then Lessee
will have the right, but not the obligation, to make such Capital Expenditures on behalf of and for the account of Lessor, whereupon
Lessor shall reimburse Lessee therefor, together with interest thereon at the Overdue Rate, promptly upon receipt of all documentation
evidencing such Capital Expenditure. If Lessor fails to so reimburse Lessee within ten days after written demand therefor, then
in addition to such rights and remedies as Lessee may have with respect to such breach, Lessee may offset the amounts owed against
the next payments of Rent due to Lessor under this Lease.


 


(f)          It
is Lessor’s responsibility and obligation to fund any and all FF&E Reserves. Instead of funding the FF&E Reserve
directly, the Lessor may require the Lessee to fund the FF&E Reserve and reduce the Rent payment by the applicable amount.
The remaining balance of Rent shall be paid in accordance with the Lease.


 






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Section 9.2.          Encroachments,
Restrictions, etc.




 


If as a result of any
act or omission on the part of Lessee any of the Leased Improvements, at any time, (i) materially encroach upon any property, street
or right-of-way adjacent to the Leased Property, or (ii) violate the agreements or conditions contained in any lawful restrictive
covenant or other agreement affecting the Leased Property, or any part thereof, or (iii) impair the rights of others under any
easement or right-of-way to which the Leased Property is subject as a result of any act or omission on the part of Lessee, then
promptly upon the request of Lessor or at the behest of any person affected by any such encroachment, violation or impairment,
Lessee shall, at its expense, subject to its right to contest the existence of any encroachment, violation or impairment and in
such case, in the event of an adverse final determination, either (a) obtain valid and effective waivers or settlements of all
claims, liabilities and damages resulting from each such encroachment, violation or impairment, whether the same shall affect Lessor
or Lessee or (b) make such changes in the Leased Improvements, and take such other actions, as Lessee in the good faith exercise
of its judgment deems reasonably practicable to remove such encroachment, and to end such violation or impairment, including, if
necessary, the alteration of any of the Leased Improvements, and in any event take all such actions as may be necessary in order
to be able to continue the operation of the Leased Improvements for the Primary Intended Use substantially in the manner and to
the extent the Leased Improvements were operated prior to the assertion of such violation, impairment or encroachment. Any such
alteration shall be made in conformity with the applicable requirements of Article X. Lessee’s obligations under this Section
9.2 shall be in addition to and shall in no way discharge or diminish any obligation of any insurer under any policy of title or
other insurance held by Lessor.


 


ARTICLE
X


 





Section 10.1.          Alterations.




 


After receiving approval
of Lessor, which approval shall not be unreasonably withheld and which approval may be evidenced by Lessor’s approval of
the Capital Budget, Lessee shall have the right to make such material additions, modifications or improvements to the Leased Property
from time to time as Lessee deems desirable for its permitted uses and purposes, provided that non-material additions, modifications
and improvements will not require such consent and no such action significantly alters the character or purposes or significantly
detracts from the value or operating efficiency thereof and will not significantly impair the revenue-producing capability of the
Leased Property (other than during the period such work is being performed) or adversely affect the ability of Lessee to comply
with the provisions of this Lease. Except as approved in the Capital Budget, the cost of such additions, modifications or improvements
to the Leased Property shall be paid by Lessee, and all such additions, modifications and improvements shall, without payment by
Lessor at any time, be included under the terms of this Lease and upon expiration or earlier termination of this Lease shall pass
to and become the property of Lessor. Notwithstanding anything in this Lease to the contrary, Lessor retains the right to reconfigure
meeting/banquet rooms and guestrooms, with the result thereof being an increase in the number of guestrooms and a decrease in the
area and/or number of meeting/banquet rooms, all at the sole cost and expense of Lessor.


 






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Section 10.2.          Salvage.




 


All materials which
are scrapped or removed in connection with the making of repairs required by Articles IX or X shall be or become the property of
Lessor or Lessee depending on which party is paying for or providing the financing for such work.


 





Section 10.3.          Joint
Use Agreements.




 


If Lessee constructs
additional improvements that are connected to the Leased Property or share maintenance facilities, HVAC, electrical, plumbing or
other systems, utilities, parking or other amenities, the parties shall enter into a mutually agreeable cross-easement or joint
use agreement, the form of which has been approved in advance by Lessor, to make available necessary services and facilities in
connection with such additional improvements, to protect each of their respective interests in the properties affected, and to
provide for separate ownership, use, and/or financing of such improvements.


 


ARTICLE
XI


 





Section 11.1.          Liens.




 


Subject to the provision
of Article XII relating to permitted contests, Lessee will not directly or indirectly create or allow to remain and will promptly
discharge at its expense any lien, encumbrance, attachment, title retention agreement or claim upon the Leased Property or any
attachment, levy, claim or encumbrance in respect of the Rent, not including, however, (a) this Lease, (b) the matters, if
any, included as exceptions in the title policy insuring Lessor’s interest in the Leased Property, (c) restrictions, liens
and other encumbrances which are consented to in writing by Lessor or any easements granted pursuant to the provisions of Section
7.3 of this Lease, (d) liens for those taxes upon Lessor which Lessee is not required to pay hereunder, (e) subleases permitted
by Article XXV hereof, (f) liens for Impositions or for sums resulting from noncompliance with Legal Requirements so long as (1)
the same are not yet payable or are payable without the addition of any fine or penalty or (2) such liens are in the process of
being contested as permitted by Article XII, (g) liens of mechanics, laborers, materialmen, suppliers or vendors for sums either
disputed or not yet due provided that (1) the payment of such sums shall not be postponed under any related contract for more than
60 days after the completion of the action giving rise to such lien and such reserve or other appropriate provisions as shall be
required by law or generally accepted accounting principles shall have been made therefor or (2) any such liens are in the process
of being contested as permitted by Article XII hereof, and (h) any liens which are the responsibility of Lessor pursuant to the
provisions of this Lease.


 






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ARTICLE
XII


 





Section 12.1.          Permitted
Contests.




 


Lessee shall have the
right to contest the amount or validity of any Imposition to be paid by Lessee or any Legal Requirement or Insurance Requirement
or any lien, attachment, levy, encumbrance, charge or claim (“Claims”) not otherwise permitted by Article XI, by appropriate
legal proceedings in good faith and with due diligence (but this shall not be deemed or construed in any way to relieve, modify
or extend Lessee’s covenants to pay or its covenants to cause to be paid any such charges at the time and in the manner as
in this Article provided), on condition, however, that such legal proceedings shall not operate to relieve Lessee from its obligations
hereunder and shall not cause the sale or risk the loss of any portion of the Leased Property, or any part thereof, or cause Lessor
or Lessee to be in default under any mortgage, deed of trust, security deed or other agreement encumbering the Leased Property
or any interest therein. Upon the request of Lessor, Lessee shall either (a) provide a bond or other assurance reasonably satisfactory
to Lessor that all Claims which may be assessed against the Leased Property together with interest and penalties, if any, thereon
will be paid, or (b) deposit within the time otherwise required for payment with a bank or trust company as trustee upon terms
reasonably satisfactory to Lessor, as security for the payment of such Claims, money in an amount sufficient to pay the same, together
with interest and penalties in connection therewith, as to all Claims which may be assessed against or become a Claim on the Leased
Property, or any part thereof, in said legal proceedings. Lessee shall furnish Lessor and any lender of Lessor with reasonable
evidence of such deposit within five days of the same. Lessor agrees to join in any such proceedings if the same be required to
legally prosecute such contest of the validity of such Claims; provided, however, that Lessor shall not thereby be subjected to
any liability for the payment of any costs or expenses in connection with any proceedings brought by Lessee; and Lessee covenants
to indemnify and save harmless Lessor from any such costs or expenses. Lessee shall be entitled to any refund of any Claims and
such charges and penalties or interest thereon which have been paid by Lessee or paid by Lessor and for which Lessor has been fully
reimbursed. In the event that Lessee fails to pay any Claims when due or to provide the security therefor as provided in this paragraph
and to diligently prosecute any contest of the same, Lessor may, upon ten days advance Notice to Lessee, pay such charges together
with any interest and penalties and the same shall be repayable by Lessee to Lessor as Additional Charges at the next Payment Date
provided for in this Lease. Provided, however, that should Lessor reasonably determine that the giving of such Notice would risk
loss to the Leased Property or cause damage to Lessor, then Lessor shall give such Notice as is practical under the circumstances.
Lessor reserves the right to contest any of the Claims at its expense not pursued by Lessee. Lessor and Lessee agree to cooperate
in coordinating the contest of any claims.


 


ARTICLE
XIII


 





Section 13.1.          General
Insurance Requirements.




 


During the Term, Lessor
and Lessee agree at all times to keep the Leased Property insured with the kinds and amounts of insurance described in the Management
Agreement.


 






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Section 13.2.          Waiver
of Subrogation.




 


If available, all Property
insurance policies carried by Lessor or Lessee shall expressly waive any right of subrogation on the part of the insurer against
the other party.


 





Section 13.3.          Form
Satisfactory, etc.




 


All of the policies
of insurance referred to in this Article XIII shall be written in a form, with deductibles reasonably satisfactory to Lessor.
Lessee shall pay all of the premiums relating to insurance coverage required per Section 13.1 and deliver certificates thereof
to Lessor prior to their effective date and annually thereafter. In the event of the failure of Lessee either to effect such insurance
as herein called for or to pay the premiums therefore, or to deliver such certificates thereof to Lessor at the times required,
Lessor shall be entitled, but shall have no obligation, to effect such insurance and pay the premiums therefore, and Lessee shall
reimburse Lessor for any premium or premiums paid by Lessor for the coverage required under this Section upon written demand therefore,
and Lessee’s failure to repay the same within 30 days after Notice of such failure from Lessor shall constitute an Event
of Default within the meaning of Section 16.1(c). Each insurer mentioned in this Article XIII shall agree, by endorsement to the
policy or policies issued by it, that it will give to Lessor at least 60 days written notice before the coverage under such policy
or policies in question shall be materially reduced, allowed to expire or cancelled.


 





Section 13.4.          Increase
in Limits.




 


If either Lessor or
Lessee at any time deems the limits and/or retentions of the coverages outlined in Section 13.1 then carried to be either excessive
or insufficient, Lessor and Lessee shall endeavor in good faith to agree in writing on the proper and reasonable limits for such
insurance to be carried and such insurance shall thereafter be carried with the limits and/or retentions thus agreed on until further
change pursuant to the provision of this Section.


 





Section 13.5.          Blanket
Policy.




 


Notwithstanding anything
to the contrary contained in this Article XIII, Lessee or Lessor may bring the insurance provided for herein within the coverage
of a so-called blanket policy or policies of insurance carried and maintained by Lessee or Lessor; provided, however, that the
coverage afforded to Lessor and Lessee will not be reduced or diminished or otherwise be different from that which would exist
under a separate policy of insurance, and provided further that the requirements of this Article XIII are otherwise satisfied.


 





Section 13.6.          Separate
Insurance.




 


Lessee shall not on
Lessee’s own initiative or pursuant to the request or requirement of any third party, take out separate insurance or increase
the amount of any then existing insurance by securing an additional policy or additional policies, unless all parties having an
insurable interest in the subject matter of the insurance, including in all cases Lessor, are included therein as insureds, and
the loss is payable under separate additional insurance in the same manner as losses are payable under this Lease. Lessee shall
immediately notify Lessor in writing that Lessee has obtained any such separate insurance or of the increasing of any of the amounts
of the then existing insurance.


 






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Section 13.7.          Reports
On Insurance Claims.




 


Lessee shall promptly
investigate and make a complete and timely written report to the appropriate insurance company as to all accidents. Claims for
damage relating to the ownership, operation, and maintenance of the Hotel, any damage or destruction to the Hotel and the estimated
cost of repair thereof shall prepared by Lessee. Lessee shall prepare any and all reports required by any insurance company as
required under the terms of the insurance policy involved, and a final copy of such report shall be furnished to Lessor. Lessee
shall be authorized to execute proofs of such loss, in the aggregate amount of $5,000 or less, with respect to any single casualty
or other event.


 


ARTICLE
XIV


 





Section 14.1.          Insurance
Proceeds.




 


Subject to the provisions
of Section 14.5 and except to the extent otherwise required in the policies of insurance required hereunder, all proceeds payable
by reason of any loss or damage to the Leased Property, or any portion thereof, and insured under any policy of insurance required
by Article XIII of this Lease shall be paid to Lessor and held in trust by Lessor in an interest-bearing account, shall be made
available, if applicable, for reconstruction or repair, as the case may be, of any damage to or destruction of the Leased Property,
or any portion thereof, and, if applicable, shall be paid out by Lessor from time to time for the reasonable costs of such reconstruction
or repair upon satisfaction of reasonable terms and conditions specified by Lessor. Any excess proceeds of insurance remaining
after the completion of the restoration or reconstruction to the Leased Property shall be paid to Lessee. If neither Lessor nor
Lessee is required or elects to repair and restore, all such insurance proceeds shall be retained by Lessor. Determination of all
salvage resulting from any property covered by insurance shall be made by Lessor.


 





Section 14.2.          Reconstruction
in the Event of Damage or Destruction Covered by Insurance.




 


(a)          If
the Leased Property is totally or partially destroyed by a risk covered by the insurance described in Article XIII and in Lessor’s
reasonable judgment the Hotel thereby is rendered Unsuitable for its Primary Intended Use, Lessor may, at Lessor’s option
to be exercised within ninety (90) days after the date of such occurrence, restore the Hotel to substantially the same condition
as existed immediately before the damage or destruction and otherwise in accordance with the terms of the Lease. If Lessor fails
to timely make such election, Lessor shall be deemed to have terminated the Lease, in which case Lessor must provide Lessee with
Substitute Leases for execution by Lessee, at Lessee’s election, as described in Article XXXIX of this Lease.


 






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(b)          If
the Leased Property is partially destroyed by a risk covered by the insurance described in Article XIII, but the Hotel is not thereby
rendered Unsuitable for its Primary Intended Use, Lessor shall promptly restore the Hotel to substantially the same condition as
existed immediately before the damage or destruction and otherwise in accordance with the terms of the Lease to the extent of insurance
proceeds received by Lessor.


 





Section 14.3.          Lessor’s
Personal Property.




 


All insurance proceeds
payable by reason of any loss of or damage to any of Lessor’s Personal Property and any business interruption insurance shall
be paid to Lessor.


 





Section 14.4.          Abatement
of Rent.




 


Any damage or destruction
due to casualty notwithstanding, this Lease shall remain in full force and effect, but Lessee’s obligation to make rental
payments and to pay all other charges required by this Lease shall be equitably abated from and after the date of such damage or
destruction.


 





Section 14.5.          Damage
Near End of Term.




 


If damage to or destruction
of the Leased Property rendering the Hotel Unsuitable for its Primary Intended Use occurs during the last 24 months of the Term,
then Lessor or Lessee shall have the right to terminate this Lease by giving written notice to the other party within 30 days
after the date of damage or destruction, whereupon all accrued Rent shall be paid immediately, and this Lease shall automatically
terminate five days after the date of such notice.


 





Section 14.6.          Waiver.




 


Lessee hereby waives
any statutory rights of termination that may arise by reason of any damage or destruction of the Leased Property that Lessor is
obligated to restore or may restore under any of the provisions of this Lease.


 


ARTICLE
XV


 





Section 15.1.          Definitions.




 


(a)          “Condemnation”
means a Taking resulting from (1) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor,
and (2) a voluntary sale or transfer by Lessor to any Condemnor, either under threat of condemnation or while legal proceedings
for condemnation are pending.


 


(b)          “Date
of Taking” means the date the Condemnor has the right to possession of the property being condemned.


 


(c)          “Award”
means all compensation, sums or anything of value awarded, paid or received on a total or partial Condemnation.


 






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(d)          “Condemnor”
means any public or quasi-public authority, or private corporation or individual, having the power of Condemnation.


 





Section 15.2.          Parties’
Rights and Obligations.




 


If, during the Term,
there is any Condemnation of all or any part of the Leased Property or any interest in this Lease, the rights and obligations of
Lessor and Lessee shall be determined by this Article XV.


 





Section 15.3.          Total
Taking.




 


If title to the fee
of the whole of the Leased Property is condemned by any Condemnor, this Lease shall cease and terminate as of the Date of Taking
by the Condemnor with respect to the Leased Property. If title to the fee of less than the whole of the Leased Property is so taken
or condemned, which nevertheless renders the Leased Property Unsuitable or Uneconomic for its Primary Intended Use, Lessee and
Lessor shall each have the option, by notice to the other, at any time prior to the Date of Taking, to terminate this Lease as
of the Date of Taking. Upon such date, if such Notice has been given, this Lease shall thereupon cease and terminate with respect
to the Leased Property. All Base Rent, Percentage Rent and Additional Charges paid or payable by Lessee hereunder with respect
to the Leased Property shall be apportioned as of the Date of Taking, and Lessee shall promptly pay Lessor such amounts.


 





Section 15.4.          Allocation
of Award.




 


The total Award made
in connection with a Total Taking, or a partial Taking that results in a termination of this Lease with respect to the Leased Property,
or for loss of Rent, or for Lessor’s loss of business beyond the Term, shall be solely the property of and payable to Lessor.
Any Award made for loss of Lessee’s business during the remaining Term, if any, or for removal and relocation expenses of
Lessee in any such proceedings shall be the sole property of and payable to Lessee. Any other Award not separately allocated to
Lessor or Lessee shall be equitably apportioned between Lessor and Lessee in proportion to the then Fair Market Value of the leasehold
estate of Lessee hereunder and the then Fair Market Value of the Leased Property.


 





Section 15.5.          Partial
Taking.




 


If title to less than
the whole of the Leased Property is condemned, and the Leased Property is still suitable for its Primary Intended Use, and not
Uneconomic for its Primary Intended Use, or if Lessee or Lessor is entitled but neither elects to terminate this Lease with respect
to the Leased Property as provided in Section 15.3, Lessor at its cost shall with all reasonable dispatch restore the untaken portion
of any Leased Improvements so that the Leased Improvements constitute a complete architectural unit of the same general character
and condition (as nearly as may be possible under the circumstances) as the Leased Improvements existing immediately prior to the
Condemnation.


 






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Section 15.6.          Temporary
Taking.




 


If the whole or any
part of the Leased Property or of Lessee’s interest under this Lease is condemned by any Condemnor for its temporary use
or occupancy, which for purposes hereof shall mean two (2) weeks or less, this Lease shall not terminate by reason thereof, and
Lessee shall continue to pay, in the manner and at the terms herein specified, the full amounts of Base Rent and Additional Charges
with respect to such Leased Property. In addition, Lessee shall pay Percentage Rent at a rate equal to the average Percentage Rent
during the last three preceding Fiscal Years (or if three Fiscal Years shall not have elapsed, the average during the preceding
Fiscal Years). Except only to the extent that Lessee may be prevented from so doing pursuant to the terms of the order of the Condemnor,
Lessee shall continue to perform and observe all of the other terms, covenants, conditions and obligations hereof on the part of
Lessee to be performed and observed, as though such Condemnation had not occurred. In the event of any Condemnation as in this
Section 15.6 described, the entire amount of any Award made for such Condemnation allocable to the Term of this Lease, whether
paid by way of damages, rent or otherwise, shall be paid to Lessor. Lessor covenants that upon the termination of any such period
of temporary use or occupancy it will, at its sole cost and expense, restore the Leased Property as nearly as may be reasonably
possible to the condition in which the same was immediately prior to such Condemnation, unless such period of temporary use or
occupancy extends beyond the expiration of the Term, in which case Lessee shall not be required to make such restoration.


 


ARTICLE
XVI


 





Section 16.1.          Events
of Default.




 


If any one or more
of the following events (individually, an “Event of Default”) occurs:


 


(a)          if
Lessee fails to make payment of the Base Rent, Percentage Rent or Additional Charges within ten (10) days after the same becomes
due and payable and such failure continues for five (5) business days after notice to Lessee of such failure; provided, however,
Lessor shall not be required to give notice of such failure more than three (3) times in any Fiscal Year; or


 


(b)          if
Lessee fails to observe or perform any other term, covenant or condition of this Lease and such failure is not cured by Lessee
within a period of thirty (30) days after receipt by such party of Notice thereof from Lessor, unless such failure cannot with
due diligence be cured within a period of thirty (30) days, in which case it shall not be deemed an Event of Default if Lessee
proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof provided, however, in
no event shall such cure period extend beyond 150 days after such Notice (provided that no Event of Default shall be deemed to
have occurred pursuant to this subsection (c) to the extent that Lessee’s failure to observe or perform any term, covenant
or condition of this Lease is caused by Lessor’s failure to fulfill its obligations under this Lease or an Unavoidable Occurrence);
or


 






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(c)          if
Lessee or Lessor shall file a petition in bankruptcy or reorganization for an arrangement pursuant to any federal or state bankruptcy
law or any similar federal or state law, or shall be adjudicated a bankrupt or shall make an assignment for the benefit of creditors
or shall admit in writing its inability to pay its debts generally as they become due, or if a petition or answer proposing the
adjudication of Lessee as a bankrupt or its reorganization pursuant to any federal or state bankruptcy law or any similar federal
or state law shall be filed in any court and Lessee shall be adjudicated a bankrupt and such adjudication shall not be vacated
or set aside or stayed within sixty (60) days after the entry of an order in respect thereof, or if a receiver of Lessee of the
whole or substantially all of the assets of Lessee shall be appointed in any proceedings brought by Lessee or if any such receiver,
trustee or liquidator shall be appointed in any proceeding brought against Lessee shall not be vacated or set aside or stayed within
sixty (60) days after such appointment; or


 


(d)          if
Lessee or Lessor is liquidated or dissolved, or begins proceedings toward such liquidation or dissolution, or, if Lessee or Lessor
in any manner, permits the sale or divestiture of substantially all of its assets; or


 


(e)          if
the estate or interest of Lessee in the Leased Property or any part thereof is voluntarily or involuntarily transferred, assigned,
conveyed, levied upon or attached in any proceeding (unless Lessee is contesting such lien or attachment in good faith in accordance
with this Lease); or


 


(f)          if,
except as a result of damage, destruction, renovation or a partial or complete Condemnation or otherwise with Lessor’s prior
written approval, Lessee voluntarily ceases operations on the Leased Property for a period in excess of thirty (30) days; or


 


(g)          if
an event of default has been declared by the franchisor under the Franchise Agreement with respect to the Hotel as a result of
any action or failure to act by Lessee or any other person with whom Lessee contracts for management services at the Hotel, other
than a default caused by a breach of this Lease by Lessor or a failure to complete improvements required by the franchisor because
Lessor has not provided funds for such improvements to the extent required pursuant to this Lease or Lessor is otherwise accountable
for such default under the Franchise Agreement, and such event of default is continuing after the expiration of any applicable
grace period; or


 


(h)          if
an event of default by Lessee (or any Affiliate of Lessee) occurs under any other lease between Lessor (or any Affiliate of Lessor)
and Lessee. In the event of an event of default by Lessee under this Lease, such event of default shall also constitute an event
of default under any other lease between Lessor (or any Affiliate of Lessor) and Lessee.


 


For purposes of this
Section 16.1(h), Lessee shall mean and include any additional lessee subsequently approved by Lessor (or any Affiliate of Lessor)
for lease transactions with Lessor (or any Affiliate of Lessor) and with whom a lease or leases are actually entered into by Lessor
(or any Affiliate of Lessor).


 


 



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Then, and in any such
event and provided such Event of Default by Lessee is continuing, Lessor may exercise one or more remedies available to it herein
or at law or in equity, including but not limited to its right to terminate this Lease giving Lessee not less than ten (10) days’
written notice of such termination.


 


If litigation is commenced
with respect to any alleged default under this Lease, the prevailing party in such litigation shall receive, in addition to its
damages incurred, such sum as the court shall determine as its reasonable attorneys’ fees, and all costs and expenses incurred
in connection therewith.


 





Section 16.2.          Surrender.




 


If an Event of Default
occurs for other than by reason of Force Majeure (and the event giving rise to such Event of Default has not been cured within
the curative period relating thereto as set forth in Section 16.1) and is continuing, whether or not this Lease has been terminated
pursuant to Section 16.1, Lessee shall, if requested by Lessor so to do, immediately surrender and assign to Lessor or Lessor’s
designee the Leased Property including, without limitation, any and all books, records, files, licenses, permits and keys relating
thereto, and quit the same and Lessor may enter upon and repossess the Leased Property by reasonable force, summary proceedings,
ejectment or otherwise, and may remove Lessee and all other persons and any and all personal property from the Leased Property,
subject to rights of any hotel guests and to any requirement of law. Lessee hereby waives any and all requirements of applicable
laws for service of notice to re-enter the Leased Property. Lessor shall be under no obligation to, but may if it so chooses, relet
the Leased Property or otherwise mitigate Lessor’s damages.


 





Section 16.3.          Damages.




 


(a)          Neither
(i) the termination of this Lease, (ii) the repossession of the Leased Property, (iii) the failure of Lessor to relet the Leased
Property, nor (iv) the reletting of all or any portion thereof, shall relieve Lessee of its liability and obligations hereunder,
all of which shall survive any such termination, repossession or reletting. In the event of any such termination, Lessee shall
forthwith pay to Lessor all Rent due and payable with respect to the Leased Property to and including the date of such termination.


 


(b)          Lessee
shall forthwith pay to Lessor, at Lessor’s option, as and for liquidated and agreed current damages for Lessee’s default,
either:


 


(i)          Without
termination of Lessee’s right to possession of the Leased Property, each installment of Rent (including Percentage Rent as
determined below) and other sums payable by Lessee to Lessor under the Lease as the same becomes due and payable, which Rent and
other sums shall bear interest at the Overdue Rate, and Lessor may enforce, by action or otherwise, any other term or covenant
of this Lease; or


 


(ii)         the
sum of:


 






    	39



    	 



    

 


			(A)         the unpaid Rent which had been earned
at the time of termination, repossession or reletting;



 


			(B)         the worth at the time of termination,
repossession or reletting of the amount by which the unpaid Rent for the balance of the Term after the time of termination, repossession
or reletting, exceeds the amount of such rental loss that Lessee proves could be reasonably avoided and as reduced for rentals
received after the time of termination, repossession or reletting, if and to the extent required by applicable law; and



 


			(C)         any other amount necessary to compensate
Lessor for all the detriment proximately caused by Lessee’s failure to perform its obligations under this Lease or which
in the ordinary course of things, would be likely to result therefrom. The worth at the time of termination, repossession or reletting
of the amount referred to in subparagraph (B) is computed by discounting such amount at the discount rate of the Federal Reserve
Bank of New York at the time of award plus 1%.



 


Percentage Rent for
the purposes of this Section 16.3 shall be a sum equal to (i) the average of the annual amounts of the Percentage Rent for the
three Fiscal Years immediately preceding the Fiscal Year in which the termination, re-entry or repossession takes place, or (ii)
if three Fiscal Years shall not have elapsed, the average of the Percentage Rent during the preceding Fiscal Years during which
the Lease was in effect, or (iii) if one Fiscal Year has not elapsed, the amount derived by annualizing the Percentage Rent from
the effective date of this Lease.


 





Section 16.4.          Waiver.




 


If this Lease is terminated
pursuant to Section 16.1, Lessee waives, to the extent permitted by applicable law, (a) any right to a trial by jury in the event
of summary proceedings to enforce the remedies set forth in this Article XVI, and (b) the benefit of any laws now or hereafter
in force exempting property from liability for rent or for debt and Lessor waives any right to “pierce the corporate veil”
of Lessee other than to the extent funds shall have been inappropriately paid any Affiliate of Lessee following a default resulting
in an Event of Default.


 





Section 16.5.          Application
of Funds.




 


Any payments received
by Lessor under any of the provisions of this Lease during the existence or continuance of any Event of Default shall be applied
to Lessee’s obligations in the order that Lessor may determine or as may be prescribed by the laws of the State.


 






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ARTICLE
XVII


 





Section 17.1.          Lessor’s
Right to Cure Lessee’s Default.




 


If Lessee fails to
make any payment or to perform any act required to be made or performed under this Lease including, without limitation, Lessee’s
failure to comply with the terms of any Franchise Agreement other than a failure to complete improvements required by the franchisor
because Lessor has not provided Lessee with the funds therefor, and fails to cure the same within the relevant time periods provided
in Section 16.1, Lessor, without waiving or releasing any obligation of Lessee, and without waiving or releasing any obligation
or default, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account
and at the expense of Lessee, and may, to the extent permitted by law, enter upon the Leased Property for such purpose and, subject
to Section 16.4, take all such action thereon as, in Lessor’s opinion, may be necessary or appropriate therefor. No such
entry shall be deemed an eviction of Lessee. All sums so paid by Lessor and all costs and expenses (including, without limitation,
reasonable attorneys’ fees and expenses, in each case to the extent permitted by law) so incurred, together with a late charge
thereon (to the extent permitted by law) at the Overdue Rate from the date on which such sums or expenses are paid or incurred
by Lessors, shall be paid by Lessee to Lessor on demand. The obligations of Lessee and rights of Lessor contained in this Article
shall survive the expiration or earlier termination of this Lease.


 


ARTICLE
XVIII


 





Section 18.1.          Provisions
Relating to Purchase of the Leased Property.




 


If Lessee purchases
the Leased Property from Lessor pursuant to any of the terms of this Lease, the closing of the purchase shall occur 30 days after
Lessor accepts Lessee’s offer to purchase the Leased Property, unless the provision of the Lease under which such offer was
made specifies a different closing date, in which case the date set forth in such provision shall be the closing date. At such
closing, Lessor shall, upon receipt from Lessee of the applicable purchase price, together with full payment of any unpaid Rent
due and payable with respect to any period ending on or before the date of the purchase, deliver to Lessee an appropriate limited
or special warranty deed or other conveyance conveying the entire interest of Lessor in and to the Leased Property to Lessee free
and clear of all encumbrances other than (a) those that Lessee has agreed hereunder to pay or discharge, (b) those mortgage
liens, if any, that Lessee has agreed in writing to accept and to take title subject to, (c) those liens and encumbrances subject
to which the Leased Property was conveyed to Lessor, (d) encumbrances, easements, licenses or rights of way required to be imposed
on the Leased Property under Section 7.3, and (e) any other encumbrances permitted to be imposed on the Leased Property under the
provisions of Article XXXIV that are assumable at no cost to Lessee or to which Lessee may take subject without cost to Lessee.
The difference between the applicable purchase price and the total of the encumbrances assumed or taken subject to shall be paid
in cash to Lessor or as Lessor may direct, in federal or other immediately available funds, except as otherwise mutually agreed
by Lessor and Lessee. All expenses of such conveyance, including, without limitation, the cost of title examination or title insurance,
if desired by Lessee, Lessee’s attorneys’ fees incurred in connection with such conveyance and release, and transfer
taxes and recording fees, shall be paid by Lessee. Lessor shall pay its attorney’s fees.


 






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ARTICLE
XIX


 





Section 19.1.          REIT
Requirements.




 


(a)          Lessee
understands that, in order for American Realty Capital Hospitality Trust, Inc. to qualify as a REIT, the following requirements
(the “REIT Requirements”) must be satisfied:


 


(i)          Personal
Property Limitation. Anything contained in this Lease to the contrary notwithstanding, the average of the fair market values
of the items of personal property that are leased to Lessee under this Lease at the beginning and at the end of any Fiscal Year
shall not exceed fifteen percent (15%) of the average of the aggregate fair market values of the Leased Property at the beginning
and at the end of such Fiscal Year. This Section 19.1 is intended to ensure that the Rent qualifies as “rents from real property,”
within the meaning of Section 856(d) of the Code, or any similar or successor provisions thereto, and shall be interpreted in a
manner consistent with such intent. If the fair market value of personal property is going to exceed the 15% limit, Lessor has
the absolute right to contribute any and all personal property to Lessee in order to ensure the Rent qualifies as “rents
from real property”.


 


(ii)         Sublease
Rent Limitation. Anything contained in this Lease to the contrary notwithstanding, Lessee shall not sublet the Leased Property
on any basis such that the rental or other amounts to be paid by the sublessee thereunder would be based, in whole or in part,
on either (a) the net income or profits derived by the business activities of the sublessee, or (b) any other formula such that
any portion of the Rent would fail to qualify as “rents from real property” within the meaning of Section 856(d) of
the Code, or any similar or successor provision thereto.


 


(iii)        Sublease
Tenant Limitation. Anything contained in this Lease to the contrary notwithstanding, Lessee shall not, without the prior written
approval of the Lessor, sublease the Leased Property to any Person in which American Realty Capital Hospitality Trust, Inc. owns,
directly or indirectly, a ten percent (10%) or greater interest, within the meaning of Section 856(d)(2)(B) of the Code, or any
similar or successor provisions thereto.


 


(iv)        TRS
Election. Lessee either has made an election to be and operates as a “taxable REIT subsidiary” of American Realty
Capital Hospitality Trust, Inc. within the meaning of Section 856(1) of the Code, or is a subsidiary of an entity that has made
an election to be and operates as a “taxable REIT subsidiary” of American Realty Capital Hospitality Trust, Inc. within
the meaning of Section 856(1) of the Code.


 






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(v)         Lessee
shall not (A) directly or indirectly operate or manage a “lodging facility” within the meaning of Section 856(d)(9)(D)(ii)
of the Code or a “health care facility” within the meaning of Section 856(e)(6)(D)(ii) of the Code or (B) directly
or indirectly provide to any other person (under a franchise, license, or otherwise) rights to any brand name under which any lodging
facility or health care facility is operated; provided, however, that Lessee may provide such rights to a Manager (as defined in
Section 19.3 hereof) to operate or manage a lodging facility as long as such rights are held by Lessee as a franchisee, licensee,
or in a similar capacity and such lodging facility is either owned by Lessee or is leased to Lessee by Lessor or one of its Affiliates.


 


(b)          Lessee
agrees, and agrees to use its best efforts to cause its Affiliates, to use its best efforts to permit the REIT Requirements to
be satisfied and to cooperate in good faith with American Realty Capital Hospitality Trust, Inc. and Lessor to ensure that the
REIT Requirements are satisfied. Lessee agrees, and agrees to use reasonable efforts to cause its Affiliates, upon request by American
Realty Capital Hospitality Trust, Inc., and, where appropriate, at American Realty Capital Hospitality Trust, Inc.’s expense,
to take reasonable action necessary to ensure compliance with the REIT Requirements. Immediately after becoming aware that the
REIT Requirements are not, or will not be, satisfied, Lessee shall notify, or use reasonable efforts to cause its Affiliates to
notify, American Realty Capital Hospitality Trust, Inc. of such noncompliance.


 





Section 19.2.          Lessee
Officer and Employee Limitation.




 


Anything contained
in this Lease to the contrary notwithstanding, none of the officers or employees of Lessee or any entity in which Lessee has a
direct or indirect ownership interest (a “Lessee-Owned Entity”) shall be officers or employees of a Manager (or any
Person who operates or manages the Leased Property) or any entity in which the Manager (or such Person) has a direct or indirect
ownership interest (a “Manager-Owned Entity”). In addition, if a Person serves as both (a) a director of Lessee or
any Lessee-Owned Entity and (b) a director and officer (or employee) of Manager (or any Person who operates or manages the Leased
Property) or any Manager-Owned Entity, that Person shall not receive any compensation for servicing as a director of Lessee or
any Lessee-Owned Entity. If a person serves as both (a) a director of Manager (or any Person who operates or manages the Leased
Property) or any Manager-Owned Entity and (b) a director and officer (or employee ) of Lessee or any Lessee-Owned Entity, that
Person shall not receive any compensation for serving as a director of Manager or any Manager-Owned Entity.


 





Section 19.3.          Management
Agreement.




 


Lessee agrees that,
in order to comply with certain of the REIT Requirements, it will, at all times during the Term, cause the Leased Property to be
operated and managed by a Manager that is an Eligible Independent Contractor. Effective as of the Commencement Date, Lessee shall
enter into a Management Agreement and Lessee shall provide Lessor with an executed copy thereof. Lessee may not amend, modify,
or terminate the Management Agreement in any respect or change the Manager without the prior written consent of Lessor. Lessee
also shall provide Lessor with copies of any amendments or modifications to the Management Agreement which are entered into from
time to time or any other management agreement. Lessor shall have the right to approve in advance any Manager.


 






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ARTICLE
XX


 





Section 20.1.          Holding
Over.




 


If Lessee for any reason
remains in possession of the Leased Property after the expiration or earlier termination of the Term, such possession shall be
as a tenant at sufferance during which time Lessee shall pay as rental each month 150% the aggregate of (a) one-twelfth of the
aggregate Base Rent and Percentage Rent payable with respect to the last Fiscal Year of the Term with respect to such Leased Property,
(b) all Additional Charges accruing during the applicable month and (c) all other sums, if any, payable by Lessee under this
Lease with respect to the Leased Property. During such period, Lessee shall be obligated to perform and observe all of the terms,
covenants and conditions of this Lease, but shall have no rights hereunder other than the right, to the extent given by law to
tenancies at sufferance, to continue its occupancy and use of the Leased Property. Nothing contained herein shall constitute the
consent, express or implied, of Lessor to the holding over of Lessee after the expiration or earlier termination of this Lease.


 


ARTICLE
XXI


 





Section 21.1.          Abatement
of Rent.




 


Except in the event
of a constructive eviction of Lessee from the Leased Property for any reason other than an Event of Default or as expressly provided
in this Lease, Lessee shall not be entitled to any abatement of Rent.


 


ARTICLE
XXII


 





Section 22.1.          Indemnification.




 


Notwithstanding the
existence of any insurance, and without regard to the policy limits of any such insurance or self-insurance, but subject to Section
16.4 and Article VIII, Lessee will protect, indemnify, hold harmless and defend Lessor from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees
and expenses), to the extent permitted by law, imposed upon or incurred by or asserted against Lessor Indemnified Parties by reason
of: (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the Leased Property
or adjoining sidewalks, including without limitation any claims under liquor liability, “dram shop” or similar laws,
(b) any present or future use, misuse, non-use, management, maintenance or repair by Lessee or any of its agents, employees or
invitees of the Leased Property or Lessor’s Personal Property or any litigation, proceeding or claim by governmental entities
or other third parties to which a Lessor Indemnified Party is made a party or participant related to such use, misuse, non-use,
management, maintenance, or repair thereof by Lessee or any of its agents, employees or invitees, including any failure of Lessee
or any of its agents, employees or invitees to perform any obligations under this Lease or imposed by applicable law (other than
arising out of Condemnation proceedings), (c) any Impositions that are the obligations of Lessee pursuant to the applicable provisions
of this Lease, (d) any failure on the part of Lessee to perform or comply with any of the terms of this Lease, and (e) the non-performance
of any of the terms and provisions of any and all existing and future subleases of the Leased Property to be performed by the landlord
thereunder.


 






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Without limiting the
generality of the foregoing paragraph, Lessee shall indemnify, save harmless and defend Lessor Indemnified Parties (including,
but not limited to, any Lessor Indemnified Party that is a guarantor of the Franchise Agreement) from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses (including, but not limited to, transfer fees and
termination fees) imposed upon or incurred by or asserted against Lessor Indemnified Parties under or with respect to the Franchise
Agreement which arises as a result of (a) any default by Lessee under the terms of this Lease; or (b) any default by Lessee under
the Franchise Agreement unless such default is a result of Lessor’s default under this Lease.


 


Lessor shall indemnify,
save harmless and defend Lessee Indemnified Parties from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses imposed upon or incurred by or asserted against Lessee Indemnified Parties as a result of
(a) the gross negligence or willful misconduct of Lessor arising in connection with this Lease; (b) any failure on the part of
Lessor to perform or comply with any of the terms of this Lease; (c) the failure by Lessor to make capital improvements required
in this Lease or to comply with applicable Legal Requirements or any requirements imposed by the franchisor in accordance with
the Franchise Agreement or necessary to maintain the safety or structural soundness of the Leased Property; (d) any condition existing
on the Leased Property at the Commencement Date; and (e) all events occurring prior to the Commencement Date and subsequent to
the expiration or termination of this Lease.


 


Without limiting the
generality of the foregoing paragraph, Lessor shall indemnify, save harmless and defend Lessee Indemnified Parties (including,
but not limited to, any Lessee Indemnified Party that is a guarantor of the Franchise Agreement) from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses (including, but not limited to, transfer fees and
termination fees) imposed upon or incurred by or asserted against Lessee Indemnified Parties under or with respect to the Franchise
Agreement which arises as a result of (a) any default by Lessor under the terms of this Lease; (b) the sale by Lessor of the
Leased Property or any interest of Lessor in the Leased Property; (c) the failure by Lessor to make capital improvements required
to comply with applicable Legal Requirements or any requirements imposed by the franchisor in accordance with the Franchise Agreement
or necessary to maintain the safety or structural soundness of the Leased Property; or (d) any act or omission of any person that
acquires the Leased Property or any interest of Lesser in the Leased Property.


 


Any amounts that become
payable by an Indemnifying Party under this Section shall be paid within ten (10) days after liability therefor on the part
of the Indemnifying Party is determined by litigation or otherwise, and if not timely paid, shall bear a late charge (to the extent
permitted by law) at the Overdue Rate from the date of such determination to the date of payment. An Indemnifying Party, at its
expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against the Indemnified Party.
The Indemnified Party, at its expense, shall be entitled to participate in any such claim, action, or proceeding, and the Indemnifying
Party may not compromise or otherwise dispose of the same without the consent of the Indemnified Party, which may not be unreasonably
withheld. Nothing herein shall be construed as indemnifying a Lessor Indemnified Party against its own grossly negligent acts or
omissions or willful misconduct.


 






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Lessee’s or Lessor’s
liability for a breach of the provisions of this Article shall survive any termination of this Lease.


 


ARTICLE
XXIII


 





Section 23.1.          Subletting
and Assignment.




 


Subject to the provisions
of Article XIX and Section 23.2 and any other express conditions or limitations set forth herein, Lessee may, but only with the
consent of Lessor, which consent may be withheld in Lessor’s sole discretion, (a) assign this Lease with respect to
the Leased Property or sublet all or any part of the Leased Property or (b) sublet any retail or restaurant portion of the Leased
Improvements with respect to the Leased Property in the normal course of the Primary Intended Use; provided that any subletting
to any party other than an Affiliate of Lessee shall not individually as to any one such subletting, or in the aggregate, materially
diminish the actual or potential Percentage Rent payable with respect to the Leased Property under this Lease. In the case of a
subletting, the sublessee shall comply with the provisions of Section 23.2, and in the case of an assignment, the assignee shall
assume in writing and agree to keep and perform all of the terms of this Lease on the part of Lessee to be kept and performed and
shall be, and become, jointly and severally liable with Lessee for the performance thereof. Notwithstanding the above, Lessee may
assign the Lease to an Affiliate with respect to the Leased Property without the consent of Lessor; provided that any such assignee
assumes in writing and agrees to keep and perform all of the terms of the Lease on the part of Lessee to be kept and performed
and shall be and become jointly and severally liable with Lessee for the performance thereof. In case of either an assignment or
subletting made during the Term, Lessee shall remain primarily liable, as principal rather than as surety, for the prompt payment
of the Rent and for the performance and observance of all of the covenants and conditions to be performed by Lessee hereunder.
An original counterpart of each such sublease and assignment and assumption, duly executed by Lessee and such sublessee or assignee,
as the case may be, in form and substance satisfactory to Lessor, shall be delivered promptly to Lessor.


 





Section 23.2.          Subordination
and Attornment.




 


Lessee shall insert
in each sublease permitted under Section 23.1 provisions to the effect that (a) such sublease is subject and subordinate to all
of the terms and provisions of this Lease and to the rights of Lessor hereunder (if Lessor executes a non-disturbance agreement
with respect thereto), (b) if this Lease terminates before the expiration of such sublease, the sublessee thereunder will, at Lessor’s
option, attorn to Lessor and waive any right the sublessee may have to terminate the sublease or to surrender possession thereunder
as a result of the termination of this Lease, and (c) if the sublessee receives a written Notice from Lessor or Lessor’s
assignees, if any, stating that an uncured Event of Default exists under this Lease, the sublessee shall thereafter be obligated
to pay all rentals accruing under said sublease directly to the party giving such Notice, or as such party may direct. All rentals
received from the sublessee by Lessor or Lessor’s assignees, if any, as the case may be, shall be credited against the amounts
owing by Lessee under this Lease.


 






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ARTICLE
XXIV


 





Section 24.1.          Officer’s
Certificates; Financing Statements; Lessor’s Estoppel Certificates and Covenants.




 


(a)       At
any time and from time to time upon not less than 10 days’ Notice by Lessor, Lessee will furnish to Lessor an Officer’s
Certificate certifying that this Lease is unmodified and in full force and effect (or that this Lease is in full force and effect
as modified and setting forth the modifications), the date to which the Rent has been paid, whether to the knowledge of Lessee
there is any existing default or Event of Default hereunder by Lessor or Lessee, and such other information as may be reasonably
requested by Lessor. Any such certificate furnished pursuant to this Section may be relied upon by Lessor, any lender and
any prospective purchaser of the Leased Property.


 


(b)       Upon
the request of Lessor, Lessee will furnish the following statements to Lessor:


 


(i)          with
reasonable promptness, such information respecting the financial condition and affairs of Lessee including financial statements,
as Lessor may reasonably request from time to time; and


 


(ii)         the
most recent Consolidated Financials of Lessee within 45 days after each quarter of any Fiscal Year (or, in the case of the final
quarter in any Fiscal Year, the most recent Consolidated Financials of Lessee within 90 days).


 


(c)       At
any time and from time to time upon not less than 10 days’ Notice by Lessee, Lessor will furnish to Lessee or to any person
designated by Lessee an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or that this
Lease is in full force and effect as modified and setting forth the modifications), the date to which Rent has been paid, whether
to the knowledge of Lessor there is any existing default or Event of Default on Lessee’s part hereunder, and such other information
as may be reasonably requested by Lessee.


 


ARTICLE
XXV


 





Section 25.1.          Lessor’s
Right to Inspect.




 


Lessee shall permit
Lessor and its authorized representatives as frequently as reasonably requested by Lessor to inspect the Leased Property and Lessee’s
accounts and records pertaining thereto and make copies thereof, during usual business hours upon reasonable advance Notice, subject
only to any business confidentiality requirements reasonably requested by Lessee.


 






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ARTICLE
XXVI


 





Section 26.1.          No
Waiver.




 


No failure by Lessor
or Lessee to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a
breach thereof, and no acceptance of full or partial payment of Rent during the continuance of any such breach, shall constitute
a waiver of any such breach or of any such term. To the extent permitted by law, no waiver of any breach shall affect or alter
this Lease, which shall continue in full force and effect with respect to any other then existing or subsequent breach.


 


ARTICLE
XXVII


 





Section 27.1.          Remedies
Cumulative.




 


To the extent permitted
by law, each legal, equitable or contractual right, power and remedy of Lessor or Lessee now or hereafter provided either in this
Lease or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power and remedy
and the exercise or beginning of the exercise by Lessor or Lessee of any one or more of such rights, powers and remedies shall
not preclude the simultaneous or subsequent exercise by Lessor or Lessee of any or all of such other rights, powers and remedies.


 


ARTICLE
XXVIII


 





Section 28.1.          Acceptance
of Surrender.




 


No surrender to Lessor
of this Lease or of the Leased Property or any part thereof, or of any interest therein, shall be valid or effective unless agreed
to and accepted in writing by Lessor and no act by Lessor or any representative or agent of Lessor, other than such a written acceptance
by Lessor, shall constitute an acceptance of any such surrender.


 


ARTICLE
XXIX


 





Section 29.1.          No
Merger of Title.




 


There shall be no merger
of this Lease or of the leasehold estate created hereby by reason of the fact that the same person or entity may acquire, own or
hold, directly or indirectly: (a) this Lease or the leasehold estate created hereby or any interest in this Lease or such leasehold
estate and (b) the fee estate in the Leased Property.


 






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ARTICLE
XXX


 





Section 30.1.          Conveyance
by Lessor.




 


If Lessor or any successor
owner of the Leased Property conveys the Leased Property in accordance with the terms hereof other than as security for a debt,
and the grantee or transferee of the Leased Property expressly assumes all obligations of Lessor hereunder arising or accruing
from and after the date of such conveyance or transfer, Lessor or such successor owner, as the case may be, shall thereupon be
released from all future liabilities and obligations of Lessor under this Lease arising or accruing from and after the date of
such conveyance or other transfer as to the Leased Property and all such future liabilities and obligations shall thereupon be
binding upon the new owner.


 





Section 30.2.          Other
Interests.




 


This Lease and Lessee’s
interest hereunder shall at all times be subject and subordinate to the lien and security title of any deeds to secure debt, deeds
of trust, mortgages, or other interests heretofore or hereafter granted by Lessor or which otherwise encumber or affect the Leased
Property and to any and all advances to be made thereunder and to all renewals, modifications, consolidations, replacements, substitutions,
and extensions thereof (all of which are herein called the “Mortgage”); provided, however, that with respect to any
Mortgage hereinafter granted, such subordination is conditioned upon delivery to Lessee of a non-disturbance agreement which provides
that Lessee shall not be disturbed in its possession of the Leased Property hereunder following a foreclosure of such Mortgage
and that the holder of such Mortgage or the purchaser at a foreclosure sale shall perform all obligations of Lessor under this
Lease. In confirmation of such subordination, however, Lessee shall, at Lessor’s request, promptly execute, acknowledge and
deliver any instrument which may be required to evidence subordination to any Mortgage and to the holder thereof. In the event
of Lessee’s failure to deliver such subordination and if the Mortgage does not change any term of the Lease, Lessor may,
in addition to any other remedies for breach of covenant hereunder, execute, acknowledge, and deliver the instrument as the agent
or attorney-in-fact of Lessee, and Lessee hereby irrevocably constitutes Lessor its attorney-in-fact for such purpose, Lessee acknowledging
that the appointment is coupled with an interest and is irrevocable. Lessee hereby waives and releases any claim it might have
against Lessor or any other party for any actions lawfully taken by the holder of any Mortgage.


 


ARTICLE
XXXI


 





Section 31.1.          Quiet
Enjoyment.




 


So long as Lessee
pays all Rent as the same becomes due and complies with all of the terms of this Lease and performs its obligations hereunder,
in each case within the applicable grace periods, if any, Lessee shall peaceably and quietly have, hold and enjoy the Leased Property
for the Term hereof, free of any claim or other action by Lessor or anyone claiming by, through or under Lessor, but subject to
all liens and encumbrances subject to which the Leased Property was conveyed to Lessor or hereafter consented to by Lessee or
provided for herein. Notwithstanding the foregoing, Lessee shall have the right by separate and independent action to pursue any
claim it may have against Lessor as a result of a breach by Lessor of the covenant of quiet enjoyment contained in this Section.


 






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ARTICLE
XXXII


 





Section 32.1.          Notices.




 


All notices, demands,
requests, consents approvals and other communications (“Notice” or “Notices”) hereunder shall be in writing
and (i) personally served or, (ii) mailed by registered or certified mail, return receipt requested and postage prepaid or, (iii)
sent by trackable overnight nationally recognized courier service, next business day delivery or, (iv) via facsimile, provided
(i), (ii) or (iii) are also utilized), if to Lessee or Lessor c/o American Realty Capital Hospitality Trust, Inc., 405 Park Avenue,
15th Floor, New York, New York 1002, Attention: Jonathan Mehlman, with a copy to Jesse Charles Galloway, Esq., 405 Park
Avenue, 15th Floor, New York, New York 1002. Personally delivered Notice shall be effective upon receipt, Notice given
by mail shall be complete at the time of deposit in the U.S. Mail system, Notice given by trackable overnight nationally recognized
courier service, next business day delivery shall be complete at the time of deposit with such courier service, and Notice given
by facsimile shall be complete at the time evidenced by the printed verification thereof, provided one of the other methods is
also utilized, but any prescribed period of Notice and any right or duty to do any act or make any response within any prescribed
period or on a date certain after the service of such Notice given by mail shall be extended five days.


 


ARTICLE
XXXIII


 





Section 33.1.          Appraisers.




 


If it becomes necessary
to determine the Fair Market Value of Lessee’s leasehold interest in the Leased Property or of any other real property or
the Fair Market Rental of the Leased Property for any purpose of this Lease, the party required or permitted to give Notice of
such required determination shall include in the Notice the name of a person selected to act as appraiser on its behalf. Within
10 days after Notice, Lessor (or Lessee, as the case may be) shall by Notice to Lessee (or Lessor, as the case may be) appoint
a second person as appraiser on its behalf. The appraisers thus appointed, each of whom must be a member of the American Institute
of Real Estate Appraisers (or any successor organization thereto) with at least five years experience in the State appraising property
similar to the subject property, shall, within 45 days after the date of the Notice appointing the first appraiser, proceed to
determine, as applicable, the Fair Market Value of the subject property or the Fair Market Rental of the Leased Property as of
the relevant date (giving effect to the impact, if any, of inflation from the date of their decision to the relevant date); provided,
however, that if only one appraiser shall have been so appointed, then the determination of such appraiser shall be final and binding
upon the parties. If Lessee’s leasehold interest in the Leased Property is the subject property, to the extent consistent
with sound appraisal practice as then existing at the time of any such appraisal, such appraisal shall be made on a basis consistent
with the basis on which the Leased Property was appraised for purposes of determining its Fair Market Value at the time the Leased
Property was acquired by Lessor. If two appraisers are appointed and if the difference between the amounts so determined does not
exceed 5% of the lesser of such amounts, then the Fair Market Value or Fair Market Rental shall be an amount equal to 50% of the
sum of the amounts so determined. If the difference between the amounts so determined exceeds 5% of the lesser of such amounts,
then such two appraisers shall have 20 days to appoint a third appraiser. If no such appraiser shall have been appointed within
such 20 days or within 90 days of the original request for a determination of Fair Market Value or Fair Market Rental, whichever
is earlier, either Lessor or Lessee may apply to any court having jurisdiction to have such appointment made by such court. Any
appraiser appointed by the original appraisers or by such court shall be instructed to determine the Fair Market Value or Fair
Market Rental within 45 days after appointment of such appraiser. The determination of the appraiser which differs most in the
terms of dollar amount from the determinations of the other two appraisers shall be excluded, and 50% of the sum of the remaining
two determinations shall be final and binding upon Lessor and Lessee as the Fair Market Value of the subject property or the Fair
Market Rental of the Leased Property, as the case may be. This provision for determining by appraisal shall be specifically enforceable
to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the
parties except as otherwise provided by applicable law. Lessor and Lessee shall each pay the fees and expenses of the appraiser
appointed by it and each shall pay one-half of the fees and expenses of the third appraiser and one-half of all other costs and
expenses incurred in connection with each appraisal.


 






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ARTICLE
XXXIV


 





Section 34.1.          Lessor
May Grant Liens.




 


Without the consent
of Lessee, Lessor may, subject to the terms and conditions set forth below in this Article XXXIV, from time to time, directly
or indirectly, create or otherwise cause to exist any lien, encumbrance or title retention agreement (“Encumbrance”)
upon the Leased Property, or any portion thereof or interest therein, whether to secure any borrowing or other means of financing
or refinancing. Any such Encumbrance may (a) contain the right to prepay (whether or not subject to a prepayment penalty); (b)
provide that it is subject to the rights of Lessee under this Lease and (c) contain the Agreement by the holder of the Encumbrance
that it will (1) give Lessee the same notice, if any, given to Lessor of any default or acceleration of any obligation underlying
any such Encumbrance or any sale in foreclosure under such Encumbrance, (2) permit Lessee to cure any such default on Lessor’s
behalf within any applicable cure period, and Lessee shall be reimbursed by Lessor for any and all costs incurred in effecting
such cure, including without limitation out-of-pocket costs incurred to effect any such cure (including reasonable attorneys’
fees) and (3) permit Lessee to appear by its representative and to bid at any sale in foreclosure made with respect to any such
Encumbrance. Upon the request of Lessor, Lessee shall subordinate this Lease to the lien of a new mortgage on the Leased Property,
on the condition that the proposed mortgagee executes a non-disturbance agreement recognizing this Lease, and agreeing, for itself
and its successors and assigns, to comply with the provisions of this Article XXXIV.


 






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Section 34.2.          Lessee’s
Right to Cure.




 


Subject to the provisions
of Section 34.3, if Lessor breaches any covenant to be performed by it under this Lease, Lessee, after Notice to and demand upon
Lessor, without waiving or releasing any obligation hereunder, and in addition to all other remedies available to Lessee, may (but
shall be under no obligation at any time thereafter to) make such payment or perform such act for the account and at the expense
of Lessor. All sums so paid by Lessee and all costs and expenses (including, without limitation, reasonable attorneys’ fees)
so incurred, together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid or incurred
by Lessee, shall be paid by Lessor to Lessee on demand or, following entry of a final, nonappealable judgment against Lessor for
such sums, may be offset by Lessee against the Base Rent payments next accruing or coming due. The rights of Lessee hereunder to
cure and to secure payment from Lessor in accordance with this Section 34.2 shall survive the termination of this Lease with respect
to the related Leased Property.


 





Section 34.3.          Breach
by Lessor.




 


It shall be a breach
of this Lease if Lessor fails to observe or perform any term, covenant or condition of this Lease on its part to be performed and
such failure continues for a period of 30 days after Notice thereof from Lessee, unless such failure cannot with due diligence
be cured within a period of 30 days, in which case such failure shall not be deemed to continue if Lessor, within such 30-day period,
proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof. The time within which
Lessor shall be obligated to cure any such failure also shall be subject to extension of time due to the occurrence of Force Majeure.
If Lessor fails to cure any such breach within the grace period described above, Lessee, without waiving or releasing any obligations
hereunder, and in addition to all other remedies available to Lessee at law or in equity, may purchase the Leased Property (or
such portion thereof as the breach relates to) from Lessor for a purchase price equal to the then Fair Market Value. If Lessee
elects to purchase the Leased Property (or portion thereof), it shall deliver a Notice thereof to Lessor specifying a settlement
date to occur not less than 90 days subsequent to the date of such Notice on which it shall purchase the Leased Property (or portion
thereof), and the same shall be thereupon conveyed in accordance with the provisions of Article XVIII.


 


ARTICLE
XXXV


 





Section 35.1.          Miscellaneous.




 


Anything contained
in this Lease to the contrary notwithstanding, all claims against, and liabilities of, Lessee or Lessor arising prior to any date
of termination of this Lease shall survive such termination. If any term or provision of this Lease or any application thereof
is invalid or unenforceable, the remainder of this Lease and any other application of such term or provisions shall not be affected
thereby. If any late charges or any interest rate provided for in any provision of this Lease are based upon a rate in excess of
the maximum rate permitted by applicable law, the parties agree that such charges shall be fixed at the maximum permissible rate.
Neither this Lease nor any provision hereof may be changed, waived, discharged or terminated except by a written instrument in
recordable form signed by Lessor and Lessee. All the terms and provisions of this Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. The headings in this Lease are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof. This Lease shall be governed by and construed in accordance with
the laws of the State, but not including its conflicts of laws or rules.


 






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Section 35.2.          Transition
Procedures.




 


Upon the expiration
or termination of the Term, for whatever reason, Lessor and Lessee shall do the following (and the provisions of this Section 35.2
shall survive the expiration or termination of this Lease until they have been fully performed) and, in general, shall cooperate
in good faith to effect an orderly transition of the management and/or lease of the Hotel.


 


(a)          Transfer
of Licenses. Upon the expiration or earlier termination of the Term, Lessee shall use commercially reasonable efforts (i) to
transfer to Lessor or Lessor’s nominee all licenses, operating permits and other governmental authorizations and all contracts,
including contracts with governmental or quasi-governmental entities, that may be necessary for the operation of the Hotel (collectively,
“Licenses”), or (ii) if such transfer is prohibited by law or Lessor otherwise elects, to cooperate with Lessor or
Lessor’s nominee in connection with the processing by Lessor or Lessor’s nominee of any applications for, all Licenses;
provided, in either case, that the costs and expenses of any such transfer or the processing of any such application shall be paid
by Lessor or Lessor’s nominee.


 


(b)          Leases
and Concessions. Lessee shall assign to Lessor or Lessor’s nominee simultaneously with the termination of this Lease,
and the assignee shall assume all leases and concession agreements in effect with respect to the Hotel then in Lessee’s name.


 


(c)          Books
and Records. All books and records for the Hotel kept by Lessee pursuant to Section 3.7 shall be delivered promptly to Lessor
or Lessor’s nominee, simultaneously with the termination of this Lease, but such books and records shall thereafter be available
to Lessee at all reasonable times for inspection, audit, examination, and transcription for a period of one (1) year and Lessee
may retain (on a confidential basis) copies or computer records thereof.


 





Section 35.3.          Waiver
of Presentment, etc.




 


Lessee waives all presentments,
demands for payment and for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance and waives all notices of the existence, creation, or incurring of new or additional obligations, except as expressly
granted herein.


 






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ARTICLE
XXXVI


 





Section 36.1.          Memorandum
of Lease.




 


Lessor and Lessee shall
promptly upon the request of either enter into a short form memorandum of this Lease, in form suitable for recording under the
laws of the State in which reference to this Lease, and all options contained herein, shall be made. The party requesting such
memorandum of this Lease shall pay all costs and expenses of recording such memorandum, including any real estate excise transfer
or sales tax that may be due and payable in conjunction with recording such memorandum.


 


ARTICLE
XXXVII


 





Section 37.1.          Compliance
with Franchise Agreement.




 


(a)          General
Requirements. Lessor will pay any costs and expenses in connection with the assignment of any existing Franchise Agreement
to Lessee or to obtain a new Franchise Agreement. Lessee shall comply in every respect with the provisions of the Franchise Agreement
so as to avoid any default thereunder during the term of this Lease, except to the extent such compliance is an obligation of Lessor
pursuant to the terms of this Lease. Lessee shall not terminate, extend, modify or enter into any Franchise Agreement without in
each instance first obtaining Lessor’s prior written consent, not to be unreasonably withheld. Lessor and Lessee agree to
cooperate fully with each other in the event it becomes necessary to obtain a Franchise Agreement extension or modification or
a new franchise for the Leased Property. If a Franchise Agreement expires prior to the expiration of the Term for the related Leased
Property, Lessee, with the prior approval of Lessor, shall use its good faith efforts to obtain a new franchise license for the
Leased Property, together with a comfort letter in favor of Lessor in form reasonably acceptable to Lessor. Leases and Concessions.
Lessee shall assign to Lessor or Lessor’s nominee simultaneously with the termination of this Lease, and the assignee shall
assume all leases and concession agreements in effect with respect to the Hotel then in Lessee’s name.


 


(b)          Compliance
and Default. The Hotel will be operated in full compliance with the provisions of the Franchise Agreement. In case of a conflict
between the provisions of the Lease and the provisions of the Franchise Agreement, the provisions of the Franchise Agreement shall
control. If Lessee shall default under the terms of the Franchise Agreement, such a Default shall constitute a default under the
terms of this Lease. In the event of an uncured Default caused by Lessee that leads to termination of the Franchise Agreement,
the Lease will be terminated.


 


(c)          Amendment
and Modification. The provisions of this Article XXXVII and any other provisions in the Lease affecting, or for the benefit of,
the Franchisor will not be amended or modified without Franchisor’s prior written consent.


 






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ARTICLE
XXXVIII


 


Intentionally Left
Blank


 





Section 38.1.          Arbitration.




 


Except as otherwise
expressly provided, in the event a dispute should arise concerning the interpretation or application of any of the provisions of
this Lease, the parties agree that the dispute shall be submitted to arbitration of the American Arbitration Association under
its then prevailing rules, except as modified by this Article Error! Reference source not found.. The Arbitration Tribunal
shall be formed of three (3) Arbitrators each of which shall have at least five (5) years’ experience in hotel operation,
management or ownership, one (1) to be appointed by each of Lessor and Lessee and the third (3rd) to be appointed by the American
Arbitration Association. The arbitration shall take place in the county in which the Leased Property is located and shall be conducted
in the English language. The arbitration award shall be final and binding upon the parties hereto and subject to no appeal, and
shall deal with the question of costs of arbitration and all matters related thereto. Judgment upon the award rendered may be entered
into any court having jurisdiction, or applications may be made to such court for an order of enforcement. Any arbitration under
this Article Error! Reference source not found. shall be submitted within three (3) months following the notice which triggers
the arbitration, and shall be concluded within one (1) year thereafter. In the event either of the foregoing deadlines are missed,
either party may proceed to commence a court proceeding to resolve the dispute.


 


ARTICLE
XXXIX


 





Section 39.1.          Sale
and Termination of Lease.




 


In the event Lessor
enters into a contract to sell its interest in the Leased Property, Lessor may terminate this Lease by giving thirty (30) days
prior Notice to Lessee, and then, as of the closing of such sale, this Lease shall terminate and be of no further force and effect
except as to any obligations existing as of such date that survive termination of this Lease, and all Rent shall be adjusted as
of such date. As compensation for the early termination of Lessee’s leasehold estate hereunder, Lessor shall, at Lessor’s
election:


 


(a) pay to Lessee
a termination payment equal to the Fair Market Value of Lessee’s leasehold estate in the Hotel (a “Termination Payment”),
which Termination Payment shall be paid by Lessor to Lessee within eighteen (18) months after the termination of this Lease; or


 


(b) within eighteen
(18) months after termination of this Lease, offer to lease to Lessee, or cause Lessee to be offered the opportunity to lease,
one or more substitute hotel facilities comparable to the Hotel (i.e., comparable market and substantially similar class, quality
and condition of property) pursuant to one or more leases (“Substitute Leases”) that would create for Lessee leasehold
estates that have an aggregate Fair Market Value of no less than the Termination Payment that otherwise would be payable with respect
to the Fair Market Value of Lessee’s leasehold estate in the Hotel.


 






    	55



    	 



    

 


In the event Lessor
subsequently elects and complies with the option described in (b) above, the Substitute Leases shall not take into account the
amount of the Termination Payment accrued to the date the Substitute Leases are entered into and Lessor shall have no further responsibility
or obligation with respect to the Termination Payment. If Lessor elects and complies with the option described in (b) above, regardless
of whether Lessee enters into any of the Substitute Leases, Lessor shall have no further obligations to Lessee with respect to
compensation for the early termination of this Lease.


 




    	56



    	 



    

 


IN WITNESS WHEREOF,
the parties have executed this Lease under seal by their duly authorized officers as of the date first above written.


 


	 	LESSOR
	 	 
	 	ARC Hospitality Baltimore, LLC,
	 	a Delaware limited liability company
	 	 
	 	By: American Realty Capital Hospitality Operating Partnership, L.P., its sole member
	 	 
	 	 
	 	By: American Realty Capital Hospitality Trust, Inc., its general partner
	 	 	 
	 	By:	/s/ Jesse C. Galloway
	 	Printed Name: Jesse C. Galloway
	 	Title: Authorized Signatory
	 	 
	 	LESSEE
	 	 
	 	ARC Hospitality TRS Baltimore, LLC
	 	a Delaware limited liability company
	 	 
	 	By: ARC Hospitality TRS Holding, LLC, its sole member
	 	 
	 	By: American Realty Capital Hospitality Operating Partnership, L.P., its sole member
	 	 
	 	By: American Realty Capital Hospitality Trust, Inc., its general partner
	 	 	 
	 	By:	/s/ Jesse C. Galloway
	 	Printed Name: Jesse C. Galloway
	 	Title: Authorized Signatory


 




    	57



    	 



    

 


State of ______________


 


County of ____________


 


I, a Notary Public
of the County and State aforesaid, certify that _________________ personally came before me this day and acknowledged that he is
______________ of ____________________, a _________________________, general partner of ________________________, a _________ limited
partnership, and acknowledged the execution of the foregoing instrument. Witness my hand and seal, this the ___ day of ______________________,
2003.


 


	 	 
	 	 
	 	Notary Public
	 	 
	 	My commission expires:_______________





 


	(SEAL)	 	 	 
	 	 	 	 
	State of _____________	)	 	 
	 	 	 	 
	 	)	SS.	 
	 	 	 	 
	County of ___________	)	 	 


 


I, a Notary Public
of the County and State aforesaid, certify that _____________________ personally came before me this day and acknowledged that
he is __________ of _________________________________, a ______________ corporation, and acknowledged the execution of the foregoing
instrument. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal this _____ day of ______________, 2003.


 


	 	 
	 	Notary Public
	 	 
	(SEAL)	 
	 	 
	 	My commission expires:_______________


  




    	58



    	 



    

 


EXHIBIT A


 


LEGAL DESCRIPTIONS


 


[Attached]


 




    	A-1



    	 



    

 


EXHIBIT B


 


[TERM]


 


[COMMENCEMENT DATE]


 




    	B-1



    	 



    

 


 


EXHIBIT C


 




    	C-1



    	 



    

 


EXHIBIT D


 


MANAGEMENT AGREEMENT


 




    	D-1