Exhibit 10.126


    


    


    
      

      

    

     

    


    


    
      	 
	
              $200,000,000

            
	 
	
              CREDIT
                AGREEMENT

            
	 
	
              Dated
                as of September 30, 2005

               

            
	
              among

               

            
	
              CNL
                HOSPITALITY PARTNERS, LP,

            
	
              as
                Borrower,

               

            
	
              CNL
                HOTELS & RESORTS, INC.,

            
	
              as
                Parent,

               

            
	
              BANK
                OF AMERICA, N.A.,

            
	
              as
                Administrative Agent and L/C Issuer,

            
	 
	
              and

               

            
	
              The
                Other Lenders Party Hereto

            
	 
	 
	 
	 
	
              WACHOVIA
                BANK NATIONAL ASSOCIATION

            
	
              and

            
	
              DEUTSCHE
                BANK TRUST COMPANY AMERICAS,

            
	
              as
                Co-Syndication Agents

            
	 
	
              CALYON
                NEW YORK BRANCH

            
	
              and

            
	
              CITICORP
                NORTH AMERICA, INC.,

            
	
              as
                Co-Documentation Agents

            
	 
	
              BANC
                OF AMERICA SECURITIES LLC,

            
	
              as

            
	
              Sole
                Lead Arranger and Sole Book Manager

            


    

    


    


    


    
      

      

    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      TABLE
        OF CONTENTS

      


      


      


       

      


       

      
        	
                 

                Section


                 

              	
                 

                Page

                 

              
	
                 

                ARTICLE
                  I. DEFINITIONS AND ACCOUNTING TERMS

              	
                 

                1

              
	
                1.01 Defined
                  Terms

              	
                1

              
	
                1.02 Other
                  Interpretive Provisions

              	
                22

              
	
                1.03 Accounting
                  Terms

              	
                23

              
	
                1.04 Rounding

              	
                23

              
	
                1.05 References
                  to Agreements and Laws

              	
                23

              
	
                1.06 Times
                  of Day

              	
                23

              
	
                1.07 Letter
                  of Credit Amounts

              	
                23

              
	
                 

                ARTICLE
                  II. THE COMMITMENTS AND CREDIT
                  EXTENSIONS

              	
                 

                23

              
	
                2.01 Loans

              	
                24

              
	
                2.02 Borrowings,
                  Conversions and Continuations of
                  Loans.

              	
                24

              
	
                2.03 Letters
                  of Credit.

              	
                25

              
	
                2.04 Prepayments.

              	
                31

              
	
                2.05 Termination
                  or Reduction of Commitments

              	
                32

              
	
                2.06 Repayment
                  of Loans

              	
                32

              
	
                2.07 Interest.

              	
                32

              
	
                2.08 Fees

              	
                 

                32

              
	
                2.09 Computation
                  of Interest and Fees

              	
                33

              
	
                2.10 Evidence
                  of Debt.

              	
                33

              
	
                2.11 Payments
                  Generally.

              	
                34

              
	
                2.12 Sharing
                  of Payments

              	
                35

              
	
                2.13 Lenders;
                  Increase in Aggregate
                  Commitments.

              	
                36

              
	
                 

                ARTICLE
                  III. TAXES, YIELD PROTECTION AND
                  ILLEGALITY

              	
                37

              
	
                3.01 Taxes

              	
                37

              
	
                3.02 Illegality

              	
                 

                38

              
	
                3.03 Inability
                  to Determine Rates

              	
                38

              
	
                3.04 Increased
                  Cost and Reduced Return; Capital
                  Adequacy; Reserves on Eurodollar Rate Loans.

              	
                38

              
	
                3.05 Funding
                  Losses

              	
                39

              
	
                3.06 Matters
                  Applicable to all Requests for
                  Compensation.

              	
                39

              
	
                3.07 Survival

              	
                39

              
	
                 

                ARTICLE
                  IV. BORROWING BASE; SECURITY

              	
                40

              
	
                4.01 Borrowing
                  Base.

              	
                40

              
	
                4.02 Substitution
                  of Borrowing Base Properties and
                  Admission of Properties into the Borrowing Base.

              	
                 

                40

              
	
                4.03 Liens
                  on Borrowing Base Properties

              	
                42

              
	
                4.04 Appraisals.

              	
                42

              
	
                4.05 Releases
                  of Collateral.

              	
                43

              
	
                4.06 Guaranty

              	
                43

              
	
                4.07 Excluded
                  Kentucky Borrowing Base Property

              	
                44

              
	
                4.08 Excluded
                  Tampa Borrowing Base Property

              	
                44

              
	
                 

                ARTICLE
                  V. CONDITIONS PRECEDENT TO CREDIT
                  EXTENSIONS

              	
                44

              
	
                5.01 Conditions
                  of Initial Credit Extension

              	
                 

                44

              
	
                5.02 Conditions
                  to all Credit Extensions

              	
                48

              
	
                 

                ARTICLE
                  VI. REPRESENTATIONS AND WARRANTIES

              	
                48

              
	
                6.01 Existence,
                  Qualification and Power; Compliance
                  with Laws

              	
                48

              
	
                6.02 Authorization;
                  No Contravention

              	
                49

              
	
                6.03 Governmental
                  Authorization; Other
                  Consents

              	
                49

              
	
                6.04 Binding
                  Effect

              	
                49

              
	
                6.05 Financial
                  Statements; No Material Adverse
                  Effect.

              	
                49

              
	
                6.06 Litigation

              	
                49

              
	
                6.07 No
                  Default

              	
                50

              
	
                6.08 Ownership
                  of Property; Liens

              	
                50

              
	
                6.09 Environmental
                  Representations.

              	
                50

              
	
                6.10 Insurance

              	
                51

              
	
                6.11 Taxes

              	
                51

              
	
                6.12 ERISA
                  Compliance.

              	
                51

              
	
                6.13 Margin
                  Regulations; Investment Company Act; Public
                  Utility Holding Company Act.

              	
                52

              
	
                6.14 Disclosure

              	
                52

              
	
                6.15 Compliance
                  with Laws

              	
                52

              
	
                6.16 Intellectual
                  Property; Licenses, Etc.

              	
                53

              
	
                6.17 Drainage/Condemnation/Zoning

              	
                53

              
	
                6.18 Property
                  Condition

              	
                53

              
	
                6.19 Representations
                  Concerning Leases

              	
                53

              
	
                6.20 Contracts
                  and Plans

              	
                53

              
	
                6.21 Condemnation

              	
                54

              
	
                6.22 Reciprocal
                  Agreements.

              	
                54

              
	
                6.23 Management
                  Agreements

              	
                54

              
	
                6.24 Franchise
                  Agreements

              	
                54

              
	
                6.25 Solvency

              	
                54

              
	
                6.26 Ground
                  Lease Representations.

              	
                54

              
	
                6.27 Operating
                  Leases.

              	
                55

              
	
                6.28 Pooling
                  Agreements

              	
                55

              
	
                6.29 Manager
                  Liquidity Facilities

              	
                55

              
	
                6.30 Service
                  Contracts

              	
                56

              
	
                 

                ARTICLE
                  VII. AFFIRMATIVE COVENANTS

              	
                 

                56

              
	
                7.01 Financial
                  Statements

              	
                56

              
	
                7.02 Certificates;
                  Other Information

              	
                57

              
	
                7.03 Notices

              	
                58

              
	
                7.04 Payment
                  of Obligations

              	
                59

              
	
                7.05 Preservation
                  of Existence, Etc.

              	
                59

              
	
                7.06 Maintenance
                  of Properties

              	
                59

              
	
                7.07 Maintenance
                  of Insurance.

              	
                59

              
	
                7.08 Compliance
                  with Laws

              	
                62

              
	
                7.09 Books
                  and Records

              	
                62

              
	
                7.10 Inspection
                  Rights

              	
                63

              
	
                7.11 Use
                  of Proceeds

              	
                63

              
	
                7.12 Environmental
                  Matters

              	
                63

              
	
                7.13 Contracts

              	
                65

              
	
                7.14 Casualty

              	
                65

              
	
                7.15 Condemnation

              	
                65

              
	
                7.16 Restoration

              	
                65

              
	
                7.17 Property
                  Management

              	
                69

              
	
                7.18 Franchise
                  Agreements.

              	
                70

              
	
                7.19 Operating
                  Leases

              	
                72

              
	
                7.20 Ground
                  Leases.

              	
                72

              
	
                7.21 REIT
                  Status

              	
                73

              
	
                7.22 Subsidiary
                  Guaranties

              	
                73

              
	
                7.23 Other
                  Property Information

              	
                73

              
	
                7.24 Reports
                  and Testing

              	
                73

              
	
                7.25 Deferred
                  Maintenance

              	
                73

              
	
                 

                ARTICLE
                  VIII. NEGATIVE COVENANTS 

              	
                 

                74

              
	
                8.01 Liens

              	
                74

              
	
                8.02 Investments

              	
                74

              
	
                8.03 Indebtedness
                  and Liens with respect to
                  Mortgagors

              	
                75

              
	
                8.04 Fundamental
                  Changes

              	
                75

              
	
                8.05 Dispositions

              	
                76

              
	
                8.06 Restricted
                  Payments

              	
                76

              
	
                8.07 Change
                  in Nature of Business

              	
                77

              
	
                8.08 Transactions
                  with Affiliates

              	
                77

              
	
                8.09 Burdensome
                  Agreements

              	
                77

              
	
                8.10 Use
                  of Proceeds

              	
                77

              
	
                8.11 Contracts

              	
                77

              
	
                8.12 Lease
                  Approval

              	
                77

              
	
                8.13 No
                  Other Liens

              	
                77

              
	
                8.14 Reciprocal
                  Easement Agreements.

              	
                78

              
	
                8.15 Financial
                  Covenants.

              	
                78

              
	
                8.16 Pooling
                  Agreements

              	
                79

              
	
                8.17 Manager
                  Liquidity Facilities

              	
                79

              
	
                 

                ARTICLE
                  IX. EVENTS OF DEFAULT AND REMEDIES

              	
                 

                79

              
	
                9.01 Events
                  of Default

              	
                79

              
	
                9.02 Remedies
                  Upon Event of Default

              	
                82

              
	
                9.03 Application
                  of Funds

              	
                82

              
	
                 

                ARTICLE
                  X. ADMINISTRATIVE AGENT

              	
                 

                83

              
	
                10.01 Appointment
                  and Authorization of Administrative
                  Agent.

              	
                83

              
	
                10.02 Delegation
                  of Duties

              	
                83

              
	
                10.03 Liability
                  of Administrative Agent

              	
                84

              
	
                10.04 Reliance
                  by Administrative Agent.

              	
                84

              
	
                10.05 Notice
                  of Default

              	
                84

              
	
                10.06 Credit
                  Decision; Disclosure of Information by
                  Administrative Agent

              	
                84

              
	
                10.07 Indemnification
                  of Administrative Agent

              	
                84

              
	
                10.08 Administrative
                  Agent in its Individual
                  Capacity

              	
                84

              
	
                10.09 Successor
                  Administrative Agent

              	
                84

              
	
                10.10 Administrative
                  Agent May File Proofs of
                  Claim

              	
                84

              
	
                10.11 Collateral
                  and Guaranty Matters

              	
                84

              
	
                10.12 Other
                  Agents; Arrangers and Managers

              	
                84

              
	
                10.13 Approval
                  of Lenders.

              	
                84

              
	
                 

                ARTICLE
                  XI. MISCELLANEOUS

              	
                 

                84

              
	
                11.01 Amendments,
                  Etc.

              	
                84

              
	
                11.02 Notices
                  and Other Communications; Facsimile
                  Copies.

              	
                84

              
	
                11.03 No
                  Waiver; Cumulative Remedies

              	
                84

              
	
                11.04 Attorney
                  Costs, Expenses, and Taxes

              	
                84

              
	
                11.05 Indemnification
                  by Borrower

              	
                84

              
	
                11.06 Payments
                  Set Aside

              	
                84

              
	
                11.07 Successors
                  and Assigns.

              	
                84

              
	
                11.08 Confidentiality

              	
                84

              
	
                11.09 Set-off

              	
                84

              
	
                11.10 Interest
                  Rate Limitation

              	
                84

              
	
                11.11 Counterparts

              	
                84

              
	
                11.12 Integration

              	
                84

              
	
                11.13 Survival
                  of Representations and
                  Warranties

              	
                84

              
	
                11.14 Severability

              	
                84

              
	
                11.15 Tax
                  Forms

              	
                84

              
	
                11.16 Replacement
                  of Lenders

              	
                84

              
	
                11.17 Assignment
                  of Contracts and Plans

              	
                84

              
	
                11.18 Governing
                  Law.

              	
                84

              
	
                11.19 Waiver
                  of Right to Trial by Jury

              	
                84

              
	
                11.20 USA
                  Patriot Act Notice

              	
                84

              
	
                11.21 Time
                  of the Essence

              	
                84

              
	
                11.22 ENTIRE
                  AGREEMENT

              	
                84

              


      

       

      


       


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


       

      
        	
                SCHEDULES

                 

              
	
                1.01(a) Operating
                  Lessees and Franchisors

              
	
                1.01(b) Managers

              
	
                1.01(c) Qualified
                  Managers

              
	
                1.01(d) Excluded
                  Contingent Obligations

              
	
                2.01 Commitments
                  and Pro Rata Shares

              
	
                2.03 Existing
                  Letters of Credit

              
	
                4.01 Initial
                  Borrowing Base Properties, Appraised Values, and Implied Loan
                  Amount

              
	
                6.28 Pooling
                  Agreements

              
	
                6.29 Manager
                  Liquidity Facilities

              
	
                7.25 Deferred
                  Maintenance

              
	
                8.01 Existing
                  Liens

              
	
                11.02 Administrative
                  Agent’s Office, Certain Addresses for Notices

              
	 
	 
	 
	
                EXHIBITS

              
	
                Form
                  of

                 

              
	
                A Loan
                  Notice

              
	
                B Note

              
	
                C Compliance
                  Certificate

              
	
                D-1 Joinder
                  Agreement

              
	
                D-2 Increase
                  Certificate

              
	
                E Assignment
                  and Assumption

              
	
                F-1 Guaranty

              
	
                F-2 Subsidiary
                  Guaranty

              
	
                G Borrowing
                  Base Report

              
	
                H Survey
                  Requirements

              


      

      


       



    


    


     

    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    CREDIT
      AGREEMENT

     

    This
      CREDIT AGREEMENT (“Agreement”)
      is
      entered into as of September 30, 2005
      (the
“Closing
      Date”), among
      CNL
      HOSPITALITY PARTNERS, LP,
      a
      Delaware limited partnership (“Borrower”),
      CNL
      HOTELS
      & RESORTS,
      INC.,
      a
      Maryland corporation (“Parent”),
      each
      lender from time to time party hereto (collectively, the “Lenders”
      and
      individually, a “Lender”),
      and
BANK
      OF AMERICA, N.A., as
      Administrative Agent and L/C Issuer.

     

    Borrower
      has requested that the Lenders provide a revolving credit facility, and the
      Lenders are willing to do so on the terms and conditions set forth
      herein.

     

    In
      consideration of the mutual covenants and agreements herein contained, the
      parties hereto covenant and agree as follows:

     

    ARTICLE
      I.  

     

    DEFINITIONS
      AND ACCOUNTING TERMS

     

    1.01  Defined
      Terms

     

    .
      As used
      in this Agreement, the following terms shall have the meanings set forth
      below:

     

    “Acceptable
      Appraisal”
      means
      an appraisal commissioned by and addressed to Administrative Agent (acceptable
      to Administrative Agent as to form, assumptions, substance, and appraisal date),
      prepared by a qualified professional appraiser acceptable to Administrative
      Agent, and having the minimum qualifications required under all applicable
      Laws
      of Administrative Agent.

     

    “Adjusted
      NOI”
      means,
      for any Borrowing Base Property for any period, (a) all lease payments pursuant
      to the Operating Lease for such Borrowing Base Property, minus
      (b) any
      ground lease payments, minus
      (c)
      appropriate accruals for items such as annual taxes, insurance, or other
      operating expenses payable by the owner (as opposed to the applicable Operating
      Lessee) of such Borrowing Base Property reasonably determined by Administrative
      Agent with respect to such Borrowing Base Property, minus
      (d)
      FF&E Reserves, minus
      (e)
      Management Fee Reserves for such period in excess of actual management fees
      for
      any such Borrowing Base Property deducted in calculating the amounts in
clause
      (a)
      above.
      If the Operating Lessee of any Borrowing Base Property is a direct or indirect
      wholly owned Subsidiary of Parent, then Adjusted NOI shall include the
      Consolidated Net Income of such Subsidiary attributable to such Borrowing Base
      Property,
      without
      deduction however for any amounts expended for FF&E or management
      fees.
      For
      purposes of determining Adjusted NOI for any Borrowing Base Property, Adjusted
      NOI shall be calculated on a pro forma basis as if all lease payments pursuant
      to the Operating Lease for such Borrowing Base Property (and, if applicable,
      Consolidated Net Income for such Borrowing Base Property) admitted into the
      Borrowing Base during the period of determination were received
      (or was earned) from and after the
      first
      (1st) day of and
      throughout
      such
      period of determination.

     

    “Administrative
      Agent”
      means
      Bank of America in its capacity as administrative agent under any of the Loan
      Documents, or any successor administrative agent.

     

    “Administrative
      Agent’s
      Office”
      means
      Administrative Agent’s
      address
      and, as appropriate, account as set forth on Schedule 11.02,
      or such
      other address or account as Administrative Agent may from time to time notify
      Borrower and the Lenders.

     

    “Administrative
      Questionnaire”
      means
      an Administrative Questionnaire in a form supplied by Administrative
      Agent.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Advisor
      Merger”
      has the
      meaning specified in Section 8.04(d).

     

    “Affiliate”
      means,
      with respect to any Person, another Person that directly, or indirectly through
      one or more intermediaries, Controls or is Controlled by or is under common
      Control with the Person specified. “Control”
      means
      the possession, directly or indirectly, of the power to direct or cause the
      direction of the management or policies of a Person, whether through the ability
      to exercise voting power, by contract or otherwise. “Controlling”
      and
“Controlled”
      have
      meanings correlative thereto. Without limiting the generality of the foregoing,
      a Person shall be deemed to be Controlled by another Person if such other Person
      possesses, directly or indirectly, power to vote ten percent (10%) or more
      of
      the securities having ordinary voting power for the election of directors,
      managing general partners or the equivalent. Notwithstanding the foregoing,
      “Affiliate”
      shall
      not include CNL Financial Group, Inc. or any of its Subsidiaries to the extent
      any such Persons and Parent and its Subsidiaries have separate and independent
      management.

     

    “Agent-Related
      Persons” means
      Administrative Agent, together with its Affiliates (including, in the case
      of
      Bank of America in its capacity as Administrative Agent, the Arranger), and
      the
      officers, directors, employees, agents and attorneys-in-fact of such Persons
      and
      Affiliates.

     

    “Aggregate
      Commitments”
      means
      the Commitments of all the Lenders.

     

    “Agreement”
      means
      this Credit Agreement.

     

    “Applicable
      Margin”
      means
      the following percentages per annum, based upon the Consolidated Leverage Ratio
      as set forth in the most recent Compliance Certificate received by
      Administrative Agent pursuant to Section 7.02(a):

     

    


     

    
      	
              Pricing
                Level

               

            	
              Consolidated
                Leverage Ratio

               

            	
              Eurodollar
                Rate 

              _________

               

               

              Letters
                of Credit

               

            	
              Base
                Rate 

               

            
	
              1

            	
              ≤6.0:1

            	
              1.750%

            	
              0.75%

            
	
              2

            	
              >6.0:1
                but £7.5:1

            	
              2.000%

            	
              1.00%

            
	
              3

            	
              >7.5:1

            	
              2.25%

            	
              1.25%

            


    

    


     

    Any
      increase or decrease in the Applicable Margin resulting from a change in the
      Consolidated Leverage Ratio shall become effective as of the first
      (1st)
      Business Day immediately following the date a Compliance Certificate is
      delivered pursuant to Section 7.02(a);
      provided,
      however,
      that if
      a Compliance Certificate is not delivered when due in accordance with such
      Section,
      then
      Pricing Level 3 shall apply as of the first (1st)
      Business Day after the date on which such Compliance Certificate was required
      to
      have been delivered until and including the first (1st)
      Business Day immediately following the date such Compliance Certificate is
      actually delivered; provided
      further
      that, if
      a Major Leverage Event occurs, then Borrower shall provide an updated Compliance
      Certificate within three (3) Business Days after such Major Leverage Event
      reflecting the resulting increase or decrease in Consolidated Funded
      Indebtedness and proforma adjustments to Consolidated EBITDA attributable to
      hotel operations acquired (or sold) in 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    connection
      with such Major Leverage Event and the Applicable Margin shall be adjusted
      effective on the first (1st)
      Business Day after the date such updated Compliance Certificate is delivered.
      The Applicable Margin in effect from the Closing Date through the date of
      delivery of the initial Compliance Certificate delivered pursuant to
Section 7.02(b)
      shall be
      determined based upon Pricing Level 3.

     

    “Appraised
      Value”
      means,
      with respect to any Borrowing Base Property as of any date, the appraised value
      of such Borrowing Base Property on a “current value” basis pursuant to an
      Acceptable Appraisal.

     

    “Approved
      Fund”
      has the
      meaning specified in Section 11.07(g).

     

    “Arranger”
      means
      Banc of America Securities
      LLC, in its capacity as sole lead arranger and sole book manager.

     

    “Assignment
      and Assumption”
      means
      an Assignment and Assumption substantially in the form of Exhibit E.

     

    “Assignment
      of Management Agreement”
      means
      an Assignment and Subordination and Non-disturbance of Management Agreement
      among Administrative Agent, the applicable Operating Lessee, Borrower, and
      the
      applicable Manager, in form and substance acceptable to Administrative Agent
      and
      the applicable Manager.

     

    “Attorney
      Costs”
      means
      and includes all fees, expenses and disbursements of any law firm or other
      external counsel and, without duplication, the allocated cost of internal legal
      services and all expenses and disbursements of internal counsel.

     

    “Attributable
      Indebtedness”
      means,
      on any date, (a) in respect of any capital lease of any Person, the capitalized
      amount thereof that would appear on a balance sheet of such Person prepared
      as
      of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
      Obligation, the capitalized amount of the remaining lease payments under the
      relevant lease that would appear on a balance sheet of such Person prepared
      as
      of such date in accordance with GAAP if such lease were accounted for as a
      capital lease.

     

    “Audited
      Financial Statements”
      means
      the audited consolidated balance sheet of Parent and its Subsidiaries for the
      fiscal year ended December 31, 2004, and the related consolidated statements
      of
      income or operations, shareholders’ equity and cash flows for such fiscal year
      of Parent and its Subsidiaries, including the notes thereto.

     

    “Auto-Extension
      Letter of Credit”
      has the
      meaning specified in Section 2.03(b)(iii).

     

    “Availability
      Period”
      means
      the period from and including the Closing Date to the earliest of (a) the
      Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant
      to Section 2.05,
      and (c)
      the date of termination of the commitment of each Lender to make Loans and
      of
      the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
      Section 9.02.

     

    “Award”
      means
      any compensation paid by any Governmental Authority in connection with a
      Condemnation in respect of all or any part of any Borrowing Base
      Property.

     

    “Bank
      of America”
      means
      Bank of America, N.A. and its successors.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Base
      Rate” means
      for
      any day a fluctuating rate per annum equal to the higher of (a) the Federal
      Funds Rate plus
      one half
      of one percent (0.5%) and (b) the rate of interest in effect for such day as
      publicly announced from time to time by Administrative Agent as its “prime
      rate.” The “prime rate” is a rate set by Administrative Agent based upon various
      factors including Administrative Agent’s costs and desired return, general
      economic conditions and other factors, and is used as a reference point for
      pricing some loans, which may be priced at, above, or below such announced
      rate.
      Any change in such rate announced by Administrative Agent shall take effect
      at
      the opening of business on the day specified in the public announcement of
      such
      change. 

     

    “Base
      Rate Loan”
      means a
      Loan that bears interest based on the Base Rate.

     

    “Borrower”
      has the
      meaning specified in the introductory paragraph hereto.

     

    “Borrowing”
      means a
      borrowing consisting of Loans of the same Type and, in the case of Eurodollar
      Rate Loans, having the same Interest Period made by each of the Lenders pursuant
      to Section 2.01.

     

    “Borrowing
      Base”
      has the
      meaning specified in Section 4.01.

     

    “Borrowing
      Base Properties”
      means
      each of the Properties (a) that are owned or ground leased by Borrower or
      another wholly-owned Subsidiary that has executed the Subsidiary Guaranty and
      (b) that are Collateral and that either (i) is an Initial Borrowing Base
      Property or (ii) becomes a Borrowing Base Property pursuant to Section 4.02,
      but
      excluding any Properties that have been released from the Borrowing Base
      pursuant to Section 4.05,
      and
“Borrowing
      Base Property”
      means
      any one of the Borrowing Base Properties.

     

    “Borrowing
      Base Report”
      means a
      report in substantially the form of Exhibit G
      certified by a Responsible Officer of Borrower, setting forth in reasonable
      detail the date acquired, location, and a calculation of the Implied Loan Amount
      for the Borrowing Base Properties (individually and in the aggregate) and a
      calculation of the Borrowing Base.

     

    “Business
      Day”
      means
      any day other than a Saturday, Sunday or other day on which commercial banks
      are
      authorized to close under the Laws of, or are in fact closed in, the state
      where
      Administrative Agent’s Office is located and, if such day relates to any
      Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits
      are conducted by and between banks in the London interbank eurodollar market.
      

     

    “Cash
      Available for Distribution”means,
      for any Person for any period, (a)
      Consolidated EBITDA, plus
      (b) the amount of all
      extraordinary cash gains actually realized,
      less
(c)
      the
      aggregate amount of scheduled principal payments on consolidated Indebtedness
      required to be made during such period (other than optional principal
      prepayments and scheduled principal payments in respect of any Indebtedness
      which is payable in a single or
      final
“balloon”installment
      at final maturity), less (d)
      Consolidated
      Interest
      Charges payable during such period, less (e)
      the
      amount of all extraordinary cash losses actually realized, less (f) FF&E
      Reserves, plus (g) any amounts actually expended for FF&E and other capital
      expenditures and deducted in determining Consolidated EBITDA.

     

    “Cash
      Collateralize”
      has the
      meaning specified in Section 2.03(g).

     

    “Casualty”
      has the
      meaning specified in Section 7.14.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

     

    “Change
      of Control”
      means,
      with respect to any Loan
      Party,
      an
      event or series of events by which:

     

     

    (a) any
      “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
      Securities Exchange Act of 1934, but excluding any employee benefit plan of
      such
      person or its subsidiaries and any person or entity acting in its capacity
      as
      trustee, agent, or other fiduciary or administrator of any such plan) becomes
      the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
      Exchange Act of 1934, except that a person or group shall be deemed to have
      “beneficial ownership” of all securities that such person or group has the right
      to acquire (such right, an “option right”), whether such right is exercisable
      immediately or only after the passage of time), directly or indirectly, of
      twenty-five percent (25%) or more of the equity securities of such Loan
      Party
      entitled
      to vote for members of the board of directors or equivalent governing body
      of
      such Loan
      Party
      on a
      fully-diluted basis (and taking into account all such securities that such
      person or group has the right to acquire pursuant to any option
      right),
      unless
      the Required Lenders have approved in advance in writing such acquiring “person”
      or “group;”
      or

     

    (b) during
      any period of twelve (12) consecutive months, and
      unless approved by the Required Lenders, a
      majority
      of the members of the board of directors or other equivalent governing body
      of
      such Loan
      Party (or its ultimate controlling parent)
      cease to
      be composed of individuals (i) who were members of that board or equivalent
      governing body on the first day of such period, (ii) whose election or
      nomination to that board or equivalent governing body was approved by
      individuals referred to in clause (i) above constituting at the time of such
      election or nomination at least a majority of that board or equivalent governing
      body or (iii) whose election or nomination to that board or other equivalent
      governing body was approved by individuals referred to in clauses (i) and (ii)
      above constituting at the time of such election or nomination at least a
      majority of that board or equivalent governing body (excluding, in the case
      of
      both clause (ii) and clause (iii), any individual whose initial nomination
      for,
      or assumption of office as, a member of that board or equivalent governing
      body
      occurs as a result of an actual or threatened solicitation of proxies or
      consents for the election or removal of one or more directors by any person
      or
      group other than a solicitation for the election of one or more directors by
      or
      on behalf of the board of directors).

     

    A
      Change
      in Control shall be deemed not to occur upon the issuance of new capital stock
      in Guarantor as long as the conditions set forth in clause (a) and (b) regarding
      approval of the Required Lenders are otherwise satisfied.

     

    “Closing
      Date”
      has the
      meaning specified in the introductory paragraph hereto.

     

    “Code”
      means
      the Internal Revenue Code of 1986.

     

    “Collateral”
      means
      the Real Estate Collateral, the Personal Property Collateral, and all other
      property of the Mortgagors on which Liens have been granted to Administrative
      Agent or the Lenders to secure the Obligations.

     

    “Commitment”
      means,
      as to each Lender, its obligation to (a) make Loans to Borrower pursuant to
      Section 2.01,
      and (b)
      purchase participations in L/C Obligations, in an aggregate principal amount
      at
      any one time outstanding not to exceed the amount set forth opposite such
      Lender’s
      name on


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Schedule 2.01
      or in
      the Assignment and Assumption pursuant to which such Lender becomes a party
      hereto, as applicable, as such amount may be adjusted from time to time in
      accordance with this Agreement.

     

    “Compliance
      Certificate”
      means a
      certificate substantially in the form of Exhibit C.

     

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

     

    “Condemnation
      Proceeds”
      has the
      meaning specified in Section 7.16.

     

    “Consolidated
      EBITDA”
      means,
      for any Person for any period, an amount equal to: (a) Consolidated
      Net Income for such period; plus (b)
      the
      following to the extent deducted in calculating Consolidated
      Net Income: (i) Consolidated Interest Charges for such period, (ii) the
      provision for federal, state, local
      and
      foreign income taxes payable by such Person and its Subsidiaries for such
      period, (iii) the amount of depreciation and amortization expense for
      such
      period, (iv) minority interests and results of unconsolidated subsidiaries
      of
      such Person for such period, (v) other non-cash
      expenses
      reducing Consolidated
      Net Income for such period, (vi) pro forma adjustments attributable to hotel
      operations acquired (or sold) during such period as if such acquisition (or
      disposition) had occurred on the first day of such period, and (vii) amounts
      received by such Person and its Subsidiaries for such period with respect to
      private memberships in hotel, spa, gold and other facilities plus principal
      payments received for such period on notes in respect thereof; minus (c) other
      non-cash income
      increasing Consolidated Net Income for such period;
      minus
      (d) amounts refunded by such Person and its Subsidiaries for such period with
      respect to private memberships in hotel, spa, gold and other
      facilities.

     

    “Consolidated
      Fixed Charge Coverage Ratio”means,
      for any Person as of the last day of any fiscal quarter, the ratio of (a) (i)
      Consolidated EBITDA;
      minus
      (ii) FF&E reserves,
      to (b)
      Fixed Charges, in each case for the four (4) fiscal quarters ending on the
      date of
      determination.

     

    “Consolidated
      Funded Indebtedness”means,
      for any Person as of any date of determination, the sum
      of
      (a) the outstanding principal amount of all Indebtedness whether current or
      long
      term,
      for borrowed money (including Obligations hereunder) and all Indebtedness
      evidenced by bonds, debentures, notes, loan agreements or other similar
      instruments, (b) all purchase money Indebtedness, (c) all direct obligations
      arising
      under letters of credit
      (standby
      and commercial), bankers’
      acceptances, surety
      bonds and similar instruments, (d) all obligations with
      respect
      to deferred
      purchase price of property or services (other than trade accounts payable in
      the
      ordinary course of business), and (e)
      Attributable Indebtedness,
      and (f)
      without duplication, all Guarantees with respect to Indebtedness
      specified
      in (a)
      through (e) above of Persons other than such guarantor
      or
      any of
      its Subsidiaries.

     

    “Consolidated
      Interest Charges”
      means,
      for any Person for any period, the sum of (a) all interest, premium payments,
      debt discount, fees, charges, and related expenses of such Person in connection
      with borrowed money (including capitalized interest) or in connection with
      the
      deferred purchase price of assets, in each case to the extent treated as
      interest in accordance with GAAP, and (b) the portion of rent expense of such
      Person with respect to such period under capital leases that is treated as
      interest in accordance with GAAP.

     

    “Consolidated
      Leverage Ratio”
      means,
      for Parent and its Subsidiaries on a consolidated basis as of any date of
      determination, the ratio of (a) Consolidated Funded Indebtedness (other than
      Excluded 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Contingent
      Obligations) as of the date of determination, to (b) Consolidated EBITDA for
      the
      four (4) fiscal quarters ending on the date of determination.

     

    “Consolidated
      Net Income”
      means,
      for any Person or attributable
      to
      any
      Borrowing Base Property for any period, the consolidated net income of such
      Person or the net income derived from such Borrowing Base Property (excluding
      extraordinary gains and extraordinary losses) for that period, in each case
      as
      determined in accordance with GAAP.

     

    “Consolidated
      Total Assets”
      means,
      for Parent and its Subsidiaries on a consolidated basis as of any date of
      determination, all assets determined in accordance with GAAP.

     

    “Contractual
      Obligation”
      means,
      as to any Person, any provision of any security issued by such Person or of
      any
      agreement, instrument or other undertaking to which such Person is a party
      or by
      which it or any of its property is bound.

     

    “Control”
      has the
      meaning specified in the definition of “Affiliate.”

     

    “Credit
      Extension”
      means
      each of the following: (a) a Borrowing; and (b) an L/C Credit
      Extension.

     

    “Debtor
      Relief Laws”
      means
      the Bankruptcy Code of the United States, and all other liquidation,
      conservatorship, bankruptcy, assignment for the benefit of creditors,
      moratorium, rearrangement, receivership, insolvency, reorganization, or similar
      debtor relief Laws of the United States or other applicable jurisdictions from
      time to time in effect and affecting the rights of creditors
      generally.

     

    “Debt
      Service”means,
      for any Person for any period, (a) all regularly scheduled principal payments,
      plus
      (b) all
      Consolidated Interest Charges
      paid or
      payable during such period in respect to
      all
      Indebtedness of such Person, minus (c) pro forma adjustments to principal
      payments and Consolidated Interest Charges attributable to Indebtedness incurred
      (or repaid) during such period as if such incurrence (or repayment) had occurred
      on the first (1st)
      day of
      such period.

     

    “Default”
      means
      any event or condition that constitutes an Event of Default or
      that,
      with the giving of any notice, the passage of time, or both, would be an Event
      of Default.

     

    “Default
      Rate”
      means
      (a) when used with respect to Obligations other than Letter of Credit Fees,
      an
      interest rate equal to (i) the Base Rate plus
      (ii) the
      Applicable Margin, if any, applicable to Base Rate Loans plus
      (iii) 2%
      per annum; provided,
      however,
      that
      with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest
      rate equal to the interest rate (including any Applicable Margin) otherwise
      applicable to such Loan plus 2% per annum, and (b) when used with respect to
      Letter of Credit Fees, a rate equal to the Applicable Margin plus
      2% per
      annum.

     

    “Defaulting
      Lender”
      means
      any Lender that (a) has failed to fund any portion of the Loans or
      participations in L/C Obligations required to be funded by it hereunder within
      one Business Day of the date required to be funded by it hereunder, (b) has
      otherwise failed to pay over to Administrative Agent or any other Lender any
      other amount required to be paid by it hereunder within one (1) Business Day
      of
      the date when due, unless the subject of a good faith dispute, or (c) has been
      deemed insolvent or become the subject of a bankruptcy or insolvency
      proceeding.

     

    “Disposition”
      or
“Dispose”
      means
      the sale, transfer, license, lease (other than an Operating Lease), or other
      disposition (including any sale and leaseback transaction) of any property
      by
      any Person, 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    including
      any sale, assignment, transfer, or other disposal, with or without recourse,
      of
      any notes or accounts receivable or any rights and claims associated
      therewith.

     

    “Dollar”
      and
“$”
      mean
      lawful money of the United States.

     

    “Eligible
      Assignee”
      has the
      meaning specified in Section 11.07(g).

     

    “Environmental
      Assessment”
      has the
      meaning specified in Section 7.12(c).

     

    “Environmental
      Claim”
      means
      any investigative, enforcement, cleanup, removal, containment, remedial, or
      other private or governmental or regulatory action at any time threatened,
      instituted, or completed pursuant to any applicable Environmental Requirement,
      against Parent or any Subsidiary or against or with respect to any Real Property
      or any condition, use, or activity on any Real Property (including any such
      action against Administrative Agent or any Lender), and any claim at any time
      threatened or made by any person against Parent or any Subsidiary or against
      or
      with respect to any Real Property or any condition, use, or activity on any
      Real
      Property (including any such claim against Administrative Agent or any Lender),
      relating to damage, contribution, cost recovery, compensation, loss, or injury
      resulting from or in any way arising in connection with any Hazardous Material
      or any Environmental Requirement.

     

    “Environmental
      Damages” means,
      whether before or after the Release Date: (a) the presence of any Hazardous
      Material on any Property, or any escape, seepage, leakage, spillage, emission,
      release, discharge, or disposal of any Hazardous Material on or from any Real
      Property, or the migration or release or threatened migration or release of
      any
      Hazardous Material to, from, or through any Real Property, on or before the
      Release Date; or (b) any act, omission, event, or circumstance existing or
      occurring in connection with the handling, treatment, containment, removal,
      storage, decontamination, clean-up, transport, or disposal of any Hazardous
      Material which is at any time on or before the Release Date present on any
      Real
      Property; or (c) the breach of any representation, warranty, covenant, or
      agreement contained in this Agreement or any other Loan Document because of
      any
      event or condition occurring or existing on or before the Release Date; or
      (d)
      any violation on or before the Release Date, of any Environmental Requirement
      in
      effect on or before the Release Date, regardless of whether any act, omission,
      event, or circumstance giving rise to the violation constituted a violation
      at
      the time of the occurrence or inception of such act, omission, event, or
      circumstance; or (e) any Environmental Claim, or the filing or imposition of
      any
      environmental lien against any Real Property, because of, resulting from, in
      connection with, or arising out of any of the matters referred to in
subsections (a)
      through
(d)
      preceding; and regardless of whether any of the foregoing subsections (a)
      through
(e)
      was
      caused by a Loan Party or a tenant or subtenant, or a prior owner of any Real
      Property or its tenant or subtenant, or any third party, including but not
      limited to: (i) injury or damage to any person, property, or natural resource
      occurring on or off of such Real Property, including but not limited to the
      cost
      of demolition and rebuilding of any improvements on real property; (ii) the
      investigation or remediation of any such Hazardous Material or violation of
      Environmental Requirement, including but not limited to the preparation of
      any
      feasibility studies or reports and the performance of any cleanup, remediation,
      removal, response, abatement, containment, closure, restoration, monitoring,
      or
      similar work required by any Environmental Requirement or necessary to have
      full
      use and benefit of such Real Property as contemplated by the Loan Documents
      (including any of the same in connection with any foreclosure action or transfer
      in lieu thereof); (iii) all liability to pay or indemnify any person or
      Governmental Authority for costs expended in connection with any of the
      foregoing; (iv) the investigation and defense of any claim, whether or not
      such
      claim is ultimately defeated; and (v) the settlement of any claim or
      judgment.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Environmental
      Laws”
      means
      any and all Federal, state, local, and foreign statutes, laws, regulations,
      ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
      franchises, licenses, agreements, or governmental restrictions relating to
      pollution and the protection of the environment or the release of any materials
      into the environment, including those related to hazardous substances or wastes,
      air emissions and discharges to waste or public systems.

     

    “Environmental
      Requirement”
      means
      any Environmental Law, agreement or restriction (including but not limited
      to
      any condition or requirement imposed by any insurance or surety company), as
      the
      same now exists or may be changed or amended or come into effect in the future,
      which pertains to health, safety, any Hazardous Material, or the environment,
      including but not limited to ground or air or water or noise pollution or
      contamination, and underground or aboveground tanks.

     

    “ERISA”
      means
      the Employee Retirement Income Security Act of 1974.

     

    “ERISA
      Affiliate”
      means
      any trade or business (whether or not incorporated) under common control with
      Borrower within the meaning of Section 414(b) or (c) of the Code (and
      Sections 414(m) and (o) of the Code for purposes of provisions relating to
      Section 412 of the Code).

     

    “ERISA
      Event”
      means
      (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
      Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
      of ERISA during a plan year in which it was a substantial employer (as defined
      in Section 4001(a)(2) of ERISA) or a cessation of operations that is
      treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
      or partial withdrawal by Borrower or any ERISA Affiliate from a Multiemployer
      Plan or notification that a Multiemployer Plan is in reorganization; (d) the
      filing of a notice of intent to terminate, the treatment of a Plan amendment
      as
      a termination under Sections 4041 or 4041A of ERISA, or the commencement of
      proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan;
      (e)
      an event or condition which constitutes grounds under Section 4042 of
      ERISA
      for the termination of, or the appointment of a trustee to administer, any
      Pension Plan or Multiemployer Plan; or (f) the imposition of any liability
      under
      Title IV of ERISA, other than for PBGC premiums due but not delinquent under
      Section 4007 of ERISA, upon Borrower or any ERISA Affiliate.

     

    “Eurodollar
      Rate”
      for any
      Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
      equal
      to the British Bankers Association LIBOR Rate (“BBA
      LIBOR”),
      as
      published by Reuters (or other commercially available source providing
      quotations of BBA LIBOR as designated by the Administrative Agent from time
      to
      time) at approximately 11:00 a.m., London time, two (2) Business Days prior
      to
      the commencement of such Interest Period, for Dollar deposits (for delivery
      on
      the first day of such Interest Period) with a term equivalent to such Interest
      Period. If such rate is not available at such time for any reason, then the
      “Eurodollar Rate” for such Interest Period shall be the rate per annum
      determined by Administrative Agent to be the rate at which deposits in Dollars
      for delivery on the first day of such Interest Period in same day funds in
      the
      approximate amount of the Eurodollar Rate Loan being made, continued or
      converted by Bank of America and with a term equivalent to such Interest Period
      would be offered by Bank of America’s London Branch to major banks in the London
      interbank eurodollar market at their request at approximately 11:00 a.m. (London
      time) two (2) Business Days prior to the commencement of such Interest
      Period.

     

    “Eurodollar
      Rate Loan”
      means a
      Loan that bears interest at a rate based on the Eurodollar Rate.

     

    “Event
      of Default”
      has the
      meaning specified in Section 9.01.
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Excluded
      Kentucky Borrowing Base Property”
      means
      the Borrowing Base Property listed as number fourteen (14) on Schedule 4.01
      (Holiday
      Inn Louisville).

     

    “Excluded
      Tampa Borrowing Base Property”
      means
      the Borrowing Base Property listed as number nine (9) on Schedule 4.01
      (Tampa
      International).

     

    “Excluded
      Contingent Obligations”
      means
      the obligations listed on Schedule
      1.01(d).
      

     

    “Existing
      Letters of Credit”
      means
      those certain letters of credit listed on Schedule 2.03,
      and
“Existing
      Letter of Credit”
      means
      any one of the Existing Letters of Credit.

     

    “Federal
      Funds Rate” means,
      for any day, the rate per annum equal to the weighted average of the rates
      on
      overnight Federal funds transactions with members of the Federal Reserve System
      arranged by Federal funds brokers on such day, as published by the Federal
      Reserve Bank on the Business Day next succeeding such day; provided that
      (a) if
      such day is not a Business Day, the Federal Funds Rate for such day shall be
      such rate on such transactions on the next preceding Business Day as so
      published on the next succeeding Business Day, and (b) if no such rate is so
      published on such next succeeding Business Day, the Federal Funds Rate for
      such
      day shall be the average rate (rounded upward, if necessary, to a whole multiple
      of 1/100 of 1%) charged to Bank of America on such day on such transactions
      as
      determined by Administrative Agent.

     

    “Fee
      Letter”
      means
      the letter agreement, dated as of July 21, 2005, among Borrower, Parent,
      Administrative Agent, and the Arranger.

     

    “FF&E”
      means
      furniture, fixtures, and equipment.

     

    “FF&E
      Reserves”
      means,
      with respect to any Borrowing Base Property or Person for any period, and
      without duplication, an assumed reserve for FF&E and other capital
      expenditures equal to four percent (4%) of Gross Revenues of such Borrowing
      Base
      Property or such Person’s Properties for such period.

     

    “Fixed
      Charges”
      means,
      for any Person, for any period, (a) Debt Service, plus (b) Restricted Payments
      with respect to preferred stock or other preferred equity interests issued
      by
      such Person required to be paid regardless of available cash during such
      period.

     

    “Foreign
      Lender”
      has the
      meaning specified in Section 11.15(a)(i).
      

     

    “Franchise
      Agreements”
      means
      each franchise or similar agreement entered into by and between an Operating
      Lessee and each Franchisor pursuant to which such Operating Lessee is permitted
      to operate the applicable Borrowing Base Property under the “flag” or other
      trade name that is the subject thereof, and “Franchise
      Agreement”
      means
      any one of the Franchise Agreements.

     

    “Franchisors”
      means
      each franchisor of each Borrowing Base Property as set forth on Schedule 1.01(a)
      or such
      other entity selected as the franchisor of the applicable Borrowing Base
      Property in accordance with the terms of this Agreement, and “Franchisor”
      means
      any one of the Franchisors.

     

    “FRB”
      means
      the Board of Governors of the Federal Reserve System of the United
      States.

     

    “Fund”
      has the
      meaning specified in Section 11.07(g).

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “GAAP”
      means
      generally accepted accounting principles in the United States set forth in
      the
      opinions and pronouncements of the Accounting Principles Board and the American
      Institute of Certified Public Accountants and statements and pronouncements
      of
      the Financial Accounting Standards Board or such other principles as may be
      approved by a significant segment of the accounting profession in the United
      States, that are applicable to the circumstances as of the date of
      determination, consistently applied.

     

    “Governmental
      Authority”
      means
      any nation or government, any state or other political subdivision thereof,
      any
      agency, authority, instrumentality, regulatory body, court, administrative
      tribunal, central bank, or other entity exercising executive, legislative,
      judicial, taxing, regulatory, or administrative powers or functions of or
      pertaining to government.

     

    “Gross
      Revenues”
      means,
      for any Real Property or Person, all revenues and receipts of every kind derived
      from operating such Real Property or all Real Properties owned by such Person,
      as the case may be, and parts thereof, including, but not limited to: income
      (from both cash and credit transactions), before commissions and discounts
      for
      prompt or cash payments, from rentals or sales of rooms, stores, offices,
      meeting space, exhibit space, or sales space of every kind; license, lease,
      and
      concession fees and rentals (not including gross receipts of licensees, lessees,
      and concessionaires); net income from vending machines; health club membership
      fees; food and beverage sales; sales of merchandise (other than proceeds from
      the sale of FF&E no longer necessary to the operation of such Real Property
      or Real Properties); service charges, to the extent not distributed to the
      employees at such Real Property or Real Properties as, or in lieu of,
      gratuities; and proceeds, if any, from business interruption or other loss
      of
      income insurance; provided,
      however,
      that
      Gross Revenues shall not include the following: gratuities to employees of
      such
      Real Property or Real Properties; federal, state, or municipal excise, sales,
      use, or similar taxes collected directly from tenants, patrons, or guests or
      included as part of the sales price of any goods or services; insurance proceeds
      (other than proceeds from business interruption or other loss of income
      insurance); condemnation proceeds; or any proceeds from any sale of such Real
      Property or Real Properties.

     

    “Ground
      Lease” means,
      (a) that certain sublease of a ground lease covering a portion of the Borrowing
      Base Property known as “Renaissance Tampa”, (b) that certain sublease of a
      ground lease covering a portion of the Borrowing Base Property known as
“Holiday
      Inn Louisville -Southwest”,
      and
      (c) any other ground lease of Property that is admitted into and remains part
      of
      the Borrowing Base after the Closing Date pursuant to Section 4.02
      and that
      is approved by the Required Lenders.

     

    “Guarantee”
      means,
      as to any Person, (a) any obligation, contingent or otherwise, of such Person
      guaranteeing or having the economic effect of guaranteeing any Indebtedness
      or
      other obligation payable or performable by another Person (the “primary
      obligor”) in any manner, whether directly or indirectly, and including any
      obligation of such Person, direct or indirect, (i) to purchase or pay (or
      advance or supply funds for the purchase or payment of) such Indebtedness or
      other obligation, (ii) to purchase or lease property, securities or services
      for
      the purpose of assuring the obligee in respect of such Indebtedness or other
      obligation of the payment or performance of such Indebtedness or other
      obligation, (iii) to maintain working capital, equity capital or any other
      financial statement condition or liquidity or level of income or cash flow
      of
      the primary obligor so as to enable the primary obligor to pay such Indebtedness
      or other obligation, or (iv) entered into for the purpose of assuring in any
      other manner the obligee in respect of such Indebtedness or other obligation
      of
      the payment or performance thereof or to protect such obligee against loss
      in
      respect thereof (in whole or in part), or (b) any Lien on any assets of such
      Person securing any Indebtedness or other obligation of any other Person,
      whether or not such Indebtedness or other obligation is assumed by such Person.
      The amount of any Guarantee shall be 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    deemed
      to
      be an amount equal to the stated or determinable amount of the related primary
      obligation, or portion thereof, in respect of which such Guarantee is made
      or,
      if not stated or determinable, the maximum reasonably anticipated liability
      in
      respect thereof as determined by the guaranteeing Person in good faith. The
      term
“Guarantee” as a verb has a corresponding meaning.

     

    “Guaranties”
      means
      the Parent Guaranty and the Subsidiary Guaranties, and “Guaranty”
      means
      any one of the Guaranties.

     

    “Guarantors”
      means,
      collectively, Parent and each Subsidiary Guarantor, and “Guarantor”
      means
      any one of the Guarantors.

     

    “Hazardous
      Material”
      means any
      substance, whether solid, liquid, or gaseous: which is listed, defined, or
      regulated as a “ hazardous substance,”“hazardous waste,”“pollutants,” or “solid
      waste,” or otherwise classified as hazardous or toxic, in or pursuant to any
      Environmental Requirement; or which is or contains infectious or medical wastes,
      asbestos, asbestos containing materials, radon, any polychlorinated biphenyl,
      urea formaldehyde foam insulation, explosive or radioactive material, or motor
      fuel, or other petroleum hydrocarbons, or petroleum distillates; or which causes
      or poses a threat to cause a contamination or nuisance on any Real Property
      or
      any adjacent property or a hazard to the environment or to the health or safety
      of persons on any Real Property.

     

    “Implied
      Debt Service”
      means,
      as of any date, the annual principal and interest payments required to amortize
      the Total Outstandings as of such date assuming equal monthly payments of
      principal and interest over a period of twenty-five (25) years at an annual
      rate
      of interest equal to the greater of (a) two and one-half of one percent (2.50%)
      in excess of the most recent rate published on such date in the United
      States Federal Reserve Statistical Release (H.15)
      for
      7-year Treasury Constant Maturities, and (b) six and one-half percent
      (6.5%).

     

    “Implied
      Loan Amount”
      has the
      meaning specified in Section 4.01(b).

     

    “Improvements”
      means
      all on-site and off-site improvements to the Borrowing Base Properties, together
      with all fixtures, tenant improvements, and appurtenances now or later to be
      located on the Borrowing Base Properties and/or in such
      improvements.

     

    “Increasing
      Lender”
      has the
      meaning specified in Section 2.13(b).

     

    “Indebtedness”
      means,
      as to any Person at a particular time, without duplication, all of the
      following, whether or not included as indebtedness or liabilities in accordance
      with GAAP:

     

    (a) all
      obligations of such Person for borrowed money and all obligations of such Person
      evidenced by bonds, debentures, notes, loan agreements or other similar
      instruments;

     

    (b) all
      direct or contingent obligations of such Person arising under letters of credit
      (including standby and commercial), bankers’ acceptances, bank guaranties,
      surety bonds and similar instruments;

     

    (c) net
      obligations of such Person under any Swap Contract;

     

    (d) all
      obligations of such Person to pay the deferred purchase price of property or
      services (other than trade accounts payable in the ordinary course of
      business);

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (e) indebtedness
      (excluding prepaid interest thereon) secured by a Lien on property owned or
      being purchased by such Person (including indebtedness arising under conditional
      sales or other title retention agreements), whether or not such indebtedness
      shall have been assumed by such Person or is limited in recourse;

     

    (f) capital
      leases and Synthetic Lease Obligations; and 

     

    (g) all
      Guarantees of such Person in respect of any of the foregoing.

     

    For
      all
      purposes hereof, the Indebtedness of any Person shall include Indebtedness
      of
      any other Person (other than a Subsidiary of such Person) in which such Person
      owns an interest to the extent such Indebtedness is recourse to such interest
      owning Person (and only in such amount). The amount of any net obligation under
      any Swap Contract on any date shall be deemed to be the Swap Termination Value
      thereof as of such date. The amount of any capital lease or Synthetic Lease
      Obligation as of any date shall be deemed to be the amount of Attributable
      Indebtedness in respect thereof as of such date.

     

    “Indemnified
      Liabilities”
      has the
      meaning specified in Section 11.05.

     

    “Indemnitees”
      has the
      meaning specified in Section 11.05.

     

    “Initial
      Borrowing Base Properties”
      means
      the Properties listed on Schedule 4.01,
      and
“Initial
      Borrowing Base Property”
      means
      any one of the Initial Borrowing Base Properties.

     

    “Insurance
      Proceeds”
      has the
      meaning specified in Section 7.16.

     

    “Interest
      Payment Date”
      means,
      (a) as to any Loan other than a Base Rate Loan, the last day of each Interest
      Period applicable to such Loan and the Maturity Date; provided,
      however,
      that if
      any Interest Period for a Eurodollar Rate Loan exceeds three (3) months, the
      respective dates that fall every three (3) months after the beginning of such
      Interest Period shall also be Interest Payment Dates; and (b) as to any Base
      Rate Loan, the last Business Day of each month and the Maturity
      Date.

     

    “Interest
      Period”
      means,
      as to each Eurodollar Rate Loan, the period commencing on the date such
      Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar
      Rate Loan and ending on the date one (1), two (2), three (3), or six (6) months
      thereafter, as selected by Borrower in its Loan Notice; provided that:

     

    (i) any
      Interest Period that would otherwise end on a day that is not a Business Day
      shall be extended to the next succeeding Business Day unless such Business
      Day
      falls in another calendar month, in which case such Interest Period shall end
      on
      the next preceding Business Day;

     

    (ii) any
      Interest Period that begins on the last Business Day of a calendar month (or
      on
      a day for which there is no numerically corresponding day in the calendar month
      at the end of such Interest Period) shall end on the last Business Day of the
      calendar month at the end of such Interest Period; and

     

    (iii) no
      Interest Period shall extend beyond the Maturity Date.

     

    “Investment”
      means,
      as to any Person, any direct or indirect acquisition or investment by such
      Person, whether by means of (a) the purchase or other acquisition of capital
      stock or other securities of 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    another
      Person, (b) a loan, advance, or capital contribution to, Guarantee or assumption
      of debt of, or purchase or other acquisition of any other debt or equity
      participation or interest in, another Person, including any partnership or
      joint
      venture interest in such other Person, or (c) the purchase or other acquisition,
      whether in one transaction or a series of transactions, of assets of another
      Person that constitute a business unit. For purposes of covenant compliance,
      the
      amount of any Investment shall be the amount actually invested, without
      adjustment for subsequent increases or decreases in the value of such
      Investment.

     

    “IP
      Rights”
      has the
      meaning specified in Section 6.16.

     

    “IRS”
      means
      the United States Internal Revenue Service.

     

    “Laws”
      means,
      collectively, all international, foreign, Federal, state, and local statutes,
      treaties, rules, guidelines, regulations, ordinances, codes, and administrative
      or judicial precedents or authorities, including the interpretation, or
      administration thereof by any Governmental Authority charged with the
      enforcement, interpretation or administration thereof, and all applicable
      administrative orders, directed duties, requests, licenses, authorizations,
      and
      permits of, and agreements with, any Governmental Authority, in each case
      whether or not having the force of law.

     

    “L/C
      Advance”
      means,
      with respect to each Lender, such Lender’s funding of its participation in any
      L/C Borrowing in accordance with its Pro Rata Share.

     

    “L/C
      Borrowing”
      means
      an extension of credit resulting from a drawing under any Letter of Credit
      which
      has not been reimbursed on the date when made or refinanced as a
      Borrowing.

     

    “L/C
      Credit Extension”
      means,
      with respect to any Letter of Credit, the issuance thereof or extension of
      the
      expiry date thereof, or the renewal or increase of the amount
      thereof.

     

    “L/C
      Issuer”
      means
      Bank of America or any successor issuer of Letters of Credit hereunder.


     

    “L/C
      Obligations”
      means,
      as at any date of determination, the amount available to be drawn under all
      outstanding Letters of Credit plus
      the
      aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For all
      purposes of this Agreement, if on any date of determination a Letter of Credit
      has expired by its terms but any amount may still be drawn thereunder by reason
      of the operation of Rule 3.14 of the “International Standby Practices 1998”
      published by the Institute of International Banking Law & Practice (or such
      later version as may be in effect at the time of issuance), then such Letter
      of
      Credit shall be deemed to be “outstanding” in such remaining amount available to
      be drawn. For purposes of computing the amount available to be drawn under
      any
      Letter of Credit, the amount of such Letter of Credit shall be determined in
      accordance with Section 1.07.

     

    “Lease”
      means
      each existing or future lease, sublease (to the extent of any Loan Party’s
      rights thereunder), or other agreement under the terms of which any person
      has
      or acquires any right to occupy or use any Borrowing Base Property, or any
      part
      thereof, or interest therein, and each existing or future guaranty of payment
      or
      performance thereunder, and all extensions, renewals, modifications, and
      replacements of each such lease, sublease, agreement, or guaranty.

     

    “Lender”
      has the
      meaning specified in the introductory paragraph hereto and, as the context
      requires, includes the L/C Issuer.

     

    “Lender
      Reply Period”
      has the
      meaning specified in Section 10.13.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Lending
      Office”
      means,
      as to any Lender, the office or offices of such Lender described as such in
      such
      Lender’s Administrative Questionnaire, or such other office or offices as a
      Lender may from time to time notify Borrower and Administrative
      Agent.

     

    “Letter
      of Credit”
      means
      any letter of credit issued hereunder pursuant
      to Section 2.03.
      Each
      Letter of Credit shall be a standby letter of credit.

     

    “Letter
      of Credit Application”
      means
      an application and agreement for the issuance or amendment of a Letter of Credit
      in the form from time to time in use by the L/C Issuer.

     

    “Letter
      of Credit Expiration Date”
      means
      the day that is thirty (30) days prior to the Maturity Date then in effect
      (or,
      if such day is not a Business Day, the next preceding Business
      Day).

     

    “Letter
      of Credit Sublimit”
      means
      an amount equal to $35,000,000. The Letter of Credit Sublimit is part of, and
      not in addition to, the Aggregate Commitments.

     

    “Lien”
      means
      any mortgage, pledge, hypothecation, assignment, deposit arrangement, monetary
      encumbrance, lien (statutory or other), charge, or preference, priority, or
      other security interest or preferential arrangement of any kind or nature
      whatsoever (including any conditional sale or other title retention agreement,
      and any financing lease having substantially the same economic effect as any
      of
      the foregoing).

     

    “Loan”
      means
      an extension of credit by a Lender to Borrower under Article II.

     

    “Loan
      Documents”
      means
      this Agreement, the Security Documents, each Note, the Fee Letter, and the
      Guaranties. 

     

    “Loan
      Notice”
      means a
      notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other,
      or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a),
      which,
      if in writing, shall be substantially in the form of Exhibit A.

     

    “Loan
      Parties”
      means,
      collectively, Borrower, Parent, and each
      other Guarantor.

     

    “Major
      Leverage Event”
      means
      the incurrence or the repayment by Parent or any of its Subsidiaries of
      Indebtedness of $400,000,000 or more.

     

    “Management
      Agreements”
      means
      each management agreement entered into by and between an Operating Lessee and
      each Manager, pursuant to which each Manager is to provide management and other
      services with respect to each applicable Borrowing Base Property, and
“Management
      Agreement”
      means
      any one of the Management Agreements.

     

    “Management
      Fee Reserves”
      means,
      with respect to any Borrowing Base Property or Person for any period, a reserve
      for management fees equal to the greater of (a) any actual management fees
      or
      (b) an assumed reserve of three percent (3%) of Gross Revenues of such Borrowing
      Base Property or Person’s Property for such period.

     

    “Manager
      Liquidity Facility Agreement”
      means a
      liquidity facility or similar arrangement pursuant to which a Manager or an
      Affiliate of such Manager agrees to extend credit to the lessee and/or owner
      of
      a Borrowing Base Property or for the benefit of a Borrowing Base
      Property.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Managers”
      means
      each manager of a Borrowing Base Property as set forth on Schedule 1.01(b)
      or such
      other entity selected as the manager of the applicable Borrowing Base Property
      in accordance with the terms of this Agreement, and “Manager”
      means
      any one of the Managers.

     

    “Material
      Adverse Effect”
      means:
      (a) a material adverse change in, or a material adverse effect upon, the
      operations, business, assets, properties, liabilities (actual or contingent),
      condition (financial or otherwise) or prospects of Parent and its Subsidiaries
      taken as a whole or Borrower and its Subsidiaries taken as a whole; (b) a
      material impairment of the ability of any Loan Party to perform its obligations
      under any Loan Document to which it is a party; or (c) a material adverse effect
      upon the legality, validity, binding effect or enforceability against any Loan
      Party of any Loan Document to which it is a party.

     

    “Material
      Agreement”
      means,
      for any Person or with respect to any Borrowing Base Property, any contract
      or
      agreement of such Person or with respect to such Borrowing Base Property the
      breach, violation, or termination of which could result in a Material Property
      Event.

     

    “Material
      Environmental Event” means,
      with respect to any Borrowing Base Property, (a) a violation of any
      Environmental Law with respect to such Borrowing Base Property, or (b) the
      presence of any Hazardous Materials on, about, or under such Borrowing Base
      Property that, under or pursuant to any Environmental Law, would require
      remediation, if in the case of either (a) or (b), such event or circumstance
      could reasonably be expected to result in a Material Adverse
      Effect.

     

    “Material
      Property Event”
      means,
      with respect to any Borrowing Base Property, the occurrence of any event
      or
      circumstance that could reasonably be expected to result in a (a) material
      adverse effect with respect to the financial condition or the operations of
      such
      Borrowing Base Property, (b) material adverse effect on the Appraised Value
      of
      such Borrowing Base Property, or (c) material adverse effect on the ownership
      of
      such Borrowing Base Property.

     

    “Material
      Title Defects”
      means,
      with respect to any Borrowing Base Property, defects, Liens (other than Liens
      for local real estate taxes and similar local governmental charges), and other
      encumbrances in the nature of easements, servitudes, restrictions, and
      rights-of-way that would customarily be deemed unacceptable title exceptions
      for
      a prudent lender (i.e.,
      a
      prudent lender would reasonably determine that such exceptions, individually
      or
      in the aggregate, materially impair the value or operations of the Borrowing
      Base Property in question, would prevent the Borrowing Base Property from being
      used in the manner in which it is currently being used, or which could
      reasonably be expected to result in a violation of Law which could result in
      a
      Material Property Event).

     

    “Maturity
      Date”
      means
      September 30, 2008.

     

    “Mortgages”
      means
      each Mortgage (or Deed of Trust, as applicable), Security Agreement, Financing
      Statement, and Assignment of Leases or similarly titled document, each executed
      by a Loan Party, to or for the benefit of Administrative Agent, for the ratable
      benefit of the Lenders, covering the Collateral.

     

    “Mortgagors”
      means,
      collectively, each Loan Party executing a Mortgage, and “Mortgagor”
      means
      any one of the Mortgagors. 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Multiemployer
      Plan”
      means
      any employee benefit plan of the type described in Section 4001(a)(3)
      of
      ERISA, to which Borrower or any ERISA Affiliate makes or is obligated to make
      contributions, or during the preceding five plan years, has made or been
      obligated to make contributions.

     

    “Net
      Proceeds”
      has the
      meaning specified in Section 7.16(b).

     

    “Net
      Proceeds Deficiency”
      has the
      meaning specified in Section 7.16(b)(vi).

     

    “Note”
      means a
      promissory note made by Borrower in favor of a Lender evidencing Loans made
      by
      such Lender, substantially in the form of Exhibit B.

     

    “Obligations”
      means
      all advances to, and debts, liabilities, obligations, covenants and duties
      of,
      any Loan Party arising under any Loan Document or otherwise with respect to
      any
      Loan or Letter of Credit, whether direct or indirect (including those acquired
      by assumption), absolute or contingent, due or to become due, now existing
      or
      hereafter arising and including interest and fees that accrue after the
      commencement by or against any Loan Party or any Affiliate thereof of any
      proceeding under any Debtor Relief Laws naming such Person as the debtor in
      such
      proceeding, regardless of whether such interest and fees are allowed claims
      in
      such proceeding; provided that
      all
      references to the “Obligations” in the Mortgages, Guaranties, other Security
      Documents, and other security or pledge agreements delivered to Administrative
      Agent to create or evidence Liens securing the Obligations shall, in addition
      to
      the foregoing, include all present and future indebtedness, liabilities, and
      obligations now or hereafter owed to any Lender or any Affiliate of any Lender
      arising from, by virtue of, or pursuant to any Swap Contract issued by a Lender
      or an Affiliate of a Lender.

     

    “Operating
      Leases”
      means
      each operating Lease entered into by and between an Operating Lessee, whether
      or
      not an Affiliate, and a Loan Party, which govern the operation of each
      applicable Borrowing Base Property, and “Operating
      Lease”
      means
      any one of the Operating Leases.

     

    “Operating
      Lessees”
      means
      each operating lessee of each Borrowing Base Property as set forth on
Schedule 1.01(a)
      or such
      other entity selected as the operating lessee of the applicable Borrowing Base
      Property in accordance with the terms of this Agreement and reasonably
      acceptable to Administrative Agent, and “Operating
      Lessee”
      means
      any one of the Operating Lessees.

     

    “Organization
      Documents”
      means:
      (a) with respect to any corporation, the certificate or articles of
      incorporation and the bylaws (or equivalent or comparable constitutive documents
      with respect to any non-U.S. jurisdiction); (b) with respect to any limited
      liability company, the certificate or articles of formation or organization
      and
      operating agreement; and (c) with respect to any partnership, joint venture,
      trust or other form of business entity, the partnership, joint venture or other
      applicable agreement of formation or organization and any agreement, instrument,
      filing or notice with respect thereto filed in connection with its formation
      or
      organization with the applicable Governmental Authority in the jurisdiction
      of
      its formation or organization and, if applicable, any certificate or articles
      of
      formation or organization of such entity.

     

    “Other
      Taxes”
      has the
      meaning specified in Section 3.01(b).

     

    “Outstanding
      Amount”
      means:
      (a) with respect to Loans on any date, the aggregate outstanding principal
      amount thereof after giving effect to any borrowings and prepayments or
      repayments of Loans, as the case may be, occurring on such date; and (b) with
      respect to any L/C Obligations on any date, the amount of such L/C Obligations
      on such date after giving effect to any L/C Credit Extension occurring on


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    such
      date
      and any other changes in the aggregate amount of the L/C Obligations as of
      such
      date, including as a result of any reimbursements of outstanding unpaid drawings
      under any Letters of Credit or any reductions in the maximum amount available
      for drawing under Letters of Credit taking effect on such date.

     

    “Parent
      Guaranty”
      means
      the Guaranty executed by Parent in favor of Administrative Agent on behalf
      of
      the Lenders, substantially in the form of Exhibit F-1.

     

    “Participant”
      has the
      meaning specified in Section 11.07(d).

     

    “PBGC”
      means
      the Pension Benefit Guaranty Corporation.

     

    “Pension
      Plan”
      means
      any “employee pension benefit plan” (as such term is defined in
      Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject
      to
      Title IV of ERISA and is sponsored or maintained by Borrower or any ERISA
      Affiliate or to which Borrower or any ERISA Affiliate contributes or has an
      obligation to contribute, or in the case of a multiple employer or other plan
      described in Section 4064(a) of ERISA, has made contributions at any
      time
      during the immediately preceding five plan years.

     

    “Permitted
      Distributions”
      means,
      as of any date, the sum of (a) $50,000,000, and (b) an amount equal to the
      sum
      of Parent’s Cash Available for Distribution for each fiscal quarter ending
      December 31, 2005 and thereafter through such date; provided that
      such
      amount shall not be less than the amount of Restricted Payments required for
      Parent to maintain its status as a REIT without incurring capital gains or
      other
      federal income taxes on gains from the sale or exchange of real estate assets
      owned by Parent and its Subsidiaries.

     

    “Person”
      means
      any natural person, corporation, limited liability company, trust, joint
      venture, association, company, partnership, Governmental Authority, or other
      entity.

     

    “Personal
      Property”
      has the
      meaning specified in the granting clause of the Mortgages.

     

    “Personal
      Property Collateral”
      means
      the Personal Property of a Mortgagor in which security interests are granted
      to
      Administrative Agent, for the benefit of the Lenders, under the Security
      Documents.

     

    “Plan”
      means
      any “employee benefit plan” (as such term is defined in Section 3(3) of
      ERISA) established by Borrower or, with respect to any such plan that is subject
      to Section 412 of the Code or Title IV of ERISA, any ERISA
      Affiliate.

     

    “Plans”
      means
      the plans and specifications for the Borrowing Base Properties, including
      existing or proposed Improvements, and all modifications thereof and additions
      thereto that are included as part of the Plans in accordance with the terms
      of
      this Agreement.

     

    “Pooling
      Agreements”
      means
      the Pooling Agreements identified on Schedule 6.28
      and any
      similar agreement containing similar provisions, among a Manager, the owner
      of a
      Borrowing Base Property, and/or the Operating Lessee of a Borrowing Base
      Property.

     

    “Pro
      Rata Share”
      means,
      with respect to each Lender at any time, a fraction (expressed as a percentage,
      carried out to the ninth decimal place), the numerator of which is the amount
      of
      the Commitment of such Lender at such time and the denominator of which is
      the
      amount of the Aggregate Commitments at such time; provided that
      if the
      commitment of each Lender to make Loans and the 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    obligation
      of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant
      to
Section 9.02,
      then
      the Pro Rata Share of each Lender shall be determined based on the Pro Rata
      Share of such Lender immediately prior to such termination and after giving
      effect to any subsequent assignments made pursuant to the terms hereof. The
      initial Pro Rata Share of each Lender is set forth opposite the name of such
      Lender on Schedule 2.01
      or in
      the Assignment and Assumption pursuant to which such Lender becomes a party
      hereto, as applicable.

     

    “Properties”
      means
      hotels, resorts, or other Real Property used for a substantially similar purpose
      owned by a Loan Party.

     

    “Property
      Information”
      has the
      meaning specified in Section 4.02(a).

     

    “Qualified
      Manager”
      means
      (a) each Manager listed on Schedule 1.01(c),
      and (b)
      any other Manager or a reputable and experienced professional management
      organization (i) which manages, together with its affiliates, hotel properties
      comparable to any relevant Borrowing Base Property and (ii) approved by
      Administrative Agent, which approval shall not have been unreasonably
      withheld.

     

    “Real
      Estate Collateral”
      means
      one or more Borrowing Base Properties owned by a Mortgagor that have otherwise
      been pledged or mortgaged to Administrative Agent, for the benefit of the
      Lenders.

     

    “Real
      Property”
      of any
      Person means all of the right, title, and interest of such Person in and to
      land, improvements, and fixtures, including ground leases.

     

    “REAs”
      means
      each construction, operation, and reciprocal easement agreements or similar
      agreements (including any separate agreements or other agreements between a
      Loan
      Party and one or more other parties to any REA with respect to such REA)
      affecting any Borrowing Base Property or portion thereof, and “REA”
      means
      any one of the REAs.

     

    “Register”
      has the
      meaning specified in Section 11.07(c).

     

    “REIT”
      means a
“real estate investment trust” for purposes of the Code.

     

    “Release
      Date”
      means
      the earlier of the following two dates: (i) the date on which the Obligations
      have been paid in full and the Mortgages have been released; or (ii) the date
      on
      which the Liens of the Mortgages are fully and finally foreclosed or a
      conveyance by deed in lieu of such foreclosure is fully and finally effective
      and possession of the Borrowing Base Properties has been given to and accepted
      by the purchaser or Administrative Agent free of occupancy and claims to
      occupancy by any Loan Party and their heirs, devisees, representatives,
      successors, and assigns; provided that,
      if such
      payment, performance, release, foreclosure, or conveyance is challenged, in
      bankruptcy proceedings or otherwise, the Release Date shall be deemed not to
      have occurred until such challenge is validly released, dismissed with
      prejudice, or otherwise barred by Law from further assertion.

     

    “Reportable
      Event”
      means
      any of the events set forth in Section 4043(c)
      of
      ERISA, other than events for which the thirty (30) day notice period has been
      waived.

     

    “Request
      for Credit Extension”
      means
      (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan
      Notice, and (b) with respect to an L/C Credit Extension, a Letter of Credit
      Application.

     

    “Required
      Lenders”
      means,
      as of any date of determination, Lenders having more
      than
      fifty-one percent (51%) of
      the
      Aggregate Commitments or, if the commitment of each Lender to make Loans and
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    the
      obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
      pursuant to Section 9.02,
      Lenders
      holding in the aggregate more
      than
      fifty-one percent (51%)
      of the
      Total Outstandings (with the aggregate amount of each Lender’s risk
      participation and funded participation in L/C Obligations being deemed “held” by
      such Lender for purposes of this definition); provided that
      the
      Commitment of, and the portion of the Total Outstandings held or deemed held
      by,
      any Defaulting Lender shall be excluded for purposes of making a determination
      of Required Lenders.

     

    “Responsible
      Officer”
      means
      the chief executive officer, president, chief financial officer, treasurer,
      or
      assistant treasurer of a Loan Party. Any document delivered hereunder that
      is
      signed by a Responsible Officer of a Loan Party shall be conclusively presumed
      to have been authorized by all necessary corporate, partnership and/or other
      action on the part of such Loan Party and such Responsible Officer shall be
      conclusively presumed to have acted on behalf of such Loan Party.

     

    “Restoration”
      means,
      following the occurrence of a Casualty or a Condemnation which is of a type
      necessitating the repair of a Borrowing Base Property, the completion of the
      repair and restoration of the Borrowing Base Property as nearly as possible
      to
      the condition the Borrowing Base Property was in immediately prior to such
      Casualty or Condemnation, with such alterations as may be reasonably approved
      by
      Administrative Agent, and in accordance with applicable Laws and the
      requirements of the applicable Management Agreement, Franchise Agreement, and
      Operating Lease.

     

    “Restoration
      Consultant”
      has the
      meaning specified in Section 7.16(b)(iii).

     

    “Restoration
      Retainage”
      has the
      meaning specified in Section 7.16(b)(iv).

     

    “Restricted
      Payment”
      means
      any dividend or other distribution (whether in cash, securities, or other
      property) with respect to any capital stock or other equity interest of Parent,
      Borrower, or any Subsidiary, or any payment (whether in cash, securities, or
      other property), including any sinking fund or similar deposit, on account
      of
      the purchase, redemption, retirement, acquisition, cancellation, or termination
      of any such capital stock or other equity interest or of any option, warrant
      or
      other right to acquire any such capital stock or other equity
      interest.

     

    “S&P”
      means
      Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
      Inc. and any successor thereto.

     

    “SEC”
      means
      the Securities and Exchange Commission, or any Governmental Authority succeeding
      to any of its principal functions.

     

    “Security
      Documents”
      means:

     

    (a)  the
      Mortgages;

     

    (b)  to
      the
      extent required by Law of the state where the applicable Borrowing Base Property
      is located, Assignments of Leases and Rents, executed by the applicable
      Mortgagor;

     

    (c)  financing
      statements to be filed with the appropriate state and/or county offices for
      the
      perfection of a security interest in any of the Collateral or any other
      collateral or security for the Obligations;

     

    (d)  assignments
      of all Material Agreements, executed by the applicable Mortgagor;

     

    (e)  Assignments
      of Management Agreement;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (f)  estoppel
      letters, consents, comfort letters, or other confirming agreements and/or
      non-disturbance agreements executed by (i) each Operating Lessee or other tenant
      under each Operating Lease, (ii) each Manager, (iii) each Franchisor, (iv)
      each
      ground lessor under a Ground Lease, and (v) such other parties to Material
      Agreements as Administrative Agent may request;

     

    (g)  opinions
      of counsels in form and substance acceptable to Administrative
      Agent;

     

    (h)  all
      other
      agreements, documents, and instruments evidencing, securing, or pertaining
      to
      the Obligations or any part thereof, as shall from time to time be executed
      and
      delivered by Borrower, Guarantors, any Manager, or any other Person in favor
      of
      Administrative Agent; and

     

    (i)  all
      renewals, extensions, and restatements of, and amendments and supplements to,
      any of the foregoing.

     

    “Share”
      means,
      for any Person, such Person’s share of the assets, liabilities, revenues,
      income, losses, or expenses of another Person (other than a Subsidiary) based
      upon such Person’s percentage ownership of the equity of such other
      Person.

     

    “Solvent”
      means,
      as to a Person, that (a) the aggregate fair market value of its assets exceeds
      its liabilities, (b) it has sufficient cash flow to enable it to pay its
      liabilities as they mature, and (c) it does not have unreasonably small capital
      to conduct its businesses.

     

    “Subsequent
      Lender”
      has the
      meaning specified in Section 2.13(b).

     

    “Subsidiary”
      of a
      Person means a corporation, partnership, joint venture, limited liability
      company, or other business entity of which a majority of the shares of
      securities or other interests having ordinary voting power for the election
      of
      directors or other governing body (other than securities or interests having
      such power only by reason of the happening of a contingency) are at the time
      beneficially owned, or the management of which is otherwise controlled, in
      each
      case directly or indirectly, through one or more intermediaries, or both, by
      such Person. Unless otherwise specified, all references herein to a “Subsidiary”
      or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of
      Parent.

     

    “Subsidiary
      Guaranties”
      means
      the Guaranties executed by each Subsidiary required to execute such Guaranty
      pursuant to Section 4.06
      in favor
      of Administrative Agent on behalf of the Lenders, substantially in the form
      of
Exhibit F-2,
      and
“Subsidiary
      Guaranty”
      means
      any one of the Subsidiary Guaranties.

     

    “Subsidiary
      Guarantor”
      means
      each Subsidiary that is party to the Subsidiary Guaranty.

     

    “Swap
      Contract”
      means
      (a) any and all rate swap transactions, basis swaps, credit derivative
      transactions, forward rate transactions, commodity swaps, commodity options,
      forward commodity contracts, equity or equity index swaps or options, bond
      or
      bond price or bond index swaps or options or forward bond or forward bond price
      or forward bond index transactions, interest rate options, forward foreign
      exchange transactions, cap transactions, floor transactions, collar
      transactions, currency swap transactions, cross-currency rate swap transactions,
      currency options, spot contracts, or any other similar transactions or any
      combination of any of the foregoing (including any options to enter into any
      of
      the foregoing), whether or not any such transaction is governed by or subject
      to
      any master agreement, and (b) any and all transactions of any kind, and the
      related confirmations, which are subject to the terms and conditions of, or
      governed by, any form of master agreement published by the International Swaps
      and 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Derivatives
      Association, Inc., any International Foreign Exchange Master Agreement, or
      any
      other master agreement (any such master agreement, together with any related
      schedules, a “Master
      Agreement”),
      including any such obligations or liabilities under any Master
      Agreement.

     

    “Swap
      Termination Value”
      means,
      in respect of any one or more Swap Contracts, after taking into account the
      effect of any legally enforceable netting agreement relating to such Swap
      Contracts, (a) for any date on or after the date such Swap Contracts have been
      closed out and termination value(s) determined in accordance therewith, such
      termination value(s), and (b) for any date prior to the date referenced in
      clause (a),
      the
      amount(s) determined as the mark-to-market value(s) for such Swap Contracts,
      as
      determined based upon one or more mid-market or other readily available
      quotations provided by any recognized dealer in such Swap Contracts (which
      may
      include a Lender or any Affiliate of a Lender).

     

    “Synthetic
      Lease Obligation”
      means
      the monetary obligation of a Person under (a) a so-called synthetic, off-balance
      sheet or tax retention lease, or (b) an agreement for the use or possession
      of
      property creating obligations that do not appear on the balance sheet of such
      Person but which, upon the insolvency or bankruptcy of such Person, would be
      characterized as the indebtedness of such Person (without regard to accounting
      treatment). 

     

    “Taxes”
      has the
      meaning specified in Section 3.01(a).

     

    “Threshold
      Amount”
      means
      $40,000,000.

     

    “Title
      Company”
      means
      LandAmerica Title Company, First American Title Insurance Company, or such
      other
      title insurance company acceptable to Administrative Agent.

     

    “Title
      Insurance Commitments”
      means
      the commitments to issue the Title Insurance Policies, issued by the Title
      Company for each Borrowing Base Property, along with copies of all instruments
      creating or evidencing exceptions or encumbrances to title.

     

    “Title
      Insurance Policies”
      means
      an ALTA or equivalent form of Mortgagee Title Insurance Policy from the Title
      Company and insuring the priority and sufficiency of the Mortgages as first
      Liens upon the applicable Borrowing Base Properties, (a) in an aggregate amount
      acceptable to Administrative Agent, (b) showing all easements or other matters
      affecting the Borrowing Base Properties, all subject only to such exceptions
      or
      qualifications as are reasonably acceptable to Administrative Agent, (c)
      insuring the priority of Administrative Agent’s Liens granted by the Mortgages
      against all possible contractors’, suppliers, and mechanics’ lien claims that
      heretofore or hereafter arise, as well as survey matters which could result
      in a
      Material Title Defect, and (d) containing any customary endorsements or
      assurances that Administrative Agent may request for protection of its interests
      including, but not limited to (i) zoning endorsements, (ii) variable rate
      endorsements, (iii) usury endorsements, (iv) revolving credit endorsements,
      (v)
      comprehensive endorsements, (vi) access endorsements, insuring that there will
      be at least one location at each Borrowing Base Property with unlimited
      vehicular ingress and egress to an adjacent street, and (vii) other customary
      endorsements requested by Administrative Agent and its counsel.

     

    “Total
      Outstandings”
      means
      the aggregate Outstanding Amount of all Loans and all L/C
      Obligations.

     

    “Type”
      means,
      with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
      Loan.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    “Unfunded
      Pension Liability”
      means
      the excess of a Pension Plan’s
      benefit
      liabilities under Section 4001(a)(16) of ERISA, over the current value
      of
      that Pension Plan’s
      assets,
      determined in accordance with the assumptions used for funding the Pension
      Plan
      pursuant to Section 412 of the Code for the applicable plan
      year.

     

    “United
      States”
      and
“U.S.”
      mean
      the United States of America.

     

    “Unreimbursed
      Amount”
      has the
      meaning specified in Section 2.03(c)(i).

     

    1.02  Other
      Interpretive Provisions

     

    .
      With
      reference to this Agreement and each other Loan Document, unless otherwise
      specified herein or in such other Loan Document:

     

    (a) The
      meanings of defined terms are equally applicable to the singular and plural
      forms of the defined terms.

     

    (b) (i) The
      words
“herein,”“hereto,”“hereof”
      and
“hereunder”
      and
      words of similar import when used in any Loan Document shall refer to such
      Loan
      Document as a whole and not to any particular provision thereof.

     

    (ii) Article,
      Section, Exhibit, and Schedule references are to the Loan Document in
      which
      such reference appears.

     

    (iii) The
      term
“including”
      is by
      way of example and not limitation.

     

    (iv) The
      term
“documents”
      includes any and all instruments, documents, agreements, certificates, notices,
      reports, financial statements and other writings, however evidenced, whether
      in
      physical or electronic form.

     

    (c) In
      the
      computation of periods of time from a specified date to a later specified date,
      the word “from”
      means
“from
      and including;”
      the
      words “to”
      and
“until”
      each
      mean “to
      but
      excluding;”
      and
      the word “through”
      means
“to
      and
      including.”

     

    (d) Section headings
      herein and in the other Loan Documents are included for convenience of reference
      only and shall not affect the interpretation of this Agreement or any other
      Loan
      Document.

     

    1.03  Accounting
      Terms

     

    .
      (a) All
      accounting terms not specifically or completely defined herein shall be
      construed in conformity with, and all financial data (including financial ratios
      and other financial calculations) required to be submitted pursuant to this
      Agreement shall be prepared in conformity with, GAAP applied on a consistent
      basis, as in effect from time to time, applied in a manner consistent with
      that
      used in preparing the Audited Financial Statements, except
      as
      otherwise specifically prescribed herein.

     

    (b) If
      at any
      time any change in GAAP would affect the computation of any financial ratio
      or
      requirement set forth in any Loan Document, and either Borrower or the Required
      Lenders shall so request, Administrative Agent, the Lenders, and Borrower shall
      negotiate in good faith to amend such ratio or requirement to preserve the
      original intent thereof in light of such change in GAAP (subject to the approval
      of the Required Lenders); provided that,
      until
      so amended, (i) such ratio or requirement shall continue to be computed in
      accordance with GAAP prior to such change therein and (ii) Borrower shall
      provide to Administrative Agent and the Lenders financial statements and other
      documents required 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    under
      this Agreement or as reasonably requested hereunder setting forth a
      reconciliation between calculations of such ratio or requirement made before
      and
      after giving effect to such change in GAAP.

     

    1.04  Rounding

     

    .
      Any
      financial ratios required to be maintained by Borrower pursuant to this
      Agreement shall be calculated by dividing
      the
      appropriate component by the other component, carrying
      the
      result to one place more than the number of places by which such ratio is
      expressed herein, and rounding
      the
      result up or down to the nearest number (with a rounding-up if there is no
      nearest number).

     

    1.05  References
      to Agreements and Laws

     

    .
      Unless
      otherwise expressly provided herein, (a) references to Organization Documents,
      agreements (including the Loan Documents) and other contractual instruments
      shall be deemed to include all subsequent amendments, restatements, extensions,
      supplements and other modifications thereto, but only to the extent that such
      amendments, restatements, extensions, supplements and other modifications are
      not prohibited by any Loan Document; and (b) references to any Law shall include
      all statutory and regulatory provisions consolidating, amending, replacing,
      supplementing or interpreting such Law.

     

    1.06  Times
      of Day

     

    .
      Unless
      otherwise specified, all references herein to times of day shall be references
      to Eastern
      time
      (daylight or standard, as applicable).

     

    1.07  Letter
      of Credit Amounts

     

    .
      Unless
      otherwise specified, all references herein to the amount of a Letter of Credit
      at any time shall be deemed to mean the maximum face amount of such Letter
      of
      Credit after giving effect to all increases thereof available under such Letter
      of Credit or the Letter of Credit Application therefor, whether or not such
      maximum face amount is in effect at such time.

     

    ARTICLE
      II.  

     

    THE
      COMMITMENTS AND CREDIT EXTENSIONS

     

    2.01  Loans

     

    .
      Subject
      to the terms and conditions set forth herein, each Lender severally agrees
      to
      make loans (each such loan, a “Loan”)
      to
      Borrower from time to time, on any Business Day during the Availability Period,
      in an aggregate amount not to exceed at any time outstanding the amount of
      such
      Lender’s Commitment; provided,
      however,
      that
      after giving effect to any Borrowing, (a) the Total Outstandings shall not
      exceed the lesser of (i) the Aggregate Commitments and (ii) the Borrowing Base,
      and (b) the aggregate Outstanding Amount of the Loans of any Lender,
plus
      such
      Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations shall
      not exceed such Lender’s Commitment. Within the limits of each Lender’s
      Commitment and the Borrowing Base, and subject to the other terms and conditions
      hereof, Borrower may borrow under this Section 2.01,
      prepay
      under Section 2.04,
      and
      reborrow under this Section 2.01.
      Loans
      may be Base Rate Loans or Eurodollar Rate Loans, as further provided
      herein.

     

    2.02  Borrowings,
      Conversions and Continuations of Loans.

     

    (a) Subject
      to satisfaction of all terms and conditions herein, each Borrowing, each
      conversion of Loans from one Type to the other, and each continuation of
      Eurodollar Rate Loans shall be made upon Borrower’s irrevocable notice to
      Administrative Agent, which may be given by telephone. Each such notice must
      be
      received by Administrative Agent not later than 11:00 a.m. (i) three (3)
      Business Days prior to the requested date of any Borrowing of, conversion to
      or
      continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
      Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of
      Base Rate Loans. Each telephonic notice by Borrower pursuant to this
Section 2.02(a)
      must be
      confirmed promptly by delivery to Administrative Agent of a written Loan Notice,
      appropriately completed and signed by a Responsible Officer of Borrower. Each
      Borrowing of, conversion to, or continuation of Eurodollar Rate Loans shall
      be
      in a principal amount of $5,000,000 or a 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    whole
      multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c),
      each
      Borrowing of or conversion to Base Rate Loans shall be in a principal amount
      of
      $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice
      (whether telephonic or written) shall specify (i) whether Borrower is requesting
      a Borrowing, a conversion of Loans from one Type to the other, or a continuation
      of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion,
      or continuation, as the case may be (which shall be a Business Day), (iii)
      the
      principal amount of Loans to be borrowed, converted, or continued, (iv) the
      Type
      of Loans to be borrowed or to which existing Loans are to be converted, and
      (v)
      if applicable, the duration of the Interest Period with respect thereto. If
      Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower fails
      to give a timely notice requesting a conversion or continuation, then the
      applicable Loans shall be made as, or converted to, Base Rate Loans. Any such
      automatic conversion to Base Rate Loans shall be effective as of the last day
      of
      the Interest Period then in effect with respect to the applicable Eurodollar
      Rate Loans. If Borrower requests a Borrowing of, conversion to, or continuation
      of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an
      Interest Period, it will be deemed to have specified an Interest Period of
      one
      (1) month.

     

    (b) Following
      receipt of a Loan Notice, Administrative Agent shall promptly notify each Lender
      of the amount of its Pro Rata Share of the applicable Loans, and if no timely
      notice of a conversion or continuation is provided by Borrower, Administrative
      Agent shall notify each Lender of the details of any automatic conversion to
      Base Rate Loans described in the preceding subsection. In the case of a
      Borrowing, each Lender shall make the amount of its Loan available to
      Administrative Agent in immediately available funds at Administrative
      Agent’s
      Office
      not later than 1:00 p.m. on the Business Day specified in the applicable Loan
      Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02
      (and, if
      such Borrowing is the initial Credit Extension, Section 5.01),
      Administrative Agent shall make all funds so received available to Borrower
      in
      like funds as received by Administrative Agent either by (i) crediting the
      account of Borrower on the books of Bank of America with the amount of such
      funds or (ii) wire transfer of such funds, in each case in accordance with
      instructions provided to (and reasonably acceptable to) Administrative Agent
      by
      Borrower; provided,
      however,
      that
      if, on the date the Loan Notice with respect to such Borrowing is given by
      Borrower, there are L/C Borrowings outstanding, then the proceeds of such
      Borrowing shall be applied, first,
      to the
      payment in full of any such L/C Borrowings, and second,
      to
      Borrower as provided above.

     

    (c) Except
      as
      otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
      only on the last day of an Interest Period for such Eurodollar Rate Loan. During
      the existence of a Default, no Loans may be requested as, converted to or
      continued as Eurodollar Rate Loans without the consent of the Required
      Lenders.

     

    (d) Administrative
      Agent shall promptly notify Borrower and the Lenders of the interest rate
      applicable to any Interest Period for Eurodollar Rate Loans upon determination
      of such interest rate. The determination of the Eurodollar Rate by
      Administrative Agent shall be conclusive in the absence of manifest error.
      At
      any time that Base Rate Loans are outstanding, Administrative Agent shall notify
      Borrower and the Lenders of any change in Bank of America’s prime rate used in
      determining the Base Rate promptly following the public announcement of such
      change.

     

    (e) After
      giving effect to all Borrowings, all conversions of Loans from one Type to
      the
      other, and all continuations of Loans as the same Type, there shall not be
      more
      than five (5) Interest Periods in effect with respect to Loans.

     

    (f) Notwithstanding
      the foregoing, the initial Borrowing hereunder on the Closing Date shall be
      made
      upon one (1) Business Day’s prior, written notice and shall be a Eurodollar Rate
      Loan.

     

    2.03  Letters
      of Credit.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (a) The
      Letter of Credit Commitment.

     

    (i) Subject
      to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
      reliance upon the agreements of the other Lenders set forth in this Section 2.03,
      (1)
      from time to time on any Business Day during the period from the Closing Date
      until the Letter of Credit Expiration Date, to issue Letters of Credit for
      the
      account of Borrower, and to amend or renew Letters of Credit previously issued
      by it, in accordance with subsection (b) below, and (2) to honor drafts under
      the Letters of Credit; and (B) the Lenders severally agree to participate in
      Letters of Credit issued for the account of Borrower; provided that
      the L/C
      Issuer shall not be obligated to make any L/C Credit Extension with respect
      to
      any Letter of Credit, and no Lender shall be obligated to participate in any
      Letter of Credit if as of the date of such L/C Credit Extension, (x) the Total
      Outstandings would exceed the lesser of the Borrowing Base and the Aggregate
      Commitments, (y) the aggregate Outstanding Amount of the Loans of any Lender,
      plus
      such
      Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations would
      exceed such Lender’s Commitment, or (z) the Outstanding Amount of the L/C
      Obligations would exceed the Letter of Credit Sublimit. Within the foregoing
      limits, and subject to the terms and conditions hereof, Borrower’s ability to
      obtain Letters of Credit shall be fully revolving, and accordingly Borrower
      may,
      during the foregoing period, obtain Letters of Credit to replace Letters of
      Credit that have expired or that have been drawn upon and
      reimbursed.

     

    (ii) The
      L/C
      Issuer shall be under no obligation to issue any Letter of Credit
      if:

     

    (A) any
      order, judgment, or decree of any Governmental Authority or arbitrator shall
      by
      its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter
      of Credit, or any Law applicable to the L/C Issuer or any request or directive
      (whether or not having the force of law) from any Governmental Authority with
      jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
      refrain from, the issuance of letters of credit generally or such Letter of
      Credit in particular or shall impose upon the L/C Issuer with respect to such
      Letter of Credit any restriction, reserve or capital requirement (for which
      the
      L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing
      Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost, or
      expense which was not applicable on the Closing Date and which the L/C Issuer
      in
      good faith deems material to it;

     

    (B) subject
      to Section 2.03(b)(iii),
      the
      expiry date of such requested Letter of Credit would occur more than twelve
      (12)
      months after the date of issuance or last renewal, unless the Required Lenders
      have approved such expiry date;

     

    (C) the
      expiry date of such requested Letter of Credit would occur after the Letter
      of
      Credit Expiration Date, unless all the Lenders have approved such expiry
      date;

     

    (D) the
      issuance of such Letter of Credit would violate one or more policies of the
      L/C
      Issuer; or

     

    (E) such
      Letter of Credit is in an initial amount less than $500,000.

     

    (iii) The
      L/C
      Issuer shall be under no obligation to amend any Letter of Credit if (A) the
      L/C
      Issuer would have no obligation at such time to issue such Letter of Credit
      in
      its amended 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    form
      under the terms hereof, or (B) the beneficiary of such Letter of Credit does
      not
      accept the proposed amendment to such Letter of Credit.

     

    (iv)
       The
      L/C
      Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
      issued by it and the documents associated therewith, and the L/C Issuer shall
      have all of the benefits and immunities (A) provided to Administrative
      Agent in Article
      IX
      with
      respect to any acts taken or omissions suffered by the L/C Issuer in connection
      with Letters of Credit issued by it or proposed to be issued by it and Issuer
      Documents pertaining to such Letters of Credit as fully as if the term
“Administrative Agent” as used in Article
      IX
      included
      the L/C Issuer with respect to such acts or omissions, and (B) as additionally
      provided herein with respect to the L/C Issuer.

     

    (b) Procedures
      for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
      Credit.

     

    (i) Each
      Letter of Credit shall be issued or amended, as the case may be, upon the
      request of Borrower delivered to the L/C Issuer (with a copy to Administrative
      Agent) in the form of a Letter of Credit Application, appropriately completed
      and signed by a Responsible Officer of Borrower. Such Letter of Credit
      Application must be received by the L/C Issuer and Administrative Agent not
      later than 11:00 a.m. at least five (5) Business Days (or such later date and
      time as the L/C Issuer may agree in a particular instance in its sole
      discretion) prior to the proposed issuance date or date of amendment, as the
      case may be. In the case of a request for an initial issuance of a Letter of
      Credit, such Letter of Credit Application shall specify in form and detail
      satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
      Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
      the expiry date thereof; (D) the name and address of the beneficiary thereof;
      (E) the documents to be presented by such beneficiary in case of any drawing
      thereunder; (F) the full text of any certificate to be presented by such
      beneficiary in case of any drawing thereunder; and (G) such other matters as
      the
      L/C Issuer may require. In the case of a request for an amendment of any
      outstanding Letter of Credit, such Letter of Credit Application shall specify
      in
      form and detail satisfactory to the L/C Issuer: (w) the Letter of Credit to
      be
      amended; (x) the proposed date of amendment thereof (which shall be a Business
      Day); (y) the nature of the proposed amendment; and (z) such other matters
      as
      the L/C Issuer may require. All Existing Letters of Credit shall be deemed
      to
      have been issued pursuant hereto, and from and after the Closing Date shall
      be
      subject to and governed by the terms and conditions hereof.

     

    (ii) Promptly
      after receipt of any Letter of Credit Application, the L/C Issuer will confirm
      with Administrative Agent (by telephone or in writing) that Administrative
      Agent
      has received a copy of such Letter of Credit Application from Borrower and,
      if
      not, the L/C Issuer will provide Administrative Agent with a copy thereof.
      Upon
      receipt by the L/C Issuer of confirmation from Administrative Agent that the
      requested issuance or amendment is permitted in accordance with the terms
      hereof, then, subject to the terms and conditions hereof, the L/C Issuer shall,
      on the requested date, issue a Letter of Credit for the account of Borrower
      or
      enter into the applicable amendment, as the case may be, in each case in
      accordance with the L/C Issuer's usual and customary business practices.
      Immediately upon the issuance of each Letter of Credit, each Lender shall be
      deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
      the L/C Issuer a risk participation in such Letter of Credit in an amount equal
      to the product of such Lender’s Pro Rata Share times
      the
      amount of such Letter of Credit.

     

    (iii) If
      Borrower so requests in any applicable Letter of Credit Application, the L/C
      Issuer may, in its sole and absolute discretion, agree to issue a Letter of
      Credit that has automatic 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    extension
      provisions (each, an “Auto-Extension
      Letter of Credit”);
      provided that
      any such
      Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such
      extension at least once in each twelve-month period (commencing with the date
      of
      issuance of such Letter of Credit) by giving prior notice to the beneficiary
      thereof not later than a day (the “Nonextension
      Notice Date”)
      in
      each such twelve-month period to be agreed upon at the time such Letter of
      Credit is issued. Unless otherwise directed by the L/C Issuer, Borrower shall
      not be required to make a specific request to the L/C Issuer for any such
      extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders
      shall be deemed to have authorized (but may not require) the L/C Issuer to
      permit the extension of such Letter of Credit at any time to an expiry date
      not
      later than the Letter of Credit Expiration Date; provided,
      however,
      that
      the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has
      determined that it would have no obligation at such time to issue such Letter
      of
      Credit in its extended form under the terms hereof (by reason of the provisions
      of Section 2.03(a)(ii)
      or
      otherwise), or (B) it has received notice (which may be by telephone or in
      writing) on or before the day that is five (5) Business Days before the
      Nonextension Notice Date (1) from Administrative Agent that the Required Lenders
      have elected not to permit such extension or (2) from Administrative Agent,
      any
      Lender or Borrower that one or more of the applicable conditions specified
      in
Section 5.02
      is not
      then satisfied.

     

    (iv) Promptly
      after its delivery of any Letter of Credit or any amendment to a Letter of
      Credit to an advising bank with respect thereto or to the beneficiary thereof,
      the L/C Issuer will also deliver to Borrower and Administrative Agent a true
      and
      complete copy of such Letter of Credit or amendment.

     

    (v) Administrative
      Agent and L/C Issuer shall provide to Lenders periodic information, but not
      more
      often than quarterly, regarding outstanding Letters of Credit (including issue
      date, expiry date, beneficiary, and amount), the L/C Obligations, and each
      Lender’s Pro Rata Share thereof.

     

    (c) Drawings
      and Reimbursements; Funding of Participations.

     

    (i) Upon
      receipt from the beneficiary of any Letter of Credit of any notice of a drawing
      under such Letter of Credit, the L/C Issuer shall notify Borrower and
      Administrative Agent thereof. Not later than 11:00 a.m. on the date of any
      payment by the L/C Issuer under a Letter of Credit (each such date, an
“Honor
      Date”),
      Borrower shall reimburse the L/C Issuer through Administrative Agent in an
      amount equal to the amount of such drawing. If Borrower fails to so reimburse
      the L/C Issuer by such time, Administrative Agent shall promptly notify each
      Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed
      Amount”),
      and
      the amount of such Lender’s Pro Rata Share thereof. In such event, Borrower
      shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed
      on the Honor Date in an amount equal to the Unreimbursed Amount, without regard
      to the minimum and multiples specified in Section 2.02
      for the
      principal amount of Base Rate Loans, but subject to the amount of the unutilized
      portion of the Aggregate Commitments and the conditions set forth in
Section 5.02
      (other
      than the delivery of a Loan Notice). Any notice given by the L/C Issuer or
      Administrative Agent pursuant to this Section 2.03(c)(i)
      may be
      given by telephone if immediately confirmed in writing; provided that
      the lack
      of such an immediate confirmation shall not affect the conclusiveness or binding
      effect of such notice.

     

    (ii) Each
      Lender (including the Lender acting as L/C Issuer) shall upon any notice
      pursuant to Section 2.03(c)(i)
      make
      funds available to Administrative Agent for the account of the L/C Issuer at
      Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
      Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
      in
      such notice by 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Administrative
      Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
      each
      Lender that so makes funds available shall be deemed to have made a Base Rate
      Loan to Borrower in such amount. Administrative Agent shall remit the funds
      so
      received to the L/C Issuer.

     

    (iii) With
      respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
      of Base Rate Loans because the conditions set forth in Section 5.02
      cannot
      be satisfied or for any other reason, Borrower shall be deemed to have incurred
      from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount
      that is not so refinanced, which L/C Borrowing shall be due and payable on
      demand (together with interest) and shall bear interest at the Default Rate.
      In
      such event, each Lender’s payment to Administrative Agent for the account of the
      L/C Issuer pursuant to Section 2.03(c)(ii)
      shall be
      deemed payment in respect of its participation in such L/C Borrowing and shall
      constitute an L/C Advance from such Lender in satisfaction of its participation
      obligation under this Section 2.03.

     

    (iv) Until
      each Lender funds its Loan or L/C Advance pursuant to this Section 2.03(c)
      to
      reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
      interest in respect of such Lender’s Pro Rata Share of such amount shall be
      solely for the account of the L/C Issuer.

     

    (v) Each
      Lender’s obligation to make Loans or L/C Advances to reimburse the L/C Issuer
      for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
      shall
      be absolute and unconditional and shall not be affected by any circumstance,
      including (A) any set-off, counterclaim, recoupment, defense, or other right
      which such Lender may have against the L/C Issuer, Borrower or any other Person
      for any reason whatsoever; (B) the occurrence or continuance of a Default,
      or
      (C) any other occurrence, event, or condition, whether or not similar to any
      of
      the foregoing; provided,
      however,
      that
      each Lender’s obligation to make Loans pursuant to this Section 2.03(c)
      is
      subject to the conditions set forth in Section 5.02
      (other
      than delivery by Borrower of a Loan Notice). No such making of a L/C Advance
      shall relieve or otherwise impair the obligation of Borrower to reimburse the
      L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter
      of Credit, together with interest as provided herein.

     

    (vi) If
      any
      Lender fails to make available to Administrative Agent for the account of the
      L/C Issuer any amount required to be paid by such Lender pursuant to the
      foregoing provisions of this Section 2.03(c)
      by the
      time specified in Section 2.03(c)(ii),
      the L/C
      Issuer shall be entitled to recover from such Lender (acting through
      Administrative Agent), upon demand, such amount with interest thereon for the
      period from the date such payment is required to the date on which such payment
      is immediately available to the L/C Issuer, at a rate per annum equal to the
      Federal Funds Rate from time to time in effect. A certificate of the L/C Issuer
      submitted to any Lender (through Administrative Agent) with respect to any
      amounts owing under this clause shall be conclusive absent manifest
      error.

     

    (d) Repayment
      of Participations.

     

    (i) At
      any
      time after the L/C Issuer has made a payment under any Letter of Credit and
      has
      received from any Lender such Lender’s L/C Advance in respect of such payment in
      accordance with Section 2.03(c),
      if
      Administrative Agent receives for the account of the L/C Issuer any payment
      in
      respect of the related Unreimbursed Amount or interest thereon (whether directly
      from Borrower or otherwise, including proceeds of Cash Collateral applied
      thereto by Administrative Agent), Administrative Agent will distribute to such
      Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
      interest payments, to reflect the period of time during which such Lender’s L/C
      Advance was outstanding) in the same funds as those received by Administrative
      Agent.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (ii) If
      any
      payment received by Administrative Agent for the account of the L/C Issuer
      pursuant to Section 2.03(c)(i)
      is
      required to be returned under any of the circumstances described in Section 11.06
      (including pursuant to any settlement entered into by the L/C Issuer in its
      discretion), each Lender shall pay to Administrative Agent for the account
      of
      the L/C Issuer its Pro Rata Share thereof on demand of Administrative Agent,
      plus interest thereon from the date of such demand to the date such amount
      is
      returned by such Lender, at a rate per annum equal to the Federal Funds Rate
      from time to time in effect.

     

    (e) Obligations
      Absolute. The
      obligation of Borrower to reimburse the L/C Issuer for each drawing under each
      Letter of Credit and to repay each L/C Borrowing shall be absolute,
      unconditional and irrevocable, and shall be paid strictly in accordance with
      the
      terms of this Agreement under all circumstances, including the
      following:

     

    (i) any
      lack
      of validity or enforceability of such Letter of Credit, this Agreement, or
      any
      other agreement or instrument relating thereto;

     

    (ii) the
      existence of any claim, counterclaim, set-off, defense, or other right that
      Borrower may have at any time against any beneficiary or any transferee of
      such
      Letter of Credit (or any Person for whom any such beneficiary or any such
      transferee may be acting), the L/C Issuer or any other Person, whether in
      connection with this Agreement, the transactions contemplated hereby or by
      such
      Letter of Credit or any agreement or instrument relating thereto, or any
      unrelated transaction;

     

    (iii) any
      draft, demand, certificate, or other document presented under such Letter of
      Credit proving to be forged, fraudulent, invalid, or insufficient in any respect
      or any statement therein being untrue or inaccurate in any respect; or any
      loss
      or delay in the transmission or otherwise of any document required in order
      to
      make a drawing under such Letter of Credit;

     

    (iv) any
      payment by the L/C Issuer under such Letter of Credit against presentation
      of a
      draft or certificate that does not strictly comply with the terms of such Letter
      of Credit; or any payment made by the L/C Issuer under such Letter of Credit
      to
      any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
      assignee for the benefit of creditors, liquidator, receiver, or other
      representative of or successor to any beneficiary or any transferee of such
      Letter of Credit, including any arising in connection with any proceeding under
      any Debtor Relief Law; or

     

    (v) any
      other
      circumstance or happening whatsoever, whether or not similar to any of the
      foregoing, including any other circumstance that might otherwise constitute
      a
      defense available to, or a discharge of, Borrower.

     

    Borrower
      shall promptly examine a copy of each Letter of Credit and each amendment
      thereto that is delivered to it and, in the event of any claim of noncompliance
      with Borrower’s
      instructions or other irregularity, Borrower will immediately notify the L/C
      Issuer. Borrower shall be conclusively deemed to have waived any such claim
      against the L/C Issuer and its correspondents unless such notice is
      given.

     

    (f) Role
      of L/C Issuer. Each
      Lender and Borrower agree that, in paying any drawing under a Letter of Credit,
      the L/C Issuer shall not have any responsibility to obtain any document (other
      than any sight draft, certificates and documents expressly required by the
      Letter of Credit) or to ascertain or inquire 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    as
      to the
      validity or accuracy of any such document or the authority of the Person
      executing or delivering any such document. None of the L/C Issuer, any
      Agent-Related Person, nor any of the respective correspondents, participants
      or
      assignees of the L/C Issuer shall be liable to any Lender for: (i) any action
      taken or omitted in connection herewith at the request or with the approval
      of
      the Lenders or the Required Lenders, as applicable; (ii) any action taken or
      omitted in the absence of gross negligence or willful misconduct; or (iii)
      the
      due execution, effectiveness, validity, or enforceability of any document or
      instrument related to any Letter of Credit or Letter of Credit Application.
      Borrower hereby assumes all risks of the acts or omissions of any beneficiary
      or
      transferee with respect to its use of any Letter of Credit; provided,
      however,
      that
      this assumption is not intended to, and shall not, preclude Borrower’s
      pursuing such rights and remedies as it may have against the beneficiary or
      transferee at law or under any other agreement. None of the L/C Issuer, any
      Agent-Related Person, nor any of the respective correspondents, participants
      or
      assignees of the L/C Issuer, shall be liable or responsible for any of the
      matters described in clauses (i) through (v) of Section 2.03(e);
      provided,
      however,
      that
      anything in such clauses to the contrary notwithstanding, Borrower may have
      a
      claim against the L/C Issuer, and the L/C Issuer may be liable to Borrower,
      to
      the extent, but only to the extent, of any direct, as opposed to consequential
      or exemplary, damages suffered by Borrower which Borrower proves were caused
      by
      the L/C Issuer's willful misconduct or gross negligence or the L/C Issuer's
      willful failure to pay under any Letter of Credit after the presentation to
      it
      by the beneficiary of a sight draft and certificate(s) strictly complying with
      the terms and conditions of a Letter of Credit. 
      In
      furtherance and not in limitation of the foregoing, the L/C Issuer may accept
      documents that appear on their face to be in order, without responsibility
      for
      further investigation, regardless of any notice or information to the contrary,
      and the L/C Issuer shall not be responsible for the validity or sufficiency
      of
      any instrument transferring or assigning or purporting to transfer or assign
      a
      Letter of Credit or the rights or benefits thereunder or proceeds thereof,
      in
      whole or in part, which may prove to be invalid or ineffective for any
      reason.

     

    (g) Cash
      Collateral.
      Upon
      the request of Administrative Agent, (i) if the L/C Issuer has honored any
      full
      or partial drawing request under any Letter of Credit and such drawing has
      resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration
      Date, any Letter of Credit may for any reason remain outstanding and partially
      or wholly undrawn, Borrower shall immediately Cash Collateralize the then
      Outstanding Amount of all L/C Obligations (in an amount equal to such
      Outstanding Amount determined as of the date of such L/C Borrowing or the Letter
      of Credit Expiration Date, as the case may be). For purposes hereof,
“Cash
      Collateralize”
      means
      to pledge and deposit with or deliver to Administrative Agent, for the benefit
      of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash
      or deposit account balances pursuant to documentation in form and substance
      satisfactory to Administrative Agent and the L/C Issuer (which documents are
      hereby consented to by the Lenders). Derivatives of such term have corresponding
      meanings. Borrower hereby grants to Administrative Agent, for the benefit of
      the
      L/C Issuer and the Lenders, a security interest in all such cash, deposit
      accounts and all balances therein, and all proceeds of the foregoing. Cash
      collateral shall be maintained in blocked, non-interest bearing deposit accounts
      at Bank of America.

     

    (h) Applicability
      of ISP98. Unless
      otherwise expressly agreed by the L/C Issuer and Borrower when a Letter of
      Credit is issued, the rules of the “International Standby Practices 1998”
      published by the Institute of International Banking Law & Practice (or such
      later version thereof as may be in effect at the time of issuance) shall apply
      to each standby Letter of Credit.

     

    (i) Letter
      of Credit Fees.
      Borrower shall pay to Administrative Agent, for the account of each Lender
      in
      accordance with its Pro Rata Share, a Letter of Credit fee for each Letter
      of
      Credit equal to the Applicable Margin times
      the
      daily amount available to be drawn under such Letter of Credit. Such letter
      of
      credit fees shall be computed on a quarterly basis in arrears. Such letter
      of
      credit fees shall be due and payable on the first Business Day after the end
      of
      each March, June, September, and December, 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    commencing
      with the first such date to occur after the issuance of such Letter of Credit,
      on the Letter of Credit Expiration Date and thereafter on demand.

     

    (j) Fronting
      Fee and Documentary and Processing Charges Payable to L/C Issuer. Borrower
      shall pay directly to the L/C Issuer for its own account a fronting fee with
      respect to each Letter of Credit in the amounts and at the times specified
      in
      the Fee Letter. In addition, Borrower shall pay directly to the L/C Issuer
      for
      its own account the customary issuance, presentation, amendment, and other
      processing fees, and other standard costs and charges, of the L/C Issuer
      relating to letters of credit as from time to time in effect. Such customary
      fees and standard costs and charges are due and payable on demand and are
      nonrefundable.

     

    (k) Conflict
      with Letter of Credit Application.
      In the
      event of any conflict between the terms hereof and the terms of any Letter
      of
      Credit Application, the terms hereof shall control.

     

    2.04  Prepayments.

     

    (a) Borrower
      may, upon notice to Administrative Agent, at any time or from time to time
      voluntarily prepay Loans in whole or in part without premium or penalty;
provided that
      (i) such
      notice must be received by Administrative Agent not later than 11:00 a.m. (A)
      three (3) Business Days prior to any date of prepayment of Eurodollar Rate
      Loans
      and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of
      Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
      multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base
      Rate
      Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
      in excess thereof or, in each case, if less, the entire principal amount thereof
      then outstanding. Each such notice shall specify the date and amount of such
      prepayment and the Type(s) of Loans to be prepaid. Administrative Agent will
      promptly notify each Lender of its receipt of each such notice, and of the
      amount of such Lender’s
      Pro
      Rata Share of such prepayment. If such notice is given by Borrower, Borrower
      shall make such prepayment and the payment amount specified in such notice
      shall
      be due and payable on the date specified therein. Any prepayment of a Loan
      shall
      be accompanied by all accrued interest thereon, and any prepayments of a
      Eurodollar Rate Loan shall include any additional amounts required pursuant
      to
Section 3.05.
      Each
      such prepayment shall be applied to the Loans of the Lenders in accordance
      with
      their respective Pro Rata Shares.

     

    (b) If
      for
      any reason the Total Outstandings at any time exceed the lesser of (i) the
      Aggregate Commitments then in effect, and (ii) the Borrowing Base, then Borrower
      shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations
      in
      an aggregate amount equal to such excess; provided,
      however,
      that
      Borrower shall not be required to Cash Collateralize the L/C Obligations
      pursuant to this Section 2.04(b)
      unless
      after the prepayment in full of the Loans the Total Outstandings exceed the
      lesser of (i) the Aggregate Commitments then in effect, and (ii) the Borrowing
      Base.

     

    2.05  Termination
      or Reduction of Commitments

     

    .
      Borrower may, upon notice to Administrative Agent, which notice shall be
      irrevocable, terminate the Aggregate Commitments, or from time to time
      permanently reduce the Aggregate Commitments; provided that
      (a) any
      such notice shall be received by Administrative Agent not later than 11:00
      a.m.
      five (5) Business Days prior to the date of termination or reduction, (b) any
      such partial reduction shall be in an aggregate amount of $10,000,000 or any
      whole multiple of $1,000,000 in excess thereof, (c) Borrower shall not terminate
      or reduce the Aggregate Commitments if, after giving effect thereto and to
      any
      concurrent prepayments hereunder, the Total Outstandings would exceed the
      Aggregate Commitments, and (d) if, after giving effect to any reduction of
      the
      Aggregate Commitments, the Letter of Credit Sublimit exceeds the amount of
      the
      Aggregate Commitments, such Sublimit shall be automatically reduced by the
      amount of such excess. Administrative Agent will promptly notify the Lenders
      of
      any such notice of termination or reduction of the Aggregate Commitments. Any
      reduction of the Aggregate Commitments shall be applied to the 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Commitment
      of each Lender according to its Pro Rata Share. All utilization
      fees
      accrued until the effective date of any termination of the Aggregate Commitments
      shall be paid on the effective date of such termination.

     

    2.06  Repayment
      of Loans

     

    .
      Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
      amount of Loans outstanding on such date.

     

    2.07  Interest.

     

    (a) Subject
      to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
      bear interest on the outstanding principal amount thereof for each Interest
      Period at a rate per annum equal to the Eurodollar Rate for such Interest Period
      plus
      the
      Applicable Margin, and (ii) each Base Rate Loan shall bear interest on the
      outstanding principal amount thereof from the applicable borrowing date at
      a
      rate per annum equal to the Base Rate plus
      the
      Applicable Margin.

     

    (b) If
      any
      amount payable by Borrower under any Loan Document is not paid when due (without
      regard to any applicable grace periods), whether at stated maturity, by
      acceleration or otherwise, such amount shall thereafter bear interest at a
      fluctuating interest rate per annum at all times equal to the Default Rate
      to
      the fullest extent permitted by applicable Laws. Furthermore, while any Event
      of
      Default exists, Borrower shall pay interest on the principal amount of all
      outstanding Obligations hereunder at a fluctuating interest rate per annum
      at
      all times equal to the Default Rate to the fullest extent permitted by
      applicable Laws. Accrued and unpaid interest on past due amounts (including
      interest on past due interest) shall be due and payable upon
      demand.

     

    (c) Interest
      on each Loan shall be due and payable in arrears on each Interest Payment Date
      applicable thereto and at such other times as may be specified herein. Interest
      hereunder shall be due and payable in accordance with the terms hereof before
      and after judgment, and before and after the commencement of any proceeding
      under any Debtor Relief Law.

     

    2.08  Fees

     

    .
      In
      addition to certain fees described in subsections (i) and (j) of Section 2.03:

     

    (a) Unused
      Fee.
      Borrower shall pay to Administrative Agent for the account of each Lender in
      accordance with its Pro Rata Share, an unused fee of (i) three-eights of one
      percent (0.375%) times
      the
      actual daily amount by which the Aggregate Commitments exceed the Total
      Outstandings on each day that the Total Outstandings are less than or equal
      to
      thirty-three and one-third of one percent (33-1/3%) of the actual daily amount
      of the Aggregate Commitments, (ii) one quarter of one percent (0.25%)
times
      the
      actual daily amount by which the Aggregate Commitments exceed the Total
      Outstandings on each day that the Total Outstandings are greater than
      thirty-three and one-third of one percent (33-1/3%) but less than or equal
      to
      sixty-six and two-thirds of one percent (66-2/3%) of the actual daily amount
      of
      the Aggregate Commitments, and (iii) one eighth of one percent (0.125%)
times
      the
      actual daily amount by which the Aggregate Commitments exceed the Total
      Outstandings on each day that the Total Outstandings exceed sixty-six and
      two-thirds of one percent (66-2/3%) of the actual daily amount of the Aggregate
      Commitments. The unused fee shall be due and payable quarterly in arrears on
      the
      last Business Day of each March, June, September and December, commencing
      with the first such date to occur after the Closing Date, and on the Maturity
      Date. The unused fee shall be calculated quarterly in arrears. The unused fee
      shall accrue at all times, including at any time during which one or more of
      the
      conditions in Article V
      is not
      met.

     

    (b) Other
      Fees. Borrower
      shall pay the fees in the amounts and at the times specified in the Fee Letter.
      Such fees shall be fully earned when paid and shall not be refundable for any
      reason whatsoever.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    2.09  Computation
      of Interest and Fees

     

    .
      All
      computations of interest for Base Rate Loans when the Base Rate is determined
      by
      Bank of America’s “prime rate” shall be made on the basis of a year of 365 or
      366 days, as the case may be, and actual days elapsed. All other computations
      of
      fees and interest shall be made on the basis of a 360-day year and actual days
      elapsed (which results in more fees or interest, as applicable, being paid
      than
      if computed on the basis of a 365-day year). Interest shall accrue on each
      Loan
      for the day on which the Loan is made, and shall not accrue on a Loan, or any
      portion thereof, for the day on which the Loan or such portion is paid to the
      extent paid by the time required herein, provided that
      any Loan
      that is repaid on the same day on which it is made shall, subject to
Section 2.11(a),
      bear
      interest for one day.

     

    2.10  Evidence
      of Debt.

     

    (a) The
      Credit Extensions made by each Lender shall be evidenced by one or more accounts
      or records maintained by such Lender and by Administrative Agent in the ordinary
      course of business. The accounts or records maintained by Administrative Agent
      and each Lender shall be conclusive absent manifest error of the amount of
      the
      Credit Extensions made by the Lenders to Borrower and the interest and payments
      thereon. Any failure to so record or any error in doing so shall not limit,
      or
      otherwise affect, the obligation of Borrower hereunder to pay any amount owing
      with respect to the Obligations. In the event of any conflict between the
      accounts and records maintained by any Lender and the accounts and records
      of
      Administrative Agent in respect of such matters, the accounts and records of
      Administrative Agent shall control in the absence of manifest error. Upon the
      request of any Lender made through Administrative Agent, Borrower shall execute
      and deliver to such Lender (through Administrative Agent) a Note, which shall
      evidence such Lender’s Loans in addition to such accounts or records. Each
      Lender may attach schedules to its Note and endorse thereon the date, Type
      (if
      applicable), amount and maturity of its Loans and payments with respect
      thereto.

     

    (b) In
      addition to the accounts and records referred to in subsection (a), each Lender
      and Administrative Agent shall maintain in accordance with its usual practice
      accounts or records evidencing the purchases and sales by such Lender of
      participations in Letters of Credit. In the event of any conflict between the
      accounts and records maintained by Administrative Agent and the accounts and
      records of any Lender in respect of such matters, the accounts and records
      of
      Administrative Agent shall control in the absence of manifest
      error.

     

    2.11  Payments
      Generally.

     

    (a) All
      payments to be made by Borrower shall be made without condition or deduction
      for
      any counterclaim, defense, recoupment, or setoff. Except as otherwise expressly
      provided herein, all payments by Borrower hereunder shall be made to
      Administrative Agent, for the account of the respective Lenders to which such
      payment is owed, at Administrative Agent’s
      Office
      in Dollars and in immediately available funds not later than 2:00 p.m.
      on
      the date specified herein. Administrative Agent will promptly distribute to
      each
      Lender its Pro Rata Share (or other applicable share as provided herein) of
      such
      payment in like funds as received by wire transfer to such Lender’s Lending
      Office. All payments received by Administrative Agent after 2:00 p.m.
      shall
      be deemed received on the next succeeding Business Day and any applicable
      interest or fee shall continue to accrue. To the extent that Administrative
      Agent does not distribute to any Lender its Pro Rata Share (or other applicable
      share as provided herein) of any payment on the date received or deemed received
      from Borrower, then at the time Administrative Agent does distribute to such
      Lender its Pro Rata Share (or other applicable share as provided herein) of
      any
      payment, it will do so together with interest thereon for the period from the
      date such payment is received or deemed received from Borrower to the date
      on
      which such payment is 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    immediately
      available to such Lender, at a rate per annum equal to the Federal Funds Rate
      from time to time in effect. 

     

    (b) If
      any
      payment to be made by Borrower shall come due on a day other than a Business
      Day, payment shall be made on the next following Business Day, and such
      extension of time shall be reflected in computing interest or fees, as the
      case
      may be.

     

    (c) Unless
      Borrower or any Lender has notified Administrative Agent, prior to the date
      any
      payment is required to be made by it to Administrative Agent hereunder, that
      Borrower or such Lender, as the case may be, will not make such payment,
      Administrative Agent may assume that Borrower or such Lender, as the case may
      be, has timely made such payment and may (but shall not be so required to),
      in
      reliance thereon, make available a corresponding amount to the Person entitled
      thereto. If and to the extent that such payment was not in fact made to
      Administrative Agent in immediately available funds, then:

     

    (i) if
      Borrower failed to make such payment, each Lender shall forthwith on demand
      repay to Administrative Agent the portion of such assumed payment that was
      made
      available to such Lender in immediately available funds, together with interest
      thereon in respect of each day from and including the date such amount was
      made
      available by Administrative Agent to such Lender to the date such amount is
      repaid to Administrative Agent in immediately available funds at the Federal
      Funds Rate from time to time in effect; and

     

    (ii) if
      any
      Lender failed to make such payment, such Lender shall forthwith on demand pay
      to
      Administrative Agent the amount thereof in immediately available funds, together
      with interest thereon for the period from the date such amount was made
      available by Administrative Agent to Borrower to the date such amount is
      recovered by Administrative Agent (the “Compensation
      Period”)
      at a
      rate per annum equal to the Federal Funds Rate from time to time in effect.
      If
      such Lender pays such amount to Administrative Agent, then such amount shall
      constitute such Lender’s Loan included in the applicable Borrowing. If such
      Lender does not pay such amount forthwith upon Administrative Agent’s
      demand
      therefor, Administrative Agent may make a demand therefor upon Borrower, and
      Borrower shall pay such amount to Administrative Agent, together with interest
      thereon for the Compensation Period at a rate per annum equal to the rate of
      interest applicable to the applicable Borrowing. Nothing herein shall be deemed
      to relieve any Lender from its obligation to fulfill its Commitment or to
      prejudice any rights which Administrative Agent or Borrower may have against
      any
      Lender as a result of any default by such Lender hereunder.

     

    A
      notice
      of Administrative Agent to any Lender or Borrower with respect to any amount
      owing under this subsection (c) shall be conclusive, absent manifest
      error.

     

    (d) If
      any
      Lender makes available to Administrative Agent funds for any Loan to be made
      by
      such Lender as provided in the foregoing provisions of this Article II,
      and
      such funds are not made available to Borrower by Administrative Agent because
      the conditions to the applicable Credit Extension set forth in Article V
      are not
      satisfied or waived in accordance with the terms hereof, Administrative Agent
      shall return such funds (in like funds as received from such Lender) to such
      Lender, without interest.

     

    (e) The
      obligations of the Lenders hereunder to make Loans and to fund participations
      in
      Letters of Credit are several and not joint. The failure of any Lender to make
      any Loan or to fund any such participation on any date required hereunder shall
      not relieve any other Lender of its corresponding 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    obligation
      to do so on such date, and no Lender shall be responsible for the failure of
      any
      other Lender to so make its Loan or purchase its participation.

     

    (f) Nothing
      herein shall be deemed to obligate any Lender to obtain the funds for any Loan
      in any particular place or manner or to constitute a representation by any
      Lender that it has obtained or will obtain the funds for any Loan in any
      particular place or manner.

     

    2.12  Sharing
      of Payments

     

    .
      If,
      other than as expressly provided elsewhere herein, any Lender shall obtain
      on
      account of the Loans made by it, or the participations in L/C Obligations held
      by it, any payment (whether voluntary, involuntary, through the exercise of
      any
      right of set-off, or otherwise) in excess of its ratable share (or other share
      contemplated hereunder) thereof, such Lender shall immediately (a) notify
      Administrative Agent of such fact, and (b) purchase from the other Lenders
      such
      participations in the Loans made by them and/or such subparticipations in the
      participations in L/C Obligations held by them, as the case may be, as shall
      be
      necessary to cause such purchasing Lender to share the excess payment in respect
      of such Loans or such participations, as the case may be, pro rata with each
      of
      them; provided,
      however,
      that if
      all or any portion of such excess payment is thereafter recovered from the
      purchasing Lender under any of the circumstances described in Section 11.06
      (including pursuant to any settlement entered into by the purchasing Lender
      in
      its discretion), such purchase shall to that extent be rescinded and each other
      Lender shall repay to the purchasing Lender the purchase price paid therefor,
      together with an amount equal to such paying Lender’s ratable share (according
      to the proportion of (i) the amount of such paying Lender’s required repayment
      to (ii) the total amount so recovered from the purchasing Lender) of any
      interest or other amount paid or payable by the purchasing Lender in respect
      of
      the total amount so recovered, without further interest thereon. Borrower agrees
      that any Lender so purchasing a participation from another Lender may, to the
      fullest extent permitted by law, exercise all its rights of payment (including
      the right of set-off, but subject to Section 11.09)
      with
      respect to such participation as fully as if such Lender were the direct
      creditor of Borrower in the amount of such participation. Administrative Agent
      will keep records (which shall be conclusive and binding in the absence of
      manifest error) of participations purchased under this Section 2.12
      and will
      in each case notify the Lenders following any such purchases or repayments.
      Each
      Lender that purchases a participation pursuant to this Section 2.12
      shall
      from and after such purchase have the right to give all notices, requests,
      demands, directions and other communications under this Agreement with respect
      to the portion of the Obligations purchased to the same extent as though the
      purchasing Lender were the original owner of the Obligations
      purchased.

     

    2.13  Lenders;
      Increase in Aggregate Commitments.

     

    (a) The
      Lenders on the Closing Date shall be the Lenders set forth on Schedule 2.01
      on the
      Closing Date.

     

    (b) After
      the
      Closing Date, Administrative Agent may, from time to time at the request of
      Borrower (the “Increase Request”), increase the Aggregate Commitments by (i)
      admitting additional Lenders hereunder (each a “Subsequent
      Lender”),
      or
      (ii) increasing the Commitment of any Lender (each an “Increasing
      Lender”),
      subject to the following conditions:

     

    (A) each
      Subsequent Lender is an Eligible Assignee;

     

    (B) Borrower
      executes (I) a new Note payable to the order of a Subsequent Lender, or (II)
      a
      replacement Note payable to the order of an Increasing Lender;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (C) each
      Subsequent Lender executes and delivers to Administrative Agent a Joinder
      Agreement in the form of Exhibit D-1
      and each
      Increasing Lender executes and delivers to Administrative Agent an Increase
      Certificate in the form of Exhibit D-2;

     

    (D) after
      giving effect to the admission of any Subsequent Lender or the increase in
      the
      Commitment of any Increasing Lender, the Aggregate Commitments do not exceed
      $300,000,000 (less the amount of any permanent reductions pursuant to
Section 2.05);

     

    (E) each
      increase in the Aggregate Commitments shall be in the minimum amount of
      $5,000,000 or a greater integral multiple of $1,000,000;

     

    (F) no
      admission of any Subsequent Lender shall increase the Commitment of any existing
      Lender without the consent of such existing Lender;

     

    (G) no
      Lender
      shall be an Increasing Lender without the consent of such Lender;

     

    (H) no
      Default or Event of Default exists nor would occur after giving effect to such
      increase; 

     

    (I) Borrower,
      to the extent required by the Law of any state in which a Borrowing Base
      Property is located, pays any additional mortgage or similar tax required as
      a
      result of the increase in the Aggregate Commitments in order to ensure that
      each
      Mortgage secures the entire amount of the Obligations; 

     

    (J) Borrower
      shall execute and deliver, or cause to be delivered, to Administrative Agent
      such amendments and supplements to the Security Documents as Administrative
      Agent may reasonably request to evidence the increase in the Aggregate
      Commitments;

     

    (K) Administrative
      Agent shall have approved such Increase Request, provided
      that
      Administrative Agent shall not withhold its approval if (I) each of the
      conditions set forth in this Section
      2.13
      (other
      than this subsection
      (K))
      are
      satisfied and (II) the Commitments of each of the original Lenders to this
      Agreement shall be equal to or less than $35,000,000 immediately prior to the
      first Increase Request.

     

    After
      the
      admission of any Subsequent Lender or the increase in the Aggregate Commitments
      of any Increasing Lender, Administrative Agent shall promptly provide to each
      Lender a new Schedule 2.01
      to this
      Agreement. In the event that there are any Loans outstanding after giving effect
      to an increase in the Aggregate Commitments pursuant to this Section 2.13,
      upon
      notice from Administrative Agent to each Lender, the amount of such Loans owing
      to each Lender shall be appropriately adjusted to reflect the new Pro Rata
      Shares of Lenders, provided that
      Borrower
      shall be obligated to pay any amounts required pursuant to Section 3.05.
      

     

    ARTICLE
      III.  

     

    TAXES,
      YIELD PROTECTION AND ILLEGALITY

     

    3.01  Taxes

     

    (a) Any
      and
      all payments by Borrower to or for the account of Administrative Agent or any
      Lender under any Loan Document shall be made free and clear of and without
      deduction for any and all 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    present
      or future taxes, duties, levies, imposts, deductions, assessments, fees,
      withholdings or similar charges, and all liabilities with respect thereto,
      excluding,
      in the
      case of Administrative Agent and each Lender, taxes imposed on or measured
      by
      its overall net income, and franchise taxes imposed on it, in lieu of net income
      taxes, by the jurisdiction (or any political subdivision thereof) under the
      Laws
      of which Administrative Agent or such Lender, as the case may be, is organized
      or maintains a lending office (all such non-excluded taxes, duties, levies,
      imposts, deductions, assessments, fees, withholdings or similar charges, and
      liabilities being hereinafter referred to as “Taxes”).
      If
      Borrower shall be required by any Laws to deduct any Taxes from or in respect
      of
      any sum payable under any Loan Document to Administrative Agent or any Lender,
      (i) the sum payable shall be increased as necessary so that after making all
      required deductions (including deductions applicable to additional sums payable
      under this Section), each of Administrative Agent and such Lender receives
      an
      amount equal to the sum it would have received had no such deductions been
      made,
      (ii) Borrower shall make such deductions, (iii) Borrower shall pay the full
      amount deducted to the relevant taxation authority or other authority in
      accordance with applicable Laws, and (iv) within thirty (30) days after the
      date
      of such payment, Borrower shall furnish to Administrative Agent (which shall
      forward the same to such Lender) the original or a certified copy of a receipt
      evidencing payment thereof.

     

    (b) In
      addition, Borrower agrees to pay any and all present or future stamp, court,
      or
      documentary taxes and any other excise or property taxes or charges or similar
      levies which arise from any payment made under any Loan Document or from the
      execution, delivery, performance, enforcement or registration of, or otherwise
      with respect to, any Loan Document (hereinafter referred to as “Other
      Taxes”).

     

    (c) If
      Borrower shall be required to deduct or pay any Taxes or Other Taxes from or
      in
      respect of any sum payable under any Loan Document to Administrative Agent
      or
      any Lender, Borrower shall also pay to Administrative Agent or to such Lender,
      as the case may be, at the time interest is paid, such additional amount that
      Administrative Agent or such Lender specifies is necessary to preserve the
      after-tax yield (after factoring in all taxes, including taxes imposed on or
      measured by net income) that Administrative Agent or such Lender would have
      received if such Taxes or Other Taxes had not been imposed.

     

    (d) Borrower
      agrees to indemnify Administrative Agent and each Lender for (i) the full amount
      of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted
      by any jurisdiction on amounts payable under this Section) paid by
      Administrative Agent and such Lender, (ii) amounts payable under Section 3.01(c)
      and
      (iii) any liability (including additions to tax, penalties, interest, and
      expenses) arising therefrom or with respect thereto, in each case whether or
      not
      such Taxes or Other Taxes were correctly or legally imposed or asserted by
      the
      relevant Governmental Authority. Payment under this subsection (d) shall be
      made
      within thirty (30) days after the date the Lender or Administrative Agent makes
      a demand therefor.

     

    3.02  Illegality

     

    .
      If any
      Lender determines that any Law has made it unlawful, or that any Governmental
      Authority has asserted that it is unlawful, for any Lender or its applicable
      Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine
      or charge interest rates based upon the Eurodollar Rate, then, on notice thereof
      by such Lender to Borrower through Administrative Agent, any obligation of
      such
      Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans
      to Eurodollar Rate Loans shall be suspended until such Lender notifies
      Administrative Agent and Borrower that the circumstances giving rise to such
      determination no longer exist. Upon receipt of such notice, Borrower shall,
      upon
      demand from such Lender (with a copy to Administrative Agent), prepay or, if
      applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans,
      either on the last day of the Interest Period therefor, if such Lender may
      lawfully continue to maintain such Eurodollar Rate Loans to such day, or
      immediately, if such Lender may not lawfully continue to maintain such
      Eurodollar Rate 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Loans.
      Upon any such prepayment or conversion, Borrower shall also pay accrued interest
      on the amount so prepaid or converted. Each Lender agrees to designate a
      different Lending Office if such designation will avoid the need for such notice
      and will not, in the good faith judgment of such Lender, otherwise be materially
      disadvantageous to such Lender.

     

    3.03  Inability
      to Determine Rates

     

    .
      If the
      Required Lenders determine that for any reason adequate and reasonable means
      do
      not exist for determining the Eurodollar Rate for any requested Interest Period
      with respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate
      for
      any requested Interest Period with respect to a proposed Eurodollar Rate Loan
      does not adequately and fairly reflect the cost to such Lenders of funding
      such
      Loan, Administrative Agent will promptly so notify Borrower and each Lender.
      Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
      Loans shall be suspended until Administrative Agent (upon the instruction of
      the
      Required Lenders) revokes such notice. Upon receipt of such notice, Borrower
      may
      revoke any pending request for a Borrowing of, conversion to or continuation
      of
      Eurodollar Rate Loans or, failing that, will be deemed to have converted such
      request into a request for a Borrowing of Base Rate Loans in the amount
      specified therein.

     

    3.04  Increased
      Cost and Reduced Return; Capital Adequacy;
      Reserves on 

     

    Eurodollar
      Rate Loans.

     

    (a) If
      any
      Lender determines that as a result of the introduction of or any change in
      or in
      the interpretation of any Law, or such Lender’s compliance therewith, there
      shall be any increase in the cost to such Lender of agreeing to make or making,
      funding or maintaining Eurodollar Rate Loans or (as the case may be) issuing
      or
      participating in Letters of Credit, or a reduction in the amount received or
      receivable by such Lender in connection with any of the foregoing (excluding
      for
      purposes of this subsection (a) any such increased costs or reduction in amount
      resulting from (i) Taxes or Other Taxes (as to which Section 3.01
      shall
      govern), (ii) changes in the basis of taxation of overall net income or overall
      gross income by the United States or any foreign jurisdiction or any political
      subdivision of either thereof under the Laws of which such Lender is organized
      or has its Lending Office, and (iii) reserve requirements contemplated
      by Section 3.04(c)),
      then
      from time to time upon demand of such Lender (with a copy of such demand to
      Administrative Agent), Borrower shall pay to such Lender such additional amounts
      as will compensate such Lender for such increased cost or
      reduction.

     

    (b) If
      any
      Lender determines that the introduction of any Law regarding capital adequacy
      or
      any change therein or in the interpretation thereof, or compliance by such
      Lender (or its Lending Office) therewith, has the effect of reducing the rate
      of
      return on the capital of such Lender or any corporation controlling such Lender
      as a consequence of such Lender’s obligations hereunder (taking into
      consideration its policies with respect to capital adequacy and such Lender’s
      desired return on capital), then from time to time upon demand of such Lender
      (with a copy of such demand to Administrative Agent), Borrower shall pay to
      such
      Lender such additional amounts as will compensate such Lender for such
      reduction.

     

    (c) Borrower
      shall pay to each Lender, as long as such Lender shall be required to maintain
      reserves with respect to liabilities or assets consisting of or including
      Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”),
      additional interest on the unpaid principal amount of each Eurodollar Rate
      Loan
      equal to the actual costs of such reserves allocated to such Loan by such Lender
      (as determined by such Lender in good faith, which determination shall be
      conclusive), which shall be due and payable on each date on which interest
      is
      payable on such Loan, provided
      Borrower
      shall have received at least fifteen (15) days’ prior notice (with a copy to
      Administrative Agent) of such additional interest from such Lender. If a Lender
      fails to give notice fifteen (15) days prior to the relevant Interest Payment
      Date, such additional interest shall be due and payable fifteen (15) days from
      receipt of such notice.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    3.05  Funding
      Losses

     

    .
      Upon
      demand of any Lender (with a copy to Administrative Agent) from time to time,
      Borrower shall promptly compensate such Lender for and hold such Lender harmless
      from any loss, cost, or expense incurred by it as a result of:

     

    (a) any
      continuation, conversion, payment, or prepayment of any Loan other than a Base
      Rate Loan on a day other than the last day of the Interest Period for such
      Loan
      (whether voluntary, mandatory, automatic, by reason of acceleration, or
      otherwise); or

     

    (b) any
      failure by Borrower (for a reason other than the failure of such Lender to
      make
      a Loan) to prepay, borrow, continue, or convert any Loan other than a Base
      Rate
      Loan on the date or in the amount notified by Borrower; or

     

    (c) any
      assignment of a Eurodollar Rate Loan on a day other than the last day of the
      Interest Period therefor as a result of a request by Borrower pursuant to
Section 11.16;

     

    including
      any
      loss
      of anticipated profits
      and any
      loss or expense arising from the liquidation or reemployment of funds obtained
      by it to maintain such Loan or from fees payable to terminate the deposits
      from
      which such funds were obtained.
      Borrower shall also pay any customary administrative fees charged by such Lender
      in connection with the foregoing.

    


    For
      purposes of calculating amounts payable by Borrower to the Lenders under this
      Section 3.05,
      each
Lender
      shall be
      deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
      Rate for
      such
      Loan by a matching deposit or other borrowing in the London interbank eurodollar
      market for a comparable amount and for a comparable period, whether or not
      such
      Eurodollar Rate Loan was in fact so funded.

    


    3.06  Matters
      Applicable to all Requests for Compensation.

     

    (a) A
      certificate of Administrative Agent or any Lender claiming compensation under
      this Article III
      and
      setting forth the additional amount or amounts to be paid to it hereunder shall
      be conclusive in the absence of manifest error. In determining such amount,
      Administrative Agent or such Lender may use any reasonable averaging and
      attribution methods.

     

    (b) Upon
      any
      Lender’s making a claim for compensation under Section 3.01
      or
3.04,
      Borrower may replace such Lender in accordance with Section 11.16.
      

     

    3.07  Survival

     

    .
      All of
      Borrower’s
      obligations under this Article III
      shall
      survive termination of the Aggregate Commitments and repayment of all other
      Obligations hereunder.

     

    ARTICLE
      IV.  

     

    BORROWING
      BASE; SECURITY

     

    4.01  Borrowing
      Base.

     

    (a) The
      “Borrowing
      Base”
      means,
      as of the last day of each fiscal quarter or any other applicable date of
      determination during the term hereof, the sum of the Implied Loan Amounts with
      respect to each of the Borrowing Base Properties owned by a Loan Party (other
      than the Excluded Kentucky Borrowing Base Property and the Excluded Tampa
      Borrowing Base Property); provided that the
      Borrowing Base shall not exceed the amount that would cause Implied Debt Service
      to exceed the 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    level
      permitted pursuant to Section 8.15(c)
      based
      upon the most-recent Compliance Certificate delivered pursuant to Section 7.02(a).

     

    (b) The
      “Implied
      Loan Amount”
      with
      respect to the Borrowing Base Properties means, as of the last day of any fiscal
      quarter or any other applicable date of determination during the term hereof,
      the product of (i) the Appraised Value (determined using the most-recent
      Acceptable Appraisal delivered to Administrative Agent as required hereunder)
      of
      the Borrowing Base Property, and (ii) sixty percent (60%). Notwithstanding
      the
      foregoing, the amount attributable to the Borrowing Base with respect to (i)
      any
      single Borrowing Base Property shall not exceed thirty percent (30%) of the
      Borrowing Base, (ii) Borrowing Base Properties located in any single
      metropolitan statistical area shall not exceed thirty percent (30%) of the
      Borrowing Base, and (iii) all Borrowing Base Properties in operation for less
      than one (1) year shall not exceed fifteen percent (15%) of the Borrowing Base.
      As of the Closing Date, the Implied Loan Amount and the Appraised Value with
      respect to the Initial Borrowing Base Properties are set forth on Schedule 4.01.

     

    (c) Each
      change in the Borrowing Base shall be effective upon receipt of a new Borrowing
      Base Report pursuant to Section 7.02(b)(ii);
      provided that
      any
      increase in the Borrowing Base reflected in such Borrowing Base Report shall
      not
      become effective until the fifth (5th)
      Business Day following delivery thereof and provided further
      that any
      change in the Borrowing Base as a result of the receipt of a new Acceptable
      Appraisal pursuant to Section 4.04
      shall be
      effective upon the date that Administrative Agent approves such appraisal,
      and
      any change in the Borrowing Base as a result of the admission of a Property
      into
      the Borrowing Base pursuant to Section 4.02
      shall be
      effective upon the date that such Property is admitted into the Borrowing
      Base.

     

    4.02  Substitution
      of Borrowing Base Properties and Admission of Properties into the Borrowing
      Base.

     

    (a) Borrower
      shall provide Administrative Agent with a written request for a Property to
      be
      admitted into the Borrowing Base in substitution of an existing Borrowing Base
      Property, in connection with an increase in the Aggregate Commitments pursuant
      to Section 2.13,
      or
      otherwise. Such request shall be accompanied by information regarding such
      Property (the “Property
      Information”),
      including, without limitation, the following, in each case acceptable to
      Administrative Agent: (i) a general description of such Property’s location,
      market, and amenities; (ii) a property description; (iii) purchase information
      (including any contracts of sale and closing statements); (iv) cash flow
      projections for the next three (3) years and operating statements for at least
      the previous three (3) years or since opening if open less than three (3) years;
      (v) a quality assurance report or an inspection report; (vi) a copy of the
      most-recent appraisal, if any; (vii) UCC searches; (viii) copies of the
      internally-prepared “Investment
      Committee Memorandum”
      prepared by Borrower in connection with the acquisition of such Property; (ix)
      the documents and information with respect to such Property listed in
Section 5.01(a)(v)
      and
Sections
      5.01(a)(viii)
      through
(xxii)
      that
      were delivered in connection with the Initial Borrowing Base Properties; and
      (x)
      such other information reasonably requested by Administrative Agent as shall
      be
      necessary in order for Administrative Agent and Required Lenders to determine
      whether such Property is eligible to be a Borrowing Base Property.

     

    (b) In
      order
      for a Property to be eligible for inclusion in the Borrowing Base, such Property
      shall have characteristics consistent with the following general
      guidelines:

     

    (i) such
      Property shall be full service, extended stay, or limited service hotel of
      at
      least the same or similar quality as the Borrowing Base Properties as of the
      Closing Date, all as determined by Administrative Agent;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (ii) Borrower
      or a Guarantor shall have good and indefeasible fee simple title to such
      Property, free and clear of all Liens (except for Liens permitted by
Section 8.01);
      provided that
      Administrative Agent may approve Properties that are leased pursuant to a Ground
      Lease acceptable to Required Lenders.

     

    (iii) all
      Property Information shall be acceptable to Administrative Agent;

     

    (iv) no
      Material Title Defects or Material Property Event with respect to such Property
      shall exist;

     

    (v) such
      Property shall have satisfactory access to public utilities;

     

    (vi) the
      admission of such Property into the Borrowing Base shall not breach any
      obligation of any Loan Party under any other third party
      agreements;

     

    (vii) the
      Phase
      I environmental assessment with respect to such Property shall not reveal any
      Material Environmental Event;

     

    (viii) the
      structural engineering report with respect to such Property shall not reveal
      any
      material defects;

     

    (ix) such
      Property shall be located in one of the fifty (50) most populated metropolitan
      statistical areas (MSAs) in the United States; 

     

    (x) such
      Property shall be managed by a Qualified Manager pursuant to a Management
      Agreement reasonably acceptable to Administrative Agent; 

     

    (xi) such
      Property shall be leased by an Operating Lessee pursuant to an Operating Lease
      reasonably acceptable to Administrative Agent; and

     

    (xii) unless
      inapplicable pursuant to the terms of the applicable Management Agreement or
      non-Affiliate Operating Lease, such Property shall be operated under a Franchise
      Agreement reasonably acceptable to Administrative Agent.

     

    (c) Each
      Property shall be subject to Administrative Agent’s and Required Lender’s
      approval for admission into the Borrowing Base. Notwithstanding the foregoing
      guidelines, Administrative Agent and Required Lenders shall have the right
      to
      disapprove the admission of a Property into the Borrowing Base that is otherwise
      qualified to be a Borrowing Base Property, if Administrative Agent and Required
      Lenders determine that such new Property shall not be a Borrowing Base Property;
      provided that,
      Administrative Agent and Required Lenders will not unreasonably withhold their
      approval of the admission of a new Property into the Borrowing Base that
      satisfies the guidelines set forth in clause
      (b)
      above.

     

    (d) Administrative
      Agent shall deliver or otherwise make available the Property Information to
      Lenders within five (5) Business Days after Borrower delivers the Property
      Information to Administrative Agent (unless Administrative Agent requests
      additional Property Information within such time in which case the Property
      Information shall be delivered to Lenders within five (5) Business Days after
      Borrower delivers such additional Property Information). Each Lender shall
      provide to Administrative Agent notice of whether such Lender has approved
      or
      disapproved a Property for 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    admission
      into the Borrowing Base within ten (10) Business Days after Administrative
      Agent
      delivers to such Lender the Property Information. Administrative Agent shall
      promptly notify Borrower and Lenders whether Administrative Agent and Lenders
      have approved or disapproved a Property for admission into the Borrowing
      Base.

     

    (e) A
      Property shall not be admitted into the Borrowing Base until a Loan Party shall
      have executed and delivered (or cause to be executed and delivered) to
      Administrative Agent, for the ratable benefit of the Lenders, Security Documents
      covering such Property, and Administrative Agent shall have a perfected, first
      priority Lien on such Property (subject to Liens permitted by Section 8.01),
      for
      the ratable benefit of the Lenders and such Loan Party shall have delivered
      Title Insurance Policies covering such Property and with respect thereto, the
      documents lised in Section 5.01(a)(iii)
      through
(vi).

     

    (f) If
      a
      Property is admitted into the Borrowing Base prior to the last day of any fiscal
      quarter during the term of this Agreement, then Administrative Agent shall
      notify Borrower and Lenders in writing of any changes to the Borrowing Base
      as a
      result of the admission of such Property into the Borrowing Base.

     

    (g) If any
      Borrowing Base Property is subject to or suffers a Material Environmental Event,
      then Administrative Agent and Lenders shall have the right in their sole
      discretion at any time and from time to time to notify Borrower that, effective
      upon the giving of such notice, and for so long as such Material Environmental
      Event exists, such Borrowing Base Property shall no longer be considered a
      Borrowing Base Property for purposes of determining the Borrowing Base. If
      Administrative Agent delivers a notice with respect to a Borrowing Base Property
      as set forth in this Section 4.02(g),
      then at
      such time as such Borrowing Base Property is no longer subject to a Material
      Environmental Event, Borrower may give Administrative Agent written notice
      thereof (together with reasonably detailed evidence of the cure of such
      condition) and such Borrowing Base Property shall, effective with the delivery
      by Borrower of the next Borrowing Base Report, be considered a Borrowing Base
      Property for purposes of calculating the Borrowing Base until such time as
      any
      of the conditions set forth above apply thereto.

     

    4.03  Liens
      on Borrowing Base Properties

     

    .
      As more
      fully described in the Security Documents, Borrower shall, and shall cause
      (a)
      each other Loan Party to, grant to Administrative Agent, for the ratable benefit
      of the Lenders, as security for the payment and performance of the Obligations,
      a valid, enforceable, perfected, first priority, and only Lien on and to the
      Borrowing Base Properties (subject to Liens permitted by Section 8.01),
      and
      (b) each Operating Lessee which is an Affiliate of Borrower to, grant to
      Administrative Agent, for the ratable benefit of the Lenders, as security for
      the payment and performance of the Obligations, a valid, enforceable, perfected,
      first priority, and only Lien on and to all of its personal property and
      fixtures located on or related to each applicable Borrowing Base
      Property.

     

    4.04  Appraisals.

     

    (a) Administrative
      Agent will be entitled to obtain, at Borrower’s expense, once every twenty-four
      (24) months during the term of this Agreement, an Acceptable Appraisal of each
      Borrowing Base Property or any part thereof; provided that,
      in
      addition to the foregoing, Administrative Agent will be entitled to obtain
      additional Acceptable Appraisals of any Borrowing Base Property or any part
      thereof if (a) a monetary Event of Default has occurred and is continuing,
      (b) a
      non-monetary Event of Default relating to such Borrowing Base Property has
      occurred and is continuing, (c) any other non-monetary Event of Default has
      occurred and continues for thirty (30) days unremedied, (d) a Material Property
      Event with respect to a Borrowing Base Property has occurred, (e) a Material
      Adverse Event has occurred, or (f) an appraisal is required under applicable
      Law.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (b) Borrower
      may at its option request that Administrative Agent obtain, at Borrower’s
      expense, but not more often than once each calendar year during the term of
      this
      Agreement (and only if Administrative Agent does not otherwise obtain an
      appraisal during such year), an Acceptable Appraisal of any Borrowing Base
      Property or any part thereof, and Administrative Agent shall notify Borrower
      and
      Lenders in writing of any changes to the Borrowing Base as a result of the
      receipt of such Acceptable Appraisal. 

     

    4.05  Releases
      of Collateral.

     

    (a) Upon
      the
      written request of Borrower as long as no Default or Event of Default exists,
      Administrative Agent shall release a Borrowing Base Property from the Borrowing
      Base; provided that
      (i)
      Administrative Agent shall have no obligation to release any such Borrowing
      Base
      Property without a Borrowing Base Report setting forth in reasonable detail
      the
      calculations required to establish the amount of the Borrowing Base without
      such
      Borrowing Base Property and the admission of any applicable new Borrowing Base
      Property and a Compliance Certificate setting forth in reasonable detail the
      calculations required to show that the Loan Parties are in compliance with
      the
      terms of this Agreement without such Borrowing Base Property, in each case
      as of
      the day of such release and after giving effect to any such release and/or
      any
      Borrowing Base additions, (ii) with respect to the Borrowing Base Properties
      listed as numbers three (3) and four (4) on Schedule 4.01,
      Administrative Agent shall not release either one of such Borrowing Base
      Properties without simultaneously releasing the other, and (iii) with respect
      to
      the Borrowing Base Properties listed as numbers six (6) and seven (7) on
Schedule 4.01,
      Administrative Agent shall not release either one of such Borrowing Base
      Properties without simultaneously releasing the other.

     

    (b) Upon
      the
      written request of Borrower as long as no Default or Event of Default exists,
      Administrative Agent shall partially release a portion of a Borrowing Base
      Property consisting of vacant land that is ancillary to the operation of such
      Borrowing Base Property or otherwise, in Administrative Agent’s determination,
      immaterial to the operation of such Borrowing Base Property; provided that Borrower
      shall deliver to Administrative Agent a new Acceptable Appraisal of the
      remaining portion of such Borrowing Base Property and/or other information
      reasonably satisfactory to Administrative Agent in order to determine the
      effect, if any, on the Borrowing Base after giving effect to such partial
      release.

     

    (c) Administrative
      Agent shall not release any Collateral or any portion of any Collateral unless,
      after giving effect to any such release (i) no Default or Event of Default
      exists, and (ii) the Borrowing Base equals or exceeds $200,000,000 after giving
      effect to such release.

     

    4.06  Guaranty

     

    .
      Pursuant to the Subsidiary Guaranties, each Subsidiary which owns a Borrowing
      Base Property shall unconditionally guarantee in favor of the Lenders the full
      payment and performance of the Obligations. Pursuant to the Parent Guaranty,
      Parent shall unconditionally guarantee in favor of the Lenders the full payment
      and performance of the Obligations.

     

    4.07  Excluded
      Kentucky Borrowing Base Property

     

    .
      The
      Excluded Kentucky Borrowing Base Property shall
      be
      excluded from the calculation of the Borrowing Base until
      (a) Administrative Agent notifies Borrower in writing that (i)
      Administrative Agent has received environmental assessments and property
      condition reports of the Excluded Kentucky
      Borrowing
      Base Property satisfactory to Administrative Agent in its sole discretion,
      and
      (ii) any remedial action deemed necessary by Administrative Agent in its sole
      discretion with respect to the Excluded Kentucky
      Borrowing
      Base Property has been taken or reserves have been established acceptable to
      Administrative Agent in its sole discretion, (b) the Mortgage with respect
      to the Excluded Kentucky
      Borrowing
      Base Property is recorded, 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (c) Administrative
      Agent receives a Title Insurance Policy covering the Excluded Kentucky
      Borrowing
      Base Property together with such other documents as Administrative Agent shall
      reasonably request with respect to the Excluded Kentucky
      Borrowing
      Base Property, and (d) Administrative Agent receives estoppel letters,
      consents, comfort letters, or other confirming agreements and/or non-disturbance
      agreements executed by the ground lessor under the applicable Ground Lease
      with
      respect to the Excluded Kentucky Borrowing Base Property. Until such time,
      the
      representation in Section 6.09,
      the
      covenant set forth in Section 7.12, and
      the
      Default set forth in Section 8.01(m),
      in so
      far as they relate to Borrowing Base Properties, shall not apply to the Excluded
      Kentucky
      Borrowing
      Base Property. Notwithstanding Section 4.05(c),
      until
      the conditions set forth above are satisfied, upon the written request of
      Borrower to Administrative Agent, Administrative Agent shall release all Liens
      on the Excluded Kentucky
      Borrowing
      Base Property so
      long as
      at the
      time of such release, no Default or Event of Default exists or would result
      therefrom.

     

    4.08  Excluded
      Tampa Borrowing Base Property

     

    .
      The
      Excluded Tampa Borrowing Base Property shall
      be
      excluded from the calculation of the Borrowing Base until (a) the Mortgage
      with respect to the Excluded Tampa Borrowing Base Property is recorded,
      (b) Administrative Agent receives an original survey of the Excluded
      Tampa
      Borrowing Base Property and improvements thereon dated a recent date
      satisfactory to Administrative Agent and the Title Company and otherwise
      complying with Exhibit H,
      (c) Administrative Agent receives a Title Insurance Policy covering
      the
      Excluded Tampa Borrowing Base Property together with such other documents as
      Administrative Agent shall reasonably request with respect to the Excluded
      Tampa
      Borrowing Base Property, and (d) Administrative Agent receives estoppel
      letters, consents, comfort letters, or other confirming agreements and/or
      non-disturbance agreements executed by the ground lessor under the applicable
      Ground Lease with respect to the Excluded Tampa Borrowing Base Property. Until
      such time, the representation in Section 6.09,
      the
      covenant set forth in Section 7.12, and
      the
      Default set forth in Section 8.01(m),
      in so
      far as they relate to Borrowing Base Properties, shall not apply to the Excluded
      Tampa Borrowing Base Property. Notwithstanding Section 4.05(c),
      until
      the conditions set forth above are satisfied, upon the written request of
      Borrower to Administrative Agent, Administrative Agent shall release its Lien
      on
      the Excluded Tampa Borrowing Base Property so
      long as
      at the
      time of such release, no Default or Event of Default exists or would result
      therefrom.

     

     

    ARTICLE
      V.  

     

     

    CONDITIONS
      PRECEDENT TO CREDIT
      EXTENSIONS

     

    5.01  Conditions
      of Initial Credit Extension

     

    .
      The
      obligation of each Lender to make its initial Credit Extension hereunder is
      subject to satisfaction of the following conditions precedent.

     

    (a) Administrative
      Agent’s receipt of the following, each of which shall be originals or facsimiles
      (followed promptly by originals) unless otherwise specified, each properly
      executed by a Responsible Officer of the signing Loan Party, each dated the
      Closing Date (or, in the case of certificates of governmental officials, a
      recent date before the Closing Date) and each in form and substance satisfactory
      to Administrative Agent and its legal counsel:

     

    (i) executed
      counterparts of this Agreement, the Guaranties, and the Security Documents
      with
      respect to the Initial Borrowing Base Properties, sufficient in number for
      distribution to Administrative Agent, each Lender, and Borrower;

     

    (ii) a
      Note
      executed by Borrower in favor of each Lender requesting a Note;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (iii) such
      certificates of resolutions or other action, incumbency certificates, and/or
      other certificates of Responsible Officers of each Loan Party as Administrative
      Agent may require evidencing the identity, authority, and capacity of each
      Responsible Officer thereof authorized to act as a Responsible Officer in
      connection with this Agreement and the other Loan Documents to which such Loan
      Party is a party;

     

    (iv) such
      documents and certifications as Administrative Agent may reasonably require
      to
      evidence that each Loan Party is duly organized or formed, and that each Loan
      Party is validly existing, in good standing, and qualified to engage in business
      in each jurisdiction where its ownership, lease or operation of properties
      or
      the conduct of its business requires such qualification, except to the extent
      that failure to do so could not reasonably be expected to have a Material
      Adverse Effect;

     

    (v) a
      favorable opinion of Lowndes, Drosdick, Doster, Kantor & Reed, P.A.,
      counsel to the Loan Parties, addressed to Administrative Agent and each Lender,
      and such other local counsel opinions as Administrative Agent shall request,
      as
      to such matters concerning the Loan Parties and the Loan Documents as
      Administrative Agent may reasonably request;

     

    (vi) a
      certificate of a Responsible Officer of each Loan Party (other than Borrower)
      either (A) attaching copies of all consents, licenses, and approvals required
      in
      connection with the execution, delivery and performance by such Loan Party
      and
      the validity against such Loan Party of the Loan Documents to which it is a
      party, and such consents, licenses, and approvals shall be in full force and
      effect, or (B) stating that no such consents, licenses, or approvals are so
      required;

     

    (vii) completed
      and executed Compliance Certificate and Borrowing Base Report, each dated as
      of
      June 30, 2005; 

     

    (viii) evidence
      that all insurance required to be maintained pursuant to the Loan Documents
      has
      been obtained and is in effect;

     

    (ix) unless
      otherwise agreed or approved by Administrative Agent, (A)
      two
      (2) prints of an original survey of each Initial Borrowing Base Property and
      improvements thereon dated not more than sixty (60) days prior to the date
      of
      this Agreement (or dated such earlier date, if any, as is satisfactory to
      Administrative Agent and the Title Company, but in any event not more than
      one
      hundred eighty (180) days prior to the date of this Agreement) and otherwise
      complying with Exhibit H
      to the
      extent required by Administrative Agent and the Title Company; and (B) a flood
      insurance policy in an amount required by Administrative Agent, but in no event
      less than the amount sufficient to meet the requirements of applicable law
      and
      the Flood Disaster Protection Act of 1973, or evidence satisfactory to
      Administrative Agent that none of the Initial Borrowing Base Properties are
      located in a flood hazard area;

     

    (x) unless
      otherwise agreed or approved by Administrative Agent, true
      and
      correct copies of all existing Plans with respect to the Initial Borrowing
      Base
      Properties within the possession or control of the Loan Parties or any Operating
      Lessee which is an Affiliate of a Loan Party (including the site plan) requested
      by Administrative Agent, together with evidence satisfactory to Administrative
      Agent that the same comply in all material respects to applicable requirements
      of Governmental Authorities;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (xi) with
      respect to each Initial Borrowing Base Property: (A) true and correct copies
      of
      each material Lease (other than the Operating Leases and Ground Leases), and
      Guarantees thereof; (B) estoppel certificates and subordination and attornment
      agreements (including nondisturbance agreements if and to the extent agreed
      by
      Administrative Agent in its discretion), dated within thirty (30) days prior
      to
      this Agreement and in form and content satisfactory to Administrative Agent,
      from the tenants and subtenants as Administrative Agent requires; and (C)
      evidence of Borrower’s or the applicable Loan Party’s compliance with each Lease
      delivered pursuant to clause
      (A)
      above;


     

    (xii) evidence
      satisfactory to Administrative Agent that no portion of any Initial Borrowing
      Base Property is “wetlands”
      under
      any applicable Law and no Initial Borrowing Base Property contains nor is within
      or near any area designated as a hazardous waste site by any Governmental
      Authority, that no Initial Borrowing Base Property or any adjoining property
      contains or has ever contained any Hazardous Material under any Law pertaining
      to health or the environment, and that no Initial Borrowing Base Property or
      any
      use or activity thereon violates or is or could be subject to any response,
      remediation, clean-up, or other obligation under any Law pertaining to health
      or
      the environment including without limitation, a written report of an
      environmental assessment of each Initial Borrowing Base Property, made within
      thirty (30) days prior to the date of this Agreement, by an engineering firm,
      and of a scope and in form and content satisfactory to Administrative Agent,
      complying with Administrative Agent’s established guidelines, showing that there
      is no evidence of any Hazardous Material which has been generated, treated,
      stored, released, or disposed of in any Initial Borrowing Base Property, and
      such additional evidence as may be required by Administrative Agent. All
      reports, drafts of reports, and recommendations, whether written or oral, from
      such engineering firm shall be made available and communicated to Administrative
      Agent;

     

    (xiii) (A)
      evidence that each Initial Borrowing Base Property abuts and has fully adequate
      direct and free access to one or more public streets, dedicated to public use,
      fully installed and accepted by the appropriate Governmental Authority, that
      all
      fees, costs and expenses of the installation and acceptance thereof have been
      paid in full, and that there are no restrictions on the use and enjoyment of
      such streets which would adversely affect such Initial Borrowing Base Property;
      (B) evidence that all applicable zoning ordinances, restrictive covenants,
      and
      Laws affecting each Initial Borrowing Base Property permit the use for which
      such Initial Borrowing Base Property is intended and have been or will be
      complied with without the existence of any variance, non-complying use,
      nonconforming use or other special exception; (C) evidence that each Initial
      Borrowing Base Property and Improvements comply and will comply with all Laws
      regarding subdivision and platting and would so comply if such Initial Borrowing
      Base Property and the Improvements thereon were conveyed as a separate parcel;
      and (D) evidence of compliance by Borrower and each Initial Borrowing Base
      Property, and any proposed construction, use and occupancy of the Improvements,
      with such other applicable Laws as Administrative Agent may request, including
      all Laws regarding access and facilities for handicapped or disabled persons
      including, without limitation and to the extent applicable, The
      Federal Architectural Barriers Act
      (42
      U.S.C. § 4151 et seq.), The
      Fair Housing Amendments Act of 1988
      (42
      U.S.C. § 3601 et seq.), The
      Americans With Disabilities Act of 1990
      (42
      U.S.C. § 12101 et seq.), The
      Rehabilitation Act of 1973
      (29
      U.S.C. § 794), and any applicable state requirements;

     

    (xiv) evidence
      (A) of the identity of all taxing authorities and utility districts (or similar
      authorities) currently exercising ad valorem or real property taxing or
      assessment

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    jurisdiction
      over any Initial Borrowing Base Property or any portion thereof; (B) that all
      taxes, standby fees and any other similar charges have been paid, including
      copies of receipts or statements marked “paid” by the appropriate authority; and
      (C) that each Initial Borrowing Base Property is a separate tax lot or lots
      with
      separate assessment or assessments of the Initial Borrowing Base Property and
      Improvements, independent of any other Initial Borrowing Base Property or
      improvements and that each Initial Borrowing Base Property is a separate legally
      subdivided parcel;

     

    (xv) executed,
      acknowledged, and/or sworn to as required counterparts of the Mortgages, which
      shall have been delivered to the Title Company and released for recordation
      in
      the official records of the city or county in which each Initial Borrowing
      Base
      Property is located, and UCC-1 financing statements which shall have been
      furnished for filing in all filing offices that Administrative Agent may
      require;

     

    (xvi) a
      Title
      Policy or a Title Commitment for such Title Policy (or a title insurance policy
      promulgated by the Laws of the state in which each respective Initial Borrowing
      Base Property is located if an ALTA insurance policy is not available), in
      the
      amount of the Aggregate Commitments plus any other amount secured by the
      applicable Mortgage. Borrower and Borrower’s counsel shall not have any
      interest, direct or indirect, in the Title Company (or its agent) or any portion
      of the premium paid for the Title Insurance; 

     

    (xvii) (A)
      evidence that immediately prior to the Closing Date and as of the time the
      Mortgages will be filed for record: (1) no contract, or memorandum thereof,
      for
      construction, design, surveying, or any other service relating to any Initial
      Borrowing Base Property has been filed for record in the county where such
      Initial Borrowing Base Property is located; and (2) no mechanic’s or
      materialman’s Lien claim or notice, lis pendens, judgment, or other claim or
      encumbrance against such Initial Borrowing Base Property has been filed for
      record in the county where the Initial Borrowing Base Property is located or
      in
      any other public record which by Law provides notice of claims or encumbrances
      regarding such Initial Borrowing Base Property; (B) a certificate or
      certificates of a reporting service acceptable to Administrative Agent,
      reflecting the results of searches made not earlier than forty-five (45) days
      prior to the date of this Agreement, (1) of the central and local Uniform
      Commercial Code records, showing no filings against any of the collateral for
      the Obligations or against Borrower otherwise except as consented to by
      Administrative Agent; and (2) if required by Administrative Agent, of the
      appropriate judgment and tax Lien records, showing no outstanding judgment
      or
      tax Lien against Borrower;

     

    (xviii) to
      the
      extent reasonably deemed necessary by Administrative Agent, an executed REA
      estoppel letter from each party to any REA for any applicable Initial Borrowing
      Base Property;

     

    (xix) a
      true
      and correct copy of each Management Agreement with respect to each Initial
      Borrowing Base Property;

     

    (xx) a
      true
      and correct copy of (A) each Franchise Agreement, and (B) each Operating Lease;
      

     

    (xxi) an
      Acceptable Appraisal of each Initial Borrowing Base Property;

     

    (xxii) a
      true
      and correct copy of each Ground Lease; and

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (xxiiii) such
      other assurances, certificates, documents, consents, or opinions as
      Administrative Agent or the Required Lenders reasonably may
      require.

     

    (b) Any
      fees
      required to be paid on or before the Closing Date shall have been
      paid.

     

    (c) Unless
      waived by Administrative Agent, Borrower shall have paid all Attorney Costs
      of
      Administrative Agent to the extent invoiced prior to or on the Closing Date,
      plus such additional amounts of Attorney Costs as shall constitute its
      reasonable estimate of Attorney Costs incurred or to be incurred by it through
      the closing proceedings (provided that
      such
      estimate shall not thereafter preclude a final settling of accounts between
      Borrower and Administrative Agent).

     

    5.02  Conditions
      to all Credit Extensions

     

     

    .
      The
      obligation of each Lender to honor any Request for Credit Extension (other
      than
      a Loan Notice requesting only a conversion of Loans to the other Type, or a
      continuation of Eurodollar Rate Loans) is subject to the following conditions
      precedent:

     

    (a) The
      representations and warranties contained in Article VI
      or any
      other Loan Document, or which are contained in any document furnished at any
      time under or in connection herewith or therewith, shall be true and correct
      on
      and as of the date of such Credit Extension, except to the extent that such
      representations and warranties specifically refer to an earlier date, in which
      case they shall be true and correct as of such earlier date, and except that
      for
      purposes of this Section 5.02,
      the
      representations and warranties contained in subsections (a) and (b) of
Section 6.05
      shall be
      deemed to refer to the most recent statements furnished pursuant to clauses
      (a)
      and (b), respectively, of Section 7.01.

     

    (b) No
      Default shall exist, or would result from such proposed Credit
      Extension.

     

    (c) Administrative
      Agent and, if applicable, the L/C Issuer shall have received a Request for
      Credit Extension in accordance with the requirements hereof.

     

    Each
      Request for Credit Extension (other than a Loan Notice requesting only a
      conversion of Loans to the other Type or a continuation of Eurodollar Rate
      Loans) submitted by Borrower shall be deemed to be a representation and warranty
      that the conditions specified in Sections
      5.02(a)
      and
(b)
      have
      been satisfied on and as of the date of the applicable Credit
      Extension.

     

     

    ARTICLE
      VI.  

     

     

    REPRESENTATIONS
      AND WARRANTIES

     

    Parent
      and Borrower represent and warrant to Administrative Agent and the Lenders
      that:

     

    6.01  Existence,
      Qualification and Power; Compliance with Laws

     

    .
      Each
      Loan Party (a) is a corporation, partnership, or limited liability company
      duly
      organized or formed, validly existing, and in good standing under the Laws
      of
      the jurisdiction of its incorporation or organization, (b) has all requisite
      power and authority and all requisite governmental licenses, authorizations,
      consents, and approvals to (i) own its assets and carry on its business and
      (ii)
      execute, deliver, and perform its obligations under the Loan Documents to which
      it is a party, (c) is duly qualified and is licensed and in good standing under
      the Laws of each jurisdiction where its ownership, lease, or operation of
      properties or the conduct of its business requires such qualification or
      license, and (d) is in compliance with all Laws; except in each case referred
      to
      in clause (b)(i), (c), or (d), to the extent that failure to do so could not
      reasonably be expected to have a Material Adverse Effect.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    6.02  Authorization;
      No Contravention

     

    .
      The
      execution, delivery, and performance by each Loan Party of each Loan Document
      to
      which such Person is party, have been duly authorized by all necessary corporate
      or other organizational action, and do not and will not: (a) contravene the
      terms of any of such Person's Organization Documents; (b) conflict with or
      result in any breach or contravention of, or the creation of any Lien under,
      (i)
      any Contractual Obligation to which such Person is a party or (ii) any order,
      injunction, writ or decree of any Governmental Authority or any arbitral award
      to which such Person or its property is subject; or (c) violate any
      Law.

     

    6.03  Governmental
      Authorization; Other Consents

     

    .
      No
      approval, consent, exemption, authorization, or other action by, or notice
      to,
      or filing with, any Governmental Authority or any other Person is necessary
      or
      required in connection with the execution, delivery, or performance by, or
      enforcement against, any Loan Party of this Agreement or any other Loan
      Document.

     

    6.04  Binding
      Effect

     

    .
      This
      Agreement has been, and each other Loan Document, when delivered hereunder,
      will
      have been, duly executed and delivered by each Loan Party that is party thereto.
      This Agreement constitutes, and each other Loan Document when so delivered
      will
      constitute, a legal, valid, and binding obligation of such Loan Party,
      enforceable against each Loan Party that is party thereto in accordance with
      its
      terms.

     

    6.05  Financial
      Statements; No Material Adverse Effect.

     

    (a) The
      Audited Financial Statements (i) were prepared in accordance with GAAP
      consistently applied throughout the period covered thereby, except as otherwise
      expressly noted therein, (ii) fairly present the financial condition of Parent
      and the Subsidiaries as of the date thereof and their results of operations
      for
      the period covered thereby in accordance with GAAP consistently applied
      throughout the period covered thereby, except as otherwise expressly noted
      therein, and (iii) show all material indebtedness and other liabilities, direct
      or contingent, of Parent and the Subsidiaries as of the date thereof, including
      liabilities for taxes, material commitments, and Indebtedness.

     

    (b) The
      unaudited consolidated financial statements of Parent and the Subsidiaries
      dated
      [June 30, 2005], and the related consolidated statements of income or
      operations, shareholders’ equity, and cash flows for the fiscal quarter ended on
      that date (i) were prepared in accordance with GAAP consistently applied
      throughout the period covered thereby, except as otherwise expressly noted
      therein, and (ii) fairly present the financial condition of Parent and the
      Subsidiaries as of the date thereof and their results of operations for the
      period covered thereby, subject, in the case of clauses (i) and (ii), to the
      absence of footnotes and to normal year-end audit adjustments.

     

    (c) The financial
      statements relating
      to
      Borrower
      and its Subsidiaries for the fiscal quarter ended [June 30,
      2005] as provided to Lender were
      prepared in accordance with GAAP consistently applied throughout the period
      covered thereby, except as otherwise expressly noted therein, and (ii) fairly
      present the related
      financial
      condition of Borrower and its Subsidiaries as reflected
      therein as of
      the
      date thereof and their results of operations for the period covered thereby,
      subject,
      to the
      absence of footnotes and to normal year-end audit adjustments.

     

    (d) Since
      the
      date of the Audited Financial Statements, there has been no event or
      circumstance, either individually or in the aggregate, that has had or could
      reasonably be expected to have a Material Adverse Effect. 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    6.06  Litigation

     

    .
      Except
      as specifically disclosed in writing to the Lenders prior to the Closing Date,
      there are
      no
      actions, suits, proceedings, claims, or disputes pending or, to the knowledge
      of
      Borrower after due and diligent investigation, threatened or contemplated,
      at
      law, in equity, in arbitration or before any Governmental Authority, by or
      against Borrower or any of its Subsidiaries or against any of their properties
      or revenues that (a) purport to affect or pertain to this Agreement or any
      other
      Loan Document, or any of the transactions contemplated hereby, or (b) either
      individually or in the aggregate, if determined adversely, could reasonably
      be
      expected to have a Material Adverse Effect.

     

    6.07  No
      Default

     

    .
      Neither
      Parent nor any Subsidiary is in default under or with respect to any Contractual
      Obligation that could, either individually or in the aggregate, reasonably
      be
      expected to have a Material Adverse Effect. No Default has occurred and is
      continuing or would result from the consummation of the transactions
      contemplated by this Agreement or any other Loan Document.

     

    6.08  Ownership
      of Property; Liens

     

    .
      Each of
      Parent and each Subsidiary has good record and marketable title in fee simple
      to, or valid leasehold interests in, all Real Property necessary or used in
      the
      ordinary conduct of its business, except for such defects in title as could
      not,
      individually or in the aggregate, reasonably be expected to have a Material
      Adverse Effect. The Borrowing Base Properties are subject to no Liens, other
      than Liens permitted by Section 8.01.

     

    6.09  Environmental
      Representations.

     

    (a) Parent
      and each Subsidiary conduct in the ordinary course of business a review of
      the
      effect of Environmental Laws and claims alleging potential liability or
      responsibility for violation of any Environmental Law on their respective
      businesses, operations, and properties, and as a result thereof Parent and
      each
      Subsidiary have reasonably concluded that such Environmental Laws and claims
      could not, individually or in the aggregate, reasonably be expected to cause
      a
      Material Property Event.

     

    (b) After
      due
      inquiry and investigation in accordance with good commercial or customary
      practices to determine whether contamination is present on any Borrowing Base
      Property or elsewhere in connection with any activity on such Borrowing Base
      Property, without regard to whether Administrative Agent or any Lender has
      or
      hereafter obtains any knowledge or report of the environmental condition of
      such
      Borrowing Base Property, except as may be indicated in the environmental
      assessment reports delivered to Administrative Agent prior to the Closing Date
      in connection with its due diligence investigations in connection with the
      Loans: (a) during the period of Parent’s or any Subsidiaries’ ownership of any
      Borrowing Base Property, such Borrowing Base Property has not been used for
      industrial or manufacturing purposes, for landfill, dumping, or other waste
      disposal activities or operations, for generation, storage, use, sale,
      treatment, processing, recycling, or disposal of any Hazardous Material, for
      underground or aboveground storage tanks, or for any other use that could give
      rise to a Material Property Event; to Parent’s and each Subsidiaries’ knowledge,
      no such use of any Borrowing Base Property occurred at any time prior to the
      period of Parent’s or any Subsidiaries’ ownership of such Borrowing Base
      Property; and to Parent’s and each Subsidiaries’ knowledge, no such use on any
      adjacent property occurred at any time prior to the date hereof which could
      reasonably be expected to cause a Material Property Event; (b) to Parent’s and
      each Subsidiaries’ knowledge, there is no Hazardous Material, storage tank (or
      similar vessel) whether underground or otherwise, sump or well currently on
      any
      Borrowing Base Property which could reasonably be expected to cause a Material
      Property Event; (c) neither Parent nor any Subsidiary has received any notice
      and has no knowledge of any Environmental Claim or any completed, pending or
      proposed or threatened investigation or inquiry concerning the presence or
      release of any Hazardous Material on any Borrowing Base Property or any adjacent
      property or concerning whether any condition, use or activity on any Borrowing
      Base Property 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    or
      any
      adjacent property is in violation of any Environmental Requirement; (d) the
      present conditions, uses, and activities on any Borrowing Base Property does
      not
      violate any Environmental Requirement and the use of any Borrowing Base Property
      which Parent or any Subsidiary (and each tenant and subtenant, if any) makes
      and
      intends to make of any Borrowing Base Property complies and will comply with
      all
      applicable Environmental Requirements; (e) no Borrowing Base Property appears
      on
      and to Parent’s and each Subsidiaries’ knowledge have ever been on the National
      Priorities List, any federal or state “superfund” or “superlien” list, or any
      other list or database of properties maintained by any local, state, or federal
      agency or department showing properties which are known to contain or which
      are
      suspected of containing a Hazardous Material; (f) neither Parent nor any
      Subsidiary has ever applied for and been denied environmental impairment
      liability insurance coverage relating to any Borrowing Base Property; and (g)
      neither Parent or any Subsidiary has, nor have, to Parent’s and each
      Subsidiaries’ knowledge, any tenants or subtenants, obtained any permit or
      authorization to construct, occupy, operate, use, or conduct any activity on
      any
      Borrowing Base Property by reason of any Environmental Requirement.

     

    (c) Even
      though Borrower may have provided Administrative Agent with an Environmental
      Assessment or other environmental report together with other relevant
      information regarding the environmental condition of the Borrowing Base
      Properties, Borrower acknowledges and agrees that Administrative Agent is not
      accepting the Borrowing Base Properties as security for the Obligations based
      on
      that assessment, report, or information. Rather Administrative Agent has relied
      on the representations and warranties of Borrower in this Agreement and the
      Mortgages, and Administrative Agent is not waiving any of its rights and
      remedies in the environmental provisions of this Agreement, the Mortgages,
      or
      any other Loan Document.

     

    6.10  Insurance

     

    .
      The
      Borrowing Base Properties of Borrower and its Subsidiaries are insured with
      financially sound and reputable insurance companies not Affiliates of Parent,
      in
      such amounts, with such deductibles and covering such risks as are customarily
      carried by companies engaged in similar businesses and owning similar properties
      in localities where Parent or the applicable Subsidiary
      operates.

     

    6.11  Taxes

     

    .
      Parent
      and its Subsidiaries have filed all Federal, state, and other material tax
      returns and reports required to be filed, and have paid all Federal, state,
      and
      other material taxes, assessments, fees, and other governmental charges levied
      or imposed upon them or their properties, income, or assets otherwise due and
      payable, except those which are being contested in good faith by appropriate
      proceedings diligently conducted and for which adequate reserves have been
      provided in accordance with GAAP. There is no proposed tax assessment against
      Parent or any Subsidiary that would, if made, have a Material Adverse
      Effect.

     

    6.12  ERISA
      Compliance.

     

    (a) Each
      Plan
      is in compliance in all material respects with the applicable provisions of
      ERISA, the Code and other Federal or state Laws. Each Plan that is intended
      to
      qualify under Section 401(a) of the Code has received a favorable
      determination letter from the IRS or an application for such a letter is
      currently being processed by the IRS with respect thereto and, to the best
      knowledge of Parent and Borrower, nothing has occurred which would prevent,
      or
      cause the loss of, such qualification. Parent and each ERISA Affiliate have
      made
      all required contributions to each Plan subject to Section 412 of the
      Code,
      and no application for a funding waiver or an extension of any amortization
      period pursuant to Section 412 of the Code has been made with respect
      to
      any Plan.

     

    (b) There
      are
      no pending or, to the best knowledge of Parent and Borrower, threatened claims,
      actions, or lawsuits, or action by any Governmental Authority, with respect
      to
      any Plan that could be reasonably be expected to have a Material Adverse Effect.
      There has been no prohibited transaction or

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    violation
      of the fiduciary responsibility rules with respect to any Plan that has resulted
      or could reasonably be expected to result in a Material Adverse
      Effect.

     

    (c) (i)
      No
      ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension
      Plan has any Unfunded Pension Liability; (iii) neither Parent nor any ERISA
      Affiliate has incurred, or reasonably expects to incur, any liability under
      Title IV of ERISA with respect to any Pension Plan (other than premiums due
      and
      not delinquent under Section 4007 of ERISA); (iv) neither Parent nor
      any
      ERISA Affiliate has incurred, or reasonably expects to incur, any liability
      (and
      no event has occurred which, with the giving of notice under Section 4219
      of ERISA, would result in such liability) under Sections 4201 or 4243
      of
      ERISA with respect to a Multiemployer Plan; and (v) neither Parent nor any
      ERISA
      Affiliate has engaged in a transaction that could be subject to Sections 4069
      or
      4212(c) of ERISA.

     

    (d) (i)
      neither Parent nor any Loan Party is, nor will be (A) a Pension Plan; or (B)
      a
“plan” within the meaning of Section 4975(e)
      of the
      Code; (ii) the assets of Parent and its Subsidiaries do not and will not
      constitute “plan assets” within the meaning of the United States Department of
      Labor Regulations set forth in 29 C.F.R. §2510.3-101; (iii) neither Parent nor
      any Loan Party is, nor will be a “governmental plan” within the meaning of
Section 3(32)
      of
      ERISA; (iv) transactions by or with Parent or any Loan Party are not and will
      not be subject to state statutes applicable to Parent and any Loan Party
      regulating investments of fiduciaries with respect to governmental plans; and
      (v) neither Parent nor any Loan Party shall engage in any transaction which
      would cause any obligation, or action taken or to be taken, hereunder (or the
      exercise by Administrative Agent or any Lender of any of its rights under this
      Agreement, any Note, or the other Loan Documents) to be a non-exempt (under
      a
      statutory or administrative class exemption) prohibited transaction under ERISA
      or Section 4975
      of the
      Code. Parent further agrees to deliver to Administrative Agent such
      certifications or other evidence of compliance with the provisions of this
      Section 6.12
      as
      Administrative Agent may from time to time request.

     

    6.13  Margin
      Regulations; Investment Company Act; Public Utility Holding Company
      Act.

     

    (a) Neither
      Parent nor any of the Subsidiaries is currently engaged and will not engage,
      principally or as one of its important activities, in the business of purchasing
      or carrying margin stock (within the meaning of Regulation U issued by the
      FRB),
      or extending credit for the purpose of purchasing or carrying margin stock.
      

     

    (b) None
      of
      Parent, any Person Controlling Parent, or any Subsidiary of Parent (i) is a
      “holding company,” or a “subsidiary company” of a “holding company,” or an
“affiliate” of a “holding company” or of a “subsidiary company” of a “holding
      company,” within the meaning of the Public Utility Holding Company Act of 1935,
      or (ii) is or is required to be registered as an “investment company” under the
      Investment Company Act of 1940.

     

    6.14  Disclosure

     

    .
      Each of
      Parent and Borrower has disclosed to Administrative Agent and the Lenders all
      agreements, instruments, and corporate or other restrictions to which it or
      any
      of its Subsidiaries is subject, and all other matters known to it, that,
      individually or in the aggregate, could reasonably be expected to result in
      a
      Material Adverse Effect. No report, financial statement, certificate, or other
      information furnished (whether in writing or orally) by or on behalf of any
      Loan
      Party to Administrative Agent or any Lender in connection with the transactions
      contemplated hereby and the negotiation of this Agreement or delivered hereunder
      (as modified or supplemented by other information so furnished) contains any
      material misstatement of fact or omits to state any material fact necessary
      to
      make the statements therein, in the light of the circumstances under which
      they
      were made, not misleading; provided that,
      with
      respect to projected financial information, each of Parent and Borrower


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    represents
      only that such information was prepared in good faith based upon assumptions
      believed to be reasonable at the time.

     

    6.15  Compliance
      with Laws

     

    .
      Parent
      and each of the Subsidiaries are in compliance in all material respects with
      the
      requirements of all Laws and all orders, writs, injunctions and decrees
      applicable to it or to its properties, except in such instances in which (a)
      such requirement of Law or order, writ, injunction, or decree is being contested
      in good faith by appropriate proceedings diligently conducted or (b) the failure
      to comply therewith, either individually or in the aggregate, could not
      reasonably be expected to have a Material Adverse Effect.

     

    6.16  Intellectual
      Property; Licenses, Etc.

     

    Parent
      and the Subsidiaries own, or possess the right to use, all of the trademarks,
      service marks, trade names, copyrights, patents, patent rights, franchises,
      licenses, and other intellectual property rights (collectively, “IP
      Rights”)
      that
      are reasonably necessary for the operation of their respective businesses,
      without conflict with the rights of any other Person. To the best knowledge
      of
      Parent, no slogan or other advertising device, product, process, method,
      substance, part, or other material now employed, or now contemplated to be
      employed, by Parent or any Subsidiary infringes upon any rights held by any
      other Person. No claim or litigation regarding any of the foregoing is pending
      or, to the best knowledge of Parent, threatened, which, either individually
      or
      in the aggregate, could reasonably be expected to have
      a
      Material Adverse Effect.

     

    6.17  Drainage/Condemnation/Zoning

     

    .
      The Improvements
      have not been damaged and not repaired and are not the subject of any pending
      or
      threatened condemnation or adverse zoning proceeding, except as could not
      reasonably be expected to cause a Material Property Event or as specifically
      disclosed to Administrative Agent in writing as of the Closing
      Date.

     

    6.18  Property
      Condition

     

    .
      Except
      as otherwise disclosed to Administrative Agent in writing (a) all Borrowing
      Base
      Properties comply with all Laws, including all subdivision and platting
      requirements, without reliance on any adjoining or neighboring property except
      where the failure to comply could not reasonably be expected to cause a Material
      Property Event, (b) the Improvements comply with all Laws regarding access
      and
      facilities for handicapped or disabled persons except where the failure to
      comply could not reasonably be expected to cause a Material Property Event,
      (c)
      neither Parent nor any of its Subsidiaries has directly or indirectly conveyed,
      assigned, or otherwise disposed of, or transferred (or agreed to do so) any
      development rights, air rights, or other similar rights, privileges, or
      attributes with respect to any Borrowing Base Properties, including those
      arising under any zoning or property use ordinance or other Law, (d) all utility
      services necessary for the use of the Borrowing Base Properties and the
      Improvements and the operation thereof for their intended purpose are
      satisfactory, (e) except as otherwise provided for in the Loan Documents,
      neither Parent nor any of its Subsidiaries has made any contract or arrangement
      of any kind the performance of which by the other party thereto would give
      rise
      to Liens on the Borrowing Base Properties, and (f) the current and anticipated
      use of the Borrowing Base Properties complies in all material respects with
      all
      applicable zoning ordinances, regulations, and restrictive covenants affecting
      the Borrowing Base Properties without the existence of any variance,
      non-complying use, nonconforming use, or other special exception, all use
      restrictions of any Governmental Authority having jurisdiction have been
      satisfied, and no violation of any Law or regulation exists with respect thereto
      except where the failure to comply could not reasonably be expected to cause
      a
      Material Property Event.

     

    6.19  Representations
      Concerning Leases

     

    .
      Each
      Loan Party has delivered to Administrative Agent a true and correct copy of
      any
      major tenant Lease and each guarantee thereof (if any), affecting any material
      part of the Improvements and in the possession or control of such Loan Party
      or
      any Operating Lessee which is an Affiliate of a Loan Party and have delivered
      all Operating Leases, together with property-level financial information for
      the
      Borrowing Base Properties, and no such Lease or guarantee

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    contains
      any option to purchase all or any portion of the Borrowing Base Properties
      or
      any interest therein or contains any right of first refusal relating to any
      sale
      of the Borrowing Base Properties or any portion thereof or interest
      therein.

     

    6.20  Contracts
      and Plans

     

    .
      To the
      knowledge of Parent and Borrower,
      the copy
      of any construction, architectural design, management, brokerage, or contract
      relating to the Borrowing Base Properties furnished or to be furnished to
      Administrative Agent is and shall be a true and complete copy thereof, that
      the
      copies of the Plans delivered to Administrative Agent are and shall be true
      and
      complete copies of the Plans as are in the possession or control of any Loan
      Party, or any Operating Lessee which is an Affiliate of a Loan Party, that
      there
      have been no modifications thereof which are not fully set forth in the copies
      delivered, and that each Loan Party’s respective interests therein are not
      subject to any claim, setoff, or encumbrance, except as disclosed to
      Administrative Agent in writing.

     

    6.21  Condemnation

     

    .
      No
      Condemnation or other proceeding has been commenced or, to each Loan Party’s
      knowledge, is threatened or contemplated with respect to all or any portion
      of
      the Borrowing Base Properties or for the relocation of roadways providing access
      to the Borrowing Base Properties except where such Condemnation or other
      proceeding could not reasonably be expected to cause a Material Property
      Event.

     

    6.22  Reciprocal
      Agreements.

     

    (a) No
      Loan
      Party is currently in default in any respect (nor has any notice been given
      or
      received with respect to an alleged or current default) under any of the terms
      and conditions of any REA, and each REA remains unmodified and in full force
      and
      effect except where such failure could not reasonably be expected to cause
      a
      Material Property Event.

     

    (b) All
      sums
      due and owing by any Loan Party to the other parties to each REA (or by the
      other parties to each REA to any Loan Party) pursuant to the terms of such
      REA,
      have been paid, are current, and no lien has attached on any Borrowing Base
      Property (or threat thereof been made) for failure to pay any of the foregoing
      except where such failure could not reasonably be expected to cause a Material
      Property Event.

     

    6.23  Management
      Agreements

     

    .
      Each
      Management Agreement is in full force and effect and there is no default or
      terminating event thereunder by any Loan Party, or, to each Loan Party’s
      knowledge, any other party thereto and, to each Loan Party’s knowledge, no event
      has occurred that, with the passage of time and/or the giving of notice would
      constitute a default or terminating event thereunder except for such defaults
      or
      terminating events specifically disclosed to Administrative Agent in writing
      as
      of the Closing Date or which could
      not
      reasonably be expected to cause a Material Property Event.
      No
      management fees under any Management Agreement are accrued and unpaid except
      as
      provided or permitted under the express terms of a Management
      Agreement.

     

    6.24  Franchise
      Agreements

     

    .
      Each
      Franchise Agreement is in full force and effect and there is no default or
      terminating event thereunder by any Loan Party, or, to each Loan Party’s
      knowledge, any other party thereto and, to each Loan Party’s knowledge, no event
      has occurred that, with the passage of time and/or the giving of notice would
      constitute a default or terminating event thereunder except for such defaults
      or
      terminating events specifically disclosed to Administrative Agent in writing
      as
      of the Closing Date or which could
      not
      reasonably be expected to cause a Material Property Event.
      As of
      the date hereof, no unpaid fees are due and payable under any Franchise
      Agreement, including, without limitation, all franchise fees, reservation fees,
      and royalties.

     

    6.25  Solvency

     

    .
      Each
      Loan Party is, and after giving effect to the Loans, will be,
      Solvent.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    6.26  Ground
      Lease Representations.

     

    (a) Each
      Ground Lease is in full force and effect.

     

    (b) There
      are
      no defaults or
      terminating events under
      any
      Ground Lease by any Loan Party, or, to each Loan Party’s knowledge, any ground
      lessor thereunder, and, to each Loan Party’s knowledge, no event has occurred
      which but for the passage of time, or notice, or both would constitute a default
      or
      terminating event under
      any
      Ground Lease except for such defaults or terminating events specifically
      disclosed to Administrative Agent in writing as of the Closing Date or which
      could not reasonably be expected to cause a Material Property
      Event.

     

    (c) All
      rents, additional rents, and other sums due and payable under each Ground Lease
      have been paid in full.

     

    (d) No
      Loan
      Party nor the ground lessor under any Ground Lease has commenced any action
      or
      given or received any notice for the purpose of terminating such Ground Lease
      which could reasonably be expected to cause a Material Property
      Event.

     

    (e) Each
      Ground Lease or a memorandum thereof has been duly recorded. Each Ground Lease
      permits the interest of the applicable Loan Party to be encumbered by a
      mortgage.

     

    (f) Each
      Loan
      Party’s interest in each Ground Lease is not subject to any Liens or
      encumbrances superior to, or of equal priority with, the related Mortgage other
      than the ground lessor’s related fee interest and Liens for taxes not yet due
      and payable and as otherwise set forth in the Title Insurance.

     

    (g) Each
      Loan
      Party’s interest in each Ground Lease is assignable to Administrative Agent upon
      notice to, but without the consent of, the ground lessor thereunder (or, if
      any
      such consent is required, it has been obtained prior to the date hereof) except
      to the extent non-assignability could not reasonably be expected to cause a
      Material Property Event.

     

    6.27  Operating
      Leases.

     

    (a) Each
      Operating Lease is in full force and effect and has not been modified or amended
      in any manner whatsoever (with the exception of written instruments which have
      been recorded).

     

    (b) There
      are
      no defaults or
      terminating events under
      any
      Operating Lease by any Loan Party or Subsidiary, or, to such Loan Party’s
      knowledge, the Operating Lessee thereunder, and, to such Loan Party’s knowledge,
      no event has occurred which but for the passage of time, or notice, or both
      would constitute a default or
      terminating event under
      any
      Operating Lease except
      for such defaults or terminating events specifically disclosed to Administrative
      Agent in writing as of the Closing Date or which could
      not
      reasonably be expected to cause a Material Property Event.

     

    (c) All
      rents, additional rents, and other sums due and payable under each Operating
      Lease have been paid in full.

     

    (d) No
      Loan
      Party nor the Operating Lessee under any Operating Lease has commenced any
      action or given or received any notice for the purpose of terminating such
      Operating Lease which could reasonably be expected to cause a Material Property
      Event.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    6.28  Pooling
      Agreements

     

    .
      None of
      the Borrowing
      Base Properties are subject to Pooling Agreements other than as disclosed on
      Schedule 6.28
      or as
      permitted by Section 8.16.

     

    6.29  Manager
      Liquidity Facilities

     

    .
      Neither
      Borrower nor any of its Subsidiaries are
      parties to any Manager Liquidity Facility Agreement other than as disclosed
      on
Schedule 6.29,
      and the
      outstanding amount of advances or other extensions of credit made pursuant
      to
      such Manager Liquidity Facility Agreement is as set forth on such Schedule.
      All
      obligations of Borrower and its Subsidiaries in respect of such advances or
      other extensions of credit are unsecured.

     

    6.30  Service
      Contracts

     

    .
      No Loan
      Party has entered into any agreements or contracts with respect to property
      or
      services to be provided by third parties with respect to any Borrowing Base
      Property other than in the ordinary course of business on customary and
      reasonable terms and that, if terminated, could not reasonably be expected
      to
      have a Material Property Event.

     

     

    ARTICLE
      VII.  

     

     

    AFFIRMATIVE
      COVENANTS

     

    So
      long
      as any Lender shall have any Commitment hereunder, any Loan or other Obligation
      hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
      remain outstanding:

     

    7.01  Financial
      Statements

     

    .
      Parent
      and Borrower shall deliver to Administrative Agent and each Lender, in form
      and
      detail satisfactory to Administrative Agent and the Required
      Lenders:

     

    (a) as
      soon
      as available, but in any event within ninety (90) days after the end of each
      fiscal year of Parent, a consolidated balance sheet of Parent and its
      Subsidiaries as at the end of such fiscal year, along with the related
      consolidated statements of income or operations, shareholders’ equity and cash
      flows for such fiscal year, setting forth in each case in comparative form
      the
      figures for the previous fiscal year, all in reasonable detail and prepared
      in
      accordance with GAAP, audited and accompanied by a report and opinion of an
      independent certified public accountant of nationally recognized standing
      reasonably acceptable to the Required Lenders, which report and opinion shall
      be
      prepared in accordance with generally accepted auditing standards and shall
      not
      be subject to any “going concern” or like qualification or exception or any
      qualification or exception as to the scope of such audit; and

     

    (b) as
      soon
      as available, but in any event within ninety (90) days after the end of each
      fiscal year of Borrower, an unaudited consolidated balance sheet of Borrower
      and
      its Subsidiaries as at the end of such fiscal year, along with the related
      consolidated statements of income or operations, shareholders’ equity and cash
      flows for such fiscal year, setting forth in each case in comparative form
      the
      figures for the previous fiscal year, all in reasonable detail and prepared
      in
      accordance with GAAP, all
      in
      reasonable detail and certified by a Responsible Officer of Borrower as
      fairly
      presenting the financial condition, results of operations, shareholders’ equity
      and cash flows of Borrower and its Subsidiaries in accordance with
      GAAP;
      and

     

    (c) as
      soon
      as available, but in any event within forty-five (45) days after the end of
      (i)
      each of the first three fiscal quarters of each fiscal year of Parent, and
      (ii)
      each of the first three fiscal quarters of each fiscal year of Borrower, a
      consolidated balance sheet of (A) Parent and its Subsidiaries as at the end
      of
      such fiscal quarter, and (B) Borrower and its Subsidiaries as at the end of
      such
      fiscal quarter, in each case along with the related consolidated statements
      of
      income or operations, shareholders’ equity and cash flows for such fiscal
      quarter and for the portion of Parent’s or Borrower’s, as applicable, fiscal


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    year
      then
      ended, setting forth in each case in comparative form the figures for the
      corresponding fiscal quarter of the previous fiscal year and the corresponding
      portion of the previous fiscal year, all in reasonable detail and certified
      by a
      Responsible Officer of Parent or Borrower, as applicable, as fairly presenting
      the financial condition, results of operations, shareholders’ equity and cash
      flows of Parent or Borrower, as applicable, and its Subsidiaries in accordance
      with GAAP, subject only to normal year-end audit adjustments and the absence
      of
      footnotes.

     

    7.02  Certificates;
      Other Information

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, deliver
      to
      Administrative Agent and each Lender, in form and detail satisfactory to
      Administrative Agent and the Required Lenders:

     

    (a) concurrently
      with the delivery of the financial statements referred to in Sections 7.01(a),
      (b),
      and
(c)
      (i) a
      duly completed Compliance Certificate signed by a Responsible Officer of
      Borrower, and (ii) a Borrowing Base Report; 

     

    (b) promptly
      after any request by Administrative Agent or any Lender, copies of any detailed
      audit reports, management letters, or recommendations submitted to the board
      of
      directors (or the audit committee of the board of directors) of Parent or
      Borrower by independent accountants in connection with the accounts or books
      of
      Parent, Borrower or any Subsidiary, or any audit of any of them;

     

    (c) promptly
      after the same are available, copies of each annual report, proxy, or financial
      statement or other report or communication sent to the stockholders of Parent,
      and copies of all annual, regular, periodic, and special reports and
      registration statements which Parent may file or be required to file with the
      SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
      and
      not otherwise required to be delivered to Administrative Agent pursuant hereto;
      

     

    (d) copies
      of
      all “Property Improvement Plan” reports, “Official Standard Index” reports, and
      similar reports with respect to the Borrowing Base Properties; and

     

    (e) promptly,
      such additional information regarding the business, financial, or corporate
      affairs of Parent, Borrower or any Subsidiary, or compliance with the terms
      of
      the Loan Documents, as Administrative Agent or any Lender may from time to
      time
      reasonably request.

     

    Documents
      required to be delivered pursuant to Section 7.01(a)
      or
(b)
      or
Section 7.02(c)
      (to the
      extent any such documents are included in materials otherwise filed with the
      SEC) may be delivered electronically and if so delivered, shall be deemed to
      have been delivered on the date (i) on which Parent or Borrower posts such
      documents, or provides a link thereto on Parent’s website on the Internet at the
      website address listed on Schedule 11.02;
      or (ii)
      on which such documents are posted on Borrower’s behalf on
      IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
      and Administrative Agent have access (whether a commercial, third-party website
      or whether sponsored by Administrative Agent); provided that:
      (i)
      Parent and Borrower shall deliver paper copies of such documents to
      Administrative Agent or any Lender that requests Parent and Borrower to deliver
      such paper copies until a written request to cease delivering paper copies
      is
      given by Administrative Agent or such Lender and (ii) Borrower shall notify
      (which may be by facsimile or electronic mail) Administrative Agent and each
      Lender of the posting of any such documents. Notwithstanding anything contained
      herein, in every instance Borrower shall be required to provide paper copies
      of
      the Compliance Certificates required by Section 7.02(b)
      to
      Administrative Agent and each of the Lenders. Except for such Compliance
      Certificates, Administrative Agent shall have no obligation to request the
      delivery or to maintain copies of the documents referred to above, and in any
      event shall have no responsibility to monitor compliance by Borrower with any
      such request for delivery, and each Lender shall be solely responsible for
      requesting delivery to it or maintaining its copies of such
      documents.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    Parent
      and Borrower hereby acknowledge that (a) Administrative Agent and/or Arranger
      will make available to Lenders and L/C Issuer materials and/or information
      provided by or on behalf of Parent or Borrower hereunder (collectively,
“Borrower
      Materials”)
      by
      posting Borrower Materials on IntraLinks or another similar electronic system
      (the “Platform”)
      and
      (b) certain Lenders may be “public-side” Lenders (i.e.,
      Lenders
      that do not wish to receive material non-public information with respect to
      Borrower or its securities) (each, a “Public
      Lender”).
      Parent and Borrower hereby agree that (w) all Borrower Materials that are to
      be
      made available to Public Lenders shall be clearly and conspicuously marked
      “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
      prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” Parent and Borrower shall be deemed to have authorized Administrative
      Agent, Arranger, L/C Issuer, and Lenders to treat such Borrower Materials as
      either publicly available information or not material information (although
      it
      may be sensitive and proprietary) with respect to Parent or Borrower or their
      securities for purposes of United States Federal and state securities laws;
      (y)
      all Borrower Materials marked “PUBLIC” are permitted to be made available
      through a portion of the Platform designated “Public Investor;” and (z)
      Administrative Agent and Arranger shall be entitled to treat any Borrower
      Materials that are not marked “PUBLIC” as being suitable only for posting on a
      portion of the Platform not designated “Public Investor.”

     

    7.03  Notices

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, promptly
      notify Administrative Agent and each Lender:

     

    (a) of
      the
      occurrence of any Default;

     

    (b) of
      any
      matter that has resulted or could reasonably be expected to result in a Material
      Adverse Effect, including (i) breach or non-performance of, or any default
      under, a Contractual Obligation of Borrower or any Subsidiary; (ii) any dispute,
      litigation, investigation, proceeding or suspension between Borrower or any
      Subsidiary and any Governmental Authority; or (iii) the commencement of, or
      any
      material development in, any litigation or proceeding affecting Borrower or
      any
      Subsidiary, including pursuant to any applicable Environmental
      Laws;

     

    (c) of
      the
      occurrence of any ERISA Event;

     

    (d) of
      any
      material change in accounting policies or financial reporting practices (not
      required under GAAP) by Parent or any Subsidiary; 

     

    (e) any
      litigation, arbitration, or governmental investigation or proceeding instituted
      or threatened against any Borrowing Base Property, and any material development
      therein to the extent such litigation, arbitration, or governmental
      investigation or proceeding instituted or threatened against any Borrowing
      Base
      Property could result in a Material Property Event; 

     

    (f) any
      actual or threatened condemnation of any material portion of any Borrowing
      Base
      Property, any negotiations with respect to any such taking, or any loss of
      or
      substantial damage to the Borrowing Base Property to the extent such actual
      or
      threatened condemnation could result in a Material Property Event;

     

    (g) any
      labor
      controversy pending or threatened against Parent, any of its Subsidiaries,
      or
      any material contractor, and any material development in any labor controversy
      to the extent such controversy could result in a Material Adverse Effect or
      Material Property Event;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (h) any
      notice received by any Loan Party with respect to the cancellation, alteration,
      or non-renewal of any required insurance coverage maintained with respect to
      any
      Borrowing Base Property;

     

    (i) any
      required and material permit, license, certificate, or approval with respect
      to
      the Borrowing Base Property lapses or ceases to be in full force and effect;
      and

     

    (j) any
      claim
      from any person that any Borrowing Base Property, or any use, activity,
      operation, or maintenance thereof or thereon, is not in material compliance
      with
      any Law.

     

    Each
      notice pursuant to this Section 7.03
      shall be
      accompanied by a statement of a Responsible Officer of Borrower or Parent,
      as
      applicable, setting forth details of the occurrence referred to therein and
      stating what action Borrower or Parent, as applicable, has taken and proposes
      to
      take with respect thereto. Each notice pursuant to Section 7.03(a)
      shall
      describe with particularity any and all provisions of this Agreement and any
      other Loan Document that have been breached.

     

    7.04  Payment
      of Obligations

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, pay and
      discharge as the same shall become due and payable, all its obligations and
      liabilities, including (a) all tax liabilities, assessments, and governmental
      charges or levies upon it or its properties or assets, unless the same are
      being
      contested in good faith by appropriate proceedings diligently conducted and
      adequate reserves in accordance with GAAP are being maintained by Borrower
      or
      such Subsidiary; (b) all lawful claims which, if unpaid, would by law become
      a
      Lien upon its property; and (c) all Indebtedness, as and when due and payable,
      but subject to any subordination provisions contained in any instrument or
      agreement evidencing such Indebtedness.

     

    7.05  Preservation
      of Existence, Etc.

     

    Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, (a) preserve,
      renew, and maintain in full force and effect its legal existence and good
      standing under the Laws of the jurisdiction of its organization except in a
      transaction permitted by Section 8.04
      or
8.05;
      (b)
      take all reasonable action to maintain all rights, privileges, permits,
      licenses, and franchises necessary or desirable in the normal conduct of its
      business, except to the extent that failure to do so could not reasonably be
      expected to have a Material Adverse Effect; and (c) preserve or renew all of
      its
      registered patents, trademarks, trade names, and service marks, the
      non-preservation of which could reasonably be expected to have a Material
      Adverse Effect.

     

    7.06  Maintenance
      of Properties

     

    .
      Parent
      and Borrower shall, and shall cause each other Loan Party to, (a) maintain,
      preserve and protect all of its material properties and equipment necessary
      in
      the operation of its business in good working order and condition, ordinary
      wear
      and tear excepted; and (b) make all necessary repairs thereto and renewals
      and
      replacements thereof except where the failure to do so could not reasonably
      be
      expected to have a Material Adverse Effect.

     

    7.07  Maintenance
      of Insurance.

     

    (a) Each
      Loan
      Party shall obtain and maintain, or cause to be maintained, at all times
      insurance for itself and its Properties providing at least the following
      coverages:

     

    (i) comprehensive
      “all risk” insurance on the Improvements and the Personal Property, in each case
      (A) in an amount equal to one hundred percent (100%) of the “Full Replacement
      Cost,” which for purposes of this Agreement shall mean actual replacement value
      (exclusive of costs of excavations, foundations, underground utilities and
      footings) with a waiver 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    of
      depreciation; (B) containing an agreed amount endorsement with respect to the
      Improvements and Personal Property waiving all co-insurance provisions; (C)
      providing for no deductible in excess of $500,000 for all such insurance
      coverage (except wind); and (D) if any of the Improvements or the use of the
      Property shall at any time constitute legal non-conforming structures or uses,
      providing coverage for contingent liability from operation of building Laws,
      demolition costs and increased cost of construction endorsements and containing
      an “Ordinance or Law Coverage” in an amount not to exceed $15,000,000 per
      occurrence. In addition, if any portion of the Improvements is currently or
      at
      any time in the future located in a “special flood hazard area” designated by
      the Federal Emergency Management Agency, then each Loan Party shall purchase
      flood hazard insurance;

     

    (ii) commercial
      general liability insurance against claims for personal injury, bodily injury,
      death or property damage occurring upon, in or about the Properties, including
      “Dram Shop” or other liquor liability coverage if alcoholic beverages are sold
      from or may be consumed at the Properties with such insurance (A) to be on
      the
      so-called “occurrence” form with a general aggregate limit of not less than
      $2,000,000 and a per occurrence limit of not less than $1,000,000; (B) to
      continue at not less than the aforesaid limit until required to be changed
      by
      Administrative Agent and Borrower in writing by reason of changed economic
      conditions making such protection inadequate; and (C) to cover at least the
      following hazards: (1) premises and operations; (2) products and completed
      operations; (3) independent contractors; and (4) blanket contractual
      liability;

     

    (iii) loss
      of
      rents insurance or business income insurance, as applicable, (A) with loss
      payable to Administrative Agent and Borrower as their interest may appear;
      (B)
      covering all risks required to be covered by the insurance provided for in
      Section 7.07(a)(i);
      and (C)
      which provides that after the physical loss to the Improvements and Personal
      Property occurs, the loss of rents or income, as applicable, will be insured
      until such rents or income, as applicable, either return to the same level
      that
      existed prior to the loss, or the expiration of twelve (12) months, whichever
      first occurs, and notwithstanding that the policy may expire prior to the end
      of
      such period; and (D) which contains an extended period of indemnity endorsement
      which provides that after the physical loss to the Improvements and Personal
      Property has been repaired, the continued loss of income will be insured until
      such income either returns to the same level it was at prior to the loss, or
      the
      expiration of six (6) months from the date that such Property is repaired or
      replaced and operations are resumed, whichever first occurs, and notwithstanding
      that the policy may expire prior to the end of such period. The amount of such
      loss of rents or business income insurance, as applicable, shall be determined
      prior to the date hereof and at least once each year thereafter based on the
      applicable Loan Party’s reasonable estimate of the gross income from the
      Properties for the succeeding period of coverage required above. All proceeds
      payable to Administrative Agent or Borrower pursuant to this subsection shall
      be
      held by Administrative Agent and shall be applied to the Obligations;
provided,
      however,
      that
      nothing herein contained shall be deemed to relieve any Loan Party of its
      obligations to pay the Obligations when due except to the extent such amounts
      are actually paid out of the proceeds of such loss of rents or business income
      insurance, as applicable;

     

    (iv) at
      all
      times during which structural construction, repairs or alterations are being
      made with respect to the Improvements, and only if such Property coverage form
      does not otherwise apply, (A) owner’s contingent or protective liability
      insurance covering claims not covered by or under the terms or provisions of
      the
      above mentioned commercial general liability insurance policy; and (B) the
      insurance provided for in subsection (i) above written in a so-called Builder’s
      Risk Completed Value form (1) on a non-reporting basis, (2) against “all risks”
      insured 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    against
      pursuant to subsection (i) above, (3) including permission to occupy the
      Properties, and (4) with an agreed amount endorsement waiving co-insurance
      provisions;

     

    (v) workers’
      compensation, subject to the statutory limits of the applicable state, and
      employer’s liability insurance in respect of any work or operations on or about
      the Properties, or in connection with the Properties or their operation (if
      applicable);

     

    (vi) comprehensive
      boiler and machinery insurance, if applicable, in amounts as shall be reasonably
      required by Administrative Agent on terms consistent with the commercial
      property insurance policy required under Section 7.07(a)(i);

     

    (vii) umbrella/excess
      liability insurance in an amount not less than $50,000,000 per occurrence on
      terms consistent with the underlying Policies; 

     

    (viii) (A)
      if
      the Property is located in an “earthquake prone zone” as determined by the U.S.
      Geological Survey, earthquake insurance in an amount not less than the probable
      maximum loss (in the event the probable maximum loss is greater than forty
      percent (40%), then the Property shall be insured for one hundred percent (100%)
      full replacement cost) less any applicable deductibles, including business
      interruption coverage in an amount not less than the amount required under
      Section 7.07(a)(i),
      all as
      determined by a recognized earthquake engineering firm, and (B) sinkhole and
      mine subsidence insurance, if required, as determined by Administrative Agent
      in
      its sole discretion and in form and substance satisfactory to Administrative
      Agent, provided that
      the
      insurance pursuant to this Section 7.07(a)(viii)
      shall be
      on terms consistent with the all risk insurance policy required under
Section 7.07(a)(i);

     

    (ix) a
      blanket
      fidelity bond and errors and omissions insurance coverage insuring against
      losses resulting from dishonest or fraudulent acts committed by (A) any Loan
      Party’s personnel; (B) any employees of outside firms that provide appraisal,
      legal, data processing or other services for any Loan Party, or (C) temporary
      contract employees or student interns;

     

    (x) motor
      vehicle liability coverage for all owned and non-owned vehicles, including
      rented and leased vehicles containing minimum limits per occurrence of One
      Million Dollars ($1,000,000); and

     

    (xi) upon
      sixty (60) days’ written notice, such other insurance and in such amounts as
      Administrative Agent from time to time may reasonably request against such
      other
      insurable hazards which at the time are commonly insured against for property
      similar to the Properties located in or around the region in which the
      Properties are located.

     

    (b) All
      insurance provided for in Section 7.07(a)
      shall be
      obtained and maintain, or cause to be maintained, at all times insurance for
      itself and its Properties under valid and enforceable policies (collectively,
      the “Policies”
      or in
      the singular, the “Policy”),
      in
      form and substance acceptable Administrative Agent. Any new Policies for
      Borrowing Base Properties shall be issued by financially sound and responsible
      insurance companies authorized to do business in the State and having an A.M.
      Best Company, Inc. rating of “A-” or better and a financial class of VIII or
      better by A.M. Best Company, Inc. The Policies for Borrowing Base Properties
      shall designate Administrative Agent and its successors and assigns as
      additional insureds, mortgagees and/or loss payee as deemed appropriate by
      Administrative Agent. Not less than ten (10) days prior to the expiration dates
      of the Policies theretofore furnished to Administrative Agent, renewal Policies
      accompanied by evidence satisfactory to Administrative Agent of payment of
      the
      premiums due thereunder (the “Insurance
      Premiums”)
      shall
      be delivered by Borrower to Administrative Agent.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (c) All
      Policies provided for or contemplated by this Section 7.07
      with
      respect to Borrowing Base Properties shall name the applicable Loan Party as
      the
      insured and Administrative Agent as the additional insured, as its interests
      may
      appear, and in the case of property damage, boiler, and machinery, flood and
      earthquake insurance, shall contain a so-called New York standard
      non-contributing mortgagee clause in favor of Administrative Agent providing
      that the loss thereunder shall be payable to Administrative Agent and Borrower
      as their interests may appear. Administrative Agent shall not be liable for
      any
      insurance premiums thereon or subject to any assessments
      thereunder.

     

    (d) All
      Policies for Borrowing Base Properties provided for in this Section 7.07
      with
      respect to the Loan Parties or the Borrowing Base Properties shall contain
      clauses or endorsements to the effect that:

     

    (i) no
      act or
      negligence of the applicable Loan Party, or anyone acting for such Loan Party,
      or of any tenant or other occupant, or failure to comply with the provisions
      of
      any Policy, which might otherwise result in a forfeiture of the insurance or
      any
      part thereof, shall in any way affect the validity or enforceability of the
      insurance insofar as Administrative Agent is concerned;

     

    (ii) the
      Policies shall not be materially changed (other than to increase the coverage
      provided thereby) or canceled without at least thirty (30) days’ prior written
      notice (or ten (10) days’ prior written notice for cancellation as a result of
      non-payment of premium) to Administrative Agent and any other party named
      therein as an additional insured;

     

    (iii) the
      issuers thereof shall give written notice to Administrative Agent if the
      Policies have not been renewed thirty (30) days prior to its expiration;
      and

     

    (iv) with
      respect to the Policies described in Sections
      7.07(a)(i),
      (iii),
      (iv)
      and
(vi)
      acts of
      terrorism are covered by such Policies, to the extent required by Administrative
      Agent.

     

    (e) If
      at any
      time Administrative Agent is not in receipt of written evidence that all
      insurance required hereunder is in full force and effect, Administrative Agent
      shall have the right, without notice to any Loan Party, to take such action
      as
      Administrative Agent deems necessary to protect its interest in the Borrowing
      Base Properties, including, without limitation, obtaining such insurance
      coverage as Administrative Agent in its sole discretion deems appropriate.
      All
      premiums incurred by Administrative Agent in connection with such action or
      in
      obtaining such insurance and keeping it in effect shall be paid by the Loan
      Parties to Administrative Agent upon demand and, until paid, shall be secured
      by
      the Mortgages and shall bear interest at the Default Rate.

     

    (f) Administrative
      Agent may, in its sole discretion, consent in the applicable subordination,
      attornment, and non-disturbance agreement to the insurance coverage by the
      applicable Loan Party relating to a specific Borrowing Base Property on the
      terms and conditions set forth in the applicable Management Agreement relating
      to such Borrowing Base Property so long as Administrative Agent reasonably
      believes that such insurance coverage is at least reasonably equivalent to
      the
      requirements of this Section 7.07.
      In such
      event, the insurance requirements in the applicable Management Agreement shall
      apply to such Borrowing Base Property so long as Administrative Agent reasonably
      believes that such insurance coverage is at least reasonably equivalent to
      the
      requirements of this Section 7.07.

     

    7.08  Compliance
      with Laws

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, comply in
      all
      material respects with the requirements of all Laws and all orders, writs,
      injunctions, and decrees applicable to it or to its business or property, except
      in such instances in which 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (a)
      such
      requirement of Law or order, writ, injunction, or decree is being contested
      in
      good faith by appropriate proceedings diligently conducted; or (b) the failure
      to comply therewith could not reasonably be expected to have a Material Adverse
      Effect. 

     

    7.09  Books
      and Records

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to,
      (a)
      maintain
      proper books of record and account, in which full, true and correct entries
      in
      conformity with GAAP consistently applied shall be made of all financial
      transactions and matters involving the assets and business of Borrower or such
      Subsidiary, as the case may be,
      and (b)
      maintain such books of record and account in material conformity with all
      applicable requirements of any Governmental Authority having regulatory
      jurisdiction over Borrower or such Subsidiary, as the case may be.

     

    7.10  Inspection
      Rights

     

    .
      Parent
      and Borrower shall, and shall cause each of their Subsidiaries to, permit
      representatives and independent contractors of Administrative Agent and each
      Lender to (a) visit and inspect their
      respective Properties and any materials at any reasonable time (unless they
      deem
      such inspection is of an emergency nature, in which event Parent and Borrower
      shall, and shall cause each of their Subsidiaries to, provide them with
      immediate access to the Properties),
      (b) to
      examine its corporate, financial and operating records, and make copies thereof
      or abstracts therefrom, and (c) to discuss its affairs, finances, and accounts
      with its directors, officers, and independent public accountants, all at
the
      expense of Borrower and at
      such
      reasonable times during normal business hours and as often as may be reasonably
      desired, upon reasonable advance notice to Borrower (subject to reasonable
      notice and timing requirements of Managers and other third party tenants);
      provided,
      however,
      that
      when an Event of Default exists Administrative Agent or any Lender (or any
      of
      their respective representatives or independent contractors) may do any of
      the
      foregoing at the expense of Borrower at any time during normal business hours
      and without advance notice. Parent
      and Borrower will furnish to Administrative Agent and its agents for inspection
      and copying, all Plans, shop drawings, specifications, books, and records,
      and
      other documents and information in their possession or control that
      Administrative Agent may reasonably request from time to time.

     

    7.11  Use
      of Proceeds

     

    .
      Borrower shall use the proceeds of the Credit Extensions for (a) working
      capital, capital expenditures, and other general corporate purposes not in
      contravention of any Law or of any Loan Document and (b) to finance acquisitions
      of Properties permitted hereunder.

     

    7.12  Environmental
      Matters

     

    .
      Each
      Loan Party shall:

     

    (a) Violations.
      Not
      cause, commit, permit, or allow to continue (i) any violation of any
      Environmental Requirement which could reasonably be expected to cause a Material
      Property Event: (A) by any Loan Party or by any Person; and (B) by or with
      respect to the Borrowing Base Properties or any use of or condition or activity
      on the Borrowing Base Properties, or (ii) the attachment of any environmental
      liens to the Borrowing Base Properties. No Loan Party will place, install,
      dispose of, or release, or cause, permit, or allow the placing, installation,
      disposal, spilling, leaking, dumping, or release of, any Hazardous Material
      or
      storage tank (or similar vessel) on the Borrowing Base Properties and will
      keep
      the Borrowing Base Properties free of Hazardous Material to the extent such
      action could reasonably be expected to cause a Material Property
      Event.

     

    (b) Notice
      to Administrative Agent.
      Promptly deliver to Administrative Agent a copy of each report pertaining to
      any
      Borrowing Base Property or to any Loan Party prepared by or on behalf of such
      Loan Party pursuant to any Environmental Requirement. Each Loan Party shall
      immediately advise Administrative Agent in writing of any Environmental Claim
      or
      of the discovery of any Hazardous Material on any Borrowing Base Property,
      as
      soon as such Loan Party first obtains knowledge thereof, 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    including
      a full description of the nature and extent of the Environmental Claim and/or
      Hazardous Material and all relevant circumstances.

     

    (c) Site
      Assessments and Information.
      If
      Administrative Agent shall ever have reason to believe that any Hazardous
      Material affects any Borrowing Base Property, or if any Environmental Claim
      is
      made or threatened, if requested by Administrative Agent, at Borrower’s expense,
      provide to Administrative Agent from time to time, in each case within thirty
      (30) days after Administrative Agent’s request, an Environmental Assessment
      (hereinafter defined) made after the date of Administrative Agent’s request. As
      used in this Agreement, the term “Environmental
      Assessment”
      means a
      report (including all drafts thereof) of an environmental assessment of such
      Borrowing Base Property and of such scope (including but not limited to the
      taking of soil borings and air and groundwater samples and other above and
      below
      ground testing) as Administrative Agent may reasonably request, by a consulting
      firm acceptable to Administrative Agent and made in accordance with
      Administrative Agent’s established guidelines. Each Loan Party will cooperate
      with each consulting firm making any such Environmental Assessment and will
      supply to the consulting firm, from time to time and promptly on request, all
      information available to such Loan Party to facilitate the completion of the
      Environmental Assessment. If any Loan Party fails to furnish Administrative
      Agent within ten (10) days after Administrative Agent’s request with a copy of
      an agreement with an acceptable environmental consulting firm to provide such
      Environmental Assessment, or if any Loan Party fails to furnish to
      Administrative Agent such Environmental Assessment within thirty (30) days
      after
      Administrative Agent’s request, Administrative Agent may cause any such
      Environmental Assessment to be made at Borrower’s expense and risk.
      Administrative Agent and its designees are hereby granted access to the
      Borrowing Base Properties at any time or times, upon reasonable notice (which
      may be written or oral), and a license which is coupled with an interest and
      irrevocable, to make or cause to be made such Environmental Assessments.
      Administrative Agent may disclose to interested parties any information
      Administrative Agent ever has about the environmental condition or compliance
      of
      the Borrowing Base Properties, but shall be under no duty to disclose any such
      information except as may be required by Law. Administrative Agent shall be
      under no duty to make any Environmental Assessment of the Borrowing Base
      Properties, and in no event shall any such Environmental Assessment by
      Administrative Agent be or give rise to a representation that any Hazardous
      Material is or is not present on the Borrowing Base Properties, or that there
      has been or shall be compliance with any Environmental Requirement, nor shall
      Borrower or any other person be entitled to rely on any Environmental Assessment
      made by Administrative Agent or at Administrative Agent’s request. None of
      Administrative Agent nor any Lender owes any duty of care to protect any Loan
      Party or any other Person against, or to inform them of, any Hazardous Material
      or other adverse condition affecting the Borrowing Base Properties.

     

    (d) Remedial
      Actions.
      If any
      Hazardous Material is discovered on any Borrowing Base Property at any time
      and
      regardless of the cause, (i) promptly at Borrower’s sole risk and expense
      remove, treat, and dispose of the Hazardous Material in compliance with all
      applicable Environmental Requirements and solely under the applicable Loan
      Party’s name (or if removal is prohibited by any Environmental Requirement, take
      whatever action is required by any Environmental Requirement), in addition
      to
      taking such other action as is necessary to have the full use and benefit of
      such Borrowing Base Property as contemplated by the Loan Documents, and provide
      Administrative Agent with satisfactory evidence thereof, and (ii) if requested
      by Administrative Agent, provide to Administrative Agent within thirty (30)
      days
      of Administrative Agent’s request a bond, letter of credit, or other financial
      assurance evidencing to Administrative Agent’s satisfaction that all necessary
      funds are readily available to pay the costs and expenses of the actions
      required by subsection (i)
      preceding and to discharge any assessments or liens established against such
      Borrowing Base Property as a result of the presence of the Hazardous Material
      on
      the Borrowing Base Property. Within fifteen (15) days after completion of such
      remedial actions, each Loan Party shall obtain and deliver to Administrative
      Agent an Environmental Assessment of such Borrowing Base Property made after
      such completion and confirming to

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Administrative
      Agent’s satisfaction that all required remedial action as stated above has been
      taken and successfully completed and that there is no evidence or suspicion
      of
      any contamination or risk of contamination on the Borrowing Base Property or
      any
      adjacent property, or of violation of any Environmental Requirement, with
      respect to any such Hazardous Material. Administrative Agent on behalf of
      Lenders may, but shall never be obligated to, remove or cause the removal of
      any
      Hazardous Material from the Borrowing Base Property (or if removal is prohibited
      by any Environmental Requirement, take or cause the taking of such other action
      as is required by any Environmental Requirement) if the Loan Parties fail to
      promptly commence such remedial actions following discovery and thereafter
      diligently prosecute the same to the satisfaction of Administrative Agent
      (without limitation of the rights of Administrative Agent on behalf of Lenders
      to declare an Event of Default and to exercise all rights and remedies available
      by reason thereof); and Administrative Agent and its designees are hereby
      granted access to the Borrowing Base Properties at any time or times, upon
      reasonable notice (which may be written or oral), and a license which is coupled
      with an interest and irrevocable, to remove or cause such removal or to take
      or
      cause the taking of any such other action.

     

    7.13  Contracts

     

    .
      Each
      Loan Party shall perform all of their obligations under any construction,
      architectural design, management, brokerage, or contract relating to its
      Borrowing Base Properties unless the failure to perform could not reasonably
      be
      expected to cause a Material Property Event.

     

    7.14  Casualty

     

    .
      If any
      Borrowing Base Property shall be damaged or destroyed, in whole or in part,
      by
      fire or other casualty (a “Casualty”),
      the
      applicable Loan Party shall give prompt notice of such damage to Administrative
      Agent and shall promptly cause Operating Lessee of such Borrowing Base Property
      to commence and diligently prosecute the Restoration of such Borrowing Base
      Property in accordance with Section 7.16,
      so
      long as
      Administrative Agent makes any Net Proceeds available pursuant to Section 7.16.
      The
      applicable Loan Party shall pay all costs of such Restoration whether or not
      such costs are covered by insurance. Administrative Agent may, but shall not
      be
      obligated to make proof of loss if not made promptly by a Loan Party. Loan
      Parties shall adjust all claims for Insurance Proceeds in consultation with,
      and
      approval of, Administrative Agent; provided, however,
      if an
      Event of Default has occurred and is continuing, Administrative Agent shall
      have
      the exclusive right to adjust all claims for Insurance Proceeds.

     

    7.15  Condemnation

     

    .
      Each
      Loan Party shall promptly cause each Operating Lessee to give Administrative
      Agent notice of the actual or threatened commencement of any proceeding for
      the
      Condemnation of any Borrowing Base Property of which any Operating Lessee has
      knowledge and cause such Operating Lessee to deliver to Administrative Agent
      copies of any and all papers served in connection with such proceedings.
      Administrative Agent may participate in any such proceedings, and Loan Parties
      shall from time to time deliver to Administrative Agent all instruments
      requested by it to permit such participation. Each Loan Party shall, at its
      expense, cause Operating Lessee to diligently prosecute any such proceedings,
      and shall consult with Administrative Agent, its attorneys, and experts, and
      cooperate with them in the carrying on or defense of any such proceedings.
      Notwithstanding any taking by any public or quasi-public authority through
      Condemnation or otherwise (including but not limited to any transfer made in
      lieu of or in anticipation of the exercise of such taking), the Loan Parties
      shall continue to pay the Obligations at the time and in the manner provided
      for
      herein and the Obligations shall not be reduced until any Award shall have
      been
      actually received and applied by Administrative Agent, after the deduction
      of
      expenses of collection, to the reduction or discharge of the Obligations.
      Administrative Agent shall not be limited to the interest paid on the Award
      by
      the condemning authority but shall be entitled to receive out of the Award
      interest at the rate or rates provided herein. If any Borrowing Base Property
      or
      any portion thereof is taken by a condemning authority, the Loan Parties shall
      or shall cause the Operating Lessee thereof to promptly commence and diligently
      prosecute the Restoration of such Borrowing Base Property and otherwise comply
      with the provisions of 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Section 7.16,
      provided that
      Administrative Agent makes any Net Proceeds available pursuant to Section 7.16(b).
      If any
      Borrowing Base Property is sold, through foreclosure or otherwise, prior to
      the
      receipt by Administrative Agent of the Award, Administrative Agent shall have
      the right, whether or not a deficiency judgment shall have been sought,
      recovered, or denied, to receive the Award, or a portion thereof sufficient
      to
      pay the Obligations. 

     

    7.16  Restoration

     

    .
      The
      following provisions shall apply in connection with the Restoration of any
      Borrowing Base Property:

     

    (a) If
      the
      Net Proceeds and the costs of completing the Restoration shall be less than
      the
      greater of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised Value
      of
      such Borrowing Base Property, then the Net Proceeds will be disbursed by
      Administrative Agent to the applicable Loan Party upon receipt, provided that all
      of
      the conditions set forth in Section 7.16(b)(i) are
      met
      and such Loan Party delivers to Administrative Agent a written undertaking
      to
      expeditiously commence and to satisfactorily complete with due diligence the
      Restoration in accordance with the terms of this Agreement.

     

    (b) If
      the
      Net Proceeds or the costs of completing the Restoration are equal to or greater
      than the greater of (i) $5,000,000 and (ii) ten percent (10%) of the Appraised
      Value of such Borrowing Base Property, then Administrative Agent shall make
      the
      Net Proceeds available for the Restoration in accordance with the provisions
      of
      this Section 7.16.
      The
      term “Net
      Proceeds”
      for
      purposes of this Section 7.16
      means:
      (i) the net amount of all insurance proceeds received by Administrative Agent
      as
      a result of a Casualty, after deduction of its reasonable costs and expenses
      (including, but not limited to, reasonable counsel fees), if any, in collecting
      the same (“Insurance
      Proceeds”);
      or
      (ii) the net amount of the Award as a result of a Condemnation, after deduction
      of its reasonable costs and expenses (including, but not limited to, reasonable
      counsel fees), if any, in collecting the same (“Condemnation
      Proceeds”),
      whichever the case may be.

     

    (i) The
      Net
      Proceeds shall be made available to the applicable Loan Party and the applicable
      Operating Lessee for Restoration; provided that
      each of
      the following conditions are met:

     

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

     

    
      	 	
              (B)

            	
              (1)
                in the event the Net Proceeds are Insurance Proceeds, less than
                twenty-five percent (25%) of the total floor area of the Improvements
                on
                the Borrowing Base Property has been damaged, destroyed, or rendered
                unusable as a result of a Casualty or (2) in the event the Net Proceeds
                are Condemnation Proceeds, less than ten percent (10%) of the land
                constituting the Borrowing Base Property is taken, such land is located
                along the perimeter or periphery of the Borrowing Base Property,
                and no
                portion of the Improvements is located on such
                land;

            


    

     

    
      	 	
              (C)

            	
              (1)
                no termination or termination option is caused (unless waived) under
                the
                applicable Operating Lease, Management Agreement, or Franchise Agreement
                and (2) the number of guest rooms is not reduced by more than twenty-five
                percent (25%); 

            


    

     

    
      	 	
              (D)

            	
              Administrative
                Agent shall be satisfied that any operating deficits, including all
                scheduled payments of principal and interest hereunder, which will
                be
                incurred with respect to the Borrowing Base Property as a result
                of the
                occurrence of any such Casualty or Condemnation, whichever the case
                may
                be, will be covered out 

            


    

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    of
      the
      insurance coverage referred to in Section 7.07
      above or
      other security provided by Loan Parties;

     

    
      	 	
              (E)

            	
              Administrative
                Agent shall be satisfied that the Restoration will be completed twelve
                (12) months after commencement of the
                Restoration;

            


    

     

    
      	 	
              (F)

            	
              the
                Borrowing Base Property and the use thereof after the Restoration
                will be
                in compliance with and permitted under all
                Laws;

            


    

     

    
      	 	
              (G)

            	
              the
                applicable Loan Party or the applicable Operating Lessee shall cause
                the
                Restoration to be done and completed in an expeditious and diligent
                fashion and in compliance with all applicable Laws or any applicable
                Franchise Agreement;

            


    

     

    
      	 	
              (H)

            	
              such
                Casualty or Condemnation, as applicable, does not result in the loss
                of
                access to the Borrowing Base Property or the
                Improvements;

            


    

     

    
      	 	
              (I)

            	
              the
                applicable Loan Party shall deliver, or cause to be delivered, to
                Administrative Agent a signed detailed budget approved in writing
                by the
                applicable Loan Party’s or Operating Lessee’s architect or engineer
                stating the entire cost of completing the Restoration, which budget
                shall
                be acceptable to Administrative Agent;


            


    

     

    
      	 	
              (J)

            	
              the
                Net Proceeds together with any cash or cash equivalent deposited
                by
                Borrower with Administrative Agent are sufficient in Administrative
                Agent’s reasonable judgment to cover the cost of the Restoration;
                and

            


    

     

    
      	 	
              (K)

            	
              the
                applicable Franchise Agreement is not terminated as a result of a
                Casualty
                or a Condemnation.

            


    

     

    (ii) The
      Net
      Proceeds shall be held by Administrative Agent until disbursements commence,
      and, until disbursed in accordance with the provisions of this Section 7.16,
      shall
      constitute additional security for the Obligations. The Net Proceeds shall
      be
      disbursed by Administrative Agent to, or as directed by, Borrower from time
      to
      time during the course of the Restoration, upon receipt of evidence satisfactory
      to Administrative Agent that (A) all the conditions precedent to such advance,
      including those set forth in Section 7.16(b)(i),
      have
      been satisfied, (B) all materials installed and work and labor performed (except
      to the extent that they are to be paid for out of the requested disbursement)
      in
      connection with the related Restoration item have been paid for in full, and
      (C)
      there exist no notices of pendency, stop orders, mechanic’s or materialman’s
      liens, or notices of intention to file same, or any other liens or encumbrances
      of any nature whatsoever on the Borrowing Base Property which have not either
      been fully bonded to the satisfaction of Administrative Agent and discharged
      of
      record or in the alternative fully insured to the satisfaction of Administrative
      Agent by the Title Company.

     

    (iii) All
      plans
      and specifications required in connection with the Restoration shall be subject
      to prior review and acceptance in all respects by Administrative Agent and
      by an
      independent consulting engineer selected by Administrative Agent (the
“Restoration
      Consultant”).
      Administrative Agent shall have the use of the plans and specifications and
      all
      permits, licenses and approvals required or obtained in connection with the
      Restoration. The identity of the contractors, subcontractors, and materialmen
      engaged in the Restoration, as well as the contracts in excess of $500,000
      under
      which they have been engaged, shall be subject to prior review and acceptance
      by
      Administrative Agent and the Restoration Consultant. All costs and 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    expenses
      incurred by Administrative Agent in connection with making the Net Proceeds
      available for the Restoration, including, without limitation, reasonable counsel
      fees and disbursements and the Restoration Consultant’s fees, shall be paid by
      Borrower.

     

    (iv) In
      no
      event shall Administrative Agent be obligated to make disbursements of the
      Net
      Proceeds in excess of an amount equal to the costs actually incurred from time
      to time for work in place as part of the Restoration, as certified by the
      Restoration Consultant, minus
      the
      Restoration Retainage. The term “Restoration
      Retainage”
      means
      an amount equal to ten percent (10%) of the costs actually incurred for work
      in
      place as part of the Restoration, as certified by the Restoration Consultant,
      until the Restoration has been completed. The Restoration Retainage shall be
      reduced to five percent (5%) of the costs incurred upon receipt by
      Administrative Agent of satisfactory evidence that fifty percent (50%) of the
      Restoration has been completed. The Restoration Retainage shall in no event,
      and
      notwithstanding anything to the contrary set forth above in this Section 7.16(b),
      be less
      than the amount actually held back by the applicable Loan Party or the
      applicable Operating Lessee, as applicable, from contractors, subcontractors,
      and materialmen engaged in the Restoration. The Restoration Retainage shall
      not
      be released until the Restoration Consultant certifies to Administrative Agent
      that the Restoration has been completed in accordance with the provisions of
      this Section 7.16(b)
      and that
      all approvals necessary for the re-occupancy and use of the Borrowing Base
      Property have been obtained from all appropriate Governmental Authorities,
      and
      Administrative Agent receives evidence satisfactory to Administrative Agent
      that
      the costs of the Restoration have been paid in full or will be paid in full
      out
      of the Restoration Retainage; provided, however,
      that
      Administrative Agent will release the portion of the Restoration Retainage
      being
      held with respect to any contractor, subcontractor, or materialman engaged
      in
      the Restoration as of the date upon which the Restoration Consultant certifies
      to Administrative Agent that the contractor, subcontractor or materialman has
      satisfactorily completed all work and has supplied all materials in accordance
      with the provisions of the contractor’s, subcontractor’s, or materialman’s
      contract, the contractor, subcontractor, or materialman delivers the lien
      waivers and evidence of payment in full of all sums due to the contractor,
      subcontractor, or materialman as may be reasonably requested by Administrative
      Agent or by the Title Company issuing the Title Insurance Policies, and
      Administrative Agent receives an endorsement to the Title Insurance Policies
      insuring the continued priority of the lien of the applicable Mortgage and
      evidence of payment of any premium payable for such endorsement. If required
      by
      Administrative Agent, the release of any such portion of the Restoration
      Retainage shall be approved by the surety company, if any, which has issued
      a
      payment or performance bond with respect to the contractor, subcontractor,
      or
      materialman.

     

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

     

    (vi) If
      at any
      time the Net Proceeds or the undisbursed balance thereof shall not, in the
      reasonable opinion of Administrative Agent in consultation with the Restoration
      Consultant, be sufficient to pay in full the balance of the costs which are
      estimated by the Restoration Consultant to be incurred in connection with the
      completion of the Restoration, Loan Parties shall, and shall cause the
      applicable Operating Lessee to, as applicable, deposit the deficiency (the
      “Net
      Proceeds Deficiency”)
      with
      Administrative Agent before any further disbursement of the Net Proceeds shall
      be made. The Net Proceeds Deficiency deposited with Administrative Agent shall
      be held by Administrative Agent and shall be disbursed for costs actually
      incurred in connection with the Restoration on the same conditions applicable
      to
      the disbursement of the Net Proceeds, and until so disbursed pursuant to this
      Section 7.16(b)
      shall
      constitute additional security for the Obligations.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (vii) The
      excess, if any, of the Net Proceeds and the remaining balance, if any, of the
      Net Proceeds Deficiency deposited with Administrative Agent after the
      Restoration Consultant certifies to Administrative Agent that the Restoration
      has been completed in accordance with the provisions of this Section 7.16(b),
      and the
      receipt by Administrative Agent of evidence satisfactory to Administrative
      Agent
      that all costs incurred in connection with the Restoration have been paid in
      full, shall be remitted by Administrative Agent to Borrower, provided no Default
      shall have occurred and shall be continuing.

     

    (c) All
      Net
      Proceeds not required (i) to be made available for the Restoration or (ii)
      to be
      returned to Borrower as excess Net Proceeds pursuant to Section 7.16(b)(vii)
      may (x)
      be retained and applied by Administrative Agent toward the payment of the
      Obligations whether or not then due and payable in such order, priority, and
      proportions as Administrative Agent in its sole discretion shall deem proper,
      or, (y) at the sole discretion of Administrative Agent, the same may be paid,
      either in whole or in part, to Borrower for such purposes and upon such
      conditions as Administrative Agent shall designate.

     

    (d) In
      the
      event of foreclosure of any Mortgage, or other transfer of title to any
      Borrowing Base Property in extinguishment in whole or in part of the
      Obligations, all right, title, and interest of each Loan Party in and to the
      Title Insurance Policies then in force concerning such Borrowing Base Property
      and all proceeds payable thereunder shall thereupon vest in the purchaser at
      such foreclosure, Administrative Agent, or other transferee in the event of
      such
      other transfer of title.

     

    (e) Notwithstanding
      the foregoing Sections
      7.16(a)
      through
(d),
      in the
      event that any Borrowing Base Property requiring Restoration is released from
      the Borrowing Base pursuant to Section 4.05,
      then
      Administrative Agent shall deliver the Net Proceeds to the applicable Loan
      Party
      upon such release from the Borrowing Base.

     

    7.17  Property
      Management

     

    .
      Each
      Loan Party shall (a) (i) promptly perform and observe, and require (or in the
      case of an Affiliate cause) the applicable Operating Lessee, Manager, and
      Affiliate of such Manager, as applicable, to promptly perform and observe,
      all
      of the covenants required to be performed and observed under each Management
      Agreement, each Pooling Agreement, each agreement
      designated as an “Owner Agreement”, and any other agreement between or among
      Borrower, any Subsidiary of Borrower, a Manager, and/or an Affiliate of such
      Manager
      and do
      all things necessary to preserve and to keep unimpaired its material rights
      thereunder except where failure could not reasonably be expected to cause a
      Material Property Event; (ii) promptly notify Administrative Agent of any
      material default or termination event under any Management Agreement of which
      it
      is aware; (iii) promptly deliver to Administrative Agent a copy of any notice
      of
      default or termination event or other material notice received by it or an
      Affiliate Operating Lessee under any Management Agreement, any Pooling
      Agreement, any agreement
      designated as an “Owner Agreement”, and any other agreement between or among
      Borrower, any Subsidiary of Borrower, or an Affiliate Operating Lessee and
      a
      Manager and/or an Affiliate of such Manager;
      (iv)
      require (or in the case of an Affiliate cause) the applicable Operating Lessee
      to promptly give notice to Administrative Agent of any notice or information
      that such Operating Lessee receives which indicates that any Manager is
      terminating the related Management Agreement or that any Manager is otherwise
      discontinuing its management of the applicable Borrowing Base Property other
      than the scheduled end of the Management Agreement term; (v) promptly enforce
      the performance and observance of all of the covenants required to be performed
      and observed by each Operating Lessee under each Management Agreement; and
      (vi)
      require (or in the case of an Affiliate cause) each Operating Lessee, each
      Manager, and each Affiliate of such Manager, as applicable, to operate each
      Borrowing Base Property under the terms and conditions of the applicable
      Management Agreement, Pooling Agreement, 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    each
      agreement
      designated as an “Owner Agreement”, and any other agreement between or among
      Borrower, any Subsidiary of Borrower, a Manager, and/or an Affiliate of such
      Manager.

     

    (b) If
      at any
      time, (i) any Manager shall become insolvent or a debtor in a bankruptcy
      proceeding, (ii) an Event of Default has occurred and is continuing, or (iii)
      a
      default or termination event reasonably expected to cause a Material Property
      Event has occurred and is continuing under any Management Agreement, and in
      each
      case if grounds for such termination exist under the affected Management
      Agreement, and subject to any limitations under and as otherwise provided in
      the
      applicable Management Agreement and documentation executed between the
      applicable Manager and Administrative Agent in connection therewith, each Loan
      Party shall, at the request of Administrative Agent, terminate, or require
      (or
      in the case of an Affiliate cause) the applicable Operating Lessee to terminate
      (A) in the case of (i)
      above,
      each applicable Management Agreement, or (B) in all other cases, each Management
      Agreement requested by Administrative Agent in its sole discretion, upon thirty
      (30) days prior notice to each applicable Manager and replace each such Manager
      with a Qualified Manager approved by Administrative Agent on terms and
      conditions satisfactory to Administrative Agent, it being understood and agreed
      that the management fee for such replacement manager shall not exceed then
      prevailing market rates for comparable properties. 

     

    (c) In
      addition to the foregoing, in the event that Administrative Agent, in
      Administrative Agent’s reasonable discretion, at any time prior to the
      termination of the Assignment of Management Agreement with respect to any
      Borrowing Base Property, determines that any Borrowing Base Property is not
      being managed in accordance with generally accepted management practices for
      projects similarly situated, Administrative Agent may deliver written notice
      thereof to the applicable Loan Party and each applicable Manager, which notice
      shall specify with particularity the grounds for Administrative Agent’s
      determination. If Administrative Agent reasonably determines that the conditions
      specified in Administrative Agent’s notice are not remedied to Administrative
      Agent’s reasonable satisfaction by the applicable Loan Party or such applicable
      Manager within thirty (30) days from the date of such notice or that the
      applicable Loan Party or such applicable Manager have failed to diligently
      undertake correcting such conditions within such thirty (30) day period, except
      where failure could not reasonably be expected to cause a Material Property
      Event, Administrative Agent may direct such Loan Party to terminate the
      applicable Management Agreement if grounds for such termination exist
      thereunder, and in accordance with and subject to any rights and/or limitations
      set forth in the applicable Assignment of Management Agreement, to replace
      such
      applicable Manager with a Qualified Manager approved by Administrative Agent
      on
      terms and conditions satisfactory to Administrative Agent, it being understood
      and agreed that the management fee for such replacement manager shall not exceed
      then prevailing market rates for comparable properties.

     

    (d) No
      Loan
      Party shall, nor shall it permit any Operating Lessee to, without the prior
      written consent of Administrative Agent (which consent shall not be unreasonably
      withheld, conditioned or delayed): (i) surrender, terminate, or cancel any
      Management Agreement or otherwise replace any Manager or enter into any other
      management agreement with respect to any Borrowing Base Property except to
      the
      extent the foregoing could not reasonably be expected to cause a Material
      Property Event; (ii) reduce or consent to the reduction of the term of any
      Management Agreement except to the extent the foregoing could not reasonably
      be
      expected to cause a Material Property Event; (iii) increase or consent to the
      increase of the amount of any management fees under any Management Agreement
      except to the extent the foregoing could not reasonably be expected to cause
      a
      Material Property Event; or (iv) otherwise modify, change, supplement, alter,
      amend, waive, or release any of its rights and remedies under, any Management
      Agreement in any material respect except to the extent the foregoing could
      not
      reasonably be expected to cause a Material Property Event. In the event that
      any
      Loan Party or any Operating Lessees replaces any Manager, such Manager shall
      be
      a Qualified Manager which delivers 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    such
      estoppel letters, comfort letters, consents, or other conforming agreements
      as
      Administrative Agent may reasonably request.

     

    7.18  Franchise
      Agreements.

     

    (a) Each
      Borrowing Base Property shall be operated under the terms and conditions of
      the
      applicable Franchise Agreement, if any, and each Loan Party shall, and shall
      cause each Affiliate Operating Lessee to, (i) pay all sums required to be paid
      by Operating Lessees under each Franchise Agreement, (ii) diligently perform,
      observe, and enforce all of the terms, covenants, and conditions of each
      Franchise Agreement on the part of an Operating Lessee to be performed,
      observed, and enforced to the end that all things shall be done which are
      necessary to keep unimpaired the rights of each Operating Lessee under each
      Franchise Agreement except to the extent the foregoing could not reasonably
      be
      expected to cause a Material Property Event, (iii) maintain in all material
      respects the standards required by the applicable Franchisor with respect to
      FF&E and other capital improvements except to the extent that failure could
      not reasonably be expected to cause a Material Property Event,
      (iv) promptly notify Administrative Agent of the giving of any notice
      to an
      Operating Lessee of any default by such Operating Lessee in the performance
      or
      observance of any of the terms, covenants, or conditions of any Franchise
      Agreement on the part of any Operating Lessee to be performed and observed
      and
      deliver to Administrative Agent a true copy of each such notice, and
      (v) promptly deliver to Administrative Agent a copy of each financial
      statement, business plan, capital expenditure plan, notice, report, and estimate
      received by it under any Franchise Agreement.

     

    (b) No
      Loan
      Party shall, nor shall it permit any Operating Lessee to, without the prior
      consent of Administrative Agent, surrender any Franchise Agreement or terminate
      or cancel any Franchise Agreement or modify, change, supplement, alter or amend
      any Franchise Agreement, in any respect, either orally or in
      writing.

     

    (c) If
      an
      Operating Lessee shall default in the performance or observance of any material
      term, covenant, or condition of any Franchise Agreement to be performed or
      observed, then, without limiting the generality of the other provisions of
      this
      Agreement, and without waiving or releasing Loan Parties from any of their
      obligations hereunder, Administrative Agent shall have the right, but shall
      be
      under no obligation, to pay any sums and to perform any act or take any action
      as may be appropriate to cause all the terms, covenants, and conditions of
      such
      Franchise Agreement on the part of such Operating Lessee to be performed or
      observed to be promptly performed or observed on behalf of such Operating
      Lessee, to the end that the rights of such Operating Lessee in, to, and under
      such Franchise Agreement shall be kept unimpaired and free from default.
      Administrative Agent and any person designated by Administrative Agent shall
      have, and are hereby granted, the right to enter upon the applicable Borrowing
      Base Property at any time and from time to time for the purpose of taking any
      such action. If any Franchisor shall deliver to Administrative Agent a copy
      of
      any notice sent to an Operating Lessee of default under any applicable Franchise
      Agreement, such notice shall constitute full protection to Administrative Agent
      for any action taken or omitted to be taken by Administrative Agent in good
      faith, in reliance thereon.

     

    (d) Any
      sums
      expended by Administrative Agent pursuant to this Section 7.18
      shall
      bear interest at the Default Rate from the date such cost is incurred to the
      date of payment to Administrative Agent, shall be deemed to constitute a portion
      of the Obligations, shall be secured by the Lien of the Mortgages and the other
      Loan Documents and shall be immediately due and payable upon demand by
      Administrative Agent therefor.

     

    (e) Each
      Loan
      Party shall, promptly upon request of Administrative Agent, use diligent good
      faith efforts to obtain and deliver an estoppel certificate from each Franchisor
      stating that (i) each 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    applicable
      Franchise Agreement is in full force and effect and has not been modified,
      amended, or assigned, (ii) neither such Franchisor nor any Operating Lessee
      is
      in default under any of the terms, covenants, or provisions of each applicable
      Franchise Agreement and such Franchisor knows of no event which, but for the
      passage of time or the giving of notice or both, would constitute an event
      of
      default under each applicable Franchise Agreement, (iii) neither such Franchisor
      nor any Operating Lessee has commenced any action or given or received any
      notice for the purpose of terminating any applicable Franchise Agreement, and
      (iv) all sums due and payable to such Franchisor under each applicable Franchise
      Agreement have been paid in full.

     

    (f) In
      the
      event that any Management Agreement also serves as a franchise agreement or
      contains provisions typically contained in franchise agreements, then the
      provisions of this Section 7.18
      shall
      apply to such Management Agreement.

     

    (g) In
      the
      event that any Borrowing Base Property is at any time operated under a Franchise
      Agreement that is not effective as of the Closing Date (including a springing
      Franchise Agreement which is in place but not effective as of the Closing Date),
      then the Franchisor party to such Franchise Agreement shall deliver such
      estoppel letters, comfort letters, consents, or other conforming agreements
      as
      Administrative Agent may reasonably request.

     

    7.19  Operating
      Leases

     

    .
      No Loan
      Party shall, without the prior written consent of Administrative Agent (which
      consent shall not be unreasonably withheld, conditioned or delayed): (i)
      surrender, terminate, or cancel any Operating Lease or otherwise replace any
      Operating Lessee or enter into any other operating Lease with respect to any
      Borrowing Base Property except to the extent the foregoing could not reasonably
      be expected to cause a Material Property Event; (ii) reduce or consent to the
      reduction of the term of any Operating Lease except to the extent the foregoing
      could not reasonably be expected to cause a Material Property Event; (iii)
      increase or consent to the increase of the amount of any fees under any
      Operating Lease except to the extent the foregoing could not reasonably be
      expected to cause a Material Property Event; or (iv) otherwise modify, change,
      supplement, alter, amend, waive, or release any of its rights and remedies
      under, any Operating Lease in any material respect except to the extent the
      foregoing could not reasonably be expected to cause a Material Property Event.
      

     

    7.20  Ground
      Leases.

     

    (a) Each
      Mortgagor shall (i) pay or cause to be paid all rents, additional rents, and
      other sums required to be paid by it, as tenant under and pursuant to the
      provisions of the Ground Leases except to the extent the foregoing could not
      reasonably be expected to cause a Material Property Event, (ii) diligently
      perform and observe all of the terms, covenants, and conditions of the Ground
      Leases on the part of such Mortgagor, as tenant thereunder except to the extent
      the foregoing could not reasonably be expected to cause a Material Property
      Event, (iii) promptly notify Administrative Agent of the giving of any notice
      by
      the landlord under any Ground Lease to any Mortgagor of any default by such
      Mortgagor, as tenant thereunder, and deliver to Administrative Agent a true
      copy
      of each such notice within five (5) Business Days of receipt except to the
      extent the foregoing could not reasonably be expected to cause a Material
      Property Event, and (iv) promptly notify Administrative Agent of any bankruptcy,
      reorganization, or insolvency of the landlord under any Ground Lease or of
      any
      notice thereof, and deliver to Administrative Agent a true copy of such notice
      within five (5) Business Days of any Mortgagor’s receipt except to the extent
      the foregoing could not reasonably be expected to cause a Material Property
      Event. No Mortgagor shall, without the prior consent of Administrative Agent,
      surrender the leasehold estate created by any Ground Lease or terminate or
      cancel any Ground Lease or modify, change, supplement, alter, or amend any
      Ground Lease, either orally or in writing except to the extent the foregoing
      could not reasonably be expected to cause a Material Property Event, and if
      any
      Mortgagor shall default in the performance or observance of any term, covenant,
      or condition of any Ground Lease

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    on
      the
      part of such Mortgagor, as tenant thereunder, and shall fail to cure the same
      prior to the expiration of any applicable cure period provided thereunder,
      Administrative Agent shall have the right, but shall be under no obligation,
      to
      pay any sums and to perform any act or take any action as may be appropriate
      to
      cause all of the terms, covenants, and conditions of such Ground Lease on the
      part of any Mortgagor to be performed or observed on behalf of such Borrower,
      to
      the end that the rights of such Borrower in, to, and under such Ground Lease
      shall be kept unimpaired and free from default. If the landlord under any Ground
      Lease shall deliver to Administrative Agent a copy of any notice of default
      under such Ground Lease, such notice shall constitute full protection to
      Administrative Agent for any action taken or omitted to be taken by
      Administrative Agent, in good faith, in reliance thereon. Each Mortgagor shall
      exercise each individual option, if any, to extend or renew the term of any
      Ground Lease upon demand by Administrative Agent made at any time within one
      hundred twenty (120) days prior to the last day upon which any such option
      may
      be exercised, and each Mortgagor hereby expressly authorizes and appoint
      Administrative Agent its attorney-in-fact to exercise any such option in the
      name of and upon behalf of such Mortgagor, which power of attorney shall be
      irrevocable and shall be deemed to be coupled with an interest.

     

    (b) Notwithstanding
      anything contained in any Ground Lease to the contrary, no Mortgagor shall
      further sublet any portion of the Borrowing Base Property (other than as
      permitted pursuant to the applicable terms and conditions hereof) without prior
      written consent of Administrative Agent. 

     

    (c) No
      Ground
      Lease may be canceled, terminated, surrendered, or amended without the prior,
      written consent of Administrative Agent except to the extent the foregoing
      could
      not reasonably be expected to cause a Material Property Event.

     

    7.21  REIT
      Status

     

    .
      Parent
      (including its organization and methods of operations and those of its
      Subsidiaries) shall at all times qualify as a REIT.

     

    7.22  Subsidiary
      Guaranties

     

    .
      Parent
      and Borrower shall cause each Subsidiary that is required to execute the
      Subsidiary Guaranty to execute the Subsidiary Guaranty pursuant to Section 4.06
      and
      provide to Administrative Agent such other documentation required by
      Administrative Agent, all in form and substance acceptable to Administrative
      Agent, within thirty (30) days after the date on which such entity becomes
      a
      Subsidiary required to execute the Subsidiary Guaranty.

     

    7.23  Other
      Property Information

     

    .
      Parent
      and Borrower shall furnish to
      Administrative Agent (a) within one hundred twenty (120) days after the end
      of
      each fiscal year of Parent, annual budget projections for each Borrowing Base
      Property, and (b) upon Administrative Agent’s request such other information in
      their possession or control or in the possession or control of any Mortgagor
      or
      any Operating Lessee which is a Subsidiary of any Loan Party relating to the
      Improvements or the Borrowing Base Properties.

     

    7.24  Reports
      and Testing

     

    .
      Parent
      and Borrower shall promptly (a) deliver to Administrative Agent copies of all
      material reports, studies, inspections, and tests made on the Borrowing Base
      Properties, the Improvements, or any materials to be incorporated into the
      Improvements, and (b) make such additional tests on the Borrowing Base
      Properties, the Improvements, or any materials to be incorporated into the
      improvements as Administrative Agent reasonably requires. Borrower shall
      immediately notify Administrative Agent of any report, study, inspection, or
      test that indicates any material adverse condition relating to the Borrowing
      Base Properties, the Improvements, or any such materials which reasonably could
      result in a Material Property Event.

     

    7.25  Deferred
      Maintenance

     

    .
      Borrower shall, or shall cause the applicable Mortgagor to: 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (a) remedy
      to
      the reasonable satisfaction of Administrative Agent all repairs required with
      respect to the Borrowing Base Properties and identified on Schedule 7.25
      as
“Immediate Repairs” within ninety (90) days after the Closing Date;

     

    (b) remedy
      to
      the reasonable satisfaction of Administrative Agent all repairs required with
      respect to the Borrowing Base Properties and identified on Schedule 7.25
      as
“Non-Immediate Repairs” on or before December 31, 2006; and

     

    (c) remedy
      to
      the reasonable satisfaction of Administrative Agent all mold issues or damaged
      materials with respect to the Borrowing Base Properties identified on
Schedule 7.25
      within
      ninety (90) days after the Closing Date.

     

     

    ARTICLE
      VIII.  

     

     

    NEGATIVE
      COVENANTS

     

    So
      long
      as any Lender shall have any Commitment hereunder, any Loan or other Obligation
      hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
      remain outstanding:

     

    8.01  Liens

     

    .
      Neither
      Parent nor any Subsidiary shall create, incur, assume, or suffer to exist any
      Lien upon any Borrowing Base Property or any equity interests of any Mortgagor
      other than the following: 

     

    (a) Liens
      pursuant to any Loan Document;

     

    (b) Liens
      existing on the date hereof and listed on Schedule 8.01
      and any
      renewals or extensions thereof, provided that
      the
      property covered thereby is not increased and any renewal or extension of the
      obligations secured or benefited thereby is permitted by Section 8.03(b);

     

    (c) Liens
      for
      taxes not yet due or which are being contested in good faith and by appropriate
      proceedings diligently conducted, if adequate reserves with respect thereto
      are
      maintained on the books of the applicable Person in accordance with
      GAAP;

     

    (d) carriers’,
      warehousemen’s, mechanics’, materialmen’s, repairmen’s, or other like Liens
      arising in the ordinary course of business which are not overdue for a period
      of
      more than thirty (30) days or which are being contested in good faith and by
      appropriate proceedings diligently conducted, if adequate reserves with respect
      thereto are maintained on the books of the applicable Person;

     

    (e) pledges
      or deposits in the ordinary course of business in connection with workers’
      compensation, unemployment insurance and other social security legislation,
      other than any Lien imposed by ERISA;

     

    (f) deposits
      to secure the performance of bids, trade contracts and leases (other than
      Indebtedness), statutory obligations, surety bonds (other than bonds related
      to
      judgments or litigation), performance bonds, and other obligations of a like
      nature incurred in the ordinary course of business;

     

    (g) Liens
      set
      forth in the Title Insurance Policies issued with respect to the Mortgages;
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (h) other
      encumbrances which, in the aggregate, are not substantial in amount, and which
      do not in any case materially detract from the value of any Borrowing Base
      Property subject thereto or materially interfere with the ordinary conduct
      of
      the business of the applicable Mortgagor; 

     

    (i) Liens
      securing judgments for the payment of money not constituting an Event of Default
      under Section 9.01(h)
      or
      securing appeal or other surety bonds related to such judgments;
      and

     

    (j) Liens
      securing Indebtedness permitted under Section 8.03(a);
      provided that
      (i) such
      Liens do not at any time encumber any property other than the Personal Property
      financed by such Indebtedness and (ii) the Indebtedness secured thereby does
      not
      exceed the reasonable acquisition cost of the Personal Property being acquired
      on the date of acquisition.

     

    8.02  Investments

     

    .
      Neither
      Parent nor any Subsidiary shall make any Investments except:

     

    (a) Investments
      in the form of cash equivalents or short-term marketable
      securities;

     

    (b) advances
      to officers, directors, and employees of a Loan Party in an aggregate amount
      not
      to exceed $1,000,000 at any time outstanding, for travel, entertainment,
      relocation, and analogous ordinary business purposes;

     

    (c) Investments
      in Loan Parties and other Subsidiaries;

     

    (d) Investments
      consisting of extensions of credit in the nature of accounts receivable or
      notes
      receivable arising from the grant of trade credit in the ordinary course of
      business, and Investments received in satisfaction or partial satisfaction
      thereof from financially troubled account debtors to the extent reasonably
      necessary in order to prevent or limit loss; and

     

    (e) Investments
      in the ordinary course of business of a hospitality REIT primarily in Properties
      or the owners of Properties under nationally-recognized brands with qualified
      managers or operators; provided that
      Investments in (i) raw land, non-income producing Properties, and other
      non-hotel properties in an aggregate amount shall not exceed at any time fifteen
      percent (15%) of Consolidated Total Assets, and (ii) Persons that are not
      Subsidiaries of Parent in an aggregate amount shall not exceed at any time
      twenty-five percent (25%) of Consolidated Total Assets; provided
      further
      that the
      aggregate amount of Investments in (i) and (ii) shall not exceed at any time
      twenty-five percent (25%) of Consolidated Total Assets.

     

    8.03  Indebtedness
      and Liens with respect to Mortgagors

     

    .
      Neither
      Parent nor Borrower shall permit (a) any Mortgagor to create, incur, assume,
      or
      suffer to exist any Indebtedness, other than (i) its Guaranty, and (ii)
      Indebtedness in respect of capital leases, Synthetic Lease Obligations, and
      purchase money obligations for fixed or capital Personal Property within the
      limitations set forth in Section 8.01(j);
      provided,
      however
      that the
      aggregate amount of all such Indebtedness as relating to or affecting any
      Borrowing Base Property shall not exceed at any time five percent (5%) of the
      Implied Loan Amount of such Borrowing Base Property, and (b) any Mortgagor
      to
      create, incur, assume, or suffer to exist any Lien (other than as permitted
      by
Section 8.01)
      upon
      its property, assets, or revenues, other than in favor of Administrative Agent
      to secure the Obligations.

     

    8.04  Fundamental
      Changes

     

    .
      Neither
      Parent nor any Loan Party shall merge, dissolve, liquidate, consolidate with
      or
      into another Person, or Dispose of (whether in one transaction or in a series
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    of
      transactions) all or substantially all of its assets (whether now owned or
      hereafter acquired) to or in favor of any Person, except that, so long as no
      Default exists or would result therefrom:

     

    (a) any
      Loan
      Party may merge with any other Loan Party; provided that
      if
      Borrower is merging with another Loan Party, then Borrower shall be the
      continuing or surviving Person; 

     

    (b) any
      Loan
      Party may Dispose of all or substantially all of its assets (upon voluntary
      liquidation or otherwise) to Borrower or to another Loan Party; provided that,
      if one
      or more Borrowing Base Properties constitutes all or substantially all of the
      assets of a Loan Party, then nothing contained in this Section 8.04
      shall
      prohibit such Loan Party from making a Disposition permitted by Section 8.05(c)
      to a
      Person other
      than a Loan Party;

     

    (c) any
      Loan
      Party may merge with any other Person (other than a Loan Party); provided that
      such Loan Party shall be the continuing or surviving Person, or
      that
      such Person is a wholly-owned Subsidiary of Parent and assumes all liabilities
      of such Loan Party under the Loan Documents pursuant to documentation acceptable
      to Administrative Agent;

     

    (d) with
      the
      approval of the Required Lenders, Parent or substantially all of the
      Subsidiaries of Parent may merge or otherwise combine with another Person (the
      “Permitted
      Combination”)
      so
      long as: (i) the continuing and surviving Person in such transaction (the
“Survivor”)
      assumes and accedes to all obligations and liabilities of Parent under the
      Loan
      Documents, or to those of all of the other affected Loan Parties pursuant to
      documentation acceptable to Administrative Agent and enters into a new Parent
      Guaranty as required by Administrative Agent; (ii) no Default or Event of
      Default exists before or after giving effect to such merger or such other
      combination; (iii) a majority of the ownership interests in the Survivor
      continue to be owned by persons who owned, directly or indirectly, a majority
      of
      the ownership interests of Parent immediately prior to such Permitted
      Combination; and (iv) the Survivor is, or is a wholly-owned Subsidiary of,
      a
      public company the common equity of which is listed and traded on a
      nationally-recognized stock exchange; and

     

    (e) Parent
      or
      any Subsidiary of Parent
      and CNL Hospitality Corp. may merge or otherwise combine so long as
      Parent
      or such
      Subsidiary, as applicable,
      is the
      continuing and surviving Person and no Default or Event of Default exists before
      or after giving effect to such merger or such other combination (the
“Advisor
      Merger”).

     

    8.05  Dispositions

     

    .
      Neither
      Parent nor any Subsidiary shall make any Disposition or enter into any agreement
      to make any Disposition except:

     

    (a) Dispositions
      of property, whether now owned or hereafter acquired, in the ordinary course
      of
      business for fair consideration and on an arms length basis;

     

    (b) Dispositions
      permitted by Section 8.04;
      and

     

    (c) Dispositions
      of Borrowing Base Properties, so long as such Borrowing Base Properties are
      released from the Borrowing Base pursuant to Section 4.05
      prior to
      or contemporaneously with such Disposition;

     

    provided,
      however,
      that
      any Disposition pursuant to clauses (a), (b),
      and
      (c) shall
      be
      for fair market value.

     

    8.06  Restricted
      Payments

     

    .
      Neither
      Parent nor any Subsidiary shall declare or make, directly or indirectly, any
      Restricted Payment, or incur any obligation (contingent or otherwise) to do
      so,
      except that:

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (a) each
      Loan
      Party may make Restricted Payments to Parent or to another Loan Party (or to
      a
      Subsidiary so long as such Restricted Payments are passed through such
      Subsidiary to Parent or a Loan Party);

     

    (b) each
      Loan
      Party may declare and make dividend payments or other distributions payable
      solely in the common stock or other common equity interests of such
      Person;

     

    (c) each
      Loan
      Party may purchase, redeem, or otherwise acquire shares of its common stock
      or
      other common equity interests or warrants or options to acquire any such shares
      with the proceeds received from the substantially concurrent issue of new shares
      of its common stock or other common equity interests; and

     

    (d) Parent
      may make Restricted Payments so long as no Event of Default has occurred and
      is
      continuing before or after giving effect to such Restricted Payment,
provided that
      the
      aggregate amount of all Restricted Payments after December 31, 2005 may not
      exceed the amount of Permitted Distributions determined as of the date such
      Restricted Payments are made.

     

    8.07  Change
      in Nature of Business

     

    .
      Neither
      Parent nor any Subsidiary shall engage in any material line of business
      substantially different from those lines of business conducted by such Loan
      Party on the date hereof or any business substantially related or incidental
      thereto.

     

    8.08  Transactions
      with Affiliates

     

    .
      Neither
      Parent nor any Subsidiary shall enter into any transaction of any kind with
      any
      Affiliate of Borrower, whether or not in the ordinary course of business, other
      than on fair and reasonable terms substantially as favorable to such Person
      as
      would be obtainable by such Person at the time in a comparable arm’s length
      transaction with a Person other than an Affiliate; provided, however, that
      nothing contained herein shall prohibit (a) transactions between Loan Parties
      or
      other fundamental changes permitted under Section
      8.04
      or (b)
      the Advisor Merger.

     

    8.09  Burdensome
      Agreements

     

    .
      No Loan
      Party shall enter into any Contractual Obligation (other than this Agreement
      or
      any other Loan Document) that (a) limits the ability (i) of any Loan Party
      to
      make Restricted Payments to Borrower or to otherwise transfer property to
      Borrower, (ii) of any Loan Party to Guarantee the Indebtedness of Borrower
      or
      (iii) of any Loan Party to create, incur, assume or suffer to exist Liens on
      property of such Person; provided,
      however,
      that
      this clause (iii) shall not prohibit any negative pledge incurred or provided
      in
      favor of any holder of Indebtedness permitted under Section 8.03
      solely
      to the extent any such negative pledge relates to the property financed by
      or
      the subject of such Indebtedness; or (b) requires the grant of a Lien to secure
      an obligation of such Person if a Lien is granted to secure another obligation
      of such Person.

     

    8.10  Use
      of Proceeds

     

    .
      Borrower shall not use the proceeds of any Credit Extension, whether directly
      or
      indirectly, and whether immediately, incidentally or ultimately, to purchase
      or
      carry margin stock (within the meaning of Regulation U of the FRB) or to extend
      credit to others for the purpose of purchasing or carrying margin stock or
      to
      refund indebtedness originally incurred for such purpose.

     

    8.11  Contracts

     

    .
      Without
      Administrative Agent’s prior written approval as to parties, terms, and all
      other matters, no Loan Party shall permit any Operating Lessee or Manager to
      (a)
      enter into any management, leasing, maintenance, or other contract pertaining
      to
      any Borrowing Base Property that is for a term greater than, or which is not
      unconditionally terminable without penalty on not more than thirty (30) days
      notice after, one (1) year, or (b) modify, amend, or terminate any such
      contracts other than in the ordinary course of business, nor shall it permit
      any
      Operating Lessee or Manager to, default under any

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    contract
      or permit any contract to terminate by reason of any failure of such Person
      to
      perform thereunder and shall promptly notify Administrative Agent of any default
      thereunder. Borrower will deliver or cause to be delivered to Administrative
      Agent, upon request of Administrative Agent, the names and addresses of all
      persons or entities with whom each contractor has contracted or intends to
      contract.

     

    8.12  Lease
      Approval

     

    .
      No Loan
      Party shall permit any Operating Lessee to enter into any Lease of space in
      the
      Improvements unless approved or deemed approved by Administrative Agent prior
      to
      execution; provided that
      an
      Operating Lessee may enter into any Lease with a term of less than five (5)
      years for the occupancy of less than five thousand (5,000) square feet of net
      rentable area of any Borrowing Base Property without the prior approval of
      Administrative Agent. Such Person’s standard form of Lease, and any revisions
      thereto, must have the prior written approval of Administrative Agent.
      Notwithstanding the foregoing or anything set forth herein to the contrary,
      Leases entered into in the ordinary course of business following recordation
      of
      the Mortgages, and which could not reasonably be expected to cause a Material
      Property Event, shall not require any approval by Administrative
      Agent.

     

    8.13  No
      Other
      Liens

     

    .
      No Loan
      Party shall, without
      the prior written consent of Administrative Agent, create, place, or permit
      to
      be created or placed, or through any act or failure to act, acquiesce in the
      placing of, or allow to remain, any deed of trust, mortgage, voluntary or
      involuntary lien, whether statutory, constitutional, or contractual, security
      interest, encumbrance, or charge, or conditional sale or other title retention
      document, against or covering any Borrowing Base Property, or any part thereof,
      other than normal and customary encumbrances associated with operation of any
      Borrowing Base Property, and should any of the foregoing become attached
      hereafter in any manner to any part of the Borrowing Base Property without
      the
      prior written consent of Administrative Agent, each Loan
      Party will
      cause the same to be promptly discharged and released. Each Loan
      Party will
      own
      all parts of the Borrowing Base Properties and will not acquire any fixtures,
      equipment, or other property (including software embedded therein) forming
      a
      part of any Borrowing Base Property pursuant to a Lease, license, security
      agreement, or similar agreement, whereby any party has or may obtain the right
      to repossess or remove same, without the prior written consent of Administrative
      Agent.

     

    8.14  Reciprocal
      Easement Agreements.

     

    No
      Loan
      Party
      shall:

     

    (a) enter
      into, terminate, or modify any
      REA
      without Administrative Agent’s prior written consent, which consent shall not be
      unreasonably withheld, conditioned or delayed; or 

     

    (b) fail
      to
      enforce, comply with, or cause each of the parties to the REA to comply with
      all
      of the material economic terms and conditions contained in any REA.

     

    8.15  Financial
      Covenants.

     

    
      	(a)  	
              Consolidated
                Leverage Ratio.
                Parent shall not permit the Consolidated Leverage Ratio of Parent
                and its
                Subsidiaries on a consolidated basis at any time during the following
                periods to be greater than the ratio set forth opposite such period
                below:

            


    

     

    


     

    


     

    


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    


     

    
      	
              Period

               

            	
              Maximum
                Rate

               

            
	
              Closing
                Date through December 31, 2005

               

            	
              8.25
                to 1.0

               

            
	
              January 1,
                2006 through June 30, 2006

               

            	
              8.0
                to 1.0

               

            
	
              July 1,
                2006 through December 31, 2006

               

            	
              7.5
                to 1.0

               

            
	
              January 1,
                2007 through June 30, 2007

               

            	
              7.25
                to 1.0

               

            
	
              July 1,
                2007 through March 31, 2008

               

            	
              7.0
                to 1.0

               

            
	
              April 1,
                2008 through September 30, 2008

               

            	
              6.75
                to 1.0

               

            
	
              October 1,
                2008 and thereafter

               

            	
              6.50
                to 1.0

               

            


    

    


     

    (b) Consolidated
      Fixed Charge Coverage Ratio.
      Parent
      shall not permit the Consolidated Fixed Charge Coverage Ratio of Parent and
      its
      Subsidiaries on a consolidated basis as of the last day of any fiscal quarter
      of
      Parent to be less than (i) 1.50 to 1.0 from the Closing Date through
      December 31, 2006, (ii) 1.55 to 1.0 from January 1, 2007 through
      December 31, 2007, and (iii) 1.60 to 1.0 from January 1, 2008
      through
      the Maturity Date.

     

    (c) Borrowing
      Base Debt Service Coverage Ratio.
      Parent
      and Borrower shall not permit, as of the last day of any fiscal quarter, the
      ratio of (i) Adjusted NOI for the Borrowing Base Properties as of such date
      for
      the twelve (12) month period ending on such date of determination, to (ii)
      Implied Debt Service, to be less than 1.60 to 1.0.

     

    8.16  Pooling
      Agreements

     

    .
      Parent
      will not, and will not permit any Subsidiary to, without the prior written
      consent of Administrative Agent (not to be unreasonably withheld) (a) be a
      party
      to or enter into any Pooling Agreements other than as set forth on Schedule 6.28,
      or (b)
      amend any Pooling Agreement disclosed on Schedule 6.28
      so as to
      add additional Borrowing Base Properties or other Properties.

     

    8.17  Manager
      Liquidity Facilities

     

    .
      Parent
      will not, and will not permit any Subsidiary to, (a) be a party to or enter
      into
      any Manager Liquidity Facility Agreement except as set forth on Schedule 6.29,
      or (b)
      incur or be liable for any obligations in respect of extensions or credit or
      other advances under any Manager Liquidity Facility Agreement except for
      unsecured advances or extensions of credit made prior to the Closing Date in
      the
      amounts set forth on Schedule 6.29.

     

    


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

     

    ARTICLE
      IX.  

     

     

    EVENTS
      OF DEFAULT AND REMEDIES

     

    9.01  Events
      of Default

     

    .
      Any of
      the following shall constitute an Event of Default:

     

    (a) Non-Payment.
      Borrower
      or any other Loan Party fails to pay (i) when and as required to be paid herein,
      any amount of principal of any Loan or any L/C Obligation, or (ii) within three
      (3) days after the same becomes due, any interest on any Loan or any L/C
      Obligation, or any commitment or other fee due hereunder, or (iii) within five
      (5) days after written notice of such failure, any other amount payable
      hereunder or under any other Loan Document;
      or

     

    (b) Specific
      Covenants.
      (i) Any
      Loan Party fails to perform or observe any term, covenant, or agreement
      contained in any of Sections 7.01,
      7.02,
      7.03,
      7.05(a),
      7.10,
      7.11,
      or
Article VIII;
      or (ii)
      any Loan Party fails to perform or observe any term, covenant, or agreement
      contained in 

     

    Sections
      7.07(a)(i)(A),
      7.07(a)(ii),
      7.07(a)(iv),
      or
7.07(a)(ix)
      and such
      failure continues unremedied for five (5) days after such failure occurred;
      or

     

    (c) Other
      Defaults.
      Any
      Loan Party fails to perform or observe any other covenant or agreement (not
      specified in subsection (a) or (b) above) contained in any Loan Document on
      its
      part to be performed or observed and such failure continues unremedied for
      thirty (30) days after such failure occurred or, if any such failure described
      in this clause (c)
      reasonably cannot be cured or remedied within such thirty (30) days and such
      Loan Party is at all times diligently pursuing the cure thereof, such default
      shall continue unremedied for sixty (60) days after such failure
      occurred;
      or

     

    (d) Representations
      and Warranties.
      Any
      representation, warranty, certification, or statement of fact made or deemed
      made by or on behalf of Parent or any other Loan Party herein, in any other
      Loan
      Document, or in any document delivered in connection herewith or therewith
      shall
      be incorrect or misleading in any material respect when made or deemed made;
      or

     

    (e) Cross-Default.
      (i)
      Parent or any of its Subsidiaries (A) fails to make any payment when due
      (whether by scheduled maturity, required prepayment, acceleration, demand,
      or
      otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness
      hereunder and Indebtedness under Swap Contracts) having an aggregate principal
      amount (including undrawn committed or available amounts and including amounts
      owing to all creditors under any combined or syndicated credit arrangement)
      of
      more than the Threshold Amount, or (B) fails to observe or perform any other
      agreement or condition relating to any such Indebtedness or Guarantee or
      contained in any instrument or agreement evidencing, securing or relating
      thereto, or any other event occurs, the effect of which default or other event
      is to cause, or to permit the holder or holders of such Indebtedness or the
      beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf
      of such holder or holders or beneficiary or beneficiaries) to cause, with the
      giving of notice if required, such Indebtedness to be demanded or to become
      due
      or to be repurchased, prepaid, defeased, or redeemed (automatically or
      otherwise), or an offer to repurchase, prepay, defease, or redeem such
      Indebtedness to be made, prior to its stated maturity, or such Guarantee to
      become payable or cash collateral in respect thereof to be demanded; or (ii)
      there occurs under any Swap Contract an Early Termination Date (as defined
      in
      such Swap Contract) resulting from (A) any event of default under such Swap
      Contract as to which Borrower or any Subsidiary is the Defaulting Party (as
      defined in such Swap Contract) or (B) any Termination Event (as so defined)
      under such Swap Contract as to which Borrower or any Subsidiary is an Affected
      Party (as so defined) and, in either event, the Swap Termination Value owed
      by
      Borrower or such Subsidiary as a result thereof is greater than the Threshold
      Amount; or

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (f) Insolvency
      Proceedings, Etc.
      Parent
      or any of its Subsidiaries institutes or consents to the institution of any
      proceeding under any Debtor Relief Law, or makes an assignment for the benefit
      of creditors; or applies for or consents to the appointment of any receiver,
      trustee, custodian, conservator, liquidator, rehabilitator or similar officer
      for it or for all or any material part of its property; or any receiver,
      trustee, custodian, conservator, liquidator, rehabilitator or similar officer
      is
      appointed without the application or consent of such Person and the appointment
      continues undischarged or unstayed for sixty (60) calendar days; or any
      proceeding under any Debtor Relief Law relating to any such Person or to all
      or
      any material part of its property is instituted without the consent of such
      Person and continues undismissed or unstayed for sixty (60) calendar days,
      or an
      order for relief is entered in any such proceeding; or

     

    (g) Inability
      to Pay Debts; Attachment.
      (i)
      Parent or any of its Subsidiaries becomes unable or admits in writing its
      inability or fails generally to pay its debts as they become due, or (ii) any
      writ or warrant of attachment or execution or similar process is issued or
      levied against all or any material part of the property of any such Person
      and
      is not released, vacated or fully bonded within thirty (30) days after its
      issue
      or levy; or

     

    (h) Judgments.
      There
      is entered against Parent or any of its Subsidiaries (i) a final judgment or
      order for the payment of money in an aggregate amount exceeding the Threshold
      Amount (to the extent not covered by independent third-party insurance as to
      which the insurer does not dispute coverage), or (ii) any one or more
      non-monetary final judgments that have, or could reasonably be expected to
      have,
      individually or in the aggregate, a Material Adverse Effect and, in either
      case,
      (A) enforcement proceedings are commenced by any creditor upon such judgment
      or
      order, or (B) there is a period of ten (10)
      consecutive days during which a stay of enforcement of such judgment, by reason
      of a pending appeal or otherwise, is not in effect; or 

     

    (i) ERISA.
      (i) An
      ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
      has resulted or could reasonably be expected to result in liability of Borrower
      under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
      PBGC
      in an aggregate amount in excess of the Threshold Amount, or (ii) Borrower
      or
      any ERISA Affiliate fails to pay when due, after the expiration of any
      applicable grace period, any installment payment with respect to its withdrawal
      liability under Section 4201 of ERISA under a Multiemployer Plan in
      an
      aggregate amount in excess of the Threshold Amount; or

     

    (j) Invalidity
      of Loan Documents.
      Any
      Loan Document, at any time after its execution and delivery and for any reason
      other than as expressly permitted hereunder or satisfaction in full of all
      the
      Obligations, ceases to be in full force and effect; or any Loan Party or any
      other Person contests in any manner the validity or enforceability of any Loan
      Document; or any Loan Party denies that it has any or further liability or
      obligation under any Loan Document, or purports to revoke, terminate, or rescind
      any Loan Document; or

     

    (k) Change
      of Control.
      There
      occurs any Change of Control with respect to Parent or any Loan Party (other
      than pursuant to a Disposition which is otherwise permitted hereunder or a
      Permitted Combination under Section 8.04) or Parent ceases to own, directly
      or
      indirectly, at least fifty-one percent (51%) of the ownership interests of
      Borrower; or

     

    (l) Borrowing
      Base Properties.
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

     

    (i) any
      material required permit, license, certificate, or approval with respect to
      any
      Borrowing Base Property lapses or ceases to be in full force and effect;
      or

     

    (ii) the
      owner
      of any Borrowing Base Property enters into any Lease of part or all of such
      Borrowing Base Property which does not comply with the Loan Documents, or a
      material default by the owner of any Borrowing Base Property under or any
      failure by the owner of such Borrowing Base Property to satisfy any of the
      conditions of a Lease; or

     

    (iii) a
      lien
      for the performance of work or the supply of materials which is established
      against any Borrowing Base Property, or any stop notice served on any Loan
      Party, the general contractor, Administrative Agent, or a Lender, remains
      unsatisfied or unbonded for a period of thirty (30) days after the date of
      filing or service; or

     

    (iv) the
      occurrence of any condition or situation which, in the sole determination of
      Administrative Agent, constitutes a danger to or material impairment of any
      Borrowing Base Property or the liens of the Mortgages, if such condition or
      situation is not remedied within ten (10) days after written notice to any
      Loan
      Party thereof; or

     

    (v) if
      a Loan
      Party shall permit any event within its control to occur that would cause any
      REA to terminate without notice or action by any party thereto or would entitle
      any party to terminate any REA and the term thereof by giving notice to such
      Loan Party; or any REA shall be surrendered, terminated, or canceled for any
      reason or under any circumstance whatsoever except as provided for in such
      REA;
      or any term of any REA shall be modified or supplemented without Administrative
      Agent’s prior written consent; or a Loan Party shall fail, within ten (10)
      Business Days after demand by Administrative Agent, to exercise its option
      to
      renew or extend the term of any REA or shall fail or neglect to pursue
      diligently all actions necessary to exercise such renewal rights pursuant to
      such REA except as provided for in such REA; or

     

    (vi) if
      a
      default or termination event on the part of any Loan Party or any Person that
      is
      an Affiliate of any Loan Party has occurred and continues beyond any applicable
      cure period under any Franchise Agreement, Management Agreement, Operating
      Lease, or Ground Lease or if a Loan Party or Operating Lessee, without
      Administrative Agent’s prior written consent, terminates or cancels any
      Franchise Agreement, Management Agreement, Operating Lease, or Ground Lease
      or
      operates any Borrowing Base Property under the name of any hotel chain or system
      other than the name such Borrowing Base Property is operated under as of the
      date hereof unless such Borrowing Base Property is operated under the name
      of
      another hotel chain or system acceptable to Administrative Agent;
      or

     

    (m) Environmental
      Claim.
      If any
      event or condition shall occur or exist on or with respect to any Real Property
      of any Loan Party which has resulted, or could reasonably be expected to result,
      in an Environmental Claim which has resulted, or could reasonably be expected
      to
      result, in liability of any Loan Party in an amount in excess of the Threshold
      Amount. 

     

    9.02  Remedies
      Upon Event of Default

     

    .
      If any
      Event of Default occurs and is continuing, Administrative Agent shall, at the
      request of, or may, with the consent of, the Required Lenders, take any or
      all
      of the following actions:

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (a) declare
      the commitment of each Lender to make Loans and any obligation of the L/C Issuer
      to make L/C Credit Extensions to be terminated, whereupon such commitments
      and
      obligation shall be terminated; 

     

    (b) declare
      the unpaid principal amount of all outstanding Loans, all interest accrued
      and
      unpaid thereon, and all other amounts owing or payable hereunder or under any
      other Loan Document to be immediately due and payable, without presentment,
      demand, protest or other notice of any kind, all of which are hereby expressly
      waived by Borrower; 

     

    (c) require
      that Borrower Cash Collateralize the L/C Obligations (in an amount equal to
      the
      then Outstanding Amount thereof); and

     

    (d) exercise
      on behalf of itself and the Lenders all rights and remedies available to it
      and
      the Lenders under the Loan Documents or applicable law; provided,
      however,
      that
      upon the occurrence of an actual or deemed entry of an order for relief with
      respect to Borrower under the Bankruptcy Code of the United States, the
      obligation of each Lender to make Loans and any obligation of the L/C Issuer
      to
      make L/C Credit Extensions shall automatically terminate, the unpaid principal
      amount of all outstanding Loans and all interest and other amounts as aforesaid
      shall automatically become due and payable, and the obligation of Borrower
      to
      Cash Collateralize the L/C Obligations as aforesaid shall automatically become
      effective, in each case without further act of Administrative Agent or any
      Lender.

     

    


    9.03  Application
      of Funds

     

    .
      After
      the exercise of remedies provided for in Section 9.02
      (or
      after the Loans have automatically become immediately due and payable and the
      L/C Obligations have automatically been required to be Cash Collateralized
      as
      set forth in the proviso to Section 9.02),
      any
      amounts received on account of the Obligations shall be applied by
      Administrative Agent in the following order:

    


    First,
      to
      payment of that portion of the Obligations constituting fees, indemnities,
      expenses, and other amounts (including Attorney Costs and amounts payable under
      Article III)
      payable
      to Administrative Agent in its capacity as such;

     

    Second,
      to
      payment of that portion of the Obligations constituting fees, indemnities and
      other amounts (other than principal and interest) payable to the Lenders
      (including Attorney Costs and amounts payable under Article III),
      ratably among them in proportion to the amounts described in this clause
Second
      payable
      to them;

     

    Third,
      to
      payment of that portion of the Obligations constituting accrued and unpaid
      interest on the Loans and L/C Borrowings, ratably among the Lenders in
      proportion to the respective amounts described in this clause Third
      payable
      to them;

     

    Fourth,
      to
      payment of that portion of the Obligations constituting unpaid principal of
      the
      Loans and L/C Borrowings and that portion of the Obligations constituting
      liabilities and obligations under Swap Contracts issued by a Lender or an
      Affiliate of a Lender, ratably among the Lenders in proportion to the respective
      amounts described in this clause Fourth
      held by
      them;

     

    Fifth,
      to
      Administrative Agent for the account of the L/C Issuer, to Cash Collateralize
      that portion of L/C Obligations comprised of the aggregate undrawn amount of
      Letters of Credit; and

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    Last,
      the
      balance, if any, after all of the Obligations have been indefeasibly paid in
      full, to Borrower or as otherwise required by Law.

     

    Subject
      to Section 2.03(c),
      amounts
      used to Cash Collateralize the aggregate undrawn amount of Letters of Credit
      pursuant to clause Fifth
      above
      shall be applied to satisfy drawings under such Letters of Credit as they occur.
      If any amount remains on deposit as Cash Collateral after all Letters of Credit
      have either been fully drawn or expired, such remaining amount shall be applied
      to the other Obligations, if any, in the order set forth above.

     

     

    ARTICLE
      X.  

     

     

    ADMINISTRATIVE
      AGENT

     

    10.01  Appointment
      and Authorization of Administrative Agent.

     

    (a) Each
      Lender hereby irrevocably appoints, designates, and authorizes Administrative
      Agent to take such action on its behalf under the provisions of this Agreement
      and each other Loan Document and to exercise such powers and perform such duties
      as are expressly delegated to it by the terms of this Agreement or any other
      Loan Document, together with such powers as are reasonably incidental thereto.
      Notwithstanding any provision to the contrary contained elsewhere herein or
      in
      any other Loan Document, Administrative Agent shall not have any duties or
      responsibilities, except those expressly set forth herein, nor shall
      Administrative Agent have or be deemed to have any fiduciary relationship with
      any Lender or participant, and no implied covenants, functions,
      responsibilities, duties, obligations, or liabilities shall be read into this
      Agreement or any other Loan Document or otherwise exist against Administrative
      Agent. Without limiting the generality of the foregoing sentence, the use of
      the
      term “agent” herein and in the other Loan Documents with reference to
      Administrative Agent is not intended to connote any fiduciary or other implied
      (or express) obligations arising under agency doctrine of any applicable Law.
      Instead, such term is used merely as a matter of market custom, and is intended
      to create or reflect only an administrative relationship between independent
      contracting parties.

     

    (b) The
      L/C
      Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
      issued by it and the documents associated therewith, and the L/C Issuer shall
      have all of the benefits and immunities (i) provided to Administrative Agent
      in
      this Article X
      with
      respect to any acts taken or omissions suffered by the L/C Issuer in connection
      with Letters of Credit issued by it or proposed to be issued by it and the
      applications and agreements for letters of credit pertaining to such Letters
      of
      Credit as fully as if the term “Administrative Agent” as used in this
Article X
      and in
      the definition of “Agent-Related Person” included the L/C Issuer with respect to
      such acts or omissions, and (ii) as additionally provided herein with respect
      to
      the L/C Issuer.

     

    10.02  Delegation
      of Duties

     

    .
      Administrative Agent may execute any of its duties under this Agreement or
      any
      other Loan Document by or through agents, employees or attorneys-in-fact and
      shall be entitled to advice of counsel and other consultants or experts
      concerning all matters pertaining to such duties. Administrative Agent shall
      not
      be responsible for the negligence or misconduct of any agent or attorney-in-fact
      that it selects in the absence of gross negligence or willful
      misconduct.

     

    10.03  Liability
      of Administrative Agent

     

    .
      No
      Agent-Related Person shall (a) be liable for any action taken or omitted to
      be
      taken by any of them under or in connection with this Agreement or any other
      Loan Document or the transactions contemplated hereby (except for its own gross
      negligence or willful misconduct in connection with its duties expressly set
      forth herein), or (b) be responsible in any 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    manner
      to
      any Lender or participant for any recital, statement, representation, or
      warranty made by any Loan Party or any officer thereof, contained herein or
      in
      any other Loan Document, or in any certificate, report, statement or other
      document referred to or provided for in, or received by Administrative Agent
      under or in connection with, this Agreement or any other Loan Document, or
      the
      validity, effectiveness, genuineness, enforceability or sufficiency of this
      Agreement or any other Loan Document, or for any failure of any Loan Party
      or
      any other party to any Loan Document to perform its obligations hereunder or
      thereunder. No Agent-Related Person shall be under any obligation to any Lender
      or participant to ascertain or to inquire as to the observance or performance
      of
      any of the agreements contained in, or conditions of, this Agreement or any
      other Loan Document, or to inspect the properties, books, or records of any
      Loan
      Party or any Affiliate thereof.

     

    10.04  Reliance
      by Administrative Agent.

     

    (a) Administrative
      Agent shall be entitled to rely, and shall be fully protected in relying, upon
      any writing, communication, signature, resolution, representation, notice,
      consent, certificate, affidavit, letter, telegram, facsimile, telex, or
      telephone message, electronic mail message, statement, or other document or
      conversation believed by it to be genuine and correct and to have been signed,
      sent or made by the proper Person or Persons, and upon advice and statements
      of
      legal counsel (including counsel to any Loan Party), independent accountants
      and
      other experts selected by Administrative Agent. Administrative Agent shall
      be
      fully justified in failing or refusing to take any action under any Loan
      Document unless it shall first receive such advice or concurrence of the
      Required Lenders (or all Lenders if required hereunder) as it deems appropriate
      and, if it so requests, it shall first be indemnified to its satisfaction by
      the
      Lenders against any and all liability and expense which may be incurred by
      it,
      by reason of taking or continuing to take any such action. Administrative Agent
      shall in all cases be fully protected in acting, or in refraining from acting,
      under this Agreement or any other Loan Document in accordance with a request
      or
      consent of the Required Lenders (or such greater number of Lenders as may be
      expressly required hereby in any instance) and such request and any action
      taken
      or failure to act pursuant thereto shall be binding upon all the
      Lenders.

     

    (b) For
      purposes of determining compliance with the conditions specified in Section 5.01,
      each
      Lender that has signed this Agreement shall be deemed to have consented to,
      approved or accepted or to be satisfied with, each document or other matter
      required thereunder to be consented to or approved by or acceptable or
      satisfactory to a Lender unless Administrative Agent shall have received notice
      from such Lender prior to the proposed Closing Date specifying its objection
      thereto.

     

    10.05  Notice
      of Default

     

    .
      Administrative Agent shall not be deemed to have knowledge or notice of the
      occurrence of any Default, except with respect to defaults in the payment of
      principal, interest and fees required to be paid to Administrative Agent for
      the
      account of the Lenders, unless Administrative Agent shall have received written
      notice from a Lender or Borrower referring to this Agreement, describing such
      Default and stating that such notice is a “notice of default.” Administrative
      Agent will notify the Lenders of its receipt of any such notice. Administrative
      Agent shall take such action with respect to such Default as may be directed
      by
      the Required Lenders (or all Lenders if required hereunder) in accordance with
      Article IX;
      provided,
      however,
      that
      unless and until Administrative Agent has received any such direction,
      Administrative Agent may (but shall not be obligated to) take such action,
      or
      refrain from taking such action, with respect to such Default as it shall deem
      advisable or in the best interest of the Lenders.

     

    10.06  Credit
      Decision; Disclosure of Information by Administrative
      Agent

     

    .
      Each
      Lender acknowledges that no Agent-Related Person has made any representation
      or
      warranty to it, and that no act by Administrative Agent hereafter taken,
      including any consent to and acceptance of any assignment or review of the
      affairs of any Loan Party or any Affiliate thereof, shall be deemed to
      constitute any 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    representation
      or warranty by any Agent-Related Person to any Lender as to any matter,
      including whether Agent-Related Persons have disclosed material information
      in
      their possession. Each Lender represents to Administrative Agent that it has,
      independently and without reliance upon any Agent-Related Person and based
      on
      such documents and information as it has deemed appropriate, made its own
      appraisal of and investigation into the business, prospects, operations,
      property, financial and other condition and creditworthiness of the Loan Parties
      and their respective Subsidiaries, and all applicable bank or other regulatory
      Laws relating to the transactions contemplated hereby, and made its own decision
      to enter into this Agreement and to extend credit to Borrower and the other
      Loan
      Parties hereunder. Each Lender also represents that it will, independently
      and
      without reliance upon any Agent-Related Person and based on such documents
      and
      information as it shall deem appropriate at the time, continue to make its
      own
      credit analysis, appraisals and decisions in taking or not taking action under
      this Agreement and the other Loan Documents, and to make such investigations
      as
      it deems necessary to inform itself as to the business, prospects, operations,
      property, financial and other condition and creditworthiness of Borrower and
      the
      other Loan Parties. Except for notices, reports and other documents expressly
      required to be furnished to the Lenders by Administrative Agent herein,
      Administrative Agent shall not have any duty or responsibility to provide any
      Lender with any credit or other information concerning the business, prospects,
      operations, property, financial and other condition or creditworthiness of
      any
      of the Loan Parties or any of their respective Affiliates which may come into
      the possession of any Agent-Related Person; provided that
      Administrative Agent shall use reasonable efforts to deliver to the Lenders
      any
      financial statements or other documents required to be delivered by Borrower
      pursuant to Section 7.01
      and
Section 7.03,
      to the
      extent that Borrower does not deliver such information directly to the
      Lenders.

     

    10.07  Indemnification
      of Administrative Agent

     

    .
      Whether
      or not the transactions contemplated hereby are consummated, the Lenders shall
      indemnify upon demand each Agent-Related Person (to the extent not reimbursed
      by
      or on behalf of any Loan Party and without limiting the obligation of any Loan
      Party to do so), pro rata, and hold harmless each Agent-Related Person from
      and
      against any and all Indemnified Liabilities incurred by it; provided,
      however,
      that no
      Lender shall be liable for the payment to any Agent-Related Person of any
      portion of such Indemnified Liabilities to the extent determined in a final,
      nonappealable judgment by a court of competent jurisdiction to have resulted
      from such Agent-Related Person’s
      own
      gross negligence or willful misconduct; provided,
      however,
      that no
      action taken in accordance with the directions of the Required Lenders (or
      all
      Lenders if required hereunder) shall be deemed to constitute gross negligence
      or
      willful misconduct for purposes of this Section 10.07.
      Without
      limitation of the foregoing, each Lender shall reimburse Administrative Agent
      upon demand for its ratable share of any costs or out-of-pocket expenses
      (including Attorney Costs) incurred by Administrative Agent in connection with
      the preparation, execution, delivery, administration, modification, amendment,
      or enforcement (whether through negotiations, legal proceedings or otherwise)
      of, or legal advice in respect of rights or responsibilities under, this
      Agreement, any other Loan Document, or any document contemplated by or referred
      to herein, to the extent that Administrative Agent is not reimbursed for such
      expenses by or on behalf of Borrower. The undertaking in this Section 10.07
      shall
      survive termination of the Aggregate Commitments, the payment of all other
      Obligations and the resignation of Administrative Agent.

     

    10.08  Administrative
      Agent in its Individual Capacity

     

    .
      Bank of
      America and its Affiliates may make loans to, issue letters of credit for the
      account of, accept deposits from, acquire equity interests in, and generally
      engage in any kind of banking, trust, financial advisory, underwriting, or
      other
      business with each of the Loan Parties and their respective Affiliates as though
      Bank of America were not Administrative Agent or the L/C Issuer hereunder and
      without notice to or consent of the Lenders. The Lenders acknowledge that,
      pursuant to such activities, Bank of America or its Affiliates may receive
      information regarding any Loan Party or its Affiliates (including information
      that may be subject to confidentiality obligations in favor of such Loan Party
      or such Affiliate) and acknowledge that 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Administrative
      Agent shall be under no obligation to provide such information to them. With
      respect to its Loans, Bank of America shall have the same rights and powers
      under this Agreement as any other Lender and may exercise such rights and powers
      as though it were not Administrative Agent or the L/C Issuer, and the terms
      “Lender” and “Lenders” include Bank of America in its individual
      capacity.

     

    10.09  Successor
      Administrative Agent

     

    .
      Administrative Agent may resign as Administrative Agent upon thirty (30) days’
      notice to the Lenders;
      provided that
      any such
      resignation by Bank of America shall also constitute its resignation as L/C
      Issuer. If Administrative Agent resigns under this Agreement, the Required
      Lenders shall appoint from among the Lenders a successor administrative agent
      for the Lenders, which successor administrative agent shall be consented to
      by
      Borrower at all times other than during the existence of an Event of Default
      (which consent of Borrower shall not be unreasonably withheld or delayed).
      If no
      successor administrative agent is appointed prior to the effective date of
      the
      resignation of Administrative Agent, Administrative Agent may appoint, after
      consulting with the Lenders and Borrower, a successor administrative agent
      from
      among the Lenders. Upon the acceptance of its appointment as successor
      administrative agent hereunder, the Person acting as such successor
      administrative agent shall succeed to all the rights, powers and duties of
      the
      retiring Administrative Agent and L/C Issuer and the respective term(s)
“Administrative Agent” and “L/C Issuer” means such successor administrative
      agent and Letter of Credit issuer, and the retiring Administrative Agent’s
      appointment, powers and duties as Administrative Agent shall be terminated
      and
      the retiring L/C Issuer’s rights, powers and duties as such shall be terminated,
      without any other or further act or deed on the part of such retiring L/C Issuer
      or any other Lender, other than the obligation of the successor L/C Issuer
      to
      issue letters of credit in substitution for the Letters of Credit, if any,
      outstanding at the time of such succession or to make other arrangements
      satisfactory to the retiring L/C Issuer to effectively assume the obligations
      of
      the retiring L/C Issuer with respect to such Letters of Credit. After any
      retiring Administrative Agent’s resignation hereunder as Administrative Agent,
      the provisions of this Article X
      and
Sections 11.04
      and
11.05
      shall
      inure to its benefit as to any actions taken or omitted to be taken by it while
      it was Administrative Agent under this Agreement. If no successor administrative
      agent has accepted appointment as Administrative Agent by the date which is
      thirty (30) days following a retiring Administrative Agent’s notice of
      resignation, the retiring Administrative Agent’s resignation shall nevertheless
      thereupon become effective and the Lenders shall perform all
      of the
      duties of Administrative Agent hereunder until such time, if any, as the
      Required Lenders appoint a successor agent as provided for above.

     

    10.10  Administrative
      Agent May File Proofs of Claim

     

    .
      In case
      of the pendency of any receivership, insolvency, liquidation, bankruptcy,
      reorganization, arrangement, adjustment, composition or other judicial
      proceeding relative to any Loan Party, Administrative Agent (irrespective of
      whether the principal of any Loan or L/C Obligation shall then be due and
      payable as herein expressed or by declaration or otherwise and irrespective
      of
      whether Administrative Agent shall have made any demand on Borrower) shall
      be
      entitled and empowered, by intervention in such proceeding or
      otherwise

     

    (a) to
      file
      and prove a claim for the whole amount of the principal and interest owing
      and
      unpaid in respect of the Loans, L/C Obligations, and all other Obligations
      that
      are owing and unpaid and to file such other documents as may be necessary or
      advisable in order to have the claims of the Lenders and Administrative Agent
      (including any claim for the reasonable compensation, expenses, disbursements
      and advances of the Lenders and Administrative Agent and their respective agents
      and counsel and all other amounts due the Lenders and Administrative Agent
      under
Sections
      2.03(i)
      and
(j),
      2.08
      and
11.04)
      allowed
      in such judicial proceeding; and

     

    (b) to
      collect and receive any monies or other property payable or deliverable on
      any
      such claims and to distribute the same;

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    and
      any
      custodian, receiver, assignee, trustee, liquidator, sequestrator, or other
      similar official in any such judicial proceeding is hereby authorized by each
      Lender to make such payments to Administrative Agent and, in the event that
      Administrative Agent shall consent to the making of such payments directly
      to
      the Lenders, to pay to Administrative Agent any amount due for the reasonable
      compensation, expenses, disbursements, and advances of Administrative Agent
      and
      its agents and counsel, and any other amounts due Administrative Agent under
      Sections
      2.08
      and
11.04.

     

    Nothing
      contained herein shall be deemed to authorize Administrative Agent to authorize
      or consent to or accept or adopt on behalf of any Lender any plan of
      reorganization, arrangement, adjustment or composition affecting the Obligations
      or the rights of any Lender or to authorize Administrative Agent to vote in
      respect of the claim of any Lender in any such proceeding.

     

    10.11  Collateral
      and Guaranty
      Matters

     

    .
      The
      Lenders irrevocably authorize Administrative Agent, at its option and in its
      discretion,

     

    (a) to
      release any Lien on any property granted to or held by Administrative Agent
      under any Loan Document (i) upon termination of the Aggregate Commitments and
      payment in full of all Obligations (other than contingent indemnification
      obligations) and the expiration or termination of all Letters of Credit, (ii)
      that is sold or to be sold as part of or in connection with any sale permitted
      hereunder or under any other Loan Document, or (iii) subject to Section 11.01,
      if
      approved, authorized or ratified in writing by the Required
      Lenders;

     

    (b) to
      release any Subsidiary Guarantor from future obligations under the Subsidiary
      Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
      permitted hereunder or ceases to own a Borrowing Base Property pursuant to
      a
      transaction otherwise permitted hereunder; and

     

    (c) to
      release any Borrowing Base Property in accordance with the terms of Section 4.05.

     

    Upon
      request by Administrative Agent at any time, the Required Lenders will confirm
      in writing Administrative Agent’s authority to release or subordinate its
      interest in particular types or items of property, or to release any Guarantor
      from its obligations under the Guaranty pursuant to this Section 10.12.

     

    10.12  Other
      Agents; Arrangers and Managers

     

    .
      None of
      the Lenders or other Persons identified on the facing page or signature pages
      of
      this Agreement as a “sole book manager” or “joint lead arranger” shall have any
      right, power, obligation, liability, responsibility, or duty under this
      Agreement other than, in the case of such Lenders, those applicable to all
      Lenders as such. Without limiting the foregoing, none of the Lenders or other
      Persons so identified shall have or be deemed to have any fiduciary relationship
      with any Lender. Each Lender acknowledges that it has not relied, and will
      not
      rely, on any of the Lenders or other Persons so identified in deciding to enter
      into this Agreement or in taking or not taking action hereunder.

     

    10.13  Approval
      of Lenders. 

     

    (a) All
      communications from Administrative Agent to any Lender requesting such Lender’s
      determination, consent, approval, or disapproval shall;
      (i) be
      given in the form of a written notice to each Lender, (ii) be accompanied by
      a
      description of the matter or thing as to which such determination, approval,
      consent, or disapproval is requested, or shall advise each Lender where such
      matter or thing 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    may
      be
      inspected, or shall otherwise describe the matter or issue to be resolved,
      (iii)
      include, if reasonably requested by a Lender and to the extent not previously
      provided to such Lender, written materials and a summary of all oral information
      provided to Administrative Agent by Borrowers in respect of the matter or issue
      to be resolved, and (iv) include Administrative Agent’s recommended course of
      action or determination in respect thereof. Each Lender shall reply promptly,
      but in any event (x) within thirty (30) days (or such lesser period as may
      be
      required under the Loan Documents for Administrative Agent to respond) for
      those
      matters requiring the consent by all Lenders, (y) within fifteen (15) Business
      Days (or such lesser period as may be required under the Loan Documents for
      Administrative Agent to respond) for those matters (other than the approval
      of
      the admission of a Property into the Borrowing Base) requiring the consent
      by
      the Required Lenders, and (z) within ten (10) Business Days (or such lesser
      period as may be required under the Loan Documents for Administrative Agent
      to
      respond) for the approval of the admission of a Property into the Borrowing
      Base, in each instance, after receipt of the request therefor by Administrative
      Agent (in either event, the “Lender
      Reply Period”).

     

    (b) Unless
      a
      Lender shall give written notice to Administrative Agent and Borrower that
      it
      objects to the recommendation or determination of Administrative Agent (together
      with a written explanation of the reasons behind such objection) within the
      Lender Reply Period, such Lender shall be deemed to have approved of or
      consented to such recommendation or determination.

     

     

    ARTICLE
      XI.  

     

     

    MISCELLANEOUS

     

    11.01  Amendments,
      Etc.

     

    Administrative
      Agent may amend or waive any provision of this Agreement or any other Loan
      Document, or consent to any departure by any party to the Loan Documents
      therefrom which amendment, waiver, or consent is expressly intended to be within
      Administrative Agent’s discretion or determination. No amendment or waiver of
      any provision of this Agreement or any other Loan Document, and no consent
      to
      any departure by Borrower or any other Loan Party therefrom, shall otherwise
      be
      effective unless in writing signed by the Required Lenders and Borrower or
      the
      applicable Loan Party, as the case may be, and acknowledged by Administrative
      Agent, and each such waiver or consent shall be effective only in the specific
      instance and for the specific purpose for which given; provided,
      however,
      that no
      such amendment, waiver or consent shall:

     

    (a) extend
      or
      increase the Commitment of any Lender (or reinstate any Commitment terminated
      pursuant to Section 9.02)
      without
      the written consent of such Lender;

     

    (b) postpone,
      extend, or waive any date fixed by this Agreement or any other Loan Document
      for
      any payment of principal, interest, fees or other amounts due to the Lenders
      (or
      any of them) hereunder or under any other Loan Document without the written
      consent of each Lender directly affected thereby;

     

    (c) reduce
      the principal of, or the rate of interest specified herein on, any Loan or
      L/C
      Borrowing, or any fees or other amounts payable hereunder or under any other
      Loan Document without the written consent of each Lender directly affected
      thereby; provided,
      however,
      that
      only the consent of the Required Lenders shall be necessary to amend the
      definition of “Default Rate” or to waive any obligation of Borrower to pay
      interest at the Default Rate;

     

    (d) change
      Section 2.12
      or
Section 9.03
      in a
      manner that would alter the pro rata sharing of payments required thereby
      without the written consent of each Lender;

     

    (e) change
      any provision of this Section 11.01
      or the
      definition of “Required Lenders” or any other provision hereof specifying the
      number or percentage of Lenders required to amend, waive or 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    otherwise
      modify any rights hereunder or make any determination or grant any consent
      hereunder, without the written consent of each Lender; 

     

    (f) except
      as
      permitted by Section 4.05
      and
Section 10.11,
      release
      any Collateral security for the Obligations or any Guarantors from their
      respective Guaranties without the written consent of each Lender;
      or

     

    (g) permit
      Borrower to transfer its rights or obligations hereunder as described in
Section 11.07.

     

    and,
      provided further,
      that:
      (i) no amendment, waiver, or consent shall, unless in writing and signed by
      the
      L/C Issuer in addition to the Lenders required above, affect the rights or
      duties of the L/C Issuer under this Agreement or any Letter of Credit
      Application relating to any Letter of Credit issued or to be issued by it;
      (ii)
      no amendment, waiver or consent shall, unless in writing and signed by
      Administrative Agent in addition to the Lenders required above, affect the
      rights or duties of Administrative Agent under this Agreement or any other
      Loan
      Document; and
      (iii)
the
      Fee
      Letter may be amended, or rights or privileges thereunder waived, in a writing
      executed only by the parties thereto. Notwithstanding anything to the contrary
      herein, no Defaulting Lender shall have any right to approve or disapprove
      any
      amendment, waiver or consent hereunder, except that the Commitment of such
      Lender may not be increased or extended without
      the consent of such Lender.

    


    11.02  Notices
      and Other Communications; Facsimile Copies.

     

    (a) General.
      Unless
      otherwise expressly provided herein, all notices and other communications
      provided for hereunder shall be in writing (including by facsimile
      transmission). All such written notices shall be mailed, faxed or delivered
      to
      the applicable address, facsimile number or (subject to subsection (c) below)
      electronic mail address, and all notices and other communications expressly
      permitted hereunder to be given by telephone shall be made to the applicable
      telephone number, as follows:

     

    (i) if
      to
      Borrower, Administrative Agent, or the L/C Issuer, to the address, facsimile
      number, electronic mail address, or telephone number specified for such Person
      on Schedule 11.02
      or to
      such other address, facsimile number, electronic mail address, or telephone
      number as shall be designated by such party in a notice to the other parties;
      and 

     

    (ii) if
      to any
      other Lender, to the address, facsimile number, electronic mail address, or
      telephone number specified in its Administrative Questionnaire or to such other
      address, facsimile number, electronic mail address, or telephone number as
      shall
      be designated by such party in a notice to Borrower, Administrative Agent,
      and
      the L/C Issuer.

     

    All
      such
      notices and other communications shall be deemed to be given or made upon the
      earlier to occur of (i) actual receipt by the relevant party hereto and (ii)
      (A)
      if delivered by hand or by courier, when signed for by or on behalf of the
      relevant party hereto; (B) if delivered by mail, four (4) Business Days after
      deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
      sent
      and receipt has been confirmed by telephone; and (D) if delivered by electronic
      mail (which form of delivery is subject to the provisions of subsection (c)
      below), when delivered; provided,
      however,
      that
      notices and other communications to Administrative Agent and the L/C Issuer
      pursuant to Article II
      shall
      not be effective until actually received by such Person. In no event shall
      a
      voicemail message be effective as a notice, communication, or confirmation
      hereunder.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    (b) Effectiveness
      of Facsimile Documents and Signatures.
      Loan
      Documents may be transmitted and/or signed by facsimile. The effectiveness
      of
      any such documents and signatures shall, subject to applicable Law, have the
      same force and effect as manually-signed originals and shall be binding on
      all
      Loan Parties, Administrative Agent, and the Lenders. Administrative Agent may
      also require that any such documents and signatures be confirmed by a
      manually-signed original thereof; provided,
      however,
      that
      the failure to request or deliver the same shall not limit the effectiveness
      of
      any facsimile document or signature.

     

    (c) Limited
      Use of Electronic Mail. Electronic
      mail and Internet and intranet websites may be used only to distribute routine
      communications, such as financial statements and other information as provided
      in Section 6.02,
      and to
      distribute Loan Documents for execution by the parties thereto, and may not
      be
      used for any other purpose.

     

    (d) Reliance
      by Administrative Agent and Lenders. Administrative
      Agent and the Lenders shall be entitled to rely and act upon any notices
      (including telephonic Loan Notices) purportedly given by or on behalf of
      Borrower even if (i) such notices were not made in a manner specified herein,
      were incomplete or were not preceded or followed by any other form of notice
      specified herein, or (ii) the terms thereof, as understood by the recipient,
      varied from any confirmation thereof. Borrower shall indemnify each
      Agent-Related Person and each Lender from all losses, costs, expenses and
      liabilities resulting from the reliance by such Person on each notice
      purportedly given by or on behalf of Borrower. All telephonic notices to and
      other communications with Administrative Agent may be recorded by Administrative
      Agent, and each of the parties hereto hereby consents to such
      recording.

     

    11.03  No
      Waiver; Cumulative Remedies

     

    .
      No
      failure by any Lender or Administrative Agent to exercise, and no delay by
      any
      such Person in exercising, any right, remedy, power or privilege hereunder
      shall
      operate as a waiver thereof; nor shall any single or partial exercise of any
      right, remedy, power, or privilege hereunder preclude any other or further
      exercise thereof or the exercise of any other right, remedy, power, or
      privilege. The rights, remedies, powers, and privileges herein provided are
      cumulative and not exclusive of any rights, remedies, powers, and privileges
      provided by law.

     

    11.04  Attorney
      Costs, Expenses, and Taxes

     

    .
      Borrower agrees (a) to pay or reimburse Administrative Agent for all costs
      and
      expenses incurred in connection with the development, preparation, negotiation
      and execution of this Agreement and the other Loan Documents and any amendment,
      waiver, consent, or other modification of the provisions hereof and thereof
      (whether or not the transactions contemplated hereby or thereby are
      consummated), and the consummation and administration of the transactions
      contemplated hereby and thereby, including all Attorney Costs, and (b) to pay
      or
      reimburse Administrative Agent and each Lender for all costs and expenses
      incurred in connection with the enforcement, attempted enforcement, or
      preservation of any rights or remedies under this Agreement or the other Loan
      Documents (including all such costs and expenses incurred during any “workout”
      or restructuring in respect of the Obligations and during any legal proceeding,
      including any proceeding under any Debtor Relief Law), including all Attorney
      Costs, and including with respect to (a)
      and
(b)
      above:
      (i) fees and charges of any construction consultant, inspector, and/or engineer;
      (ii) appraisal, re-appraisal, and survey costs; (iii) title insurance charges
      and premiums; (iv) title search or examination costs, including abstracts,
      abstractors’ certificates and uniform commercial code searches; (v) judgment and
      tax lien searches for Borrower and each Guarantor; (vi) escrow fees; (vii)
      fees
      and costs of environmental investigations site assessments and remediations;
      (viii) recordation taxes, documentary taxes, transfer taxes, and mortgage taxes;
      (ix) filing and recording fees; and (x) loan brokerage fees. The foregoing
      costs
      and expenses shall include all search, filing, recording, title insurance and
      appraisal charges and fees, and taxes related thereto, and other out-of-pocket
      expenses incurred by Administrative 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Agent
      and
      the cost of independent public accountants and other outside experts retained
      by
      Administrative Agent or any Lender. All amounts due under this Section 11.04
      shall be
      payable within ten (10) Business Days after demand therefor. The agreements
      in
      this Section 11.04
      shall
      survive the termination of the Aggregate Commitments and repayment of all other
      Obligations.

     

    11.05  Indemnification
      by Borrower

     

    .
      Whether
      or not the transactions contemplated hereby are consummated, Borrower shall
      indemnify and hold harmless each Agent-Related Person, each Lender and their
      respective Affiliates, directors, officers, employees, counsel, agents, and
      attorneys-in-fact (collectively the “Indemnitees”)
      from
      and against any and all liabilities, obligations, losses, damages, penalties,
      claims, demands, actions, judgments, suits, costs, expenses, and disbursements
      (including Attorney Costs) of any kind or nature whatsoever which may at any
      time be imposed on, incurred by or asserted against any such Indemnitee in
      any
      way relating to or arising out of or in connection with (a) the execution,
      delivery, enforcement, performance, or administration of any Loan Document
      or
      any other agreement, letter or instrument delivered in connection with the
      transactions contemplated thereby or the consummation of the transactions
      contemplated thereby, (b) any Commitment, Loan, or Letter of Credit or the
      use
      or proposed use of the proceeds therefrom (including any refusal by the L/C
      Issuer to honor a demand for payment under a Letter of Credit if the documents
      presented in connection with such demand do not strictly comply with the terms
      of such Letter of Credit), (c)
      any
      actual or alleged presence or release of Hazardous Materials on or from any
      property currently or formerly owned or operated by Borrower, any Subsidiary,
      or
      any other Loan Party, or any Environmental Damages related in any way to
      Borrower, any Subsidiary, or any other Loan Party, or (d) any actual or
      prospective claim,
      litigation, investigation, or proceeding relating to any of the foregoing,
      whether based on contract, tort or any other theory (including any investigation
      of, preparation for, or defense of any pending or threatened claim,
      investigation, litigation or proceeding) and regardless of whether any
      Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified
      Liabilities”),
      in
      all cases, whether or not caused by or arising, in whole or in part, out of
      the
      comparative, contributory, or sole negligence of the Indemnitee; provided that
      such
      indemnity shall not, as to any Indemnitee, be available to the extent that
      such
      liabilities, obligations, losses, damages, penalties, claims, demands, actions,
      judgments, suits, costs, expenses, or disbursements are determined by a court
      of
      competent jurisdiction by final and nonappealable judgment to have resulted
      from
      the gross negligence or willful misconduct of such Indemnitee. Notwithstanding
      anything contained herein to the contrary, no Indemnitee shall be liabile for
      any actual or alleged presence or release of Hazardous Materials first
      introduced to any Borrowing Base Property (or the applicable portion thereof)
      after any of the following: (x) a foreclosure of such Borrowing Base Property
      (or the applicable portion thereof) pursuant to the Security Documents; or
      (y) a
      deed in lieu of foreclosure that is executed, delivered, and accepted by
      Administrative Agent with respect to such Borrowing Base Property (or the
      applicable portion thereof). No
      Indemnitee shall be liable for any damages arising from the use by others of
      any
      information or other materials obtained through IntraLinks or other similar
      information transmission systems in connection with this Agreement, nor shall
      any Indemnitee have any liability for any indirect, punitive, or consequential
      damages relating to this Agreement or any other Loan Document or arising out
      of
      its activities in connection herewith or therewith (whether before or after
      the
      Closing Date). All amounts due under this Section 11.05
      shall be
      payable within ten (10) Business Days after demand therefor. The agreements
      in
      this Section shall survive the resignation of Administrative Agent,
      the
      replacement of any Lender, the termination of the Aggregate Commitments and
      the
      repayment, satisfaction or discharge of all the other Obligations, including
      without limitation entry of a judgment of foreclosure, exercise of any power
      of
      sale, or delivery of a deed in lieu of foreclosure of any Mortgage and/or
      satisfaction of the Obligations. Without limiting any of the remedies provided
      in this Agreement or any other Loan Document, Borrower acknowledges and agrees
      that the environmental provisions contained in this Agreement are intended
      to be
“environmental provisions” (as defined in Section 736(f)
      (2)
      of the
      California Code of Civil Procedure) and that Indemnitees are intended to have
      all the rights afforded a lender under Section 736.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    


     

    11.06  Payments
      Set Aside

     

    .
      To the
      extent that any payment by or on behalf of Borrower is made to Administrative
      Agent or any Lender, or Administrative Agent or any Lender exercises its right
      of set-off, and such payment or the proceeds of such set-off or any part thereof
      is subsequently invalidated, declared to be fraudulent or preferential, set
      aside or required (including pursuant to any settlement entered into by
      Administrative Agent or such Lender in its discretion) to be repaid to a
      trustee, receiver or any other party, in connection with any proceeding under
      any Debtor Relief Law or otherwise, then (a) to the extent of such recovery,
      the
      obligation or part thereof originally intended to be satisfied shall be revived
      and continued in full force and effect as if such payment had not been made
      or
      such set-off had not occurred, and (b) each Lender severally agrees to pay
      to
      Administrative Agent upon demand its applicable share of any amount so recovered
      from or repaid by Administrative Agent, plus interest thereon from the date
      of
      such demand to the date such payment is made at a rate per annum equal to the
      Federal Funds Rate from time to time in effect.

     

    11.07  Successors
      and Assigns.

     

    (a) The
      provisions of this Agreement shall be binding upon and inure to the benefit
      of
      the parties hereto and their respective successors and assigns permitted hereby,
      except that Borrower may not assign or otherwise transfer any of its rights
      or
      obligations hereunder without the prior written consent of each Lender and
      no
      Lender may assign or otherwise transfer any of its rights or obligations
      hereunder except (i) to an Eligible Assignee in accordance with the provisions
      of subsection (b) of this Section 11.07,
      (ii) by
      way of participation in accordance with the provisions of subsection (d)
      of
      this Section 11.07,
      or
      (iii)
      by
      way of pledge or assignment of a security interest subject to the restrictions
      of subsection (f) of this Section 11.07
      (and any
      other attempted assignment or transfer by any party hereto shall be null and
      void). Nothing in this Agreement, expressed or implied, shall be construed
      to
      confer upon any Person (other than the parties hereto, their respective
      successors and assigns permitted hereby, Participants to the extent provided
      in
      subsection (d) of this Section 11.07
      and, to
      the extent expressly contemplated hereby, the Indemnitees) any legal or
      equitable right, remedy or claim under or by reason of this
      Agreement.

     

    (b) Any
      Lender may at any time assign to one or more Eligible Assignees all or a portion
      of its rights and obligations under this Agreement (including all or a portion
      of its Commitment and the Loans (including for purposes of this
      subsection (b), participations in L/C Obligations) at the time owing
      to
      it); provided that
      (i)
      except in the case of an assignment of the entire remaining amount of the
      assigning Lender's Commitment and the Loans at the time owing to it or in the
      case of an assignment to a Lender or an Affiliate of a Lender or an Approved
      Fund (as defined in subsection (g) of this Section 11.07)
      with
      respect to a Lender, the aggregate amount of the Commitment (which for this
      purpose includes Loans outstanding thereunder) subject to each such assignment,
      determined as of the date the Assignment and Assumption with respect to such
      assignment is delivered to Administrative Agent or, if “Trade Date” is specified
      in the Assignment and Assumption, as of the Trade Date, shall not be less than
      $1,000,000 unless
      each of Administrative Agent and, so long as no Event of Default has occurred
      and is continuing, Borrower otherwise consents (each such consent not to be
      unreasonably withheld or delayed); (ii) each partial assignment shall be made
      as
      an assignment of a proportionate part of all the assigning Lender's rights
      and
      obligations under this Agreement with respect to the Loans or the Commitment
      assigned; (iii) any assignment of a Commitment must be approved by
      Administrative Agent and the L/C Issuer (each such approval not to be
      unreasonably withheld or delayed) unless the Person that is the proposed
      assignee is itself a Lender (whether or not the proposed assignee would
      otherwise qualify as an Eligible Assignee); and (iv) the parties to each
      assignment shall execute and deliver to Administrative Agent an Assignment
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    and
      Assumption, together with a processing and recordation fee of $3,500. Subject
      to
      acceptance and recording thereof by Administrative Agent pursuant to
      subsection (c) of this Section 11.07,
      from
      and after the effective date specified in each Assignment and Assumption, the
      Eligible Assignee thereunder shall be a party to this Agreement and, to the
      extent of the interest assigned by such Assignment and Assumption, have the
      rights and obligations of a Lender under this Agreement, and the assigning
      Lender thereunder shall, to the extent of the interest assigned by such
      Assignment and Assumption, be released from its obligations under this Agreement
      (and, in the case of an Assignment and Assumption covering all of the assigning
      Lender's rights and obligations under this Agreement, such Lender shall cease
      to
      be a party hereto but shall continue to be entitled to the benefits of
Sections
      3.01,
      3.04,
      3.05,
      10.04
      and
11.05
      with
      respect to facts and circumstances occurring prior to the effective date of
      such
      assignment). Upon request, Borrower (at its expense) shall execute and deliver
      a
      Note to the assignee Lender. Any assignment or transfer by a Lender of rights
      or
      obligations under this Agreement that does not comply with this subsection
      shall
      be treated for purposes of this Agreement as a sale by such Lender of a
      participation in such rights and obligations in accordance with
      subsection (d) of this Section 11.07.

     

    (c) Administrative
      Agent, acting solely for this purpose as an agent of Borrower, shall maintain
      at
      Administrative Agent’s Office a copy of each Assignment and Assumption delivered
      to it and a register for the recordation of the names and addresses of the
      Lenders, and the Commitments of, and principal amounts of the Loans and L/C
      Obligations owing to, each Lender pursuant to the terms hereof from time to
      time
      (the “Register”).
      The
      entries in the Register shall be conclusive, and Borrower, Administrative Agent
      and the Lenders may treat each Person whose name is recorded in the Register
      pursuant to the terms hereof as a Lender hereunder for all purposes of this
      Agreement, notwithstanding notice to the contrary. The Register shall be
      available for inspection by Borrower and any Lender, at any reasonable time
      and
      from time to time upon reasonable prior notice.

     

    (d) Any
      Lender may at any time, without the consent of, or notice to, Borrower or
      Administrative Agent, sell participations to any Person (other than a natural
      person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”)
      in all
      or a portion of such Lender's rights and/or obligations under this Agreement
      (including all or a portion of its Commitment and/or the Loans (including such
      Lender’s participations in L/C Obligations) owing to it); provided that
      (i) such
      Lender's obligations under this Agreement shall remain unchanged, (ii) such
      Lender shall remain solely responsible to the other parties hereto for the
      performance of such obligations and (iii) Borrower, Administrative Agent and
      the
      other Lenders shall continue to deal solely and directly with such Lender in
      connection with such Lender's rights and obligations under this Agreement.
      Any
      agreement or instrument pursuant to which a Lender sells such a participation
      shall provide that such Lender shall retain the sole right to enforce this
      Agreement and to approve any amendment, modification, or waiver of any provision
      of this Agreement; provided that
      such
      agreement or instrument may provide that such Lender will not, without the
      consent of the Participant, agree to any amendment, waiver or other modification
      described in the second proviso to Section 11.01
      that
      directly affects such Participant. Subject to subsection (e) of this
      Section 11.07,
      Borrower agrees that each Participant shall be entitled to the benefits of
      Sections
      3.01,
      3.04
      and
3.05 to
      the
      same extent as if it were a Lender and had acquired its interest by assignment
      pursuant to subsection (b) of this Section 11.07.
      To the
      extent permitted by law, each Participant also shall be entitled to the benefits
      of Section 11.09 as
      though
      it were a Lender; provided
      such
      Participant agrees to be subject to Section 2.12
      as
      though it were a Lender.

     

    (e) A
      Participant shall not be entitled to receive any greater payment under
Section 3.01
      or
3.04 than
      the
      applicable Lender would have been entitled to receive with respect to the
      participation sold to such Participant, unless the sale of the participation
      to
      such Participant is made with Borrower's prior written consent. A Participant
      that would be a Foreign Lender if it were a Lender shall not be entitled to
      the
      benefits of Section 3.01
      unless
      Borrower is notified of the participation sold to such Participant and


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    such
      Participant agrees, for the benefit of Borrower, to comply with Section 11.15
      as
      though it were a Lender.

     

    (f) Any
      Lender may at any time pledge or assign a security interest in all or any
      portion of its rights under this Agreement (including under its Note, if any)
      to
      secure obligations of such Lender, including any pledge or assignment to secure
      obligations to a Federal Reserve Bank; provided that
      no such
      pledge or assignment shall release such Lender from any of its obligations
      hereunder or substitute any such pledgee or assignee for such Lender as a party
      hereto.

     

    (g) As
      used
      herein, the following terms have the following meanings:

     

    “Eligible
      Assignee”
      means
      (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d) any
      other Person (other than a natural person) approved by (i) Administrative Agent,
      and the L/C Issuer, and (ii) unless an Event of Default has occurred and is
      continuing, Borrower (each such approval not to be unreasonably withheld or
      delayed); provided that
      notwithstanding the foregoing, “Eligible Assignee” shall not include Borrower or
      any of Borrower’s Affiliates or Subsidiaries.

     

    “Fund”
      means
      any Person (other than a natural person) that is (or will be) engaged in making,
      purchasing, holding or otherwise investing in commercial loans and similar
      extensions of credit in the ordinary course of its business.

     

    “Approved
      Fund”
      means
      any Fund that is administered or managed by (a) a Lender, (b) an Affiliate
      of a
      Lender or (c) an entity or an Affiliate of an entity that administers or manages
      a Lender.

     

    (h) Notwithstanding
      anything to the contrary contained herein, if at any time Bank of America
      assigns all of its Commitment and Loans pursuant to subsection (b) above,
      Bank of America may, upon thirty (30)
      days’
      notice to Borrower and the Lenders, resign as L/C Issuer.
      In the
      event of any such resignation as L/C Issuer, Borrower shall be entitled to
      appoint from among the Lenders a successor L/C Issuer hereunder; provided,
      however,
      that no
      failure by Borrower to appoint any such successor shall affect the resignation
      of Bank of America as L/C Issuer. If Bank of America resigns as L/C Issuer,
      it
      shall retain all the rights and obligations of the L/C Issuer hereunder with
      respect to all Letters of Credit outstanding as of the effective date of its
      resignation as L/C Issuer and all L/C Obligations with respect thereto
      (including the right to require the Lenders to make Base Rate Loans or fund
      risk
      participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
      

     

    11.08  Confidentiality

     

    .
      Each of
      Administrative Agent and the Lenders agrees to maintain the confidentiality
      of
      the Information (as defined below), except that Information may be disclosed
      (a)
      to its Affiliates’, directors, officers, employees, and agents, including
      accountants, legal counsel, and other advisors (it being understood that the
      Persons to whom such disclosure is made will be informed of the confidential
      nature of such Information and instructed to keep such Information
      confidential), (b) to the extent requested by any regulatory authority
      (including any self-regulatory authority, such as the National Association
      of
      Insurance Commissioners), (c) to the extent required by applicable laws or
      regulations or by any subpoena or similar legal process, (d) to any other party
      hereto, (e) in connection with the exercise of any remedies hereunder or under
      any other Loan Document or any action or proceeding relating to this Agreement
      or any other Loan Document or the enforcement of rights hereunder or thereunder,
      (f) subject to an agreement containing provisions substantially the same as
      those of this Section 11.08,
      to (i)
      any assignee of or Participant in, or any prospective assignee of or Participant
      in, any of its rights or obligations under this Agreement or (ii) any actual
      or
      prospective counterparty (or its advisors) to any swap or derivative transaction
      relating to Borrower and its obligations, (g) with the consent of Borrower
      

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    or
      (h) to
      the extent such Information (x) becomes publicly available other than as a
      result of a breach of this Section 11.08
      or (y)
      becomes available to Administrative Agent or any Lender on a nonconfidential
      basis from a source other than Borrower. For purposes of this Section 11.08,
      “Information”
      means
      all information received from any Loan Party relating to any Loan Party or
      any
      of their respective businesses, other than any such information that is
      available to Administrative Agent or any Lender on a nonconfidential basis
      prior
      to disclosure by any Loan Party, provided that,
      in the
      case of information received from a Loan Party after the date hereof, such
      information is clearly identified at the time of delivery as confidential.
      Any
      Person required to maintain the confidentiality of Information as provided
      in
      this Section 11.08
      shall be
      considered to have complied with its obligation to do so if such Person has
      exercised the same degree of care to maintain the confidentiality of such
      Information as such Person would accord to its own confidential
      information.

     

    11.09  Set-off

     

    .
      In
      addition to any rights and remedies of the Lenders provided by law, upon the
      occurrence and during the continuance of any Event of Default, each Lender
      is
      authorized at any time and from time to time, without prior notice to Borrower
      or any other Loan Party, any such notice being waived by Borrower (on its own
      behalf and on behalf of each Loan Party) to the fullest extent permitted by
      law,
      to set off and apply any and all deposits (general or special, time or demand,
      provisional or final) at any time held by, and other indebtedness at any time
      owing by, such Lender to or for the credit or the account of the respective
      Loan
      Parties against any and all Obligations owing to such Lender hereunder or under
      any other Loan Document, now or hereafter existing, irrespective of whether
      or
      not Administrative Agent or such Lender shall have made demand under this
      Agreement or any other Loan Document and although such Obligations may be
      contingent or unmatured or denominated in a currency different from that of
      the
      applicable deposit or indebtedness. Each Lender agrees promptly to notify
      Borrower and Administrative Agent after any such set-off and application made
      by
      such Lender; provided,
      however,
      that
      the failure to give such notice shall not affect the validity of such set-off
      and application.

     

    11.10  Interest
      Rate Limitation

     

    .
      Notwithstanding anything to the contrary contained in any Loan Document, the
      interest paid or agreed to be paid under the Loan Documents shall not exceed
      the
      maximum rate of non-usurious interest permitted by applicable Law (the
“Maximum
      Rate”).
      If
      Administrative Agent or any Lender shall receive interest in an amount that
      exceeds the Maximum Rate, the excess interest shall be applied to the principal
      of the Loans or, if it exceeds such unpaid principal, refunded to Borrower.
      In
      determining whether the interest contracted for, charged, or received by
      Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
      to
      the extent permitted by applicable Law, (a) characterize any payment that is
      not
      principal as an expense, fee, or premium rather than interest, (b) exclude
      voluntary prepayments and the effects thereof, and (c) amortize, prorate,
      allocate, and spread in equal or unequal parts the total amount of interest
      throughout the contemplated term of the Obligations hereunder.

     

    11.11  Counterparts

     

    .
      This
      Agreement may be executed in one or more counterparts, each of which shall
      be
      deemed an original, but all of which together shall constitute one and the
      same
      instrument.

     

    11.12  Integration

     

    .
      This
      Agreement, together with the other Loan Documents, comprises the complete and
      integrated agreement of the parties on the subject matter hereof and thereof
      and
      supersedes all prior agreements, written or oral, on such subject matter. In
      the
      event of any conflict between the provisions of this Agreement and those of
      any
      other Loan Document, the provisions of this Agreement shall control;
provided that
      the
      inclusion of supplemental rights or remedies in favor of Administrative Agent
      or
      the Lenders in any other Loan Document shall not be deemed a conflict with
      this
      Agreement. Each Loan Document was drafted with the joint participation of the
      respective parties thereto and shall be construed neither against nor in favor
      of any party, but rather in accordance with the fair meaning
      thereof.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    11.13  Survival
      of Representations and Warranties

     

    .
      All
      representations and warranties made hereunder and in any other Loan Document
      or
      other document delivered pursuant hereto or thereto or in connection herewith
      or
      therewith shall survive the execution and delivery hereof and thereof. Such
      representations and warranties have been or will be relied upon by
      Administrative Agent and each Lender, regardless of any investigation made
      by
      Administrative Agent or any Lender or on their behalf and notwithstanding that
      Administrative Agent or any Lender may have had notice or knowledge of any
      Default at the time of any Credit Extension, and shall continue in full force
      and effect as long as any Loan or any other Obligation hereunder shall remain
      unpaid or unsatisfied or any Letter of Credit shall remain
      outstanding.

     

    11.14  Severability

     

    .
      If any
      provision of this Agreement or the other Loan Documents is held to be illegal,
      invalid, or unenforceable, (a) the legality, validity and enforceability of
      the
      remaining provisions of this Agreement and the other Loan Documents shall not
      be
      affected or impaired thereby and (b) the parties shall endeavor in good faith
      negotiations to replace the illegal, invalid or unenforceable provisions with
      valid provisions the economic effect of which comes as close as possible to
      that
      of the illegal, invalid, or unenforceable provisions. The invalidity of a
      provision in a particular jurisdiction shall not invalidate or render
      unenforceable such provision in any other jurisdiction.

     

    11.15  Tax
      Forms

     

    .
      (a) (i)
      Each Lender that is not a “United States person” within the meaning of
      Section 7701(a)(30) of the Code (a “Foreign
      Lender”)
      shall
      deliver to Administrative Agent, prior to receipt of any payment subject to
      withholding under the Code (or upon accepting an assignment of an interest
      herein), two duly signed completed copies of either IRS Form W-8BEN or any
      successor thereto (relating to such Foreign Lender and entitling it to an
      exemption from, or reduction of, withholding tax on all payments to be made
      to
      such Foreign Lender by Borrower pursuant to this Agreement) or IRS Form W-8ECI
      or any successor thereto (relating to all payments to be made to such Foreign
      Lender by Borrower pursuant to this Agreement) or such other evidence
      satisfactory to Borrower and Administrative Agent that such Foreign Lender
      is
      entitled to an exemption from, or reduction of, U.S. withholding tax, including
      any exemption pursuant to Section 881(c) of the Code. Thereafter and
      from
      time to time, each such Foreign Lender shall (A) promptly submit to
      Administrative Agent such additional duly completed and signed copies of one
      of
      such forms (or such successor forms as shall be adopted from time to time by
      the
      relevant United States taxing authorities) as may then be available under then
      current United States laws and regulations to avoid, or such evidence as is
      satisfactory to Borrower and Administrative Agent of any available exemption
      from or reduction of, United States withholding taxes in respect of all payments
      to be made to such Foreign Lender by Borrower pursuant to this Agreement, (B)
      promptly notify Administrative Agent of any change in circumstances which would
      modify or render invalid any claimed exemption or reduction, and (C) take such
      steps as shall not be materially disadvantageous to it, in the reasonable
      judgment of such Lender, and as may be reasonably necessary (including the
      re-designation of its Lending Office) to avoid any requirement of applicable
      Laws that Borrower make any deduction or withholding for taxes from amounts
      payable to such Foreign Lender.

     

    (ii) Each
      Foreign Lender, to the extent it does not act or ceases to act for its own
      account with respect to any portion of any sums paid or payable to such Lender
      under any of the Loan Documents (for example, in the case of a typical
      participation by such Lender), shall deliver to Administrative Agent on the
      date
      when such Foreign Lender ceases to act for its own account with respect to
      any
      portion of any such sums paid or payable, and at such other times as may be
      necessary in the determination of Administrative Agent (in the reasonable
      exercise of its discretion), (A) two (2) duly signed completed copies of the
      forms or statements required to be provided by such Lender as set forth above,
      to establish the portion of any such sums paid or payable with respect to which
      such Lender acts for its own account that is not subject to U.S. withholding
      tax, and (B) two (2) duly signed completed copies of IRS Form W-

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    8IMY
      (or
      any successor thereto), together with any information such Lender chooses to
      transmit with such form, and any other certificate or statement of exemption
      required under the Code, to establish that such Lender is not acting for its
      own
      account with respect to a portion of any such sums payable to such
      Lender.

     

    (iii) Borrower
      shall not be required to pay any additional amount to any Foreign Lender under
      Section 3.01
      (A) with
      respect to any Taxes required to be deducted or withheld on the basis of the
      information, certificates or statements of exemption such Lender transmits
      with
      an IRS Form W-8IMY pursuant to this Section 11.15(a)
      or (B)
      if such Lender shall have failed to satisfy the foregoing provisions of this
      Section 11.15(a);
      provided that
      if such
      Lender shall have satisfied the requirement of this Section 11.15(a)
      on the
      date such Lender became a Lender or ceased to act for its own account with
      respect to any payment under any of the Loan Documents, nothing in this
Section 10.15(a)
      shall
      relieve Borrower of its obligation to pay any amounts pursuant to Section 3.01
      in the
      event that, as a result of any change in any applicable law, treaty or
      governmental rule, regulation or order, or any change in the interpretation,
      administration or application thereof, such Lender is no longer properly
      entitled to deliver forms, certificates or other evidence at a subsequent date
      establishing the fact that such Lender or other Person for the account of which
      such Lender receives any sums payable under any of the Loan Documents is not
      subject to withholding or is subject to withholding at a reduced
      rate.

     

    (iv) Administrative
      Agent may, without reduction, withhold any Taxes required to be deducted and
      withheld from any payment under any of the Loan Documents with respect to which
      Borrower is not required to pay additional amounts under this Section 11.15(a).

     

    (b) Upon
      the
      request of Administrative Agent, each Lender that is a “United States person”
      within the meaning of Section 7701(a)(30) of the Code shall deliver
      to
      Administrative Agent two duly signed completed copies of IRS Form W-9. If such
      Lender fails to deliver such forms, then Administrative Agent may withhold
      from
      any interest payment to such Lender an amount equivalent to the applicable
      back-up withholding tax imposed by the Code, without reduction.

     

    (c) If
      any
      Governmental Authority asserts that Administrative Agent did not properly
      withhold or backup withhold, as the case may be, any tax or other amount from
      payments made to or for the account of any Lender, such Lender shall indemnify
      Administrative Agent therefor, including all penalties and interest, any taxes
      imposed by any jurisdiction on the amounts payable to Administrative Agent
      under
      this Section 11.15,
      and
      costs and expenses (including Attorney Costs) of Administrative Agent. The
      obligation of the Lenders under this Section 11.15
      shall
      survive the termination of the Aggregate Commitments, repayment of all other
      Obligations hereunder and the resignation of Administrative Agent.

     

    11.16  Replacement
      of Lenders

     

    .
      Under
      any circumstances set forth herein providing that Borrower shall have the right
      to replace a Lender as a party to this Agreement, Borrower may, upon notice
      to
      such Lender and Administrative Agent, replace such Lender by causing such Lender
      to assign its Commitment (with the assignment fee to be paid by Borrower in
      such
      instance) pursuant to Section 11.07(b)
      to one
      or more other Lenders or Eligible Assignees procured by Borrower; provided,
      however,
      that if
      Borrower elects to exercise such right with respect to any Lender pursuant
      to
Section 3.06(b),
      it
      shall be obligated to replace all Lenders that have made similar requests for
      compensation pursuant to Section 3.01
      or
3.04.
      Borrower shall (x) pay in full all principal, interest, fees and other amounts
      owing to such Lender through the date of replacement (including any amounts
      payable pursuant to Section 3.05),
      (y)
      provide appropriate assurances and indemnities (which may include letters of
      credit) to the L/C Issuer as it may reasonably require with respect to any
      continuing obligation to fund participation interests in any L/C Obligations
      then outstanding, and (z) release such Lender from its obligations under the
      Loan Documents. Any Lender being replaced shall execute and deliver an


     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Assignment
      and Assumption with respect to such Lender’s Commitment and outstanding Loans
      and participations in L/C Obligations. 

     

    11.17  Assignment
      of Contracts and Plans

     

    .
      As
      additional security for the Obligations, Borrower hereby transfers and assigns
      to Administrative Agent for the ratable benefit of Administrative Agent and
      Lenders all of Borrowers’ right, title, and interest, but not its liability, in,
      under, and to all construction, architectural and design contracts, and the
      Plans, and agrees that all of the same are covered by the security agreement
      provisions of the Mortgages. Borrower agrees to deliver to Administrative Agent
      from time to time upon Administrative Agent’s request such consents to the
      foregoing assignment from parties contracting with Borrower as Administrative
      Agent may require. Neither this assignment nor any action by Administrative
      Agent or Lenders shall constitute an assumption by Administrative Agent or
      Lenders of any obligation under any contract or with respect to the
      Plans.

     

    11.18  Governing
      Law.

     

    (a) THIS
      AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
      LAW
      OF THE
      STATE OF NEW YORK APPLICABLE
      TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT
      ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
      FEDERAL LAW.

     

    (b) ANY
      LEGAL
      ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
      MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY
      OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY
      EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER, ADMINISTRATIVE AGENT AND
      EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
      NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. BORROWER, ADMINISTRATIVE
      AGENT,
      AND
      EACH LENDER IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
      LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
      NON CONVENIENS,
      WHICH
      IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
      SUCH
      JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
      BORROWER, ADMINISTRATIVE
      AGENT,
      AND
      EACH LENDER WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
      WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
      STATE.

     

    11.19  Waiver
      of Right to Trial by Jury

     

    .
      EACH
      PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
      OF
      ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT
      OR
      IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
      PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
      TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
      ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
      HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
      ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
      THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
      ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
      WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

     

    11.20  USA
      Patriot Act Notice

     

    .
      Each
      Lender and Administrative Agent (for itself and not on behalf of any Lender)
      hereby notifies Borrower that pursuant to the requirements of the USA Patriot
      Act 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (Title
      III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”),
      it is
      required to obtain, verify and record information that identifies Borrower,
      which information includes the name and address of Borrower and other
      information that will allow such Lender or Administrative Agent, as applicable,
      to identify Borrower in accordance with the Act.

     

    11.21  Time
      of the Essence

     

    .
      Time is
      of the essence of the Loan Documents.

     

    11.22  ENTIRE
      AGREEMENT

     

    .
      THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG
      THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
      OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
      AGREEMENTS AMONG THE PARTIES.

     

    [Signatures
      begin on next page.]

     

     

    


     

    


    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



     

    IN
      WITNESS WHEREOF, the
      parties hereto have caused this Agreement to be duly executed as of the date
      first above written.

     

     

    
      
        	
                 

              	 	 
                
                BORROWER:

                 

              
	 	
                CNL
                  HOSPITALITY PARTNERS, LP, a Delaware limited
                  partnership

              
	 
 	 
 	
                 

                By: CNL
                  HOSPITALITY GP CORP.,
                  a Delaware corporation, its General Partner

 
	 	By:  	/s/ John
                X. Brady Jr.
	 	
                
Name:
                John X. Brady Jr.
	 	Title :
                Vice President


      



     

    


    


     

     

    
      
        	 	 	 
	 	       
                PARENT:
	 
 	 
 	 
                
                CNL
                  HOTELS & RESORTS, INC., a
                  Maryland corporation

 
	 	By:  	/s/ C.
                Brian Strickland
	 	
                
Name:
                C. Brian Strickland
	 	Title:
                Chief Financial Officer and Excutive Vice
                President


      



     

    


    


    
      
        
          Signature
            Page to CNL Credit Agreement

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

     

    
      
        	 	 	 
	 	
                BANK
                  OF AMERICA, N.A.,
                  as
                  Administrative Agent

              
	 
 	 
 	 
 
	 	By:  	/s/ Lesa
                J. Butler 
	 	
                
Name:
                Lesa J. Butler 
	 	Title:
                 Senior Vice President


      



    


    
      
        
          Signature
            Page to CNL Credit Agreement

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


     

    
      	 	 	 
	 	
              BANK
                OF AMERICA, N.A.,
                as
                a Lender and L/C Issuer 

            
	 
 	 
 	 
 
	 	By:  	/s/ Lesa
              J. Butler
	 	
              
Name:
              Lesa J. Butler
	 	Title:
              Senior Vice President 


    

    


    


    
      
        
          Signature
            Page to CNL Credit Agreement

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
 

    


    


    
      	 	 	 
	 	BARCLAYS
              CAPITAL REAL ESTATE INC., as a Lender
	 
 	 
 	 
 
	 	By:  	/s/ LoriAnn
              Rung
	 	
              
Name:
              LoriAnn Rung
	 	Title:
              Anthorized Signatory 


    

    


     

    


     

    


    
      
        
          Signature
            Page to CNL Credit Agreement

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

     

     

    


    
      	 	 	 
	 	CALYTON
              NEW YORK BRANCH, as a Lender
	 
 	 
 	 
 
	 	By:  	/s/ Jan
              Hazelton
	 	
              
Name:
              Jan Hazelton
	 	Title:
              Director  


    

     

     

    


    
      	 	 	 
	 	CALYTON
              NEW YORK BRANCH, as a Lender
	 
 	 
 	 
 
	 	By:  	/s/ David
              Bowers
	 	
              
Name:
              David Bowers
	 	Title:
              Director 


    

    
       

      
         

         

        
          
            Signature
              Page to CNL Credit Agreement

          

          
            
            

            
              

            

          

          
            
            

          

        

      

    

     

    
      	 	 	 
	 	CITICORP
              NORTH AMERICA, INC., as a Lender
	 
 	 
 	 
 
	 	By:  	/s/ Jeanne
              M. Craig
	 	
              
Name:
              Jeanne M. Craig
	 	Title:
              Vice President


    

     

     

    
      
        Signature
          Page to CNL Credit Agreement

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

     

    
      	 	 	 
	 	  
WACHOVIA
              BANK,
              NATIONAL ASSOCIATION,
	 
 	 
 	  
              as a Lender
 
	 	By:  	/s/ Dean
              B. Whitehill
	 	
              
Name:
              Dean B. Whitehill
	 	Title:
              Vice President


    

     

     

     

    
      
        Signature
          Page to CNL Credit Agreement

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	 	 
	 	       
              DEUTSHE BANK TRUST COMPANY AMERICAS,
	 
 	 
 	 as a
              Lender
 
	 	By:  	/s/ George
              H. Reynolds
	 	
              
Name:
              George H. Reynolds
	 	Title:
              Vice President 


    

     

     

     

    
      	 	 	 
	 	       
              DEUTSHE BANK TRUST COMPANY AMERICAS,
	 
 	 
 	 as
              a Lender
 
	 	By:  	/s/ James
              Rolison 
	 	
              

              Name: James Rolison
	 	Title:
              Director


    

     

     

     

    
      
        Signature
          Page to CNL Credit Agreement

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      1.01(A)

     

    OPERATING
      LESSEES AND FRANCHISORS

    


    
      	
              SITE
                #

            	
              BRAND

            	
              PROPERTY
                NAME

            	
              TENANT
                (LESSEE)

            	
              FRANCHISOR/LICENSOR

            
	
              1

            	
              HH

            	
              Birmingham
                South, AL

            	
              RFS
                Leasing VII, Inc.

            	
              Hilton
                Inns, Inc.

            
	
              2

            	
              HI

            	
              Phoenix-Chandler,
                AZ

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              3

            	
              HOM

            	
              Phoenix-Chandler,
                AZ

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              4

            	
              HI

            	
              Sedona,
                AZ

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              5

            	
              WYN

            	
              Denver
                Tech Center, CO

            	
              WYN
                Orlando Lessee, LLC*

            	
              N/A

            
	
              6

            	
              HI

            	
              Denver
                SW-Lakewood, CO

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              7

            	
              HY

            	
              Coral
                Gables, FL

            	
              CNL
                GA Tenant Corp.

            	
              N/A

            
	
              8

            	
              HI

            	
              Ft.
                Lauderdale/Cypress, FL

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              9

            	
              REN

            	
              Tampa,
                FL

            	
              Tampa
                International Tenant Corp.

            	
              N/A

            
	
              10

            	
              RI

            	
              West
                Palm Beach, FL

            	
              Pinnacle
                Hotel Management Company, LLC*

            	
              Marriott
                International, Inc.

            
	
              11

            	
              RI

            	
              Buckhead
                (Atlanta), GA

            	
              CNL
                GA Tenant Corp.

            	
              Marriott
                International, Inc.

            
	
              12

            	
              RI

            	
              Gwinnett
                (Duluth), GA

            	
              CNL
                GA Tenant Corp.

            	
              Marriott
                International, Inc.

            
	
              13

            	
              HOL

            	
              Crystal
                Lake, IL

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Holiday
                Hospitality Franchising, Inc.

            
	
              14

            	
              HOL

            	
              Louisville-SW,
                KY

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Holiday
                Hospitality Franchising, Inc.

            
	
              15

            	
              HOL

            	
              Lafayette
                Central, LA

            	
              RFS
                Leasing VII, Inc.

            	
              Holiday
                Hospitality Franchising, Inc.

            
	
              16

            	
              WYN

            	
              Billerica,
                MA

            	
              WYN
                Orlando Lessee, LLC*

            	
              N/A

            
	
              17

            	
              MI

            	
              BWI
                Airport, MD

            	
              Plano
                Tenant Corp.

            	
              N/A

            
	
              18

            	
              CY

            	
              Flint,
                MI

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Marriott
                International, Inc.

            
	
              19

            	
              HI

            	
              Minneapolis-Minnetonka,
                MN

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              20

            	
              HI

            	
              Hattiesburg,
                MS

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              21

            	
              HI

            	
              Lincoln
                Airport I-80, NE

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              22

            	
              CY

            	
              Edison,
                NJ

            	
              CNL
                GA Tenant Corp.

            	
              Marriott
                International, Inc.

            
	
              23

            	
              HI

            	
              Oklahoma
                City, OK

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              24

            	
              HI

            	
              Tulsa,
                OK

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            
	
              25

            	
              HI

            	
              Laredo,
                TX

            	
              CNL
                Rose SPE Tenant Corp.

            	
              Promus
                Hotels, Inc.

            


    

    


    
    

    
      HH
        - Hilton

      hi
        - hampton inn

      hom
        - homewood suites

      wyn
        - wyndham

      hy
        - hyatt

      ren
        - renaissance

      ri
        - residence inn by marriott

      hol
        - holiday inn

      cy
        - courtyard by marriott

      MI
        - MARRIOTT

      


    

    


     

    
      
        
        

      

      
        
        

        
          

        

      

      


 

    

    SCHEDULE
      1.01(B)

     

    MANAGERS

    


    
      	
              SITE
                #

            	
              BRAND

            	
              PROPERTY
                NAME

            	
              MANAGER

            
	
              1

            	
              HH

            	
              Birmingham
                South, AL

            	
              Hilton
                Hotels Corporation

            
	
              2

            	
              HI

            	
              Phoenix-Chandler,
                AZ

            	
              Promus
                Hotels, Inc.

            
	
              3

            	
              HOM

            	
              Phoenix-Chandler,
                AZ

            	
              Promus
                Hotels, Inc.

            
	
              4

            	
              HI

            	
              Sedona,
                AZ

            	
              Promus
                Hotels, Inc.

            
	
              5

            	
              WYN

            	
              Denver
                Tech Center, CO

            	
              Wyndham
                Management Corporation

            
	
              6

            	
              HI

            	
              Denver
                SW-Lakewood, CO

            	
              Promus
                Hotels, Inc.

            
	
              7

            	
              HY

            	
              Coral
                Gables, FL

            	
              Hyatt
                Corporation

            
	
              8

            	
              HI

            	
              Ft.
                Lauderdale/Cypress, FL

            	
              Promus
                Hotels, Inc.

            
	
              9

            	
              REN

            	
              Tampa,
                FL

            	
              Renaissance
                Hotel Management Company, LLC

            
	
              10

            	
              RI

            	
              West
                Palm Beach, FL

            	
              N/A

            
	
              11

            	
              RI

            	
              Buckhead
                (Atlanta), GA

            	
              Crossroads
                Hospitality Management Company

            
	
              12

            	
              RI

            	
              Gwinnett
                (Duluth), GA

            	
              Crossroads
                Hospitality Management Company

            
	
              13

            	
              HOL

            	
              Crystal
                Lake, IL

            	
              Interstate
                Management Company, L.L.C.

            
	
              14

            	
              HOL

            	
              Louisville-SW,
                KY

            	
              Interstate
                Management Company, L.L.C.

            
	
              15

            	
              HOL

            	
              Lafayette
                Central, LA

            	
              Interstate
                Management Company, L.L.C.

            
	
              16

            	
              WYN

            	
              Billerica,
                MA

            	
              Wyndham
                Management Corporation

            
	
              17

            	
              MI

            	
              BWI
                Airport, MD

            	
              Marriott
                Hotel Services, Inc.

            
	
              18

            	
              CY

            	
              Flint,
                MI

            	
              Interstate
                Management Company, L.L.C.

            
	
              19

            	
              HI

            	
              Minneapolis-Minnetonka,
                MN

            	
              Promus
                Hotels, Inc.

            
	
              20

            	
              HI

            	
              Hattiesburg,
                MS

            	
              Promus
                Hotels, Inc.

            
	
              21

            	
              HI

            	
              Lincoln
                Airport I-80, NE

            	
              Promus
                Hotels, Inc.

            
	
              22

            	
              CY

            	
              Edison,
                NJ

            	
              Interstate
                Management Company, L.L.C.

            
	
              23

            	
              HI

            	
              Oklahoma
                City, OK

            	
              Promus
                Hotels, Inc.

            
	
              24

            	
              HI

            	
              Tulsa,
                OK

            	
              Promus
                Hotels, Inc.

            
	
              25

            	
              HI

            	
              Laredo,
                TX

            	
              Promus
                Hotels, Inc.

            


    

    


    HH
      - Hilton

    hi
      - hampton inn

    hom
      - homewood suites

    wyn
      - wyndham

    hy
      - hyatt

    ren
      - renaissance

    ri
      - residence inn by marriott

    hol
      - holiday inn

    cy
      - courtyard by marriott

    MI
      - MARRIOTT

    


    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    


     

    
      	
              SCHEDULE
                1.01(C)

               

            
	
              QUALIFIED
                MANAGERS

            
	 
	
              KSL
                II Management Operations, LLC.

            
	
              Hilton
                Hotels Corporation

            
	
              Promus
                Hotels, Inc.

            
	
              Rosewood
                Hotels & Resorts

            
	
              Hilton
                Group, PLC

            
	
              Fairmont
                Hotels & Resorts

            
	
              Millennium
                and Copthorne Hotels, PLC

            
	
              Marriott
                International, Inc.

            
	
              Starwood
                Hotels and Resorts Worldwide, Inc.

            
	
              Four
                Seasons Hotel Inc.

            
	
              Six
                Continents

            
	
              Orient
                Express

            
	
              Mandarin

            
	
              Peninsula

            
	
              Raffles

            
	
              Shangrila

            
	
              Hyatt

            
	
              Boca
                Resorts

            
	
              Destination
                Resorts

            
	
              Lowe
                Hospitality

            
	
              Montage
                Hotels

            
	
              Intercontinental

            
	
              Accor

            
	
              NH
                Hotels

            
	
              Vail
                Resorts

            
	
              Benchmark
                Hospitality

            
	
              Intercontinental

            
	
              Crossroads
                Hospitality Management

            
	
              Interstate
                Management Company, L.L.C.

            
	
              Joie
                de Vivre Hospitality, Inc.

            
	
              Wyndham
                Management Corporation

            
	
              Courtyard
                Management Corporation

            
	
              Springhill
                SMC Corporation

            
	
              Residence
                Inn by Marriott, Inc.

            
	
              Marriott
                Hotel Services, Inc.

            
	
              Towneplace
                Management Corporation

            
	
              Fairfield
                FMC Corporation

            
	
              Renaissance
                Hotel Management Company, LLC

            


    

    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      1.01(D)

    EXCLUDED
      CONTINGENT OBLIGATIONS

    


    


    
      	
              Deferred
                Acquisition Fees

            	
              $
                85,200,000

            
	
              Severally
                Guaranteed Promissory Note of Limited Partnership

            	
              2,600,000

            
	
              TOTAL

            	
              $
                87,800,000

            


    

    


    


    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      2.01

     

    COMMITMENTS

    AND
      PRO RATA SHARES

    


     

    
      	
              Lender

               

            	
              Commitment

               

            	
              Pro
                Rata Share

               

            
	
               

              Bank
                of America, N.A.

            	
               

              $33,333,333.35

            	
               

              16.666666667
                %

            
	
               

              Deutsche
                Bank Trust Company Americas

            	
               

              $33,333,333.33

            	
               

              16.666666667
                %

            
	
               

              Wachovia
                Bank National Association

            	
               

              $33,333,333.33

            	
               

              16.666666667
                %

            
	
               

              Calyon
                New York Branch

            	
               

              $33,333,333.33

            	
               

              16.666666667
                %

            
	
               

              Citicorp
                North America, Inc.

            	
               

              $33,333,333.33

            	
               

              16.666666667
                %

            
	
               

              Barclays
                Real Estate Inc.

            	
               

              $33,333,333.33

            	
               

              16.666666667
                %

            
	
               

              Total

            	
               

              $200,000,000.00

            	
               

              100.000000000
                %

            


    

     

    


     

     

    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      2.03

    


    EXISTING
      LETTERS OF CREDIT

    


    
      	
              Issuer

            	
              L/C
                #

            	
              Issue
                Date

            	
              Expiration
                Date

            	
              Applicant

            	
              Beneficiary

            	
              Amount
                $ 

            
	
               

              Bank
                of America, N.A.

            	
               

              3045716

            	
               

              1-24-02

            	
               

              12-31-05*

            	
               

              RFS
                Hotel Investors, Inc. and RFS TRS Holdings, Inc. for the benefit
                of
                Flagstone Hospitality Management LLC

            	
               

              The
                Travelers Indemnity Company

            	
               

              $2,425,000

            
	
               

              Bank
                of America, N.A.

            	
               

              3034258

            	
               

              1-19-01

            	
               

              1-16-06*

            	
               

              RFS
                Hotel Investors, Inc. and RFS TRS Holdings, Inc. for the benefit
                of
                Flagstone Hospitality Management LLC

            	
               

              The
                Travelers Indemnity Company

            	
               

              $575,000

            


    

    


    *Contains
      automatic renewal clause.

    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      4.01

     

    INITIAL
      BORROWING BASE PROPERTIES; APPRAISED VALUES; AND IMPLIED LOAN
      AMOUNT

     

    


    
      	
              SITE
                #

            	
              PROPERTY
                NAME/ADDRESS

            	
              APPRAISED
                VALUE

            	
              IMPLIED
                LOAN AMOUNT

            
	
              1

            	
              Hilton
                Birmingham South

              8
                Perimeter Park Drive, AL 35243

            	
              $15,400,000

               

            	
              $9,240,000.00

            
	
              2

            	
              Hampton
                Inn Phoenix-Chandler

              7333
                W. Detroit Street, Chandler AZ 85226

            	
              $7,800,000

               

            	
              $4,680,000.00

            
	
              3

            	
              Homewood
                Suites Phoenix-Chandler

              7373
                W. Detroit Street, Chandler AZ 85226

            	
              $8,700,000

               

            	
              $5,220,000.00

            
	
              4

            	
              Hampton
                Inn Sedona

              1800
                Highway 89A, Sedona, AZ 86336

            	
              $6,800,000

               

            	
              $4,080,000.00

            
	
              5

            	
              Wyndham
                Denver Tech Center

              7675
                East Union Avenue, Denver, CO 80237

            	
              $10,400,000

               

            	
              $6,240,000.00

            
	
              6

            	
              Hampton
                Inn Denver SW-Lakewood

              3605
                S. Wadsworth Blvd., Lakewood,
                CO
                80235

            	
              $7,100,000

               

            	
              $4,260,000.00

            
	
              7

            	
              Hyatt
                Coral Gables

              50
                Alhambra Plaza, Coral Gables, FL 33134

            	
              $38,100,000

               

            	
              $22,860,000.00

            
	
              8

            	
              Hampton
                Inn Ft. Lauderdale/Cypress

              720
                Cypress Creek, Ft. Lauderdale, FL 33334

            	
              $10,600,000

               

            	
              $6,360,000.00

            
	
              *9

            	
              Renaissance
                Tampa

              4200
                W. Columbus Drive, Tampa, FL 33607

            	
              $41,300,000

               

            	
              $24,780,000.00

            
	
              10

            	
              Residence
                Inn West Palm Beach

              2461
                Metrocentre Blvd., West Palm Beach, FL 33407

            	
              $11,400,000

               

            	
              $6,840,000.00

            
	
              11

            	
              Residence
                Inn Buckhead (Atlanta)

              2220
                Lake Blvd., Atlanta, GA 30319

            	
              $10,100,000

               

            	
              $6,060,000.00

            
	
              12

            	
              Residence
                Inn Gwinnett (Duluth)

              1760
                Pineland Road, Duluth, GA 30096

            	
              $6,725,000

               

            	
              $4,035,000.00

            
	
              13

            	
              Holiday
                Inn Crystal Lake

              800
                South Route 31, Crystal Lake, IL 60014

            	
              $9,600,000

               

            	
              $5,760,000.00

            
	
              *14

            	
              Holiday
                Inn Louisville-SW

              4110
                Dixie Highway, Louisville, KY 40216

            	
              $5,800,000

               

            	
              $3,480,000.00

            
	
              15

            	
              Holiday
                Inn Lafayette Central

              2032
                N.E. Evangeline Thruway, Lafayette, LA 70501

            	
              $14,200,000

               

            	
              $8,520,000.00

            
	
              16

            	
              Wyndham
                Billerica

              270
                Concord Road, Billerica, MA 01821

            	
              $10,900,000

               

            	
              $6,540,000.00

            
	
              17

            	
              Marriott
                BWI Airport

              1743
                West Nursery Road, Baltimore, MD 21240

            	
              $56,500,000

               

            	
              $33,900,000.00

            
	
              18

            	
              Courtyard
                Flint

              5205
                Gateway Center, Flint, MI 48507

            	
              $9,200,000

               

            	
              $5,520,000.00

            
	
              19

            	
              Hampton
                Inn Minneapolis-Minnetonka

              10420
                Wayzata Blvd., Minnetonka, MN 55305

            	
              $10,500,000

               

            	
              $6,300,000.00

            
	
              20

            	
              Hampton
                Inn Hattiesburg

              4301
                Hardy Street, Hattiesburg, MS 39401

            	
              $12,000,000

               

            	
              $7,200,000.00

            
	
              21

            	
              Hampton
                Inn Lincoln Airport I-80

              1301
                W. Bond Circle, Lincoln, NE 68521

            	
              $5,000,000

               

            	
              $3,000,000.00

            
	
              22

            	
              Courtyard
                Edison

              3105
                Woodbridge Ave., Edison, NJ 08837

            	
              $12,100,000

               

            	
              $7,260,000.00

            
	
              23

            	
              Hampton
                Inn Oklahoma City

              1905
                S. Meridien Ave., Oklahoma City, OK 73108

            	
              $10,300,000

               

            	
              $6,180,000.00

            
	
              24

            	
              Hampton
                Inn Tulsa

              3209
                S. 79th
                East Ave., Tulsa, OK 74145

            	
              $7,400,000

               

            	
              $4,440,000.00

            
	
              25

            	
              Hampton
                Inn Laredo

              7903
                San Dario, Laredo, TX 78041

            	
              $11,500,000

               

            	
              $6,900,000.00

            
	 	 	
              $349,425,000.00

               

            	
              $209,655,000.00

            


    

    


    *
      Excluded Borrowing Base Property subject to Sections 4.07
      and
4.08,
      as
      applicable.

     

    


     

     

    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    
      	
              [DRAFT]

               

            	 	 	
              2005

               

            	
              60%

               

            	
              Appraisal

               

            	
              2004

               

            	
              TTM
                6/30/05

               

            	
              Budget

               

            
	
              Property

               

            	
              City

               

            	
              State

               

            	
              Appraised
                Value

               

            	
              LTV

               

            	
              Date

               

            	
              Actual
                NOI

               

            	
              NOI

               

            	
              YE
                2005 NOI

               

            
	
              Courtyard
                Edison

               

            	
              Edison

               

            	
              NJ

               

            	
              $
                12,100,000.00 

               

            	
              $
                7,260,000.00 

               

            	
              8/18/2005

               

            	
              $
                869,518 

               

            	
              $
                1,040,201 

               

            	
              $
                903,890 

               

            
	
              Courtyard
                Flint

               

            	
              Flint

               

            	
              MI

               

            	
              $
                9,200,000 

               

            	
              $
                5,520,000.00 

               

            	
              8/23/2005

               

            	
              $
                841,766 

               

            	
              $
                813,803 

               

            	
              $
                846,400 

               

            
	
              Hampton
                Inn - Chandler

               

            	
              Chandler

               

            	
              AZ

               

            	
              $
                7,800,000 

               

            	
              $
                4,680,000.00 

               

            	
              8/11/2005

               

            	
              $
                497,819 

               

            	
              $
                747,644 

               

            	
              $
                791,680 

               

            
	
              Hampton
                Inn - Ft. Lauderdale

               

            	
              Ft.
                Lauderdale

               

            	
              FL

               

            	
              $
                10,600,000 

               

            	
              $
                6,360,000.00 

               

            	
              8/10/2005

               

            	
              $
                709,419 

               

            	
              $
                922,412 

               

            	
              $
                928,583 

               

            
	
              Hampton
                Inn - Hattiesburg

               

            	
              Hattiesburg

               

            	
              MS

               

            	
              $
                12,000,000 

               

            	
              $
                7,200,000.00 

               

            	
              8/11/2005

               

            	
              $
                1,261,387 

               

            	
              $
                1,497,294 

               

            	
              $
                1,553,687 

               

            
	
              Hampton
                Inn - Lakewood

               

            	
              Lakewood

               

            	
              CO

               

            	
              $
                7,100,000 

               

            	
              $
                4,260,000.00 

               

            	
              8/12/2005

               

            	
              $
                189,408 

               

            	
              $
                306,487 

               

            	
              $
                355,014 

               

            
	
              Hampton
                Inn - Laredo

               

            	
              Laredo

               

            	
              TX

               

            	
              $
                11,500,000 

               

            	
              $
                6,900,000.00 

               

            	
              8/16/2005

               

            	
              $
                1,322,883 

               

            	
              $
                1,075,538 

               

            	
              $
                1,077,529 

               

            
	
              Hampton
                Inn - Minnetonka

               

            	
              Minnetonka

               

            	
              MN

               

            	
              $
                10,500,000 

               

            	
              $
                6,300,000.00 

               

            	
              8/18/2005

               

            	
              $
                446,401 

               

            	
              $
                680,785 

               

            	
              $
                703,652 

               

            
	
              Hampton
                Inn - Sedona

               

            	
              Sedona

               

            	
              AZ

               

            	
              $
                6,800,000 

               

            	
              $
                4,080,000.00 

               

            	
              8/10/2005

               

            	
              $
                500,914 

               

            	
              $
                554,632 

               

            	
              $
                585,201 

               

            
	
              Hampton
                Inn - Tulsa

               

            	
              Tulsa

               

            	
              OK

               

            	
              $
                7,400,000 

               

            	
              $
                4,440,000.00 

               

            	
              8/16/2005

               

            	
              $
                446,909 

               

            	
              $
                618,679 

               

            	
              $
                607,484 

               

            
	
              Hampton
                Inn Airport I-80 Lincoln

               

            	
              Lincoln

               

            	
              NE

               

            	
              $
                5,000,000 

               

            	
              $
                3,000,000.00 

               

            	
              8/18/2005

               

            	
              $
                493,953 

               

            	
              $
                434,722 

               

            	
              $
                526,344 

               

            
	
              Hampton
                Inn, Airport - Oklahoma City

               

            	
              Oklahoma
                City

               

            	
              OK

               

            	
              $
                10,300,000 

               

            	
              $
                6,180,000.00 

               

            	
              8/18/2005

               

            	
              $
                858,455 

               

            	
              $
                896,284 

               

            	
              $
                930,847 

               

            
	
              Hilton
                Birmingham Perimeter Park

               

            	
              Birmingham

               

            	
              AL

               

            	
              $
                15,400,000 

               

            	
              $
                9,240,000.00 

               

            	
              8/10/2005

               

            	
              $
                1,207,550 

               

            	
              $
                1,548,498 

               

            	
              $
                1,524,958 

               

            
	
              Holiday
                Inn - Crystal Lake

               

            	
              Crystal
                Lake

               

            	
              IL

               

            	
              $
                9,600,000 

               

            	
              $
                5,760,000.00 

               

            	
              8/16/2005

               

            	
              $
                1,072,666 

               

            	
              $
                876,631 

               

            	
              $
                1,146,850 

               

            
	
              Holiday
                Inn, Central Lafayette

               

            	
              Lafayette

               

            	
              LA

               

            	
              $
                14,200,000 

               

            	
              $
                8,520,000.00 

               

            	
              8/15/2005

               

            	
              $
                952,360 

               

            	
              $
                813,139 

               

            	
              $
                840,760 

               

            
	
              Holiday
                Inn, SW Louisville 

               

            	
              Louisville

               

            	
              KY

               

            	
              $
                5,800,000 

               

            	
              $
                3,480,000.00 

               

            	
              8/16/2005

               

            	
              $
                610,653 

               

            	
              $
                357,133 

               

            	
              $
                436,525 

               

            
	
              Homewood
                Suites - Chandler

               

            	
              Chandler

               

            	
              AZ

               

            	
              $
                8,700,000 

               

            	
              $
                5,220,000.00 

               

            	
              8/11/2005

               

            	
              $
                594,580 

               

            	
              $
                841,557 

               

            	
              $
                791,680 

               

            
	
              Hyatt
                Coral Gables

               

            	
              Coral
                Gables

               

            	
              FL

               

            	
              $
                38,100,000 

               

            	
              $
                22,860,000.00 

               

            	
              8/17/2005

               

            	
              $
                1,829,855 

               

            	
              $
                2,719,081 

               

            	
              $
                2,701,176 

               

            
	
              Marriott
                BWI

               

            	
              Baltimore

               

            	
              MD

               

            	
              $
                56,500,000 

               

            	
              $
                33,900,000.00 

               

            	
              8/19/2005

               

            	
              $
                4,876,895 

               

            	
              $
                4,500,053 

               

            	
              $
                5,080,046 

               

            
	
              Renaissance
                Tampa

               

            	
              Tampa

               

            	
              FL

               

            	
              $
                41,300,000 

               

            	
              $
                24,780,000.00 

               

            	
              8/11/2005

               

            	
              $
                (350,988)

               

            	
              $
                1,163,170 

               

            	
              $
                2,413,159 

               

            
	
              Residence
                Inn Buckhead

               

            	
              Atlanta

               

            	
              GA

               

            	
              $
                10,100,000 

               

            	
              $
                6,060,000.00 

               

            	
              8/22/2005

               

            	
              $
                512,549 

               

            	
              $
                831,915 

               

            	
              $
                926,130 

               

            
	
              Residence
                Inn Gwinnett

               

            	
              Duluth

               

            	
              GA

               

            	
              $
                6,725,000 

               

            	
              $
                4,035,000.00 

               

            	
              8/24/2005

               

            	
              $
                659,989 

               

            	
              $
                631,523 

               

            	
              $
                612,165 

               

            
	
              Residence
                Inn West Palm Beach

               

            	
              West
                Palm Beach

               

            	
              FL

               

            	
              $
                11,400,000 

               

            	
              $
                6,840,000.00 

               

            	
              8/12/2005

               

            	
              $
                1,238,715 

               

            	
              $
                1,575,344 

               

            	
              $
                1,391,077 

               

            
	
              Wyndham
                Billerica

               

            	
              Billerica

               

            	
              MA

               

            	
              $
                10,900,000 

               

            	
              $
                6,540,000.00 

               

            	
              8/17/2005

               

            	
              $
                625,824 

               

            	
              $
                607,707 

               

            	
              $
                532,806 

               

            
	
              Wyndham
                Denver Tech Center

               

            	
              Denver

               

            	
              CO

               

            	
              $
                10,400,000 

               

            	
              $
                6,240,000.00 

               

            	
              8/12/2005

               

            	
              $
                210,526 

               

            	
              $
                328,220 

               

            	
              $
                241,362 

               

            
	
              Total

               

            	 	 	
              $
                349,425,000 

               

            	
              $
                209,655,000 

               

            	 	
              $22,480,006
                

               

            	
              $
                26,382,453 

               

            	
              $
                28,449,005 

               

            
	
              Less:
                Louisville, KY hotel

               

            	 	 	
              (5,800,000)

               

            	
              (3,480,000)

               

            	 	
              (610,653)

               

            	
              (357,133)

               

            	
              (436,525)

               

            
	
              Less:
                Tampa, FL hotel

               

            	 	 	
              (41,300,000)

               

            	
              (24,780,000)

               

            	 	
              350,988
                

               

            	
              (1,163,170)

               

            	
              (2,413,159)

               

            
	
              Total
                BB Value excl. KY & FL

               

            	 	 	
              302,325,000
                

               

            	
              181,395,000
                

               

            	 	
              22,220,341
                

               

            	
              24,862,150
                

               

            	
              25,599,321
                

               

            
	 	 	 	 	 	 	 	 	 
	
              DSCR
                = 1.60X

               

            	 	 	 	 	 	 	 	 
	
              Constant
                = 8.06% (6.5%, 25 yr Amortization)

               

            	 	 	 	 	 	
              192,789,629
                

               

            	 
	 	 	 	 	 	 	 	 	 
	
              NOI
                is defined as EBITDA less: (i) 4% capex and (ii)3% managmement
                fee.

               

            	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 


    

    


    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    
      	
              SCHEDULE
                6.28

            
	 
	
              POOLING
                AGREEMENTS

            
	 
	
              1. Pooling
                Agreement, dated as of October 1, 2003, between Interstate
                Management Company,
                L.L.C. and CNL Rose SPE Tenant Corp. (affects Parcels 13 and
                14).

            
	 
	
              2. Pooling
                Agreement, dated as of October 1, 2003, between Promus Hotels, Inc.
                and
                CNL Rose SPE Tenant Corp. (affects Parcels 2, 3,
                4,
                6, 8, 19, 20, 21, 23,
                24 and 25).

            
	 


    

    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      7.25

    


    DEFERRED
      MAINTENANCE

    


    


    [TO
      BE
      PROVIDED]

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    SCHEDULE
      8.01

    


    EXISTING
      LIENS

    


    


    None

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    
      	
              SCHEDULE
                11.02

               

            
	
              ADMINISTRATIVE
                AGENT’S OFFICE,

              CERTAIN
                ADDRESSES FOR NOTICES

            
	 
	
              CNL
                HOSPITALITY PARTNERS, LP:

            
	
              450
                South Orange Avenue, 12th
                Floor

            
	
              Orlando,
                Florida 32801-3336

            
	
              Attention:
                Chief Financial Officer

            
	
              Telephone:
                407.650.1084

            
	
              Facsimile:
                407.650.1085

            
	 
	
              With
                copy to:

            
	 
	
              Lowndes,
                Drosdick, Doster, Kantor & Reed, P.A.

            
	
              215
                North Eola Drive

            
	
              Orlando,
                Florida 32802

            
	
              Attention:
                Richard J. Fildes, Esq.

            
	
              Telephone:
                407.418.6412

            
	
              Facsimile:
                407.843.4444

            
	
              Electronic
                Mail: richard.fildes@Lowndes-law.com

            
	 
	 
	
              ADMINISTRATIVE
                AGENT:

            
	 
	
              Administrative
                Agent’s
                Office 

            
	
              (for
                payments and Borrowing requests)

            
	
              Bank
                of America, NA

            
	
              901
                Main St.

            
	
              14th
                floor

            
	
              TX1-492-14-05

            
	
              Dallas,
                TX 75202

            
	
              Attention:
                Alan Tapley

            
	
              Telephone:
                214-209-0993

            
	
              Facsimile:
                214-290-9419

            
	
              Electronic
                Mail: alan.tapley@bankofamerica.com

            
	
              ABA
                #:111000012

            
	
              Account
                Name - Corporate Funds Transfer Account

            
	
              Account
                Number - 1292000883

            
	
              Reference:
                CNL Hospitality Partners, LP

            
	
              Attention:
                Alan Tapley

            
	 
	
              Administrative
                Agent’s
                Office 

            
	
              (for
                other notices)

            
	
              Bank
                of America, N.A. 

            
	
              TX1-492-64-01

            
	
              901
                Main Street, 64th
                Floor

            
	
              Dallas,
                TX 75202

            
	
              Attention:
                Lesa Butler

            
	
              Telephone:
                214.209.1506

            
	
              Facsimile:
                214.209.0085

            
	
              Electronic
                Mail: lesa.j.butler@bankofamerica.com

            
	 
	
              With
                copy to:

            
	 
	
              Bank
                of America, N.A.

            
	
              Agency
                Services

            
	
              TX1-492-14-11

            
	
              901
                Main Street, 14th
                Floor

              Dallas,
                Texas 75202

            
	
              Attention:
                Henry Pennell

            
	
              Telephone:
                214.209.1226

            
	
              Facsimile:
                214.290.9440

            
	
              Electronic
                Mail: henry.pennell@bankofamerica.com

            
	 
	
               

              L/C
                ISSUER:

            
	
               

              Prior
                to November 7, 2005:

            
	
               

              Bank
                of America, N.A.

               

              Trade
                Operations-Los Angeles #22621

               

              333
                S. Beaudry Avenue, 19th Floor

               

              Mail
                Code: CA9-703-19-23

               

              Los
                Angeles, CA 90017-1466

            
	 
	
              On
                and after November 7, 2005:

            
	
              Bank
                or America, N.A.

            
	
              Trade
                Operations - Los Angeles #22621

            
	
              L.A.
                Data Center Building

            
	
              1000
                West Temple Street

            
	
              Suite
                - Level 7

            
	
              Los
                Angeles, California 90012-1514

            
	
              Mail
                Code: CA 9-705-07-05

            
	
              Attention: Hermann
                Schutterle

              Vice
                President

            
	
              Telephone:
                213.345.0397

            
	
              Facsimile:
                213.345.6684

            
	
              Electronic
                Mail: hermann.schutterle@bankofamerica.com

            
	 


    

    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      A

    


    FORM
      OF LOAN NOTICE

    


    Date:
      ___________, _____

     

    
      	
              To:

            	
              Bank
                of America, N.A., as Administrative
                Agent

            


    

     

    Ladies
      and Gentlemen:

     

    Reference
      is made to that certain Credit Agreement, dated as of September 30,
      2005
      (as amended, restated, extended, supplemented or otherwise modified in writing
      from time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among CNL
      Hospitality Partners, LP (the “Borrower”),
      CNL
      Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
      time party thereto, and Bank of America, N.A., as Administrative Agent and
      L/C
      Issuer.

     

    
      	
              The
                undersigned hereby requests (select one):

               

            
	
              A
                Borrowing of Loans 
                A
                conversion or continuation of Loans

               

            
	
              1. On
                 
                (a
                Business Day).

               

            
	
              2. In
                the amount of $ .

               

            
	
              3. Comprised
                of   .

               

              [Type
                of Loan requested]

               

            
	
              4. For
                Eurodollar Rate Loans: with an Interest Period of  
                months.

               

            
	
              [The
                Borrowing requested herein complies with the proviso to the first
                sentence
                of Section 2.01
                of
                the Agreement.]

               

            


    

     

    


    
      	 	 	 
              
              BORROWER:

               

            
	 	
                 
                CNL HOSPITALITY PARTNERS, LP, a Delware limited
                partnership

            
	 
 	 
 	
               

              By:
                CNL HOSPITALITY GP CORP., a Delaware coporation, its
                General Partner
 

            
	 	By:  	/s/ 
	 	
              
Name:
	 	Title 


    

    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      B

    


    FORM
      OF NOTE

     

     

     

    FOR
      VALUE
      RECEIVED, the undersigned (“Borrower”),
      hereby promises to pay to the order of _____________________ or registered
      assigns (“Lender”),
      in
      accordance with the provisions of the Agreement (as hereinafter defined), the
      principal amount of each Loan from time to time made by the Lender to Borrower
      under that certain Credit Agreement, dated as of September 30, 2005
      (as
      amended, restated, extended, supplemented, or otherwise modified in writing
      from
      time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among Borrower,
      CNL
      Hotels & Resorts, Inc., the Lenders from time to time party thereto, and
      Bank of America, N.A., as Administrative Agent and L/C Issuer.

     

    Borrower
      promises to pay interest on the unpaid principal amount of each Loan from the
      date of such Loan until such principal amount is paid in full, at such interest
      rates and at such times as provided in the Agreement. All payments of principal
      and interest shall be made to Administrative Agent for the account of the Lender
      in Dollars in immediately available funds at Administrative Agent’s
      Office.
      If any amount is not paid in full when due hereunder, such unpaid amount shall
      bear interest, to be paid upon demand, from the due date thereof until the
      date
      of actual payment (and before as well as after judgment) computed at the per
      annum rate set forth in the Agreement.

     

    This
      Note
      is one of the Notes referred to in the Agreement, is entitled to the benefits
      thereof and may be prepaid in whole or in part subject to the terms and
      conditions provided therein. This Note is also entitled to the benefits of
      the
      Guaranties. Upon the occurrence and continuation of one or more of the Events
      of
      Default specified in the Agreement, all amounts then remaining unpaid on this
      Note shall become, or may be declared to be, immediately due and payable all
      as
      provided in the Agreement. Loans made by the Lender shall be evidenced by one
      or
      more loan accounts or records maintained by the Lender in the ordinary course
      of
      business. The Lender may also attach schedules to this Note and endorse thereon
      the date, amount and maturity of its Loans and payments with respect
      thereto.

     

    Borrower,
      for itself, its successors and assigns, hereby waives diligence, presentment,
      protest and demand and notice of protest, demand, dishonor and non-payment
      of
      this Note.

     

    [Signature
      page follows.]

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    THIS
      NOTE
      SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
      OF
      NEW YORK.

     

    


    
      	 	 	 
              
              BORROWER:

               

            
	 	
                 
                CNL HOSPITALITY PARTNERS, LP,
                a
                Delaware limited partnership

            
	 
 	 
 	
               

              By:
                CNL HOSPITALITY GP CORP., a Delware
                corporation, its General Partner
 

            
	Date: 	By:  	/s/ 
	 	
              
Name:
	 	Title 


    

    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    LOANS
      AND PAYMENTS WITH RESPECT THERETO

    


    
      	
              Date

               

            	
              Type
                of Loan Made

               

            	
              Amount
                of Loan Made

               

            	
              End
                of Interest Period

               

            	
              Amount
                of Principal or Interest Paid This Date

               

            	
              Outstanding
                Principal Balance This Date

               

            	
              Notation
                Made By

               

            
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	 


    

    


     

    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      C

    


    FORM
      OF COMPLIANCE CERTIFICATE

    


    Financial
      Statement Date:  ,
       

     

    
      	
              To:

            	
              Bank
                of America, N.A., as Administrative
                Agent

            


    

     

    Ladies
      and Gentlemen:

     

    Reference
      is made to that certain Credit Agreement, dated as of September 30,
      2005
      (as amended, restated, extended, supplemented, or otherwise modified in writing
      from time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      CNL
      Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
      time party thereto, and Bank of America, N.A., as Administrative Agent and
      L/C
      Issuer.

     

    The
      undersigned Responsible Officer hereby certifies as of the date hereof that
      he/she is the ______________________ of Borrower, and that, as such, he/she
      is
      authorized to execute and deliver this Certificate to Administrative Agent
      on
      the behalf of Borrower, and that:

     

    [Use
      following paragraph 1 for fiscal year-end
      financial statements]

     

    1. Attached
      hereto as Schedule 1
      are the
      year-end audited financial statements required by Section 7.01(a)
      of the
      Agreement for the fiscal year of Borrower ended as of the above date, together
      with the report and opinion of an independent certified public accountant
      required by such section.

     

    [Use
      following paragraph 1 for fiscal quarter-end
      financial statements]

     

    1. Attached
      hereto as Schedule 1
      are the
      unaudited financial statements required by Section 7.01(b)
      of the
      Agreement for the fiscal quarter of Borrower ended as of the above date. Such
      financial statements fairly present the financial condition, results of
      operations and cash flows of Borrower and its Subsidiaries in accordance with
      GAAP as at such date and for such period, subject only to normal year-end audit
      adjustments and the absence of footnotes.

     

    2. The
      undersigned has reviewed and is familiar with the terms of the Agreement and
      has
      made, or has caused to be made under his/her supervision, a detailed review
      of
      the transactions and condition (financial or otherwise) of Borrower during
      the
      accounting period covered by the attached financial statements.

     

    3. A
      review
      of the activities of Borrower during such fiscal period has been made under
      the
      supervision of the undersigned with a view to determining whether during such
      fiscal period Borrower performed and observed all its Obligations under the
      Loan
      Documents, and 

     

    [select
      one:]

    [to
      the best knowledge of the undersigned during such fiscal period, Borrower
      performed and observed each covenant and condition of the Loan Documents
      applicable to it.] 

     

    --or--

    [the
      following covenants or conditions have not been performed or observed and the
      following is a list of each such Default and its nature and
      status:]

     

    4. The
      representations and warranties of Borrower contained in Article VI
      of the
      Agreement, or which are contained in any document furnished at any time under
      or
      in connection with the Loan Documents, are true and correct on and as of the
      date hereof, except to the extent that such representations and warranties
      specifically refer to an earlier date, in which case they are true and correct
      as of such earlier date,
      and
      except that for purposes of this Compliance Certificate, the representations
      and
      warranties contained in subsections (a) and (b) of Section 6.05
      of the
      Agreement shall be deemed to refer to the most recent statements furnished
      pursuant to clauses (a) and (b), respectively, of Section 7.01
      of the
      Agreement, including the statements in connection with which this Compliance
      Certificate is delivered.

     

    5. The
      financial covenant analyses and information set forth on Schedule 2
      attached
      hereto are true and accurate on and as of the date of this
      Certificate.

     

     

    IN
      WITNESS WHEREOF,
      the
      undersigned has executed this Certificate as of
      __________, __, ___.

     

     

     

    
      
        	 	 	 BORROWER:
	 	
                 

                CNL HOSPITALITY PARTNERS, LP, a
                  Delaware limited partnership

              
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	
                
Name:
	 	Title 


      



    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    
      	
              For
                the Quarter/Year ended ___________________(“Statement
                Date”)

               

            
	
              SCHEDULE
                2

               

              to
                the Compliance Certificate

               

              ($
                in 000’s)

               

            
	 
	
              I. Section 8.06(d)
                - Permitted Distributions.

               

            
	
              A. Line
                H from prior period ($50,000,000 initial quarter
                post-closing):  

            
	 
	
              B. Cash
                Available for Distribution (for the subject quarter):

            
	 
	
              1.
                Consolidated EBITDA (for the subject quarter):  

            
	 
	
              2.
                Net refundable membership deposits paid in cash (for
                the

            
	
              subject
                quarter):

            
	 
	
              3.
                Amount of scheduled principal payments on Consolidated Indebtedness
                (for
                the subject quarter):  

            
	 
	
              4.
                Consolidated Interest Charges (for the subject quarter):  

            
	 
	
              5.
                Cash Available for Distribution (for the subject quarter)
                

            
	
              (I.B.1
                + 2 - 3 - 4):    

            
	 
	
              C. Permitted
                Distributions (A + B.5):  

            
	 
	
              D. Dividends
                or distributions paid by Parent (for the subject quarter):  

            
	 
	
              E. Retirement,
                purchase, or redemption of any of its Equity Interests (for the subject
                quarter):     

            
	 
	
              F. Restricted
                Payments (for the subject quarter) (D + E):  

            
	 
	
              G. Excess
                (deficit) for covenant compliance (C - F):  

            
	 
	
              H. If
                deficit in G, has Parent made dividends or distributions in excess
                of
                minimum required to maintain REIT status? (yes or no):  

            
	
              (If
                H = “no,” then in compliance) 

            
	 
	
              II. Section 8.15(b)
                - Consolidated Leverage Ratio.

               

            
	
              A. Consolidated
                Funded Indebtedness at Statement Date: $ 

               

            
	
              B. Consolidated
                EBITDA   $ 

               

            
	
              C. Consolidated
                Leverage Ratio (Line II.A.  ̧ 

               

              Line
                II.B):     %

               

            
	
              Maximum
                permitted: See Section 8.15(b) of the Credit
                Agreement

               

            
	 
	
              III. Section 8.15(c)
                - Consolidated Fixed Charge Coverage Ratio.

               

            
	
              A. Consolidated
                EBITDA:

               

            
	
              1. Consolidated
                Net Income for Subject Period: $ 

               

            
	
              2. Consolidated
                Interest Charges for Subject Period: $ 

               

            
	
              3. Provision
                for income taxes for Subject Period: $ 

               

            
	
              4. Depreciation
                expenses for Subject Period: $ 

               

            
	
              5. Amortization
                expenses for intangibles for Subject Period: $ 

               

            
	
              6. FF&E
                Reserves:  $ 

               

            
	
              7. Consolidated
                EBITDA (Lines III.A.1 + 2 + 3 + 4 + 5 - 6):  $ 

               

            
	
              B. Fixed
                Charges:

               

            
	
              1. Debt
                service:   $ 

               

            
	
              2. Restricted
                Payments:  $ 

               

            
	
              3. Fixed
                Charges (Line III.D.1 plus
                Line III.D.2): $ 

               

            
	
              C. Consolidated
                Fixed Charge Coverage Ratio 

            
	
              [(Line
                III.A.7. + Line III.B. + Line III.C.)  ̧
                (Line III.D.3)]:  to
                1

            
	
              Minimum
                required:
                1.50
                to 1.0

            
	 
	 
	
              IV. Section 8.15(d)
                - Borrowing Base Debt Service Coverage Ratio.

               

            
	
              See
                Borrowing Base Report for a calculation of the
                ratio.

            


    

    


     

    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      D-1

     

    JOINDER
      AGREEMENT

     

    Reference
      is hereby made to that certain Credit Agreement dated as of September 30,
      2005 (as amended, restated, extended, supplemented, or otherwise modified in
      writing from time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      CNL
      Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
      time party thereto, and Bank of America, N.A., as Administrative Agent and
      L/C
      Issuer. 

     

    Pursuant
      to Section 2.13
      of the
      Agreement, the undersigned hereby agrees that it shall be a party to the
      Agreement as a “Subsequent
      Lender”
      and
      shall have the rights and obligations of a Lender under the Loan Documents.
      

     

    The
      undersigned (a) represents and warrants that (i) it has full power and
      authority, and has taken all action necessary, to execute and deliver this
      Joinder Agreement and to consummate the transactions contemplated hereby and
      to
      become a Subsequent Lender under the Credit Agreement, (ii) it meets all
      requirements of Lender under the Credit Agreement (subject to receipt of such
      consents as may be required under the Credit Agreement), (iii) it has received
      a
      copy of the Credit Agreement, together with copies of the most recent financial
      statements delivered pursuant to Section 7.01 thereof, as applicable,
      and
      such other documents and information as it has deemed appropriate to make its
      own credit analysis and decision to enter into this Joinder Agreement on the
      basis of which it has made such analysis and decision independently and without
      reliance on Administrative Agent or any other Lender, and (iv) if it is a
      Foreign Lender, attached hereto is any documentation required to be delivered
      by
      it pursuant to the terms of the Credit Agreement, duly completed and executed
      by
      the Assignee; and (b) agrees that (i) it will, independently and without
      reliance on Administrative Agent or any other Lender, and based on such
      documents and information as it shall deem appropriate at the time, continue
      to
      make its own credit decisions in taking or not taking action under the Loan
      Documents, and (ii) it will perform in accordance with their terms all of the
      obligations which by the terms of the Loan Documents are required to be
      performed by it as a Lender.

     

    This
      Joinder Agreement shall be binding upon, and inure to the benefit of, the
      parties hereto and their respective successors and assigns. This Joinder
      Agreement may be executed in any number of counterparts, which together shall
      constitute one instrument. Delivery of an executed counterpart of a signature
      page of this Joinder Agreement by telecopy shall be effective as delivery of
      a
      manually executed counterpart of this Joinder Agreement. This Joinder Agreement
      shall be governed by, and construed in accordance with, the law of the State
      of
      New York.

     

    [Signature
      Page Follows.]

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of
      the
      ______ day of __________, 20____.

     

    SUBSEQUENT
      LENDER

     

    [NAME
      OF
      SUBSEQUENT LENDER]

    


    By:
      _____________________________

    Name:
          

    Title:
          

    


    


    


    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      D-2

     

    INCREASE
      CERTIFICATE

     

    Reference
      is hereby made to that certain Credit Agreement dated as of September 30,
      2005 (as amended, restated, extended, supplemented, or otherwise modified in
      writing from time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      CNL
      Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
      time party thereto, and Bank of America, N.A., as Administrative Agent and
      L/C
      Issuer. 

     

    Pursuant
      to Section 2.13
      of the
      Agreement the undersigned hereby agrees and consents to an increase in its
      Commitment. After giving effect to such increase, the Commitment of the
      undersigned will equal $_____________. 

     

    This
      Increase Certificate shall be binding upon, and inure to the benefit of, the
      parties hereto and their respective successors and assigns. This Increase
      Certificate may be executed in any number of counterparts, which together shall
      constitute one instrument. Delivery of an executed counterpart of a signature
      page of this Increase Certificate by telecopy shall be effective as delivery
      of
      a manually executed counterpart of this Increase Certificate. This Increase
      Certificate shall be governed by, and construed in accordance with, the law
      of
      the State of New York.

     

    [Signature
      Page Follows.]

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the undersigned has executed this Increase Certificate as
      of
      the ______ day of __________, 20____.    

     

    INCREASING
      LENDER

     

    [NAME
      OF
      INCREASING LENDER]

     

    


    By:
      _____________________________

    Name:
          

    Title:
          

    


    


    


    


    


    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      E

     

    FORM
      OF ASSIGNMENT AND ASSUMPTION

     

    This
      Assignment and Assumption (this “Assignment
      and Assumption”)
      is
      dated as of the Effective Date set forth below and is entered into by and
      between [Insert
      name of Assignor]
      (the
“Assignor”)
      and
      [Insert
      name of Assignee]
      (the
“Assignee”).
      Capitalized terms used but not defined herein shall have the meanings given
      to
      them in the Credit Agreement identified below (the “Credit
      Agreement”),
      receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
      Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed
      to
      and incorporated herein by reference and made a part of this Assignment and
      Assumption as if set forth herein in full.

     

    For
      an
      agreed consideration, the Assignor hereby irrevocably sells and assigns to
      the
      Assignee, and the Assignee hereby irrevocably purchases and assumes from the
      Assignor, subject to and in accordance with the Standard Terms and Conditions
      and the Credit Agreement, as of the Effective Date inserted by Administrative
      Agent as contemplated below (i) all of the Assignor's rights and obligations
      as
      a Lender under the Credit Agreement and any other documents or instruments
      delivered pursuant thereto to the extent related to the amount and percentage
      interest identified below of all of such outstanding rights and obligations
      of
      the Assignor under the respective facilities identified below (including,
      without limitation, Letters of Credit, Guarantees and Swing Line Loans included
      in such facilities) and (ii) to the extent permitted to be assigned under
      applicable law, all claims, suits, causes of action and any other right of
      the
      Assignor (in its capacity as a Lender) against any Person, whether known or
      unknown, arising under or in connection with the Credit Agreement, any other
      documents or instruments delivered pursuant thereto or the loan transactions
      governed thereby or in any way based on or related to any of the foregoing,
      including, but not limited to, contract claims, tort claims, malpractice claims,
      statutory claims and all other claims at law or in equity related to the rights
      and obligations sold and assigned pursuant to clause (i) above (the rights
      and
      obligations sold and assigned pursuant to clauses (i) and (ii) above being
      referred to herein collectively as, the “Assigned
      Interest”).
      Such
      sale and assignment is without recourse to the Assignor and, except as expressly
      provided in this Assignment and Assumption, without representation or warranty
      by the Assignor.

     

    
      	
              1. Assignor: ______________________________

            
	 
	
              2. Assignee: ______________________________
                [and is an

            
	
              Affiliate/Approved
                Fund of [identify
                Lender]]

            
	 
	
              3. Borrower: CNL
                Hospitality Partners, LP

            
	 
	
              4. Administrative
                Agent: Bank
                of America, N.A., as Administrative Agent under the Credit
                Agreement

            
	 
	
              5. Credit
                Agreement: The
                Credit Agreement, dated as of September 30, 2005, among CNL
                Hospitality Partners, LP, a Delaware limited partnership, CNL Hotels
&
                Resorts, Inc., a Maryland corporation, the Lenders parties thereto,
                and
                Bank of America, N.A., as Administrative
                Agent.

            


    

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    


    6. Assigned
      Interest:

    


    
      	
              Facility
                Assigned

            	
              Aggregate
                Amount of Commitment for all Lenders*

            	
              Amount
                of Commitment Assigned*

            	
              Percentage
                Assigned of

              Commitment

            
	 	 	 	 
	
              _____________1 

            	
              $________________

            	
              $________________

            	
              ______________%

            
	
              _____________

            	
              $________________

            	
              $________________

            	
              ______________%

            
	
              _____________

            	
              $________________

            	
              $________________

            	
              ______________%

            


    

     

    [7. Trade
      Date: __________________]2 

     

     

    Effective
      Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
      WHICH
      SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
      THEREFOR.]

     

    The
      terms
      set forth in this Assignment and Assumption are hereby agreed to:

     

    ASSIGNOR

    [NAME
      OF
      ASSIGNOR]

    


    By:
      _____________________________

    Title:

    


    ASSIGNEE

    [NAME
      OF
      ASSIGNEE]

    


    By:
      _____________________________

    Title:

    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    Consented
      to and Accepted:

    


    BANK
      OF AMERICA, N.A.,
      

    as
      Administrative Agent and L/C Issuer

    


    


    By:
       ________________________________
       

      Name:     

    Title:
           

    


    
 

    


    Consented
      to:

    


    BORROWER:

    


    CNL
      HOSPITALITY PARTNERS, LP,
      a
      Delaware limited partnership

    


    
      	 	
              By:

            	
              CNL
                HOSPITALITY GP CORP.,
                a
                Delaware corporation, its General
                Partner

            


    

    


    


    By:  

    Name:
       

    Title: 

     

    
      
        	 	 	 
	 	COMPANY
                NAME CORPORATION
	 
 	 
 	 
 
	 	By:  	/s/ 
	 	
                

              
	 	Title 


      



    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    ANNEX
      1 TO ASSIGNMENT AND ASSUMPTION

     

    


     

    STANDARD
      TERMS AND CONDITIONS FOR 

     

    ASSIGNMENT
      AND ASSUMPTION

     

    1. Representations
      and Warranties.

     

    1.1. Assignor.
      The
      Assignor (a) represents and warrants that (i) it is the legal and beneficial
      owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
      of
      any lien, encumbrance or other adverse claim and (iii) it has full power and
      authority, and has taken all action necessary, to execute and deliver this
      Assignment and Assumption and to consummate the transactions contemplated
      hereby; and (b) assumes no responsibility with respect to (i) any statements,
      warranties or representations made in or in connection with the Credit Agreement
      or any other Loan Document, (ii) the execution, legality, validity,
      enforceability, genuineness, sufficiency or value of the Loan Documents or
      any
      collateral thereunder, (iii) the financial condition of Borrower, any of its
      Subsidiaries or Affiliates or any other Person obligated in respect of any
      Loan
      Document or (iv) the performance or observance by Borrower, any of its
      Subsidiaries or Affiliates or any other Person of any of their respective
      obligations under any Loan Document.

     

    1.2. Assignee.
      The
      Assignee (a) represents and warrants that (i) it has full power and authority,
      and has taken all action necessary, to execute and deliver this Assignment
      and
      Assumption and to consummate the transactions contemplated hereby and to become
      a Lender under the Credit Agreement, (ii) it meets all requirements of an
      Eligible Assignee under the Credit Agreement (subject to receipt of such
      consents as may be required under the Credit Agreement), (iii) from and after
      the Effective Date, it shall be bound by the provisions of the Credit Agreement
      as a Lender thereunder and, to the extent of the Assigned Interest, shall have
      the obligations of a Lender thereunder, (iv) it has received a copy of the
      Credit Agreement, together with copies of the most recent financial statements
      delivered pursuant to Section 7.01 thereof, as applicable, and such
      other
      documents and information as it has deemed appropriate to make its own credit
      analysis and decision to enter into this Assignment and Assumption and to
      purchase the Assigned Interest on the basis of which it has made such analysis
      and decision independently and without reliance on Administrative Agent or
      any
      other Lender, and (v) if it is a Foreign Lender, attached hereto is any
      documentation required to be delivered by it pursuant to the terms of the Credit
      Agreement, duly completed and executed by the Assignee; and (b) agrees that
      (i)
      it will, independently and without reliance on Administrative Agent, the
      Assignor or any other Lender, and based on such documents and information as
      it
      shall deem appropriate at the time, continue to make its own credit decisions
      in
      taking or not taking action under the Loan Documents, and (ii) it will perform
      in accordance with their terms all of the obligations which by the terms of
      the
      Loan Documents are required to be performed by it as a Lender.

     

    2. Payments.
      From
      and after the Effective Date, Administrative Agent shall make all payments
      in
      respect of the Assigned interest (including payments of principal, interest,
      fees and other amounts) to the Assignee whether such amounts have accrued prior
      to or on or after the Effective Date. The Assignor and the Assignee shall make
      all appropriate adjustments in payments by Administrative Agent for periods
      prior to the Effective Date or with respect to the making of this assignment
      directly between themselves.

     

    3. General
      Provisions.
      This
      Assignment and Assumption shall be binding upon, and inure to the benefit of,
      the parties hereto and their respective successors and assigns. This Assignment
      and Assumption may be executed in any number of counterparts, which together
      shall constitute one instrument. Delivery of an executed counterpart of a
      signature page of this Assignment and Assumption by telecopy shall be effective
      as delivery of a manually executed counterpart of this Assignment and
      Assumption. This Assignment and Assumption shall be governed by, and construed
      in accordance with, the law of the State of New York.

     

    


     

    


    

      

      
        *
          Amount
          to be adjusted by the counterparties to take into account any payments
          or
          prepayments made between the Trade Date and the Effective Date.

         

        1
          Fill in
          the appropriate terminology for the types of facilities under the Credit
          Agreement that are being assigned under this Assignment (e.g. “Revolving Credit
          Commitment”, etc.).

      

      
        2
          To be
          completed if the Assignor and the Assignee intend that the minimum assignment
          amount is to be determined as of the Trade Date.

      

    

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      F-1

    


    FORM
      OF GUARANTY

    


    


    this
      PARENT guaranty agreement (this “Guaranty”)
      is
      entered into as of September 30, 2005, by CNL
      HOTELS & RESORTS, INC.,
      a
      Maryland corporation (“Guarantor”),
      in
      favor of BANK
      OF AMERICA, N.A.,
      as
      administrative agent (in such capacity, “Administrative
      Agent”)
      for
      the banks and other financial institutions (“Lenders”)
      that
      are parties to the Credit Agreement described below.

     

    CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      is a
      party to the Credit Agreement dated as of the date of this Agreement (as the
      same may be amended, supplemented or modified from time to time, the
“Credit
      Agreement”)
      among
      Borrower, Guarantor, Lenders, and Administrative Agent, pursuant to which
      Lenders have agreed, among other things, to make Loans to Borrower. Capitalized
      terms not defined herein shall have the meanings assigned to such terms in
      the
      Credit Agreement.

     

    Borrower
      is a direct Subsidiary of Guarantor; 

     

    Borrower
      and Guarantor are engaged in related businesses, and Guarantor will derive
      substantial direct and indirect benefit from the making of the
      Loans;

     

    It
      is a
      condition precedent to the obligations of Lenders to make the Loans that
      Guarantor shall execute and deliver this Guaranty in favor of Administrative
      Agent for the benefit of Lenders;

     

    NOW
      THEREFORE, FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged,
      and in consideration of the Loans, any credit and/or financial accommodation
      heretofore or hereafter from time to time made or granted to Borrower under
      the
      Loan Documents by Administrative Agent and Lenders, Guarantor hereby furnishes
      its guaranty of the Guaranteed Obligations (as hereinafter defined) as
      follows:

    


    1. Guaranty. GGuarantor
      hereby absolutely, irrevocably and unconditionally guarantees, as a guarantee
      of
      payment and not merely as a guarantee of collection, prompt payment when due,
      whether at stated maturity, upon acceleration or otherwise, and at all times
      thereafter, of the Obligations and any and all other existing and future
      indebtedness and liabilities of every kind, nature and character, direct or
      indirect, absolute or contingent, liquidated or unliquidated, voluntary or
      involuntary, of Borrower to Administrative Agent and Lenders arising under
      the
      Credit Agreement and the Loan Documents and all instruments, agreements and
      other documents of every kind and nature now or hereafter executed in connection
      with any Loan Document (including all renewals, extensions and modifications
      thereof and all costs, attorneys’ fees and expenses incurred by the Lender in
      connection with the collection or enforcement thereof) (collectively, the
“Guaranteed
      Obligations”)
      irrespective of any law affecting the Guaranteed Obligations. The books and
      records of Administrative Agent or any Lender showing the amount of the
      Guaranteed Obligations shall be admissible in evidence in any action or
      proceeding, and shall be binding upon Guarantor and conclusive for the purpose
      of establishing the amount of the Guaranteed Obligations. This Guaranty shall
      not be affected by the genuineness, validity, regularity or enforceability
      of
      the Guaranteed Obligations or any instrument or agreement evidencing any
      Guaranteed Obligations, or by the existence, validity, enforceability,
      perfection, or extent of any collateral therefor, or by any fact or circumstance
      relating to the Guaranteed Obligations which might otherwise constitute a
      defense to the obligations of Guarantor under this Guaranty. 

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    2. No
      Setoff or Deductions; Taxes.
      Guarantor represents and warrants that it is incorporated or formed, and resides
      in, the United States of America. All payments by Guarantor hereunder shall
      be
      paid in full, without setoff or counterclaim or any deduction or withholding
      whatsoever, including, without limitation, for any and all present and future
      taxes. If Guarantor must make a payment under this Guaranty, Guarantor
      represents and warrants that it will make the payment from one of its U.S.
      resident offices to Administrative Agent or each Lender so that no withholding
      tax is imposed on the payment. If notwithstanding the foregoing, Guarantor
      makes
      a payment under this Guaranty to which withholding tax applies, or any taxes
      (other than taxes on net income (a) imposed by the country or any subdivision
      of
      the country in which the principal office or actual lending office of
      Administrative Agent or any Lender is located and (b) measured by the United
      States taxable income of Administrative Agent or any Lender would have received
      if all payments under or in respect of this Guaranty were exempt from taxes
      levied by such Guarantor’s country) are at any time imposed on any payments
      under or in respect of this Guaranty including, but not limited to, payments
      made pursuant to this Paragraph
      2,
      Guarantor shall pay all such taxes to the relevant authority in accordance
      with
      applicable law such that Administrative Agent or any Lender receives the sum
      it
      would have received had no such deduction or withholding been
      made and
      shall also pay to Administrative Agent or any Lender, on demand, all additional
      amounts which Administrative Agent or any Lender specifies as necessary to
      preserve the after-tax yield Administrative Agent or such Lender would have
      received if such taxes had not been imposed. Guarantor shall promptly provide
      Administrative Agent or any Lender with an original receipt or certified copy
      issued by the relevant authority evidencing the payment of any such amount
      required to be deducted or withheld.

     

    3. No
      Termination.
      This
      Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations
      now or hereafter existing and shall remain in full force and effect until all
      Guaranteed Obligations and any other amounts payable under this Guaranty are
      indefeasibly paid and performed in full and any commitments of the Lender or
      facilities provided by the Lender with respect to the Guaranteed Obligations
      are
      terminated. At Administrative Agent or any Lender’s option, all payments under
      this Guaranty shall be made
      to an
      office of Administrative
      Agent or any Lender
      located
      in the
      United States and in Dollars.

     

    4. Waiver
      of Notices.
      Guarantor waives notice of the acceptance of this Guaranty and of the extension
      or continuation of the Guaranteed Obligations or any part thereof. Guarantor
      further waives presentment, protest, notice, dishonor or default, notice of
      intention to accelerate, notice of acceleration, demand for payment and any
      other notices to which Guarantor might otherwise be entitled.

     

    5. Subrogation.
      Guarantor shall exercise no right of subrogation, contribution or similar rights
      with respect to any payments it makes under this Guaranty until all of the
      Guaranteed Obligations and any amounts payable under this Guaranty are
      indefeasibly paid and performed in full and any commitments of Lenders or
      facilities provided by Lenders with respect to the Guaranteed Obligations are
      terminated. If any amounts are paid to Guarantor in violation of the foregoing
      limitation, then such amounts shall be held in trust for the benefit of Lenders
      and shall forthwith be paid to Lenders to reduce the amount of the Guaranteed
      Obligations, whether matured or unmatured.

     

    6. Waiver
      of Suretyship Defenses.
      Guarantor agrees that Lenders may, at any time and from time to time, and
      without notice to Guarantor, make any agreement with Borrower or with any other
      person or entity liable on any of the Guaranteed Obligations or providing
      collateral as security for the Guaranteed Obligations, for the extension,
      renewal, payment, compromise, discharge or release of the Guaranteed Obligations
      or any Collateral (in whole or in part), or for any modification or amendment
      of
      the terms thereof or of any instrument or agreement evidencing the Guaranteed
      Obligations or the 

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    provision
      of Collateral, any change in the corporate existence or structure of Borrower,
      any law, regulation, decree, or order, or any other event affecting any term
      of
      the Guaranteed Obligations, all without in any way impairing, releasing,
      discharging or otherwise affecting the obligations of Guarantor under this
      Guaranty. Guarantor waives any defense arising by reason of any disability
      or
      other defense of Borrower or any other guarantor, or the cessation from any
      cause whatsoever of the liability of Borrower, or any claim that Guarantor’s
      obligations exceed or are more burdensome than those of Borrower and waives
      the
      benefit of any statute of limitations affecting the liability of Guarantor
      hereunder to the fullest extent permitted by law. Guarantor waives any right
      to
      enforce any remedy which Administrative Agent or any Lender now has or may
      hereafter have against Borrower and waives any benefit of and any right to
      participate in any security now or hereafter held by Administrative Agent for
      the benefit of Lenders. Further, Guarantor consents to the taking of, or failure
      to take, any action which might in any manner or to any extent vary the risks
      of
      Guarantor under this Guaranty or which, but for this provision, might operate
      as
      a discharge of Guarantor. 

     

    7. Exhaustion
      of Other Remedies Not Required.
      The
      obligations of Guarantor hereunder are those of primary obligor, and not merely
      as surety, and are independent of the Guaranteed Obligations. Guarantor waives
      diligence by Administrative Agent or any Lender and action on delinquency in
      respect of the Guaranteed Obligations or any part thereof, including, without
      limitation any provisions of law requiring Administrative Agent or any Lender
      to
      exhaust any right or remedy or to take any action against Borrower, any other
      guarantor or any other person, entity or property before enforcing this Guaranty
      against Guarantor. 

     

    8. Reinstatement.
      Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall
      continue to be effective or be reinstated, as the case may be, if at any time
      any payment of any portion of the Guaranteed Obligations is revoked, terminated,
      rescinded or reduced or must otherwise be restored or returned upon the
      insolvency, bankruptcy or reorganization of Borrower or any other person or
      entity or otherwise, as if such payment had not been made and whether or not
      the
      Lender is in possession of or has released this Guaranty and regardless of
      any
      prior revocation, rescission, termination or reduction. 

     

    9. Subordination.
      Guarantor hereby subordinates the payment of all obligations and indebtedness
      of
      Borrowers owing to Guarantor, whether now existing or hereafter arising,
      including but not limited to any obligation of Borrower to Guarantor as subrogee
      of Administrative Agent or any Lender or resulting from Guarantor’s performance
      under this Guaranty, to the indefeasible payment in full of all Guaranteed
      Obligations. If Administrative Agent or any Lender so requests, any such
      obligation or indebtedness of Borrower to Guarantor shall be enforced and
      performance received by Guarantor as trustee for Administrative Agent or any
      Lender and the proceeds thereof shall be paid over to Administrative Agent
      or
      any Lender on account of the Guaranteed Obligations, but without reducing or
      affecting in any manner the liability of Guarantor under this
      Guaranty.

     

    10. Information.
      Guarantor agrees to furnish promptly to Administrative Agent or any Lender
      any
      and all financial or other information regarding such Guarantor or its property
      as Administrative Agent or any Lender may reasonably request in
      writing.

     

    11. Stay
      of Acceleration.
      In the
      event that acceleration of the time for payment of any of the Guaranteed
      Obligations is stayed, upon the insolvency, bankruptcy or reorganization of
      Borrower or any other person or entity, or otherwise, all such amounts shall
      nonetheless be payable by Guarantor immediately upon demand by Administrative
      Agent or any Lender. 

     

    12. Expenses.
      Guarantor shall pay on demand all out-of-pocket expenses (including reasonable
      attorneys’ fees and expenses and the allocated cost and disbursements of
      internal legal 

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    counsel)
      in any way relating to the enforcement or protection of the rights of
      Administrative Agent or any Lender under this Guaranty, including any incurred
      in the preservation, protection or enforcement of any rights of Administrative
      Agent or any Lender in any case commenced by or against Guarantor under the
      Bankruptcy Code (Title 11, United States Code) or any similar or successor
      statute. The obligations of Guarantor under the preceding sentence shall survive
      termination of this Guaranty.

     

    13. Amendments.
      No
      provision of this Guaranty may be waived, amended, supplemented or modified,
      except by a written instrument executed by Administrative Agent for the benefit
      of the Lender and Guarantor. 

     

    14. No
      Waiver; Enforceability.
      No
      failure by Administrative Agent or any Lender to exercise, and no delay in
      exercising, any right, remedy or power hereunder shall operate as a waiver
      thereof; nor shall any single or partial exercise of any right, remedy or
      power hereunder
      preclude any other or
      further exercise thereof or the exercise of any other right. The remedies herein
      provided are cumulative and not exclusive of any remedies provided by law or
      in
      equity. The unenforceability or invalidity of any provision of this Guaranty
      shall not affect the enforceability or validity of any other provision herein.
      

     

    15. Assignment;
      Governing Laws; Jurisdiction.
      This
      Guaranty shall (a) bind Guarantor and its successors and assigns, provided that
      Guarantor may not assign its rights or obligations under this Guaranty without
      the prior written consent of Administrative Agent and Lenders (and any attempted
      assignment without such consent shall be void), (b) inure to the benefit of
      Administrative Agent and Lenders and its successors and assigns and
      Administrative Agent or any Lender may, without notice to Guarantor and without
      affecting Guarantor’s obligations hereunder, assign or sell participations in
      the Guaranteed Obligations and this Guaranty, in whole or in part, and (c)
      be
      governed by the internal laws of the State of New York without application
      of
      its conflicts of laws principles. Guarantor hereby irrevocably (i) submits
      to
      the non-exclusive jurisdiction of any United States Federal or State court
      sitting in New York, New York in any action or proceeding arising out of or
      relating to this Guaranty, and (ii) waives to the fullest extent permitted
      by
      law any defense asserting an inconvenient forum in connection therewith. Service
      of process by Administrative Agent or any Lender in connection with such action
      or proceeding shall be binding on Guarantor if sent to such Guarantor by
      registered or certified mail at its address specified in Schedule 10.02
      of the
      Credit Agreement. Guarantor agrees that Administrative Agent or any Lender
      may
      disclose to any prospective purchaser and any purchaser of all or part of the
      Guaranteed Obligations any and all information in the possession of
      Administrative Agent or any Lender concerning Guarantor, this Guaranty and
      any
      security for this Guaranty.

     

    16. Condition
      of Borrower. Guarantor
      acknowledges and agrees that it has the sole responsibility for, and has
      adequate means of, obtaining from Borrower such information concerning the
      financial condition, business and operations of Borrower as such Guarantor
      requires, and that neither Administrative Agent nor any Lender has any duty,
      and
      Guarantor is not relying on Administrative Agent or any Lender at any time,
      to
      disclose to Guarantor any information relating to the business, operations
      or
      financial condition of Borrower.

     

    17. Setoff.
      If and
      to the extent any payment is not made when due hereunder, Administrative Agent
      and each Lender may setoff and charge from time to time any amount so due
      against any or all of Guarantor’s accounts or deposits with Administrative Agent
      or such Lender.

     

    18. Other
      Guarantees.
      Unless
      otherwise agreed by Administrative Agent and Lenders and Guarantor in writing,
      this Guaranty is not intended to supersede or otherwise affect any
      other

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    guaranty
      now or hereafter given by Guarantor for the benefit of the Lender or any term
      or
      provision thereof.

     

    19. Representations
      and Warranties.
      Guarantor represents and warrants that (a) it is duly organized and in good
      standing under the laws of the jurisdiction of its organization and has full
      capacity and right to make and perform this Guaranty, and all necessary
      authority has been obtained; (b) this Guaranty constitutes its legal, valid
      and
      binding obligation enforceable in accordance with its terms; (c) the making
      and
      performance of this Guaranty does not and will not violate the provisions of
      any
      applicable law, regulation or order, and does not and will not result in the
      breach of, or constitute a default or require any consent under, any material
      agreement, instrument, or document to which it is a party or by which it or
      any
      of its property may be bound or affected; (d) all consents, approvals, licenses
      and authorizations of, and filings and registrations with, any governmental
      authority required under applicable law and regulations for the making and
      performance of this Guaranty have been obtained or made and are in full force
      and effect; (e) by virtue of its relationship with Borrower, the execution,
      delivery and performance of this Guaranty is for the direct benefit of Guarantor
      and each has received adequate consideration for this Guaranty; and (f) the
      financial information that has been delivered to Lenders by or on behalf of
      Guarantor is complete and correct in all respects and accurately presents the
      financial condition and the operational results of such Guarantor and since
      the
      date of the most recent financial statements delivered to Lenders, there has
      been no material adverse change in the financial condition or operational
      results of such Guarantor.

     

    20. Loan
      Documents.
      By
      execution hereof, Guarantor covenants and agrees that certain representations
      and warranties set forth in the Loan Documents are applicable to Guarantor,
      and
      Guarantor reaffirms that each such representation and warranty is true and
      correct in every material respect. Guarantor acknowledges and agrees that this
      Guaranty is subject to the offset provisions of the Loan Documents in favor
      of
      Administrative Agent. If the Credit Agreement shall cease to remain in effect
      for any reason whatsoever during any period and any part of the Guaranteed
      Obligations remain unpaid, then the terms, covenants, and agreements
      incorporated herein by reference shall nevertheless continue in full force
      and
      effect as obligations of Guarantor under this Guaranty. Guarantor shall take,
      or
      refrain from taking, as the case may be, each action that is necessary to be
      taken or not taken, as the case may be, so that no Event of Default is caused
      by
      the failure to take or refrain from taking such action, as the case may
      be.

     

    21. Authority
      of Administrative Agent.
      Guarantor acknowledges that the rights and responsibilities of Administrative
      Agent under this Guaranty with respect to any action taken by Administrative
      Agent or the exercise or non-exercise by Administrative Agent of any option,
      right, request, judgment or other right or remedy provided for herein or
      resulting or arising out of this Guaranty shall, as between Administrative
      Agent
      and Lenders, be governed by the Credit Agreement and by such other agreements
      with respect thereto as may exist from time to time among them, but, as between
      Administrative Agent and such Guarantor, Administrative Agent shall be
      conclusively presumed to be acting as agent for Lenders with full and valid
      authority so to act or refrain from acting, and no Guarantor shall be under
      any
      obligation, or entitlement, to make any inquiry respecting such authority.
      

     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    22. WAIVER
      OF JURY TRIAL; AND FINAL AGREEMENT. TO
      THE
      EXTENT ALLOWED BY APPLICABLE LAW, GUARANTOR, THE ADMINISTRATIVE AGENT AND EACH
      LENDER EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR
      PROCEEDING ON OR ARISING OUT OF THIS GUARANTY. THIS GUARANTY REPRESENTS THE
      FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
      OF
      PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
      THERE
      ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

     

    23. Counterparts.
      This
      Guaranty may be executed by one or more of the parties hereto on any number
      of
      separate counterparts and all of the said counterparts taken together shall
      be
      deemed to constitute one and the same instrument.

     

    Remainder
      of Page Intentionally Blank.

    Signature
      Pages Follow.

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly executed
      and delivered as of the date first above written.

    


    GUARANTOR:

    


    CNL
      HOTELS & RESORTS, INC.,
      a
      Maryland corporation

    


    


    By: 

    Name:

    Title:

    


    


    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      F-2

    


    FORM
      OF SUBSIDIARY GUARANTY

    


    this
      SUBSIDIARY guaranty agreement (this “Guaranty”)
      is
      entered into as of September 30, 2005, by each of the Subsidiaries listed
      on Schedule 1
      attached
      hereto (collectively,
      “Guarantors”
      and
      each individually, a “Guarantor”),
      in
      favor of Bank of America, N.A., as administrative agent (in such capacity,
      “Administrative
      Agent”)
      for
      the banks and other financial institutions (“Lenders”)
      that
      are parties to the Credit Agreement described below.

     

    CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      is a
      party to the Credit Agreement dated as of the date of this Agreement (as the
      same may be amended, supplemented or modified from time to time, the
“Credit
      Agreement”)
      among
      Borrower, CNL Hotels and Resorts, Inc., Lenders, and Administrative Agent,
      pursuant to which Lenders have agreed, among other things, to make Loans to
      Borrower. Capitalized terms not defined herein shall have the meanings assigned
      to such terms in the Credit Agreement.

     

    Borrower
      is a member of an affiliated group of entities that includes each Guarantor;
      

     

    Borrower
      and Guarantors are engaged in related businesses, and each Guarantor will derive
      substantial direct and indirect benefit from the making of the
      Loans;

     

    It
      is a
      condition precedent to the obligations of Lenders to make the Loans that
      Guarantors shall execute and deliver this Guaranty in favor of Administrative
      Agent for the benefit of Lenders;

     

    NOW
      THEREFORE, FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged,
      and in consideration of the Loans, any credit and/or financial accommodation
      heretofore or hereafter from time to time made or granted to Borrower under
      the
      Loan Documents by Administrative Agent and Lenders, each of the undersigned
      Guarantors hereby jointly and severally furnishes its guaranty of the Guaranteed
      Obligations (as hereinafter defined) as follows:

    


    1. Guaranty.
      Each of
      the GGuarantors
      hereby, jointly and severally, absolutely, irrevocably and unconditionally
      guarantees, as a guarantee of payment and not merely as a guarantee of
      collection, prompt payment when due, whether at stated maturity, upon
      acceleration or otherwise, and at all times thereafter, of the Obligations
      and
      any and all other existing and future indebtedness and liabilities of every
      kind, nature and character, direct or indirect, absolute or contingent,
      liquidated or unliquidated, voluntary or involuntary, of Borrower to
      Administrative Agent and Lenders arising under the Credit Agreement and the
      Loan
      Documents and all instruments, agreements and other documents of every kind
      and
      nature now or hereafter executed in connection with any Loan Document (including
      all renewals, extensions and modifications thereof and all costs, attorneys’
      fees and expenses incurred by the Lender in connection with the collection
      or
      enforcement thereof) (collectively, the “Guaranteed
      Obligations”)
      irrespective of any law affecting the Guaranteed Obligations. The books and
      records of Administrative Agent or any Lender showing the amount of the
      Guaranteed Obligations shall be admissible in evidence in any action or
      proceeding, and shall be binding upon Guarantor and conclusive for the purpose
      of establishing the amount of the Guaranteed Obligations. This Guaranty shall
      not be affected by the genuineness, validity, regularity or enforceability
      of
      the Guaranteed Obligations or any instrument or agreement evidencing any
      Guaranteed Obligations, or by the existence, validity, enforceability,
      perfection, or extent of any collateral therefor, or by any fact or circumstance
      relating to the Guaranteed Obligations which might otherwise constitute a
      defense to the obligations of any Guarantor under this Guaranty. Notwithstanding
      any contrary provision, it is the intention of each Guarantor and Administrative
      Agent that the amount of the Guaranteed Obligations guaranteed by each Guarantor
      by this Guaranty shall be in, but not in excess of, the maximum amount permitted
      by fraudulent conveyance, fraudulent transfer, or similar laws applicable to
      each Guarantor. Accordingly, notwithstanding anything to the contrary contained
      in this Guaranty or any other agreement or instrument executed in connection
      with the payment of any of the Guaranteed Obligations, the amount of the
      Guaranteed Obligations guaranteed by each Guarantor by this Guaranty shall
      be
      limited to an aggregate amount equal to the largest amount that would not render
      each Guarantor’s obligations hereunder subject to avoidance under Section 548
      of
      the
United
      States Bankruptcy Code or
      any
      comparable provision of any applicable state law. 

     

    2. No
      Setoff or Deductions; Taxes.
      Each
      Guarantor represents and warrants that it is incorporated or formed, and resides
      in, the United States of America. All payments by each Guarantor hereunder
      shall
      be paid in full, without setoff or counterclaim or any deduction or withholding
      whatsoever, including, without limitation, for any and all present and future
      taxes. If each Guarantor must make a payment under this Guaranty, each Guarantor
      represents and warrants that it will make the payment from one of its U.S.
      resident offices to Administrative Agent or each Lender so that no withholding
      tax is imposed on the payment. If notwithstanding the foregoing, each Guarantor
      makes a payment under this Guaranty to which withholding tax applies, or any
      taxes (other than taxes on net income (a) imposed by the country or any
      subdivision of the country in which the principal office or actual lending
      office of Administrative Agent or any Lender is located and (b) measured by
      the
      United States taxable income of Administrative Agent or any Lender would have
      received if all payments under or in respect of this Guaranty were exempt from
      taxes levied by such Guarantor’s country) are at any time imposed on any
      payments under or in respect of this Guaranty including, but not limited to,
      payments made pursuant to this Paragraph
      2,
      each
      Guarantor shall pay all such taxes to the relevant authority in accordance
      with
      applicable law such that Administrative Agent or any Lender receives the sum
      it
      would have received had no such deduction or withholding been
      made and
      shall also pay to Administrative Agent or any Lender, on demand, all additional
      amounts which Administrative Agent or any Lender specifies as necessary to
      preserve the after-tax yield Administrative Agent or such Lender would have
      received if such taxes had not been imposed. Each Guarantor shall promptly
      provide Administrative Agent or any Lender with an original receipt or certified
      copy issued by the relevant authority evidencing the payment of any such amount
      required to be deducted or withheld.

     

    3. No
      Termination.
      This
      Guaranty is a continuing and irrevocable guaranty of all Guaranteed Obligations
      now or hereafter existing and shall remain in full force and effect until all
      Guaranteed Obligations and any other amounts payable under this Guaranty are
      indefeasibly paid and performed in full and any commitments of the Lender or
      facilities provided by the Lender with respect to the Guaranteed Obligations
      are
      terminated. At Administrative Agent or any Lender’s option, all payments under
      this Guaranty shall be made
      to an
      office of Administrative
      Agent or any Lender
      located
      in the
      United States and in Dollars.

     

    4. Waiver
      of Notices.
      Each
      Guarantor waives notice of the acceptance of this Guaranty and of the extension
      or continuation of the Guaranteed Obligations or any part thereof. Each
      Guarantor further waives presentment, protest, notice, dishonor or default,
      notice of intention to accelerate, notice of acceleration, demand for payment
      and any other notices to which each Guarantor might otherwise be
      entitled.

     

    5. Subrogation.
      Each
      Guarantor shall exercise no right of subrogation, contribution or similar rights
      with respect to any payments it makes under this Guaranty until all of the
      Guaranteed Obligations and any amounts payable under this Guaranty are
      indefeasibly paid and performed in full and any commitments of Lenders or
      facilities provided by Lenders with respect to the Guaranteed Obligations are
      terminated. If any amounts are paid to any Guarantor in violation of the
      foregoing limitation, then 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    such
      amounts shall be held in trust for the benefit of Lenders and shall forthwith
      be
      paid to Lenders to reduce the amount of the Guaranteed Obligations, whether
      matured or unmatured.

     

    6. Waiver
      of Suretyship Defenses.
      Each
      Guarantor agrees that Lenders may, at any time and from time to time, and
      without notice to any Guarantor, make any agreement with Borrower or with any
      other person or entity liable on any of the Guaranteed Obligations or providing
      collateral as security for the Guaranteed Obligations, for the extension,
      renewal, payment, compromise, discharge or release of the Guaranteed Obligations
      or any Collateral (in whole or in part), or for any modification or amendment
      of
      the terms thereof or of any instrument or agreement evidencing the Guaranteed
      Obligations or the provision of Collateral, any change in the corporate
      existence or structure of Borrower, any law, regulation, decree, or order,
      or
      any other event affecting any term of the Guaranteed Obligations, all without
      in
      any way impairing, releasing, discharging or otherwise affecting the obligations
      of Guarantors under this Guaranty. Each Guarantor waives any defense arising
      by
      reason of any disability or other defense of Borrower or any other guarantor,
      or
      the cessation from any cause whatsoever of the liability of Borrower, or any
      claim that each Guarantor’s obligations exceed or are more burdensome than those
      of Borrower and waives the benefit of any statute of limitations affecting
      the
      liability of each Guarantor hereunder to the fullest extent permitted by law.
      Each Guarantor waives any right to enforce any remedy which Administrative
      Agent
      or any Lender now has or may hereafter have against Borrower and waives any
      benefit of and any right to participate in any security now or hereafter held
      by
      Administrative Agent for the benefit of Lenders. Further, each Guarantor
      consents to the taking of, or failure to take, any action which might in any
      manner or to any extent vary the risks of each Guarantor under this Guaranty
      or
      which, but for this provision, might operate as a discharge of each Guarantor.
      

     

    7. Exhaustion
      of Other Remedies Not Required.
      The
      obligations of each Guarantor hereunder are those of primary obligor, and not
      merely as surety, and are independent of the Guaranteed Obligations. Each
      Guarantor waives diligence by Administrative Agent or any Lender and action
      on
      delinquency in respect of the Guaranteed Obligations or any part thereof,
      including, without limitation any provisions of law requiring Administrative
      Agent or any Lender to exhaust any right or remedy or to take any action against
      Borrower, any other guarantor or any other person, entity or property before
      enforcing this Guaranty against each Guarantor. 

     

    8. Reinstatement.
      Notwithstanding anything in this Guaranty to the contrary, this Guaranty shall
      continue to be effective or be reinstated, as the case may be, if at any time
      any payment of any portion of the Guaranteed Obligations is revoked, terminated,
      rescinded or reduced or must otherwise be restored or returned upon the
      insolvency, bankruptcy or reorganization of Borrower or any other person or
      entity or otherwise, as if such payment had not been made and whether or not
      the
      Lender is in possession of or has released this Guaranty and regardless of
      any
      prior revocation, rescission, termination or reduction. 

     

    9. Subordination.
      Each
      Guarantor hereby subordinates the payment of all obligations and indebtedness
      of
      Borrowers owing to each Guarantor, whether now existing or hereafter arising,
      including but not limited to any obligation of Borrower to any Guarantor as
      subrogee of Administrative Agent or any Lender or resulting from each
      Guarantor’s performance under this Guaranty, to the indefeasible payment in full
      of all Guaranteed Obligations. If Administrative Agent or any Lender so
      requests, any such obligation or indebtedness of Borrower to each Guarantor
      shall be enforced and performance received by each Guarantor as trustee for
      Administrative Agent or any Lender and the proceeds thereof shall be paid over
      to Administrative Agent or any Lender on account of the Guaranteed Obligations,
      but without reducing or affecting in any manner the liability of each Guarantor
      under this Guaranty.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    10. Information.
      Each
      Guarantor agrees to furnish promptly to Administrative Agent or any Lender
      any
      and all financial or other information regarding such Guarantor or its property
      as Administrative Agent or any Lender may reasonably request in
      writing.

     

    11. Stay
      of Acceleration.
      In the
      event that acceleration of the time for payment of any of the Guaranteed
      Obligations is stayed, upon the insolvency, bankruptcy or reorganization of
      Borrower or any other person or entity, or otherwise, all such amounts shall
      nonetheless be payable by each Guarantor immediately upon demand by
      Administrative Agent or any Lender. 

     

    12. Expenses.
      Each
      Guarantor shall pay on demand all out-of-pocket expenses (including reasonable
      attorneys’ fees and expenses and the allocated cost and disbursements of
      internal legal counsel) in any way relating to the enforcement or protection
      of
      the rights of Administrative Agent or any Lender under this Guaranty, including
      any incurred in the preservation, protection or enforcement of any rights of
      Administrative Agent or any Lender in any case commenced by or against any
      Guarantor under the Bankruptcy Code (Title 11, United States Code) or any
      similar or successor statute. The obligations of Guarantor under the preceding
      sentence shall survive termination of this Guaranty.

     

    13. Amendments.
      No
      provision of this Guaranty may be waived, amended, supplemented or modified,
      except by a written instrument executed by Administrative Agent for the benefit
      of the Lender and each Guarantor. 

     

    14. No
      Waiver; Enforceability.
      No
      failure by Administrative Agent or any Lender to exercise, and no delay in
      exercising, any right, remedy or power hereunder shall operate as a waiver
      thereof; nor shall any single or partial exercise of any right, remedy or
      power hereunder
      preclude any other or
      further exercise thereof or the exercise of any other right. The remedies herein
      provided are cumulative and not exclusive of any remedies provided by law or
      in
      equity. The unenforceability or invalidity of any provision of this Guaranty
      shall not affect the enforceability or validity of any other provision herein.
      

     

    15. Assignment;
      Governing Laws; Jurisdiction.
      This
      Guaranty shall (a) bind each Guarantor and its successors and assigns,
provided that
      each
      Guarantor may not assign its rights or obligations under this Guaranty without
      the prior written consent of Administrative Agent and Lenders (and any attempted
      assignment without such consent shall be void), (b) inure to the benefit of
      Administrative Agent and Lenders and its successors and assigns and
      Administrative Agent or any Lender may, without notice to any Guarantor and
      without affecting any Guarantor’s obligations hereunder, assign or sell
      participations in the Guaranteed Obligations and this Guaranty, in whole or
      in
      part, and (c) be governed by the internal laws of the State of New York without
      application of its conflicts of laws principles. Each Guarantor hereby
      irrevocably (i) submits to the non-exclusive jurisdiction of any United States
      Federal or State court sitting in New York, New York in any action or proceeding
      arising out of or relating to this Guaranty, and (ii) waives to the fullest
      extent permitted by law any defense asserting an inconvenient forum in
      connection therewith. Service of process by Administrative Agent or any Lender
      in connection with such action or proceeding shall be binding on each Guarantor
      if sent to such Guarantor by registered or certified mail at its address
      specified in Schedule 10.02
      of the
      Credit Agreement. Each Guarantor agrees that Administrative Agent or any Lender
      may disclose to any prospective purchaser and any purchaser of all or part
      of
      the Guaranteed Obligations any and all information in the possession of
      Administrative Agent or any Lender concerning each Guarantor, this Guaranty
      and
      any security for this Guaranty.

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


     

    16. Condition
      of Borrower. Each
      Guarantor acknowledges and agrees that it has the sole responsibility for,
      and
      has adequate means of, obtaining from Borrower such information concerning
      the
      financial condition, business and operations of Borrower as such Guarantor
      requires, and that neither Administrative Agent nor any Lender has any duty,
      and
      each Guarantor is not relying on Administrative Agent or any Lender at any
      time,
      to disclose to each Guarantor any information relating to the business,
      operations or financial condition of Borrower.

     

    17. Setoff.
      If and
      to the extent any payment is not made when due hereunder, Administrative Agent
      and each Lender may setoff and charge from time to time any amount so due
      against any or all of Guarantors’ accounts or deposits with Administrative Agent
      or such Lender.

     

    18. Other
      Guarantees.
      Unless
      otherwise agreed by Administrative Agent and Lenders and Guarantors in writing,
      this Guaranty is not intended to supersede or otherwise affect any other
      guaranty now or hereafter given by Guarantors for the benefit of the Lender
      or
      any term or provision thereof.

     

    19. Representations
      and Warranties.
      Each
      Guarantor represents and warrants that (a) it is duly organized and in good
      standing under the laws of the jurisdiction of its organization and has full
      capacity and right to make and perform this Guaranty, and all necessary
      authority has been obtained; (b) this Guaranty constitutes its legal, valid
      and
      binding obligation enforceable in accordance with its terms; (c) the making
      and
      performance of this Guaranty does not and will not violate the provisions of
      any
      applicable law, regulation or order, and does not and will not result in the
      breach of, or constitute a default or require any consent under, any material
      agreement, instrument, or document to which it is a party or by which it or
      any
      of its property may be bound or affected; (d) all consents, approvals, licenses
      and authorizations of, and filings and registrations with, any governmental
      authority required under applicable law and regulations for the making and
      performance of this Guaranty have been obtained or made and are in full force
      and effect; (e) by virtue of its relationship with Borrower, the execution,
      delivery and performance of this Guaranty is for the direct benefit of each
      Guarantor and each has received adequate consideration for this Guaranty; and
      (f) the financial information that has been delivered to Lenders by or on behalf
      of each Guarantor is complete and correct in all respects and accurately
      presents the financial condition and the operational results of such Guarantor
      and since the date of the most recent financial statements delivered to Lenders,
      there has been no material adverse change in the financial condition or
      operational results of such Guarantor.

     

    20. Loan
      Documents. By
      execution hereof, each Guarantor covenants and agrees that certain
      representations and warranties set forth in the Loan Documents are applicable
      to
      Guarantors, and each Guarantor reaffirms that each such representation and
      warranty is true and correct in every material respect. Each Guarantor
      acknowledges and agrees that this Guaranty is subject to the offset provisions
      of the Loan Documents in favor of Administrative Agent. If the Credit Agreement
      shall cease to remain in effect for any reason whatsoever during any period
      and
      any part of the Guaranteed Obligations remain unpaid, then the terms, covenants,
      and agreements incorporated herein by reference shall nevertheless continue
      in
      full force and effect as obligations of each Guarantor under this Guaranty.
      Each
      Guarantor shall take, or refrain from taking, as the case may be, each action
      that is necessary to be taken or not taken, as the case may be, so that no
      Event
      of Default is caused by the failure to take or refrain from taking such action,
      as the case may be. 

     

    21. Authority
      of Administrative Agent.
      Each
      Guarantor acknowledges that the rights and responsibilities of Administrative
      Agent under this Guaranty with respect to any action taken by 

     

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    Administrative
      Agent or the exercise or non-exercise by Administrative Agent of any option,
      right, request, judgment or other right or remedy provided for herein or
      resulting or arising out of this Guaranty shall, as between Administrative
      Agent
      and Lenders, be governed by the Credit Agreement and by such other agreements
      with respect thereto as may exist from time to time among them, but, as between
      Administrative Agent and such Guarantor, Administrative Agent shall be
      conclusively presumed to be acting as agent for Lenders with full and valid
      authority so to act or refrain from acting, and no Guarantor shall be under
      any
      obligation, or entitlement, to make any inquiry respecting such authority.
      

     

    22. Additional
      Guarantors.
      From
      time to time subsequent to the time hereof, additional Subsidiaries of Parent
      may become parties hereto as additional guarantors (each an “Additional
      Guarantor”)
      by
      executing a counterpart of this Guaranty in the form of Exhibit A
      attached
      hereto. Upon delivery of any such counterpart to Administrative Agent, notice
      of
      which is hereby waived by Guarantors, each such Additional Guarantor shall
      be a
      Guarantor and shall be a party hereto as if such Additional Guarantor were
      an
      original signatory hereof. Each Guarantor expressly agrees that its obligations
      arising hereunder shall not be affected or diminished by the addition or release
      of any other Guarantor hereunder, or by any election by Administrative Agent
      not
      to cause any Subsidiaries of Borrower to become an Additional Guarantor
      hereunder. This Guaranty shall be fully effective as to any Guarantor that
      is or
      becomes a party hereto regardless of whether any such person becomes or fails
      to
      become or ceases to be a Guarantor hereunder.

     

    23. WAIVER
      OF JURY TRIAL; AND FINAL AGREEMENT. TO
      THE
      EXTENT ALLOWED BY APPLICABLE LAW, EACH GUARANTOR, THE ADMINISTRATIVE AGENT
      AND
      EACH LENDER EACH WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT
      OR
      PROCEEDING ON OR ARISING OUT OF THIS GUARANTY. THIS GUARANTY REPRESENTS THE
      FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
      OF
      PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
      THERE
      ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

     

    24. Counterparts.
      This
      Guaranty may be executed by one or more of the parties hereto on any number
      of
      separate counterparts and all of the said counterparts taken together shall
      be
      deemed to constitute one and the same instrument.

     

    Remainder
      of Page Intentionally Blank.

    Signature
      Pages Follow.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    IN
      WITNESS WHEREOF, each of the undersigned has caused this Guaranty to be duly
      executed and delivered as of the date first above written.

    


     

    
      	
              GUARANTORS:

            
	 
	
              [TO
                BE PROVIDED]

            


    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    
      	
              SCHEDULE
                1

            
	 
	 
	 
	 
	 
	 


    

    


    


    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      A

    


    Subsidiary
      Guaranty

    


    COUNTERPART
      TO CONTINUING GUARANTY

    


    In
      witness whereof, the undersigned Additional Guarantor has caused this Guaranty
      to be executed by delivered by its officer thereunto duly authorized as of
          ,
      20____.

    


    


    


     

    [NAME
      OF ADDITIONAL GUARANTOR]

    


    


    


    By:      

    Name:      

    Title: 
           

    


    
      	
              Address
                for Notice:

            
	
               

            
	 
	 
	 
	 


    

    


     

    


    


    


    


    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      G

    


    BORROWING
      BASE REPORT

    


     

    REPORTING
      DATE:
        

     

    
      	
              To:

            	
              Bank
                of America, N.A., as Administrative
                Agent

            


    

     

    Ladies
      and Gentlemen:

     

    Reference
      is made to that certain Credit Agreement, dated as of September 30,
      2005
      (as amended, restated, extended, supplemented, or otherwise modified in writing
      from time to time, the “Agreement;”
      the
      terms defined therein being used herein as therein defined), among CNL
      Hospitality Partners, LP, a Delaware limited partnership (“Borrower”),
      CNL
      Hotels & Resorts, Inc., a Maryland corporation, the Lenders from time to
      time party thereto, and Bank of America, N.A., as Administrative Agent and
      L/C
      Issuer.

     

    The
      undersigned hereby certifies and warrants to Administrative Agent and Lenders
      on
      behalf of Borrower as follows:

     

    
      	
              I.

            	
              I
                am a duly qualified and acting Responsible Officer of Borrower, and
                I am
                familiar with the financial statements and financial affairs of the
                Loan
                Parties. I am authorized to execute this Borrowing Base Report on
                behalf
                of the Loan Parties.

            


    

     

    
      	
              II.

            	
              Attached
                hereto as Schedule 1
                are true and correct computations of the Borrowing Base and the Borrowing
                Base Debt Service Coverage Ratio under the Credit Agreement as of
                the date
                set forth below.

            


    

     

    Borrower
      further represents and warrants to Administrative Agent and Lenders that the
      representations and warranties contained in Article VI
      of the
      Credit Agreement are true and correct in all material respects on and as of
      the
      date of this Borrowing Base Report as if made on and as of the date hereof
      (except to the extent that such representations and warranties expressly refer
      to an earlier date, in which case they shall be true and correct in all material
      respects as of such earlier date and except to the extent that (a)
      Administrative Agent and Lenders have been notified in writing by Borrower
      that
      any representation or warranty is not correct and the Required Lenders have
      explicitly waived in writing compliance with such representation or warranty
      or
      (b) any representation or warranty has been qualified by the updated information
      reflected in, and as permitted under, the Compliance Certificate submitted
      by
      Borrower to Administrative Agent periodically), and that no Event of Default
      or
      Default has occurred and is continuing, except as disclosed in an attachment
      to
      this Borrowing Base Report.

     

    IN
      WITNESS WHEREOF, Borrower has caused this Borrowing Base Report to be executed
      and delivered on this ___ day of __________, 200_.

     

    


    
      
        
        

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    


    


     

    


    
      	 	 	 BORROWER:
	 	
               

              CNL HOSPITALITY PARTNERS, LP, a Delware
                limited partnership

            
	 
 	 
 	
              
By:
                CNL HOSPITALITY GP CORP., a Delware
                corporation, it  General Partner

               

            
	 	By:  	/s/ 
	 	
              
Name:
	 	Title 


    

    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    
      	
              SCHEDULE
                1 to Borrowing Base Report

               

            
	
              (See
                attached computations of the Borrowing Base and the Borrowing Base
                Debt
                Service Coverage Ratio)

               

            
	
              [Form
                to be Agreed to by Administrative Agent and Borrower]

               

            


    

    


     

    


    


     

    


    
      
        
           

        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

    



    EXHIBIT
      H

    


    SURVEY
      REQUIREMENTS

    


    1. Field
      Note Description.
      The
      Survey shall contain a certified metes and bounds description complying with
      the
      following: (a) the beginning point shall be established by a monument located
      at
      the beginning point, or by reference to a nearby monument; (b) the sides of
      the
      Land shall be described by giving the distances and bearings of each; (c) the
      distances, bearings, and angles shall be taken from an instrument survey by
      a
      registered professional engineer or registered professional land surveyor;
      (d)
      curved sides shall be described by data including: length of arc, central angle,
      radius of circle for the arc and chord distance, and bearing; (e) the
      description shall be a single perimeter description of the entire Land, if
      and
      as instructed, there shall also be a separate metes and bounds description
      of
      one or more constituent tracts out of the Land; (f) the description shall
      include a reference to all streets, alleys, and other rights-of-way that abut
      the Land, and the width of all rights-of-way mentioned shall be given the first
      time these rights-of-way are referred to; (g) for each boundary line abutting
      a
      street, road, alley or other means of access, the description must, in calling
      the boundary line, state that the boundary line and the right-of-way line are
      the same; (h) if the Land has been recorded on a map or plat as part of an
      abstract or subdivision, reference to such recording data shall be made; and
      (i)
      the total acreage and square footage of the Land shall be
      certified.

     

    2. Lot
      and Block Description.
      If the
      Land consists of one or more complete lots or blocks included within a properly
      established recorded subdivision or addition, then a lot and block description
      will be an acceptable substitute for a metes and bounds description,
provided that
      the lot
      and block description must completely and properly identify the name or
      designation of the recorded subdivision or addition and give the recording
      information therefor.

     

    3. Map
      or
      Plat.
      The
      Survey shall also contain a certified map or plat clearly showing the following:
      (a) the Land; (b) the relation of the point of beginning of the Land to the
      monument from which it is fixed; (c) all easements, streets, roads, alleys
      and
      rights-of-way on or abutting the Land, showing recording information therefor
      by
      volume and page; (d) if the Land has been recorded on a map or plat as part
      of
      an abstract or subdivision, all survey lines must be shown, and all lot and
      block lines (with distances and bearings) and numbers, must be shown; (e) the
      established building setback lines, if any, including those by restrictive
      covenant, recorded plat and zoning ordinance (identifying the source in each
      case, by volume and page reference if applicable); (f) all easements appurtenant
      to said Land, with recording information by volume and page; (g) the boundary
      lines of the street or streets abutting the Land and the width of said streets
      and the width of the rights-of-way therefor; (h) the distance from the nearest
      intersecting street or road to the Land; (i) all structures and improvements
      on
      the Land (with designation and dimensions thereof and of each party wall, if
      any) with horizontal lengths of all sides and the relation thereof by distances
      to (1) all boundary lines of the Land, (2) easements, (3) established building
      lines, and (4) street lines; (j) the types of materials comprising the exterior
      walls and roofs of all buildings; (k) all street addresses of improvements
      on
      the Land; (l) all curb cuts, driveways, fences, sidewalks, stoops and
      landscaping; (m) the number of stories of all multi-story structures; (n) the
      location, type and size of all utility lines as they service the Land and
      Improvements (sewer, water, gas, electric and telephone); (o) all encroachments
      and protrusions, if any, from or upon the Land or any improvements thereon
      or
      upon any easement, building setback line or other restricted area, with exact
      measurements; (p) all parking and paved areas, including the number of vehicles
      that may be parked; (q) all distances, angles and other calls contained in
      the
      legal description; (r) the location, type and size of all monuments, and as
      to
      each monument, indication whether it was found or placed by the surveyor; (s)
      the boundaries of any flood hazard area or flood plain area in which any part
      of
      the Land lies, with the map number, date and source (Tribunal) of each flood
      map
      shown; (t) all surface water bodies or courses; (u) the date of any revisions
      subsequent to the initial survey prepared pursuant to these requirements; (v)
      a
      legend explaining the meaning of all symbols used on the plat; and (w) the
      scale
      of all distances and dimensions on the plat.

     

    4. Certification.
      The
      certification for the property description and the map or plat shall be
      addressed to Administrative Agent for the benefit of Lenders, Borrower and
      the
      Title Insurer, signed by the surveyor (a registered professional land surveyor
      or registered professional engineer), bearing current date, registration number,
      and seal, and shall be in the following form or its substantial
      equivalent:

     

    This
      is
      to certify to Lenders, Borrower and Title Insurer that this map or plat and
      the
      survey on which it is based were made in accordance with "Minimum Standard
      Detail Requirements for ALTA/ACSM Land Title Surveys" jointly established and
      adopted by ALTA, ACSM and NSPS in 1999, and pursuant to the Accuracy Standards
      as
      adopted by ALTA, NSPS and ACSM and in effect on the date of this certification.
      The undersigned hereby certifies that the Positional Uncertainties resulting
      from the survey measurements made on the survey do not exceed the allowable
      Positional Tolerance.
      The
      undersigned further certifies to Lenders, Borrower and the Title Insurer that
      (a) this survey is true and correct and was made on the ground under my
      supervision as per the field notes shown hereon and correctly shows the boundary
      lines and dimensions and area of the land indicated hereon and each individual
      parcel thereof indicated hereon; (b) all monuments shown hereon actually exist,
      and the location, size and type of such monuments are correctly shown; (c)
      the
      subject Property described in this survey is the same land as described in
      the
      title commitment described below; (d) this survey and the information, courses
      and distances shown on the survey are correct; (e) this survey correctly shows
      the size, location and type of all buildings, structures, other improvements
      and
      visible items on the subject Property and that all buildings and improvements
      are within the boundary lines and applicable set back lines of the subject
      Property; (f) this survey correctly shows the location and dimensions of all
      alleys, streets, roads, rights-of-way, easements, building setback lines and
      other matters of record of which the undersigned has been advised affecting
      the
      subject Property according to the legal description in such easements and other
      matters (with instrument, book, and page number indicated); (g) there are no
      violations of zoning ordinances, restrictions or other rules and regulations
      with reference to the location of the buildings and improvements: (h) except
      as
      shown, there are no visible (1) improvements, easements, rights-of-way, party
      walls, drainage ditches, streams, uses, discrepancies or conflicts, (2) party
      walls or encroachments onto adjoining premises, streets, or alleys by any of
      said buildings, structures, or other improvements, (3) encroachments onto the
      subject Property by buildings, structures, or other improvements on adjoining
      premises, or (4) encroachments on any easement, building setback line or other
      restricted area by any buildings, structures or other improvements on the
      subject Property; (i) the distance from the nearest intersecting street or
      road
      is as shown hereon; (j) the subject Property abuts a dedicated public street
      or
      road as shown hereon; (k) all utility services required for the operation of
      the
      subject Property either enter the subject Property through adjoining public
      streets, or this survey shows the point of entry and location of any utilities
      that pass through or are located on the adjoining premises; (l) any discharge
      into streams, rivers or other conveyance system is shown on this survey; (m)
      if
      the subject Property consists of two or more parcels having common boundaries,
      those parcels are contiguous along the common boundaries; (n) except as shown,
      no part of the Property is located in a 100-year Flood Plain or in an identified
      "flood
      prone area,"
      as
      defined pursuant to the Flood Disaster Protection Act of 1973, as amended,
      as
      reflected by Flood Insurance Rate Map Panel # _____________ dated
 ,
      which
      such map panel covers the area in which the Property is situated and this survey
      correctly indicates the zone designation of any area as being in the 100-year
      Flood Plain or “flood
      prone area”;
      (o) no
      portion of the subject Property lies within a delineated wetlands area under
      federal, state or local law or policy; (p) except as shown on this survey,
      the
      subject Property does not serve any adjoining premises for drainage, utilities,
      or ingress or egress; (q) the record description of the subject Property forms
      a
      mathematically closed figure; and (r) the subject Property has a tax map
      designation separate and distinct from that of any other premises and the
      subject Property is a separate, legally subdivided parcel. The undersigned
      has
      received and examined a copy of the Title Insurance Commitment No.
      _______________ issued by the Title Insurer for the Property as well as a copy
      of each instrument listed therein, and the location of any matter shown thereon,
      to the extent it can be located, has been shown on this survey.