Section
19.7
TRIAL BY JURY
92 Section 19.8
Headings
93 Section 19.9
Severability
93 Section 19.10
Preferences
93 Section 19.11
Waiver of
Notice
93 Section 19.12
Expenses; Indemnity
93 Section 19.13
Exhibits
and Schedules Incorporated
96 Section 19.14
Offsets, Counterclaims and
Defenses
96
-iii-
Section 19.15
Liability of Assignees of Mezzanine Lender
96 Section 19.16
No Joint Venture or Partnership; No Third Party Beneficiaries
96 Section
19.17
Publicity
97 Section 19.18
Waiver of Marshalling of Assets
97
Section 19.19
Waiver of Counterclaim and other Actions
97 Section 19.20
Conflict; Construction of Documents; Reliance
97 Section 19.21
Prior
Agreements
98 Section 19.22
Counterparts
98 Section 19.23
Joint and
Several Liability
98
EXHIBITS AND SCHEDULES
EXHIBIT A
INTENTIONALLY OMITTED EXHIBIT B
FORM OF PLEDGE ACKNOWLEDGEMENT
EXHIBIT C
SINGLE PURPOSE ENTITY PROVISIONS EXHIBIT D
ENFORCEABILITY OPINION
REQUIREMENTS EXHIBIT E
NON-CONSOLIDATION OPINION REQUIREMENTS EXHIBIT F
COUNTERPARTY OPINION REQUIREMENTS EXHIBIT G
FORM OF TENANT ESTOPPEL LETTER
EXHIBIT H-1
MEZZANINE BORROWER ORGANIZATIONAL STRUCTURE AT CLOSING EXHIBIT I
INTEREST RATE CAP AGREEMENT REQUIREMENTS EXHIBIT J
FORM OF ASSIGNMENT AND
ACCEPTANCE AGREEMENT EXHIBIT K
INTENTIONALLY OMITTED EXHIBIT L
INTENTIONALLY
OMITTED EXHIBIT M
COUNTERPARTY ACKNOWLEDGMENT EXHIBIT N
INTENTIONALLY
OMITTED EXHIBIT O
FORM OF INDEPENDENT DIRECTOR CERTIFICATE EXHIBIT P
INTENTIONALLY OMITTED EXHIBIT Q
INTENTIONALLY OMITTED EXHIBIT R
ARTICLE 8
OPT IN LANGUAGE SCHEDULE I
LITIGATION SCHEDULE SCHEDULE II
INTENTIONALLY
DELETED SCHEDULE III
PRE-APPROVED TRANSFEREES SCHEDULE IV
PRE-APPROVED
MANAGERS SCHEDULE V
LIST OF EXCHANGE DOCUMENTS
-iv-
MEZZANINE LOAN AND SECURITY AGREEMENT
THIS MEZZANINE LOAN AND SECURITY AGREEMENT, dated as of September 1, 2006 (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this "Agreement"), between SHR SCOTTSDALE MEZZ X-1, L.L.C., a Delaware
limited liability company and SHR SCOTTSDALE MEZZ Y-1, L.L.C., a Delaware
limited liability company, (each a "Co-Mezzanine Borrower" and collectively, on
a joint and several liability basis, the "Mezzanine Borrower") having an office
c/o Strategic Hotel Funding, L.L.C., 77 West Wacker, Suite 4600, Chicago,
Illinois 60601 and CITIGROUP GLOBAL MARKETS REALTY CORP., a New York
corporation, having an address at 388 Greenwich Street, New York, New York 10013
(together with its successors and assigns, "Mezzanine Lender").
W I T N E S S E T H:
WHEREAS, Mezzanine Borrower desires to obtain the Loan (as hereinafter defined)
from Mezzanine Lender;
WHEREAS, Mezzanine Lender is willing to make the Loan to Mezzanine Borrower,
subject to and in accordance with the terms of this Agreement and the other Loan
Documents (Mezzanine) (as hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by Mezzanine Lender
and the covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereto hereby covenant, agree, represent and warrant as
follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly required or unless the context clearly indicates a contrary intent:
"Acceptable Counterparty" shall mean a bank or other financial institution which
has a long-term unsecured debt or counterparty rating of "AA-" (long term) and
"A-1+" (short term) or