Subordinated Loan Agreement - Silicium de Provence SAS and Evergreen Solar Inc . 7 - December 2007 [ HERBERT SMITH LOGO ] ................................ 2007 SILICIUM DE PROVENCE SAS and EVERGREEN SOLAR , INC .


SUBORDINATED LOAN AGREEMENT HERBERT SMITH LLP Page 1 of 12 7 - December 2007 TABLE OF CONTENTS Clause Headings Page 1 .


DISPUTES 10 Page 2 of 12 7 - December 2007 SUBORDINATED LOAN AGREEMENT THIS LOAN AGREEMENT is made on 7th December , 2007 BETWEEN : ( 1 ) SILICIUM DE PROVENCE S . A . S ., a private company with limited liability , incorporated under the laws of France , whose registered office is situated at Usine de Saint Auban , 04 600 Saint Auban , France , represented by Mr . Frank Wouters , hereinafter referred to as the " Borrower ", and ( 2 ) EVERGREEN SOLAR , INC ., a company incorporated in Delaware , U . S . A ., with registered number 2426798 , whose registered office is situated at 138 Bartlett Street , Marlboro , Massachusetts 01752 , U . S . A . represented by Richard Chleboski , hereinafter referred to as the " Lender ", Hereinafter referred to severally each as a " Party " and jointly as the " Parties ".


WHEREAS : ( A ) The Borrower intends to develop a plant in France for the production of solar grade silicon .


( B ) Lender and Borrower have entered into an agreement for the sale and purchase of solar grade silicon on the same date hereof ( the " Silicon S & P Agreement ").


( C ) Lender and Borrower have agreed that in consideration for the Borrower entering into the Silicon S & P Agreement with the Lender , the Lender shall make available to the Borrower , by way of a subordinated loan , an amount of thirty million Euros ( EUR 30 , 000 , 000 ) ( the " Loan ").


( D ) The Parties wish to set out the terms and conditions of the Loan in this agreement ( the " Loan Agreement ").


NOW , THEREFORE THE PARTIES AGREE AS FOLLOWS : 1 .


INTERPRETATION In this Loan Agreement , unless otherwise specified or the context otherwise requires : 1 . 1 words importing the singular shall include the plural and vice versa ; 1 . 2 words importing any gender shall include all other genders ; 1 . 3 words importing the whole shall be treated as including reference to any part of the whole ; 1 . 4 reference to an Article is to the relevant article of this Loan Agreement ; 1 . 5 reference to this Loan Agreement or to any other document is a reference to this Loan Agreement or to that other document as modified , amended , varied , supplemented or replaced from time to time ; 1 . 6 reference to a provision of law is a reference to that provision as extended , applied , amended , consolidated or re - enacted or as the application thereof is modified from time to time and shall be construed as including reference to any order , instrument , regulation or other subordinate legislation from time to time made under it , except as otherwise provided in this Loan Agreement ; Page 3 of 12 7 - December 2007 1 . 7 all references to the words � include � and � including � shall be construed without limitation ; 1 . 8 a reference to writing or written includes faxes and e - mail ; 1 . 9 headings used in this Loan Agreement shall not affect its construction or interpretation ; 1 . 10 words and phrases defined in any part of this Loan Agreement bear the same meanings throughout this Agreement ; 1 . 11 wherever in this Loan Agreement provision is made for the giving of notice , consent or approval by any person , unless otherwise stated , such shall not be unreasonably withheld .


Any notice , consent or approval shall be in writing and the word � notify � shall be construed accordingly .


All notices shall be served on the Parties designated representative at the registered address of the Party or other address that a Party may notify the other Party of from time to time .


LOAN 2 . 1 The Lender grants the Borrower a loan of a total principal amount of thirty million Euros ( EUR 30 , 000 , 000 ) to be disbursed to the Borrower in two instalments , as follows : 2 . 1 . 1 A first instalment of fifteen million Euros ( EUR 15 , 000 , 000 ) to be paid no later than 30 November 2007 ; and 2 . 1 . 2 A second instalment of fifteen million Euros ( EUR 15 , 000 , 000 ) to be paid no later than 31 January 2008 .


2 . 2 The actual disbursement date of the last instalment of the Loan to the Borrower shall be the " Effective Date ".


2 . 3 The Loan is to be paid by the Lender into the Borrower ' s account in immediately available cleared funds as follows : Bank : ING Belgium S . A ., Succursale en France Branch : Immeuble Les Caryatides , 24 / 26 boulevard Carnot , 59042 Lille cedex Account Number : 30438 IBAN number : FR76 3043 8000 0836 8300 3000 905 BIC Number : INGBFRPP Code Guichet : 00008 No du Compte : 36830 03 0009 Cle RIB : 05 or to such other bank account as may be nominated from time to time by the Borrower to the Lender pursuant to Article 14 .


2 . 4 The Loan shall be used by the Borrower solely to finance the works arising out of and relating to the construction of the Borrower ' s plant ( the " Works ").


For the avoidance of doubt , the Loan shall not be used to increase management remuneration , for the repayment of any indebtedness for borrowed money or for any capital distribution to the Borrower ' s equity holders .


INTEREST AND REPAYMENT 3 . 1 The Borrower shall , from the Effective Date , pay interest in arrears to the Lender on the Loan outstanding from time to time , such interest calculated at a rate of three percent ( 3 %) per Calendar Year compounded annually on the actual outstanding amount of the Loan plus any accrued interest and any other amounts due hereunder ; provided that upon a failure to repay a part of the Loan when due or any other default by Borrower set forth in Page 4 of 12 7 - December 2007 Clause 18 under this Loan Agreement , the foregoing rate shall increase to an amount equal to ( a ) the twelve - month EURIBOR rate determined on the business day preceding the default as reported in the Wall Street Journal , plus ( b ) three ( 3 %) on the unpaid amount only .


" Calendar Year " means the period of 365 or 366 days , as the case may be , beginning on 1st January and ending on 31st December .


3 . 2 Interest shall be calculated on the basis of the actual number of days elapsed .


3 . 3 The Borrower shall repay the Loan and interest and accrued hereunder , on the date falling five ( 5 ) years after the Effective Date ( the " Repayment Date "), save that the Borrower may prepay all or part of the Loan in accordance with Article 4 and provided that in the event that the Lender terminates the Silicon S & P Agreement pursuant to Article 11 . 1 thereof , the Repayment Date shall be the effective date of such termination .


3 . 4 The interest due on the outstanding amount of the Loan ( first and second instalments ) shall be payable in whole on the Repayment Date .


3 . 5 For the purposes of Articles L . 313 - 1 et seq ., R . 313 - 1 and R . 313 - 2 of the French Code de la Consommation , the Lender hereby informs the Borrower that the all - in rate ( taux effectif global ) of the Loan is three percent ( 3 %).


3 . 6 All payments made by the Borrower to the Lender shall be in Euros in immediately available cleared funds by electronic transfer to an account held by Silicon Valley Bank , account number [�], swift code [�], for the credit of [�].


EARLY REPAYMENT 4 . 1 The Borrower shall at all times be allowed to prepay the Loan in whole or in part , without premium or penalty , provided it does so in whole multiples of EUR 100 , 000 and that ten ( 10 ) days prior written notice has been delivered to the Lender .


4 . 2 Notwithstanding the provisions of Clause 3 . 4 , any early redemption under this Agreement shall include accrued interest on the amount prepaid .


REPRESENTATIONS Except as otherwise stated below , each of the Lender and the Borrower hereby represents and warrants that : ( A ) It is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation ; ( B ) The obligations expressed to be assumed by it are valid and binding obligations ; ( C ) The entry into and performance by it of this Loan Agreement do not and will not conflict with ( a ) any provision of any law or regulation applicable to it , ( b ) its constitutional documents , and ( c ) any agreement which is binding upon it or any of its assets ; and ( D ) It has the power to enter into , perform and deliver this Loan Agreement and the transactions contemplated therein .


UNDERTAKINGS Except as otherwise stated below , each of the Lender and the Borrower hereby undertakes : ( A ) To do all such things as are necessary to maintain its corporate existence ; Page 5 of 12 7 - December 2007 ( B ) To obtain , maintain and comply with the terms of any authorisation required under any applicable law or regulation to ( i ) enable it to carry out its activities and ( ii ) perform its obligations under this Loan Agreement ; and ( C ) To comply with all applicable laws and regulations .


SUBORDINATION 7 . 1 In the event that insolvency proceedings are initiated against the Borrower or that it is unable to pay its debts as they fall due or in the event of any moratorium on its debts or if the Borrower has proposed any composition , assignment or arrangement to its creditors , the obligation to repay the outstanding amount of the Loan : 7 . 1 . 1 shall be subordinated to any indebtedness of the Borrower to any lending or financial institution in any way related to the Works , both present and future notwithstanding whether such indebtedness is recoverable by process of law or is conditional or unconditional (" Financial Loans "); 7 . 1 . 2 shall rank pari passu with the rights of ( i ) any other lender under other loans similar to the Loan , entered into ( or to be entered into ) between the Borrower and any other silicon processor or photovoltaic items manufacturer (" Manufacturer Loans "), and ( ii ) the Borrower ' s shareholders under shareholders ' loans entered into ( or to be entered into ) between the Borrower and any of its shareholders (" Shareholder ' s Loans ").


7 . 2 The Borrower undertakes not to grant any security interest of any kind in respect of any Manufacturer Loan or Shareholder ' s Loan unless the Loan benefits from similar security of the same rank .


7 . 3 The Lender undertakes , and acknowledges that it is a condition of this Loan Agreement , that it shall not grant any mortgage , charge , pledge , lien or other security interest of any kind or arrangement that would adversely effect the rights of the Borrower under this Loan Agreement , whether to its creditors or any other third party .


Without prejudice to the foregoing , the Borrower acknowledges and accepts that the assets of the Lender , including without limitation Lender ' s rights under this Loan Agreement , are currently and are expected to continue to be subject to liens in favour of Lender ' s creditors .


7 . 4 The Lender undertakes that , on the written request of the Borrower , the Lender shall cooperate with the Borrower and any creditor providing a Financial Loan , Manufacturer Loan or Shareholder ' s Loan to the Borrower , by entering , in a timely manner , into such inter - creditor agreement as may reasonably be necessary and customary for the implementation of Articles 7 . 1 and 7 . 2 above .


COSTS The Lender and the Borrower shall each pay their own respective costs , taxes and fees in connection with the implementation of this Loan Agreement .


PARTIAL PAYMENTS If the Lender receives a payment that is insufficient to discharge all the amounts then due and payable by the Borrower under this Loan Agreement , the Lender shall apply that payment towards the obligations of the Borrower in the following order : ( A ) in or towards payment of any unpaid fees , costs and expenses ; ( B ) in or towards payment of accrued interest ; and Page 6 of 12 7 - December 2007 ( C ) in or towards payment of any principal due but unpaid under this Loan Agreement .


ASSIGNMENT 10 . 1 Subject to ( A ) � ( D ) below and 10 . 2 neither Party may , or may purport to , assign , transfer , mortgage , charge , pledge or otherwise encumber all or any portion of its rights , interests or obligations arising under this Loan Agreement without the prior written consent of the other Party , except that : ( A ) The Borrower may freely assign , transfer , mortgage , charge , pledge or otherwise encumber all or any portion of its rights and obligations under this Loan Agreement ( or any document or legal instrument referred to in this Loan Agreement ), ( i ) to any shareholder of the Borrower or Affiliate of such shareholder or ( ii ) to any Creditor .


For the purposes of this Article 12 ( A ), " Affiliate " means in relation to any person , any other person that , directly or indirectly , controls or is controlled by or is under the same control as such person and the term " control " shall mean the ability to exercise , or to promote the exercise , directly or indirectly , of at least 50 % of the voting rights attached to a person ' s equity interests or shares .


" Creditor ( s )" means any bank , special purpose project company , trust company , mortgage company , insurance company , pension fund , real estate investment trust , or other lending or financial institutions ( including indirect lenders and loan participants ) providing debt , equity , lease and / or bond financing or financial services , or credit support or other credit enhancement in any way related to the construction of the Works ( B ) If the Borrower does not obtain the Lender ' s prior written consent to any such assignment , transfer , mortgage , charge , pledge or other encumbrance under sub - clause ( A ) above the Borrower shall not be released from any obligation hereunder unless and until Borrower provides an unconditional repayment guarantee to Lender in a form acceptable to Lender in its sole discretion .


( C ) If the Borrower obtains the Lender ' s prior written consent to any such assignment , transfer , mortgage , charge , pledge or other encumbrance under sub - clause ( A ) above assignment the Borrower shall not have to provide a repayment guarantee to Lender and the Borrower shall be released from any obligation hereunder upon the execution of an assignment and assumption agreement whereby Borrower assigns all of its rights to the assignee and the assignee assumes all of the obligations of Borrower under this Loan Agreement .


( D ) Successive assignments of Borrower ' s rights under this Loan Agreement shall remain subject to this Article 10 . 1 provided that Silicium de Provence S . A . S .


shall not be released from a guarantee provided in satisfaction of its obligations under this Article 10 . 1 as a result of an assignment that occurs after the initial assignment by the Borrower unless the Lender ' s consent is obtained in which case the Borrower shall be released and item ( C ) above shall apply .


10 . 2 The Lender may assign or transfer this Loan Agreement without the consent of the Borrower in the event of a change of control of the Lender or the sale of all or substantially all the assets of the Lender to which this Loan Agreement relates .


Page 7 of 12 7 - December 2007 10 . 3 Any assignment , transfer , mortgage , charge , pledge or other giving of security by one Party hereunder shall not in any way diminish the other Party ' s rights and obligations or the giving Parties successor ' s rights and obligations under this Loan Agreement , including any amendments hereto 10 . 4 On the written request of the Borrower , the Lender shall cooperate with the Borrower and any Creditors , by entering , in a timely manner , into such direct agreements as may reasonably be necessary and customary for project financing of the Works .


Such agreements may include provisions which permit the Creditors , in the event of a breach of the Loan Agreement or the Silicon S & P Agreement that would permit the Lender to terminate the Loan Agreement , to : ( i ) Take - over the Loan Agreement ; ( ii ) step - in , rectify or otherwise cure any breach of this Loan Agreement ; ( iii ) assign or otherwise transfer this Loan Agreement .


WHOLE AGREEMENT This Loan Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and , except as herein stated and in the instruments and documents to be executed and delivered pursuant hereto , contains all of the representations , undertakings and agreements of the Parties .


This Loan Agreement supersedes all prior meetings , correspondence , and negotiations between the Parties .


There are no representations , warranties , covenants , agreements , or collateral understandings , oral or otherwise , expressed or implied , of any kind between the Parties hereto , respecting the subject matter hereof , except as contained or referred herein , and neither Party has relied on any statement outside of the written agreement .


VARIATION AND WAIVER 12 . 1 Any variation of this Loan Agreement must be in writing and signed by or on behalf of all Parties .


12 . 2 A waiver of any right under this Loan Agreement is only effective if it is in writing and it applies only to the Party to which the waiver is addressed and the circumstances for which it is given .


SEVERANCE If any provision of this Loan Agreement ( or part of a provision ) appears to be invalid , unenforceable , illegal , or non - binding the other provisions will remain in force .


The Parties are obliged to replace the invalid , unenforceable , illegal , or non - binding provision of this Loan Agreement ( or part of a provision ) with other provisions that are valid , enforceable , legal and binding , in such way that the new provisions differ as little as possible from the original provisions , taking into account the object , purpose and contents of this Loan Agreement .


NOTICES 14 . 1 Any notice or other communication required to be given under this Loan Agreement shall be in writing and shall be delivered to the Party required to receive the notice or communication at its address as set out below : Borrower Usine de Saint Auban , Page 8 of 12 7 - December 2007 04 600 Saint Auban , France .


Attention : Frank Wouters , CEO Lender 138 Bartlett Street Marlboro , Massachusetts , 01752 U . S . A .


Attention : Richard Chleboski , Vice President or at such other address as the relevant Party may specify by notice in writing to the other Parties .


Any notice or other communication sent by e - mail or facsimile must be confirmed by commercial courier .


14 . 2 Any notice or other communication shall be deemed to have been duly given : ( A ) if delivered personally , when left at the address referred to in Article 14 . 1 ; or ( B ) if delivered by commercial courier , on the date of signature of the courier ' s receipt ; or ( C ) if sent by fax , at the time of transmission ; or ( D ) if sent by e - mail , at the time of despatch ; ( E ) if deemed receipt under the previous paragraphs of this Article 16 . 2 is not within business hours ( meaning 9 . 00 am to 5 . 30 pm Monday to Friday on a day that is not a public holiday in the place of receipt ), when business next starts in the place of receipt .


CONFIDENTIALITY 15 . 1 Each Party undertakes that it shall not at any time during this Loan Agreement , and for a period of 5 ( five ) years after termination of this Loan Agreement , disclose to any person any Confidential Information .


15 . 2 For the purpose of this Article 15 , " Confidential Information " means any knowledge , financial data or operating data , trade secrets , experience or know - how , and information of all kinds in whatever form about technologies , finances and costs , marketing and business ( including but not limited to term sheets , notes , analyses , agreements , compilations , studies and interpretations ) and suchlike which is disclosed by or on behalf of the disclosing Party whether or not the same is marked as Confidential Information including any Confidential Information that is communicated to the receiving Party orally and not reduced in writing .


" Confidential Information " shall exclude any information that : i . is or becomes ( through no improper action or inaction by the receiving Party or any affiliate , agent , consultant or employee ) generally available to the public , or ii .


was in its possession or known by it prior to receipt from the disclosing Party , provided the receiving Party complies with restrictions imposed thereon by third parties , or iii .


was rightfully disclosed to it by a third party provided the receiving Party complies with restrictions imposed thereon by third parties , or iv .


was independently developed without use of any Confidential Information of the disclosing Party � 15 . 3 Each Party may disclose the other Party ' s Confidential Information : Page 9 of 12 7 - December 2007 15 . 3 . 1 to its employees , officers , representatives or advisers who need to know such information for the purposes of carrying out the Party ' s obligations under this Loan Agreement .


Each Party shall ensure that its employees , officers , representatives or advisers to whom it discloses the other Party ' s confidential information comply with this Article 15 ; and 15 . 3 . 2 as may be required by law , court order or any governmental or regulatory authority .


15 . 4 No Party shall use any other Party ' s confidential information for any purpose other than to perform its obligations under this Loan Agreement .


APPLICABLE LAW AND LANGUAGE 16 . 1 This Agreement shall be governed by and construed in accordance with French law .


16 . 2 The language of this Agreement and all correspondence , notices and written communications shall be English .


DISPUTES 17 . 1 If any dispute arises out of or in connection with this Loan Agreement , directors or other senior representatives of the Parties with authority to settle the dispute will , within ten ( 10 ) days of a written request from one Party to the other , meet in a good faith effort to resolve the dispute .


17 . 2 All disputes arising out of or in connection with this Loan Agreement which are not resolved pursuant to Article 17 . 1 , shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with the said Rules .


The arbitration shall be conducted in English and the seat shall be Paris .


The following events shall be considered events of default with respect to this Loan Agreement : 18 . 1 . 1 The Borrower shall default in the payment of any part of the principal or unpaid accrued interest on the Loan [ for more than [ thirty ( 30 )] days ] after the same shall become due and payable , whether at maturity or at a date fixed for prepayment or by acceleration or otherwise ; 18 . 1 . 2 The Borrower is unable or admits its inability to pay its debts as they fall due , by reason of actual or anticipated financial difficulties or suspends making payments on any of its debts or commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness ; 18 . 1 . 3 The Borrower is in a state of suspension of payments ( cessation des paiements ) within the meaning of article L . 631 - 1 of the French Commercial Code ; 18 . 1 . 4 Any corporate action , legal proceedings or other procedures or steps are taken by reason of the Borrower ' s financial difficulties , in relation to : ( A ) The suspension of payments , a moratorium of any indebtedness , winding - up , dissolution administration or reorganisation ( other than a solvent winding - up , dissolution or reorganisation carried out with the prior written consent of the Lender , such consent not to be unreasonably withheld or delayed ) of the Borrower ; ( B ) A composition , compromise , assignment or arrangement with any creditor of the Borrower ; Page 10 of 12 7 - December 2007 ( C ) The appointment of a liquidator , receiver , administrator , administrative receiver , compulsory manager or other similar officer in respect of the Borrower or any of its assets ; Or any analogous procedure or step is taken in any jurisdiction .


18 . 1 . 5 The Borrower commences proceedings for conciliation in accordance with articles L . 611 - 4 to L . 611 - 15 of the French Commercial Code or any analogous procedure or step is taken in any jurisdiction ; 18 . 1 . 6 A judgment for sauvegarde , redressement judiciaire or liquidation judiciaire is entered in relation to the Borrower under articles L . 620 - 1 to L . 644 - 6 of the French Commercial Code or any analogous judgment is entered in any jurisdiction ; 18 . 1 . 7 The Borrower shall fail to observe or perform any other obligation to be observed or performed by it under this Loan Agreement within thirty ( 30 ) days after written notice from the Lender to perform or observe the obligation ; and 18 . 1 . 8 The Borrower stops construction of the Works or acknowledges that it will be unable or is unwilling to complete construction of the works .


Upon the occurrence of an event of default under Article 18 . 1 hereof , at the option and upon the declaration of the Lender , the entire unpaid principal and accrued and unpaid interest on the Loan shall without formal notice of default ( mise en demeure ) or any other judicial or extra - judicial step ,, be forthwith due and payable , and the Lender may , immediately and without expiration of any period of grace , enforce payment of all amounts due and owing under this Loan Agreement and exercise any and all other remedies granted to it .


If any action is necessary to enforce or interpret the terms of this Loan Agreement , the prevailing Party shall be entitled to reasonable attorneys ' fees , costs and necessary disbursements in addition to any other relief to which such Party may be entitled .


From time to time , the Borrower shall execute and deliver to the Lender such additional documents and shall provide such additional information to the Lender as the Lender may reasonably require to carry out the terms of this Loan Agreement .


INDEMNITY ; COSTS , EXPENSES AND ATTORNEYs ' FEES .


22 . 1 Subject to Article 22 . 2 the Borrower shall indemnify and hold the Lender harmless from any reasonable loss , cost , liability and legal or other expense , including reasonable attorneys ' fees of the Lender ' s counsel , which the Lender may directly or indirectly suffer or incur by reason of the failure of the Borrower to perform any of its obligations under this Loan Agreement or exercise of remedies ( collectively , " Costs "), provided , however , the indemnity agreement contained in this Article shall not apply to liabilities which the Lender may directly or indirectly suffer or incur by reason of the Lender ' s own negligence or misconduct .


22 . 2 Notwithstanding any other provision of this Agreement no Party shall be liable to the other Party for loss of profit , loss of any contract or for any other consequential loss or damage which may be suffered by the other Party in connection with this Agreement .


IN WITNESS whereof the Parties have executed this Loan Agreement on the date first mentioned above .


Executed in Cologne in 2 original copies .


/ s / Frank Wouters SIGNED by Frank Wouters for and on behalf of SILICIUM DE PROVENCE S . A . S / s / Richard G . Chleboski SIGNED by Richard G . Chleboski for and on behalf of EVERGREEN SOLAR , INC .


Page 12 of 12 Source : OneCLE Business Contracts .


Loan Servicing Agreement - PIM Ashford Venture I LLC and Ashford Hospitality Servicing LLC LOAN SERVICING AGREEMENT Dated as of ____________ , 2008 by and between PIM ASHFORD VENTURE I , LLC AND ASHFORD HOSPITALITY SERVICING LLC THIS LOAN SERVICING AGREEMENT ( this " Agreement "), dated as of , 2008 , is made and entered into by and between PIM Ashford Venture I , LLC , a Delaware limited liability company ( the " Company "), for itself and on behalf of its Subsidiaries ( hereinafter defined ), and Ashford Hospitality Servicing LLC , a Delaware limited liability company ( the " Ashford ").


It is anticipated by the parties hereto that Subsidiaries will be added as parties and signatories to this Agreement as Investments are acquired by the Company .


WITNESSETH : WHEREAS , Ashford and Prudential Investment Management , Inc ., a Delaware corporation (" PIM "), are parties to that certain Investment Program Agreement dated of even date herewith ( the " Program Agreement ").


Pursuant to the Program Agreement , Ashford and PIM agreed to establish an exclusive investment program ( the " Program ") whereby PIM will identify one ( 1 ) or more investors to invest in Master Ventures ( as defined in the Program Agreement ) to make Investments ( as defined in the Program Agreement ) through such Master Ventures and Master Venture subsidiaries ( the " Subsidiaries "); WHEREAS , Ashford and PRISA III Investments , LLC , a Delaware limited liability company ( the " Investor "), have formed the Company pursuant to that certain Limited Liability Company Agreement of the Company dated as of ___________ , 2008 ( the " Master Venture Agreement ") to invest through one or more Subsidiaries in Investments .


The Investments that are the subject of this Agreement on the date hereof are listed on Exhibit A hereto , which exhibit shall be amended from time to time as additional Investments are acquired ; WHEREAS , the parties hereto desire to enter into this Agreement to define the relative rights and powers of the Holders ( hereinafter defined ) and to provide for the security and administration of the Investments .


NOW , THEREFORE , in consideration of the premises and the mutual promises and covenants contained in this Agreement , and for other good and valuable consideration , the receipt and sufficiency of which are hereby acknowledged , the parties hereby agree as follows : NOW , THEREFORE , in consideration of the mutual covenants herein contained , the parties hereto mutually agree as follows : SECTION 1 .


References to a " Section " or the " recitals " are , unless otherwise specified , to a Section or the recitals of this Agreement .


The terms " include ( s )" or " including " shall mean " include ( s ), without limitation " and " including , without limitation ", respectively .


Whenever used in this Agreement , the following terms shall have the respective meanings set forth below unless the context clearly requires otherwise .


Initially capitalized terms used and not otherwise defined herein shall have the meanings respectively ascribed to them in the Master Venture Agreement . "


Agreement " shall mean this Agreement , the exhibits and schedules hereto and all amendments hereof and supplements hereto . "


Bankruptcy Code " shall mean the United States Bankruptcy Code , as amended from time to time , any successor statute or rule promulgated thereto . "


Borrower ", for an Investment , shall mean , collectively , the borrowers under such Investment . "


Borrower Related Party " shall mean any Affiliate of the Borrower .


For avoidance of doubt , any mezzanine lender shall be considered a Borrower Related Party if any such mezzanine lender becomes an Affiliate of the Borrower through foreclosure or other conversion of the collateral for a mezzanine loan in connection with any Property . "


Borrower Transfer " means a " Transfer ," as defined in the Loan Documents . "


Business Day " shall mean any day that is not a Saturday or Sunday , and that is not a legal holiday in New York , New York , nor a day that banking institutions or savings associations in any of the foregoing cities are closed for business . "


Code " shall mean the Internal Revenue Code of 1986 , as amended . "


Company " shall have the meaning set forth in the introductory paragraph hereof . "


ERISA " shall mean the Employee Retirement Income Security Act of 1974 , as amended . "


Event of Default " shall have the meaning set forth in Section 2 ( i ). "


Holder " shall mean the Company and each of the Subsidiaries that are or become signatories hereto . "


Insolvency Proceeding " shall mean any proceeding under Title 11 of the United States Code ( 11 U . S . C .


or any other insolvency , liquidation , reorganization or other similar proceeding concerning the Borrower , any action for the dissolution of the Borrower , any proceeding ( judicial or otherwise ) concerning the application of the assets of the Borrower , for the benefit of its creditors , the appointment of or any proceeding seeking the appointment of a trustee , receiver or other similar custodian for all or any substantial part of the assets of the Borrower or any other action concerning the adjustment of the debts of the Borrower or the cessation of business by the Borrower , except following a sale , transfer or other disposition of all or substantially all of the assets of the Borrower in a transaction permitted under the Loan Documents ; provided , however , that following any such permitted transaction affecting the title to the Property or the Interests , the Borrower for purposes of this Agreement shall be defined to mean the successor owners to the Property or the Interests ; provided , further , however , that for the purposes of this definition , in the event that more than one entity comprises the Borrower , the term " Borrower " shall refer to any such entity . "


Interests " shall mean the ownership interests in Borrower pledged to Lender pursuant to the Loan Documents .


2 " Lender " shall mean the holder of legal title to the Loan Documents .


Initially , the Lender for each Investment and for all purposes under the Loan Documents and this Agreement shall be the Company or the Subsidiary that holds such Investment . "


Loan ", for each Investment , shall mean the loan made or acquired by Lender and evidenced and secured by the Loan Documents . "


Loan Documents ", for each Investment , shall mean those documents evidencing , securing and guarantying the Loan as identified on Schedule 1 to this Agreement , as updated from time to time . "


Management Fee " shall have the meaning assigned to such term in Section 2 ( i ). "


Person " shall mean any individual , sole proprietorship , corporation , general partnership , limited partnership , limited liability company or partnership , joint venture , insurance company , association , joint stock company , bank , trust , estate , unincorporated organization , any federal , state , county or municipal government ( or any agency or political subdivision thereof ), and any other legal entity . "


Principal Balance ", for each Loan , shall mean , at any time of determination , the initial principal balance of the Loan thereof , less any payments of principal thereon received by the Lender . "


Principal Prepayment ", for each Loan , shall mean any payment of principal made by the Borrower on the Loan that is received in advance of its scheduled payment date , whether made by reason of casualty or condemnation or otherwise . "


Property ", for each Investment , shall mean each parcel of real property that is the subject of , directly or indirectly , or is secured in connection with , each Investment , whether or not encumbered by a mortgage . "


Servicer " shall mean initially Ashford or any replacement Servicer appointed in accordance with the terms of this Agreement . "


Servicer Default " is defined in Section 5 ( c ). "


Workout Fee " shall have the meaning assigned to such term in Section 2 ( i ).


( a ) The Servicer shall service and administer the Loan , as agent for the Holders , in accordance with the express terms of this Agreement and Accepted Loan Servicing Practices , taking into account the interests of the Holders with a view to maximizing the realization for all Holders as a collective whole .


The Holders acknowledge that the Servicer is to comply with this Agreement and the Loan Documents in servicing the Loan and , notwithstanding anything to the contrary contained herein , shall act at all times at the direction of 3 the Company .


Servicer shall not be entitled to any servicing fees or other compensation for its services hereunder except for the Management Fee and the Workout Fee , each as described below in Section 2 ( i ).


( b ) The Servicer shall : ( i ) provide to the Holders ( 1 ) a summary of the current status of principal and interest payments on the Loan , ( 2 ) copies of the Borrower ' s current financial statements , to the extent in the Servicer ' s possession , ( 3 ) current information , if any , as to the value of the Property , to the extent in the Servicer ' s possession , ( 4 ) copies of any default or acceleration notices sent to the Borrower with respect to the Loan and all material correspondence related thereto , ( 5 ) copies of all notices received or given by Servicer pursuant to any intercreditor agreement related to the Loan , ( 6 ) copies of any written report prepared by any consultant retained by Servicer , and ( 7 ) other information with respect to the Borrower or the Loan , requested by any Holder , to the extent in the Servicer ' s possession .


( ii ) receive all payments of interest , principal and other sums on account of or with respect to the Loan ; ( iii ) in accordance with the provisions of this Agreement , remit to the Company or to the applicable Subsidiary all interest , principal and other sums received by or on behalf of Servicer on account of or with respect to the Loan ; ( iv ) notwithstanding anything to the contrary in the Loan Documents , notify each Holder of the amount of each unfunded disbursement , if any , of the Loan requested by Borrower ( which may be greater than the amount actually disbursed ) at least five ( 5 ) Business Days prior to the date of disbursement .


( c ) Except as otherwise expressly provided herein and subject to the terms of the Program Agreement and the Master Venture Agreement , the Servicer shall have full power and authority to do or perform any act or thing which in the reasonable judgment of the Servicer is necessary to enable it to discharge and perform its duties under this Agreement , the Loan Documents ( or any other agreement or agreements entered into in connection therewith ), or which in the reasonable judgment of Servicer is necessary or required to preserve and protect the liens and security interests created by the Loan Documents and the priority thereof and the collateral for the Loan and the interest of the Holders , and to do any and all things which it may deem necessary or desirable in connection with the servicing and administration of the Loan in accordance with the Loan Documents and the terms hereof , which Servicer reasonably believes will not materially and adversely affect the value of the Loan , all in accordance with Accepted Loan Servicing Practices .


Subject to the below provisions of this Section 2 , the Program Agreement and the Master Venture Agreement , the Servicer shall have authority to act on behalf of the Lender and the Holders with respect to the Loan , to transact with the Borrower and to grant or withhold consents or approvals under the Loan Documents , enforce the Loan Documents and otherwise act on behalf of the Lender and the Holders , all in accordance with Accepted Loan Servicing Practices .


of the following actions may be undertaken by the Servicer without the prior written consent of the Company : 4 ( i ) modify , amend or waive in any respect whatsoever ( A ) the interest rate , monthly payment , or other monetary or economic provisions ( including with respect to the date or time upon which any obligations are due ) of the Loan , including to defer interest payments ; ( B ) any provision in the Loan Documents that restricts Borrower from incurring additional indebtedness ; or ( C ) any other provisions in the Loan Documents other than non - monetary , non - economic or administrative amendments or modifications which the Servicer believes in good faith and in accordance with Accepted Loan Servicing Practices will not in any material and adverse way affect any Holder ' s rights under this Agreement , the Loan Documents or the value of the Property ; ( ii ) waive or reduce the amount of any reserves required to be maintained by Borrower , except as explicitly permitted by the Loan Agreement ; ( iii ) modify the principal amount of the Loan ; ( iv ) extend or shorten the maturity date of the Loan or any note , other than in accordance with the express provisions of the Loan Agreement ; ( v ) waive , compromise or settle any material claim against Borrower or any or other Person liable for payment of the Loan in whole or in part or for the observance and performance by Borrower of any of the terms , covenants , provisions and conditions of the Loan Documents , or release Borrower or any other Person liable for payment of the Loan in whole or in part from any obligation or liability under the Loan Documents ; ( vi ) approve or consent to a Borrower Transfer ; ( vii ) encumber , release , or modify , in whole or in part , any collateral or security interest held under the Loan Documents other than in accordance with the terms hereof or any of the express provisions of the Loan Agreement ; ( viii ) enforce or refrain from enforcing all of the rights , remedies and privileges afforded or available to the respective Holders under the terms of the Loan Documents , including , without limitation , accelerating the Loan ( unless such acceleration is automatic under the Loan Documents ), foreclosing on any mortgage or pledge or accepting a deed in lieu of foreclosure ; ( ix ) following a foreclosure of the Mortgage or any pledge or acceptance of a deed in lieu of foreclosure , approve a recommended course of action for the Property , approve the property manager and selling agent , and approve the sale price of the Property ; ( x ) the approval or adoption of any plan of bankruptcy , reorganization , restructuring or similar event in an Insolvency Proceeding with respect to the Borrower or any guarantor ; ( xi ) any incurrence of additional debt by the Borrower or any mezzanine financing by any direct or indirect beneficial owner of the Borrower ( to the extent that the Lender has consent rights pursuant to the Loan Documents with respect thereto ); 5 ( xii ) any waiver of the enforcement of any insurance requirements under the Loan Documents with respect to terrorism , earthquake , flooding , windstorm or political risk ; ( xiii ) any material amendment to the special purpose entity provisions in the Loan Agreement ; ( xiv ) the subordination of any mortgage or pledge to any other mortgage or pledge or other material monetary claim against the Property ; or ( xv ) waiver of any material default or Event of Default .


( d ) The Servicer shall have no liability to any other Holder for any action taken , or for refraining from the taking of any action , in good faith and in accordance with Accepted Loan Servicing Practices pursuant to this Agreement , and / or the Loan Documents , so long as Servicer is acting in accordance with Accepted Loan Servicing Practices ; provided , however , that the Servicer will not be protected against any liability which would otherwise be imposed by reason of gross negligence , a breach of an Accepted Loan Servicing Practice , which breach is not cured within ten ( 10 ) Business Days following notice thereof , willful misfeasance , bad faith or fraud in the performance of duties or obligations hereunder .


Without limiting the generality of the foregoing , the Servicer , acting on behalf of the Holders in accordance with the terms of this Agreement , may rely on the advice of legal counsel , accountants and other experts ( including those retained by the Borrower ) and upon any written communication or telephone conversation which the Servicer believes to be genuine and correct or to have been signed , sent or made by the proper Person .


( e ) Notwithstanding any direction to act , or approval or disapproval of , or right to give direction to or to approve or disapprove an action of the Servicer by any other Holder , as applicable , in no event shall the Servicer be obligated to take any action that would violate , or refrain from taking any action necessary to avoid violation of , any applicable law , or be inconsistent with or violate any provisions of this Agreement .


( f ) Each Holder hereby undertakes and agrees , upon the request of the Servicer , to execute , verify , deliver and file in a timely manner any proofs of claim , consents , assignments or other action necessary or appropriate to permit the Servicer to enforce the obligations of Borrower to the Lender in respect of the Loan , and to vote any claims at any meeting of creditors or for any plan or with respect to any matter as the Servicer shall direct , subject to the provisions of this Section 2 and otherwise in accordance with the terms of this Agreement , all in order to preserve and maintain all claims against Borrower for sums due under the Loan so that the Lender will have the benefit of such claims as provided in the Loan Documents or under applicable law .


( g ) Servicer shall not , without the consent of the Company , assign its rights or delegate its duties hereunder unless such assignment is to an Affiliate of Ashford ( as defined in the Master Venture Agreement ) and does not constitute a Change in Control ( as defined in the Master Venture Agreement ).


6 ( h ) If title to the Property or any Interests is to be acquired after a foreclosure sale or by a deed in lieu of foreclosure , title shall be held as directed by the Company .


If , at this time , any Holder is an employee benefit plan subject to Part 4 of Title I of ERISA or to which Section 4975 of the Code applies , or an entity which is deemed to hold assets of such a plan , such limited liability company ( or other special purpose entity ) shall be structured and operated in a manner which , under the ERISA " plan asset regulations ," 29 C . F . R .


� 2510 . 3 - 101 , as modified by Section 3 ( 42 ) of ERISA , is intended to cause the limited liability company ( or other special purpose entity ) either ( A ) to be a real estate operating company (" REOC ") or ( B ) to otherwise have its underlying assets not deemed to be " plan assets " of any employee benefit plan subject to Part 4 of Title I of ERISA or to which Section 4975 of the Code applies , and such limited liability company ( or other special purpose entity ) will be required to advise the Holders , as soon as reasonably possible , of any change or circumstance which could reasonably be expected to affect its status as a REOC , or to otherwise cause its underlying assets to be deemed to be " plan assets ."


( i ) As full compensation for its services hereunder , Servicer shall be entitled to a management fee with respect to each Investment , which shall be an annual fee payable in equal quarterly installments in arrears equal to 0 . 25 % multiplied by the Capital Contribution ( as defined in the Master Venture Agreement ) made by the Investor and Ashford ( as defined in the Master Venture Agreement ) to acquire such Investment ( the " Management Fee ").


Notwithstanding the foregoing to the contrary and except as otherwise provided in Section 5 ( c ) below , with respect to any Investment that is subject to a default remaining uncured beyond any applicable notice and cure periods ( an " Event of Default "), Servicer shall receive a workout fee in lieu of the Management Fee with respect to such Investment , which shall be an annual fee payable for such Investment in the amount of 0 . 50 % of the Capital Contributions made by the Investor and Ashford ( as defined in the Master Venture Agreement ) to acquire such Investment ( the " Workout Fee ").


Any Workout Fee due hereunder shall be prorated for any partial year ( i . e .


less than 365 day year ) during the existence of an Event of Default and shall be paid upon the earlier of ( i ) the cure of the applicable Event of Default , and ( ii ) the 365 th day following the occurrence of the applicable Event of Default .


Notwithstanding anything to the contrary contained herein , Servicer shall act at the direction of the Company with respect to all matters relating to each Investment that is subject to an Event of Default .


If a court of competent jurisdiction orders , at any time that any amount received or collected in respect of the Loan must , pursuant to any insolvency , bankruptcy , fraudulent conveyance , preference or similar law , be returned to the Borrower or paid to any Holder or any other Person , then , notwithstanding any other provision of this Agreement , the Servicer shall not be required to distribute any portion thereof to any Holder , and all Holders shall promptly on demand repay to the Servicer the portion thereof which shall have been theretofore distributed to the related Holder , together with interest thereon at such rate , if any , as the Servicer shall have been required to pay to the Borrower , the Holders , or such other Person with respect thereto .


Each Holder agrees that if at any time it shall receive from any source whatsoever ( other than as a distribution from the Servicer to which it is entitled hereunder ) any payment on account of the Loan in excess of amounts due such Holder hereunder , it will promptly remit such excess to the Servicer .


The Servicer shall have the right to offset any amounts due hereunder from any Holder 7 with respect to the Loan against any future payments due to such Holder from the Loan ; provided , that the obligations of each Holder under this Section 3 are separate and distinct obligations from one another .


The obligations of each Holder under this Section 3 constitute absolute , unconditional and continuing obligations .


No Holder shall have any liability to any other Holder hereunder , except with respect to losses actually suffered due to the gross negligence , willful misconduct or breach of this Agreement on the part of such Holder .


The Servicer shall notify the Holders promptly if the Borrower seeks or requests a release of the lien with respect to the Loan or seeks or requests the Lender ' s consent to , or takes any action in connection with or in furtherance of , any Borrower Transfer , incurring additional indebtedness or a Principal Prepayment of the Loan .


If the Borrower requests consent to a Borrower Transfer or incurring any incur additional indebtedness , the Servicer shall obtain the prior written consent of the Company prior to the Lender ' s granting consent or agreement thereto ( which consent shall be subject to the same standard applicable to the Lender ' s ability to withhold such consent set forth in the Loan Documents ).


An event of default by Servicer ( a " Servicer Default ") hereunder shall exist in the event that one or more of the following events shall occur and be continuing beyond any applicable grace or cure periods : ( i ) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency , readjustment of debt , marshalling of assets and liabilities or similar proceedings , or for the winding - up or liquidation of its affairs , shall have been entered against Servicer ; ( ii ) Servicer shall consent to the appointment of a conservator or receiver or liquidator or liquidating committee in any insolvency , readjustment of debt , marshalling of assets and liabilities , voluntary liquidation or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property ; ( iii ) Servicer shall admit in writing its inability to pay its debts generally as they become due , file a petition to take advantage of any applicable insolvency or reorganization statute , make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations ; ( iv ) any failure on the part of Servicer to observe or perform in any material respect any covenant or agreement on the part of Servicer contained in this Agreement , which remains unremedied for a period of fifteen ( 15 ) Business Days after the date on which written notice of such failure , requiring the same to be remedied , shall have been given to Servicer by a Holder ( except that said fifteen ( 15 ) Business Day period shall be 8 extended for such period of time as shall be reasonably necessary in order to cure such default as long as Servicer shall be diligently prosecuting such cure to completion and said extended period would not reasonably be expected to materially impair a Holder ' s interest in the Loan but in no event shall such additional period exceed sixty ( 60 ) days ); or ( v ) any failure by Servicer to notify the Holders of a default by Borrower under the Loan Documents within five ( 5 ) Business Days after Servicer ' s receipt of written notice thereof .


In the event of a Servicer Default in addition to whatever other rights the Holders may have hereunder or at law or in equity , the Company , may by notice given to Servicer and the other Holders terminate all of the rights and obligations of Servicer as servicer of the Loan , and in such event the Company shall appoint another servicer to perform the obligations of Servicer pursuant to the terms hereof .


In the event of such termination , the Servicer shall cooperate with the Holders and any such successor servicer in the transition of such servicing obligations , turning over all Loan Documents in Servicer ' s possession ( other than , if applicable , those held in its capacity as a Holder ), and such successor servicer shall deliver to each of the Holders a writing in recordable form whereby it assumes all of the obligations of Servicer hereunder .


The Holders shall have the right to appoint a special servicer upon two ( 2 ) Business Days written notice to Servicer with respect to any Investment that is subject to an Event of Default .


In the event that a special servicer is appointed with respect to an Investment , ( 1 ) Servicer shall cooperate with the Holders and any special servicer in the transition of such servicing obligations , including , without limitation , turning over all Loan Documents in Servicer ' s possession with respect to such Investment to such special servicer or as otherwise directed by the Holders , and ( 2 ) Servicer shall not be entitled to a Workout Fee or Management Fee with respect to such Investment for any period following receipt of written notice of the appointment of the special servicer .


With respect to each Loan , Servicer hereby represents and warrants to each of the Holders on the date of acquisition of such Loan by the Holders : ( a ) if Servicer or any Affiliate ( as defined in the Master Venture Agreement ) of Servicer acquired the Loan , Servicer and / or such Affiliate conveying the Loan to the Holders have good title to , and are the sole holders of the Loan , free and clear of any liens , security interests , claims , charges or other encumbrances ; ( b ) Servicer has not assigned , pledged , transferred or encumbered all or any portion of the Loan ; ( c ) Servicer has no other material agreements with the Borrower under the Loan with respect to the Loan other than as set forth in the Loan Documents , ( d ) none of the Borrower or any guarantors under the Loan have been released by Servicer from any obligation under any of the Loan Documents , and no collateral has been 9 released by Servicer from the lien of any other security agreement executed in connection with the Loan ; ( e ) the Servicer has acted in accordance with Accepted Loan Servicing Practices in acquiring the Loan ; and ( f ) the Servicer will report the Loan as a purchase of an interest in the Loan under generally accepted accounting principles .


No Investment shall be deemed to be a security within the meaning of the Securities Act of 1933 or the Securities Exchange Act of 1934 .


Each Holder acknowledges that , subject to the terms of this Agreement , ( i ) each Holder may exercise or refrain from exercising any rights that such Holder may have hereunder in a manner that may be adverse to the interests of the other Holder , so long as such actions are in accordance with the terms of this Agreement , ( ii ) a Holder shall have no liability whatsoever to the other Holder as a result of such Holder ' s exercise of such rights or any omission by such Holder to exercise such rights , except as expressly provided herein or for acts or omissions that are taken or omitted to be taken by such Holder that constitute the gross negligence or willful misconduct of such Holder or a breach of this Agreement , and ( iii ) the Servicer shall service and administer the Loan on behalf of the Holders in accordance with the terms of this Agreement , taking into account the interests of the Holders and in accordance with Accepted Loan Servicing Practices .


Wherever possible , each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law , but if any provision of this Agreement shall be prohibited by or invalid under applicable laws , such provision shall be ineffective to the extent of such prohibition or invalidity , without invalidating the remainder of such provision or the remaining provisions of this Agreement .


This Agreement shall not be deemed to represent a pledge of any interest in the Loan by any Holder to any other Holder , or a loan from any Holder to any other Holder .


No Holder shall have any interest in any property taken as security for the Loan .


The Holders acknowledge and agree that the Loan represents a single " claim " under Section 101 of the Bankruptcy Code , and that no Holder would be a separate creditor of the Borrower under the Bankruptcy Code .


The obligations of the Holders under this Agreement are separate and distinct and no such Holder shall be liable for defaults by the other .


THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE .


EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION , PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT .


This Agreement shall not be modified , cancelled or terminated except by an instrument in writing signed by the parties hereto .


The party seeking modification of this Agreement shall be solely responsible for any and all expenses that may arise in order to modify this Agreement .


SUCCESSORS AND ASSIGNS ; THIRD PARTY BENEFICIARIES .


This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns ; provided that no successors or assigns of any Holder shall have any liability for a breach of a representation or warranty set forth in this Agreement or any side agreement ( but the liability of the Holder that made such representation shall survive ).


Except as provided in the preceding sentence , none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto or a successor or assign of a party hereto .


This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument .


This Agreement may be executed by signature ( s ) transmitted by facsimile or PDF provided that original signature pages follow .


The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement .


All notices required hereunder shall be given by ( a ) telephone ( confirmed in writing if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service ( charges prepaid )) or shall be in writing and personally delivered , ( b ) facsimile transmission or e - mail if the sender on the same day sends a confirming copy of such notice by reputable overnight delivery service ( charges prepaid ), ( c ) reputable overnight delivery 11 service ( charges prepaid ) or ( d ) certified United States mail , postage prepaid return receipt requested , and addressed to the respective parties at their addresses set forth in the Master Venture Agreement , or at such other address as any party shall hereafter inform the other party by written notice given as aforesaid .


All written notices so given shall be deemed effective upon receipt or , if mailed , upon the earlier to occur of receipt or the expiration of the fourth ( 4th ) day following the date of mailing .


The Lender or the Servicer on its behalf , as agent for the Holders , shall maintain a register for the recording of the names and addresses of the Holders , the name and address of each Holder ' s agent for service of process ( the " Register ").


The entries in the Register shall be conclusive and binding for all purposes , absent manifest error , and the Servicer and the Holders may treat each person or entity whose name is recorded in the Register as a Holder hereunder for all purposes of this Agreement .


The Register shall be available for inspection and copying by any Holder during normal business hours upon reasonable prior notice to the Servicer .


12 IN WITNESS WHEREOF , each of the parties hereto have caused this Agreement to be duly executed as of the day and year first above written .


PIM ASHFORD VENTURE I , LLC , a Delaware limited liability company By : PRISA III Investments , a Delaware limited liability company By : PRISA III REIT Operating LP , a Delaware limited partnership , its sole member By : PRISA III OP GP , LLC , a Delaware limited liability company , its general partner By : PRISA III Fund LP , a Delaware limited partnership , its manager By : PRISA III Fund GP , LLC , a Delaware limited liability company , its general partner By : PRISA III Fund PIM , LLC , a Delaware limited liability company , its sole member By : Prudential Investment Management , Inc ., a Delaware corporation , its sole member By : Name : James P . Walker Title : Vice President By : Ashford Hospitality Finance LP , a Delaware limited partnership By : Ashford Hospitality Finance General Partner LLC , a Delaware limited liability company , its general partner By : Name : David Brooks Title : Vice President Signature Page to Loan Servicing Agreement ASHFORD HOSPITALITY SERVICING LLC , a Delaware limited liability company By : Name : David Brooks Title : Vice President Signature Page to Loan Servicing Agreement SCHEDULE 1 LOAN DOCUMENTS Source : OneCLE Business Contracts .


1 ] - Union Bank of California NA and Crocs Inc . [ UNION BANK OF CALIFORNIA LOGO ] AMENDMENT NO .


1 TO LOAN AGREEMENT ( this " Amendment "), dated as of November 21 , 2007 , is entered into by and among Union Bank of California , N . A ., (" Bank "), and Crocs , Inc ., a Delaware corporation (" Borrower "), with reference to the following facts : RECITALS A .


The Borrower and Bank are parties to that certain Loan Agreement , dated as of May 8 , 2007 , ( the " Loan Agreement "), as amended from time to time , pursuant to which the Bank has provided the Borrower with certain credit facilities .


B . Borrower has requested that Bank increase the commitment amount of certain of the existing credit facilities , extend maturity dates , and make certain other modifications to the Loan Agreement .


C . Bank is willing to grant such accommodations to Borrower on the terms and conditions set forth below .


NOW , THEREFORE , the parties hereby agree as follows : 1 .


Any and all initially capitalized terms used in this Amendment ( including , without limitation , in the recitals hereto ) without definition shall have the respective meanings specified in the Loan Agreement .


Section 1 . 1 . 1 of the Loan Agreement is hereby amended by substituting the words " Twenty - Five Million Dollars ($ 25 , 000 , 000 )" for the words " Fifteen Million Dollars ($ 15 , 000 , 000 )".


Add Minimum Net Domestic Accounts Receivable covenant .


Section 4 . 14 of the Loan Agreement is hereby added to read in full as follows : " 4 . 14 Minimum Domestic Accounts Receivable .


Borrower will maintain Domestic Accounts Receivable of not less than $ 35 , 000 , 000 as of the fiscal quarter ended December 31 , 2007 and not less than $ 40 , 000 , 000 as of the fiscal quarter ended March 31 , 2008 and thereafter .


" Domestic Accounts Receivable " means accounts receivable owing to Borrower , payable in United States dollars , arising out of the sale or lease of goods or the rendition of services by Borrower , with respect to which the account debtor is a resident of the United States ."


The effectiveness of this Amendment shall be subject to the prior satisfaction of each of the following conditions : ( a ) This Amendment .


The Bank shall have received an original of this Amendment , duly executed by the Borrower and the Bank ; ( b ) Other Documents .


The Borrower shall have executed and delivered to the Bank the Revolving Note and such other documents and instruments as the Bank may reasonably require .


( a ) Survival of Representations and Warranties .


All representations and warranties made in the Loan Agreement or in any other document or documents relating thereto , including , without limitation , any Loan Documents furnished in connection with this Amendment , shall survive the execution and delivery of this Amendment and the other Loan Documents , and no 1 investigation by the Bank or any closing shall affect the representations and warranties or the right of the Bank to rely thereon .


The Borrower is not aware of any events which now constitute , or with the passage of time or the giving of notice , or both , would constitute , an Event of Default under the Loan Agreement .


The Loan Agreement , each of the other Loan Documents , and any and all other agreements , documents or instruments now or hereafter executed and delivered pursuant to the terms hereof , or pursuant to the terms of the Loan Agreement as amended hereby , are hereby amended so that any reference therein to the Loan Agreement shall mean a reference to the Loan Agreement as amended hereby .


( d ) Loan Agreement Remains in Effect .


The Loan Agreement and the other Loan Documents remain in full force and effect and the Borrower ratifies and confirms its agreements and covenants contained therein .


The Borrower hereby confirms that , after giving effect to this Amendment , no Event of Default or Default exists as of such date .


Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable .


THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA .


This Amendment is binding upon and shall inure to the benefit of the Bank and the Borrower and their respective successors and assigns ; provided , however , that the Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of the Bank .


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


The headings , captions and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment .


THIS AMENDMENT , TOGETHER WITH THE OTHER LOAN DOCUMENTS AS WRITTEN , REPRESENTS THE FINAL AGREEMENT BETWEEN THE LENDERS AND THE BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR , CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES .


THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE BANK AND THE BORROWER .


2 IN WITNESS WHEREOF , the parties have entered into this Amendment by their respective duly authorized officers as of the date first above written .


CROCS , INC . By : / s / Peter Case Peter Case Title : Chief Financial Officer Address : 6328 Monarch Park Place Niwot , Colorado 80503 Attention : Keith Love , Treasury Manager Telecopier : ( 303 ) 858 - 7048 Telephone : ( 303 ) 848 - 7084 UNION BANK OF CALIFORNIA , N . A .


By : / s / Douglas S . Lambell Douglas S . Lambell Title : Vice President Address : 530 B Street , 4th Floor San Diego , California 92101 Attention : Douglas S . Lambell , VP Telecopier : ( 619 ) 230 - 3766 Telephone : ( 619 ) 230 - 3029 3 Source : OneCLE Business Contracts .