Common use of Assumed Debt Clause in Contracts

Assumed Debt. The Overland Park Lender shall have agreed to the assumption of all of the indebtedness and obligations of the Candlewood Parties relating to the Assumed Debt arising from and after the Closing Date (including, without limitation, all of the payment obligations of the Candlewood Parties with respect to the Assumed Debt on and as of the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as the Purchaser and the Overland Park Lender deem acceptable in their sole discretion and the Overland Park Lender shall have provided the Purchaser with evidence regarding the outstanding principal balance of the Assumed Debt as of the Closing Date. Notwithstanding anything contained in this Section 4.11 to the contrary, (a) in no event shall the Purchaser have the right to condition its assumption of the Assumed Debt upon the Purchaser's receipt of terms and conditions with respect to the Assumed Debt which are more favorable than those that are currently in place and (b) if, prior to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent shall be null and void. If any of the foregoing conditions precedent have not been satisfied on the Outside Closing Date, then the Purchaser shall have the right, in its sole discretion, to terminate this Agreement by notice given to the Candlewood Parties on or after the Outside Closing Date, and Section 11.2(a) below shall be applicable to any such termination, it being expressly understood and agreed that to the extent that any of the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitation, the condition precedent set forth in Section 4.5 hereof), then the aforementioned termination right may be exercised by the Purchaser regardless of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effect.

Assumed Debt. The Overland Park Lender shall have agreed 2.4.1 As further described herein, Purchaser will use its diligent best efforts (1) to cause Purchaser or a Permitted Assignee to purchase the First Pool Assets subject to the assumption of all existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the indebtedness documents, agreements and obligations instruments now or hereafter evidencing, securing or delivered in connection with any of the Candlewood Parties relating to the Assumed Debt arising (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from and after time to time as required by the Closing Date (terms thereof or otherwise with the consent of Purchaser), including, without limitation, all of those documents, agreements and instruments listed on Schedule 4, the payment obligations of the Candlewood Parties with respect “Loan Documents”), and (2) to assume the Assumed Debt on and as of at Closing, in each case, in accordance with the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as set forth herein, including Section 13.5 (the “Debt Assumption”). For the avoidance of doubt, “diligent best efforts” does not include filing suit against Lender to cause Lender to approve the Debt Assumption. In the event that Purchaser and or a Permitted Assignee consummates the Overland Park Lender deem acceptable in their sole discretion and Debt Assumption at Closing, the Overland Park Lender shall have provided Cash Consideration due to the Purchaser with evidence regarding Sellers of the outstanding principal balance First Pool Assets which are encumbered by the Lien of the Assumed Debt at Closing (the “Encumbered Hotel Assets”) will be decreased by an amount equal to all outstanding principal under the Assumed Debt encumbering the Encumbered Hotel Assets transferred at Closing as of the Closing Date. Notwithstanding , where such amounts are assumed by Purchaser or a Permitted Assignee in connection with the Debt Assumption, and, notwithstanding anything contained herein (or in any other document delivered pursuant to this Section 4.11 Agreement), the Encumbered Hotel Assets will be conveyed subject to the contrary, (a) in no event shall the Purchaser have the right to condition its assumption Liens of the Assumed Debt upon the Purchaser's receipt of terms and conditions with respect to the Assumed Debt which are more favorable than those that are currently in place and (b) if, prior to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent such Liens shall be null and void. If any of the foregoing conditions precedent have not been satisfied Permitted Exceptions for all purposes hereunder. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on the Outside Closing DateNovember 26, then the 2014, Purchaser shall have the rightopportunity to determine to its satisfaction whether to consummate the Debt Assumption or otherwise obtain other or alternative financing to replace the Assumed Debt (the “Replacement Debt”) in order to enable it to consummate the acquisition of the Property. This Agreement shall automatically (and without any further action of any party) terminate at 5:00 P.M., Eastern Standard Time, on November 26, 2014, unless, prior to such time, Purchaser has delivered a written notice to Sellers in its sole discretionthe exact form of Exhibit Q attached hereto (without any modification, except to terminate insert a date of the notice prior to November 26, 2014) (such written notice, the “Go Forward Notice”) electing to proceed with such acquisition. If Purchaser delivers a purported Go Forward Notice that is modified in any way from the form of Go Forward Notice attached hereto as Exhibit Q (other than modifying the date to a date earlier than November 26, 2014), such purported Go Forward Notice shall not be effective or constitute a “Go Forward Notice” and this Agreement by notice given shall automatically terminate in accordance with the preceding sentence at 5:00 P.M. Eastern Standard Time on November 26, 2014, unless Purchaser delivers a valid and effective Go Forward Notice prior to such time. In the event that this Agreement is terminated pursuant to the Candlewood Parties on or after immediately preceding sentences, Purchaser shall receive a return of the Outside Closing DateXxxxxxx Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 11.2(a) below shall be applicable to any 7.2.1 hereof. Following such automatic termination, it being Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly understood and agreed that to survive the extent that any of termination hereof. If Purchaser timely delivers the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitationGo Forward Notice, the condition precedent Xxxxxxx Money shall no longer be refundable to Purchaser except as expressly set forth in Section 4.5 the balance of this Agreement and Purchaser shall be obligated to proceed to Closing in accordance with the terms hereof). 2.4.3 In connection with the foregoing, then subject to the aforementioned termination right may other terms and conditions of this Agreement, Sellers shall cause Whitehall Street Global Real Estate Limited Partnership 2007 and Whitehall Parallel Global Real Estate Limited Partnership 2007 (the latter two entities, together, “Whitehall”) to provide new guarantees and indemnities in respect of the Assumed Debt in substantially the same form as attached hereto as Exhibit P (collectively, the “Whitehall Guarantees”) and Purchaser shall cause the Supplemental Agreement in the form attached hereto as Exhibit D (the “Supplemental Agreement”) to be exercised executed and delivered to each of Whitehall and the Sellers at Closing by Purchaser REIT, Purchaser Parent, Purchaser and each of the individuals listed therein as parties thereto (such individuals, the “Indemnitors”) and cause each of the Indemnitors to join and deliver to the Sellers at Closing each of the agreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4. For the avoidance of doubt, each of Purchaser regardless Parent and Purchaser REIT shall also be required to provide guarantees and indemnities under the Assumed Debt and each of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effectagreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4, in each case, as contemplated in this Agreement.

Assumed Debt. The Overland Park Lender (a) Certain of the Properties are subject to mortgage liens which secure existing indebtedness of Sellers more particularly described in Exhibit B hereto ("Existing Debt"). Each holder of the Existing Debt shall have agreed hereinafter be referred to as a "Lender" and collectively, as the "Lenders." Subject to the provisions of subsection (c) below, it is a condition of Purchaser's obligations hereunder that all of the Existing Debt with the exception of the Existing Debt secured by the Property located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xx (the Property located at 0000 Xxxxxxx Xxxxxx shall be referred to as the "Andover Street Property" and the Existing Debt which is secured by the Andover Street Property shall be referred to as the "Andover Street Debt") will be prepaid at the time of Closing (as defined in Section 3.1) and that Purchaser will acquire the Properties subject to the Andover Street Debt and any liens securing such debt, but free and clear of all other Existing Debt and the liens securing such other Existing Debt. (b) During the Inspection Period, the parties shall cooperate in good faith and with reasonable diligence to obtain the approval of the holder of the Andover Street Debt (the "Andover Lender") to (i) the conveyance of the Andover Street Property to Purchaser subject to the Andover Street Debt and (ii) the assumption of the Andover Street Debt by Purchaser on terms and conditions substantially the same as those set forth in the documents which evidence and secure the Andover Street Debt (the "Required Consent"). Purchaser acknowledges that the initial communications with the Andover Lender or any other Lender shall be through Sellers and Purchaser shall not initially directly contact or communicate with any Lender without the prior written consent of Sellers. Purchaser shall promptly provide Sellers and the Andover Lender with all information reasonably requested by the Andover Lender in order to facilitate obtaining the Required Consent and shall comply with all commercially reasonable conditions precedent to the effectiveness of the indebtedness and obligations of the Candlewood Parties relating to the Assumed Debt arising from and after the Closing Date (Required Consent, including, without limitation, assuming any obligations of Sellers which are non-recourse carve-outs identical in all material respects to those obligations guaranteed by Sellers (e.g. environmental indemnities, losses due to fraud or willful or wanton acts or misconduct) and satisfying any commercially reasonable financial or net worth requirements New England Portfolio of the Andover Lender required to secure such obligations In any event, Purchaser shall not be obligated to acquire the Andover Street Property subject to the Andover Street Debt unless the terms and conditions of the Required Consent are commercially reasonable. In no event shall any condition which requires Purchaser to undertake any recourse obligation which is greater in scope from the recourse obligations originally undertaken by the Seller or MGI under the Andover Street Debt (and the loan documents evidencing and securing such debt) or which increases the interest rate, the regular monthly installments of debt service, the scope of the escrow requirements or the prepayment premium or decreases the term or the period in which the loan may be prepaid or otherwise changes in any materially adverse respect the default provisions or the borrower's obligations under the documents evidencing or securing the Andover Street Debt be deemed commercially reasonable. Provided that the Required Consent is obtained, Purchaser shall assume the Andover Street Debt which shall hereafter be referred to as "Assumed Debt" and Seller shall pay at Closing any assumption fees which may be due and all other charges imposed by the Andover Lender in connection with the granting of the Required Consent. (c) Notwithstanding anything herein to the contrary, if the Required Consent is not obtained by the Closing Date, the parties shall close on all of the payment Properties other than the Andover Street Property, subject to all of the other terms and conditions of this Agreement, except that the Purchase Price shall be reduced by the Allocable Purchase Price (as defined in Section 2.4) of the Andover Street Property as set forth in Exhibit O and a portion of the Deposit equal to 3.65% of the Allocable Purchase Price of the Andover Street Property shall be retained by Escrow Agent to bind Purchaser's obligations to purchase the Andover Street Property as hereinafter set forth in this subsection. If within the sixty (60) day period following the Closing, the Required Consent is obtained, Sellers shall sell and Purchaser shall acquire the Andover Street Property for a purchase price equal to the Allocable Purchase Price of the Andover Street Property and otherwise on the terms and conditions set forth in this Agreement. The closing of the Andover Street Property shall occur ten (10) days after the Required Consent is obtained. If within such sixty (60) day period, the Required Consent is not obtained, then that portion of the Deposit allocable to the Andover Street Property shall be returned to Purchaser and all obligations of the Candlewood Parties parties hereto with respect to the Assumed Debt on Andover Street Property shall cease and as of the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as the Purchaser and the Overland Park Lender deem acceptable in their sole discretion and the Overland Park Lender shall have provided the Purchaser with evidence regarding the outstanding principal balance of the Assumed Debt as of the Closing Date. Notwithstanding anything contained in this Section 4.11 to the contrary, (a) in no event shall the Purchaser have the right to condition its assumption of the Assumed Debt upon the Purchaser's receipt of terms and conditions Agreement with respect to the Assumed Debt Andover Street Property shall be void and without recourse to the parties (except those provisions which are more favorable than those that are currently in place and (b) if, prior expressly intended to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent shall be null and void. If any of the foregoing conditions precedent have not been satisfied on the Outside Closing Date, then the Purchaser shall have the right, in its sole discretion, to terminate this Agreement by notice given to the Candlewood Parties on or after the Outside Closing Date, and Section 11.2(a) below shall be applicable to any survive such termination, it being expressly understood and agreed that to the extent that any of the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitation, the condition precedent set forth in Section 4.5 hereof), then the aforementioned termination right may be exercised by the Purchaser regardless of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effect.

Assumed Debt. The Overland Park Lender shall have agreed 2.4.1 As further described herein, Purchaser will use its diligent best efforts (1) to cause Purchaser or a Permitted Assignee to purchase the First Pool Assets subject to the assumption of all existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the indebtedness documents, agreements and obligations instruments now or hereafter evidencing, securing or delivered in connection with any of the Candlewood Parties relating to the Assumed Debt arising (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from and after time to time as required by the Closing Date (terms thereof or otherwise with the consent of Purchaser), including, without limitation, all of those documents, agreements and instruments listed on Schedule 4, the payment obligations of the Candlewood Parties with respect “Loan Documents”), and (2) to assume the Assumed Debt on and as of at Closing, in each case, in accordance with the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as set forth herein, including Section 13.5 (the “Debt Assumption”). For the avoidance of doubt, “diligent best efforts” does not include filing suit against Lender to cause Lender to approve the Debt Assumption. In the event that Purchaser and or a Permitted Assignee consummates the Overland Park Lender deem acceptable in their sole discretion and Debt Assumption at Closing, the Overland Park Lender shall have provided Cash Consideration due to the Purchaser with evidence regarding Sellers of the outstanding principal balance First Pool Assets which are encumbered by the Lien of the Assumed Debt at Closing (the “Encumbered Hotel Assets”) will be decreased by an amount equal to all outstanding principal under the Assumed Debt encumbering the Encumbered Hotel Assets transferred at Closing as of the Closing Date, where such amounts are assumed by Purchaser or a Permitted Assignee in connection with the Debt Assumption, and, notwithstanding anything herein (or in any other document delivered pursuant to this Agreement), the Encumbered Hotel Assets will be conveyed subject to the Liens of the Assumed Debt and such Liens shall be Permitted Exceptions for all purposes hereunder. Notwithstanding anything contained In furtherance of the foregoing, but subject to the last paragraph of Section 2.4.2, on or before the thirtieth (30th) day following the Effective Date (such date, the “Guarantor Identification Date”), Purchaser shall identify in writing to Sellers the entity other than Purchaser Parent and Purchaser REIT that will serve as the Replacement Guarantor (as defined in the Loan Documents) in respect of the Assumed Debt and the Debt Assumption and as the guarantor under the Purchaser Holdco Operating Agreement (the “Additional Guarantor”). 2.4.2 In the event that Purchaser has complied with the obligations and covenants set forth in Sections 2.4.1 and 13.5 hereof but (i) on or before August 27, 2014, Lender does not give the approvals for the Debt Assumption required by the Loan Documents (provided that this clause (i) shall not apply with respect to matters addressed by the last paragraph of this Section 4.11 2.4.2 or the following clause (ii)), or (ii) Lender informs either Sellers or Purchaser that it will not approve Whitehall as a Replacement Guarantor and will not approve Whitehall as a continuing “Guarantor” under the Assumed Debt such that the Debt Assumption cannot be consummated (provided that Purchaser has not been in breach or default at any time of any of its covenants under Sections 2.4.1 or 13.5, or any of its representations or warranties under Section 9.6 (provided, however, that Seller shall not have a claim for any breach of any such representations or warranties for so long as Lender has not informed Sellers or Purchaser that it will not approve the Debt Assumption because of such breach or the facts underlying such breach of representation or warranty)), in either case, Purchaser shall provide prompt written notice of such failure to Sellers and shall elect in such written notice to either: (a) terminate this Agreement and receive a return of the Xxxxxxx Money (such written termination notice, the “Debt Assumption Failure Termination Notice”); provided, however, that Purchaser may not proceed under this clause (a), and shall not be entitled to a return of its Xxxxxxx Money in the event that Sellers have theretofore exercised their available remedies to terminate this Agreement and retain the Xxxxxxx Money; or (b) proceed to Closing (subject to any rights of extension set forth herein), regardless of whether it is able to later consummate the Debt Assumption or obtain other or alternative financing to replace the Assumed Debt (the “Replacement Debt”, and such written notice electing to proceed, the “Go Forward Notice”), in which case the Xxxxxxx Money shall no longer be refundable to Purchaser except as expressly set forth in the balance of this Agreement and Purchaser shall be obligated to proceed to Closing in accordance with the terms hereof (and, notwithstanding anything herein to the contrary, (a) Purchaser’s obligation to consummate the Closing shall not in no any way be subject to or conditioned upon Purchaser consummating the Debt Assumption or obtaining or closing on Replacement Debt). In the event that Purchaser delivers a Go Forward Notice, Purchaser shall the Purchaser have the right to condition select a new Closing Date, which date shall be no later than December 15, 2014; provided that, in the event such new Closing Date is after September 26, 2014, Purchaser shall concurrently deposit the Supplemental Xxxxxxx Money in accordance with Section 4.1.1. If Purchaser has not delivered (A) in the case of clause (i) above, either a Debt Assumption Failure Termination Notice or a Go Forward Notice prior to August 27, 2014 or (B) in the case of clause (ii) above, either a Debt Assumption Failure Termination Notice or a Go Forward Notice within ten (10) days of Purchaser being informed of Lender’s decision pursuant to clause (ii) above, Purchaser shall be deemed to have delivered a Go Forward Notice and to proceed under clause (b) above. Upon delivery (or deemed delivery) of the Go Forward Notice, Purchaser’s obligations and responsibilities hereunder shall no longer in any way be subject to or conditioned upon Purchaser consummating the Debt Assumption or obtaining or closing on Replacement Debt (subject to the last paragraph of this Section 2.4.2). Notwithstanding anything to the contrary in the last sentence of Section 2.4.1 or this Section 2.4.2, if (x) Purchaser is unable to identify an Additional Guarantor by the Guarantor Identification Date and Purchaser shall have given Sellers notice of the same on or prior to such date, or (y) if Purchaser has identified an Additional Guarantor by the Guarantor Identification Date but on or before August 27, 2014 either (i) the Additional Guarantor, Purchaser Parent, or both the Additional Guarantor and Purchaser Parent together are not approved as a Replacement Guarantor by Lender (provided that Purchaser has not been in breach or default at any time of any of its assumption covenants under Sections 2.4.1 or 13.5, or any of its representations or warranties under Section 9.6; provided, however, that Sellers shall not have a claim for any breach of any such representations or warranties for so long as Lender has not informed Sellers or Purchaser that it will not approve the Debt Assumption because of such breach or the facts underlying such breach of representation or warranty) or (ii) the Additional Guarantor becomes unavailable to serve as the Replacement Guarantor by no fault or manipulation of Purchaser or its affiliates, such that, in each case under this clause (y), the Debt Assumption cannot be consummated, and Purchaser shall have delivered written notice to Sellers within ten (10) days of learning of such failure or unavailability, but in any event, no later than August 27, 2014, then in each of the cases of (x) and (y), Sellers shall cause Whitehall Street Global Real Estate Limited Partnership 2007 and Whitehall Parallel Global Real Estate Limited Partnership 2007 (the latter two entities, together, “Whitehall”) to either continue to provide their guarantees and indemnities under the Assumed Debt or to provide new guarantees and indemnities in respect of the Assumed Debt upon in substantially the Purchaser's receipt same form as their existing guarantees and indemnities under the Assumed Debt (collectively, the “Whitehall Guarantees”) and Purchaser shall cause the Supplemental Agreement in the form attached hereto as Exhibit D (the “Supplemental Agreement”) to be executed and delivered to each of terms Whitehall and conditions the Sellers at Closing by Purchaser REIT, Purchaser Parent, Purchaser and each of the individuals listed therein as parties thereto (such individuals, the “Indemnitors”) and cause each of the Indemnitors to join and deliver to the Sellers at Closing each of the agreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4. For the avoidance of doubt, if Whitehall is required to provide the Whitehall Guarantees, each of Purchaser Parent and Purchaser REIT shall continue to be required to provide guarantees and indemnities under the Assumed Debt and each of the agreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4, in each case, as contemplated in this Agreement. If Purchaser shall fail to deliver written notice to Sellers within the time periods identified in clauses (x) or (y) of this paragraph, as applicable, Purchaser shall be deemed to have automatically waived its rights set forth in this paragraph with respect to the Assumed Debt triggering event for which are more favorable than those that are currently in place and (b) if, prior to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent shall be null and void. If any of the foregoing conditions precedent have not been satisfied on the Outside Closing Date, then the Purchaser shall have the right, in its sole discretion, to terminate this Agreement by notice given to the Candlewood Parties on or after the Outside Closing Date, and Section 11.2(a) below shall be applicable to any such termination, it being expressly understood and agreed that to the extent that any of the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitation, the condition precedent set forth in Section 4.5 hereof), then the aforementioned termination right may be exercised by the Purchaser regardless of whether the failure to satisfy such condition precedent could reasonably be expected was required to have a Material Adverse Effectdelivered notice.

Assumed Debt. The Overland Park Lender shall have Consents and Estoppels. Purchaser is assuming at Closing the existing debt listed on Schedule 1.6 for one of the Facilities, which indebtedness is held or serviced by: the United States Department of Housing and Urban Development ("HUD"), and Purchaser has agreed to pay any prepayment penalties associated with the assumption of all prepayment of the indebtedness also listed on Schedule 1.6 and obligations held or serviced by the Federal National Mortgage Association ("FNMA"), which indebtedness shall be repaid at the Closing for the Facility encumbered thereby. In addition, Purchaser has the right, but not the obligation, to assume all or any portion of the Candlewood Parties relating existing debt listed on Schedule 4.17, which indebtedness is held or serviced by (a) certain industrial development authorities (the "IDAs"), and (b) certain tax exempt authorities ("Tax Exempt Issuers"). The HUD indebtedness, together with any IDAs and Tax Exempt Issuers indebtedness that Purchaser elects to assume and actually assumes at Closing, are sometimes collectively referred to as the "Assumed Debt". Seller shall use commercially reasonable efforts, in cooperation and coordination with Purchaser, to obtain the necessary consents for Purchaser to assume the Assumed Debt arising pursuant to the terms and conditions of the Debt Documents related thereto, and to obtain estoppel letters from and after all such entities confirming compliance with all required obligations under the Closing Date (including, without limitationapplicable Debt Documents, all of the payment obligations of the Candlewood Parties in form and substance reasonably satisfactory to Purchaser. Purchaser will pay application fees and similar costs and expenses and any assumption fee with respect to the Assumed Debt on and as up to, but not to exceed, one percent (1%) of the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as the Purchaser and the Overland Park Lender deem acceptable in their sole discretion and the Overland Park Lender shall have provided the Purchaser with evidence regarding the then outstanding principal balance of owed under the Assumed Debt as in connection with obtaining the consents of the Closing Date. Notwithstanding anything contained in this Section 4.11 to the contraryHUD, (a) in no event shall the Purchaser have the right to condition its assumption of the Assumed Debt upon the Purchaser's receipt of terms and conditions with respect to the Assumed Debt which are more favorable than those that are currently in place and (b) ifand, prior to the Closing Date or simultaneously with the Closingif applicable, the Candlewood Parties cause IDAs and the Assumed Debt to be satisfied in full Tax Exempt Issuers. Seller will pay any and all pre-payment penalties, break up fees, or other costs or expenses in the documents securing the Assumed Debt to be discharged and otherwise terminated to the event that Purchaser's reasonable satisfaction, then this condition precedent shall be null and void. If any of the foregoing conditions precedent have not been satisfied on the Outside Closing Date, then the Purchaser shall have the right, in its sole discretion, elects not to assume the indebtedness or any portion thereof held by the XXX or the Tax Exempt Issuers, but Purchaser shall be responsible for prepayment penalties in connection with the FNMA indebtedness. To the extent that any fees or expenses, including any consents or assumption fees, exceed the 1% that Purchaser is obligated to pay hereunder, and Seller is unwilling to pay such excess, then Seller shall notify Purchaser within three (3) business days of notice to Seller from any lender of the requirement to pay such fees or such access fees or expenses, and Purchaser shall then have ten (10) business days thereafter in which to advise Seller in writing of Purchaser's election (i) to pay such excess fees or expenses and proceed to Closing or (ii) to terminate this Agreement by notice given as to the Candlewood Parties on or after Facility encumbered by such Assumed Debt pursuant to Section 11.1. Receipt of all lender consents for all Assumed Debt hereunder are part of the Outside Required Consents that are conditions precedent to Closing Date, hereunder and Section 11.2(a) below shall be applicable to any such termination, it being expressly understood and agreed that to the extent that any Seller is unable to obtain such portion of the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitationRequired Consents, the condition precedent set forth in provisions of Section 4.5 hereof), then the aforementioned termination right may be exercised by the Purchaser regardless of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effect8.2 shall apply.

Assumed Debt. The Overland Park Lender shall have agreed 2.4.1 As further described herein, Purchaser will use its diligent best efforts (1) to cause Purchaser or a Permitted Assignee to purchase the First Pool Assets subject to the assumption of all existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the indebtedness documents, agreements and obligations instruments now or hereafter evidencing, securing or delivered in connection with any of the Candlewood Parties relating to the Assumed Debt arising (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from and after time to time as required by the Closing Date (terms thereof or otherwise with the consent of Purchaser), including, without limitation, all of those documents, agreements and instruments listed on Schedule 4, the payment obligations of the Candlewood Parties with respect “Loan Documents”), and (2) to assume the Assumed Debt on and as of at Closing, in each case, in accordance with the Closing Date provided that the Purchaser has received a credit against the Purchase Price for such amount) by the Purchaser or its assignee upon such terms and conditions as set forth herein, including Section 13.5 (the “Debt Assumption”). For the avoidance of doubt, “diligent best efforts” does not include filing suit against Lender to cause Lender to approve the Debt Assumption. In the event that Purchaser and or a Permitted Assignee consummates the Overland Park Lender deem acceptable in their sole discretion and Debt Assumption at Closing, the Overland Park Lender shall have provided Cash Consideration due to the Purchaser with evidence regarding Sellers of the outstanding principal balance First Pool Assets which are encumbered by the Lien of the Assumed Debt at Closing (the “Encumbered Hotel Assets”) will be decreased by an amount equal to all outstanding principal under the Assumed Debt encumbering the Encumbered Hotel Assets transferred at Closing as of the Closing Date. Notwithstanding , where such amounts are assumed by Purchaser or a Permitted Assignee in connection with the Debt Assumption, and, notwithstanding anything contained herein (or in any other document delivered pursuant to this Section 4.11 Agreement), the Encumbered Hotel Assets will be conveyed subject to the contrary, (a) in no event shall the Purchaser have the right to condition its assumption Liens of the Assumed Debt upon the Purchaser's receipt of terms and conditions with respect to the Assumed Debt which are more favorable than those that are currently in place and (b) if, prior to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent such Liens shall be null and void. If any of the foregoing conditions precedent have not been satisfied Permitted Exceptions for all purposes hereunder. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on the Outside Closing DateNovember 26, then the 2014, Purchaser shall have the rightopportunity to determine to its satisfaction whether to consummate the Debt Assumption or otherwise obtain other or alternative financing to replace the Assumed Debt (the “Replacement Debt”) in order to enable it to consummate the acquisition of the Property. This Agreement shall automatically (and without any further action of any party) terminate at 5:00 P.M., Eastern Standard Time, on November 26, 2014, unless, prior to such time, Purchaser has delivered a written notice to Sellers in its sole discretionthe exact form of Exhibit Q attached hereto (without any modification, except to terminate insert a date of the notice prior to November 26, 2014) (such written notice, the “Go Forward Notice”) electing to proceed with such acquisition. If Purchaser delivers a purported Go Forward Notice that is modified in any way from the form of Go Forward Notice attached hereto as Exhibit Q (other than modifying the date to a date earlier than November 26, 2014), such purported Go Forward Notice shall not be effective or constitute a “Go Forward Notice” and this Agreement by notice given shall automatically terminate in accordance with the preceding sentence at 5:00 P.M. Eastern Standard Time on November 26, 2014, unless Purchaser delivers a valid and effective Go Forward Notice prior to such time. In the event that this Agreement is terminated pursuant to the Candlewood Parties on or after immediately preceding sentences, Purchaser shall receive a return of the Outside Closing DateExxxxxx Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 11.2(a) below shall be applicable to any 7.2.1 hereof. Following such automatic termination, it being Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly understood and agreed that to survive the extent that any of termination hereof. If Purchaser timely delivers the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitationGo Forward Notice, the condition precedent Exxxxxx Money shall no longer be refundable to Purchaser except as expressly set forth in Section 4.5 the balance of this Agreement and Purchaser shall be obligated to proceed to Closing in accordance with the terms hereof). 2.4.3 In connection with the foregoing, then subject to the aforementioned termination right may other terms and conditions of this Agreement, Sellers shall cause Whitehall Street Global Real Estate Limited Partnership 2007 and Whitehall Parallel Global Real Estate Limited Partnership 2007 (the latter two entities, together, “Whitehall”) to provide new guarantees and indemnities in respect of the Assumed Debt in substantially the same form as attached hereto as Exhibit P (collectively, the “Whitehall Guarantees”) and Purchaser shall cause the Supplemental Agreement in the form attached hereto as Exhibit D (the “Supplemental Agreement”) to be exercised executed and delivered to each of Whitehall and the Sellers at Closing by Purchaser REIT, Purchaser Parent, Purchaser and each of the individuals listed therein as parties thereto (such individuals, the “Indemnitors”) and cause each of the Indemnitors to join and deliver to the Sellers at Closing each of the agreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4. For the avoidance of doubt, each of Purchaser regardless Parent and Purchaser REIT shall also be required to provide guarantees and indemnities under the Assumed Debt and each of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effectagreements attached hereto as Exhibit E-2, Exhibit E-3 and Exhibit E-4, in each case, as contemplated in this Agreement.

Assumed Debt. The Overland Park Lender ASOT shall have agreed use good faith, commercially reasonable efforts during the Due Diligence Period (and thereafter) to reach an agreement with each of the applicable lenders with respect to the approval of the assumption of all of the indebtedness and obligations of the Candlewood Parties relating to the Assumed Debt by ASOT on terms reasonably acceptable to ASOT (provided that (i) the current principal business terms of the Assumed Debt (loan amount, interest rate, payment terms, maturity, lockout and prepayment restircitons and premiums) are reasonably acceptable to ASOT and (ii) ASOT agrees not to disapprove any terms or conditions unless such terms or conditions are not “market” terms or conditions), and to obtain a SNDA reasonably acceptable to ASOT and R&B with respect to any such Assumed Debt Property that is also a Leased Property, on or prior to the twenty-fifth (25th) day following the end of the Due Diligence Period (unless the applicable Closing has been extended in accordance with Section 10.1, then by the fifty-fifth (55th) day). ASOT shall also use good faith, commercially reasonable efforts to secure the agreement of the lenders to provide in the applicable assumption agreements that the applicable Property Partnership (and any principal thereof having guarantied the Assumed Debt) shall be released from all liability for matters accruing or arising from after such assumption (provided, however, if ASOT is unable to obtain such a release, it will indemnify, defend and hold wholly harmless the Property Partnership and such principal having guarantied the Assumed Debt against matters first accruing or arising after the applicable Closing Date (including, without limitation, all attorneys’ and expert witness fees and costs) and ASOT’s failure to obtain such a release shall not constitute a condition precedent to ASOT’s or the Property Partnership’s obligation to close the acquisition of the payment obligations affected Property), and that ASOT shall have no liability for any matters arising prior to the date of the Candlewood Parties assumption other than liability with respect to the Assumed Debt on environmental and as Hazardous Material liabilities under customary loan document provisions. ASOT and each of the Closing Date provided applicable Property Partnerships shall cooperate in all respects with such efforts. Notwithstanding the foregoing, the parties acknowledge that they will not take such actions with the Purchaser has received a credit against lenders for the Purchase Price for Newport Property or the Philadelphia Property, until such amount) by time as Newport Beach or Mid-Wilshire exercises its rights under the Purchaser or its assignee upon such terms and conditions as the Purchaser Newport Put Agreement and the Overland Park Lender deem acceptable in their sole discretion and the Overland Park Lender shall have provided the Purchaser with evidence regarding the outstanding principal balance of the Assumed Debt as of the Closing Date. Notwithstanding anything contained in this Section 4.11 to the contraryPhiladelphia Put Agreement, (a) in no event shall the Purchaser have the right to condition its assumption of the Assumed Debt upon the Purchaser's receipt of terms and conditions with respect to the Assumed Debt which are more favorable than those that are currently in place and (b) if, prior to the Closing Date or simultaneously with the Closing, the Candlewood Parties cause the Assumed Debt to be satisfied in full and all the documents securing the Assumed Debt to be discharged and otherwise terminated to the Purchaser's reasonable satisfaction, then this condition precedent shall be null and void. If any of the foregoing conditions precedent have not been satisfied on the Outside Closing Date, then the Purchaser shall have the right, in its sole discretion, to terminate this Agreement by notice given to the Candlewood Parties on or after the Outside Closing Date, and Section 11.2(a) below shall be applicable to any such termination, it being expressly understood and agreed that to the extent that any of the above-referenced conditions precedent are not qualified as to a Material Adverse Effect (including, without limitation, the condition precedent set forth in Section 4.5 hereof), then the aforementioned termination right may be exercised by the Purchaser regardless of whether the failure to satisfy such condition precedent could reasonably be expected to have a Material Adverse Effectrespectively.