Common use of Assumed Debt Clause in Contracts

Assumed Debt. 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 existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the documents, agreements and instruments now or hereafter evidencing, securing or delivered in connection with any of the Assumed Debt (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time as required by the terms thereof or otherwise with the consent of Purchaser), including, without limitation, those documents, agreements and instruments listed on Schedule 4, the “Loan Documents”), and (2) to assume the Assumed Debt at Closing, in each case, in accordance with the terms and conditions 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 or a Permitted Assignee consummates the Debt Assumption at Closing, the Cash Consideration due to the Sellers of the 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.

Assumed Debt. 2.4.1 As further described hereinASOT shall use good faith, Purchaser will use its diligent best commercially reasonable efforts during the Due Diligence Period (1and thereafter) to cause Purchaser or a Permitted Assignee to purchase the First Pool Assets subject to the existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and reach an agreement with each of the documents, agreements and instruments now or hereafter evidencing, securing or delivered in connection applicable lenders with any respect to the approval of the assumption of the Assumed Debt by ASOT on terms reasonably acceptable to ASOT (provided that (i) the current principal business terms of the Assumed Debt (as loan amount, interest rate, payment terms, 41 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 same may have twenty-fifth (25th) day following the end of the Due Diligence Period (unless the applicable Closing has been or may be amendedextended in accordance with Section 10.1, restated, replaced, supplemented or otherwise modified from time to time as required then by the terms 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 otherwise with arising after such assumption (provided, however, if ASOT is unable to obtain such a release, it will indemnify, defend and hold wholly harmless the consent of Purchaser), Property Partnership and such principal having guarantied the Assumed Debt against matters first accruing or arising after the applicable Closing Date (including, without limitation, those documents, agreements attorneys’ and instruments listed on Schedule 4, 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 “Loan Documents”Property Partnership’s obligation to close the acquisition of the affected Property), and (2) that ASOT shall have no liability for any matters arising prior to assume the Assumed Debt at Closingdate of the assumption other than liability with respect to environmental and Hazardous Material liabilities under customary loan document provisions. ASOT and each of the applicable Property Partnerships shall cooperate in all respects with such efforts. Notwithstanding the foregoing, in each case, in accordance the parties acknowledge that they will not take such actions with the terms and conditions set forth hereinlenders for the Newport Property or the Philadelphia Property, 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 until such time as Newport Beach or a Permitted Assignee consummates the Debt Assumption at Closing, the Cash Consideration due to the Sellers of the 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 Mid-Wilshire exercises its rights under the Assumed Debt encumbering Newport Put Agreement and the Encumbered Hotel Assets transferred at Closing as of the Closing DatePhiladelphia Put Agreement, 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 hereunderrespectively.

Assumed Debt. 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 existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the documents, agreements and instruments now or hereafter evidencing, securing or delivered in connection with any of the Assumed Debt (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time as required by the terms thereof or otherwise with the consent of Purchaser), including, without limitation, those documents, agreements and instruments listed on Schedule 4, the “Loan Documents”), and (2) to assume the Assumed Debt at Closing, in each case, in accordance with the terms and conditions 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 or a Permitted Assignee consummates the Debt Assumption at Closing, the Cash Consideration due to the Sellers of the 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. 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”).

Assumed Debt. 2.4.1 As further described herein, Lender Consents and Estoppels. Purchaser will use its diligent best efforts (1) to cause Purchaser or a Permitted Assignee to purchase the First Pool Assets subject to is assuming at Closing the existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each of the documents, agreements and instruments now or hereafter evidencing, securing or delivered in connection with any of the Assumed Debt (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time as required by the terms thereof or otherwise with the consent of Purchaser), including, without limitation, those documents, agreements and instruments debt listed on Schedule 41.6 for one of the Facilities, which indebtedness is held or serviced by: the “Loan Documents”United States Department of Housing and Urban Development ("HUD"), and Purchaser has agreed to pay any prepayment penalties associated with the prepayment of the indebtedness also listed on Schedule 1.6 and 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 existing debt listed on Schedule 4.17, which indebtedness is held or serviced by (a) certain industrial development authorities (the "IDAs"), and (2b) 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 at Closing, in each case, in accordance with pursuant to the terms and conditions 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 AssumptionDocuments related thereto, and to obtain estoppel letters from all such entities confirming compliance with all required obligations under the applicable Debt Documents, all in form and substance reasonably satisfactory to Purchaser. In the event that Purchaser or a Permitted Assignee consummates the Debt Assumption at Closing, the Cash Consideration due will pay application fees and similar costs and expenses and any assumption fee with respect to the Sellers of the First Pool Assets which are encumbered by the Lien of the Assumed Debt at Closing up to, but not to exceed, one percent (1%) of the “Encumbered Hotel Assets”) will be decreased by an amount equal to all then outstanding principal balance owed under the Assumed Debt encumbering in connection with obtaining the Encumbered Hotel Assets transferred at Closing as consents of HUD, and, if applicable, the Closing DateIDAs and the Tax Exempt Issuers. Seller will pay any and all pre-payment penalties, where such amounts are assumed break up fees, or other costs or expenses in the event that Purchaser, 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 or a Permitted Assignee 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 as to the Facility encumbered by such Assumed Debt Assumption, and, notwithstanding anything herein (or in any other document delivered pursuant to this Agreement)Section 11.1. Receipt of all lender consents for all Assumed Debt hereunder are part of the Required Consents that are conditions precedent to Closing hereunder and to the extent Seller is unable to obtain such portion of the Required Consents, the Encumbered Hotel Assets will be conveyed subject to the Liens provisions of the Assumed Debt and such Liens Section 8.2 shall be Permitted Exceptions for all purposes hereunderapply.

Assumed Debt. 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 The Overland Park Lender shall have agreed to the existing mortgage and mezzanine financing described on Schedule 3 (the “Assumed Debt”; and each assumption of all of the documents, agreements indebtedness and instruments now or hereafter evidencing, securing or delivered in connection with any obligations of the Candlewood Parties relating to the Assumed Debt arising from and after the Closing Date (as the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time as required by the terms thereof or otherwise with the consent of Purchaser), including, without limitation, those documents, agreements and instruments listed on Schedule 4, all of the “Loan Documents”), and (2) payment obligations of the Candlewood Parties with respect to assume the Assumed Debt at Closing, in each case, in accordance with 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 set forth herein, including Section 13.5 (as the “Debt Assumption”). For Purchaser and the avoidance of doubt, “diligent best efforts” does not include filing suit against Overland Park Lender to cause deem acceptable in their sole discretion and the Overland Park Lender to approve shall have provided the Debt Assumption. In Purchaser with evidence regarding the event that Purchaser or a Permitted Assignee consummates the Debt Assumption at Closing, the Cash Consideration due to the Sellers of the First Pool Assets which are encumbered by the Lien outstanding principal balance 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 . Notwithstanding anything contained 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 Section 4.11 to the Liens 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 such Liens 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 Permitted Exceptions for all purposes hereundernull 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.