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. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on November 26, 2014, Purchaser shall have the opportunity 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 the exact form of Exhibit Q attached hereto (without any modification, except to 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Notice, the ▇▇▇▇▇▇▇ 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. 2.4.3 In connection with the foregoing, subject to the 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 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 Parent and Purchaser REIT shall also 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.

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”). 2.4.2 Prior to 5:00 P.M. Eastern Standard Time 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 November 26or 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 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ Money in the event that Sellers have theretofore exercised their available remedies to terminate this Agreement and retain the opportunity ▇▇▇▇▇▇▇ Money; or (b) proceed to determine Closing (subject to its satisfaction any rights of extension set forth herein), regardless of whether it is able to later 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 electing to Sellers in the exact form of Exhibit Q attached hereto (without any modification, except to insert a date of the notice prior to November 26, 2014) (such written noticeproceed, 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Notice, which case the ▇▇▇▇▇▇▇ 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. 2.4.3 hereof (and, notwithstanding anything herein to the contrary, Purchaser’s obligation to consummate the Closing shall not in any way be subject to or conditioned upon Purchaser consummating the Debt Assumption or obtaining or closing on Replacement Debt). In connection the event that Purchaser delivers a Go Forward Notice, Purchaser shall have the right to 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 ▇▇▇▇▇▇▇ Money in accordance with Section 4.1.1. If Purchaser has not delivered (A) in the foregoingcase 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 other terms and conditions last paragraph of this AgreementSection 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 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 in substantially the same form as attached hereto as Exhibit P 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 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, if Whitehall is required to provide the Whitehall Guarantees, each of Purchaser Parent and Purchaser REIT shall also 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 triggering event for which it was required to have delivered notice.

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 hereunder. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time null and void. If any of the foregoing conditions precedent have not been satisfied on November 26the Outside Closing Date, 2014, then the Purchaser shall have the opportunity right, in its sole discretion, to determine terminate this Agreement by notice given to its satisfaction whether the Candlewood Parties on or after the Outside Closing Date, and Section 11.2(a) below shall be applicable to consummate any such termination, it being expressly understood and agreed that to 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 extent that any of the Property. This Agreement shall automatically above-referenced conditions precedent are not qualified as to a Material Adverse Effect (and including, 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 the exact form of Exhibit Q attached hereto (without any modification, except to insert a date of the notice prior to November 26, 2014) (such written noticelimitation, 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Notice, the ▇▇▇▇▇▇▇ Money shall no longer be refundable to Purchaser except as expressly condition precedent set forth in Section 4.5 hereof), then the balance aforementioned termination right may be exercised by the Purchaser regardless of this Agreement and Purchaser shall whether the failure to satisfy such condition precedent could reasonably be obligated expected to proceed to Closing in accordance with the terms hereofhave a Material Adverse Effect. 2.4.3 In connection with the foregoing, subject to the 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 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 Parent and Purchaser REIT shall also 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.

Assumed Debt. 2.4.1 As further described herein, Purchaser will use its diligent best efforts (1a) to cause Purchaser or a Permitted Assignee to purchase Certain of the First Pool Assets Properties are subject to the mortgage liens which secure existing mortgage and mezzanine financing indebtedness of Sellers more particularly described on Schedule 3 in Exhibit B hereto (the “Assumed "Existing Debt”; and each "). Each holder of the documentsExisting Debt shall hereinafter be referred to as a "Lender" and collectively, agreements and instruments now or hereafter evidencingas the "Lenders." Subject to the provisions of subsection (c) below, securing or delivered in connection with any it is a condition of Purchaser's obligations hereunder that all of the Assumed Existing Debt (as with the same may have been or may be amended, restated, replaced, supplemented or otherwise modified from time to time as required exception of the Existing Debt secured 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 Property located 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. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on November 26, 2014, Purchaser shall have the opportunity 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 the exact form of Exhibit Q attached hereto (without any modification, except to 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇ ▇▇▇▇▇▇▇ Money▇▇▇▇▇▇, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination▇▇▇▇▇▇▇▇▇, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive ▇▇ (the termination hereof. If Purchaser timely delivers the Go Forward Notice, the Property located at ▇▇▇▇ ▇▇▇▇▇▇▇ Money ▇▇▇▇▇▇ shall no longer be refundable 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 except 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 expressly those set forth in the balance of this Agreement 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 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 proceed acquire the Andover Street Property subject to Closing in accordance with the Andover Street Debt unless the terms hereof. 2.4.3 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 foregoinggranting 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 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 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”) sell and Purchaser shall cause acquire the Supplemental Agreement in Andover Street Property for a purchase price equal to the form attached hereto as Exhibit D (the “Supplemental Agreement”) to be executed and delivered to each of Whitehall and the Sellers at Closing by Purchaser REIT, Purchaser Parent, Purchaser and each Allocable Purchase Price of the individuals listed therein as parties thereto (such individuals, Andover Street Property and otherwise on the “Indemnitors”) terms 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 Parent and Purchaser REIT shall also 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 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 parties hereto with respect to the Andover Street Property shall cease and this Agreement with respect to the Andover Street Property shall be void and without recourse to the parties (except those provisions which are expressly intended to survive such termination).

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 ▇▇▇ or the Tax Exempt Issuers, but Purchaser or a Permitted Assignee shall be responsible for prepayment penalties in connection with the Debt AssumptionFNMA indebtedness. To the extent that any fees or expenses, andincluding any consents or assumption fees, notwithstanding anything herein (or in any other document delivered pursuant to this Agreement), exceed 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. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on November 26, 2014, Purchaser shall have the opportunity 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 the exact form of Exhibit Q attached hereto (without any modification, except to 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 1% 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder obligated to pay hereunder, and Seller is exercising its remedies under Section 7.2.1 hereof. Following unwilling to pay such automatic terminationexcess, then Seller shall notify Purchaser and Sellers shall cease within three (3) business days of notice to have Seller from any rights lender of the requirement to pay such fees or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Noticesuch access fees or expenses, the ▇▇▇▇▇▇▇ Money shall no longer be refundable to Purchaser except as expressly set forth in the balance of this Agreement and Purchaser shall be obligated 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 in accordance with the terms hereof. 2.4.3 In connection with the foregoing, subject or (ii) to terminate this Agreement as to the other terms and conditions Facility encumbered by such Assumed Debt pursuant to Section 11.1. Receipt 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 all lender consents for all Assumed Debt hereunder are part of the Assumed Debt in substantially Required Consents that are conditions precedent to Closing hereunder and to the same form as attached hereto as Exhibit P (collectivelyextent Seller is unable to obtain such portion of the Required Consents, the “Whitehall Guarantees”) and Purchaser provisions of Section 8.2 shall cause the Supplemental Agreement in the form attached hereto as Exhibit D (the “Supplemental Agreement”) to be 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 Parent and Purchaser REIT shall also 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 Agreementapply.

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. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on November 26, 2014, Purchaser shall have the opportunity 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 the exact form of Exhibit Q attached hereto (without any modification, except to 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 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 immediately preceding sentences, Purchaser shall receive a return of the ▇E▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Notice, the ▇E▇▇▇▇▇▇ 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. 2.4.3 In connection with the foregoing, subject to the 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 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 Parent and Purchaser REIT shall also 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.

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, 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”), and (2) Property Partnership’s obligation 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. 2.4.2 Prior to 5:00 P.M. Eastern Standard Time on November 26, 2014, Purchaser shall have the opportunity 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 close the acquisition of the affected Property. This Agreement ), and that ASOT shall automatically (and without have no liability for any further action of any party) terminate at 5:00 P.M., Eastern Standard Time, on November 26, 2014, unless, matters arising prior to such time, Purchaser has delivered a written notice to Sellers in the exact form of Exhibit Q attached hereto (without any modification, except to 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 (assumption other than modifying the date liability with respect to a date earlier than November 26, 2014), such purported Go Forward Notice shall not be effective or constitute a “Go Forward Notice” environmental and this Agreement 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 timeHazardous Material liabilities under customary loan document provisions. In the event that this Agreement is terminated pursuant to the immediately preceding sentences, Purchaser shall receive a return of the ▇▇▇▇▇▇▇ Money, unless Purchaser is otherwise in default hereunder and Seller is exercising its remedies under Section 7.2.1 hereof. Following such automatic termination, Purchaser and Sellers shall cease to have any rights or obligations hereunder except for those that expressly survive the termination hereof. If Purchaser timely delivers the Go Forward Notice, the ▇▇▇▇▇▇▇ 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. 2.4.3 In connection with the foregoing, subject to the 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 executed and delivered to each of Whitehall and the Sellers at Closing by Purchaser REIT, Purchaser Parent, Purchaser ASOT and each of the individuals listed therein as parties thereto (applicable Property Partnerships shall cooperate in all respects with such individualsefforts. Notwithstanding the foregoing, the “Indemnitors”) and cause each of parties acknowledge that they will not take such actions with the Indemnitors to join and deliver to lenders for the Sellers at Closing each of Newport Property or the agreements attached hereto Philadelphia Property, until such time as Exhibit E-2, Exhibit E-3 and Exhibit E-4. For the avoidance of doubt, each of Purchaser Parent and Purchaser REIT shall also be required to provide guarantees and indemnities Newport Beach or Mid-Wilshire exercises its rights under the Assumed Debt Newport Put Agreement and each of the agreements attached hereto as Exhibit E-2Philadelphia Put Agreement, Exhibit E-3 and Exhibit E-4, in each case, as contemplated in this Agreementrespectively.