Common use of Performance of Replacements Clause in Contracts

Performance of Replacements. (a) Borrower shall make (or shall cause to be made) Replacements when required in order to keep each Individual Property in good condition and repair and to keep the Property or any portion thereof from deteriorating consistent with the requirements of the Franchise Agreement or in the case of the Brand Managed Properties that are not subject to a Franchise Agreement, the applicable Management Agreement. Borrower and Operating Lessee shall complete (or with respect to the Brand Managed Properties, shall cause Manager to complete all Replacements as required pursuant to and in accordance with the applicable Management Agreement) all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. (b) During a Cash Trap Period, Lender shall have the right, at its option, to approve all contracts or work orders for amounts in excess of One Million and No/100 Dollars ($1,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned and with respect to the Brand Managed Properties, such approval shall be limited to the extent that Borrower and/or Operating Lessee shall have the right to approve such contracts in accordance with the applicable Management Agreement) with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with the Replacements. Upon Lender’s request during a Cash Trap Event, Borrower or Operating Lessee shall assign any contract or subcontract to Lender (provided, that with respect to the Brand Managed Properties, such assignment shall be limited to the extent that Borrower or Operating Lessee shall be permitted to assign such contracts under the applicable Management Agreement). (c) During the continuance of an Event of Default, in the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, upon three (3) Business Days written notice to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacements and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Funds toward the labor and materials necessary to complete such Replacement, and during the continuance of an Event of Default, to exercise any and all other remedies available to Lender upon an Event of Default hereunder, provided, that with respect to the Brand Managed Properties, Lender’s rights under this clause (c) shall be subject to the rights of each Brand Manager to the extent that such Brand Manager is permitted to perform such Replacements pursuant to and in accordance with the applicable Management Agreement. (d) During the continuance of an Event of Default, in order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower and Operating Lessee grants Lender the right to enter onto any Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect such Individual Property from damage (subject to the provisions of the Ground Lease and the rights of Tenants) (provided, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder). All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the Mortgages. For this purpose Borrower and Operating Lessee constitute and appoint Lender their true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower and/or Operating Lessee. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Each of Borrower and Operating Lessee empowers said attorney in fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary to complete such Replacement; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against any Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower and/or Operating Lessee which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual Property or the rehabilitation and repair of any Individual Property; and (vii) to do any and every reasonable act which Borrower might do in its own behalf to fulfill the terms of this Agreement. (e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement. (f) If reasonably determined to be necessary and upon reasonable prior notice, Borrower and Operating Lessee shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual Property during normal business hours (subject to the provisions of the Ground Lease and the rights of Tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual Property, and to complete any Replacements made pursuant to this Section 7.3.3 (provided, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements or PIP Work to be completed in accordance with the terms thereunder). Borrower and Operating Lessee shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3. Notwithstanding the foregoing, unless a Debt Yield Trigger Period or an Event of Default has occurred and is continuing, such inspections shall not take place more than once per year and the cost to Borrower or Operating Lessee in connection with each shall not exceed $5,000. (g) During a Cash Trap Period, in connection with any single Replacement in excess of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00), Lender may require an inspection of the Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought (or portion thereof in the case of periodic payments). Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and reasonably approved by Borrower or Operating Lessee and/or may require a copy of a certificate of completion by an independent qualified professional reasonably acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the actual, out-of-pocket, reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional. (h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for (i) those Liens existing on the date of this Agreement which have been approved in writing by Lender and (ii) Permitted Indebtedness). (i) All Replacements shall comply in all material respects with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters. (j) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

Performance of Replacements. (a) Borrower shall make (make, or shall cause to be made) , Replacements when required in order to keep each Individual the Property in good condition and repair consistent with other first class, full service hotels in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating consistent with the requirements of the Franchise Agreement or in the case of the Brand Managed Properties that are not subject to a Franchise Agreement, the applicable Management Agreementbeyond normal wear and tear. Borrower and Operating Lessee shall complete (complete, or with respect cause to the Brand Managed Propertiesbe completed, shall cause Manager to complete all Replacements as required pursuant to and in accordance with the applicable Management Agreement) all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. Borrower shall provide to Lender, or cause Manager to provide to Lender during the performance of any Replacements copies of receipts evidencing that such Replacements have been made and paid for, together with a certification from Borrower (or Manager on behalf of Borrower) that such Replacements evidenced by such receipts have been made. (bi) During a Cash Trap Period, Lender shall have reserves the right, at its option, to approve all contracts or work orders for amounts in excess of One Million and No/100 Dollars ($1,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned and with respect to the Brand Managed Properties, such approval shall be limited to the extent that Borrower and/or Operating Lessee shall have the right to approve such contracts in accordance with the applicable Management Agreement) with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with a single Replacement (or multiple Replacements which together constitute a single project) to be funded from the ReplacementsReplacement Reserve Account, the total cost of which is equal to or greater than $500,000.00 which approval shall not be unreasonably withheld. In the event that any materials for which the request is made have not been incorporated into the Property, such materials shall be on site at the Property and be properly secured. Upon Lender’s request during a Cash Trap Eventrequest, Borrower or Operating Lessee shall assign any contract or subcontract entered into by Borrower to Lender. (ii) With regard to any action described in this Section 7.3.3(b) for which Lender’s consent is required, Lender shall not withhold its consent or disapproval to any such action for more than ten (10) Business Days after request for approval thereof has been made by Borrower, accompanied by a detailed description of the request for which approval is sought, provided that Borrower submits such request for Lender’s approval in an envelope labeled “Priority” and delivered to Lender by overnight delivery and otherwise in accordance with the provisions of Section 10.6 and which request shall state at the top of the first page in bold lettering in 14 pt. font “LENDER’S RESPONSE IS REQUIRED WITHIN TEN (provided10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that Lender fails to either approve such request or disapprove such request (such disapproval stating the reasons for such disapproval) for more than ten (10) Business Days after receipt thereof, Borrower shall deliver to Lender a second request, which second request shall contain the material transmitted with the first request, in an envelope labeled “Priority” and delivered to Lender by overnight delivery and otherwise in accordance with the provisions of Section 10.6 and which request shall state at the top of the first page in bold lettering in 14 pt. font “SECOND REQUEST: LENDER’S RESPONSE IS REQUIRED WITHIN TEN (10) BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A LOAN AGREEMENT BETWEEN THE UNDERSIGNED AND LENDER.” In the event that with respect Lender fails to either approve such second request or disapprove such second request (such disapproval stating the Brand Managed Propertiesreasons for such disapproval) for more than ten (10) Business Days after receipt thereof, such assignment the action that was the subject of said request shall be limited to the extent that Borrower or Operating Lessee shall be permitted to assign such contracts under the applicable Management Agreement)deemed approved. (c) During the continuance of an Event of Default, in In the event that Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, upon three (3) Business Days written notice to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacements Replacement and in the event that such Replacement is deemed by Lender to affect the life, health or safety of Persons which may be present at the Property, to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Funds Fund toward the labor and materials necessary to complete such Replacement, and during the continuance of an Event of Default, to exercise any and all other remedies available to Lender upon an Event of Default hereunder, provided, that with respect Lender shall provide five (5) days prior to the Brand Managed Properties, Lender’s rights under this clause (c) shall be subject notice to the rights of each Brand Manager to the extent that Borrower before taking such Brand Manager is permitted to perform such Replacements pursuant to and in accordance with the applicable Management Agreementaction. (d) During the continuance of an Event of Default, in In order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender (and shall cause Operating Lessee grants Lender to grant to Lender) the right to enter onto any Individual the Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect such Individual the Property from damage (subject to the provisions of the Ground Lease and the rights of Tenants) (provided, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder)damage. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgagesMortgage. For this purpose Borrower constitutes and Operating Lessee constitute and appoint appoints Lender their its true and lawful attorney in attorney-in-fact with full power of substitution substitution, but exercisable only to the extent Lender is authorized to take action on behalf of Borrower pursuant to clause (c) preceding, to complete or undertake such Replacements in the name of Borrower and/or Operating LesseeBorrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Each of Borrower and Operating Lessee empowers said attorney in attorney-in-fact as follows: (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary or desirable to complete such ReplacementReplacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against any Individual the Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; and (v) to execute all applications and certificates in the name of Borrower and/or Operating Lessee which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual Property or the rehabilitation and repair of any Individual Property; and (vii) to do any and every reasonable act which Borrower might do in its own behalf to fulfill the terms of this Agreement. (e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement. (f) If reasonably determined to be necessary and upon reasonable prior notice, Borrower and Operating Lessee shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual Property during normal business hours (subject to the provisions of the Ground Lease and the rights of Tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual Property, and to complete any Replacements made pursuant to this Section 7.3.3 (provided, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements or PIP Work to be completed in accordance with the terms thereunder). Borrower and Operating Lessee shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3. Notwithstanding the foregoing, unless a Debt Yield Trigger Period or an Event of Default has occurred and is continuing, such inspections shall not take place more than once per year and the cost to Borrower or Operating Lessee in connection with each shall not exceed $5,000. (g) During a Cash Trap Period, in connection with any single Replacement in excess of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00), Lender may require an inspection of the Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought (or portion thereof in the case of periodic payments). Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and reasonably approved by Borrower or Operating Lessee and/or may require a copy of a certificate of completion by an independent qualified professional reasonably acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the actual, out-of-pocket, reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional. (h) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for (i) those Liens existing on the date of this Agreement which have been approved in writing by Lender and (ii) Permitted Indebtedness). (i) All Replacements shall comply in all material respects with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters. (j) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

Performance of Replacements. (a) Borrower shall make (or shall cause to be made) Replacements when required in order to keep each Individual the Property in good condition and repair and to keep the Property or any portion thereof from deteriorating consistent with the requirements of the Franchise Agreement or in the case of the Brand Managed Properties that are not subject to a Franchise each (x) Casino Management Agreement, the applicable (y) Management Agreement and (z) Franchise/License Agreement. Borrower and Operating Lessee shall complete (or with respect if the Property is subject to the (x) a Brand Managed PropertiesManagement Agreement, shall cause Brand Manager to complete all Replacements as required pursuant to and in accordance with the applicable such Brand Management Agreement or (y) a Casino Management Agreement, shall cause Casino Operator to complete all Replacements as required pursuant to and in accordance with such Casino Management Agreement) all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. (b) During a Cash Trap Period, Lender shall have the right, at its option, to approve all contracts or work orders for amounts in excess of One Five Million and No/100 Dollars ($1,000,000.005,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned and with respect to the extent that any Individual Property is subject to (x) a Brand Managed PropertiesManagement Agreement, such approval shall be limited to the extent that Borrower and/or Operating Lessee shall have the right to approve such contracts in accordance with such Brand Management Agreement and (y) a Casino Management Agreement, such approval shall be limited to the applicable extent that Borrower shall have the right to approve such contracts in accordance with such Casino Management Agreement) with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials in connection with the Replacements. Upon Lender’s request during a Cash Trap EventPeriod, Borrower or Operating Lessee shall assign any contract or subcontract to Lender (provided, that with respect if any Individual Property is subject to the (x) a Brand Managed PropertiesManagement Agreement, such assignment shall be limited to the extent that Borrower or Operating Lessee shall be permitted to assign such contracts under such Brand Management Agreement and (y) a Casino Management Agreement, such assignment shall be limited to the applicable extent that Borrower shall be permitted to assign such contracts under such Casino Management Agreement). (c) During the continuance of an Event of Default, in the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, upon three (3) Business Days written notice to Borrower, Lender shall have the option to withhold disbursement for such unsatisfactory Replacements and to proceed under existing contracts or to contract with third third-parties to complete such Replacement and to apply the Replacement Reserve Funds toward the labor and materials necessary to complete such Replacement, and during the continuance of an Event of Default, to exercise any and all other remedies available to Lender upon an Event of Default hereunder, provided, that with respect to the extent that any Individual Property is subject to (x) a Brand Managed PropertiesManagement Agreement, Lender’s rights under this clause (cSection 7.3.3(c) shall be subject to the rights of each such Brand Manager to the extent that such Brand Manager is permitted to perform such Replacements pursuant to and in accordance with such Brand Management Agreement and (y) a Casino Management Agreement, Lender’s rights under this Section 7.3.3(c) shall be subject to the applicable rights of such Casino Operator to the extent that such Casino Operator is permitted to perform such Replacements pursuant to and in accordance with such Casino Management Agreement. (d) During the continuance of an Event of Default, in order to facilitate Lender’s completion or making of such Replacements pursuant to Section 7.3.3(c) above, Borrower and Operating Lessee grants Lender the right to enter onto any each Individual Property and perform any and all work and labor necessary to complete or make such Replacements and/or employ watchmen to protect such each Individual Property from damage (subject to the provisions of the Ground Lease and the rights of Tenants, guests and patrons) (provided, that with respect to the extent that any Individual Property is subject to (x) a Brand Managed PropertiesManagement Agreement, Lender’s rights shall be subject to the rights of each such Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable such Brand Management Agreement and Borrower and Operating Lessee shall enforce all their respective of its rights under such Brand Management Agreement to cause such Replacements to be completed in accordance with the applicable terms thereunder or (y) a Casino Management Agreement, Lender’s rights shall be subject to the rights of such Casino Operator to the extent that such Casino Operator shall perform such Replacements pursuant to and in accordance with such Casino Management Agreement and Borrower shall enforce all of its rights under such Casino Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder). All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured by the MortgagesMortgage. For this purpose Borrower constitutes and Operating Lessee constitute and appoint appoints Lender their its true and lawful attorney in fact with full power of substitution to complete or undertake such Replacements in the name of Borrower and/or Operating LesseeBorrower. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revoked. Each of Borrower and Operating Lessee empowers said attorney in fact as follows: : (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such Replacements; (ii) to make such additions, changes and corrections to such Replacements as shall be necessary to complete such Replacement; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against any Individual Property, or as may be necessary or desirable for the completion of such Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower and/or Operating Lessee which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual Property or the rehabilitation and repair of any Individual Property; and (vii) to do any and every reasonable act which Borrower might do in its own behalf to fulfill the terms of this Agreement. (e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any Replacements; or (iv) obligate Lender to demand from Borrower additional sums to make or complete any Replacement. (f) If reasonably determined to be necessary and upon reasonable prior notice, Borrower and Operating Lessee shall permit Lender and Lender’s agents and representatives (including, without limitation, Lender’s engineer, architect, or inspector) or third third-parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual Property during normal business hours (subject to the provisions of the Ground Lease and the rights of Tenants under their Leases, guests and patrons) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual Property, and to complete any Replacements made pursuant to this Section 7.3.3 (provided, that with respect to the extent that any Individual Property is subject to (x) a Brand Managed PropertiesManagement Agreement, Lender’s rights shall be subject to the rights of each such Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable such Brand Management Agreement and Borrower and Operating Lessee shall enforce all their respective of its rights under the applicable such Brand Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder or PIP Work (y) a Casino Management Agreement, Lender’s rights shall be subject to the rights of such Casino Operator to the extent that such Casino Operator shall perform such Replacements pursuant to and in accordance with such Casino Management Agreement and Borrower shall enforce all of its rights under such Casino Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder). Borrower and Operating Lessee shall cause all contractors and subcontractors to cooperate with Lender or Lender’s representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3. Notwithstanding the foregoing, unless a Debt Yield DSCR Trigger Period or an Event of Default has occurred and is continuing, such inspections shall not take place more than once per year and the cost to Borrower or Operating Lessee in connection with each shall not exceed $5,000. (g) During a Cash Trap Period, in connection with any single Replacement in excess of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.005,000), Lender may require an inspection of the Individual Property at Borrower’s expense prior to making a monthly disbursement from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought (or portion thereof in the case of periodic payments). Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and reasonably approved by Borrower or Operating Lessee and/or may require a copy of a certificate of completion by an independent qualified professional reasonably acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower shall pay the actual, out-of-pocket, reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional. (hg) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s, materialmen’s or other liens (except for (i) those Liens existing on the date of this Agreement which have been approved in writing by Lender and (ii) Permitted Indebtedness). (ih) All Replacements shall comply in all material respects with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters. (ji) In addition to any insurance required under the Loan Documents, Borrower shall provide or cause to be provided workmen’s compensation insurance, builder’s risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.

Performance of Replacements. (ag) Borrower Grantor shall make (or shall cause to be made) Replacements when required in order to keep each Individual the Property in good condition and repair consistent with other first class, full service retail properties in the same market segment in the metropolitan area in which the Property is located, and to keep the Property or any portion thereof from deteriorating consistent with the requirements of the Franchise Agreement or in the case of the Brand Managed Properties that are not subject to a Franchise Agreement, the applicable Management Agreementdeteriorating. Borrower and Operating Lessee Grantor shall complete (or with respect to the Brand Managed Properties, shall cause Manager to complete all Replacements as required pursuant to and in accordance with the applicable Management Agreement) all Replacements in a good and workmanlike manner as soon as practicable following the commencement of making each such Replacement. (bh) During a Cash Trap Period, Lender shall have reserves the right, at its option, to approve all contracts or work orders for amounts in excess of One Million and No/100 Dollars ($1,000,000.00) (such approval not to be unreasonably withheld, delayed or conditioned and with respect to the Brand Managed Properties, such approval shall be limited to the extent that Borrower and/or Operating Lessee shall have the right to approve such contracts in accordance with the applicable Management Agreement) with materialmen, mechanics, suppliers, subcontractors, contractors or other parties providing labor or materials under contracts for an amount in excess of $100,000 in connection with the ReplacementsReplacements performed by Grantor. Upon Lender’s request during a Cash Trap Event's request, Borrower or Operating Lessee Grantor shall assign any contract or subcontract to Lender (provided, that with respect to the Brand Managed Properties, such assignment shall be limited to the extent that Borrower or Operating Lessee shall be permitted to assign such contracts under the applicable Management Agreement)Lender. (ci) During the continuance of an Event of Default, in In the event Lender determines in its reasonable discretion that any Replacement is not being performed in a workmanlike or timely manner or that any Replacement has not been completed in a workmanlike or timely manner, upon three and such failure continues to exist for more than thirty (330) Business Days written days after notice from Lender to BorrowerGrantor, Lender shall have the option to withhold disbursement for such unsatisfactory Replacements Replacement and to proceed under existing contracts or to contract with third parties to complete such Replacement and to apply the Replacement Reserve Funds Fund toward the labor and materials necessary to complete such Replacement, without providing any prior notice to Grantor and during the continuance of an Event of Default, to exercise any and all other remedies available to Lender upon an Event of Default hereunder, provided, that with respect to the Brand Managed Properties, Lender’s rights under this clause (c) shall be subject to the rights of each Brand Manager to the extent that such Brand Manager is permitted to perform such Replacements pursuant to and in accordance with the applicable Management Agreement. (dj) During the continuance of an Event of Default, in In order to facilitate Lender’s 's completion or making of such the Replacements pursuant to Section 7.3.3(c) above, Borrower and Operating Lessee Grantor grants Lender the right to enter onto any Individual the Property and perform any and all work and labor necessary to complete or make such the Replacements and/or employ watchmen to protect such Individual the Property from damage (subject to the provisions of the Ground Lease and the rights of Tenants) (provideddamage, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements to be completed in accordance with the terms thereunder)Tenants. All sums so expended by Lender, to the extent not from the Replacement Reserve Fund, shall be deemed to have been advanced under the Loan to Borrower and secured guarantied by the MortgagesLimited Guaranty. For this purpose Borrower Grantor constitutes and Operating Lessee constitute and appoint appoints Lender their its true and lawful attorney in attorney-in-fact with full power of substitution to complete or undertake such the Replacements in the name of Borrower and/or Operating LesseeGrantor. Such power of attorney shall be deemed to be a power coupled with an interest and cannot be revokedrevoked but shall only be effective following an Event of Default. Each of Borrower and Operating Lessee Grantor empowers said attorney in attorney-in-fact as follows: : (i) to use any funds in the Replacement Reserve Account for the purpose of making or completing such the Replacements; (ii) to make such additions, changes and corrections to such the Replacements as shall be necessary or desirable to complete such Replacementthe Replacements; (iii) to employ such contractors, subcontractors, agents, architects and inspectors as shall be reasonably required for such purposes; (iv) to pay, settle or compromise all existing bills and claims which are or may become Liens against any Individual the Property, or as may be necessary or desirable for the completion of such the Replacements, or for clearance of title; (v) to execute all applications and certificates in the name of Borrower and/or Operating Lessee Grantor which may be reasonably required by any of the contract documents; (vi) to prosecute and defend all actions or proceedings in connection with any Individual the Property or the rehabilitation and repair of any Individual the Property; and (vii) to do any and every reasonable act which Borrower Grantor might do in its own behalf to fulfill the terms of this Agreement. (ek) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for making or completing any the Replacements; (ii) require Lender to expend funds in addition to the Replacement Reserve Fund to make or complete any Replacement; (iii) obligate Lender to proceed with any the Replacements; or (iv) obligate Lender to demand from Borrower Grantor additional sums to make or complete any Replacement. (fl) If reasonably determined to be necessary and upon reasonable prior notice, Borrower and Operating Lessee Grantor shall permit Lender and Lender’s 's agents and representatives (including, without limitation, Lender’s 's engineer, architect, or inspector) or third parties making Replacements pursuant to this Section 7.3.3 to enter onto each Individual the Property during normal business hours (subject to the provisions of the Ground Lease and the rights of Tenants tenants under their Leases) to inspect the progress of any Replacements and all materials being used in connection therewith, to examine all plans and shop drawings relating to such Replacements which are or may be kept at each Individual the Property, and to complete any Replacements made pursuant to this Section 7.3.3 (provided, that with respect to the Brand Managed Properties, Lender’s rights shall be subject to the rights of each Brand Manager to the extent that such Brand Manager shall perform such Replacements pursuant to and in accordance with the applicable Management Agreement and Borrower and Operating Lessee shall enforce all their respective rights under the applicable Management Agreement to cause such Replacements or PIP Work to be completed in accordance with the terms thereunder)7.3.3. Borrower and Operating Lessee Grantor shall cause all contractors and subcontractors to cooperate with Lender or Lender’s 's representatives or such other persons described above in connection with inspections described in this Section 7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3. Notwithstanding the foregoing, unless a Debt Yield Trigger Period or an Event of Default has occurred and is continuing, such inspections shall not take place more than once per year and the cost to Borrower or Operating Lessee in connection with each shall not exceed $5,000. (gm) During a Cash Trap Period, in connection with any single Replacement in excess of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00), Lender may require an inspection of the Individual Property at Borrower’s Grantor's expense prior to making a monthly disbursement in excess of $10,000 from the Replacement Reserve Account in order to verify completion of the Replacements for which reimbursement is sought (or portion thereof in the case of periodic payments)sought. Lender may require that such inspection be conducted by an appropriate independent qualified professional selected by Lender and reasonably approved by Borrower or Operating Lessee and/or may require a copy of a certificate of completion by an independent qualified professional reasonably acceptable to Lender prior to the disbursement of any amounts from the Replacement Reserve Account. Borrower Grantor shall pay the actual, out-of-pocket, reasonable expense of the inspection as required hereunder, whether such inspection is conducted by Lender or by an independent qualified professional. (hn) The Replacements and all materials, equipment, fixtures, or any other item comprising a part of any Replacement shall be constructed, installed or completed, as applicable, free and clear of all mechanic’s's, materialmen’s materialman's or other liens (except for (i) those Liens existing on the date of this Agreement which have been approved in writing by Lender and (ii) Permitted IndebtednessLender). (io) Before each disbursement from the Replacement Reserve Account, Lender may require Grantor to provide Lender with a search of title to the Property effective to the date of the disbursement, which search shows that no mechanic's or materialmen's liens or other liens of any nature have been placed against the Property since the date of recordation of the Mortgage and that title to the Property is free and clear of all Liens (other than the lien of the Mortgage and any other Liens previously approved in writing by Lender, if any). (p) All Replacements shall comply in all material respects with all applicable Legal Requirements of all Governmental Authorities having jurisdiction over the applicable Individual Property and applicable insurance requirements including, without limitation, applicable building codes, special use permits, environmental regulations, and requirements of insurance underwriters. (jq) In addition to any insurance required under the Loan Documents, Borrower Grantor shall provide or cause to be provided workmen’s 's compensation insurance, builder’s 's risk, and public liability insurance and other insurance to the extent required under applicable law in connection with a particular Replacement. All such policies shall be in form and amount reasonably satisfactory to Lender. All such policies which can be endorsed with standard mortgagee clauses making loss payable to Lender or its assigns shall be so endorsed. Certified copies of such policies shall be delivered to Lender.