First Loan Modification Agreement dated as of May 12, 2020 among CDOR Jax Court, LLC, TRS Jax Court, LLC, CDOR Atl Indy, LLC, TRS Atl Indy, LLC, CDOR San Spring, LLC and TRS San Spring, LLC, as the Borrowers, and Wells Fargo Bank, National Association, as the Lender

A.

That certain Promissory Note, dated as of October 4, 2017, in the Loan Amount made by Borrower in favor of Lender (as the foregoing may from time to time be amended or replaced, the “Note”);

B.

That certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of even date with the Note, executed by San Antonio Owner and San Antonio Operating Tenant in favor of Lender (the “San Antonio Security Instrument”); that certain Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement, and Fixture Filing, dated as of even date with the Note, executed by Atlanta Owner and Atlanta Operating Tenant in favor of Lender (the “Atlanta Security Instrument”); and that certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated as of even date with the Note, executed by Jacksonville Owner and Jacksonville Operating Tenant in favor of Lender (the “Jacksonville Security Instrument”, together with the San Antonio Security Instrument and the Atlanta Security Instrument, individually or collectively as the context may require, and as the foregoing may from time to time be amended or replaced, the “Security Instrument”);

C.

That certain Guaranty of Recourse Obligations, dated as of even date with the Note, made by Guarantor in favor of Lender (as the foregoing may have been amended or replaced from time to time, the “Guaranty”); 

D.

That certain Environmental Indemnity Agreement, dated as of even date with the Note, made by Borrower and Guarantor in favor of Lender (as the foregoing may have been from time to time amended or replaced, the “Environmental Indemnity”);  and

E.

That certain Cash Management Agreement, dated as of even date with the Note, made by Lender, Owner and Operating Tenant (as the foregoing may have been from time to time amended or replacement, the “Cash Management Agreement”).

I.

Conditions Precedent to Loan Modification.  

F.

As of the Effective Date, Borrower agrees to continue to make monthly payments as provided under the Note,  Loan Agreement and this Agreement on each Monthly Payment Date up to and including the applicable Maturity Date in the same manner set forth in the Loan Documents, except as modified herein.  

G.

Lender’s consent to the Loan Modification is subject to the satisfaction of the following conditions, all of which shall be completed to the satisfaction of Lender:

1.

As of the Effective Date, an original copy of this Agreement, duly executed by Borrower and Guarantor, shall have been delivered to Lender;

2.

As of the Effective Date, Borrower shall have delivered to Lender a copy of the 90-day budget for the Property, which shall set forth in reasonable detail budgeted monthly operating income and monthly operating expenses and other cash expenses for the Property;

3.

As of the Effective Date and giving effect to the Loan Modification set forth herein, each of Borrower and Guarantor hereby certifies to Lender that (A) no Default or Event of Default has occurred and is continuing under the Loan Documents to which each is a party, as applicable, and (B) Borrower and Guarantor are in compliance with all of the terms applicable to Borrower and Guarantor under the Loan Documents, including, but not limited to, all financial covenants, financial reporting and special conditions of the Loan;

4.

As of the Effective Date, Borrower shall have paid to Lender (x) any monthly payments of principal and/or interest due and payable in accordance with this Agreement and the terms of the Note, (y) any other sums due and payable under the Loan Documents and (z) all other out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by Lender in connection with the Loan Modification.

H.

As of the Effective Date, the definition of Schedule V of the Loan Agreement shall be deleted in its entirety and replaced with Exhibit A attached hereto.

I.

As of the Effective Date, the definition of “Cash Trap Event Period”  in Section 1(a)(v) of the Cash Management Agreement shall be deleted in its entirety and replaced with the following:

J.

As of the Effective Date, the following shall be added to Section 1(a) of the Cash Management Agreement:

K.

As of the Effective Date, the following definitions shall be added to Section 1.1 of the Loan Agreement in their respective alpha-numeric position:

L.

As of the Effective Date, clause (ii) of Section 4.12(a) of the Loan Agreement is deleted in its entirety and replaced with the following:

M.

As of the Effective Date, Section 8.8 of the Loan Agreement is deleted in its entirety and replaced with the following:

N.

As of the Effective Date, the following is added as Section 8.9 of the Loan Agreement:

O.

As of the Effective Date, the following is added as Section 10.1(x) of the Loan Agreement:

P.

As of the Effective Date, Section 5(b) of the Cash Management Agreement is deleted in its entirety and replaced with the following:

Q.

As of the Effective Date, the following is added as Section 4.15(e) of the Loan Agreement:

II.

Consent to Management Change

A.

Pursuant to Section 4.15(a) of the Loan Agreement, Lender hereby consents to the management of the Property by Aimbridge Hospitality, LLC, a Delaware limited liability company (“Manager”), and that certain Hotel Management Agreement between San Antonio Operating Tenant, dated as of August 1, 2019 (“San Antonio Management Agreement”); and that certain Hotel Management Agreement between Atlanta Operating Tenant and Manager, dated as of August 1, 2019 (“Atlanta Management Agreement”); that certain Hotel Management Agreement between Jacksonville Operating Tenant and Manager, dated as of August 1, 2019 (“Jacksonville Management Agreement”); and that certain Concession and Service Agreement between Manager and AHTRST Concessions, LLC, a Delaware limited liability company (“San Antonio Concession Agreement”; together with the San Antonio Management Agreement,  the Atlanta Management Agreement and the Jacksonville Management Agreement, individually or collective, as the context may require, the “Management Agreement”). Lender’s consent herein is conditioned on Manager entering into an Assignment of Management Agreement with Lender for each Management Agreement.  For purposes of the Loan Documents, from and affect the Effective Date, “Manager” shall mean each of Aimbridge Hospitality, LLC, a Delaware limited liability company and AHTRST Concessions, LLC, a Delaware limited liability company, or such other entity selected as the manager of the Property in accordance with the terms of the Loan Documents and “Management Agreement” shall mean each Management Agreement defined in this section III.A. hereof in addition to or any replacement management agreement entered into by and between Borrower and any Manager in accordance with the terms of the Loan Documents, pursuant to which Manager is to provide management and other services with respect to the Property.

III.

Representations, Warranties and Covenants.

A.

As of the Effective Date and in accordance with Section 1 of this Agreement, Borrower and Guarantor each represents, warrants and covenants that (i) each of the representations and warranties of Borrower and Guarantor contained in the respective Loan Documents is true, complete and correct in all material respects as of the Effective Date, (ii) it is in compliance with all of the terms applicable to it under the Loan Documents and (iii) no Default or Event of Default exists.

B.

As of the Effective Date Borrower and Guarantor each hereby acknowledges that, except as expressly set forth herein, nothing contained herein shall be construed to relieve Borrower or Guarantor from any of their respective obligations under the Note, the Security Instrument, the Loan Agreement, the Guaranty, the Environmental Indemnity or the other Loan Documents. 

C.

As of the Effective Date, each of Borrower and Guarantor, on its own behalf and not on behalf of the other, represents, warrants and covenants that it has the full power, authority and legal right to execute this Agreement and to keep and observe all of the terms of this Agreement on its part to be observed or performed.

IV.

Release of Claims and Indemnity.

A.

As a material inducement to Lender to enter into this Agreement and to grant the additional concessions to the Borrower Parties reflected herein, all in accordance with and subject to the terms and conditions of this Agreement, and all of which are to the direct advantage and benefit of the Borrower Parties, each Borrower Party, on its own behalf and on behalf of each of their respective past, present, and future predecessors, successors, heirs, subsidiaries, parent entities, assigns, shareholders, partners, members, owners, other principals, affiliates, managers, employees, officers, directors, attorneys, agents, other representatives, insurers, and any other individuals and entities claiming or acting by, through, under, or in concert with any of the Borrower Parties (collectively, the “Borrower Party Releasors”), hereby fully and forever release, relinquish, remise, discharge, satisfy and acquit Lender (including any servicer or other agent or representative acting on its behalf) and any of their respective past, present, and future predecessors, heirs, successors, subsidiaries, parent entities, assigns, participants, shareholders, partners, members, owners, other principals, affiliates, managers, employees, officers, directors, attorneys, agents, other representatives, insurers, and any other individuals and/or entities claiming or acting by, through, under, or in concert with each such entity or individual (the “Lender Releasees”), of and from and against any and all claims, demands, obligations, duties, liabilities, damages, expenses, claims of offset, indebtedness, debts, bonds, breaches of contract, duty or relationship, acts, omissions, misfeasance, malfeasance, causes of action of any nature whatsoever, sums of money, accounts, compensation, contracts, controversies, promises, damages, costs, losses and remedies therefor, choses in action, rights of indemnity or liability of any type, kind, nature, description, or character whatsoever, arising directly or indirectly, either now accrued or hereafter maturing and whether known or unknown, which any Borrower Party now has by reason of any matter, cause or thing, including specifically, but without limitation, matters arising out of, in connection with or relating to (i) the Loan, the Loan Documents and/or the indebtedness evidenced thereby, including, the administration thereof, (ii) the Property, (iii) Lender Releasees’ acts, statements, conduct, representations, and/or omissions made in connection therewith, including, without limitation, the disbursement of funds from

any and all escrows, reserves, and/or accounts, or any election of Lender to refrain from any such disbursements, and the negotiation of this Agreement, (iv) any other relationship, agreement or transaction between Borrower Party Releasors and Lender Releasees, and (v) any existing fact, matter, transaction, or event relating thereto, whether known or unknown, suspected or unsuspected, whether liquidated or unliquidated, each as though fully set forth herein at length (collectively, the “Released Claims”, or individually the “Released Claim”); provided, however, that nothing herein shall be construed to obligate any of the Borrower Party Releasors to release any Released Claims against the Lender Releasees to the extent any such Released Claims arose out of or in connection with Lender’s willful misconduct or gross negligence.  

B.

Borrower Party Releasors hereby waive the provisions of any applicable laws restricting the release of claims which the Borrower Party Releasors do not know or suspect to exist at the time of release, which, if known, would have materially affected the decision to agree to these releases. In this connection, Borrower Party Releasors hereby agree, represent, and warrant to Lender Releasees that Borrower Party Releasors realize and acknowledge that factual matters presently existing but unknown as of the Effective Date may have given rise to causes of action, claims, demands, debts, controversies, damages, costs, losses, and expenses which are presently unknown, unanticipated, and unsuspected, and Borrower Party Releasors further agree, represent, and warrant that the releases provided herein have been negotiated and agreed upon in light of that realization and that Borrower Party Releasors nevertheless hereby intend to release, discharge, and acquit the Lender Releasees from any such presently existing but unknown causes of action, claims, demands, debts, controversies, damages, costs, losses, and expenses which are in any manner set forth in or related to the Loan, the Loan Documents, the Property, and all dealings first occurring on or prior to the Effective Date in connection therewith.

C.

Borrower Party Releasors hereby acknowledge that they have not relied upon any representation of any kind made by Lender (including any servicer or other agent or representative acting on its behalf including, without limitation, Servicer) or any affiliate of any of them in making the foregoing release, except as specifically set forth herein or in the other Loan Documents.  

D.

Borrower Party Releasors represent and warrant to Lender that Borrower Party Releasors have not heretofore assigned or transferred, or purported to assign or to transfer, to any person or entity any matter released by such party hereunder or any portion thereof or interest therein, and each Borrower Party Releasor agrees to indemnify, protect, defend, and hold each of the Lender Releasees harmless from and against any and all claims based on or arising out of any such assignment or transfer or purported assignment or transfer by such party.  

E.

Each Borrower Party each hereby agrees to indemnify, defend and hold Lender and each of its agents, servicers, predecessors, successors and assigns harmless against any and all liability, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses (including Lender’s reasonable attorneys’ fees) of whatever kind or nature which may be asserted against, imposed on or incurred by Lender in connection with this Agreement.  Each Borrower Party hereby acknowledges that the obligations set forth in this paragraph obligate each such Borrower Party even if the liabilities, obligations, losses, penalty, fines, claims, suits or other proceedings and

costs and expenses arose out of a claim, cause of action, or suit that is based on or alleged to be based on Lender’s negligence or strict liability of Lender; provided, however, that nothing herein shall be construed to obligate any Borrower Party to indemnify, defend and hold harmless Lender from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses enacted against, imposed on or incurred by Lender by reason of Lender’s willful misconduct or gross negligence.

V.

Electronic Signatures. 

A.

Borrower, Guarantor and Lender consents to do business electronically in connection with this Agreement.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.

B.

The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any notice issued in connection herewith shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity, admissibility into evidence and enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, Uniform Real Property Electronic Recording Act (“URPERA”), if applicable, the New York State Electronic Signatures and Records Act, the Illinois Electronic Commerce Security Act or any other similar state laws based on the Uniform Electronic Transactions Act, if applicable; provided that nothing herein shall require Borrower, Guarantor or Lender to accept Electronic Signatures in any form or format without its prior written consent, which consent can be withheld in its sole discretion. For purposes hereof, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

C.

Without limiting the generality of the foregoing, Borrower, Guarantor and Lender hereto hereby (i) agree that, for all purposes electronic images of this Agreement (with respect to the signature pages hereto) shall have the same legal effect, validity, admissibility into evidence and enforceability as any paper original and (ii) waive any argument, defense or right to contest the validity, admissibility into evidence or enforceability of this Agreement based solely on the lack of paper original copies of this Agreement, including with respect to any signatures hereon.   

D.

Even though Borrower, Guarantor and Lender agree that such Electronic Signatures are legally enforceable and intended to be effective for all purposes, the signing parties agree if requested by any of Borrower, Guarantor or Lender in its sole discretion to promptly deliver to any such requesting party the requested original document bearing an original manual signature, (i) in order to reduce the risk of fraud, comply with potentially applicable regulations, (ii) to the extent required or advisable to be delivered in connection with any program made available to Borrower,  Guarantor or Lender or any of their respective affiliates by the Federal Reserve, U.S. Treasury Department or any other federal or state regulatory body, (iii) to the extent required pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or as

otherwise as required by applicable law, rule or regulation or compulsory legal process, or as requested by a governmental and/or regulatory authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners), or (iv) for other operational or risk management purposes.

VI.

Miscellaneous.

A.

In the event of any conflict or ambiguity between the terms, covenants and provisions of this Agreement and those of the Note, the Security Instrument, the Loan Agreement, the Guaranty, the Environmental Indemnity, the Assignment of Management Agreement, the Cash Management Agreement, and the other Loan Documents, the terms, covenants and provisions of this Agreement shall control.

B.

This Agreement may not be modified, amended, waived, changed or terminated orally, but only by an agreement in writing signed by the party against whom the enforcement of the modification, amendment, waiver, change or termination is sought.

C.

This Agreement shall be binding upon and inure to the benefit of Borrower, Guarantor and Lender and their respective successors and assigns.

D.

This Agreement may be executed in any number of duplicate originals and each such duplicate original shall be deemed to constitute but one and the same instrument.  Any counterpart delivered by facsimile or electronic means shall be binding as though the same were an original counterpart hereto.

E.

If any term, covenant or condition of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision.

F.

This Agreement shall be governed by, and construed in accordance with, the laws of the state of New York without regard to choice of law rules.

G.

It is the intention and understanding of the parties hereto that this Agreement shall act as a modification of the Loan and that this Agreement shall not act as a novation of such Loan.