AMENDED AND RESTATED LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT OF RENTS Dated as of February 26, 2013 made by CHH TORREY PINES HOTEL PARTNERS, LP, as Grantor, to CHICAGO TITLE INSURANCE COMPANY,...

Exhibit 10.16

Prepared by, recording requested by,

and when recorded return to:

Xxxx Xxxxxxx LLP

000 Xxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Attention: Xxxxxx X. Xxxxxxxxx, Esq.

(For Recorder’s Use Only)


Address of Property:		00000 Xxxxx Xxxxxx Xxxxx Xxxx
		Xx Xxxxx, Xxxxxxxxxx, 00000

AMENDED AND RESTATED LEASEHOLD DEED OF TRUST, SECURITY

AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT

OF RENTS

Dated as of February 26, 2013

made by

CHH XXXXXX XXXXX HOTEL PARTNERS, LP,

as Grantor,

CHICAGO TITLE INSURANCE COMPANY,

solely as Trustee

for the benefit of

AAREAL CAPITAL CORPORATION,

as agent for various lenders, as Beneficiary

THIS INSTRUMENT SECURES OBLIGATIONS WHICH MAY CONTAIN PROVISIONS FOR ADJUSTMENTS IN THE INTEREST RATE AND PAYMENT AMOUNTS AND/OR A BALLOON PAYMENT.

THIS INSTRUMENT CONSTITUTES A SECURITY AGREEMENT AS THAT TERM IS DEFINED IN THE CALIFORNIA UNIFORM COMMERCIAL CODE. PORTIONS OF THE COLLATERAL ARE GOODS THAT ARE OR ARE TO BECOME FIXTURES ON THE LAND DESCRIBED IN EXHIBIT A HERETO. THIS INSTRUMENT IS INTENDED TO SERVE AS A FIXTURE FILING AND IS TO BE RECORDED IN THE REAL ESTATE RECORDS OF EACH COUNTY IN WHICH SAID LAND OR ANY PORTION THEREOF IS LOCATED AND INDEXED AS BOTH A DEED OF TRUST AND A FIXTURE FILING. GRANTOR IS THE OWNER OF A RECORD INTEREST IN THE LAND AND LEASEHOLD DESCRIBED IN EXHIBIT A HERETO. THE ADDRESS OF GRANTOR (DEBTOR) AND BENEFICIARY (SECURED PARTY) ARE SET FORTH ON THE FIRST PAGE OF THIS DEED OF TRUST.

TABLE OF CONTENTS


		Page

ARTICLE I. DEFINITIONS			8
Section 1.1	Definitions		8
Section 1.2	Other Definitional Provisions		10

ARTICLE II. REPRESENTATIONS, WARRANTIES AND COVENANTS			10
Section 2.1	Incorporation by Reference		10
Section 2.2	Title; Covenant Against Transfers		10
Section 2.3	Limitation on Indebtedness		11

ARTICLE III. EVENTS OF DEFAULT AND REMEDIES			11
Section 3.1	Definition of Event of Default		11
Section 3.2	Remedies		11
Section 3.3	Actions for Possession		13
Section 3.4	Assembly of Mortgaged Property		13
Section 3.5	Surrender of Insurance Policies		13
Section 3.6	Retention of Mortgaged Property		14
Section 3.7	Purchase of the Mortgaged Property		14
Section 3.8	Sale of the Mortgaged Property		14
Section 3.9	Adjournment of Sale of Mortgaged Property		14

ARTICLE IV. LEASES AND RENTS			15
Section 4.1	Compliance		15
Section 4.2	Leases		15
Section 4.3	Assignment		15
Section 4.4	Debtor Relief Laws		16

ARTICLE V. MISCELLANEOUS			16
Section 5.1	Release of Deed of Trust		16
Section 5.2	Rights Cumulative		16
Section 5.3	Amendments, Waivers, Consents and Approvals		16
Section 5.4	Other Waivers		17
Section 5.5	Severability		17
Section 5.6	Binding Effect; Covenants Running with the Land		17
Section 5.7	Counterparts		17
Section 5.8	Financing Statement		17
Section 5.9	References		18
Section 5.10	Captions		18
Section 5.11	Notices		18
Section 5.12	Governing Law		19
Section 5.13	Relationship		19
Section 5.14	Limitation of Liability		19


Section 5.15	Attorneys’ Fees	19
Section 5.16	Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by Jury	20
Section 5.17	Variable Interest Rate	20
Section 5.18	After-Acquired Property	20
Section 5.19	Further Assurances	20
Section 5.20	No Other Party Beneficiary	21
Section 5.21	Entire Agreement	21
Section 5.22	No Credits on Account of Debt	21
Section 5.23	Trustee’s Performance	21
Section 5.24	Resignation by Trustee	21
Section 5.25	Substitution of Trustee	21
Section 5.26	Other Mortgages; No Election of Remedies	22
Section 5.27	Amended and Restated Deed of Trust	23

ARTICLE VI. 23

LEASEHOLD PROVISIONS		23
Section 6.1	The Ground Lease	23
Section 6.2	No Merger of Fee and Leasehold Estates	23
Section 6.3	Grantor’s Acquisition of Fee Estate	24
Section 6.4	Rejection or Termination of the Ground Lease	24
Section 6.5	Ground Lease Termination	24

ARTICLE VII. STATE SPECIFIC PROVISIONS		25
Section 7.1	Principles Of Construction	25
Section 7.2	No “Mortgagee-In-Possession” Status	25
Section 7.3	Power Of Sale And Other Rights	25
Section 7.4	Environmental Provisions	26
Section 7.5	Trustee’s Deed Recitals	29
Section 7.6	Right Of Entry	29
Section 7.7	Reconveyance	29
Section 7.8	Border Zone Property	29
Section 7.9	Insurance Notice	30
Section 7.10	Commercial Loan	30
Section 7.11	Construction Deed Of Trust	30
Section 7.12	Other Loan Documents	30
Section 7.13	Waiver of Grantor’s Rights	30

This AMENDED AND RESTATED LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT OF RENTS dated as of February 26, 2013, made by CHH XXXXXX XXXXX HOTEL PARTNERS, LP, a Delaware limited partnership, having an office at 00000 Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (“Grantor”), CHICAGO TITLE INSURANCE COMPANY, a California corporation, with a mailing address of 000 X. Xxxxxx, Xxx Xxxxxxx, XX 00000, solely as Trustee (“Trustee”) for the benefit of AAREAL CAPITAL CORPORATION, a Delaware corporation, having an office at 000 Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, in its capacity as agent for various lenders from time to time under the Loan Agreement (such term and other capitalized terms used herein having the respective meanings set forth in Section 1 hereof) (together with its successors and assigns, “Beneficiary”).

RECITALS

WHEREAS, Grantor is the owner of a leasehold estate in the land lying and being situated in La Jolla, Los Angeles County, California and more particularly described on Exhibit A attached hereto, pursuant to the Ground Lease, as hereinafter defined;

WHEREAS, Grantor executed for the benefit of Aareal Bank AG (the “Original Beneficiary”) that certain Leasehold Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Rents, dated as of August 8, 2008 and recorded on August 13, 2008 in the official records of San Diego County, California (the “Official Records”) as Instrument No. 2008-0432328, as amended by that certain First Amendment to Recorded Documents made by Grantor for the benefit of Original Beneficiary, dated as of April 1, 2010 and recorded on May 14, 2010 in the Official Records as Instrument No. 2010-0243296 and as assigned by Original Beneficiary to Beneficiary pursuant to that certain Assignment of Recorded Documents (Xxxxxx Xxxxx), dated as of February 21, 2013, an executed original of which is attached hereto as Exhibit B (as amended and assigned, the “Existing Deed of Trust”; the Existing Deed of Trust as hereby amended and restated in its entirety, the “Deed of Trust”), which was given to secure a loan in the principal sum of up to $160,000,000 (the “Existing Loan”) to Grantor and CHH Capital Hotel Partners LP (the “Existing Borrowers”) pursuant to that certain Loan Agreement, dated as of August 8, 2008, by and among Existing Borrowers, CHH Capital Tenant Corp., CHH Xxxxxx Xxxxx Tenant Corp., Aareal Bank AG (as predecessor to Beneficiary), as agent, and the Lenders party thereto, as amended by that certain First Amendment to Loan Agreement dated as of April 1, 2010, as further amended by that certain Second Amendment to Loan Agreement and Reaffirmation of Other Loan Documents dated as of March 31, 2011 and as further amended by that certain Third Amendment to Loan Agreement and Reaffirmation of Other Loan Documents dated as of December 29, 2011 (as so amended, the “Existing Loan Agreement”), which Existing Loan was evidenced by that certain Promissory Note dated as of August 8, 2008 in the original principal amount of One Hundred Sixty Million and No/100 Dollars ($160,000,000) made by Existing Borrowers to Assignee (together with any and all renewals, amendments, modifications, consolidations and extensions thereof, the “Existing Note”);

WHEREAS, Existing Borrowers have requested, and Agent and Lenders have agreed, to amend, restate and consolidate the terms and provisions of the Existing Loan Agreement and the

other Loan Documents (as such term is defined in the Existing Loan Agreement) in their entirety pursuant to the terms and conditions set forth in that certain Amended and Restated Loan Agreement of even date herewith by and among Existing Borrowers, CHH Capital Tenant Corp., CHH Xxxxxx Xxxxx Tenant Corp., Agent and Lenders (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan Agreement”) and increase the Existing Loan to $199,875,000 (the Existing Loan, as so increased, the “Amended Loan”) . All capitalized terms used but not defined herein shall have the meaning set forth in the Loan Agreement.

WHEREAS, the Amended Loan is evidenced by that certain Amended and Restated Promissory Note (the “Note”) dated as of the date hereof in said principal amount made by Existing Borrowers to Assignee, which Note amends, restates and supersedes the Existing Note in its entirety; and

WHEREAS, this Deed of Trust is given to secure the Amended Loan; and

NOW, THEREFORE, as an inducement to Agent and Lenders to enter into the Loan Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:

GRANTING CLAUSE

NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, including Beneficiary’s and Lenders’ entering into the Loan Agreement, the receipt and legal sufficiency of which are hereby expressly acknowledged by all parties, to secure the full and complete payment of the principal, Interest, Additional Interest and other sums payable pursuant to the Note, Loan Agreement, this Deed of Trust and the other Loan Documents and the full and complete payment and performance of the Obligations, including Borrowers’ performance of Borrowers’ obligations pursuant to the Note, the Loan Agreement and the other Loan Documents, Grantor does hereby grant, pledge, mortgage, warrant, deed, sell, transfer, assign, and convey, to Trustee and its successors and assigns and grants to Beneficiary a security interest in, subject in each case only to the Permitted Encumbrances, the following (collectively, the “Mortgaged Property”):

All of Grantor’s right, title and interest, now owned or hereafter acquired, in and to the following described properties and interests and all replacements or substitutes therefor and all products and proceeds thereof, and accessions thereto, and whether held to be real or personal property, tangible or intangible whether now or hereafter acquired:

(a) Property. The leasehold interest in those certain tracts of land described in Exhibit A attached hereto, together with all streets, vaults or alleys (open or proposed), strips and gores adjoining or appurtenant to such land, and underlying roadways or public rights-of-way or otherwise (the “Land”) and all of the buildings, improvements, structures, Personal Property, FF&E (as hereinafter defined), amenities, fixtures and personal property and any additions or alterations thereto or replacements thereof which are now existing or are hereafter constructed and/or installed upon the Land (collectively, the “Improvements”), including all estates, easements, licenses, interests, rights, rights of way, water rights, mineral

rights, titles, powers, appurtenances and privileges of every kind and character which Grantor now has or at any time hereafter acquires, in and to the Land and the Improvements (all of the foregoing, collectively, the “Property”);

(b) Leases. All present and future ground leases, space leases, occupancy agreements, subleases, licenses, permits, concessions or other agreements or arrangements, whether oral or written, including the Ground Lease, and all present and future agreements for the use or occupancy of all or any portion of the Property, together with any and all extensions or renewals thereof, including the Operating Lease (collectively, “Leases”);

(c) Rents. (i) All rents, rent equivalents, revenues, royalties, fees, moneys payable as damages (including payments by reason of the rejection of a Lease in a bankruptcy proceeding) or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, receivables, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Grantor or its agents or employees from any and all sources arising from or attributable to the Property, including all revenues and credit card receipts collected from guest rooms, restaurants, bars, mini-bars, meeting rooms, banquet rooms and recreational facilities, parking charges, all receivables, customer obligations, installment payment obligations and other obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of the Property, or rendering of services by Grantor or any of its agents or employees or any operator or manager of the hotel or the commercial space located in the Property or acquired from others (including, without limitation, from the rental of any office space, retail space, guest rooms or other space, halls, stores, and offices, and deposits securing reservations of such space), license, lease, sublease and concession fees and rentals (but not including gross receipts of licensees, lessees and concessionaires), health club membership fees, food and beverage wholesale and retail sales, service charges, vending and game machine receipts, video and audio rental or other charges, health and private club membership receipts, fees and charges for the use of athletic facilities, wholesale and retail food and merchandise, service charges, laundry charges, and telephone, telecopy, telex and other communication charges and proceeds, if any, from business interruption or other loss of income insurance, together with all proceeds from the sale or other disposition of any part of the Mortgaged Property and (ii) all rents, royalties, revenues, issues, bonuses, income, receipts, accounts, accounts receivable, deposits, profits and other benefits now due, past due, or which may become due, or to which Grantor may now or hereafter become entitled, or may demand or claim, additional, percentage, participation and other rentals, fees and deposits, including common area, tax and other expense reimbursement payments, arising or issuing from or out of the Leases or the Property, including cash, securities or letters of credit deposited thereunder to secure performance by the Lessees of their obligations thereunder, including under any Lease Guaranties or Lease Security, and any interest accrued thereon or dividends payable to the holders thereof, any premium or other consideration payable by any Lessee for or upon the cancellation or modification of a Lease, or arising or issuing from or out of the Property or any part thereof or interest therein; together with any and all rights which Grantor may have with respect to rent insurance proceeds or business interruption insurance proceeds, and settlements, judgments and bankruptcy claims with respect to unpaid rents or the rejection or termination of any Lease, including any amounts received by Grantor, or on Grantor’s behalf, in connection

with any termination, cancellation or surrender of any Lease, whether occurring as a result of a default by a Lessee under the applicable Lease, by agreement of Grantor and such Lessee, by the terms of the applicable Lease or in connection with any bankruptcy or other insolvency proceeding of such Lessee; and the rents and other sums payable to Grantor in connection with the underletting of space covered under any Lease and any consideration payable to Grantor in connection with the assignment of any Lease (collectively, the “Rents”);

(d) Lease Security and Lease Guaranties. All security deposits for the performance of a Lessee’s obligations under any Lease, including any letter of credit or other instrument given as a security deposit (or in lieu of a cash security deposit) under any Lease (“Lease Security”) and all guaranties given to secure the performance by a Lessee of any of its obligations under any Lease (“Lease Guaranties”);

(e) Property Documents. All reciprocal easement or operating agreements, declarations, development agreements, developer’s or utility agreements, and any similar such agreements or declarations now or hereafter affecting the Property or any part thereof (the “Property Documents”);

(f) FF&E. All fixtures, fittings, appliances, apparatus, equipment, machinery, furnishings and articles of tangible and intangible personal property now or hereafter attached or affixed to, placed upon or used in any way in connection with the use, enjoyment, operation or occupancy of the Property including all heating, air conditioning, incinerating, lighting, refrigerating, monitoring, water, cleaning and communications apparatus and equipment whatsoever, all fire prevention and extinguishing apparatus, fire sprinkler and alarm systems, all boilers, engines, motors, dynamos, generating equipment, piping and plumbing fixtures, ranges, chinaware, glassware, foodcarts, cookware, cooking utensils and other cooking apparatus, mechanical kitchen equipment, refrigerators, cooling, ventilating, sprinkling and vacuum cleaning systems, fire extinguishing and prevention apparatus, gas and electrical fixtures, elevators, escalators, partitions, built-in mirrors, planters, shelves, lockers, cabinets, drapes, draperies, curtains, shades, venetian blinds, screens, storm sash, awnings and other window covering and all hardware therefor, carpeting and other floor covering, lighting fixtures, lamps, office furniture, beds, bureaus, chiffoniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, paintings, hangings, pictures, divans, couches, luggage carts, luggage racks, stools, sofas, linens, pillows, blankets, dry cleaning facilities, dining room wagons, keys or other entry systems, bars, bar fixtures, liquor and other drink dispensers, icemakers, radios, television sets, intercom and paging equipment, electric and electronic equipment, dictating equipment, private telephone systems, facsimile machines, medical equipment, potted plants, elevators, escalators, fittings, plants, apparatus, stoves, ranges, refrigerators, laundry machines, tools, machinery, engines, dynamos, motors, boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors, cabinets, lockers, shelving, spotlighting equipment, dishwashers, garbage disposals, washers and dryers, furnishings of public spaces, halls and lobbies, and shrubbery and plants (and including all interest of Grantor in any of such items, at any time acquired under any security agreement, conditional sale contract, chattel mortgage or other security instrument), wherever located (collectively, “FF&E”); and all personal property of Grantor, including all FF&E to the extent it does not constitute real property (collectively, the “Personal Property”);

(g) Insurance Proceeds. All proceeds or awards payable or to be payable under each policy of insurance relating to the Property, including the Insurance Policies, and any returned, refunded or rebated premiums in connection therewith;

(h) Condemnation Awards. All rights or awards due to Grantor arising out of any eminent domain or condemnation proceedings for the taking or for loss of value of any of the Property or any proceeds of any suit or action;

(i) Mineral and Development Rights, Etc. All estates, easements, rights, rights of way, licenses, timber to be cut, water rights, mineral rights, as-extracted collateral, privileges and appurtenances including additional development rights and air rights, now or hereafter belonging to or in any way appertaining to the Property;

(j) Utility Deposits. All monetary deposits which Grantor has been, or may be, required to give to any public or private utility with respect to utility services furnished, or to be furnished, to the Property;

(k) Permits. All certificates, including certificates of occupancy and certificates of compliance, authorizations, franchises, consents and approvals given by and licenses and permits issued by Governmental Authorities, and other rights and privileges issued by any and all Governmental Authorities and any other Persons in connection with the ownership, operation, construction, use, management, leasing or occupancy of the Property;

(l) Tests, Studies, Etc. All environmental tests, studies and reports, current and future environmental claims and rights of action including tort claims and rights of indemnity and contribution under any Environmental Law against the prior owners, neighboring owners, tenants, consultants, advisors and third parties;

(m) Contracts of Sale. All contracts of sale and options relating to the acquisition or disposition by Grantor of any portion of the Property, and all amendments, modifications, renewals, expansions and supplements thereto;

(n) Contracts and Agreements. All contracts, instruments, bonds, equipment leases, and agreements now or hereafter entered into by or on behalf of Grantor with any party with respect to (i) the management, leasing, promotion, marketing, development, construction, operation or sale of any portion of the Property, including the Management Agreement, (ii) the ownership, use or occupancy of the Property, and (iii) the construction (original, restorative or otherwise) of any of the Property, or the furnishing of any materials, supplies, furnishings, fixtures, equipment or labor in connection with any such construction (including all right, title, and interest of Grantor in, to, and under any subcontracts in connection with such construction); and all other contracts, instruments, bonds, equipment leases, and agreements now or hereafter affecting the Property, and all amendments, modifications, renewals, expansions and supplements thereto, and all rights to receive liquidated or other damages under the foregoing;

(o) Plans. All of the plans, specifications, and drawings (including plot plans, foundation plans, utility facilities plans, floor plans, elevations plans, framing plans, cross-sections of walls plans, mechanical plans, electrical plans, architectural and engineering plans

and specifications, and architectural and engineering studies and analyses) heretofore or hereafter prepared by any architect or engineer with respect to any of the Property and all amendments, modifications, renewals, expansions and supplements thereto;

(p) Interest Rate Protection Agreements. Any interest rate protection arrangement to which Grantor is a party, including any Lender Interest Rate Protection Agreement, and all agreements, instruments, documents and contracts now or hereafter entered into by Grantor with respect to any such interest rate protection arrangement, including any Lender Interest Rate Protection Agreement;

(q) Trademarks, Etc. All trademarks, tradenames, logos, servicemarks, licenses, franchises, symbols and other intangibles, and all goodwill, books and records, correspondence, files and advertising materials and other documents, now or hereafter obtained, produced or entered into, as the case may be, and all rights therein, in all cases, with respect to the use, occupancy, possession, operation, management, construction, leasing, maintenance, marketing and ownership of the Property;

(r) Accounts. Except for the Excluded Accounts (which are expressly excluded from the security interest granted pursuant hereto), every other deposit account (including, without limitation, all other “Accounts” described in the Loan Agreement) including the entire balance therein (now or hereafter existing) of Grantor with Beneficiary (or any agent, affiliate, or subsidiary of Beneficiary) or any other banking or financial institution, and any other claim of Grantor against Beneficiary (now or hereafter existing) arising therefrom and all money, instruments, securities, documents, chattel paper, credits, demands issued or arising in connection therewith, and any other property, rights, or interests of Grantor in connection therewith;

(s) Books and Records. All books, records and computer software concerning the foregoing;

(t) UCC Rights. All rights of Grantor under promissory notes, letters of credit, electronic chattel paper, proceeds from accounts, payment intangibles, and general intangibles related to the Property, as the terms “accounts”, “general intangibles”, and “payment intangibles” are defined in the applicable Uniform Commercial Code Article 9, as the same may be modified or amended from time to time; and

(u) Products and Proceeds. All products and proceeds of all or any portion of the foregoing including the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims, including, without limitation, proceeds of insurance and condemnation awards, and all rights of Grantor to refunds of real estate taxes and assessments;

TO HAVE AND TO HOLD the Mortgaged Property, together with all and singular the rights, hereditaments and appurtenances in anywise appertaining or belonging thereto, unto Trustee and Trustee’s successors and assigns, for the uses and purposes hereinafter set forth, forever, IN TRUST, WITH POWER OF SALE, to secure payment to Beneficiary of the Obligations at the time and in the manner provided for its payment in the Loan Agreement, the Note, in this Deed of Trust, and in the other Loan Documents;

FOR THE PURPOSE OF SECURING the payment of the maximum principal indebtedness of all principal, together with all accrued and unpaid interest and the payment and performance of all other Obligations, including any protective advances made by Beneficiary under the Loan Documents, and all modifications, amendments, additions and extensions thereof.

THIS DEED OF TRUST shall also constitute a security agreement with respect to, and Grantor hereby grants to Beneficiary, as secured party, a security interest in, all of those portions of the Mortgaged Property which are or may be subject to the provisions of the applicable Uniform Commercial Code. Portions of the Mortgaged Property are or may become fixtures or real property. This Deed of Trust also constitutes a financing statement for purposes of the applicable Uniform Commercial Code filed as a fixture filing in the land records of Los Angeles County, California, with respect to any and all fixtures comprising the Mortgaged Property. The “debtor” is CHH Xxxxxx Xxxxx Hotel Partners, LP and the “secured party” is Aareal Capital Corporation, as Agent. The collateral is as described in the granting clause of this Deed of Trust, and the addresses of the debtor and secured party are the addresses stated in Section 5.11 of this Deed of Trust for notices to such parties. The organization identification number of the debtor is 3734144 and the lessee of record of the Land is CHH Xxxxxx Xxxxx Hotel Partners, LP.

TO THE EXTENT that any of the Mortgaged Property is not subject to the Uniform Commercial Code and is not real property pursuant to applicable Legal Requirements, Grantor hereby assigns to Beneficiary all of Grantor’s right, title and interest in and to the Mortgaged Property to secure the Obligations, together with the right of set-off with regard to such Mortgaged Property or any part thereof.

ARTICLE I.

DEFINITIONS

Section 1.1 Definitions. All capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Loan Agreement. For purposes of this Deed of Trust, the following terms shall have the respective meanings set forth in this Article I:

“Bankruptcy Code” means Title 11 of the United States Code, as in effect from time to time.

“Beneficiary” has the meaning set forth in the first paragraph of this Deed of Trust.

“Borrowers” has the meaning set forth in the recitals hereto.

“Deed of Trust” has the meaning set forth in the first paragraph of this Deed of Trust.

“Event of Default” has the meaning set forth in Section 3.1 hereof.

“Environmental Laws” has the meaning set forth in the Environmental Indemnity.

“Excluded Accounts” has the meaning set forth in the Loan Agreement.

“FF&E” has the meaning set forth in the Granting Clause.

“Governmental Authority” means any federal, state, county, municipal, parish, provincial or other government, or any department, commission, board, court, agency, committee, whether of the United States of America or any other country, or any instrumentality of any of them, or any other political subdivision thereof.

“Grantor” has the meaning set forth in the first paragraph of this Deed of Trust.

“Ground Lease” means that certain Percentage Lease dated as of August 10, 1987 made by and between Xxxxxx Xxxxx Hotel Associates, as tenant, and City of San Diego, as landlord, as assigned by that certain Assignment and Assumption of Percentage Lease and Deed to Improvements dated as of December 29, 1998 by and between Xxxxxx Xxxxx Hotel Associates, as assignor, and Hilton Hotels Corporation, as assignee, as further assigned by that certain Assignment and Assumption of Percentage Lease and Deed to Improvements dated as of December 17, 2003 by and between Hilton Hotels Corporation, as assignor, and Grantor, as assignee.

“Improvements” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Land” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Lease Guaranty” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Lease Security” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Leases” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Lessee” means a lessee, sublessee, tenant, subtenant, licensee, concession holder or other Person having the right to use or occupy all or any portion of the Property pursuant to a Lease or otherwise.

“Loan Agreement” has the meaning set forth in the recitals hereto.

“Mortgaged Property” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Note” has the meaning set forth in the recitals hereto.

“Person” means any individual, corporation, limited liability company, general partnership, limited partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof, or any other form of entity.

“Personal Property” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Property” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Property Documents” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Rents” has the meaning set forth in the Granting Clause of this Deed of Trust.

“Trustee” has the meaning set forth in the first paragraph of this Deed of Trust.

Section 1.2 Other Definitional Provisions. For purposes of this Deed of Trust:

(a) Defined terms used in the singular shall import the plural and vice versa.

(b) The words “hereof,” “herein,” “hereunder” and similar terms when used in this Deed of Trust shall refer to this Deed of Trust as a whole and not to any particular provision of this Deed of Trust.

(c) The words “include” and “including” wherever used in this Deed of Trust shall be deemed to be followed by the words “without limitation.”

(d) All agreements or instruments referred to in this Deed of Trust shall mean such agreements or instruments as the same may from time to time be supplemented or amended, or the terms thereof waived or modified, to the extent permitted by, and in accordance with, the terms and conditions thereof and of this Deed of Trust and the other Loan Documents. Each of the Loan Documents is incorporated by reference into this Deed of Trust.

ARTICLE II.

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 2.1 Incorporation by Reference. Without limiting the scope of Section 1.2(d) hereof, all of the representations, warranties and covenants contained in the Loan Agreement are hereby incorporated herein by reference. In the event of any conflict or inconsistency between the provisions of the Loan Agreement and the provisions of this Deed of Trust, the provisions of the Loan Agreement shall govern.

Section 2.2 Title; Covenant Against Transfers. Grantor is the sole legal and beneficial owner of a valid and subsisting interest as tenant under the Ground Lease, not subject to any Liens or encumbrances other than the Permitted Encumbrances. The Ground Lease is in full force and effect, and to Grantor’s knowledge, there are no defaults thereunder and no event has occurred or is occurring which after notice or the passage of time will result in such a default. The Ground Lease is prior to all Liens and encumbrances on the fee interest of the lessor thereunder, other than the Permitted Encumbrances. Grantor owns the Personal Property, the Leases, the Rents and all other personal property encumbered by this Deed of Trust free and

clear of all Liens and encumbrances other than Permitted Encumbrances. Except as expressly permitted by the Loan Agreement, Grantor shall not, without the prior written consent of Beneficiary, transfer, sell, lease, convey, exchange, mortgage, encumber, pledge, assign or otherwise dispose of the Mortgaged Property or any portion of, or any direct or indirect interest in, the Mortgaged Property.

Section 2.3 Limitation on Indebtedness. Grantor shall not incur, create, contract for, waive, assume, have outstanding, guaranty or otherwise become liable with respect to indebtedness except as expressly permitted by the Loan Agreement.

ARTICLE III.

EVENTS OF DEFAULT AND REMEDIES

Section 3.1 Definition of Event of Default. The term “Event of Default” shall mean the occurrence of an “Event of Default” pursuant to the Loan Agreement.

Section 3.2 Remedies. In addition to any other rights and remedies which Beneficiary or Trustee may have under this Deed of Trust, the Loan Agreement and the other Loan Documents or pursuant to law or equity, and without limitation thereof, upon and at any time after the occurrence and during the continuance of any Event of Default, Beneficiary or Trustee, as applicable, at any time may take such lawful action as Beneficiary reasonably deems advisable to protect and enforce its rights against Grantor and in and to the Mortgaged Property, including the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Beneficiary may determine in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Beneficiary or Trustee (to the extent permitted by the Loan Documents and applicable law):

(a) declare the whole of the principal sum of the Amended Loan, Interest, Additional Interest, along with any other sum payable under the Note, the Loan Agreement, this Deed of Trust and any other Loan Document to be immediately due and payable without presentment, demand, protest, notice of protest and non-payment or other notice of default or notice of acceleration or notice of intention to accelerate or other notice of any kind, all of which are hereby waived by Grantor and all other parties obligated in any manner whatsoever on the Obligations;

(b) enter into or upon the Mortgaged Property, either personally or by its agents, nominees or attorneys, and dispossess Grantor and its agents and employees therefrom, and thereupon Beneficiary may (i), subject to the terms of the Manager SNDA, use, operate, manage, lease, control, insure, maintain, repair, restore and otherwise deal with all and every part of the Mortgaged Property and conduct the business thereat on such terms and for such period as Beneficiary shall determine, (ii) complete any construction on the Mortgaged Property in such manner and form as Beneficiary deems advisable as permitted pursuant to the Loan Agreement or the other Loan Documents, (iii) subject to the terms of the Manager SNDA, make alterations, additions, renewals, replacements and improvements to or on the Mortgaged Property, (iv) exercise all rights and powers of Grantor with respect to the Mortgaged Property, including the right to make, cancel, enforce or modify Leases, obtain and evict Lessees, and demand, xxx

for, collect and receive all earnings, revenues, rents, issues, profits and other income of the Mortgaged Property and every part thereof and as otherwise may be set forth in the Assignment of Leases and Rents, and (v), subject to the terms of the Manager SNDA and the Loan Agreement, apply the receipts from the Mortgaged Property to the payment of the indebtedness secured thereby, in the order and manner set forth in the Loan Agreement and the Note after deducting therefrom all expenses (including reasonable attorneys’ fees and disbursements) incurred in connection with the aforesaid operations and all amounts necessary to pay the taxes, assessments, insurance and other charges in connection with the Mortgaged Property, as well as just and reasonable compensation for the services of Beneficiary or Trustee and their counsel, agents and employees. If Grantor shall for any reason fail to surrender or deliver the Mortgaged Property or any part thereof after Beneficiary’s demand, Beneficiary may obtain a judgment or decree conferring on Beneficiary the right to immediate possession or requiring Grantor to deliver immediate possession of all or part of the Mortgaged Property to the Beneficiary, to the entry of which judgment of decree Grantor hereby specifically consents. Grantor shall pay to Beneficiary, upon demand, all costs and expenses of obtaining such judgment or decree and reasonable compensation to Beneficiary, its attorneys and agents, and all such costs, expenses and compensation shall, until paid, be secured by the lien of this Deed of Trust. Beneficiary, at its election, and without notice to Grantor, may, to preserve its interest in the Mortgaged Property, make any payments which the Grantor has failed to make under any Permitted Encumbrance, and any such sums so paid shall be secured hereby and be immediately due and payable from Grantor upon demand of Beneficiary shall not release Grantor from the Grantor’s obligations or constitute a waiver of the Grantor’s default hereunder. Beneficiary shall surrender possession of the Mortgaged Property to the Grantor only when all that is due upon such interest and principal, including, without limitation, the principal balance of the Note following acceleration thereof, tax and insurance deposits, and all amounts under any of the terms of this Deed of Trust, shall have been paid in full;

(c) institute proceedings, judicial or nonjudicial (to the extent applicable under applicable Legal Requirements), for the foreclosure of this Deed of Trust, in which case the Mortgaged Property may be sold for cash or credit in one or more parcels;

(d) with or without entry and, to the extent permitted, and pursuant to the procedures provided by applicable Legal Requirements, institute proceedings for the partial foreclosure of this Deed of Trust for the portion of the indebtedness secured hereby then due and payable, subject to the lien of this Deed of Trust continuing unimpaired and without loss of the priority so as to secure the balance of the indebtedness secured hereby not then due;

(e) sell the Mortgaged Property or any part thereof and all estate, claim, demand, right, title and interest of Grantor therein and rights of redemption thereof, to the extent permitted pursuant to applicable Legal Requirements, at one or more sales, in whole or in parcels, at such time and place, upon such terms and after such notice thereof as may be required or permitted by law, and in the event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged Property, this Deed of Trust shall continue as a lien on the remaining portion of the Mortgaged Property;

(f) institute an action, suit or proceeding in equity for the specific performance of any covenants, conditions or agreements contained herein or in the Note, the Loan Agreement or any other Loan Document;

(g) recover judgment on the Note or any guaranty in one or more actions which may be primary or for a deficiency either before, during, after or in lieu of any proceedings for the enforcement of this Deed of Trust;

(h) apply for the appointment of a custodian, trustee, receiver, liquidator or conservator of the Mortgaged Property, without notice and without regard for the adequacy of the security for the indebtedness secured hereby and without regard for the solvency of Grantor, any guarantor or of any Person liable for the payment of the indebtedness secured hereby and Grantor hereby consents to the appointment of such a receiver, and will not oppose any such appointment;

(i) exercise any other rights or remedies as Beneficiary or Trustee may have under any of the other Loan Documents; or

(j) pursue such other legal or equitable remedies as Beneficiary or Trustee may have under applicable Legal Requirements, including all rights and remedies under the applicable Uniform Commercial Code.

Section 3.3 Actions for Possession. Without limiting the rights of Beneficiary or Trustee pursuant to Section 3.2 hereof, Beneficiary or Trustee may further, during the continuance of an Event of Default, by summary proceedings, initiate an action for possession or otherwise, dispossess any Lessee then or thereafter in default in the payment of any Rent or other charge for the use thereof, and Lessee whose leasehold estates or rights to use the Mortgaged Property are subordinate to the lien of this Deed of Trust, whether or not any such Lessee is so in default. During the continuance of an Event of Default, if Grantor remains in possession after demand by Beneficiary for surrender of possession of the Mortgaged Property, such continued possession by Grantor shall be as tenant of Beneficiary, and Grantor agrees to pay monthly in advance to Beneficiary such rent for the Mortgaged Property so occupied as Beneficiary may demand, and in default of so doing, Grantor may also be dispossessed by summary proceedings or otherwise. In case of the appointment of a receiver of the Rents, the foregoing agreement of Grantor to pay rent shall inure to the benefit of such receiver.

Section 3.4 Assembly of Mortgaged Property. During the continuance of an Event of Default, Beneficiary may require Grantor to assemble the Mortgaged Property, or any part thereof, and make it available to Beneficiary at the Property or at such other place as Beneficiary may reasonably designate.

Section 3.5 Surrender of Insurance Policies. In the event of the transfer of the Mortgaged Property pursuant to a foreclosure, deed in lieu of foreclosure, or otherwise in accordance with the terms and conditions of this Deed of Trust, and subject to the terms and conditions of the Loan Agreement, Beneficiary may surrender the insurance policies maintained pursuant to the terms of the Loan Documents, or any part thereof, and receive and apply the

unearned premiums as a credit on the Obligations, and in connection therewith, Grantor hereby authorizes Beneficiary to collect such premiums.

Section 3.6 Retention of Mortgaged Property. Beneficiary may retain any portion of the Mortgaged Property which does not constitute real property, or part thereof, in satisfaction of the Obligations, or part thereof, whenever the circumstances are such that Beneficiary is entitled to do so under the applicable Uniform Commercial Code.

Section 3.7 Purchase of the Mortgaged Property. During the continuance of an Event of Default, Beneficiary may buy the Mortgaged Property, or any part thereof, at any public sale or judicial sale in accordance with applicable Legal Requirements. Beneficiary may also buy the Mortgaged Property, or any part thereof, at any private sale if the Mortgaged Property, or part thereof, being sold is a type customarily sold in a recognized market or a type which is the subject of widely distributed standard price quotations. In lieu of paying cash for the purchase of the Mortgaged Property pursuant to this or any other clause herein, Beneficiary may make settlement for the purchase price by crediting upon the indebtedness secured by this Deed of Trust the net sales price after deducting therefrom the expenses of the sale and the costs of the action and any other sums which Beneficiary is authorized to deduct under this Deed of Trust.

Section 3.8 Sale of the Mortgaged Property. Upon the completion of any sale or sales made by Beneficiary or Trustee pursuant to the terms of this Deed of Trust, Beneficiary, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient instrument, or good and sufficient instruments, granting, conveying, assigning and transferring all estate, right, title and interest in and to the property and rights sold without any covenants, warranties or representations. Grantor, if so requested by Beneficiary, shall ratify and confirm any such sale or sales by executing and delivering to Beneficiary or to such purchaser or purchasers all such instruments as may be necessary, in the judgment of the title insurance company insuring such instruments, for such purpose, and as may be designated in such request. Any such sale or sales made under or by virtue of this Deed of Trust, whether made under the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale, shall operate to divest all the estate, right, title, interest, claim and demand whatsoever, whether at law or in equity, of Grantor in and to the properties and rights so sold, and shall be perpetual both at law and in equity against Grantor and against any and all persons claiming or who may claim the same, or any part thereof, either from, through or under Grantor.

Section 3.9 Adjournment of Sale of Mortgaged Property. Beneficiary or Trustee may adjourn from time to time any sale by it to be made under or by virtue of this Deed of Trust by announcement at the time and place appointed for such sale or for such adjourned sale or sales; and, except as otherwise provided by any applicable provision of law, Beneficiary or Trustee, without further notice or publication, may make such sale at the time and place to which the same shall be so adjourned.

ARTICLE IV.

LEASES AND RENTS

Section 4.1 Compliance. Grantor shall comply with all of the terms, covenants and conditions in the Loan Agreement, this Deed of Trust and the other Loan Documents with respect to the Leases and Rents.

Section 4.2 Leases. Except as set forth in Section 4.4 of the Loan Agreement, Grantor shall not (a) enter into, amend, modify, extend, renew, restate or supplement any Lease, (b) terminate or accept a surrender or shorten the term of, reduce the payment of the rent under, materially modify any of the provisions of, or grant any material consent (except to the extent such consent is required under such Lease) or waiver under, any Lease, (c) terminate, modify, grant any waiver under or otherwise amend any guaranty provided with respect to a Lease, in each case without the prior written consent of Beneficiary or (d) accept the payment of Rent under any Lease more than one (1) month in advance (exclusive of any security deposit received in connection therewith).

Section 4.3 Assignment.

(a) Grantor does hereby absolutely, unconditionally and irrevocably grant, transfer, convey and assign to Beneficiary all of Grantor’s right, title and interest in and to all Leases, Rents, Lease Guaranties and Lease Security, subject, however, to the license granted by Beneficiary to Grantor in Section 4.3(b) hereof and subject to the terms of the Manager SNDA. This assignment of Leases, Rents, Lease Guaranties and Lease Security constitutes an absolute, irrevocable and present assignment, subject to the grant of a license by Beneficiary to Grantor to collect and use such Rents and, subject to the terms of the Loan Documents, take all actions of landlord under the Leases, Lease Guaranties and Lease Security in accordance with Section 4.3(b) hereof. Upon the occurrence and during the continuance of an Event of Default, Beneficiary may, at its option, revoke such license by notice to Grantor, and all Rents collected and held by Grantor after the occurrence and during the continuance of such Event of Default shall be paid over to Beneficiary and applied as provided in the Loan Agreement, subject to the terms of the Manager SNDA. The assignment contained in this Section 4.3 shall be fully operative without any further action on the part of either party and Beneficiary shall be entitled, at its option, upon the occurrence and during the continuance of an Event of Default, to all Rents, which Rents upon the occurrence and during the continuance of an Event of Default, shall be held by Grantor as trustee for the benefit of Beneficiary only, whether or not Beneficiary shall take possession of the Property. Notwithstanding the foregoing, Beneficiary may at any time upon the occurrence and during the continuance of an Event of Default, notify each and/or any Lessee of the assignment granted hereunder.

(b) So long as Beneficiary has not revoked the license to collect and use Rents described in Section 4.3(a) hereof by reason of the occurrence and continuance of an Event of Default, Grantor shall have the right, subject to the terms and conditions of the Loan Agreement, this Deed of Trust and the Assignment of Leases and Rents, and the Manager SNDA, to collect and receive all Rents for application in accordance with the Loan Agreement and the other Loan Documents and, subject to the terms of the Loan Documents, to take any

other actions of landlord under the Leases, Lease Guaranties and Lease Security as Grantor shall elect.

Section 4.4 Debtor Relief Laws.

(a) Without limiting the generality of any provision of this Article IV, if a proceeding under the Bankruptcy Code is commenced by or against Grantor, then, pursuant to Section 552(b)(2) of the Bankruptcy Code, the security interest granted by this Deed of Trust shall automatically extend to all Rents acquired by Grantor after the commencement of the case and such Rents shall constitute cash collateral under Section 363(a) of the Bankruptcy Code.

(b) During the continuation of any Event of Default, Beneficiary shall have the right, but not the obligation, to file in its own name or on behalf of Grantor, any proof of claim in any bankruptcy or insolvency proceeding in which the debtor is a Lessee or guarantor under a Lease.

ARTICLE V.

MISCELLANEOUS

Section 5.1 Release of Deed of Trust. If the Obligations are paid and performed in full in accordance with the terms of this Deed of Trust, the Note and other Loan Documents, then this Deed of Trust shall, at Grantor’s request either be satisfied of record or assigned, without recourse, pursuant to an instrument acceptable to Beneficiary, to another lender designated by Grantor at Grantor’s request and expense, but shall remain in full force and effect until so satisfied, in each case at the expense of Grantor, including the payment of any reasonable attorney’s fees and disbursements in connection with such satisfaction or assignment.

Section 5.2 Rights Cumulative. All rights, remedies, powers, privileges and liens expressly conferred by the Loan Documents are cumulative of all other rights, remedies, powers, privileges and liens herein, or by law or in equity provided, or provided in any other Loan Documents, and shall not be deemed to deprive Beneficiary of any such other legal or equitable rights, remedies, powers, privileges and liens by judicial proceedings, or otherwise, appropriate to enforce the conditions, covenants and terms of this Deed of Trust, the Note and the other Loan Documents, and the employment of any rights, remedies, powers and privileges hereunder, or otherwise, shall not prevent the concurrent or subsequent employment of any other appropriate rights, remedies, powers and privileges.

Section 5.3 Amendments, Waivers, Consents and Approvals. No failure or delay of Trustee or Beneficiary in exercising any power, right or remedy hereunder or to demand payment for any sums due pursuant to this Deed of Trust or any other Loan Document, shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver of any provision of this Deed of Trust or in any of the other Loan Documents or consent to any departure by Grantor or any other Person therefrom shall in any event be effective unless signed in writing by Beneficiary, and then such waiver or consent shall

be effective only in the specific instance and for the purpose for which given. Consents, approvals and waivers granted by Beneficiary for any matters covered under this Deed of Trust or any Loan Document shall not be effective unless signed in writing by Beneficiary, and such consents, approvals and waivers shall be narrowly construed to cover only the parties and facts identified in any such consent, approval or waiver. No notice or demand on Grantor or any other Person in any case shall entitle Grantor or such Person to any other or further notice or demand in similar or other circumstances. Unless expressly provided to the contrary, any consents, approvals or waivers of Beneficiary or Lenders pursuant to this Deed of Trust or any other Loan Documents shall be granted or withheld in Beneficiary’s or Lenders’ sole discretion, as the case may be. No amendment, modification or termination of any provision of this Deed of Trust shall be effective unless in writing and signed by Grantor and Beneficiary.

Section 5.4 Other Waivers. Grantor hereby waives (a) all rights of marshaling in the event of any foreclosure of the liens hereby created and (b) the benefit of all appraisement, valuation, stay, extension and redemption laws now or hereafter in force.

Section 5.5 Severability. In the event any one or more of the provisions contained in this Deed of Trust or in any other Loan Document should be held invalid, illegal or unenforceable in any respect in a particular jurisdiction or as to particular Persons or circumstances, the validity, legality and enforceability of the remaining provisions contained herein or therein (or the effectiveness of the invalid, illegal or unenforceable provision in a different jurisdiction or as to different Persons or circumstances) shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. If the rights, remedies, powers, privileges and liens created by this Deed of Trust shall be invalid or unenforceable as to any part of the Obligations, then the unsecured portion of the Obligations shall be completely paid prior to the payment of the remaining and secured portion of the Obligations, and all payments made on the Obligations shall be considered to have been paid on and applied first to the complete payment of the unsecured portion of the Obligations.

Section 5.6 Binding Effect; Covenants Running with the Land. The provisions of this Deed of Trust shall be binding upon Grantor, and its successors and assigns, and shall inure to the benefit of Trustee and Beneficiary, and their respective successors and assigns, and the provisions hereof shall likewise be covenants running with the land.

Section 5.7 Counterparts. This Deed of Trust may be executed in any number of counterparts each of which shall be deemed an original, and all of which when taken together shall be one and the same Deed of Trust. Signature and acknowledgment pages may be attached from the counterparts and attached to a single copy of the document to physically form one document, which may be recorded.

Section 5.8 Financing Statement. Beneficiary shall have the right at any time to file this Deed of Trust as a financing statement, but the failure to do so shall not impair the validity and enforceability of this Deed of Trust against Grantor in any respect whatsoever. A carbon, photographic, or other reproduction of this Deed of Trust, or any financing statement relating to this Deed of Trust, shall be sufficient as a financing statement. Furthermore, Grantor

hereby authorizes Beneficiary at any time to file any financing statements, amendments thereto and continuation statements therefor, regarding all or any part of the Mortgaged Property, with or without the signature of Grantor as authorized by applicable Legal Requirements. For purposes of such filings, Grantor agrees to furnish any information, or take any further acts, within five (5) Business Days, upon reasonable request therefor by Beneficiary.

Section 5.9 References. All references to “Article,” “Articles,” “Section,” “Sections,” “Subsection,” or “Subsections” contained herein are, unless specifically indicated otherwise, references to articles, sections and subsections of this Deed of Trust.

Section 5.10 Captions. The captions, headings, and arrangements used in this Deed of Trust are for convenience only and do not in any way affect, limit, amplify, or modify the terms and provisions hereof.

Section 5.11 Notices. Any notice, demand, request, consent, approval or other communication, which any party hereto may be required or may desire to give hereunder, shall be made in accordance with Section 10.1 of the Loan Agreement to the party to whom notice is being given, in any of the foregoing cases at the address set forth below:


Beneficiary:		Aareal Capital Corporation
		000 Xxxx Xxxxxx, Xxxxx 000
		Xxx Xxxx, Xxx Xxxx 00000
		Attention: Credit Department, Xxxxxx Xxxx
		Telephone: 000-000-0000
		Facsimile: 000-000-0000

		with a copy similarly delivered to:

		Aareal Capital Corporation
		000 Xxxx Xxxxxx, Xxxxx 000
		Xxx Xxxx, Xxx Xxxx 00000
		Attention: Xxxx X. Xxxxxxx, Esq.
		Telephone: 000-000-0000
		Facsimile: 000-000-0000

		with a copy to:

		Xxxx Xxxxxxx LLP
		000 Xxxx Xxxxxx
		Xxx Xxxx, Xxx Xxxx 00000
		Attention: Xxxxxx X. Xxxxxxxxx, Esq.
		Telephone: 000-000-0000
		Facsimile: 000-000-0000


Grantor:		CHH Xxxxxx Xxxxx Hotel Partners, LP
		00000 Xxxxxx Xxxxxxx, Xxxxx 0000
		Xxxxxx, Xxxxx 00000
		Attention: Xxxxx X. Xxxxxx
		Telephone: 000-000-0000
		Facsimile: 000-000-0000

		with a copy to:

		Xxxxxxx Xxxxx LLP
		0000 Xxxx Xxxxxx, Xxxxx 0000
		Xxxxxx, Xxxxx 00000-0000
		Attention: Xxxxxxxx Xxxxxxx Kimichik, Esq.
		Telephone: 000-000-0000
		Facsimile: 000-000-0000

Any party may change its address for purposes of this Deed of Trust by giving notice of such change to the other parties pursuant to this Section 5.11. All such notices, certificates, demands, requests, approvals, waivers and other communications given pursuant to this Section 5.11 shall be effective when received or refused at the address specified as aforesaid.

Notwithstanding any provision contained herein or in any of the other Loan Documents to the contrary, in the event that Beneficiary shall fail to give any notice to any Person under this Deed of Trust, the sole and exclusive remedy for such failure shall be to seek appropriate equitable relief to enforce this Deed of Trust to give such notice and to have any action of such Person postponed or revoked and any proceedings in connection therewith delayed or terminated pending the giving of such notice by Beneficiary, and no Person shall have any right to damages (whether actual or consequential) or any other type of relief against Beneficiary not specifically provided for herein, all of which damages or other relief are hereby expressly waived. The foregoing is not intended and shall not be deemed under any circumstances to require Beneficiary to give notice of any type or nature to any Person except as expressly required hereby or thereby, or by applicable Legal Requirements.

Section 5.12 Governing Law. This Deed of Trust shall be governed by, and construed in accordance with, the substantive and procedural laws of the state where the Property is located.

Section 5.13 Relationship. Nothing contained in this Deed of Trust, the Note, the Loan Agreement or the other Loan Documents, nor the acts of the parties hereto shall be construed to create a relationship of principal and agent, partnership or joint venture between Grantor and Beneficiary.

Section 5.14 Limitation of Liability. Recourse for the obligations under this Deed of Trust shall be limited as set forth in Section 10.14 of the Loan Agreement.

Section 5.15 Attorneys’ Fees. If this Deed of Trust shall be foreclosed, or if any of the Loan Documents is placed in the hands of an attorney for collection or is collected through

any court, including any bankruptcy court, there shall be included in the computation of the sums secured hereby, to the extent permitted by law, a reasonable amount of the fee for the services of the attorney retained by Beneficiary in the foreclosure action or proceeding, and all disbursements, costs, allowances and additional allowances provided by law.

Section 5.16 Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by Jury. Grantor irrevocably (a) agrees that any suit, action or other legal proceeding arising out of or relating to this Deed of Trust, the Note or the other Loan Documents may be brought in the courts of the United States of America or in the courts of the state where the Property is located, in each case, located in the county where the Property is located, (b) consents to the jurisdiction of each such court in any such suit, action or proceeding and (c) waives any objection which it may have to the laying of venue of any such suit, action or proceeding in any of such courts and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. Grantor irrevocably consents to the service of any and all process in any such suit, action or proceeding by service of copies of such process to Grantor at its address provided in Section 5.11 hereof, as the same may be changed pursuant to Section 5.11 hereof. Nothing in this Section 5.16, however, shall affect the right of Beneficiary to serve legal process in any other manner permitted by law or affect the right of Beneficiary to bring any suit, action or proceeding against Grantor or its property in the courts of any other jurisdiction. GRANTOR HEREBY WAIVES AND BENEFICIARY, BY ITS ACCEPTANCE OF THIS DEED OF TRUST, HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS DEED OF TRUST, THE NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, WHICH WAIVER IS INFORMED AND VOLUNTARY.

Section 5.17 Variable Interest Rate. The Amended Loan secured by this Deed of Trust is a variable interest rate loan, as more particularly set forth in the Loan Agreement.

Section 5.18 After-Acquired Property. All right, title and interest of Grantor in and to all extensions, improvements, betterments, renewals, substitutes and replacements of, and all additions and appurtenances to, the Mortgaged Property, hereafter acquired by, or released to, Grantor or constructed, assembled or placed by Grantor on the Property, and all conversions of the security constituted thereby, and all other property of every kind which is hereafter acquired by Grantor which, by the terms hereof, is required or intended to be subjected to the lien of this Deed of Trust shall, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case without any further mortgage, conveyance, assignment or transfer, become subject to the lien of this Deed of Trust.

Section 5.19 Further Assurances. (a) Grantor shall, within five (5) Business Days after written request, make, execute or endorse, and acknowledge and deliver or file or cause the same to be done, all such vouchers, invoices, notices, certifications, additional agreements, undertakings, conveyances, deeds of trust, mortgages, transfers, assignments, financing statements or other assurances, and take all such other action, as Beneficiary may, from time to time, deem reasonably necessary in order to give effect to the rights and benefits conferred on Beneficiary and Lenders pursuant to this Deed of Trust or any of the other Loan Documents, all or any part of the security intended to be provided pursuant to this Deed of Trust or any of the other Loan Documents, for any of the Obligations.

(b) Grantor, at its sole cost and without cost and expense to Beneficiary, Trustee or Lenders, shall at all times cause this Deed of Trust and any amendments or supplements hereto, and if reasonably requested by Beneficiary, any instruments of assignment hereof (and any appropriate financing statements or other instruments and continuations thereof with respect to any the foregoing) to be recorded, registered and filed and to be kept recorded, registered and filed, in such manner and in such places, and shall pay all such recording, registering and filing fees and taxes and other charges, including any recording or documentary stamp taxes and intangible personal property tax or similar imposition of any Governmental Authority, now or hereafter in effect, and shall comply with all such statutes and regulations as may be required by law in order to establish, preserve, perfect and protect the lien of this Deed of Trust as a valid first deed of trust lien upon that portion of the Mortgaged Property which is real property and a first priority perfected security interest in that portion of the Mortgaged Property upon which a security interest can be perfected pursuant to the applicable Uniform Commercial Code, subject, in each of the foregoing cases, only to Permitted Encumbrances.

Section 5.20 No Other Party Beneficiary. This Deed of Trust is for the sole benefit of Beneficiary, Trustee, Lenders and their successors and assigns, and is not for the benefit of any other party. Nothing contained in this Deed of Trust shall be deemed to confer upon anyone other than Beneficiary, Trustee, Lenders and their successors and assigns any right to insist upon or to enforce the performance or observance of any of the obligations contained herein.

Section 5.21 Entire Agreement. This Deed of Trust and the other Loan Documents constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter contained in this Deed of Trust.

Section 5.22 No Credits on Account of Debt. Grantor shall not claim or demand or be entitled to any credit or credits on account of the indebtedness secured by this Deed of Trust for any part of the Impositions assessed against the Mortgaged Property or any part thereof, and no deduction shall otherwise be made or claimed from the taxable value of the Mortgaged Property, or any part thereof, by reason of this Deed of Trust or the indebtedness secured by this Deed of Trust.

Section 5.23 Trustee’s Performance. Trustee, by its acceptance hereof, covenants faithfully to perform and fulfill the trusts herein created, being liable, however, only for gross negligence or willful misconduct, and hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by it in accordance with the terms hereof. Grantor agrees to pay all reasonable costs, fees and expenses of Trustee, its agents and counsel in connection with the performance of its duties hereunder.

Section 5.24 Resignation by Trustee. Trustee may resign at any time upon giving thirty (30) days’ notice to Grantor and Beneficiary.

Section 5.25 Substitution of Trustee. Without limiting Trustee’s right to resign in accordance with Section 5.24 hereof, Beneficiary, shall have the irrevocable power, to be exercised at any time or times hereafter and with or without cause, to substitute a trustee or

trustees in place of Trustee, by an instrument in writing duly executed, acknowledged and recorded in the land records where this Deed of Trust was recorded, and when such instrument is so recorded, all of the powers of Trustee thus superseded shall terminate and all of the right, title and interest of Trustee hereunder shall be vested in the trustee or trustees named as its successor, and such successor trustee or trustees shall have the same powers, rights, and duties which the trustee so superseded had under this Deed of Trust. The exercise of this right to appoint a successor trustee, no matter how often exercised, shall not be deemed an exhaustion of said right. Irrespective of whether Trustee consists of one or more entities, Beneficiary may name one or more entities as successor trustee or trustees as Agent may determine. Other Mortgages; No Election of Remedies. (a) This Deed of Trust is one of the “Mortgages” referred to in the Loan Agreement. The Obligations are now or may hereafter be secured by one or more other mortgages, deeds of trust and other security agreements (collectively, as the same may be amended and in effect from time to time, are herein collectively called the “Other Mortgages”), which cover or will hereafter cover other properties that are or may be located in various states (the “Other Collateral”). The Other Mortgages will secure the Obligations and the performance of the other covenants and agreements of Borrowers set forth in the Loan Documents. Upon the occurrence of an Event of Default, Beneficiary may proceed under this Deed of Trust and/or any or all the Other Mortgages against either the Mortgaged Property and/or any or all the Other Collateral in one or more parcels and in such manner and order as Beneficiary shall elect. Grantor hereby irrevocably waives and releases, to the extent permitted by law, and whether now or hereafter in force, any right to have the Mortgaged Property and/or the Other Collateral marshaled upon any foreclosure of this Deed of Trust or any Other Mortgage.

(b) Without limiting the generality of the foregoing, and without limitation as to any other right or remedy provided to Beneficiary in this Deed of Trust or the other Loan Documents, during the occurrence of an Event of Default (i) Beneficiary shall have the right to pursue all of its rights and remedies under this Deed of Trust and the Loan Documents, at law and/or in equity, in one proceeding, or separately and independently in separate proceedings from time to time, as Beneficiary, in its sole and absolute discretion, shall determine from time to time, (ii) Beneficiary shall not be required to either marshal assets, sell the Mortgaged Property and/or any Other Collateral in any particular order of alienation (and may sell the same simultaneously and together or separately), or be subject to any “one action” or “election of remedies” law or rule with respect to the Mortgaged Property and/or any Other Collateral, (iii) the exercise by Beneficiary of any remedies against any one item of Mortgaged Property and/or any Other Collateral will not impede Beneficiary from subsequently or simultaneously exercising remedies against any other item of Mortgaged Property and/or Other Collateral, (iv) all liens and other rights, remedies or privileges provided to Beneficiary herein shall remain in full force and effect until Beneficiary has exhausted all of its remedies against the Mortgaged Property and all Mortgaged Property has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Obligations, and (v) Beneficiary may resort for the payment of the Obligations to any security held by Beneficiary in such order and manner as Beneficiary, in its discretion, may elect and Beneficiary may take action to recover the Obligations, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Beneficiary thereafter to foreclose this Deed of Trust.

(c) Without notice to or consent of Grantor and without impairment of the lien and rights created by this Deed of Trust, Beneficiary may, at any time (in its sole and

absolute discretion, but Beneficiary shall have no obligation to), execute and deliver to Grantor a written instrument releasing all or a portion of the lien of this Deed of Trust as security for any or all of the obligations of Grantor now existing or hereafter arising under or in respect of the Note, the Loan Agreement and each of the other Loan Documents, whereupon following the execution and delivery by Beneficiary to Grantor of any such written instrument of release, this Deed of Trust shall no longer secure such obligations of Grantor so released.

Section 5.27 Amended and Restated Deed of Trust. This Deed of Trust amends and restates, the Existing Deed of Trust in its entirety. No part of the outstanding indebtedness evidenced by the Existing Note shall be disturbed, discharged, cancelled or impaired by the execution and delivery of this Deed of Trust.

ARTICLE VI.

LEASEHOLD PROVISIONS

Section 6.1 The Ground Lease. If Grantor fails to perform or observe any term of the Ground Lease to be performed or observed by it thereunder after the giving of any required notice thereunder and the expiration of any cure periods applicable to Grantor under the Ground Lease, then, without waiving or releasing Grantor from any of its obligations hereunder, Beneficiary shall have the right, but shall be under no obligation, to pay any sum and to take any action (including entry upon the Property) to cause such performance or observance on behalf of Grantor, so that the rights of Grantor under the Ground Lease are unimpaired and free from default, even if the existence or the nature of Grantor’s default is being questioned or denied by Grantor or another person. Grantor shall pay to Beneficiary within five (5) days after demand, all such sums so paid or expended by Beneficiary, together with interest thereon from the day of such payment at the Default Rate, and the same shall be secured by this Deed of Trust. If the lessor under the Ground Lease gives Beneficiary notice of a default, such notice shall constitute full protection to Beneficiary for any action taken or omitted by Beneficiary, in good faith, in reliance thereon. Grantor shall exercise each individual option, if any, to extend or renew the term of the Ground Lease upon demand by Beneficiary made at any time within one year before the last day upon which any such option may be exercised, and Grantor hereby expressly authorizes and appoints Beneficiary its attorney-in-fact to exercise any such option in the name of and on behalf of Grantor, which power of attorney shall be irrevocable and be coupled with an interest. Grantor will not subordinate or consent to the subordination of the Ground Lease to any deed of trust, security deed, lease or other interest on or in the Property without the prior written consent of Beneficiary, which consent shall be withheld or granted in Beneficiary’s sole discretion.

Section 6.2 No Merger of Fee and Leasehold Estates. So long as any of the Obligations shall remain unpaid, the fee title to the Property and the leasehold estate under the Ground Lease shall not merge, but shall always be kept separate and distinct, notwithstanding the union of such estates in Grantor, Beneficiary or any other person by purchase, operation of laws or otherwise.

Section 6.3 Grantor’s Acquisition of Fee Estate. Without limiting any other term or provision hereof, if Grantor shall become the owner of fee title to the Property, then the lien of this Deed of Trust shall automatically be spread to cover Grantor’s interest in such fee title, which shall be deemed to be included in the Mortgaged Property. Grantor agrees, at its sole cost, including without limitation Beneficiary’s reasonable attorneys’ fees, to (i) execute and record all documents necessary to subject its fee title to the Property to the lien of this Deed of Trust; and (ii) provide to Beneficiary a title insurance policy insuring that the lien of this Deed of Trust is a first lien on such fee title subject to the Permitted Exceptions described in clauses (i) and (ii) of the definition of “Permitted Encumbrances” in the Loan Agreement.

Section 6.4 Rejection or Termination of the Ground Lease. (i) If the Ground Lease is terminated upon the rejection or disaffirmance thereof pursuant to the Bankruptcy Code or any other laws affecting creditor’s rights, then (x) Grantor, immediately after obtaining notice thereof, shall give notice thereof to Beneficiary, (y) Grantor, without the prior consent of Beneficiary, shall not elect to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code or any comparable federal or state statute or laws, and any election by Grantor made without such consent shall be void, and (z) this Deed of Trust and all the liens and provisions hereof shall extend to and cover Grantor’s possessory rights under Section 365(h) of the Bankruptcy Code and to any claim for damages due to the rejection or termination of the Ground Lease. Grantor hereby assigns irrevocably to Beneficiary Grantor’s rights to treat the Ground Lease as terminated pursuant to Section 365(h) of the Bankruptcy Code and to offset rents under the Ground Lease in the event any case, proceeding or other action is commenced by or against the Grantor under the Bankruptcy Code or any comparable federal or state statute or Legal Requirement. Grantor hereby assigns to Beneficiary Grantor’s rights under Section 365 of the Bankruptcy Code or any comparable federal or state statute or laws, in any case, proceeding or other action commenced by or against Grantor under the Bankruptcy Code or comparable federal or state statute or laws, (i) to reject the Ground Lease and (ii) to seek an extension of the period within which to accept or reject the Ground Lease. At Beneficiary’s request, Grantor shall assign its interest in the Ground Lease to Beneficiary in lieu of rejecting the Ground Lease. If the Ground Lease is terminated upon the rejection or disaffirmance thereof pursuant to the Bankruptcy Code or any other laws affecting creditor’s rights, then any property not removed by Grantor as permitted or required by the Ground Lease shall, at the option of Beneficiary, be deemed abandoned by Grantor; provided that Beneficiary may remove any such property required to be removed by Grantor pursuant to the Ground Lease, and all costs of such removal shall be paid by Grantor within five (5) days of receipt by Grantor of an invoice therefor.

Section 6.5 Ground Lease Termination. If the Ground Lease is terminated prior to the natural expiration of its term, and Beneficiary or its designee acquires another lease of the Property, Grantor shall have no right, title or interest in or to such other lease or the leasehold estate created thereby.

ARTICLE VII.

STATE SPECIFIC PROVISIONS

Section 7.1 Principles Of Construction. In the event of any inconsistencies between the terms and conditions of this Article VII and the other terms and conditions of this Deed of Trust, the terms and conditions of this Article VII shall control and be binding.

Section 7.2 No “Mortgagee-In-Possession” Status. Neither the assignment of Leases and Rents contained in this Deed of Trust, nor the exercise by Beneficiary of any of its rights or remedies under this Deed of Trust shall be deemed to make Beneficiary a “mortgagee-in-possession” or otherwise liable in any manner with respect to the Mortgaged Property, unless Beneficiary, in person or by agent, assumes actual possession thereof. Nor shall appointment of a receiver for the Mortgaged Property by any court at the request of Beneficiary or by agreement with Grantor, or the entering into possession of the Mortgaged Property by such receiver, be deemed to make Beneficiary a “mortgagee-in-possession” or otherwise liable in any manner with respect to the Mortgaged Property.

Section 7.3 Power Of Sale And Other Rights.

(a) This instrument may be foreclosed in any manner permitted by the laws of the state of California. The sale or sales of less than the whole of the Mortgaged Property shall not exhaust the power of sale herein granted, and Trustee is specifically empowered to make successive sales under such power until the whole of the Mortgaged Property shall be sold. Should Beneficiary elect to invoke the power of sale the Mortgaged Property, or any part thereof, which is real Mortgaged Property as provided above, Beneficiary or Trustee shall give such notice of default and election to sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such notice of sale as may then be required by law, and without the necessity of any demand on Grantor, Trustee, at the time and place specified in the notice of sale, shall sell the Mortgaged Property or any part thereof at public auction to the highest bidder for cash in lawful money of the United States, or cash equivalent acceptable to Trustee and Beneficiary, payable at time of sale. After deducting all costs, fees and expenses of Trustee and of this trust, including costs of evidence of title in connection with the sale, Trustee shall apply the proceeds of sale to payment of: all reasonable sums expended under this Deed of Trust, not then repaid, with interest thereon from the date of expenditure until paid at the Default Rate; all indebtedness and other obligations secured hereby in the order provided in the Loan Documents; and the remainder, if any, to the person or persons legally entitled thereto. Trustee may, and upon request of Beneficiary shall, from time to time, postpone any sale hereunder by public announcement thereof at the time and place noticed therefor or by giving notice of the time and place of the postponed sale in the manner required by law. If the Mortgaged Property consists of several lots, parcels or items of property, Beneficiary may designate the order in which such lots, parcels or items shall be offered for sale or sold. Should Beneficiary desire that more than one sale or other disposition of the Mortgaged Property be conducted, Beneficiary may, at its option, cause the same to be conducted simultaneously, or successively, on the same day, or at such different times and in such order as Beneficiary may deem to be in its best interests, and no such sale shall terminate or otherwise affect the lien of this Deed of Trust on any part of the Mortgaged Property not sold until all indebtedness secured

hereby has been fully paid. In the event of default of any purchaser, Trustee shall have the right to resell the Mortgaged Property as set forth above.

(b) In addition to any other right, with or without a foreclosure, Beneficiary may institute a judicial action for the foreclosure or enforcement of the assignments, liens, and security interests hereof subject to the terms of the Loan Documents and applicable California law. If a nonjudicial foreclosure hereunder is commenced by Beneficiary, Beneficiary, at any time before the sale, may abandon the sale and judicially foreclose and/or enforce the assignments, liens and security interests hereof subject to the terms of the Loan Documents and applicable California law. If Beneficiary should institute a suit for judicial foreclosure or enforcement of the assignments, liens, and security interests hereof, Beneficiary may, at any time before the entry of a final judgment in such suit, dismiss the same, and sell the Mortgaged Property, or any part thereof, in accordance with the power of sale provisions of this Deed of Trust. To the extent applicable, with respect to fixtures, Beneficiary or Trustee may elect to treat same as either real property or personal property and proceed to exercise such rights and remedies applicable to the categorization so chosen. Beneficiary may proceed against the real property and any personal property (and other Collateral) separately or together in any order whatsoever, without in any way affecting or waiving Beneficiary’s rights and remedies under the California Commercial Code, this Deed of Trust, the Note and the other Loan Documents.

(c) Every right, power and remedy granted to Trustee or Beneficiary in this Deed of Trust shall be cumulative and not exclusive, and in addition to all right, powers and remedies granted at law or in equity or by statute, and the exercise of any such right, power or remedy shall not be deemed a waiver of the right to exercise, at the same time or thereafter, any other right, power or remedy. Grantor hereby requests that a copy of any notice of default and of notice of sale under this Deed of Trust be mailed to Grantor at the address of Grantor set forth in Section 5.11 hereof as required by applicable law.

Section 7.4 Environmental Provisions.

(a) Beneficiary may waive its lien against the Mortgaged Property or any portion thereof, whether fixtures or personal property, to the extent such property is found to be “environmentally impaired” or an “affected parcel” in accordance with California Code of Civil Procedure Section 726.5 and may exercise any and all rights and remedies of an unsecured creditor against Grantor and all of Grantor’s assets and property for the recovery of any deficiency and Environmental Costs (as hereafter defined), including, but not limited to, seeking an attachment order under California Code of Civil Procedure Section 483.010. The term “Environmental Costs” shall mean any costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, and other out-of-pocket costs or expenses actually incurred or advanced by Beneficiary relating to the cleanup, remediation or other response action required by Environmental Laws or which Beneficiary reasonably believes necessary to protect the Mortgaged Property. As between Beneficiary and Grantor, for purposes of California Code of Civil Procedure Section 726.5, Grantor shall have the burden of proving that Grantor or any related party (or any Affiliate or agent of Grantor or any related party) was not in any way negligent in permitting the release or threatened release of the Hazardous Substances. Grantor acknowledges and agrees that, if this clause (a) applies, then notwithstanding any term or provision contained herein or in the Loan Documents, all judgments

and awards entered against Grantor shall be exceptions to any nonrecourse or exculpatory provision of the Loan Documents, and Grantor shall be fully and personally liable for all judgments and awards entered against Grantor relating to Environmental Costs and such liability shall not be limited to the original principal amount of the obligations secured by this Deed of Trust and Grantor’s obligations shall survive the foreclosure, deed in lieu of foreclosure, release, reconveyance, or any other transfer of the Mortgaged Property or this Deed of Trust. For the purposes of any action brought by or on behalf of Beneficiary under this Section 6.4, Grantor hereby waives the defense of laches and any applicable statute of limitations.

(b) In the event Beneficiary elects, in accordance with California Code of Civil Procedure Section 726.5, to waive all or part of the security of this Deed of Trust and proceed against Grantor on an unsecured basis, the valuation of the Mortgaged Property, the determination of the environmentally impaired status of such security and any cause of action for a money judgment shall, at the request of Beneficiary, be referred to a referee in accordance with California Code of Civil Procedure Sections 638 et seq. Such referee shall be an impartial M.A.I. appraiser selected by Beneficiary and approved by Grantor, which approval shall not be unreasonably withheld or delayed. If the parties cannot agree on an M.A.I. appraiser approved by Grantor, either party may apply to the presiding judge of the Superior Court in which the Mortgaged Property is located to make such appointment. The decision of such referee shall be binding upon both Grantor and Beneficiary, and judgment upon the award rendered by such referee shall be entered in the court in which such proceeding was commenced in accordance with California Code of Civil Procedure Sections 644 and 645. Grantor shall pay all reasonable costs and expenses incurred by Beneficiary in connection with any proceeding under California Code of Civil Procedure 726.5, as such Section may be amended from time to time.

(c) Beneficiary or its agents, acting by themselves or through a court appointed receiver, may upon reasonable advance notice to Grantor, enter upon the Mortgaged Property or any part thereof and may perform such acts and things as Beneficiary deems reasonably necessary or desirable to inspect, investigate, assess, and protect the security hereof, including without limitation of any of its other rights: (i) obtain a court order to enforce Beneficiary’s right to enter and inspect the Property under California Civil Code Section 2929.5, to which the decision of Beneficiary as to whether there exists a release or threatened release of any Hazardous Substance onto the Property shall be deemed reasonable and conclusive as between the parties hereto; and (ii) have a receiver appointed under California Code of Civil Procedure Section 564 to enforce Beneficiary’s right to enter and inspect the Property for Hazardous Substances. Subject to the Loan Documents, all reasonable costs and expenses incurred by Beneficiary with respect to the audits, tests, inspections, and examinations which Beneficiary or its agents or employees may conduct, including the reasonable fees of the engineers, laboratories, contractors, consultants and attorneys, shall become part of the indebtedness secured hereby and shall be paid by Grantor upon demand with interest at the Default Rate from the date when paid by Beneficiary.

(d) Beneficiary may seek a judgment that Grantor has breached its covenants, representations, warranties and/or other provisions with respect to this Deed of Trust or the other Loan Documents by commencing and maintaining an action or actions in any court of competent jurisdiction for breach of contract pursuant to California Code of Civil Procedure Section 736, whether commenced prior to or after foreclosure of the Mortgaged Property, and

may seek the recovery of Environmental Costs, it being conclusively presumed between Beneficiary and Grantor that all such Environmental Costs incurred or advanced by Beneficiary relating to the cleanup, remediation or other response action of or to the Property were made by Beneficiary in good faith. Grantor acknowledges that such an action shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d or 726(b) of the California Code of Civil Procedure. All Environmental Costs incurred by Beneficiary (including court costs, consultant fees and reasonable attorneys’ fees and disbursements, whether incurred in litigation or not and whether before or after judgment) shall bear interest at the Default Rate from the date of expenditure until said sums have been paid. Beneficiary shall be entitled to bid, at the sale of the Mortgaged Property held under any provision of this Deed of Trust, the amount of said costs, expenses and interest in addition to the amount of the other obligations hereby secured as a credit bid, the equivalent of cash.

(e) Without limiting any of the remedies provided in the Loan Documents, Grantor acknowledges and agrees that the provisions of this Section 7.4 and the Environmental Indemnity executed in connection herewith are “environmental provisions” (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by Grantor relating to the Property (the “Environmental Provisions”). Grantor’s breach or a failure to comply with the Environmental Provisions shall constitute a breach of contract entitling Beneficiary to all remedies provided under Section 736 of the California Code of Civil Procedure for the recovery of damages and for the enforcement of the Environmental Provisions. Pursuant to Section 736, Beneficiary’s action for recovery of damages or enforcement of the Environmental Provisions shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d and 726(b) of the California Code of Civil Procedure. The rights and remedies provided for under the Loan Documents are separate and distinct causes of action that shall not be abrogated, modified, limited or otherwise affected by the remedies provided under Section 736(a) of the California Code of Civil Procedure.

(f) Nothing herein shall be deemed to limit the right of Beneficiary to recover, in accordance with California Code of Civil Procedure Section 736 (as such Section may be amended from time to time), any reasonable costs, expenses, liabilities or damages, including reasonable attorneys’ fees and costs, incurred by Beneficiary and arising from any covenant, obligation, liability, representation or warranty contained in any Loan Document given to Beneficiary (including, without limitation, the Environmental Indemnity), or any order, consent decree or settlement relating to the cleanup of Hazardous Substances or any other “environmental provision” (as defined in such Section 736) relating to the Mortgaged Property or any portion thereof or the right of Beneficiary to waive, in accordance with the California Code of Civil Procedure Section 726.5 (as such Section may be amended from time to time), the security of this Deed of Trust as to any parcel of the Mortgaged Property that is “environmentally impaired” or is an “affected parcel” (as such terms are defined in such Section 726.5), and as to any personal property attached to such parcel, and thereafter to exercise against Grantor, to the extent permitted by such Section 726.5, the rights and remedies of any unsecured creditor, including reduction of Beneficiary’s claim against Grantor to judgment, and any other rights and remedies permitted by law.

Section 7.5 Trustee’s Deed Recitals. The recitals of facts in any instrument delivered upon completion of any sales, as described in Section 3.8, above, such as the existence of a default, the giving of written notice of default and notice of sale, and other facts affecting the regularity or validity of such sale or disposition, shall be conclusive proof of the trust of such facts and any such instruments shall be conclusive against all persons as to such fact recited therein.

Section 7.6 Right Of Entry. In addition to any other rights or remedies granted under this Deed of Trust but subject to the terms and conditions of the Loan Agreement and the rights of lessees, Beneficiary and its agents, acting by themselves or through a court appointed receiver, upon reasonable advance notice to Grantor and an opportunity to be present, shall have the right to enter upon the Mortgaged Property or any part thereof and perform such acts and things as Beneficiary deems necessary or desirable to inspect, investigate, assess, and protect the security thereof. Without limitation of any of its other rights and subject to the provisions of the Loan Agreement, Beneficiary shall have the right to: (i) obtain a court order to enforce Beneficiary’s right to enter and inspect the Mortgaged Property under California Civil Code Section 2929.5 to which the decision of Beneficiary as to whether there exists a release or threatened release of Hazardous Substances onto the Mortgaged Property shall be deemed reasonable and conclusive as between the parties hereto and (ii) have a receiver appointed under California Code of Civil Procedure Section 564 to enforce Beneficiary’s right to enter and inspect the Mortgaged Property for Hazardous Substances. Subject to the Loan Agreement, all reasonable costs and expenses incurred by Beneficiary with respect to the audits, tests, inspections, and examinations which Beneficiary or its agents or employees may conduct, including the reasonable fees of the engineers, laboratories, contractors, consultants, and attorneys, shall be paid by Grantor five (5) Business Days following demand with interest at the Default Rate from the date paid by Beneficiary. Such costs, if not paid for by Grantor following demand, may be added to the principal balance of the sums due under the Note and this Deed of Trust and shall bear interest thereafter until paid at the Default Rate.

Section 7.7 Reconveyance. If the Obligations are paid and all obligations secured by this Deed of Trust are fully performed in accordance with the terms of this Deed of Trust, the Note and the other Loan Documents, then Beneficiary agrees to request Trustee to reconvey the Mortgaged Property or any applicable portion thereof in accordance with the provisions of the Loan Agreement upon payment by Grantor of Trustee’s fees and all other sums owing to it under this Deed of Trust and the other Loan Documents, Trustee will reconvey the Mortgaged Property without warranty to the person or persons legally entitled thereto. The grantee in the reconveyance may be described as “the person or persons legally entitled thereto.” No reconveyance hereof shall impair Grantor’s warranties and indemnities contained herein.

Section 7.8 Border Zone Property. To Grantor’s actual knowledge and except as disclosed in the Environmental Report, Grantor represents and warrants that the Property has not been designated as Border Zone Property under the provisions of California Health and Safety Code, Sections 25220 et seq. or any regulation adopted in accordance therewith, and there has been no occurrence or condition on any real property adjoining the Property that is reasonably likely to cause the Property or any part thereof to be designated as Border Zone Property.

Section 7.9 Insurance Notice. Beneficiary hereby notifies Grantor of the provisions of Section 2955.5(a) of the California Civil Code, which reads as follows:

“No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property.”

This disclosure is being made by Beneficiary to Grantor pursuant to Section 2955.5(b) of the California Civil Code. Grantor hereby acknowledges receipt of this disclosure and acknowledges that this disclosure has been made by Beneficiary before execution of any note or security document evidencing or securing the Amended Loan.

Section 7.10 Commercial Loan. Grantor represents and warrants that the Amended Loan is for commercial purposes, and not for personal, household or consumer purposes.

Section 7.11 Construction Deed Of Trust. This Deed of Trust secures a loan made to Grantor by Lenders, acting through Beneficiary as agent, some or all of the proceeds of which may be used for the purpose of constructing improvements on the Land. For purposes of Section 3097(j) of the California Civil Code (a) the name and address of the lender, acting through Beneficiary as agent, and the name and address of Grantor, the owner of the Mortgaged Property, are set forth in the introductory paragraph of this Deed of Trust, and (b) a legal description of the Land is set forth in Exhibit A attached hereto.

Section 7.12 Other Loan Documents. Notwithstanding anything to the contrary set forth herein or in the other Loan Documents, this Deed of Trust secures the Obligations of only the Grantor under the Environmental Indemnity and the Recourse Liability Agreement, and does not secure the obligation of any other Person party to such agreements.

Section 7.13 Waiver of Grantor’s Rights.

(a) Grantor waives all rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defenses that are or may become available to Grantor by reason of California Civil Code Sections 2787 to 2855, inclusive, 2899, 2953 and 3433.

(b) Grantor waives all rights and any defenses arising out of an election of remedies by Beneficiary even though that the election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed Grantor’s rights of subrogation and reimbursement against Borrowers by operation of Section 580d of the California Code of Civil Procedure or otherwise.

(c) Grantor waives all rights and defenses that Grantor may have because Borrowers’ obligation is secured by real property. This means among other things: (A) Beneficiary may collect from Grantor without first foreclosing on any real or personal property collateral pledged by Borrowers and (B) if Beneficiary forecloses on any real property collateral

pledged by Borrowers: (1) the amount of Borrowers’ obligation may be reduced only by the price for which the collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price and (2) Beneficiary may collect from Grantor even if Beneficiary, by foreclosing on the real property collateral, has destroyed any right Grantor may have to collect from Borrowers. This is an unconditional and irrevocable waiver of any rights and defenses Grantor may have because Borrowers’ obligation is secured by real property. These rights and defenses include, but are not limited to, any rights and defenses based upon Section 580a, 580b, 580d, or 726 of the Code of Civil Procedure.

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first written above.


CHH XXXXXX XXXXX HOTEL PARTNERS, LP, a Delaware limited partnership


By:	CHH Xxxxxx Xxxxx Hotel GP, LLC, a Delaware limited liability company, its general partner

	By:	/s/ Xxxxx X. Xxxxxx
		Xxxxx X. Xxxxxx, Vice President


STATE OF TEXAS		)
		) ss:
COUNTY OF DALLAS		)

On February , 2013 before me, Xxxxx Xxxxxx, Notary Public, personally appeared Xxxxx X. Xxxxxx, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of Texas that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

/s/ Xxxxx Xxxxxx

Notary Public

Xxxxx Xxxxxx

Notary Public,

State of Texas

Comm. Exp. 12-27-13

Beneficiary is executing this Deed of Trust to confirm Beneficiaries agreement to the amendment and restatement of the Existing Deed of Trust as evidenced by this Deed of Trust.


AAREAL CAPITAL CORPORATION,
as Agent

By:	/s/ Xxxxxxx Xxxxxxx
	Name:	Xxxxxxx Xxxxxxx
	Title:	Managing Director

By:	/s/ Xxxx X. Xxxxxxx
	Name:	Xxxx X. Xxxxxxx
	Title:	General Counsel


STATE OF New York		)
		) ss.:
COUNTY OF New York		)

On the 22nd day of February, 2013 before me, the undersigned, a Notary Public for said state, personally appeared Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxx, each personally known to me OR proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument.

/s/ Xxxxxxx X. Xx

Notary Public

My commission expires:

XXXXXXX X. XX

Notary Public, State of New York

No. 01NG6002093

Qualified in Queens County

Certificate Filed in New York County

Term Expires February 2, 2014

EXHIBIT A

Legal Description

ALL IMPROVEMENTS CONSTITUTING REAL PROPERTY, AS SET FORTH AND GRANTED IN THAT CERTAIN ASSIGNMENT AND ASSUMPTION OF PERCENTAGE LEASE AND DEED TO IMPROVEMENTS, RECORDED DECEMBER 29, 1998 AS INSTRUMENT NO. 1998-0853813, OFFICIAL RECORDS, LOCATED ON THE FOLLOWING DESCRIBED PROPERTY:

ALL THOSE PORTIONS OF PUEBLO LOTS 1325, 1326, 1330 AND 1331 OF THE PUEBLO LANDS OF SAN DIEGO IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF BY XXXXX XXXXXX, IN 1870, A COPY OF WHICH MAP WAS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 14, 1921 AS MISCELLANEOUS MAP 36, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHEAST CORNER OF PUEBLO LOT 1325, WHICH IS THE COMMON CORNER OF PUEBLO LOTS 1325, 1326, 1330 AND 1331; THENCE ALONG THE COMMON LINE OF PUEBLO LOTS 1325 AND 1331 NORTH 89°05’90” WEST, 255.74 FEET; THENCE LEAVING SAID COMMON LINE NORTH 2°48’32” WEST 285.07 FEET; THENCE NORTH 7°31’23” WEST, 399.47 FEET; THENCE NORTH 6°28’50” WEST, 134.23 FEET TO A POINT THAT BEARS SOUTH 82°32’25” WEST 42.90 FEET FROM THE SOUTHWEST CORNER OF THE PROPERTY DESCRIBED IN THAT CERTAIN LEASE AGREEMENT EXECUTED OCTOBER 2, 1961, FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF SAN DIEGO AS DOCUMENT NO. 629873, OFFICIAL RECORDS, THE BOUNDARIES OF WHICH ARE SET OUT ON CITY ENGINEER’S DRAWING 13929-CL ON FILE IN THE OFFICE OF THE CITY ENGINEER OF THE CITY OF SAN DIEGO; THENCE NORTH 82°32’25” EAST 42.90 FEET TO SAID SOUTHWEST CORNER; THENCE CONTINUING ALONG THE SOUTH LINE OF SAID PROPERTY DESCRIBED IN SAID LEASE AGREEMENT NORTH 82°32’25” EAST TO THE SOUTHEAST CORNER OF LAST SAID PROPERTY; SAID POINT ALSO BEING A POINT IN THE WESTERLY RIGHT OF WAY LINE OF XXXXXX XXXXX ROAD, AS DEDICATED BY CITY OF SAN DIEGO ORDINANCE 7634 DATED MARCH 24, 1919; THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE SOUTH 9°28’56” EAST 842.58 FEET TO A POINT “A”; THENCE SOUTH 80°31’04” WEST 368.36 FEET TO THE POINT OF BEGINNING.

THE ABOVE DESCRIBED LAND IS NOW COMMONLY KNOWN AS:

XXX 0 XX XXXXXXXX XXXXX XX XXXXXX XXXXX UNIT NO. 2, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12164, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 12, 1988.

Ex. A-1

ALL THOSE PORTIONS OF PUEBLO LOTS 1325, 1326, 1330 AND 1331 OF THE PUEBLO LANDS OF SAN DIEGO IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF BY XXXXX XXXXXX, IN 1870, A COPY OF WHICH MAP WAS FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 14, 1921 AS MISCELLANEOUS MAP 36, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

THE ABOVE DESCRIBED LAND IS NOW COMMONLY KNOWN AS:

EXCEPTING THEREFROM, ALL IMPROVEMENTS CONSTITUTING REAL PROPERTY, AS SET FORTH AND GRANTED IN THAT CERTAIN ASSIGNMENT AND ASSUMPTION OF PERCENTAGE LEASE AND DEED TO IMPROVEMENTS, RECORDED DECEMBER 29, 1998 AS INSTRUMENT NO. 1998-0853813, OFFICIAL RECORDS.

APN: 000-000-00; 000-000-00

Ex. A-2

EXHIBIT B

Assignment Of Recordable Documents

(see attached)

Ex. B-1

ASSIGNMENT OF RECORDED DOCUMENTS

( )

As of this day of , 2013, , a , having an office at , as agent for the Lenders (“Assignor”), as the holder of the instrument hereinafter described and for valuable consideration hereby endorses, assigns, sells, transfers and delivers to , a , having an office at (“Assignee”), its successors, participants and assigns, without recourse or warranty, all right, title and interest of Assignor in and to (i) that certain Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Rents made by , a , having an address at (collectively, the “Borrower Parties”) dated as of and recorded in the official records of County, (the “Official Records”) as Instrument No. and (ii) that certain Assignment of Leases and Rents made by Borrower Parties for the benefit of Assignor, dated as of and recorded in the Official Records as Instrument No. , each as amended by that certain First Amendment to Recorded Documents made by Borrower parties for the benefit of Assignor, dated as of and recorded on in the Official Records as Instrument No. , each securing payment of a Promissory Note dated as of , in the original principal amount of AND NO/100 DOLLARS ($ .00), made by , a , payable to the order of Assignor, and creating a first lien on the property described in Exhibit A attached hereto and by this reference made a part hereof.

Together with any and all notes and obligations therein described, the debt and claims secured thereby and all sums of money due and to become due thereon, with interest provided for therein, and hereby irrevocably appoints Assignee hereunder its attorney to collect and receive such debt, and to foreclose, enforce and satisfy the foregoing the same as it might or could have done were these presents not executed, but at the cost and expense of Assignee.

Together with any and all other liens, privileges, security interests, rights, entitlements, equities, claims and demands as to which Assignor hereunder possesses or to which Assignor is otherwise entitled as additional security for the payment of the notes and other obligations described herein.

This Assignment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.

[SIGNATURE ADDENDUM ON THE FOLLOWING PAGE]

ASSIGNMENT OF RECORDED DOCUMENTS - PAGE 1

Ex. B-2

IN WITNESS WHEREOF, Assignor has caused this Instrument to be executed by its duly authorized officer on the date and year first above written.



a



By:
Name:
Title:


STATE OF				§
				§
COUNTY OF				§

This instrument was acknowledged before me on , 2013 by , of , a , on behalf of .

Notary Public, State of Texas

My Commission Expires:

ASSIGNMENT OF RECORDED DOCUMENTS - SIGNATURE PAGE

Ex. B-3

Exhibit A

Property Description

EXHIBIT A TO ASSIGNMENT OF RECORDED DOCUMENTS - PAGE 1

Ex. B-4

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AMENDED AND RESTATED LEASEHOLD DEED OF TRUST, SECURITY AGREEMENT, FINANCING STATEMENT, FIXTURE FILING AND ASSIGNMENT OF RENTS Dated as of February 26, 2013 made by CHH TORREY PINES HOTEL PARTNERS, LP, as Grantor, to CHICAGO TITLE INSURANCE COMPANY,...

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