Contract analysis

Section 1.01. Incorporation by Reference. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement, the Guarantee Agreement, the Pledge and Security Agreement, and the Intercreditor Agreement, as applicable. In the event of any conflict between a definition in this Mortgage and a definition in the Credit Agreement, the definition in the Credit Agre

Section 1.02. Mortgage-Specific Definitions. As used in this Mortgage, the following terms shall have the following meanings: "Collateral Agent" means Crescent Harbor Bank, National Association, in its capacity as Collateral Agent under the Credit Agreement, and any successor Collateral Agent appointed in accordance with the terms of the Credit Agreement. "Credit Agreement" means that certain Credit Agreement dated a

Section 1.03. Rules of Construction. The rules of construction set forth in Section 1.03 of the Credit Agreement are hereby incorporated by reference as if set forth in full herein. References to "Sections," "Articles," and "Exhibits" are to the sections, articles, and exhibits of this Mortgage unless otherwise specified. The words "herein," "hereof," "hereunder," and words of similar import refer to this Mortgage as

Section 2.01. Grant of Mortgage Lien. For the purposes and upon the terms and conditions set forth in this Mortgage, and to secure the full and punctual payment and performance of all Obligations, Mortgagor hereby irrevocably and unconditionally grants, mortgages, warrants, bargains, sells, assigns, conveys, pledges, hypothecates, sets over, and confirms unto the Mortgagee (in its capacity as Collateral Agent for the

Section 2.02. The Land. All of Mortgagor's right, title, and interest in and to those certain parcels of real property located in the State of New York, together comprising the fee simple estate in the following six (6) hotel properties, as more particularly described by metes and bounds or other legal descriptions in Exhibit A attached hereto and incorporated herein by this reference (collectively, the "Land"): (a)

Section 2.03. Improvements and Fixtures. All buildings, structures, improvements, and fixtures of every kind and character now or hereafter erected, constructed, placed, installed, or located upon the Land, or any part thereof, including without limitation: (a) all hotel buildings, guest room towers, lobby areas, and common areas; (b) all parking structures, garages, surface parking lots, and related vehicular access

Section 2.04. Leases and Rents. All of Mortgagor's right, title, and interest in, to, and under all Leases now existing or hereafter entered into with respect to all or any part of the Mortgaged Property, including without limitation: (a) all hotel guest agreements, reservations, and booking contracts; (b) all commercial leases, retail leases, and office leases; (c) all restaurant, bar, and food service concession ag

Section 2.05. Personal Property Related to Real Property. All personal property of every kind and nature owned by Mortgagor and now or hereafter located on, attached to, or used in connection with the operation of the Mortgaged Property, to the extent such personal property is not covered by the Pledge and Security Agreement, including without limitation: (a) all accounts, contract rights, and general intangibles ari

Section 2.06. Proceeds and Products. All proceeds, products, offspring, rents, and profits of and from any and all of the foregoing property, including without limitation: (a) all proceeds of any insurance policies covering any of the foregoing property, including property insurance proceeds, business interruption insurance proceeds, and liability insurance proceeds; (b) all awards, compensation, settlements, and oth

Section 2.07. After-Acquired Property. All property of any of the types described in Sections 2.02 through 2.06 hereof that is hereafter acquired by Mortgagor and that is located on, attached to, or used in connection with the Mortgaged Property, or that arises from the ownership, use, management, or operation thereof, shall automatically become subject to the lien and security interest of this Mortgage without the e

ARTICLE III — OBLIGATIONS SECURED

Section 3.01. Secured Obligations. This Mortgage and the lien, security interest, and assignment of leases and rents created hereby secure the full and punctual payment and performance of the following (collectively, the "Secured Obligations"): (a) all Obligations of the Borrower and the Guarantors (including Mortgagor) under the Credit Agreement, including without limitation: (i) the principal amount of the $700,000

Section 3.02. Pari Passu Status; Intercreditor Agreement. This Mortgage secures the Obligations on a first-priority basis, pari passu in right of security with the liens and security interests securing the $400,000,000.00 senior secured revolving credit facility extended pursuant to that certain Revolving Credit Agreement (the "RCF Agreement"), as governed by the Amended and Restated Intercreditor Agreement dated as

Section 3.03. Maximum Secured Amount (New York RPL § 253 Compliance). In accordance with Section 253 of the New York Real Property Law and for purposes of calculating the New York State mortgage recording tax, the maximum principal amount of indebtedness or obligations secured by this Mortgage at the time of its execution or that may be secured at any time hereafter shall not exceed $700,000,000.00 in aggregate princ

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF MORTGAGOR Mortgagor hereby represents and warrants to the Mortgagee and the Secured Parties as of the date hereof as follows:

Section 4.01. Organization and Good Standing. Mortgagor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Mortgagor is duly qualified and authorized to transact business and is in good standing in the State of New York and in each other jurisdiction where the nature of its business or the ownership, leasing, or operation of its properties re

Section 4.02. Authority. Mortgagor has full limited liability company power and authority to execute, deliver, and perform its obligations under this Mortgage and to grant the mortgage lien, security interest, and assignment of leases and rents contemplated hereby. The execution, delivery, and performance by Mortgagor of this Mortgage, and the granting of the lien and security interest herein, have been duly authoriz

Section 4.03. Title to Mortgaged Property. Mortgagor holds good, valid, and marketable fee simple title to each of the six (6) New York hotel properties constituting the Land, free and clear of all liens, claims, encumbrances, and defects of title other than Permitted Liens (as described in Exhibit B attached hereto). The Mortgaged Property is not subject to any option to purchase, right of first refusal, or similar

Section 4.04. No Conflicts. The execution, delivery, and performance by Mortgagor of this Mortgage, and the consummation of the transactions contemplated hereby, do not and will not (a) violate, contravene, or conflict with the Certificate of Formation or the Limited Liability Company Agreement of Mortgagor, (b) violate, contravene, or conflict with any law, statute, ordinance, rule, regulation, order, writ, judgment

Section 4.05. Enforceability. This Mortgage has been duly executed and delivered by Mortgagor and constitutes the legal, valid, and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, fraudulent conveyance, or similar laws affecting the enforcement o

Section 4.06. No Prior Liens. Except for Permitted Liens, there are no existing mortgages, deeds of trust, security interests, liens, encumbrances, or other claims or charges on the Mortgaged Property. Without limiting the generality of the foregoing, all existing liens and encumbrances in favor of Greystone Federal Credit Corp. (or its successors or assigns), in its capacity as administrative agent under the prior $

Section 4.07. Taxes. All real property taxes, assessments, water charges, sewer rents, and governmental charges of every kind and nature with respect to the Mortgaged Property that are currently due and payable have been paid in full. Mortgagor has not received any notice of any special assessment or proposed increase in real property taxes with respect to any of the Mortgaged Property that has not been disclosed to

Section 4.08. Compliance with Laws. The Mortgaged Property, and the current use, operation, and occupancy thereof, comply in all material respects with all applicable zoning laws, building codes, fire and life safety codes, environmental laws, the Americans with Disabilities Act, and all other applicable federal, state, and local laws, statutes, ordinances, rules, regulations, codes, and requirements. All material pe

Section 4.09. Insurance. Mortgagor maintains, or causes to be maintained, insurance coverage with respect to the Mortgaged Property in the amounts, with the carriers, and of the types required by the Credit Agreement, including without limitation property insurance, commercial general liability insurance, business interruption insurance, and flood insurance (where applicable). All such insurance policies name Crescen

Section 4.10. Flood Zone. Based upon the review of the Federal Emergency Management Agency ("FEMA") Flood Insurance Rate Maps applicable to each of the six (6) New York hotel properties, (a) the Verimark Montauk Beach Resort (Property 6), located at 290 Old Montauk Highway, Montauk, New York 11954, is partially situated within a Special Flood Hazard Area ("SFHA") as designated by FEMA (Zone AE), and Mortgagor maintai

Section 4.11. Environmental Matters. To the best of Mortgagor's knowledge, (a) no hazardous materials, pollutants, contaminants, toxic substances, petroleum products, or other regulated substances (collectively, "Hazardous Materials") exist on, under, or about any of the Mortgaged Property in violation of any applicable environmental law, (b) the Mortgaged Property is in material compliance with all applicable enviro

ARTICLE V — COVENANTS OF MORTGAGOR Mortgagor hereby covenants and agrees with the Mortgagee and the Secured Parties as follows:

Section 5.01. Payment of Obligations. Mortgagor shall (and shall cause the Borrower to) pay, or cause to be paid, all Obligations in full as and when the same shall become due and payable under the terms of the Credit Agreement and the other Loan Documents, whether at maturity, by acceleration, or otherwise, including without limitation: (a) quarterly amortization payments of $1,750,000.00 on the last business day of

Section 5.02. Maintenance of Mortgaged Property. Mortgagor shall maintain and preserve the Mortgaged Property, and each of the six (6) New York hotel properties, in good repair, working order, and operating condition, ordinary wear and tear excepted, and shall not commit or permit any waste, impairment, or deterioration of the Mortgaged Property or any part thereof. Mortgagor shall operate each hotel property in a ma

Section 5.03. Insurance. Mortgagor shall maintain at all times during the term of this Mortgage, at Mortgagor's sole cost and expense, the following insurance coverage with respect to the Mortgaged Property: (a) Property Insurance. "All-risk" or "special form" property insurance covering the Improvements, FF&E, and other insurable personal property located on the Mortgaged Property, in an amount not less than the ful

Section 5.04. Payment of Taxes and Assessments. Mortgagor shall pay or cause to be paid, before any interest or penalty attaches thereto, all real property taxes, assessments (including special assessments), water charges, sewer rents, and all other governmental charges and impositions of every kind and nature now or hereafter levied, assessed, or imposed upon or against the Mortgaged Property or any part thereof. Mo

Section 5.05. Compliance with Laws. Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable laws, statutes, ordinances, rules, regulations, codes, and requirements of every kind and nature, including without limitation (a) all zoning laws and land use regulations, (b) all building codes and construction standards, (c) all environmental laws and regulation

Section 5.06. Leases. Mortgagor shall not, without the prior written consent of the Collateral Agent (such consent not to be unreasonably withheld, conditioned, or delayed), enter into, materially modify, materially amend, or terminate any material Lease affecting the Mortgaged Property, except as expressly permitted under the Credit Agreement. For purposes of this Section 5.06, a "material Lease" means any Lease tha

Section 5.07. No Transfer or Further Encumbrance. Mortgagor shall not sell, convey, assign, transfer, lease (except as permitted under Section 5.06), encumber, pledge, mortgage, hypothecate, or otherwise dispose of (collectively, "Transfer") the Mortgaged Property or any interest therein, whether voluntarily, involuntarily, or by operation of law, except as expressly permitted under the Credit Agreement, including wi

Section 5.08. Environmental Covenants. Mortgagor covenants and agrees as follows with respect to environmental matters: (a) Mortgagor shall comply, and shall cause the Mortgaged Property to comply, in all material respects with all applicable environmental laws, regulations, and permits; (b) Mortgagor shall not cause, permit, or suffer the release, emission, discharge, disposal, or storage of any Hazardous Materials

Section 5.09. Financial Covenants Cross-Reference. Without limiting the obligations of the Borrower under the Credit Agreement, Mortgagor acknowledges that the Credit Agreement contains a springing financial maintenance covenant requiring the Borrower to maintain a maximum Total Net Leverage Ratio of not greater than 4.50 to 1.00, tested on the last day of each fiscal quarter on a trailing four-quarter basis, but onl

Section 5.10. Condemnation. Mortgagor shall promptly notify the Collateral Agent in writing of any actual, pending, or threatened condemnation or eminent domain proceeding or taking (whether permanent or temporary) affecting all or any portion of the Mortgaged Property. The Collateral Agent shall have the right, but not the obligation, to participate in any such proceeding and to approve any settlement thereof. All c

Section 5.11. Estoppel Certificates. Mortgagor shall, within fifteen (15) business days following the reasonable written request of the Collateral Agent, execute and deliver to the Collateral Agent (or cause to be executed and delivered) an estoppel certificate in form and substance reasonably satisfactory to the Collateral Agent, certifying (a) the aggregate outstanding principal amount of the Obligations, (b) the d

Section 5.12. Alterations. Mortgagor may make alterations, improvements, additions, and renovations to the Mortgaged Property consistent with first-class hotel operations and in compliance with all applicable laws, provided that (a) no structural alteration, demolition, or other modification that would materially reduce the fair market value of the Mortgaged Property shall be made without the prior written consent of

ARTICLE VI — ASSIGNMENT OF LEASES AND RENTS

Section 6.01. Present Assignment. Mortgagor hereby absolutely, unconditionally, and irrevocably assigns, transfers, conveys, and sets over to the Collateral Agent, for the benefit of the Secured Parties, as additional and collateral security for the payment and performance of the Obligations, all of Mortgagor's right, title, and interest in, to, and under all Leases and all Rents, whether now existing or hereafter ar

Section 6.02. Revocation of License. Upon the occurrence and during the continuance of any Event of Default, the license granted to Mortgagor in Section 6.01 to collect and receive the Rents shall automatically, and without further notice or action, terminate and be revoked. Upon such revocation, the Collateral Agent shall be entitled (but shall not be obligated) to exercise any or all of the following rights and rem

Section 6.03. Application of Rents. All Rents collected by the Collateral Agent pursuant to this Article VI shall be applied to the Obligations in the order and manner specified in the Credit Agreement and the Intercreditor Agreement. After deducting therefrom all costs and expenses of collection and management (including reasonable attorneys' fees, receiver's fees, and property management costs), the net proceeds sh

Section 6.04. New York Real Property Law Compliance. This assignment of Leases and Rents is made and intended to be an absolute assignment, consistent with and in compliance with Article 9 of the New York Real Property Law ("RPL") and the applicable provisions of the New York Real Property Actions and Proceedings Law ("RPAPL"). To the extent that any court of competent jurisdiction determines that this assignment con

ARTICLE VII — EVENTS OF DEFAULT

Section 7.01. Events of Default Under the Credit Agreement. The occurrence of any "Event of Default" as defined in the Credit Agreement shall constitute an Event of Default under this Mortgage. Without limiting the foregoing, the following shall constitute Events of Default under this Mortgage upon their occurrence (or, where applicable, upon the expiration of any notice and cure periods set forth in the Credit Agree