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Form of Accomodation Cross-collateralization

This is an actual contract between Felcor Lodging Trust and Massachusetts Mutual Life Insurance Company.

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Sectors: Real Estate, Insurance
Governing Law: Texas, View Texas State Laws
Effective Date: April 20, 2000
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Re:
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RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:


John E. Bromberg, Esq. Stutzman & Bromberg A Professional Corporation 2323 Bryan Street, Suite 2200A Dallas, Texas 75201


ACCOMMODATION CROSS-COLLATERALIZATION
DEED OF TRUST AND SECURITY AGREEMENT AND FIXTURE
FILING WITH ASSIGNMENT OF LEASES AND RENTS


Cover Sheet Dated as of April 20, 2000


Trustor: FELCOR/MM S-7 HOLDINGS, L.P., a Delaware limited
partnership
(Hereinafter sometimes "Borrower")


Trustor's c/o FelCor Lodging Trust Incorporated Notice Address: 545 E. John Carpenter Freeway, Suite 1300
Irving, Texas 75062
Attention: Andrew J. Welch or Joel M. Eastman


Trustee:
--------------------------------------- Trustee's Notice Address: -------------------------------


-------------------------------


-------------------------------


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Beneficiary: MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a
Massachusetts corporation, and TEACHERS
INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a New York corporation
(Hereinafter sometimes
collectively "Lender")


MassMutual c/o David L. Babson and Company Incorporated Notice Address: 1295 State Street
Springfield, Massachusetts 01111-0001
Attention: Senior Managing Director
Mortgage Portfolio Department
Real Estate Investment Group


TIAA Notice Address 730 Third Avenue
New York, New York 10017
Attn: Director Portfolio Management
Mortgage and Real Estate


Loan Amount: $_________________ evidenced by two (2)
promissory notes, each in the original principal
amount of $__________


Maturity Date: May 1, 2010


State:
---------------


Record Owner of the Land FELCOR/MM S-7 HOLDINGS, L.P., a Delaware limited (as defined herein): partnership


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ACCOMMODATION CROSS-COLLATERALIZATION
DEED OF TRUST AND SECURITY AGREEMENT AND FIXTURE
FILING WITH ASSIGNMENT OF LEASES AND RENTS


TABLE OF CONTENTS


PAGE
---- GRANTING CLAUSES..................................................................................................1


ARTICLE I - Definition of Terms...................................................................................4


ARTICLE II - Covenants of Borrower...............................................................................17


Section 2.01. - Payment of the Indebtedness......................................................................17 Section 2.02. - Title to the Mortgaged Property..................................................................17 Section 2.03. - Maintenance of the Mortgaged Property............................................................17 Section 2.04. - Insurance; Restoration...........................................................................18 Section 2.05. - Condemnation.....................................................................................24 Section 2.06. - Impositions......................................................................................24 Section 2.07. - Deposits.........................................................................................25 Section 2.08. - Mortgage Taxes...................................................................................26 Section 2.09. - Loan Documents Authorized........................................................................26 Section 2.10. - Maintenance of Existence.........................................................................27 Section 2.11. - Payment of Liens.................................................................................27 Section 2.12. - Costs of Defending and Upholding the Lien........................................................27 Section 2.13. - Costs of Enforcement.............................................................................28 Section 2.14. - Interest on Advances and Expenses................................................................28 Section 2.15. - Indemnification..................................................................................28 Section 2.16. - Financial Statements; Records....................................................................28 Section 2.17. - Prohibition Against Conveyances and Encumbrances.................................................30 Section 2.18. - Estoppel Certificates............................................................................32 Section 2.19. - Assignment of Leases and Property Income.........................................................32 Section 2.20. - Environmental Matters; Warranties; Notice; Indemnity.............................................34 Section 2.21. - Environmental Matters; Remedial Work.............................................................36 Section 2.22. - Environmental Matters; Inspection................................................................37 Section 2.23. - Management.......................................................................................38 Section 2.24. - ERISA............................................................................................38 Section 2.25. - Operating Agreements.............................................................................38 Section 2.26. - Single-Purpose Entity............................................................................39


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ARTICLE III - Security Agreement.................................................................................39


Section 3.01. - Warranties, Representations and Covenants of Borrower............................................39 Section 3.02. - Financing Statements.............................................................................41 Section 3.03. - Addresses........................................................................................41


ARTICLE IV - Default and Remedies................................................................................41


Section 4.01. - Events of Default................................................................................41 Section 4.02. - Remedies.........................................................................................43 Section 4.03. - General Provisions Regarding Remedies............................................................45


ARTICLE V - Trustee..............................................................................................53


Section 5.01. - Certain Actions of Trustee.......................................................................53 Section 5.02. - Reconveyance.....................................................................................53 Section 5.03. - Trustee's Covenants and Compensation.............................................................53 Section 5.04. - Substitution of Trustee..........................................................................53 Section 5.05. - Resignation of Trustee...........................................................................54 Section 5.06. - Ratification of Acts of Trustee..................................................................54


ARTICLE VI - Miscellaneous.......................................................................................54


Section 6.01. - Notices..........................................................................................54 Section 6.02. - Binding Obligations; Joint and Several...........................................................55 Section 6.03. - Captions.........................................................................................55 Section 6.04. - Further Assurances...............................................................................55 Section 6.05. - Severability.....................................................................................55 Section 6.06. - Borrower's Obligations Absolute..................................................................55 Section 6.07. - Amendments.......................................................................................56 Section 6.08. - Other Loan Documents and Schedules...............................................................56 Section 6.09. - Legal Construction...............................................................................56 Section 6.10. - Merger...........................................................................................56 Section 6.11. - Time of the Essence..............................................................................56 Section 6.12. - Transfer of Loan.................................................................................57 Section 6.13. - Satisfaction.....................................................................................57 Section 6.14. - Defeasance Requirements..........................................................................57 Section 6.15. - Partial Release..................................................................................59 Section 6.16. - Substitution of Collateral.......................................................................60 Section 6.17. - Subordinate......................................................................................61


Signature Page...................................................................................................63


Schedule A - Description of Land Schedule B - Permitted Encumbrances Exhibit A - Example for Debt Service Coverage Ratio - Mortgaged Properties Exhibit B - Example for Debt Service Coverage Ratio - Remaining Properties


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ACCOMMODATION CROSS-COLLATERALIZATION DEED OF TRUST
AND SECURITY AGREEMENT AND FIXTURE
FILING WITH ASSIGNMENT OF LEASES AND RENTS


THIS ACCOMMODATION CROSS-COLLATERALIZATION DEED OF TRUST AND SECURITY AGREEMENT AND FIXTURE FILING WITH ASSIGNMENT OF LEASES AND RENTS (this "Deed of Trust") is made as of April 20, 2000, by and between FELCOR/MM S-7 HOLDINGS, L.P., a Delaware limited partnership having an office at c/o FelCor Lodging Trust Incorporated, 545 E. John Carpenter Freeway, Suite 1300, Irving, Texas 75062 ("Trustor" and "Borrower"), in favor of ____________________________ having an office at ___________________ ("Trustee"), for the use and benefit of MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation having an office at 1295 State Street, Springfield, Massachusetts 01111-0001 ("MassMutual") and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York corporation ("TIAA") having an office at 730 Third Avenue, New York, New York 10017 (MassMutual and TIAA are collectively referred to herein as "Beneficiary" and "Lender").


GRANTING CLAUSES


For good and valuable consideration and to secure and enforce pari passu an indebtedness in the principal sum of _____________________ ($_________________) lawful money of the United States, to be paid according to (i) that certain Promissory Note of even date herewith from Borrower to MassMutual in the principal sum of $______________ and by this reference made a part hereof (said Promissory Note, as the same may hereafter be amended, modified, consolidated or extended, the "MassMutual Note"), and (ii) that certain Promissory Note of even date herewith from Borrower to TIAA in the principal sum of $_______________ and by this reference made a part hereof (said Promissory Note as the same may hereafter be amended, modified, consolidated or extended, the "TIAA Note") (the MassMutual Note and the TIAA Note being hereinafter collectively referred to as the "Note"), together with all other obligations and liabilities due or becoming due to Lender pursuant to the Loan Documents (hereinafter defined) and the Related Loan Documents (hereinafter defined) and, all amounts, sums and expenses paid hereunder by or payable to Lender according to the terms hereof, and all other covenants, obligations and liabilities of Borrower under the Note, this Deed of Trust, the Assignment (hereinafter defined) and any other instrument evidencing, securing or executed in connection with the loan evidenced by the Note (all of the foregoing instruments, collectively, the "Loan Documents") and the Related Loan Documents, together with all interest on said indebtedness,


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obligations, liabilities, amounts, sums, Advances (as hereinafter defined) and expenses (all of the foregoing, collectively, the "Indebtedness"), Borrower has created in favor of Lender a security interest in and mortgaged, warranted, granted, bargained, sold, conveyed, assigned, pledged, transferred and set over, and does by these presents create a security interest in and MORTGAGE, WARRANT, GRANT, BARGAIN, SELL, CONVEY, ASSIGN, PLEDGE, TRANSFER AND SET OVER unto Trustee, as trustee for the benefit of Lender, to its successors in the trust created by this Deed of Trust, and to its or their respective assigns forever, in trust, with all POWERS OF SALE and RIGHTS OF ENTRY AND POSSESSION and all STATUTORY RIGHTS AND COVENANTS in the State (hereinafter defined), the following property:


The parcel or parcels of land described in Schedule A attached hereto and by this reference made a part hereof (the "Land");


TOGETHER with the buildings, foundations, structures and improvements (including fixtures) now or hereafter located on or in the Land (collectively, the "Improvements");


TOGETHER with all right, title and interest, if any, of Borrower in and to the streets and roads, opened or proposed, abutting the Land, all strips and gores within or adjoining the Land, the air space and right to use the air space above the Land, all rights of ingress and egress to and from the Land, all easements, rights of way, reversions, remainders, estates, rights, titles, interests, privileges, servitudes, tenements, hereditaments, and appurtenances now or hereafter affecting the Land or the Improvements, all royalties and rights and privileges appertaining to the use and enjoyment of the Land or the Improvements, including all air, lateral support, streets, alleys, passages, vaults, drainage, water, oil, gas and mineral rights, development rights, all options to purchase or lease, and all other interests, estates or claims, in law or in equity, which Borrower now has or hereafter may acquire in or with respect to the Land or the Improvements (collectively, the "Appurtenances");


The Land, the Improvements and the Appurtenances are hereinafter sometimes collectively referred to as the "Premises";


TOGETHER with all of Borrower's possessory or title interest in and to all equipment, fittings, furniture, furnishings, appliances, apparatus, and machinery now or hereafter installed in or located upon the Premises and all building materials, supplies and equipment now or hereafter delivered to the Premises and intended to be installed therein or located thereon; all of Borrower's possessory or title interest in and to all fixtures, other goods and personal property of whatever kind and nature now contained on or in or hereafter placed on or in the Premises and used or to be used in connection with the letting or operation thereof (but specifically excluding inventory and other personal property owned by any lessee under a Lease) and all renewals or replacements of any of the foregoing property or articles in substitution thereof (collectively, the "Equipment");


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TOGETHER with all right, title and interest of Borrower in and under all present or future accounts, (including trade accounts, accounts receivables, credit card receivables, and rights to payments for goods and services, including food, beverages and other items sold or leased, whether or not earned by performance), escrows, documents, instruments, chattel paper, and general intangibles, as the foregoing terms are defined in the Code (hereinafter defined), and all contract rights, including, without limitation, casualty insurance policies and liability insurance policies (irrespective of whether such policies are required to be obtained or maintained in force pursuant to this Deed of Trust or other Loan Documents), trade names, trademarks, servicemarks, logos, copyrights, goodwill, franchises, books, records, plans, specifications, permits, licenses, approvals, actions and causes of action which now or hereafter relate to, are derived from or are used in connection with the Premises or the use, operation, maintenance, occupancy or enjoyment thereof or the conduct of any business or activities thereon (collectively, the "Intangibles");


TOGETHER with all right, title and interest of Borrower in and under all leases, lettings, tenancies, franchises and licenses of the Premises or any part thereof now or hereafter entered into and all amendments, extensions, renewals and guaranties thereof, all security therefor, and all moneys payable thereunder (collectively, the "Leases");


TOGETHER with all room rentals and charges of room rentals, room deposits, rents, income, accounts, receivables, issues, profits, security deposits and other benefits to which Borrower may now or hereafter be entitled from the Premises, the Equipment or the Intangibles or under or in connection with the Leases (collectively, the "Property Income"); and


TOGETHER with all proceeds, judgments, claims, compensation, awards of damages and settlements pertaining to or resulting from or in lieu of any condemnation or taking of the Premises by eminent domain or any casualty loss or damage to any of the Premises, the Equipment, the Intangibles, the Leases or the Property Income, and including also, without limitation, the right to assert, prosecute and settle claims arising out of or pertaining to such condemnation or taking or such casualty loss under insurance policies constituting an Intangible and to apply for and receive payments of proceeds under such insurance policies and in any condemnation or taking, the right to apply for and receive all refunds with respect to the payment of property taxes and assessments and all other proceeds from the conversion, voluntary or involuntary, of the Premises, the Equipment, the Intangibles, the Leases or the Property Income, or any part thereof, into cash or liquidated claims. Collectively, all of the foregoing, are herein referred to as the "Proceeds."


The Equipment, the Intangibles, the Leases, the Property Income and the Proceeds are hereinafter sometimes collectively referred to as the "Collateral." The Premises and the Collateral are hereinafter sometimes collectively referred to as the "Mortgaged Property."


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TO HAVE AND TO HOLD the Mortgaged Property, with all the privileges and appurtenances to the same belonging, and with the possession and right of possession thereof, unto Trustee, as trustee for the benefit of Lender as beneficiary, to its successors in the trust created by this Deed of Trust, and to its or their successors and assigns forever, in trust, upon the terms and conditions set forth herein.


TRUSTOR AGREES THAT THE LOAN EVIDENCED BY THE NOTE IS CROSS-DEFAULTED AND CROSS-COLLATERALIZED WITH THE LOANS EVIDENCED BY THE RELATED NOTES. IN THAT RESPECT, ANY DEFAULT UNDER THE RELATED LOAN DOCUMENTS SHALL CONSTITUTE A DEFAULT HEREUNDER.


ARTICLE I
Definition of Terms


As used in this Deed of Trust, the terms set forth below shall have the following meanings:


"Advances" - All sums, amounts or expenses advanced or paid and all costs reasonable incurred by Lender, as provided in this Deed of Trust or in any other Loan Document, upon failure of Borrower to pay or perform any obligation or covenant contained herein or in such other Loan Document.


"Agreement Concerning Primary Lease Agreement" - means that certain Agreement Concerning Primary Lease Agreement of even date herewith between [FCH/SH Leasing] [FCH/SH Leasing II] and Lender and consented to by Borrower.


"Allocated Loan Amount" - means the loan amount allocated to each of the Mortgaged Properties as follows:


Property Loan Amount - -------- ----------- Arizona $27,000,000.00 Florida $13,000,000.00 Georgia $18,000,000.00 Illinois $25,000,000.00 Kentucky $ 7,000,000.00 Pennsylvania $34,000,000.00 Vermont $21,000,000.00


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"Annual Debt Service" - means all principal, interest and other payments due under the Note and any Related Note for any calendar year.


"Application" - means that certain MassMutual Application for Real Estate Loan dated February 23, 2000 executed by Joel M. Eastman.


"Appurtenances" - See Granting Clauses.


["Arizona Loan Documents" - means the Arizona Note, the Arizona Mortgage and any other instrument evidencing, securing or executed in connection with the loan evidenced by the Arizona Note.


"Arizona Mortgage" - means that certain Deed of Trust and Security Agreement and Fixture Filing With Assignment of Leases and Rents of even date herewith securing the Arizona Note, executed by Borrower for the benefit of Mortgagee.


"Arizona Note" - means collectively (i) that certain promissory note of even date herewith in the original principal amount of $13,500,000.00 executed by Borrower and payable to the order of MassMutual, and (ii) that certain promissory note of even date herewith in the original principal amount of $13,500,000.00 executed by Borrower and payable to the order of TIAA.]


"Assignment" - The Assignment of Leases and Rents from Borrower to Lender of even date herewith.


"Bank" - has the meaning provided in Section 6.17.


"Bankruptcy Proceeding" - Any proceeding, action, petition or filing under the Federal Bankruptcy Code or any similar state or federal law now or hereafter in effect relating to bankruptcy, reorganization or insolvency, or the arrangement or adjustment of debts.


"Beneficiary" - Massachusetts Mutual Life Insurance Company and Teachers Insurance and Annuity Association of America and their respective successors and assigns (including any other holders from time to time of the Note), and also herein called "Lender."


"Borrower" - The party identified and defined as Trustor and Borrower on the Cover Sheet and in the preamble of this Deed of Trust, any subsequent owner of the Mortgaged Property, and its successors and assigns.


"Business Day" - Any day other than a Saturday, Sunday or other day on which national banks in the State are not open for business.


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"Closing Date" - means the date of this Deed of Trust.


"Code" - The Uniform Commercial Code of the State.


"Collateral" - See Granting Clauses.


"Debt Service Coverage Ratio - Mortgaged Properties" - means (i) the amount of cash flow generated from the Mortgaged Properties available for payment of principal, interest, escrow deposits and other amounts, if any, due under the Note and each Related Note, after payment in cash of all other costs, fees and expenses attributable on an annual basis to the ownership, operation and maintenance of the Mortgaged Properties (including Impositions, insurance, and an FF&E reserve equal to four percent (4%) of the aggregate room and suite income), divided by (ii) the aggregate amount of principal, interest, escrow deposits and other amounts, if any, due on an annual basis under the Note and each Related Note; an example of the calculation of which is attached hereto as Exhibit A.


"Debt Service Coverage Ratio - Remaining Properties" - means (i) the amount of cash flow generated from the Remaining Properties available for payment of principal, interest, escrow deposits and other amounts, if any, due under each remaining Related Note, after payment in cash of all other costs, fees and expenses attributable on an annual basis to the ownership, operation and maintenance of the Remaining Properties (including Impositions, insurance, and an FF&E reserve equal to four percent (4%) of the aggregate room and suite income), divided by (ii) the aggregate amount of principal, interest, escrow deposits and other amounts, if any, due on an annual basis under each remaining Related Note; an example of the calculation of which is attached hereto as Exhibit B.


"Default" - means the occurrence of any event which, but for the giving of notice or the passage of time, or both, would be an Event of Default.


"Default Rate" - The per annum interest rate equal to the sum of three percent (3%) plus the Contract Rate (as defined in the Note).


"Defeasance Deposit" - means the amount that will be sufficient to purchase U.S. Obligations (A) having maturity dates on or prior to, but as close as possible to, successive scheduled Payment Dates (after the Defeasance Release Date) upon which Payment Dates interest and principal payments would be required under the Note and the Related Notes and (B) in amounts sufficient to pay all scheduled principal and interest payments on the Note and the Related Notes.


"Defeasance Release Date" - has the meaning provided in Section 6.14(b).


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"Defeasance Security Agreement" - has the meaning provided in Section 6.14(d).


"Entity" - means a (i) corporation, if Borrower is listed as a corporation in the preamble to this Deed of Trust, (ii) limited partnership, if Borrower is listed as a limited partnership in the preamble to this Deed of Trust or (iii) limited liability company, if Borrower is listed as a limited liability company in the preamble to this Deed of Trust.


"Environmental Law" - Any present or future federal, state or local law, statute, regulation or ordinance, and any judicial or administrative order or judgment thereunder, pertaining to health, industrial hygiene or the environmental or ecological conditions on, under or about the Premises, including, without limitation, each of the following as to date or hereafter amended: the Comprehensive Environmental Response, Compensation and Liability Act; the Resource Conservation and Recovery Act; the Toxic Substances Control Act; the Federal Water Pollution Control Act (also known as the Clean Water Act); the Clean Air Act; and the Hazardous Materials Transportation Act; the Solid Waste Disposal Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal W
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