Common use of FF&E Reserve Clause in Contracts

FF&E Reserve. (a) From and after a ▇▇▇▇ Tenant Transfer, Tenant shall establish a reserve account (the “FF&E Reserve Account”), with a bank or similar institution reasonably acceptable to Landlord, to cover the cost of replacements, renewals and additions to the FF&E at the Facility. Within thirty (30) days after the end of each calendar year (commencing with the first full calendar year ending after a ▇▇▇▇ Tenant Transfer), Tenant shall provide Landlord with evidence satisfactory to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year transferred into the FF&E Reserve Account an aggregate amount equal to at least 1.5% of its actual Net Revenue from the Facility for such calendar year (the “FF&E Reserve Funds”). If Tenant fails to so transfer such amount and fails within sixty (60) days after receipt of a written demand from Landlord to cure such deficiency, then the same shall be deemed an Event of Default hereunder. (b) Tenant shall prepare an annual estimate (the “FF&E Estimate”) of the expenditures necessary for replacements, renewals and additions to the FF&E of the Facility during the ensuing calendar year and shall deliver the FF&E Estimate to Landlord concurrently with the delivery of the annual capital and operating budget as described in Section 23.1(b)(vi). The FF&E Estimate shall also indicate the estimated time schedule for making such replacements, renewals and additions. (c) Tenant shall use funds contained in the FF&E Reserve Account to undertake replacements, renewals and additions to the Facility’s FF&E. At the end of each calendar year, any amounts remaining in the FF&E Reserve Account shall be carried forward to the next calendar year. Proceeds from the sale of FF&E no longer necessary to the operation of the Facility shall be transferred to the FF&E Reserve Account. The FF&E Reserve Account shall be an interest-bearing account, and any interest that accrues thereon shall be retained in the FF&E Reserve Account. Neither (i) the proceeds from the disposition of FF&E nor (ii) interest that accrues on amounts held in the FF&E Reserve Account shall result in any reduction in the required transfers to the FF&E Reserve Account set forth in Section 9.2(a). Concurrently with the Financial Statements delivered pursuant to Section 23.1(b)(i) and Section 23.1(b)(ii), Tenant shall provide Landlord with copies of the bank generated account statements received by Tenant with respect to the FF&E Reserve Account for the most recently ended calendar month for which account statements are available. (d) Tenant grants to Landlord a first-priority security interest in the CapEx Reserve and all CapEx Reserve Funds and the FF&E Reserve Account and all FF&E Reserve Funds in each case as additional security for performance of Tenant’s obligations under this Lease during the existence of an Event of Default. Landlord shall have the right to collaterally assign the security interest granted to Landlord in the CapEx Reserve and CapEx Reserve Funds and FF&E Reserve Account and FF&E Reserve Funds to any Facility Mortgagee. Notwithstanding anything to the contrary contained in Section 9.1(e)(v) and Section 9.1(e)(vi), following the execution of this Lease, Landlord, Tenant and the applicable account holding institution (the “Eligible Institution”) shall promptly enter into a customary and reasonable deposit account control agreement with respect to the FF&E Reserve Account and the CapEx Reserve (the “Restricted Reserve Accounts”) which shall provide that (x) Landlord has “control” over the account within the meaning of Section 9-104 of the New York Uniform Commercial Code, (y) the Eligible Institution shall disburse funds to Tenant pursuant to a request provided (as applicable) in accordance with Section 9.1(e)(v) and Section 9.1(e)(vi) (as applicable) except during a Reserve Control Trigger Period and (z) during the Reserve Control Trigger Period, Eligible Institution shall only make disbursements from the account upon written direction from Landlord. During the Reserve Control Trigger Period, unless the Landlord is otherwise exercising remedies with respect to any Event of Default hereunder, Landlord shall request disbursements of funds from the Restricted Reserve Accounts to Tenant within five (5) Business Days of (i) Tenant’s delivery of such request(as applicable) in connection with Section 9.1(e)(vi) and Section 9.1(e)(vii) (as applicable) and (ii) Tenant’s satisfaction of its obligations hereunder. (e) This Section 9.2 shall have no force or effect prior to a ▇▇▇▇ Tenant Transfer.

FF&E Reserve. Borrower shall expend for FF&E and capital improvements for the Project (ai) From for the Rolling Period beginning on the first day of the first month following the Opening Date, an amount equal to or greater than two percent (2%) of the Revenues for such Rolling Period, (ii) for the Rolling Period following the first anniversary of such date, an amount equal to or greater than three percent (3%) of the Revenues for such Rolling Period, and after a ▇▇▇▇ Tenant Transfer(iii) for the Rolling Period following the second or any subsequent anniversary of such date, Tenant an amount equal to or greater than four percent (4%) of the Revenues for such Rolling Period. To the extent Borrower does not provide evidence, reasonably satisfactory to Administrative Agent, that Borrower has spent such sum during such applicable Rolling Period, Borrower shall establish a reserve account (pay Administrative Agent such amount not spent. Any amounts so paid to Administrative Agent are hereinafter referred to as the “FF&E Reserve Account”), with a bank or similar institution reasonably acceptable to Landlord, to cover the cost of replacements, renewals and additions to the FF&E at the Facility. Within thirty (30) days after the end of each calendar year (commencing with the first full calendar year ending after a ▇▇▇▇ Tenant Transfer), Tenant Reserve.” Administrative Agent shall provide Landlord with evidence satisfactory to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year transferred into hold the FF&E Reserve Account an in escrow as additional collateral for the Indebtedness for Borrower’s use to fund FF&E and capital improvements for the Project in a future Rolling Period after Borrower has spent in the aggregate amount equal the amounts required pursuant to the first sentence of this paragraph during such Rolling Period. From time to time, when Borrower is entitled to use the FF&E Reserve, Borrower may request Administrative Agent to disburse portions of the FF&E Reserve for the purpose of acquiring, repairing or replacing FF&E or other capital expenditures approved by Administrative Agent or contained in the Capital Budget. Disbursements of the FF&E Reserve shall be subject to the following: (i) no default under this Agreement or any of the other Loan Documents shall have occurred and be continuing; (ii) each request for disbursement shall be in writing and delivered at least 1.5% fifteen (15) Business Days prior to the date of its actual Net Revenue from any such disbursement; (iii) not more than one (1) disbursement shall be made during any calendar month nor shall any request be for an amount less than Twenty-Five Thousand and No/100 Dollars ($25,000); (iv) each disbursement request shall be accompanied by such invoices, bills of sale, cancelled checks, sworn contractor’s statements and lien waivers, as applicable, and such other evidence as Administrative Agent may reasonably request in order to confirm the Facility amount and purpose of each such expenditure or reimbursement included in such disbursement request; and (v) each disbursement will be used solely for such calendar year (the “acquisition of FF&E or other capital expenditures approved by Administrative Agent or contained in the Capital Budget portion of the Annual Budget. The FF&E Reserve Funds”)may be commingled with the general funds of Administrative Agent and shall not be deemed to be held in trust for the benefit of Borrower. If Tenant fails to so transfer such amount and fails within sixty (60) days after receipt of a written demand from Landlord to cure such deficiency, then the same shall be deemed an Event of Default hereunder. (b) Tenant shall prepare an annual estimate (the “FF&E Estimate”) of the expenditures necessary for replacementsoccurs, renewals and additions to the FF&E of the Facility during the ensuing calendar year and shall deliver the FF&E Estimate to Landlord concurrently with the delivery of the annual capital and operating budget as described in Section 23.1(b)(vi). The FF&E Estimate shall also indicate the estimated time schedule for making such replacements, renewals and additions. (c) Tenant shall use funds contained in the FF&E Reserve Account to undertake replacements, renewals and additions to the Facility’s FF&E. At the end of each calendar year, any amounts remaining in the FF&E Reserve Account shall be carried forward to the next calendar year. Proceeds from the sale of FF&E no longer necessary to the operation of the Facility shall be transferred to the FF&E Reserve Account. The FF&E Reserve Account shall be an interest-bearing account, and any interest that accrues thereon shall be retained in the FF&E Reserve Account. Neither (i) the proceeds from the disposition of FF&E nor (ii) interest that accrues on amounts held in the FF&E Reserve Account shall result in any reduction in the required transfers to the FF&E Reserve Account set forth in Section 9.2(a). Concurrently with the Financial Statements delivered pursuant to Section 23.1(b)(i) and Section 23.1(b)(ii), Tenant shall provide Landlord with copies of the bank generated account statements received by Tenant with respect to the FF&E Reserve Account for the most recently ended calendar month for which account statements are available. (d) Tenant grants to Landlord a first-priority security interest in the CapEx Reserve and all CapEx Reserve Funds and the FF&E Reserve Account and all FF&E Reserve Funds in each case as additional security for performance of Tenant’s obligations under this Lease during the existence of an Event of Default. Landlord Administrative Agent shall have the right to collaterally assign the security interest granted to Landlord in the CapEx Reserve and CapEx Reserve Funds and FF&E Reserve Account and FF&E Reserve Funds to apply all or any Facility Mortgagee. Notwithstanding anything to the contrary contained in Section 9.1(e)(v) and Section 9.1(e)(vi), following the execution portion of this Lease, Landlord, Tenant and the applicable account holding institution (the “Eligible Institution”) shall promptly enter into a customary and reasonable deposit account control agreement with respect to the FF&E Reserve Account and to the CapEx Reserve (obligations evidenced by the “Restricted Reserve Accounts”) which Loan Documents in such order as Administrative Agent in its sole discretion determines. Borrower shall provide that (x) Landlord has “control” over the account within the meaning of Section 9-104 of the New York Uniform Commercial Code, (y) the Eligible Institution execute such security or other agreements or authorize such UCC financing statements as Administrative Agent shall disburse funds to Tenant pursuant to a reasonably request provided (as applicable) in accordance with Section 9.1(e)(v) and Section 9.1(e)(vi) (as applicable) except during a Reserve Control Trigger Period and (z) during the Reserve Control Trigger Period, Eligible Institution shall only make disbursements from the account upon written direction from Landlord. During the Reserve Control Trigger Period, unless the Landlord is otherwise exercising remedies with respect to any Event of Default hereunder, Landlord shall request disbursements of funds from the Restricted Reserve Accounts to Tenant within five (5) Business Days of (i) Tenant’s delivery of such request(as applicable) in connection with Section 9.1(e)(vi) and Section 9.1(e)(vii) (as applicable) and (ii) Tenantthe Administrative Agent’s satisfaction of its obligations hereundersecurity interest in the FF&E Reserve. (e) This Section 9.2 shall have no force or effect prior to a ▇▇▇▇ Tenant Transfer.

FF&E Reserve. (a) From and after On each Payment Date beginning December 9, 2010, a ▇▇▇▇ Tenant Transfer, Tenant portion of the Rents that have been deposited into the Borrower Deposit Account during the immediately preceding Interest Period in an amount equal to the FF&E Deposit Amount shall establish be transferred by Lender into a reserve account Subaccount (the “FF&E Reserve AccountSubaccount”), with a bank or similar institution reasonably acceptable to Landlord, to cover the cost of replacements, renewals and additions to the FF&E at the Facility. Within thirty (30) days after the end of each calendar year (commencing with the first full calendar year ending after a ▇▇▇▇ Tenant Transfer), Tenant shall provide Landlord with evidence satisfactory to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year transferred into the FF&E Reserve Account an aggregate amount equal to at least 1.5% of its actual Net Revenue from the Facility for such calendar year (the “FF&E Reserve Funds”). If Tenant fails to so transfer such amount and fails within sixty (60) days after receipt of a written demand from Landlord to cure such deficiency, then the same shall be deemed an Event of Default hereunder. (b) Tenant In addition, commencing with the February 2011 Payment Date and on each Payment Date thereafter occurring in February, May, August and November, either (i) the FF&E Lender True-Up Amount shall prepare an annual estimate be transferred by Lender into the FF&E Reserve Subaccount from the Rents that have been deposited into the Deposit Account during the immediately preceding Interest Period or (ii) the “FF&E Estimate”) of the expenditures necessary for replacements, renewals and additions Borrower True-Up Amount shall be transferred by Lender to the FF&E of the Facility during the ensuing calendar year and shall deliver Borrower from the FF&E Estimate to Landlord concurrently with the delivery of the annual capital and operating budget as described in Section 23.1(b)(vi). The FF&E Estimate shall also indicate the estimated time schedule for making such replacements, renewals and additionsReserve Subaccount. (c) Tenant Provided that no Event of Default has occurred and is continuing, Lender shall use disburse funds contained in the FF&E Reserve Account to undertake replacements, renewals and additions to the Facility’s FF&E. At the end of each calendar year, any amounts remaining in the FF&E Reserve Account shall be carried forward to the next calendar year. Proceeds from the sale of FF&E no longer necessary to the operation of the Facility shall be transferred to the FF&E Reserve Account. The FF&E Reserve Account shall be an interest-bearing account, and any interest that accrues thereon shall be retained in the FF&E Reserve Account. Neither (i) the proceeds from the disposition of FF&E nor (ii) interest that accrues on amounts held in the FF&E Reserve Account shall result in any reduction in the required transfers Subaccount to the FF&E Reserve Account set forth in Section 9.2(a). Concurrently with the Financial Statements delivered pursuant to Section 23.1(b)(i) and Section 23.1(b)(ii)Borrower, Tenant shall provide Landlord with copies of the bank generated account statements received by Tenant with respect to the FF&E Reserve Account for the most recently ended calendar month for which account statements are available. (d) Tenant grants to Landlord a first-priority security interest in the CapEx Reserve and all CapEx Reserve Funds and the FF&E Reserve Account and all FF&E Reserve Funds in each case as additional security for performance of Tenant’s obligations under this Lease during the existence of an Event of Default. Landlord shall have the right to collaterally assign the security interest granted to Landlord in the CapEx Reserve and CapEx Reserve Funds and FF&E Reserve Account and FF&E Reserve Funds to any Facility Mortgagee. Notwithstanding anything to the contrary contained in Section 9.1(e)(v) and Section 9.1(e)(vi), following the execution of this Lease, Landlord, Tenant and the applicable account holding institution (the “Eligible Institution”) shall promptly enter into a customary and reasonable deposit account control agreement with respect to the FF&E Reserve Account and the CapEx Reserve (the “Restricted Reserve Accounts”) which shall provide that (x) Landlord has “control” over the account within the meaning of Section 9-104 of the New York Uniform Commercial Code, (y) the Eligible Institution shall disburse funds to Tenant pursuant to a request provided (as applicable) in accordance with Section 9.1(e)(v) and Section 9.1(e)(vi) (as applicable) except during a Reserve Control Trigger Period and (z) during the Reserve Control Trigger Period, Eligible Institution shall only make disbursements from the account upon written direction from Landlord. During the Reserve Control Trigger Period, unless the Landlord is otherwise exercising remedies with respect to any Event of Default hereunder, Landlord shall request disbursements of funds from the Restricted Reserve Accounts to Tenant within five (5) Business Days after the delivery by Borrower to Lender of a request therefor (but not more often than twice per month), in increments of at least $5,000 provided that (i) Tenant’s delivery of such request(as applicable) in connection with Section 9.1(e)(vi) and Section 9.1(e)(vii) disbursement is for an Approved FF&E Expense or an Approved Capital Expense (as applicableother than Identified Capital Expenses) and (ii) Tenantthe request for disbursement is accompanied by an Officer’s satisfaction Certificate certifying (1) that such funds will be used to pay or reimburse Borrower for Approved FF&E Expenses or Approved Capital Expenses (other than Identified Capital Expenses) and a description thereof, (2) with respect to disbursements for Approved Capital Expenses (other than Identified Capital Expenses), that no material outstanding trade payables (other than those to be paid from the requested disbursement or those constituting Permitted Indebtedness) are delinquent, (3) that the same has not been the subject of its obligations hereundera previous disbursement, and (4) that all previous disbursements have been used to pay the previously identified Approved FF&E Expenses or Approved Capital Expenses (other than Identified Capital Expenses), as applicable. During a Cash Trap Period, any such disbursement of more than $10,000 to pay (rather than reimburse) Approved FF&E Expenses or Approved Capital Expenses (other than Identified Capital Expenses) may, at Lender’s option, be made by joint check payable to Borrower and the payee on such Approved FF&E Expenses or Approved Capital Expenses. (e) This Section 9.2 shall have no force or effect prior to a ▇▇▇▇ Tenant Transfer.

FF&E Reserve. (a) From The FF&E Reserve, all amounts deposited therein, and after a ▇▇▇▇ Tenant Transferall Capital Replacements shall belong to Landlord. (b) Beginning on February 25, 2007 and on the twenty-fifth day of every month thereafter, Tenant shall establish transfer into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for the prior month. (c) Not less than sixty (60) days prior to the first day of each Fiscal Year after the 2005 Fiscal Year, Tenant shall submit to Landlord for Landlord's approval a reserve account proposed estimate of expenditures from the FF&E Reserve for the ensuing full or partial Fiscal Year, as the case may be (the “"FF&E Reserve Account”Estimate"), with . If Landlord fails to disapprove of a bank or similar institution reasonably acceptable to Landlord, to cover the cost of replacements, renewals and additions to the proposed FF&E at the Facility. Within Estimate within thirty (30) days after the end of each calendar year (commencing with the first full calendar year ending after a ▇▇▇▇ Tenant Transfer), Tenant shall provide Landlord with evidence satisfactory submission thereof to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year transferred into the FF&E Reserve Account an aggregate amount equal to at least 1.5% of for its actual Net Revenue from the Facility for such calendar year (the “FF&E Reserve Funds”). If Tenant fails to so transfer such amount and fails within sixty (60) days after receipt of a written demand from Landlord to cure such deficiencyapproval, then the same shall be deemed an Event of Default hereunder. (b) approved. Together with each such FF&E Estimate, Tenant shall prepare an annual estimate (provide to Landlord a proposed five-year capital plan for the “Hotel for Landlord's review and approval. Tenant will provide Landlord with the material data and information utilized in preparing the FF&E Estimate”) Estimates or any revisions thereof. Tenant will not be deemed to have made any guaranty, warranty or representation whatsoever in connection with the FF&E Estimates, except that the proposed FF&E Estimates reflect Tenant's best professional estimates of the expenditures necessary for replacements, renewals and additions to the FF&E of the Facility during the ensuing calendar year and shall deliver the FF&E Estimate to Landlord concurrently with the delivery of the annual capital and operating budget as described in Section 23.1(b)(vi)matters they describe. The FF&E Estimate for the 2005 Fiscal Year shall also indicate have been delivered by Tenant to Landlord on or before the estimated time schedule for making such replacements, renewals and additionsCommencement Date. (cd) In the event Landlord disapproves or raises any objections to the proposed FF&E Estimate, or any portion thereof, or any revisions thereto, Landlord and Tenant shall use funds contained cooperate with each other in good faith to resolve the disputed or objectionable items. If Landlord disapproves of a proposed FF&E Estimate, Landlord will disapprove on a specific line-by-line basis to the extent reasonably practical. Any dispute with respect to a proposed FF&E Estimate which is not resolved by the parties within thirty (30) days after the submission thereof to Landlord shall be resolved by Arbitration. (e) All expenditures from the FF&E Reserve Account shall be (as to undertake replacementsboth the amount of each such expenditure and the timing thereof) both reasonable and necessary, renewals given the objective that the Hotel will be maintained and additions operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without markup or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof. (f) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to pay for Capital Replacements made during the Term. Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. Notwithstanding anything in this Agreement to the Facility’s FF&E. At contrary, no additional cost or expense shall be incurred or paid in connection with any Capital Replacements made during the end last two (2) years of each calendar year, any the Term to the extent attributable solely to complying with the InterContinental brand standards. (g) Any amounts remaining in the FF&E Reserve Account shall at the close of each Lease Year will be carried forward to and retained in the next calendar yearFF&E Reserve. Proceeds Any and all portions of the Hotel which are scrapped or removed in connection with the making of any major or non-major repairs, renovations, additions, alterations, improvements, removals or replacements shall be disposed of by Tenant and any net proceeds thereof shall be deposited in the FF&E Reserve and not included in Total Hotel Sales. In addition, any proceeds from the sale of FF&E no longer necessary to the operation of the Facility Hotel shall be transferred added to the FF&E Reserve. (h) Subject to the terms of Section 5.1.2 (j), Tenant shall be the only party entitled to withdraw funds from the FF&E Reserve Account. The until a Default shall occur. (i) Upon the expiration or earlier termination of the Term, Tenant shall disburse to Landlord, or as Landlord shall direct, all amounts remaining in the FF&E Reserve after payments of all expenses on account of Capital Replacements appropriately incurred by Tenant during the Term. (j) So long as the Managed Hotels are Pooled FF&E Hotels, it is understood and agreed that funds deposited in the FF&E Reserve pursuant to this Agreement and the Reserve Account under New Management Agreement shall be maintained and used on a consolidated basis such that all amounts to be deposited in the FF&E Reserve and the Reserve Account shall be an interest-bearing accountdeposited in a single account and Portfolio Manager and Tenant may apply any funds therein to any of the Pooled FF&E Hotels in accordance with the terms of this Agreement and the New Management Agreement. (k) Notwithstanding anything contained herein to the contrary, if Landlord advises Tenant that in Landlord's opinion, the fair market value of all personal property of Landlord at, about or which forms a part of the Property is equal to or exceeds thirteen and any interest that accrues thereon one half percent (13.5%) of the fair market value of the Property, Tenant and its Affiliates shall be retained in not use funds from the FF&E Reserve Account. Neither (i) the proceeds from the disposition of FF&E nor (ii) interest that accrues on amounts held in the FF&E Reserve Account shall result in any reduction in the or which are required transfers to the FF&E Reserve Account set forth in Section 9.2(a). Concurrently with the Financial Statements delivered be expended pursuant to Section 23.1(b)(i) and Section 23.1(b)(ii)any purchase agreement to purchase additional personal property for use at, Tenant shall provide Landlord with copies about or as part of the bank generated account statements received by Tenant with respect to the FF&E Reserve Account for the most recently ended calendar month for Property without Landlord's prior written consent, which account statements are availableconsent may be granted or withheld in Landlord's sole and absolute judgment. (d) Tenant grants to Landlord a first-priority security interest in the CapEx Reserve and all CapEx Reserve Funds and the FF&E Reserve Account and all FF&E Reserve Funds in each case as additional security for performance of Tenant’s obligations under this Lease during the existence of an Event of Default. Landlord shall have the right to collaterally assign the security interest granted to Landlord in the CapEx Reserve and CapEx Reserve Funds and FF&E Reserve Account and FF&E Reserve Funds to any Facility Mortgagee. Notwithstanding anything to the contrary contained in Section 9.1(e)(v) and Section 9.1(e)(vi), following the execution of this Lease, Landlord, Tenant and the applicable account holding institution (the “Eligible Institution”) shall promptly enter into a customary and reasonable deposit account control agreement with respect to the FF&E Reserve Account and the CapEx Reserve (the “Restricted Reserve Accounts”) which shall provide that (x) Landlord has “control” over the account within the meaning of Section 9-104 of the New York Uniform Commercial Code, (y) the Eligible Institution shall disburse funds to Tenant pursuant to a request provided (as applicable) in accordance with Section 9.1(e)(v) and Section 9.1(e)(vi) (as applicable) except during a Reserve Control Trigger Period and (z) during the Reserve Control Trigger Period, Eligible Institution shall only make disbursements from the account upon written direction from Landlord. During the Reserve Control Trigger Period, unless the Landlord is otherwise exercising remedies with respect to any Event of Default hereunder, Landlord shall request disbursements of funds from the Restricted Reserve Accounts to Tenant within five (5) Business Days of (i) Tenant’s delivery of such request(as applicable) in connection with Section 9.1(e)(vi) and Section 9.1(e)(vii) (as applicable) and (ii) Tenant’s satisfaction of its obligations hereunder. (e) This Section 9.2 shall have no force or effect prior to a ▇▇▇▇ Tenant Transfer.

FF&E Reserve. (a) From The FF&E Reserve, all amounts deposited therein, and after a ▇▇▇▇ Tenant Transferall Capital Replacements shall belong to Landlord. (b) Beginning on February 25, 2007 and on the twenty-fifth day of every month thereafter, Tenant shall establish transfer into the FF&E Reserve an amount equal to the Applicable Percentage of Total Hotel Sales for the prior month. (c) Not less than sixty (60) days prior to the first day of each Fiscal Year after the 2005 Fiscal Year, Tenant shall submit to Landlord for Landlord's approval a reserve account proposed estimate of expenditures from the FF&E Reserve for the - 32 - ensuing full or partial Fiscal Year, as the case may be (the “"FF&E Reserve Account”ESTIMATE"), with . If Landlord fails to disapprove of a bank or similar institution reasonably acceptable to Landlord, to cover the cost of replacements, renewals and additions to the proposed FF&E at the Facility. Within Estimate within thirty (30) days after the end of each calendar year (commencing with the first full calendar year ending after a ▇▇▇▇ Tenant Transfer), Tenant shall provide Landlord with evidence satisfactory submission thereof to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year transferred into the FF&E Reserve Account an aggregate amount equal to at least 1.5% of for its actual Net Revenue from the Facility for such calendar year (the “FF&E Reserve Funds”). If Tenant fails to so transfer such amount and fails within sixty (60) days after receipt of a written demand from Landlord to cure such deficiencyapproval, then the same shall be deemed an Event of Default hereunder. (b) approved. Together with each such FF&E Estimate, Tenant shall prepare an annual estimate (provide to Landlord a proposed five-year capital plan for the “Hotel for Landlord's review and approval. Tenant will provide Landlord with the material data and information utilized in preparing the FF&E Estimate”) Estimates or any revisions thereof. Tenant will not be deemed to have made any guaranty, warranty or representation whatsoever in connection with the FF&E Estimates, except that the proposed FF&E Estimates reflect Tenant's best professional estimates of the expenditures necessary for replacements, renewals and additions to the FF&E of the Facility during the ensuing calendar year and shall deliver the FF&E Estimate to Landlord concurrently with the delivery of the annual capital and operating budget as described in Section 23.1(b)(vi)matters they describe. The FF&E Estimate for the 2005 Fiscal Year shall also indicate have been delivered by Tenant to Landlord on or before the estimated time schedule for making such replacements, renewals and additionsCommencement Date. (cd) In the event Landlord disapproves or raises any objections to the proposed FF&E Estimate, or any portion thereof, or any revisions thereto, Landlord and Tenant shall use funds contained cooperate with each other in good faith to resolve the disputed or objectionable items. If Landlord disapproves of a proposed FF&E Estimate, Landlord will disapprove on a specific line-by-line basis to the extent reasonably practical. Any dispute with respect to a proposed FF&E Estimate which is not resolved by the parties within thirty (30) days after the submission thereof to Landlord shall be resolved by Arbitration. (e) All expenditures from the FF&E Reserve Account shall be (as to undertake replacementsboth the amount of each such expenditure and the timing thereof) both reasonable and necessary, renewals given the objective that the Hotel will be maintained and additions operated to a standard comparable to competitive hotels. All amounts from the FF&E Reserve shall be paid to Persons who are not Affiliated Persons of Tenant without markup or allocated internal costs by Tenant or its Affiliated Persons except that Tenant may use Affiliated Persons to provide goods and services if Landlord has granted its prior written approval thereof. (f) Tenant shall, consistent with the FF&E Estimate approved by Landlord, from time to time make expenditures from the FF&E Reserve to pay for Capital Replacements made during the Term. Tenant shall not materially deviate from the FF&E Estimate approved by Landlord without the prior approval of Landlord, except in the case of emergency where immediate action is necessary to prevent imminent harm to person or property. Notwithstanding anything in this Agreement to the Facility’s FF&E. At contrary, no additional cost or expense shall be incurred or paid in connection with any Capital Replacements made during the end last two (2) years of each calendar year, any the Term to the extent attributable solely to complying with the InterContinental brand standards. (g) Any amounts remaining in the FF&E Reserve Account shall at the close of each Lease Year will be carried forward to and retained in the next calendar yearFF&E Reserve. Proceeds Any and all portions of the Hotel which are scrapped or removed in connection with the making of any major or non-major repairs, renovations, additions, alterations, improvements, removals or replacements shall be disposed of by Tenant and any net proceeds thereof shall be deposited in the FF&E Reserve and not included in Total Hotel Sales. In addition, any proceeds from the sale of FF&E no longer necessary to the operation of the Facility Hotel shall be transferred added to the FF&E Reserve. (h) Subject to the terms of SECTION 5.1.2 (j), Tenant shall be the only party entitled to withdraw funds from the FF&E Reserve Account. The until a Default shall occur. (i) Upon the expiration or earlier termination of the Term, Tenant shall disburse to Landlord, or as Landlord shall direct, all amounts remaining in the FF&E Reserve after payments of all expenses on account of Capital Replacements appropriately incurred by Tenant during the Term. (j) So long as the Managed Hotels are Pooled FF&E Hotels, it is understood and agreed that funds deposited in the FF&E Reserve pursuant to this Agreement and the Reserve Account under New Management Agreement shall be maintained and used on a consolidated basis such that all amounts to be deposited in the FF&E Reserve and such Reserve Account shall be an interest-bearing accountdeposited in a single account and Portfolio Manager and Tenant may apply any funds therein to any of the Pooled FF&E Hotels in accordance with the terms of this Agreement and the New Management Agreement. (k) Notwithstanding anything contained herein to the contrary, if Landlord advises Tenant that in Landlord's opinion, the fair market value of all personal property of Landlord at, about or which forms a part of the Property is equal to or exceeds thirteen and any interest that accrues thereon one half percent (13.5%) of the fair market value of the Property, Tenant and its Affiliates shall be retained in not use funds from the FF&E Reserve Account. Neither (i) the proceeds from the disposition of FF&E nor (ii) interest that accrues on amounts held in the FF&E Reserve Account shall result in any reduction in the or which are required transfers to the FF&E Reserve Account set forth in Section 9.2(a). Concurrently with the Financial Statements delivered be expended pursuant to Section 23.1(b)(i) and Section 23.1(b)(ii)any purchase agreement to purchase additional personal property for use at, Tenant shall provide Landlord with copies about or as part of the bank generated account statements received by Tenant with respect to the FF&E Reserve Account for the most recently ended calendar month for Property without Landlord's prior written consent, which account statements are availableconsent may be granted or withheld in Landlord's sole and absolute judgment. (d) Tenant grants to Landlord a first-priority security interest in the CapEx Reserve and all CapEx Reserve Funds and the FF&E Reserve Account and all FF&E Reserve Funds in each case as additional security for performance of Tenant’s obligations under this Lease during the existence of an Event of Default. Landlord shall have the right to collaterally assign the security interest granted to Landlord in the CapEx Reserve and CapEx Reserve Funds and FF&E Reserve Account and FF&E Reserve Funds to any Facility Mortgagee. Notwithstanding anything to the contrary contained in Section 9.1(e)(v) and Section 9.1(e)(vi), following the execution of this Lease, Landlord, Tenant and the applicable account holding institution (the “Eligible Institution”) shall promptly enter into a customary and reasonable deposit account control agreement with respect to the FF&E Reserve Account and the CapEx Reserve (the “Restricted Reserve Accounts”) which shall provide that (x) Landlord has “control” over the account within the meaning of Section 9-104 of the New York Uniform Commercial Code, (y) the Eligible Institution shall disburse funds to Tenant pursuant to a request provided (as applicable) in accordance with Section 9.1(e)(v) and Section 9.1(e)(vi) (as applicable) except during a Reserve Control Trigger Period and (z) during the Reserve Control Trigger Period, Eligible Institution shall only make disbursements from the account upon written direction from Landlord. During the Reserve Control Trigger Period, unless the Landlord is otherwise exercising remedies with respect to any Event of Default hereunder, Landlord shall request disbursements of funds from the Restricted Reserve Accounts to Tenant within five (5) Business Days of (i) Tenant’s delivery of such request(as applicable) in connection with Section 9.1(e)(vi) and Section 9.1(e)(vii) (as applicable) and (ii) Tenant’s satisfaction of its obligations hereunder. (e) This Section 9.2 shall have no force or effect prior to a ▇▇▇▇ Tenant Transfer.