Exhibit 10.120 

 

 

**THIRD AMENDMENT TO CREDIT AGREEMENT**

Dated February 25, 2009 

By and Among 

**STRATEGIC HOTEL FUNDING, L.L.C.,**

*as Borrower,*

**VARIOUS FINANCIAL INSTITUTIONS,**

*as Lenders,*

*and*

**DEUTSCHE BANK TRUST COMPANY AMERICAS,***as Administrative Agent*

 

 

**THIRD AMENDMENT TO CREDIT AGREEMENT**

**THIS THIRD AMENDMENT TO CREDIT AGREEMENT**, dated as of February 25, 2009 (this “Third Amendment”), by and among STRATEGICHOTEL FUNDING, L.L.C., a Delaware limited liability company (“Borrower”), DEUTSCHE BANK TRUST COMPANY AMERICAS (“DBTCA”), as the administrative agent (in such capacity, “Administrative Agent”), andthe various financial institutions as are or may become parties hereto (together with DBTCA, collectively “Lenders” and individually, a “Lender”). 

**RECITALS**

**WHEREAS**, Borrower, Administrative Agent and Lenders areparties to that certain Credit Agreement, dated as of March 9, 2007, as amended by (i) that certain First Amendment to Credit Agreement, dated as of March 27, 2007 and (ii) that certain Second Amendment to Credit Agreement, datedas of April 18, 2007 (the “Original Agreement”), pursuant to which Lenders made available to Borrower the credit facility provided for therein in the amount of FIVE HUNDRED MILLION DOLLARS ($500,000,000); and 

**WHEREAS**, Borrower, Administrative Agent and Lenders have agreed to amend the Original Agreement and the other Loan Documents (as defined in theOriginal Agreement and amended herein) to, among other things, reduce the credit facility provided thereunder to the amount of FOUR HUNDRED MILLION DOLLARS ($400,000,000) and to grant to Administrative Agent on behalf of Lenders first lien mortgageson the Initial Borrowing Base Properties, as hereinafter set forth, effective from and after the date hereof. 

**NOW THEREFORE**, inconsideration of the foregoing and for other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows: 

 
 **I.****AMENDMENTS TO THE AGREEMENT**
**Section 1.1 Definitions Amended**. 

**1.1.1**The definition of “Acceptable Appraisal” ishereby deleted and the following is hereby inserted in lieu thereof: 

**“*“Acceptable Appraisal” means(i) in the case of a Borrowing Base Property, a FIRREA compliant MAI appraisal, in compliance with the Uniform Standards of Professional Appraisal Practice, acceptable to Administrative Agent as to form, substance and appraisal date, preparedby a professional appraiser that is engaged by Administrative Agent, and (ii) in the case of a non-Borrowing Base Property, an MAI appraisal, in compliance with the Uniform Standards of Professional Appraisal Practice, reasonably acceptable toAdministrative Agent as to form, substance and appraisal date, prepared by a professional appraiser that is reasonably acceptable to Administrative Agent.*

*“Account Control Agreement” means that certain Agreement Re: Pledged Accounts, datedas of the Third Amendment Closing Date, by and between the applicable Borrowing Base Entity, Administrative Agent and The PrivateBank and Trust Company.*

*“Accounts” means the accounts described on Schedule XIX attached hereto.*”. 

**1.1.2**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Administrative Agent” therein: 

“*“Advance Rate” means fifty percent (50%), as such percentage may be adjusted pursuant to the terms ofSection 7.1.22(f) or Section 7.2.4(a) of this Agreement*.”. 

**1.1.3**The definition of“Aggregate Commitment” is hereby deleted and the following is hereby inserted in lieu thereof: 

“*“AggregateCommitment” means, as of any date, the aggregate of the then-current Commitments of all Lenders, which is, as of the Third Amendment Closing Date an amount equal to FOUR HUNDRED MILLION DOLLARS ($400,000,000), and shall not exceed suchamount*.”. 

**1.1.4**Section 1.1 of the Original Agreement is hereby amended to insert the following definitionafter the definition of “Aggregate Outstanding Balance” therein: 

“*“Alteration” has the meaningset forth in Section 13.2 of this Agreement*.”. 

**1.1.5**Section 1.1 of the Original Agreement ishereby amended to insert the following definitions after the definition of “Alternate Base Rate” therein: 

“*“Alternative Capex/Investments Basket” has the meaning set forth in Section 7.2.4(d) of this Agreement*. 

*“Amended and Restated Note” means an Amended and Restated Revolving Note.*

*“Amended and Restated Revolving Note” means a promissory note, if any, executed by the Borrower and payable to any Lender, in the form of Exhibit K hereto (as such promissory note may be amended, endorsed orotherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrower to such Lender resulting from outstanding Revolving Loans, and also means all other promissory notes accepted from time to time in substitution therefor orrenewal thereof.*”. 

**1.1.6**The definition of “Applicable Margin” is hereby deleted and the following ishereby inserted in lieu thereof: 

“*“Applicable Margin” means 3.75% in the case of each LIBO Rate Loan and 2.75% inthe case of each Base Rate Loan.*”. 

 

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**1.1.7**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Appraised Value” therein: 

“*“Approved Bank” meansAdministrative Agent or any affiliate thereof or any other financial institution reasonably approved by Administrative Agent.*”. 

**1.1.8**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Approved Fund” therein: 

“*“Approved Luxury Manager” means those certain managers classified as Approved Luxury Managers as set forth on Schedule IVattached hereto.*”. 

**1.1.9**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Approved Manager” therein: 

“*“Appurtenances” has the meaningset forth in the First Lien Mortgages.*”. 

**1.1.10**Section 1.1 of the Original Agreement is hereby amended toinsert the following definitions after the definition of “Arrangers” therein: 

**“*“Assignment ofAgreements” means that Assignment of Agreements, dated as of the Third Amendment Closing Date, by and between each Borrowing Base Entity and Administrative Agent on behalf of Lenders.*

“*“**Assignments of Leases and Rents**”* means each Assignment of Leases and Rents, Hotel Revenues and SecurityDeposits, dated as of the Third Amendment Closing Date, by each Borrowing Base Entity in favor of Administrative Agent on behalf of Lenders.”. 

**1.1.11**The definition of “Available Commitment” is hereby deleted and the following is hereby inserted in lieu thereof: 

**“*“Available Commitment” means, as of any date, the lesser of (i) the product of (x) the Advance Rate times (y) the aggregate Appraised Value of all Borrowing BaseProperties, less the Deemed Net Termination Value as of such date, and (ii) an amount which, if it were the Aggregate Outstanding Balance, would produce a Pro Forma Borrowing Base Coverage Ratio of 1.30:1.0*.”.**

**1.1.12**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of“Borrowing” therein: 

“*“Borrowing Base Entities” means, collectively, each Property Owner andOperating Lessee of a Borrowing Base Property.”*. 

**1.1.13**The definition of “Borrowing Base IntercompanyIndebtedness” is hereby amended to insert the following at the end thereof: 

“*and any additional intercompany Indebtednessrelating to a Borrowing Base Property or Borrowing Base Property Owner incurred in accordance with Section 7.1.11.*”. 

 

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**1.1.14**The definition of “Borrowing Base Property” is hereby deleted and thefollowing is hereby inserted in lieu thereof: 

“*“Borrowing Base Property” means, each of the Marriott Lincolnshire,the Ritz Carlton Laguna Niguel, the Four Seasons Punta Mita, the Four Seasons Mexico City and the Four Seasons Washington, D.C., including any other Property which Borrower may add as a Borrowing Base Property pursuant to Section 7.1.22of this Agreement and excluding any Borrowing Base Release Property*.”. 

**1.1.15**Section 1.1 of the OriginalAgreement is hereby amended to insert the following definitions after the definition of “Borrowing Base Property Owner” therein: 

“*“Borrowing Base Property Release” has the meaning set forth in Section 7.1.22(e) of this Agreement.*

*“Borrowing Base Release Property” has the meaning set forth in Section 7.1.22(e) of this Agreement.*”. 

**1.1.16**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of“Borrowing Request” therein: 

“*“Building Equipment” has the meaning set forth in the First LienMortgages*.”. 

**1.1.17**Section 1.1 of the Original Agreement is hereby amended to insert the following definitionafter the definition of “Business Day” therein: 

“*“Capex/Investments Basket” has the meaning setforth in Section 7.2.4(d) of this Agreement.*”. 

**1.1.18**Section 1.1 of the Original Agreement ishereby amended to insert the following definitions after the definition of “Cash Equivalents” therein: 

“*“Casualty Amount” means ten percent (10%) of the value of the applicable Borrowing Base Property as set forth in the most recently completed Acceptable Appraisal with respect to such Borrowing BaseProperty.*

*“Catch-Up Amounts” shall have the meaning set forth in Section 7.2.6(a) of thisAgreement*.”. 

**1.1.19**The definition of “Collateral” is hereby deleted and the following is hereby insertedin lieu thereof: 

**“*“Collateral” means, collectively, all Pledge Agreement Collateral, all Guarantor PledgeAgreement Collateral and all First Lien Mortgage Collateral, as required to be granted from time to time pursuant to the terms hereof and subject to the provisions of release thereof as provided herein or in the other Loan Documents.”.*

 

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**1.1.20**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “ Commitment Termination Event” therein: 

“*“Common Elements”means those portions of the Improvements and other rights relating to the Condominium that are designated as “Common Elements” under the Condominium Documents.*”. 

**1.1.21**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of“Compliance Certificate” therein: 

**“*“Condominium” means the sub-condominium known asSub-Condominium Unit RC-1 of the Punta Mita Master Condominium Regime.*

*“Condominium Board” means the board ofmanagers or like administrative body of the Condominium established pursuant to the Condominium Documents.*

*“CondominiumDocuments” means collectively, the Declaration of Sub-Condominium Unit RC-1 of the Punta Mita Master Condominium Regime, Unilateral Declaration of Condominium Regime for RC-1, and any other similar written agreements among or otherwisebinding upon any unit owners of the Condominium in their capacity as such and that govern or otherwise relate to the establishment, continuance, maintenance or operation of the Condominium, as the same may be amended, restated, replaced,supplemented or otherwise modified from time to time.*”. 

**1.1.22**The definition of “Consolidated EBITDA” ishereby amended to delete the words “(excluding Real Property) in the ordinary course of business” and the following is hereby inserted in lieu thereof: 

“*(excluding real property) in the ordinary course of business and foreign currency exchange gain or loss applicable to third party and intercompany Indebtedness and certain balance sheet items held by foreignSubsidiaries of Borrower.*”. 

**1.1.23**The definition of “Consolidated Tangible Net Worth” is hereby deletedand the following is hereby inserted in lieu thereof: 

**“*“Consolidated Tangible Net Worth” means, at anytime, the tangible net worth of the Consolidated Group determined in accordance with GAAP, calculated based on (a) the shareholder book equity of Guarantor’s common Capital Stock, plus (b) accumulated depreciation and amortization ofthe Consolidated Group, plus (c) to the extent not included in clause (a), the amount properly attributable to the minority interests, if any, shown on the Guarantor’s balance sheet, in each case determined without duplication and inaccordance with GAAP, and excluding (d) any goodwill and any currency translation adjustment.”.*

 

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**1.1.24**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Credit Hedging Agreements” therein: 

“*“Cut-Off Date” shallhave the meaning set forth in the definition of “Major Casualty/Condemnation Event”.*”. 

**1.1.25**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “DBTCA” therein: 

**“*“D.C. Loan Pledge” means that certain Pledge and Security Agreement, dated as of March 9, 2007, by Borrower in favor of Administrative Agent.*

*“D.C. Loan Subordination” means that certain Subordination Agreement, dated as of the Third Amendment Closing Date, by SHC Washington,L.L.C. and Borrower in favor of Administrative Agent.*”. 

**1.1.26**Section 1.1 of the Original Agreement is herebyamended to insert the following definition after the definition of “Defaulting Lender” therein: 

“*“Deficiency” shall have the meaning set forth in Section 12.4.2(b) of this Agreement.*”. 

**1.1.27**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Exchange Act” therein: 

“*“Excusable Delay” means a delay solely due to acts of god, governmental restrictions, stays, judgments, orders, decrees, enemyactions, civil commotion, fire, casualty, strikes, work stoppages, shortages of labor or materials or other causes beyond the reasonable control of Borrower or the applicable Borrowing Base Entity, but Borrower’s or such Borrowing BaseEntity’s lack of funds in and of itself shall not be deemed a cause beyond the control of Borrower or such Borrowing Base Entity*. 

*“Exercise Period” shall have the meaning set forth in Section 14.3 of this Agreement.*”. 

**1.1.28**The definition of “Facility” is hereby deleted and the following is hereby inserted in lieu thereof: 

“*“Facility” means the $400,000,000 revolving credit facility evidenced by this Agreement, as the same may be amended, supplemented, amended and restated or otherwise modified from time to time and in effect on suchdate.*”. 

**1.1.29**Section 1.1 of the Original Agreement is hereby amended to insert the following definitionafter the definition of “Fee Letters” therein: 

“*“Fee Owner” means the lessor under a Ground Leaseincluding, but not limited to, Indian Creek Investors, Inc.*”. 

 

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**1.1.30**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinitions after the definition of “FF&E” therein: 

“*“First American” means First AmericanTitle Insurance Company*. 

*“First Lien Mortgage Collateral” means the Initial Borrowing Base Properties pledged ormortgaged under those certain First Lien Mortgages and any other Properties which may be pledged or mortgaged pursuant to Section 7.1.22(c).*

*“First Lien Mortgages” means (i) the first priority Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents, Hotel Revenue and Security Deposits,dated as of the Third Amendment Closing Date, executed and delivered by the applicable Borrowing Base Entities to Administrative Agent on behalf of Lenders and encumbering the Ritz Carlton Laguna Niguel, (ii) the first priority Deed of Trust,Security Agreement, Fixture Filing and Assignment of Leases, Rents, Hotel Revenue and Security Deposits or Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents, Hotel Revenue and Security Deposits,dated as of the Third Amendment Closing Date, executed and delivered by the applicable Borrowing Base Entities to Administrative Agent on behalf of Lenders and encumbering the Four Seasons Washington, D.C., (iii) the first priority Mortgage,Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents, Hotel Revenue and Security Deposits or Deed of Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents, Hotel Revenue andSecurity Deposits, dated as of the Third Amendment Closing Date, executed and delivered by the applicable Borrowing Base Entities to Administrative Agent on behalf of Lenders and encumbering the Marriott Lincolnshire, and (iv) the IrrevocableAdministration and Security Trust Agreement with Reversion Rights, dated the Third Amendment Closing Date, executed and delivered by the applicable Borrowing Base Entities to the Trustee and encumbering the Initial Borrowing Base Properties locatedin Mexico, as any such instrument may be amended, restated, replaced, supplemented or otherwise modified from time to time.*”. 

**1.1.31**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Fiscal Year End” therein: 

“*“Four Seasons Mexico City” means that certain Property currently referred to as the Four Seasons Mexico City and located atPaseo de la Reforma #500, Colonia Juarez, Mexico City, Mexico.*

*“Four Seasons Punta Mita” means that certainProperty currently referred to as the Four Seasons Punta Mita and located at Bahia de Banderas, Nayarit, Mexico.*

 

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*“Four Seasons Washington, D.C.” means that certain Property currently referred to asthe Four Seasons Washington, D.C. and located at 2800 Pennsylvania Avenue NW, Washington, D.C.*”. 

**1.1.32**Section 1.1of the Original Agreement is hereby amended to insert the following definition after the definition of “F.R.S. Board” therein: 

**“*“FSHL” has the meaning set forth in the definition of Manager herein.*

*“FSHR” has the meaning set forth in the definition of Manager herein.*”.**

**1.1.33**Thedefinition of “Gross Asset Value” is hereby deleted and the following is hereby inserted in lieu thereof: 

**“*“Gross Asset Value” means, (1) for any Borrowing Base Property and for any Consolidated Group Property other than New Acquisitions and Development Properties, its Appraised Value and (2) for anyother Property:*

*(a) for each Consolidated Group Property that is a New Acquisition, an amount equal to theAcquisition Cost with respect thereto;*

*(b) for each Consolidated Group Property that is a Development Property, anamount equal to the Development Cost of such Property; and*

*(c) at any time and for any Property that is not aConsolidated Group Property, an amount equal to Borrower’s share, based on its Share of the Unconsolidated Subsidiary that is the Property Owner of such Property, of the Gross Asset Value that would have been attributable to such Propertypursuant to clause (1), (2)(a) or (2)(b) of this definition if such Property were a Consolidated Group Property; provided, however, that the Gross Asset Value of any Property that is subjected to a condominium regime orsimilar structure for the purpose of timeshare, condominium hotel, or fractional interest or similar development will be (i) for the portion of the Property to be retained by Borrower (or its Subsidiary) to be operated as a traditional hotel,as set forth in a new Acceptable Appraisal satisfactory to the Administrative Agent for the first year of operation and, thereafter, pursuant to clause (b) above, and (ii) for the portion of the Property to be held for sale, theundepreciated “book value” of such portion of the Property.*”. 

**1.1.34**Section 1.1 of the OriginalAgreement is hereby amended to insert the following definitions after the definition of “Gross Hotel Revenue” therein: 

**“*“Ground Lease” means any long-term Lease of Land in which Borrower or any of its Affiliates is the tenant of a Borrowing Base Property and is allowed to improve the land and use it for the term of the Lease,including the Lincolnshire Ground Lease.*

 

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*“Ground Lessee” means the Tenant under any Ground Lease, including, but not limitedto, the Lincolnshire Ground Lessee.*”. 

**1.1.35**Section 1.1 of the Original Agreement is hereby amended to insertthe following definitions after the definition of “herein,” “hereof,” “hereto,” “hereunder” therein: 

“*“Hotel del Coronado” means that certain Property currently referred to as the Hotel del Coronado and located at 1500 Orange Avenue, Coronado, California.*

*“Hotel Revenue” means all revenues, income, rents, issues, profits, termination or surrender fees, penalties and other amounts arisingfrom the use or enjoyment of all or any portion of a Borrowing Base Property, including, without limitation, the rental or surrender of any office space, retail space, parking space, halls, stores, and offices of every kind, the rental or licensingof signs, sign space or advertising space and all rentals, revenues, receipts, income, accounts, accounts receivable, cancellation fees, penalties, credit card receipts and other receivables relating to or arising from rentals, rent equivalentincome, income and profits from guest rooms, meeting rooms, conference and banquet rooms, food and beverage facilities, health clubs, vending machines, parking facilities, telephone and television systems, guest laundry, the provision or sale ofother goods and services, and any other items of revenue, receipts or other income as identified in the Uniform System.*”. 

**1.1.36**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Impermissible Qualification” therein: 

**“*“Impositions” means all taxes (including all ad valorem, sales (including those imposed on lease rentals), use, singlebusiness, gross receipts, value added, intangible transaction, privilege or license or similar taxes), governmental assessments (including all assessments for public improvements or benefits, whether or not commenced or completed prior to the ThirdAmendment Closing Date and whether or not commenced or completed within the term of this Agreement), water, sewer or other rents and charges, excises, levies, fees (including license, permit, inspection, authorization and similar fees), and allother governmental charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in respect of the Borrowing Base Properties and/or any Rents and Hotel Revenue (including all interest andpenalties thereon), which at any time prior to, during or in respect of the term hereof may be assessed or imposed on or in respect of or be a Lien upon (a) Borrower (including all income, franchise, single business or other taxes imposed onBorrower for the privilege of doing business in the jurisdiction in which the applicable Borrowing Base Property is located), (b) a Borrowing Base Property, or any other Collateral delivered or pledged to Administrative Agent in connection withthe Loan, or any part thereof, or any Rents or Hotel Revenue therefrom or any estate, right, title or interest therein, or (c) any occupancy, operation, use or possession of, or sales from, or activity conducted on, or in connection with theBorrowing Base Properties or the leasing or use of all or any*

 

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*part thereof. Nothing contained in this Agreement shall be construed to require Borrower, any Borrowing Base Entity or any Subsidiary to pay any tax,assessment, levy or charge imposed on (i) any tenant occupying any portion of a Borrowing Base Property, (ii) any third party manager of the Borrowing Base Properties, including any Manager, or (iii) Administrative Agent or any Lenderin the nature of a capital levy, estate, inheritance, succession, income or net revenue tax.*

*“Improvements” has themeaning set forth in the First Lien Mortgages.*”. 

**1.1.37**Section 1.1 of the Original Agreement is herebyamended to insert the following definitions after the definition of “Indebtedness” therein: 

“*“Independent” means, when used with respect to any Person, a Person who: (i) does not have any direct financial interest or any material indirect financial interest in Borrower or in any Affiliate of Borrower,(ii) is not connected with any Borrower or any Affiliate of Borrower as an officer, employee, promoter, underwriter, trustee, partner, member, manager, creditor, director, supplier, customer or person performing similar functions and(iii) is not a member of the immediate family of a Person defined in (i) or (ii) above.*

*“IndependentArchitect” means an architect, engineer or construction consultant selected by Borrower which is Independent, licensed to practice in the jurisdiction and has at least five (5) years of architectural experience and which is reasonablyacceptable to Administrative Agent.*”. 

**1.1.38**Section 1.1 of the Original Agreement is hereby amended to insertthe following definition after the definition of “Initial Borrowing Base” therein: 

“*“Initial BorrowingBase Properties” means, collectively, the Four Seasons Punta Mita, the Four Seasons Mexico City, the Four Seasons Washington, D.C., the Ritz Carlton Laguna Niguel and the Marriott Lincolnshire.”*. 

**1.1.39**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of“Insurance Policies” therein: 

“*“Insurance Requirements” means all of the terms of any insurancepolicy required pursuant to this Agreement, including, without limitation, the terms set forth on Schedule XVIII attached hereto.*”. 

**1.1.40**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Joint Venture” therein: 

“*“Land” has the meaning set forth in the First Lien Mortgages.*

*“Lease” means any lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral andwhether now or hereafter in effect) pursuant to which any Tenant is granted by Borrower a possessory interest in, or*

 

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*right to use or occupy all or any portion of any space in any Borrowing Base Properties, and every modification, amendment or other agreement relating tosuch lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and every guarantee of the performance and observance of the covenants, conditions and agreements to beperformed and observed by the other party thereto.*

*“Leasing Threshold” shall have the meaning set forth inSection 7.1.32 of this Agreement.*”. 

**1.1.41**Section 1.1 of the Original Agreement is hereby amended toinsert the following definition after the definition of “LIBO Rate Loan” therein: 

“*“Licenses”shall have the meaning set forth in Section 4.1.12 of the Third Amendment.*”. 

**1.1.42**Section 1.1 ofthe Original Agreement is hereby amended to insert the following definition after the definition of “Lien” therein: 

“*“Lincolnshire Fee Owner” means Indian Creek Investors, Inc. or the then Landlord under the Lincolnshire Ground Lease*. 

*“Lincolnshire Ground Lease” means those documents described on Schedule VII attached to this Agreement.*

*“Lincolnshire Ground Lessee” means the Tenant under the Lincolnshire Ground Lease*. 

*“Lincolnshire Leasehold Estate” means the estate in the Marriott Lincolnshire created by the Lincolnshire Ground Lease*. 

*“Lincolnshire Zoning Documents” shall have the meaning set for in Section 4.1.12 of the Third Amendment.*”. 

**1.1.43**The definition of “Loan Documents” is hereby amended to insert the following after the words “Fee Letters”:

“*First Lien Mortgages, Mexico Pledge Agreement, Reaffirmation of Guaranty, Reaffirmation of Subsidiary Guaranty, Reaffirmation ofGuarantor Pledge Agreement, Reaffirmation of Subsidiary Pledge Agreement, Reaffirmation of D.C. Loan Pledge, D.C. Loan Subordination, each Assignment of Leases and Rents, each Assignment of Agreements and the Post Closing Letter*”.

**1.1.44**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definitionof “Loans” therein: 

“*“Low DSCR Fee” has the meaning set forth in Section 3.4.4 ofthis Agreement.*

 

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*“Low Fixed Charge Covenant Period” has the meaning set forth inSection 7.2.4(a) of this Agreement.*

*“Major Casualty/Condemnation Event” means any casualty or Takingoccurring with respect to any Borrowing Base Property where any of the following shall be true: (i) the Proceeds shall equal or exceed the Appraised Value of the applicable Borrowing Base Property; (ii) an Event of Default shall haveoccurred and be continuing; (iii) a Total Loss with respect to a Borrowing Base Property shall have occurred; (iv) the Work is not capable of being completed before the earlier to occur of (x) the date that is six (6) monthsprior to the Maturity Date and (y) the date on which the business interruption insurance carried by Borrower with respect to the applicable Borrowing Base Property shall expire (the “Cut-Off Date”), unless on or prior to theCut-Off Date Borrower shall deliver to Administrative Agent and there shall remain in effect a binding written offer, subject only to customary conditions, of an Approved Bank duly authorized to originate loans secured by real property located inthe jurisdiction for a loan from such Approved Bank to Borrower or applicable Borrowing Base Entity in a principal amount of not less than the Appraised Value of the applicable Borrowing Base Property (net of any Proceeds available to the applicableBorrowing Base Entity on account of the applicable casualty or Taking) and which shall, in Administrative Agent’s reasonable judgment, enable Borrower or the applicable Borrowing Base Entity to refinance such allocated amount prior to theMaturity Date; (v) such Borrowing Base Property is not capable of being restored substantially to its condition prior to such casualty or Taking and such incapacity shall have a Material Adverse Effect; or (vi) Administrative Agentdetermines that, upon the completion of the restoration, the gross cash flow and the net cash flow of such Borrowing Base Property will not be restored to a level sufficient to cover all carrying costs and operating expenses of such Borrowing BaseProperty at a coverage ratio of at least 2.0:1.0 (excluding any debt service), which coverage ratio shall be determined by Administrative Agent in its sole and absolute discretion.*”. 

*“Management Agreement” means the management agreements with respect to each Borrowing Base Property as set forth on ScheduleVIII attached to this Agreement pursuant to which the Manager is to provide management and other services with respect to the applicable Borrowing Base Property, as the same may be amended, restated, replaced, supplemented or otherwise modifiedfrom time to time in accordance with the terms hereof.*

*“Manager” means (i) with respect to the Four SeasonsMexico City, collectively the Four Seasons Hotel Limited, a corporation incorporated under the laws of the Province of Ontario, Canada (“FSHL”), Four Seasons Hotels and Resorts B.V., a corporation incorporated under the laws of theNetherlands (“FSHR”), and Four Seasons Hotels (Mexico), S.A. DE C.V., a corporation incorporated under the laws of the United Mexican States; (ii) with respect to the Four Seasons Punta Mita, collectively FSHL, FSHR, and FourSeasons Punta Mita, S.A. DE C.V., a*

 

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*corporation incorporated under the laws of the United Mexican States; (iii) with respect to Four Seasons Washington, D.C., FSHL; (iv) withrespect to Marriott Lincolnshire, Marriott Hotel Services, Inc., a Delaware corporation; and (v) with respect to Ritz Carlton Laguna Niguel, The Ritz-Carlton Hotel Company, L.L.C., a Delaware limited liability company, together with, in eachinstance, any successor management company permitted hereunder or, subject to Section 7.2.14, under the applicable Management Agreement.*”. 

**1.1.45**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Mandatory Borrowing” therein: 

“*“Marriott Lincolnshire” means that certain Property currently referred to as Lincolnshire Marriott and located at Ten MarriottDrive, Lincolnshire, Illinois.*”. 

**1.1.46**Section 1.1 of the Original Agreement is hereby amended to insert thefollowing definition after the definition of “Material Agreements” therein: 

“*“MaterialAlteration” means any Alteration which, when aggregated with all related Alterations (other than decorative work such as painting, wall papering and carpeting and the replacement of fixtures, furnishings and equipment to the extent being ofa routine and recurring nature and performed in the ordinary course of business) constituting a single project, involves an estimated cost exceeding five percent (5%) of the Appraised Value with respect to such Alteration or related Alterations(including the Alteration in question) then being undertaken at such Borrowing Base Property.*”. 

**1.1.47**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Maturity Date**”** therein: 

**“*“Mexico Pledge Agreement” means that certain Non-Possessory Pledge Agreement, dated as of the Third Amendment ClosingDate, by Punta Mita Resort, S. de R.L. de C.V., Inmobiliaria Nacional Mexicana, S. de R.L. de C.V. and Punta Mita TRS, S. de R.L. de C.V.*

*“Mexico Taxes” shall have the meaning set forth in Section 4.6(a) of this Agreement.*”. 

**1.1.48**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “New Acquisitions” therein: 

“*“New Lease” has the meaning set forth in Section 7.1.32 of this Agreement.*”. 

**1.1.49**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “NewAcquisitions” therein: 

**“*“Non-Borrowing Base Property Subsidiary” means a Subsidiary that does not,directly or indirectly, own a Borrowing Base Property or any interest therein and (x) that is a non-Domestic Subsidiary or (y) the only material assets of which consist of the Capital Stock of a non-Domestic Subsidiary.”.*

 

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**1.1.50**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Non-Defaulting Lender” therein: 

“*“Non-Disturbance Agreement”has the meaning set forth in Section 7.1.32 of this Agreement.*”. 

**1.1.51**Section 1.1 of theOriginal Agreement is hereby amended to insert the following definition after the definition of “Organic Document” therein: 

“*“Other Charges” means maintenance charges, impositions other than Impositions, and any other charges, including, without limitation, vault charges and license fees for the use of vaults, chutes and similar areasadjoining a Borrowing Base Property, now or hereafter levied or assessed or imposed against such Borrowing Base Property or any part thereof by any Governmental Authority, other than those required to be paid by a tenant or Manager pursuant to itsrespective Lease or Management Agreement.*”. 

**1.1.52**The definition of “Permitted Borrowing Base Liens” ishereby amended to insert the following after the final clause thereof: 

**“*(i) Liens and security interests created orpermitted by the Loan Documents; and*

*(j) with respect to the Borrowing Base Properties, all Liens, encumbrances and other mattersdisclosed in the applicable Title Policy.*”. 

**1.1.53**Section 1.1 of the Original Agreement is hereby amended toinsert the following definition after the definition of “Pledge Agreement Collateral” therein: 

“*“PostClosing Letter” means that certain Letter from Borrower to Administrative Agent, dated as of the Third Amendment Closing Date, setting forth certain obligations of Borrower and Administrative Agent from and after the Post ClosingDate.*”. 

**1.1.54**The definition of “Pro Forma Interest Expense” is hereby deleted and the following ishereby inserted in lieu thereof: 

“*“Pro Forma Interest Expense” means, as of any date of determination, theinterest expense that would be payable under the Facility for a twelve (12) month period, assuming: (1) an interest rate equal to the greater of (i) the lesser of (x) the sum of the Base Rate plus the Applicable Margin and(y) the sum of the LIBO Rate plus the Applicable Margin, each as of such date of determination and (ii) 8.0%; and (2) an outstanding principal balance equal to the Aggregate Outstanding Balance as of such date of determination, aftergiving effect to the requested Borrowing/Letter of Credit.*”. 

 

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**1.1.55**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Pro Forma Interest Expense” therein: 

“*“Proceeds” has themeaning set forth in Section 12.2 of this Agreement.*”. 

**1.1.56**The definition of “PropertyOwner” is hereby amended to insert the following at the end thereof: 

“*and the Lincolnshire Ground Lessee.*”

**1.1.57**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definitionof “Property Owner” therein: 

“*“Property Release Notice” shall have the meaning set forth inSection 7.1.22(e) of this Agreement.*”. 

**1.1.58**Section 1.1 of the Original Agreement is herebyamended to insert the following definitions after the definition of “Quarterly Payment Date” therein: 

“*“REAs” means, collectively, as the same may be amended, restated, supplemented or otherwise modified from time to time, those certain agreements more specifically described on Schedule XIV attached to thisAgreement.*

*“Reaffirmation of D.C. Loan Pledge” means that certain Reaffirmation of D.C. Loan Pledge, dated as ofthe Third Amendment Closing Date, by Borrower in favor of Administrative Agent on behalf of the Lenders.*

*“Reaffirmation ofGuarantor Pledge Agreement” means that certain Reaffirmation of Guarantor Pledge Agreement, dated as of the Third Amendment Closing Date, by Guarantor in favor of Administrative Agent on behalf of the Lenders.*

*“Reaffirmation of Guaranty” means that certain Reaffirmation of Guaranty, dated as of the Third Amendment Closing Date, by Guarantorin favor of Administrative Agent on behalf of the Lenders.*

*“Reaffirmation of Subsidiary Guaranty” means thatcertain Reaffirmation of Subsidiary Guaranty, dated as of the Third Amendment Closing Date, by each Subsidiary Guarantor in favor of Administrative Agent on behalf of the Lenders.*

*“Reaffirmation of Subsidiary Pledge Agreement” means that certain Reaffirmation of Subsidiary Pledge Agreement, dated as of the ThirdAmendment Closing Date, by each Subsidiary party to the Pledge Agreement in favor of Administrative Agent on behalf of the Lenders.*”. 

**1.1.59**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Real Estate” therein: 

“*“Real Property” means, collectively, the Land, the Improvements and the Appurtenances.*”. 

 

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**1.1.60**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinitions after the definition of “REIT” therein: 

“*“Release Date” has the meaning set forth inSection 7.1.22(e) of this Agreement.*

*“Release Instruments” has the meaning set forth inSection 7.1.22(e) of this Agreement.*

*“Released Matters” has the meaning set forth inSection 5.1 of the Third Amendment.*

*“Released Parties” has the meaning set forth inSection 5.1 of the Third Amendment.*

*“Releasing Parties” has the meaning set forth inSection 5.1 of the Third Amendment.*

*“Rents” means all rents, rent equivalents, moneys payable asdamages or in lieu of rent or rent equivalents, royalties (including, without limitation, all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including, without limitation, security, utilityand 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 a Borrowing Base Entity from any and all sourcesarising from or attributable to a Borrowing Base Property and Proceeds, if any, from business interruption or other loss of income insurance.*”. 

**1.1.61**The definition of “Revolving Loan Commitment Amount” is hereby deleted and the following is hereby inserted in lieu thereof: 

“*“Revolving Loan Commitment Amount” means FOUR HUNDRED MILLION DOLLARS ($400,000,000), as such amount may be reduced from time totime pursuant to Section 2.2.*”. 

**1.1.62**Section 1.1 of the Original Agreement is hereby amended toinsert the following definition after the definition of “Revolving Note” therein: 

“*“Ritz Carlton LagunaNiguel” means that certain Property currently referred to as the Ritz Carlton Laguna Niguel and located at One Ritz-Carlton Drive, Dana Point, California.*”. 

**1.1.63**Clause (v) of the definition of “Security Documents” is hereby deleted and the following is hereby inserted in lieuthereof: 

“*(v) the First Lien Mortgages;*”. 

 

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**1.1.64**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinition after the definition of “Share Repurchase” therein: 

“*“Specified Borrowing BaseProperties” means the Borrowing Base Properties other than the Marriott Lincolnshire.*”. 

**1.1.65**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Stated Expiry Date” therein: 

“*“Stewart-Mexico” means Stewart Title Guaranty de Mexico, S.A. de C.V.*

*“Stewart-U.S.” means Stewart Title Insurance Company.*”. 

**1.1.66**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of“Subsidiary Guaranty” therein: 

**“*“Survey” means a survey of a Borrowing Base Propertydescribed on Schedule XVI.*”.**

**1.1.67**Section 1.1 of the Original Agreement is hereby amended toinsert the following definition after the definition of “Swingline Loan” therein: 

“*“Taking” meansa temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of a Borrowing Base Property, or any interest therein orright accruing thereto, including any right of access thereto or any change of grade affecting such Borrowing Base Property or any part thereof.*”. 

**1.1.68**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “Telerate Page 3750” therein: 

“*“Tenant” means any Person leasing, subleasing or otherwise occupying any portion of a Borrowing Base Property pursuant to aLease, other than a Manager, an Operating Lessee or their respective employees, agents and assigns.*”. 

**1.1.69**Section 1.1 of the Original Agreement is hereby amended to insert the following definitions after the definition of “Test Period” therein: 

“*“Third Amendment” means that certain Third Amendment to Credit Agreement, dated as of February 25, 2009, by and among Borrower, Administrative Agent, and the Lenders.*

*“Third Amendment Closing Date” means the date of the Third Amendment.*

*“Third Amendment Fee Letter” means that certain confidential letter, dated as of the Third Amendment Closing Date between Borrower andAdministrative Agent.*

 

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*“Third Amendment Transaction” means the entering into of the Third Amendment and allother documents described in Sections 3.1.1 through 3.1.15 and Sections 3.1.21 through 3.1.23 of the Third Amendment*. 

*“Threshold Amount” means an amount equal to 10% of the most recent Acceptable Appraisal with respect to the applicable Property.*

*“Title Company” means First American, Stewart-Mexico and/or Stewart-U.S., as applicable.*

*“Title Policies” means an ALTA mortgagee title insurance policy in form and substance reasonably acceptable to Administrative Agent(or, if a Borrowing Base Property is in a state or country which does not permit the issuance of such ALTA policy, such form as shall be permitted in such state or country and reasonably acceptable to Administrative Agent) issued by one or more ofFirst American, Stewart-Mexico and/or Stewart-U.S. as set forth in Section 3.1.24 of the Third Amendment with respect to each Borrowing Base Property, and insuring the lien of the First Lien Mortgages.*”. 

**1.1.70**The definition of “Total Fixed Charge Coverage Ratio” is hereby deleted and the following is hereby inserted in lieuthereof: 

*“*“Total Fixed Charge Coverage Ratio” *means, as of the close of any Fiscal Quarter, the ratiocomputed for the period consisting of such Fiscal Quarter and each of the three immediately prior Fiscal Quarters, of (a) Consolidated EBITDA for such period (computed without duplication to include the EBITDA from the pro rata share ofownership in the Hotel del Coronado) to (b) the sum, on a consolidated basis, of (i) Total Interest Expense for such period; plus (ii) the scheduled principal amount of all amortization payments (but not final balloon payments atmaturity) for such period on all Indebtedness of the Consolidated Group; plus (iii) distributions on preferred partnership units payable by Borrower for the latest Fiscal Quarter and distributions made by the Borrower for the latest FiscalQuarter for the purpose of paying Dividends on preferred shares in Guarantor multiplied by four (4) (notwithstanding anything herein to the contrary, distributions for the purpose of paying Catch Up Amounts shall not be included in suchcalculation); plus (iv) an amount equal to the aggregate Deemed FF&E Reserves for the Consolidated Group Properties for such period; plus (v) amounts paid by or on behalf of the Consolidated Group into cash reserves as requiredpursuant to the terms of other Indebtedness; plus (vi) without duplication, Borrower’s pro rata share of the amounts described in clauses (i) – (v) above that relate to the Hotel del Coronado. Any Low DSCR Fees paid byBorrower will not be included in the Total Fixed Charge Coverage Ratio.*”.**

**1.1.71**Section 1.1 of theOriginal Agreement is hereby amended to insert the following definition after the definition of “Total Leverage Ratio” therein: 

**“*“Total Loss” means (i) a casualty, damage or destruction of a Borrowing Base Property which, in the reasonable judgment of Administrative Agent, involves an actual or constructive loss of more thanthirty percent (30%) of the value of such Borrowing Base Property as set forth in the most recent Acceptable Appraisal, (ii) a permanent Taking which, in the reasonable judgment of Administrative Agent, involves an actual or constructiveloss of more than thirty percent (30%) of the value of such Borrowing Base Property as set forth in the most recent Acceptable Appraisal, or (iii) a casualty, damage, destruction or Taking that affects so much of such Borrowing BaseProperty such that it would be impracticable, in Administrative Agent’s reasonable discretion, even after restoration, to operate such Borrowing Base Property as an economically viable whole.*”.**

 

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**1.1.72**Section 1.1 of the Original Agreement is hereby amended to insert the followingdefinitions after the definition of “Transaction” therein: 

“*“Transfer” means to, directly orindirectly, sell, assign, convey, mortgage, transfer, pledge, hypothecate, encumber, grant a security interest in, exchange or otherwise dispose of any beneficial interest or grant any option or warrant with respect to, or where used as a noun, adirect or indirect sale, assignment, conveyance, transfer, pledge or other disposition of any beneficial interest by any means whatsoever whether voluntary, involuntary, by operation of law or otherwise.*”; and 

“*“Trustee” means The Bank of New York Mellon, S.A., Institución de Banca Múltiple.*”. 

**1.1.73**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of“Unfunded Pension Liability” therein: 

“*“UniformSystem” means the Uniform System of Accounts for Hotels, 9th Edition, International Association of Hospitality Accountants (1996), as from time totime amended.*”. 

**1.1.74**Section 1.1 of the OriginalAgreement is hereby amended to insert the following definition after the definition of “United States” therein: 

**“*“Units” shall have the meaning set forth in Section 11.2.3 of the Third Amendment.*”.**

**1.1.75**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definition of “U.S. Lender” therein: 

“*“Village Documents” shall have the meaning set forth in Section 4.1.12 of the Third Amendment.*”.

**1.1.76**Section 1.1 of the Original Agreement is hereby amended to insert the following definition after the definitionof “wholly-owned” therein: 

“*“Work” has the meaning set forth in Section 12.4.1 ofthis Agreement.*”. 

 

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**Section 1.2 Article II Amendments**. Clause (ii) of Section 2.9(a) ofthe Original Agreement is hereby amended by deleting the word “*Credit*” therein. 

**Section 1.3 Article IIIAmendments**. 

**1.3.1**Section 3.1(b) of the Original Agreement is hereby amended by inserting the following asclause (iv) thereof: 

“*(iv) notwithstanding Borrower’s election of the Low Fixed Charge Covenant Period, the Total FixedCharge Coverage Ratio calculated as of December 31, 2010 shall be no less than 1.15:1.0.*”. 

**1.3.2**The first (1st) sentence of Section 3.4.1 of the Original Agreement is hereby deletedin its entirety and the following is hereby inserted in lieu thereof: 

“*Borrower agrees to pay to Administrative Agent each FiscalQuarter for the account of each Lender, for the period (including any portion thereof when any of its Commitments are suspended by reason of Borrower’s inability to satisfy any condition of Article V of this Agreement) commencing on theThird Amendment Closing Date and continuing through the Revolving Loan Commitment Termination Date, an unused fee at a rate per annum equal to 0.50% multiplied by the average daily unused portion of the Aggregate Commitment in each case on suchLender’s Percentage (net of Letter of Credit Outstandings but without giving effect to Swingline Loans made during such Fiscal Quarter).*”. 

**1.3.3**The following Section 3.4.4 is hereby inserted: 

“*3.4.4 Low DSCR Fee. During the Low Fixed Charge Covenant Period, Borrower shall pay Lenders a fee (the “Low DCSR Fee”) quarterly in arrears with respect to each Fiscal Quarteroccurring during the Low Fixed Charge Covenant Period in an amount equal to 0.25% multiplied by the average amount of the Aggregate Outstanding Balance during such Fiscal Quarter. Such Low DSCR Fee shall be payable on the fifth (5th) Business Day following the end of such Fiscal Quarter.*”. 

**1.3.4**Section 4.6(a) of the Original Agreement is hereby amended to insert the following after the last sentence thereof: 

**“*Notwithstanding anything herein to the contrary, Borrower shall cause the Borrowing Base Entities organized under the laws of Mexico tomake all payments required of such entities hereunder or under any Loan Document free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, or any liabilities with respectthereto, including those arising after the Third Amendment Closing Date as a result of the adoption of or any change in law, treaty, rule, regulation, guideline or determination of a Mexican Governmental Authority or any change in the interpretationor application thereof by a Mexican*

 

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*Governmental Authority (all such taxes, levies, imposts, deduction, charges, withholdings and liabilities with respect thereto which a AdministrativeAgent determines to be applicable to this Agreement and the other Loan Documents being hereinafter referred to as “Mexico Taxes”). If, with respect to Mexico Taxes, the Borrower Base Entities organized under the laws of Mexico shallbe required by law to deduct any Mexico Taxes from or in respect of any sum payable hereunder or under any other Loan Document to Administrative Agent or a Lender, Borrower shall cause such Borrowing Base Entity to (A) increase the sum payableas may be necessary so that after making all required deductions Administrative Agent or such Lender, as applicable, receive an amount equal to the sum it would have received had no such deductions been made, and (B) pay the full amountdeducted to the relevant Mexican Governmental Authority in accordance with applicable law.*”. 

**1.3.5**Section 5.2.1(a) of the Original Agreement is hereby deleted in its entirety and the following is hereby inserted in lieu thereof: 

“*(a) the representations and warranties set forth in Article VI and in each other Loan Document and in Article IV of the Third Amendment shall, in each case, be true and correct in all material respects with the same effect as ifthen made (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);*”. 

**Section 1.4 Article VII Amendments**. 

**1.4.1**Section 7.1.1(d) of the Original Agreement is hereby amended by inserting the following at the end of clause (ii) thereof: 

“*(provided, however, with respect to each Borrowing Base Property, Borrower shall deliver such statement within twenty five(25) Business Days after the end of each calendar month)*”. 

**1.4.2**Section 7.1.6 of the Original Agreementis hereby amended by inserting the following as the penultimate sentence thereof: 

“*Notwithstanding the foregoing, Borrower will,and will cause the Borrowing Base Entities to, comply with all Insurance Requirements and not bring or keep or permit to be brought or kept any article upon any of the Borrowing Base Properties or cause or permit any condition to exist thereon thatwould be prohibited by any Insurance Requirement, or would invalidate insurance coverage required hereunder to be maintained by Borrower or the Borrowing Base Entities on or with respect to any part of the Borrowing Base Properties pursuant to thisSection 7.1.6 or Schedule XVIII attached to this Agreement.*”. 

 

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**1.4.3**Section 7.1.7 of the Original Agreement is hereby deleted in its entirety andthe following is hereby inserted in lieu thereof: 

**“*Section 7.1.7 Appraisals.*

*(a) Administrative Agent may obtain an updated or replacement Acceptable Appraisal for each Borrowing Base Property and Borrower shallreimburse Administrative Agent the costs thereof within thirty (30) days after receipt by Borrower of an invoice therefor; provided, that, subject to Section 7.2.14, Borrower shall only be obligated to reimburseAdministrative Agent for the costs of one Acceptable Appraisal per calendar year with respect to each Borrowing Base Property. Borrower shall obtain, at its own expense, (at least once each calendar year) an updated or replacement AcceptableAppraisal for each Property that is not a Borrowing Base Property and shall deliver same to Administrative Agent within five (5) Business Days after Borrower receives same. Such annual appraisals will be completed by December 31 of eachyear beginning with calendar year 2009, and shall be effective as of such date for determining whether (i) a Property complies with Section 7.1.22(a) and (ii) Borrower has satisfied the financial covenants set forth inSection 7.2.4. The Required Lenders may instruct Administrative Agent to re-appraise any of the Borrowing Base Properties at any time, provided that, subject to Section 7.2.14, Borrower will only be required to paysuch appraisal expense once per calendar year for each Borrowing Base Property as provided above. Administrative Agent will provide Borrower with a notice promptly after any appraisal is deemed an Acceptable Appraisal.*

*(b) For purposes of determining the Available Commitment on any date, such calculation shall be based upon the latest AcceptableAppraisals (for the avoidance of doubt, if an appraisal is completed and becomes an Acceptable Appraisal on any Available Commitment calculation date, then such calculation shall incorporate such appraisal).*

*(c) For purposes of determining Gross Asset Value as of any date, such calculation shall be based upon the Acceptable Appraisals ineffect as of (i) the Third Amendment Closing Date or (ii) thereafter, the last day of the most recently completed Fiscal Quarter.*”. 

**1.4.4**Section 7.1.10 of the Original Agreement is hereby deleted in its entirety and the following is hereby inserted in lieu thereof: 

**“*Section 7.1.10 Intercompany Indebtedness. Provided no Event of Default has occurred and is continuing, Borrower and itsSubsidiaries shall be permitted to amend, restate, cancel and otherwise modify the terms and conditions of intercompany Indebtedness so long as the provisions of such amendments, restatements and other modifications are consistent withSection 7.1.11 and, if such Indebtedness is pledged to the Administrative Agent as Loan Pledge Collateral pursuant to the Loan Pledge Agreement, the amended, restated or modified instrument is delivered to Administrative Agent pursuantto the Loan Pledge Agreement.*”.**

 

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**1.4.5**Section 7.1.11 of the Original Agreement is hereby amended to insert thefollowing at the end thereof: 

**“*Any amounts paid by Borrower, Guarantor or any Subsidiary that is not a Non-Borrowing BaseProperty Subsidiary to reduce the interest rate under any Indebtedness of a Non-Borrowing Base Property Subsidiary or to cure or prevent an event of default from occurring under the loan documents evidencing such Indebtedness of a Non-Borrowing BaseProperty Subsidiary, other than the payment of any portion of the principal amount owed thereunder, shall not exceed Ten Million Dollars ($10,000,000) in the aggregate.*”.**

**1.4.6**Section 7.1.16 of the Original Agreement is hereby amended by (A) deleting clause (ii) thereof in its entirety andinserting the following in lieu thereof: “*(ii) remain a publicly traded company with common stock listed on any major national or regional stock exchange.*”; and (B) inserting the following as the last sentence thereof:

“*Notwithstanding the provisions of Section 7.2.6, subject to the reasonable approval of Administrative Agent, whichshall be provided within five (5) Business Days after Administrative Agent’s receipt of a written request therefor from Borrower, Guarantor shall be permitted to issue a reverse stock split with respect to its Capital Stock in order tocomply with the covenant set forth in clause (ii) of the previous sentence.*”. 

**1.4.7**Section 7.1.22(a) ofthe Original Agreement is hereby renumbered as Section 7.1.22(b), and Section 7.1.22(b) of the Original Agreement is hereby deleted. 

**1.4.8**Section 7.1.22 of the Original Agreement is hereby amended by inserting the following as clause (a) thereof: 

**“*(a) Each Borrowing Base Property shall satisfy the following criteria: (i) Borrower or a wholly-owned Subsidiary ofthe Borrower holds good title (by fee or pursuant to a Qualified Ground Lease) to such Property, free and clear of all Liens (except for the Liens permitted under Section 7.2.3); (ii) such Property is leased to an Operating Lessee;(iii) such Property is designated a full-service property (in accordance with industry standard, as reasonably determined by Administrative Agent); (iv) the Specified Borrowing Base Properties shall at all times be luxury or better qualityhotels, and Marriott Lincolnshire shall at all times be an upper-upscale, luxury or better quality hotel, as designated by Smith Travel Research (or a similar successor company designated by Administrative Agent); (v) such Property is operatedunder a nationally recognized brand (A) in the case of Marriott Lincolnshire, by an Approved Manager (as set forth on Schedule IV) and (B) in the case of the Specified Borrowing Base Properties, by an Approved Luxury Manager;(vi) such Property is either (x) fully operating, open to the public and not under development or redevelopment (except for routine, ordinary course renovation, maintenance and repair that does not result in the closure of more thanfifteen percent (15%) of the rooms at such hotel); provided, however, that temporary closure due to force majeure*

 

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*events, not to exceed fifteen (15) Business Days, shall be permitted or (y) being restored in compliance with the provisions of ArticleXII of this Agreement with respect to any Taking or casualty or other damage or injury suffered at such Property; (vii) such Property is not subject to or encumbered by any Indebtedness other than Permitted Borrowing Base Debt;(viii) such Property is free of material structural defects or material environmental issues; (ix) neither such Property nor the Property Owner thereof is encumbered with Permitted Borrowing Base Debt or any other Material Agreement thatby its terms precludes the grant of the Collateral or the exercise by or on behalf of the Secured Creditors of remedies with respect to the Collateral; and (x) the Property Owner of such Property is Borrower or a SubsidiaryGuarantor.*”.**

**1.4.9**Section 7.1.22(c) of the Original Agreement is hereby deleted in its entirety andthe following is hereby inserted in lieu thereof: 

**“*(c) Borrower may propose to include additionalProperties (whether New Acquisitions or former Development Properties, or Properties that were once Borrowing Base Properties and that no longer qualify as such by sending written proposals for inclusion to Administrative Agent. Administrative Agentmay reasonably request any diligence materials and documentation it deems necessary to evaluate such Property, including, without limitation, certifications, appraisals and title documentation. Administrative Agent will make such request andmaterials available to the Lenders, and the inclusion of any such Property as a Borrowing Base Property shall be subject to the prior written consent of the Required Lenders.”.*

**1.4.10**Section 7.1.22(d) of the Original Agreement is hereby amended bydeleting the second (2nd) and third (3rd) sentences thereof in their entirety. 

**1.4.11**Sections 7.1.22 of the Original Agreement is hereby amended byinserting the following at the end thereof: 

**“*(e) Subject to satisfaction of each of the conditions setforth below with respect to any Borrowing Base Property, Borrower shall be entitled to release and/or dispose of the Marriott Lincolnshire and, in Borrower’s discretion, not more than one (1) Specified Borrowing Base Property (the“Borrowing Base Release Property”) from the Lien of the applicable First Lien Mortgage and related Loan Documents (each release under this Section 7.1.22(e), a “Borrowing Base Property Release”):*

*(i) Borrower delivers a written notice (a “Property Release Notice”) to Administrative Agent of itsdesire to effect such Borrowing Base Property Release no later than thirty (30) days prior to the date of such desired Borrowing Base Property Release, and setting forth the Business Day (the “Release Date”) on which Borrowerdesires that Administrative Agent release its interest in such Borrowing Base Release Property;*

 

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*(ii) Borrower shall submit to Administrative Agent not less than ten(10) Business Days prior to the Release Date (which must be a Business Day) a release of Liens (and related Loan Documents) for the applicable Borrowing Base Release Property (for execution by Administrative Agent) in a form appropriate in theapplicable state and otherwise satisfactory to Administrative Agent in its reasonable discretion and all other documentation Administrative Agent reasonably requires to be delivered by Borrower in connection with such Borrowing Base Property Release(collectively, “Release Instruments”) for each applicable Borrowing Base Release Property together with an Officer’s Certificate certifying that (A) the Release Instruments are in compliance with all Legal Requirements,(B) the release to be effected will not violate the terms of this Agreement, (C) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lenders under the Loan Documentsnot being released (or as to the Borrowing Base Properties subject to the Loan Documents not being released) and (D) the condition described in paragraph (iii) below is satisfied in connection with such Borrowing Base Property Release(together with calculations and supporting documentation demonstrating the same in reasonable detail);*

*(iii) Withrespect to any Borrowing Base Property Release, after giving effect to such Borrowing Base Property Release, (A) Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.2.4 and (B) theAggregate Outstanding Balance shall not exceed the Available Commitment calculated on a pro forma basis;*

*(iv) NoEvent of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice and on the Release Date, unless all outstanding Events of Default are cured as a result of the Borrowing Base PropertyRelease;*

*(v) After giving effect to such Borrowing Base Property Release, no Event of Default shall occur as aresult of the Borrowing Base Property Release; and*

*(vi) Borrower shall pay for any and all reasonable out-of-pocketcosts and expenses incurred in connection with any proposed Borrowing Base Property Release, including, without limitation, Administrative Agent’s reasonable attorneys’ fees and disbursements and all title insurance premiums for anyendorsements to any existing Title Policies reasonably required by Administrative Agent in connection with such proposed release.*

 

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*(f) In the event that Borrower, pursuant to the terms ofSection 7.1.22(e) above, has released and/or disposed of any Specified Borrowing Base Property, then (i) the Advance Rate shall be deemed to be reduced by five (5) percentage points (or ten (10) percentage points if thereleased Specified Borrowing Base Property is the Ritz Carlton Laguna Niguel) and (ii) Borrower shall not be permitted to release and/or dispose of any other Specified Borrowing Base Properties from the Lien of the applicable First LienMortgage and the related Loan Documents without the prior written approval of the Required Lenders.*”. 

**1.4.12**Section 7.1 of the Original Agreement is hereby amended by inserting the following at the end thereof: 

“*Section 7.1.23 Access to Property. Borrower shall, and shall cause each Borrowing Base Entity to, permit agents, representatives and employees of Administrative Agent to inspect the Borrowing Base Properties or any partthereof during normal business hours on Business Days upon reasonable advance notice.*”. 

*Section 7.1.24Mortgage Taxes. Borrower shall pay all taxes, charges, filing, registration and recording fees, excises and levies payable with respect to the Liens created or secured by the Loan Documents, other than income, franchise and doing businesstaxes imposed on Administrative Agent or Lenders.*

*Section 7.1.25 Operation. With respect to eachBorrowing Base Property, Borrower shall, and shall cause each Borrowing Base Entity and Manager to, (i) promptly perform and/or observe in all material respects all of the covenants and agreements required to be performed and observed by itunder the applicable Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Administrative Agent of any “event of default” under the applicableManagement Agreement of which it is aware and (iii) enforce in a commercially reasonable manner the performance and observance of all of the covenants and agreements required to be performed and/or observed by the Manager under the applicableManagement Agreement.*

*Section 7.1.26 Business and Operations. Borrower shall, and shall cause eachBorrowing Base Entity to, continue to engage in the businesses presently conducted by it as and to the extent the same are necessary for the ownership, maintenance, management and operation of the Borrowing Base Properties. Borrower shall, and shallcause each Borrowing Base Entity to, qualify to do business and shall remain in good standing under the laws of the jurisdiction in which the applicable Borrowing Base Property is located, as and to the extent required for the ownership,maintenance, management and operation of the applicable Borrowing Base Property.*

*Section 7.1.27 Title toProperty. Borrower shall, and shall cause each Borrowing Base Entity to, warrant and defend (a) the title to the Borrowing Base Properties and every part thereof, subject only to Liens and other encumbrances permitted hereunder (includingPermitted Borrowing Base Liens) and (b) the validity and priority of the Liens of the First Lien Mortgages and the other Loan Documents on the Borrowing Base Properties, subject*

 

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*only to Liens and other encumbrances permitted hereunder (including Permitted Borrowing Base Liens), in each case against the claims of all Personswhomsoever. Borrower shall reimburse Administrative Agent for any losses, costs, damages or expenses (including reasonable attorneys’ fees and court costs) incurred by Administrative Agent if an interest in a Borrowing Base Property is claimedby another Person, other than as permitted hereunder.*

*Section 7.1.28 Title Insurance. Borrower shall,and shall cause each Borrowing Base Entity to, maintain coverage under each Title Policy in an amount equal to at least sixty percent (60%) of the Appraised Value for each Borrowing Base Property as shown on the most recent Acceptable Appraisalwith respect to such Borrowing Base Property; provided, however, Borrower and the Borrowing Base Entity shall not be required to increase the amount of coverage under any Title Policy if such increase would cause the aggregate amountof coverage for all Borrowing Base Properties to exceed an amount equal to Four Hundred Ninety Five Million Dollars ($495,000,000); provided, further, that Borrower shall not be required to increase the amount of coverage more thantwice in any calendar year. Within fifteen (15) Business Days after Borrower’s receipt of an Acceptable Appraisal that requires an increase in coverage, Borrower shall, or shall cause the applicable Borrowing Base Entity to, deliver toAdministrative Agent (i) a title continuation letter, showing all matters recorded on title since the later of the issuance of the Title Policy and the most recent title continuation letter and (ii) evidence of a fully-paid endorsement tothe Title Policy in an amount so increasing such coverage. Borrower shall not, and shall not permit a Borrowing Base Entity to, reduce the coverage under each Title Policy.*

“*Section 7.1.29 Costs of Enforcement. In the event (a) that this Agreement or the First Lien Mortgages are foreclosedupon in whole or in part or that this Agreement or the First Lien Mortgages are put into the hands of an attorney for collection, suit, action or foreclosure, (b) of the foreclosure of any security agreement prior to or subsequent to thisAgreement in which proceeding Administrative Agent is made a party, or a mortgage prior to or subsequent to the First Lien Mortgages in which proceeding Administrative Agent is made a party, or (c) of the bankruptcy, insolvency, rehabilitationor other similar proceeding in respect of Borrower, any Borrowing Base Entity or any of their constituent Persons or an assignment by Borrower, any Borrowing Base Entity or any of its constituent Persons for the benefit of its creditors, thenBorrower, its successors or assigns, shall, and shall cause such Borrowing Base Entity, its successors and assigns, to be chargeable with and agrees to pay all costs of collection and defense, including reasonable attorneys’ fees and costs,incurred by Administrative Agent, the Lenders, Borrower or such Borrowing Base Entity in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, together with all required service or usetaxes.*

*Section 7.1.30 Notices; Leases and REAs. Borrower shall, and shall cause each Borrowing BaseEntity to, promptly after receipt thereof, deliver to Administrative Agent a copy of any notice received with respect to the REAs and the Leases claiming that Borrower or such Borrowing Base Entity is in default in the performance or observance ofany of the material terms, covenants or conditions of any of the REAs or the Leases.*

 

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*Section 7.1.31 Taxes. Borrower shall, or shall cause the applicableBorrowing Base Entity to, pay all Impositions now or hereafter levied or assessed or imposed against a Borrowing Base Property or any part thereof prior to the imposition of any interest, charges or expenses for the non-payment thereof and shall payall Other Charges on or before the date they are due. Nothing contained herein shall be deemed to require Borrower to pay, or cause to be paid, any Imposition or to satisfy any Lien, or to comply with any legal requirement, so long as Borrower is ingood faith, and by proper legal proceedings, where appropriate, diligently contesting the validity, amount or application thereof, provided that in each case, at the time of the commencement of any such action or proceeding, and during the pendencyof such action or proceeding, (i) no monetary Event of Default shall exist and be continuing hereunder, (ii) Borrower shall keep Administrative Agent informed of the status of such contest at reasonable intervals, (iii) adequatereserves with respect thereto are maintained on Borrower’s books in accordance with GAAP, (iv) either such contest operates to suspend collection or enforcement as the case may be, of the contested Imposition, Lien or legal requirement andsuch contest is maintained and prosecuted continuously and with diligence or the Imposition or Lien is bonded, and (v) in the case of any Insurance Requirement, the failure of Borrower to comply therewith shall not impair the validity of anyinsurance required to be maintained by Borrower under the Loan Documents or the right to full payment of any claims thereunder. Notwithstanding the foregoing, the creation of any such reserves or the furnishing of any bond, Borrower promptly shallcomply with any contested legal requirement or Insurance Requirement or shall pay any contested Imposition or Lien, and compliance therewith or payment thereof shall not be deferred, if, at any time the Property or any portion thereof shall be, inAdministrative Agent’s reasonable judgment, in imminent danger of being forfeited or lost or Administrative Agent or Lenders are likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminatedor discontinued adversely to Borrower, Borrower shall deliver to Administrative Agent reasonable evidence of Borrower’s compliance with such contested Imposition, Lien, legal requirements or Insurance Requirements, as the case may be.*

*Section 7.1.32 Leases.*

*(a) Except as otherwise provided in this Section 7.1.32, Borrower shall not, and shall cause the Borrowing Base Entitiesnot to, enter into any Lease with a Tenant (a “New Lease”) or, to the extent the same would cause a Material Adverse Effect, consent to the assignment of, modify or terminate any Lease, without the prior written consent ofAdministrative Agent which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing sentence, provided no Event of Default shall have occurred, Borrower and a Borrowing Base Entity may, in the ordinary course of business,enter into a New Lease, without Administrative Agent’s prior written consent, that satisfies each of the following conditions: (i) such New Lease contains material economic terms that are at least equal to the then prevailing market ratefor similar properties in such location for the entire term of such New Lease and (ii) with respect to each Borrowing Base Property, after giving effect to any New Lease, the amount of aggregate leased square footage at such Borrowing BaseProperty shall not exceed the*

 

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*amount of aggregate leased square footage at such Borrowing Base Property as of the Third Amendment Closing Date, as such amount is set forth onSchedule XV (such limitation for each Borrowing Base Property, the “Leasing Threshold”); provided, however, with respect solely to the Four Seasons Washington, D.C., Borrower, or the Borrowing Base Entities ofthe Four Seasons Washington, D.C. may exceed the Leasing Threshold applicable thereto by up to eleven thousand (11,000) square feet by entering into a New Lease, but only with the prior written consent of Administrative Agent, which consentshall not be unreasonably withheld, delayed or conditioned, unless such New Lease (A) is on customary terms as leases for similar tenancies demising space in similar hotel properties located in the same neighborhood as such Borrowing BaseProperty and (B) provides that the demised premises thereunder shall only be used for retail purposes or services ancillary to the operation of the Four Seasons Washington, D.C.*

*(b) Upon the execution of any New Lease Borrower shall deliver to Administrative Agent an executed copy of the New Lease.*

*(c) Borrower shall, and shall cause each Borrowing Base Entity to, (i) promptly perform and observe all of thematerial terms, covenants and conditions required to be performed and observed by Borrower and such Borrowing Base Entities under the Leases and the REAs, if the failure to perform or observe the same would have a Material Adverse Effect and(ii) exercise, within ten (10) Business Days after a written request by Administrative Agent, any right to request from the Tenant under any Lease, or the party to any REAs a certificate with respect to the status thereof.*

*(d) All New Leases entered into by Borrower and any Borrowing Base Entities after the Third Amendment Closing Date shall by theirexpress terms be subject and subordinate to this Agreement and the First Lien Mortgages (through a subordination provision contained in such Lease or otherwise) and shall provide that if Administrative Agent agrees to a Non-Disturbance Agreementpursuant to Section 7.1.32(f), the Person holding any rights thereunder shall attorn to Administrative Agent or any other Person succeeding to the interests of Administrative Agent upon the exercise of its remedies hereunder or anytransfer in lieu thereof on the terms set forth in this Section 7.1.32.*

*(e) Each New Lease entered intofrom and after the Third Amendment Closing Date shall provide that in the event of the enforcement by Administrative Agent of any remedy under this Agreement or the First Lien Mortgages, if Administrative Agent agrees to a Non-Disturbance Agreementpursuant to Section 7.1.32(f), the Tenant under such Lease shall, at the option of Administrative Agent or of any other Person succeeding to the interest of Administrative Agent as a result of such enforcement, attorn to AdministrativeAgent or to such Person and shall recognize Administrative Agent or such successor in the interest as lessor under such Lease without*

 

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*change in the provisions thereof; provided, however, Administrative Agent or such successor in interest shall not be liable for or bound by(i) any payment of an installment of rent or additional rent made more than thirty (30) days before the due date of such installment, (ii) any act or omission of or default by Borrower or the applicable Borrowing Base Entity under anysuch Lease (but the Administrative Agent, or such successor, shall be subject to the continuing obligations of the landlord to the extent arising from and after such succession to the extent of Administrative Agent’s, or such successor’s,interest in the Borrowing Base Property), (iii) any credits, claims, setoffs or defenses which any Tenant may have against Borrower or the applicable Borrowing Base Entity, (iv) any obligation under such Lease to maintain a fitnessfacility at the Borrowing Base Property, (v) any obligation on Borrower’s or the applicable Borrowing Base Entity’s part, pursuant to such Lease, to perform any tenant improvement work or (vi) any obligation on Borrower’s orthe applicable Borrowing Base Entity’s part, pursuant to such Lease, to pay any sum of money to any Tenant. Each such New Lease shall also provide that, upon the reasonable request by Administrative Agent or such successor in interest, theTenant shall execute and deliver an instrument or instruments confirming such attornment.*

*(f) Administrative Agenton behalf of the Lenders shall enter into, and, if required by applicable law to provide constructive notice or requested by a Tenant, record in the county where the subject Property is located, a subordination, attornment and non-disturbanceagreement, substance substantially similar to the form attached to this Agreement as Exhibit L (a “Non-Disturbance Agreement”), with any Tenant (other than an Affiliate of Borrower or a Borrowing Base Entity) entering into aLease permitted hereunder or otherwise consented to by Lender within ten (10) Business Days after written request therefor by Borrower, provided that such request is accompanied by an officer’s certificate stating that such Lease compliesin all material respects with this Section 7.1.32. All reasonable third party costs and expenses incurred by Administrative Agent in connection with the negotiation, preparation, execution and delivery of any Non-Disturbance Agreement,including, without limitation, reasonable attorneys’ fees and disbursements, shall be paid by Borrower (in advance, if requested by Lender).*

*Section 7.1.33 Account Pledges. On the Third Amendment Closing Date, Borrower shall cause the Operating Lessees of each Borrowing Base Property to grant to Administrative Agent a valid, first liensecurity interest in (i) the Accounts and all cash, checks, drafts, securities entitlements, certificates, instruments and other property, including, without limitation, all deposits and/or wire transfers from time to time deposited or held in,credited to or made to Accounts, (ii) all interest, dividends, cash, instruments, securities entitlements and other property from time to time received, receivable or otherwise payable in respect of, or in exchange for, any or all of theforegoing or purchased with funds from the Accounts and (iii) to the extent not covered by clauses (i) or (ii) above, all proceeds (it being agreed that solely with respect to the Borrowing Base Properties*

 

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*located in the United States, the term “proceeds” shall have the meaning set forth in the Uniform Commercial Code of the State in which theapplicable Borrowing Base Property is located) of any or all of the foregoing. Without Administrative Agent’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed, Borrower shall not, and shall not permitthe Borrowing Base Entities to, close any of the Accounts, nor take any action or omit to take any action that would result in the monies payable to the Accounts being deposited in accounts other than the Accounts.*”. 

*Section 7.1.34 Certificate of Occupancy. Borrower has informed Administrative Agent and the Lenders that (i) nocertificate of occupancy has been obtained or is required with respect to the Four Seasons Mexico City and (ii) that a certificate of occupancy has been lost or misplaced, as set forth in Section 4.1.12(a), with respect to theMarriott Lincolnshire. Borrower hereby agrees that if at any time any applicable Governmental Authority requires such a certificate of occupancy to be obtained, then Borrower shall cause such certificate to be obtained as and to the extent sorequired and shall promptly deliver a copy of same to Administrative Agent.*

**1.4.13**Section 7.2.2(b) of the OriginalAgreement is hereby deleted in its entirety and the following is hereby inserted in lieu thereof: 

“*(b) UnsecuredIndebtedness incurred in connection with Permitted Construction Indebtedness, subject to compliance with the covenants set forth in Section 7.2.9, not to exceed Fifty Million Dollars ($50,000,000) in aggregate principal amount at anytime; provided, however, that unless and until Borrower elects the Alternative Capex/Investments Basket, Borrower will not, and will not permit Guarantor or any of Borrower’s or Guarantor’s respective Subsidiaries to, create,incur, assume or suffer to exist or otherwise become liable for any additional Indebtedness under this Section 7.2.2(b);*”. 

**1.4.14**Section 7.2.3 of the Original Agreement is hereby amended to insert the following after the words “Borrowing Base Properties” in the last line of the first paragraph thereof: 

“, *Permitted Borrowing Base Liens and*” 

**1.4.15**Sections 7.2.4(a) through (c) of the Original Agreement are hereby deleted in their entirety and the following is hereby inserted in lieu thereof: 

**“*(a) Minimum Total Fixed Charge Coverage Ratio.*

*(i) Borrower will not permit the Total Fixed Charge Coverage Ratio, as of the end of any Fiscal Quarter, to be less than 1.0:1.0;provided, however, that, subject to clauses (ii) and (iii) below, for up to four (4) consecutive Fiscal Quarters, Borrower may elect once and only once, upon not less than ten (10) Business Days’ prior writtennotice to Administrative Agent, to reduce such ratio to 0.90:1.0 (the “Low Fixed Charge Covenant Period”). From and after Borrower’s election to implement a Low Fixed Charge Covenant*

 

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*Period, the Advance Rate will be permanently reduced by five (5) percentage points from its then current percentage (subject to further reductionpursuant to Section 7.1.22(f)). During the Low Fixed Charge Coverage Period, neither Borrower nor Guarantor may authorize, declare, or pay any amount of preferred Dividends in cash or in kind, except to the extent permitted pursuant toSection 7.2.6(c). From and after the expiration of the Low Fixed Charge Covenant Period, Borrower will not permit the Total Fixed Charge Coverage Ratio, as of the end of any Fiscal Quarter, to be less than 1.0:1.0.*

*(ii) Notwithstanding anything to the contrary contained herein, from and afterthe earliest of (A) the first (1st) day of the Extension Term, (B) the date on which Borrower elects the Alternative Capex/InvestmentsBasket, or (C) except to the extent paid pursuant to Section 7.2.6(c), the date on which Borrower resumes payment of any common Dividends in cash or in kind, (1) Borrower will not permit the Total Fixed Charge Coverage Ratio,as of the end of any Fiscal Quarter, to be less than 1.15:1.0 and (2) the Low Fixed Charge Covenant Period will no longer be available.*

*(iii) Notwithstanding anything to the contrary contained herein, in the eventthat the Initial Maturity Date occurs during the Low Fixed Charge Covenant Period, the Low Fixed Charge Covenant Period shall be deemed to have expired as of the Initial Maturity Date, regardless of whether the Initial Maturity Date occurs prior tothe end of the fourth (4th) Fiscal Quarter of the Low Fixed Charge Covenant Period.*

*(iv) Notwithstanding anything to the contrary contained herein, from and after payment of any Catch-Up Amounts, Borrower will notpermit the Total Fixed Charge Coverage Ratio, as of the end of any Fiscal Quarter, to be less than 1.10:1.00.*

*(b)Borrower will not permit the Total Leverage Ratio to be greater than .80 to 1.0.*

*(c) Borrower will not permit, asof any date, Consolidated Tangible Net Worth to be less than an amount equal to Six Hundred Million Dollars ($600,000,000) plus seventy-five percent (75%) of the net proceeds to Guarantor of any new issuances of common Capital Stock butexcluding therefrom (x) the proceeds of any common Capital Stock of Guarantor or Borrower used in a transaction or a series of transactions to redeem all or any portion of an outstanding issue of Capital Stock (including payment in connectiontherewith of any accrued Dividends in accordance herewith) or (y) Capital Stock of Guarantor or Borrower issued to discharge Indebtedness.*”. 

 

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**1.4.16**Section 7.2.4(d) of the Original Agreement is hereby amended by inserting thefollowing after the last sentence thereof: 

“*Notwithstanding anything to the contrary contained herein other than as set forth inthe immediately succeeding sentence, Borrower shall not incur, or permit to be incurred after the Third Amendment Closing Date, any Construction Costs of the Consolidated Group (other than Construction Costs relating to projects in progress as setforth on Schedule XI, which for the avoidance of doubt excludes any projects that are currently in design or pre-development stage, such as the La Solana project) once such Construction Costs are equal to, in the aggregate, Fifty MillionDollars ($50,000,000) (the “Capex/Investments Basket”). Notwithstanding the foregoing, provided that (A) no Default has occurred and is continuing and (B) the Total Fixed Charge Coverage Ratio is not less than 1.15:1.0calculated as of the previous Fiscal Quarter, Borrower may, upon not less than ten (10) days’ prior written notice to Administrative Agent (which notice shall contain an officer’s certificate certifying as to Borrower’scompliance with clauses (A) and (B) above), incur Construction Costs after the Third Amendment Closing Date that shall not exceed, as of any date, ten percent (10%) of Gross Asset Value (the “Alternative Capex/InvestmentsBasket”). The election by Borrower to so utilize the Alternative Capex/Investments Basket shall be deemed to be permanent, and the Capex/Investments Basket will then no longer be available. Any payments made by Borrower, Guarantor or anySubsidiary that is not a Non-Borrowing Base Subsidiary to reduce the principal amount of any Indebtedness owed by any Non-Borrowing Base Property Subsidiary shall reduce the Capex/Investments Basket or Alternative Capex/Investments Basket, asapplicable.*”. 

**1.4.17**Section 7.2.6 of the Original Agreement is hereby deleted in its entirety and thefollowing is hereby inserted in lieu thereof: 

**“*Section 7.2.6 Restricted Payments, etc.*

*(a) Borrower will not, nor will Borrower permit Guarantor or any of Borrower’s or Guarantor’s respectiveSubsidiaries to, authorize, declare or pay any Dividends, except that:*

*(i) any Subsidiary of Borrower mayauthorize, declare and pay Dividends to Borrower or to any Subsidiary of Borrower;*

*(ii) except as provided inclause (a)(i) above or clause (c) below, Guarantor and Borrower may not authorize, declare or pay any amount of Dividends payable to holders of common Capital Stock or operating partnership stock in cash or in kind until the Total Fixed ChargeCoverage Ratio exceeds 1.3:1.0. Once the Total Fixed Charge Coverage Ratio exceeds 1.3:1.0, Guarantor, Borrower*

 

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*and any of their respective Subsidiaries may authorize, declare or pay Dividends payable to holders of common Capital Stock or operating partnership stockfrom time to time (in addition to those permitted pursuant to the preceding clause (a)(i)), so long as (A) no Event of Default exists at the time of the respective authorization, declaration or payment or would exist immediately after givingeffect thereto, and (B) calculations are made by Borrower establishing compliance with the financial covenants contained in Section 7.2.4 for the Test Period, on a pro forma basis (giving effect to the payment of the applicableDividend);*

*(iii) except as provided in clause (a)(i) above or clause (c) below, Guarantor and Borrower may notauthorize, declare or pay any amounts to holders of preferred Capital Stock in excess of the amounts owed thereto which accrued with respect to the most recent Fiscal Quarter (“Catch-Up Amounts”) for prior Fiscal Quarters until theTotal Fixed Charge Coverage Ratio exceeds 1.15:1.00 for the prior two (2) consecutive Fiscal Quarters (such ratio shall be calculated for both quarters using a dividend amount paid to holders of preferred Capital Stock equal to the greater of(a) distributions on preferred partnership units payable by Borrower for the latest Fiscal Quarter multiplied by four (4) and (b) distributions on preferred partnership units payable by Borrower for the latest Fiscal Quarter plus anyCatch Up Amounts being paid at such time); provided, however, that any transaction or series of transactions in which the common or preferred Capital Stock of Guarantor or Borrower is exchanged for additional common or preferredCapital Stock of Guarantor or Borrower shall not be deemed the payment of a Catch-Up Amount for the purposes of this Section 7.2.6(a)(iii) or Section 7.2.4(a)(iv);*

*(iv) provided no Event of Default exists at the time of the respective authorization, declaration or payment or would existimmediately after giving effect thereto and subject to clause (iii) above, Guarantor, Borrower and their respective Subsidiaries may authorize, declare or pay any amount of preferred Dividends;*

*(v) For the avoidance of doubt, nothing in this Agreement shall be interpreted as prohibiting Dividends from Subsidiaries to holdersof Capital Stock in Joint Ventures; and*

*(vi) Guarantor and Borrower may purchase and exercise Capped Call Options.*

*(b) No redemption, retirement, purchase or other acquisition or similar transaction, of any class ofBorrower’s or Guarantor’s outstanding Capital Stock (each, a “Share Repurchase”) shall be permitted without the*

 

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*consent of the Required Lenders, and (in any event) if any Event of Default shall have occurred and be continuing. The foregoing restriction shall not bedeemed to apply to (i) the purchase or exercise of Capped Call Options by Borrower or Guarantor, (ii) a reverse stock split pursuant to the terms of Section 7.1.16 or (iii) a transaction or series of transactions in whichan outstanding issue of the Capital Stock of Guarantor or Borrower is replaced, redeemed, or exchanged with a new issue of Capital Stock or the proceeds thereof, as applicable (or in each case portions thereof).*

*(c) No Dividend in cash or in kind may be paid or made by Borrower or Guarantor under this Section 7.2.6 at any time thatan Event of Default shall have occurred and be continuing or would result from any such Dividend or other payment; provided, however, that notwithstanding the restrictions of Section 7.2.6(a) or the first part of thissentence, for so long as Guarantor qualifies, or has taken all other actions necessary to qualify, as a “real estate investment trust” under the Code during any Fiscal Year of Guarantor, Borrower may authorize, declare and pay quarterlycash Dividends (which may be based on estimates) to Guarantor when and to the extent necessary for Guarantor to distribute, and Guarantor may so distribute, cash Dividends to its shareholders generally in an aggregate amount not to exceed theminimum amount necessary for Guarantor to maintain its tax status as a real estate investment trust, unless Borrower receives notice from Administrative Agent of any monetary Event of Default or other material Event of Default.*

*(d) For avoidance of doubt, a Dividend paid or satisfied with the issuance of Capital Stock shall not be deemed to be a Dividend“in kind”.*”. 

**1.4.18**Section 7.2 of the Original Agreement is hereby amended by inserting thefollowing at the end thereof: 

“*Section 7.2.11 Borrowing Base Entity Organic Documents. Borrower shall not,and shall not permit any Borrowing Base Entity to, amend or modify any of its Organic Documents without Administrative Agent’s consent, other than to reflect any change in capital accounts, contributions, distributions or allocations or to makeother changes that do not have a Material Adverse Effect.*

*Section 7.2.12 Partition. Borrower shall not,and shall not permit any Borrowing Base Entity to, partition any Borrowing Base Property.*

*Section 7.2.13Transfer Assets. Borrower shall not, and shall not permit any Borrowing Base Entity to, Transfer any personal property unless (i) such Transfer is in the ordinary course of business, (ii) such personal property is replaced withproperty of reasonably equivalent value (iii) is required pursuant to the terms of the applicable Management Agreement or (iv) such Transfer is permitted by another provision of this Agreement.*

 

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*Section 7.2.14 Manager.*

*(a) With respect to each Borrowing Base Property, Borrower shall not, and shall not permit any Borrowing Base Entity to, without theprior written consent of Administrative Agent, which consent shall not be unreasonably withheld or delayed, (i) materially modify, change, supplement, alter or amend any Management Agreement or waive or release any of its right and remediesunder a Management Agreement that would have a Material Adverse Effect or would otherwise modify, supplement or alter the provisions relating to casualty, condemnation or the disposition of insurance proceeds or (ii) replace the Manager withany Person other than an Approved Manager or Approved Luxury Manager, as applicable. Administrative Agent shall be obligated to provide its written consent to any proposed amendment, modification or supplement to a Management Agreement,provided that (A) Administrative Agent is obligated to provide such consent pursuant to the provisions of the applicable Manager’s Consent to Assignment and Estoppel Certificate, dated as of the Third Amendment Closing Date and(B) such amendment, modification or supplement is permitted to be made by Borrower pursuant to the provisions of this Section 7.2.14(a).*

*(b) In the event that Borrower or any Borrowing Base Entity desires to retain a new Manager, then (i) such new Manager shall bean Approved Manager or Approved Luxury Manager, (ii) Borrower shall deliver to Administrative Agent an updated or replacement Acceptable Appraisal for such Borrowing Base Property and, notwithstanding the provisions ofSection 7.1.7, Borrower shall reimburse Administrative Agent the costs thereof within thirty (30) days after receipt by Borrower of an invoice therefor and (iii) the Management Agreement with such Approved Manager or ApprovedLuxury Manager shall either be (x) on terms that in the aggregate (i.e., taken as a whole) are no less favorable to the Borrowing Base Entity than customary market terms or (y) approved by the Required Lenders, such approval not tobe unreasonably withheld or delayed .”.*

*Section 7.2.15 Zoning Reclassification. Without the priorwritten consent of Administrative Agent, Borrower shall not, and shall not permit a Borrowing Base Entity to (a) initiate or consent to any zoning reclassification of any portion of a Borrowing Base Property that could reasonably be expected tohave a material adverse effect on such Property, (b) seek any variance under any existing zoning ordinance that could result in the use of a Borrowing Base Property becoming a non-conforming use under any zoning ordinance or any otherapplicable land use law, rule or regulation, or (c) allow any portion of a Borrowing Base Property to be used in any manner that could result in the use of such Borrowing Base Property becoming a non-conforming use under any zoning ordinance orany other applicable land use law, rule or regulation.*”. 

**Section 1.5 Article VIII Amendments**. 

**1.5.1**Section 8.1.3 of the Original Agreement is hereby deleted in its entirety and the following is inserted in lieu thereof:

“*Section 8.1.3 Non-Performance of Certain Covenants and Obligations. Borrower or any Borrowing Base Entityshall (a) default in the due performance and observance of any of its obligations under Section 7.1.1(f), Section 7.1.2 (but only to the extent arising from the failure of Guarantor or Borrower to preserve and keep infull force and effect its existence), Section 7.1.16, Section 7.1.22(b), or Section 7.2 hereof, (b) default in the due performance and observance of any of its obligations under Section 7.1.1(g),(k) or (m), Section 7.1.6, Section 7.1.14, or Section 7.1.22(c) hereof or (c) default in the due performance and observance of any of its obligations under Section 3(d), Section 4or Section 8 of the First Lien Mortgages and such default shall continue unremedied for a period of ten (10) days (provided, however, solely in the case of a default under Section 7.1.6 hereof, AdministrativeAgent may, in its sole discretion, extend such ten (10) day period, but in no event by more than twenty (20) days).*”. 

 

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**1.5.2**Section 8.1.4 of the Original Agreement is hereby amended to insert thefollowing after the words “The Borrower” at the beginning of the first sentence thereof: 

“*or any Borrowing BaseEntity*”. 

**1.5.3**Section 8.1.5 of the Original Agreement is hereby amended to insert the following after thewords “Section 8.1.1” in the second parenthetical therein: 

“*or Indebtedness with respect to Non-Borrowing BaseProperty Subsidiaries*”. 

**1.5.4**Section 8.1.6 of the Original Agreement is hereby amended to insert thefollowing after “respective Subsidiaries” in the first sentence therein: 

“*(excluding Non-Borrowing BaseProperty Subsidiaries)*”. 

**1.5.5**Section 8.1.8 of the Original Agreement is hereby amended to insert thefollowing at the end thereof: 

“*(other*than*with respect to Non-Borrowing Base Property Subsidiaries).*”.

**1.5.6**Section 8.1.9 of the Original Agreement is hereby amended to insert the following after the words “exceptfor” in the first parenthetical thereof: 

“*Non-Borrowing Base Property Subsidiaries or*”. 

**1.5.7**Section 8.1 of the Original Agreement is hereby amended by inserting the following at the end thereof: 

“*Section 8.1.17 Enforceability. If any Lien granted by the First Lien Mortgages, in whole or in part, shall terminate orshall cease to be effective or shall cease to be a perfected first priority Lien, subject to the Permitted Borrowing Base Liens (except in any of the foregoing cases in accordance with the terms hereof or under any other Loan Document or by reasonof any affirmative act of Lender).*

*Section 8.1.18 Management Agreement. If the Management Agreement isterminated and an Approved Manager or Approved Luxury Manager is not appointed as a replacement manager pursuant to the provisions of Section 7.2.14 within sixty (60) days after such termination.*

 

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*Section 8.1.19 Easements. Except as expressly permitted pursuant to theLoan Documents, if Borrower or any other Person grants any easement, covenant or restriction (other than the Permitted Borrowing Base Liens) over a Borrowing Base Property or if Borrower or any Borrowing Base Entity shall default beyond theexpiration of any applicable cure period under any existing easement, covenant or restriction which affects a Borrowing Base Property, the default of which shall have a Material Adverse Effect.*

*Section 8.1.20 Ground Leases. If (A) a Property subject to a Ground Lease is a Borrowing Base Property and(B) there shall occur any default by the applicable Property Owner, as lessee under a Ground Lease, in the observance or performance of any term, covenant or condition of a Ground Lease on the part of such Property Owner to be observed orperformed, and said default (i) would permit the Fee Owner to terminate such Ground Lease and (ii) is not cured or such Borrowing Base Property is not released pursuant to the provisions of Section 7.1.22 prior to theexpiration of any applicable grace or cure period therein provided.*”. 

**1.5.8**Section 8.3 of the OriginalAgreement is hereby deleted in its entirety and the following is hereby inserted in lieu thereof: 

**“*Section8.3 Action if Other Event of Default.*

*(a) If any Event of Default (other than any Event of Default describedin clauses (a) through (e) of Section 8.1.9 with respect to the Borrower) shall occur for any reason, whether voluntary or involuntary, and be continuing, Administrative Agent, upon the direction or with theconsent of the Required Lenders, shall take such action that Administrative Agent deems advisable to protect and enforce the rights of the Lenders against Borrower and in the Borrowing Base Properties, including, without limitation, (i) bywritten notice to the Borrower declare all of the outstanding principal amount of the Loans and other Obligations (including Reimbursement Obligations) to be due and payable and/or the Revolving Loan Commitments (if not theretofore terminated) to beterminated, whereupon the full unpaid amount of the Loans and other Obligations shall be and become immediately due and payable, without further notice, demand or presentment, and the Commitments shall terminate and Borrower shall automatically andimmediately be obligated to deposit with Administrative Agent cash collateral in an amount equal to all Letter of Credit Outstandings and (ii) enforcing or availing itself of any or all rights or remedies as set forth in the Loan Documentsagainst Borrower and the Borrowing Base Properties, including, without limitation, all rights or remedies available at law or in equity.*

*(b) Unless waived in writing by Administrative Agent, and subject in all events to the express provisions of each Loan Document, upon the occurrence and during the continuance of an Event of Default, all or any oneor more of the rights, powers, privileges and other remedies available to*

 

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*Administrative Agent against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or atlaw or in equity may be exercised by Administrative Agent at any time and from time to time, whether or not all or any of the Indebtedness shall be declared due and payable, and whether or not Administrative Agent shall have commenced anyforeclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents with respect to the Borrowing Base Properties. Any such actions taken by Administrative Agent shall be cumulative and concurrentand may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Administrative Agent may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwiseaffecting the other rights and remedies of Administrative Agent permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Defaultis continuing (i) neither Administrative Agent nor the Lenders shall be subject to any one action or election of remedies law or rule and (ii) all liens and other rights, remedies or privileges provided to Administrative Agent and theLenders shall remain in full force and effect until Administrative Agent and the Lenders have exhausted all of its remedies against the Borrowing Base Properties and the First Lien Mortgages have been foreclosed, sold and/or otherwise realized uponin satisfaction of the Indebtedness or the Indebtedness has been paid in full.*

*(c) With respect to Borrower and theCollateral, nothing contained herein or in any other Loan Document shall be construed as requiring Administrative Agent or the Lenders to resort to the Borrowing Base Properties for the satisfaction of any of the Indebtedness, and AdministrativeAgent may seek satisfaction out of the Borrowing Base Properties or any part thereof, in its absolute discretion in respect of the Indebtedness. In addition, Administrative Agent shall have the right from time to time to partially foreclose thisAgreement and the First Lien Mortgages in any manner and for any amounts secured by this Agreement or the First Lien Mortgages then due and payable as determined by Administrative Agent in its sole discretion, including, without limitation, thefollowing circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal or interest, Administrative Agent may foreclose this Agreement and the First LienMortgages to recover such delinquent payments, or (ii) in the event Administrative Agent elects to accelerate less than the entire outstanding principal balance of the Loans, Administrative Agent may foreclose this Agreement and the First LienMortgages to recover so much of the principal balance of the Loans as Administrative Agent may accelerate and such other sums secured by this Agreement or the First Lien Mortgages as Administrative Agent may elect. Notwithstanding one or morepartial foreclosures, the Borrowing Base Properties shall remain subject to this Agreement and the First Lien Mortgages to secure payment of sums secured by this Agreement and the First Lien Mortgages and not previously recovered.”.*

 

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**Section 1.6 Article XI Amendment**

**1.6.1** The Original Agreement is hereby amended by inserting the following at the end thereof: 

*“ARTICLE XI*

*CONDOMINIUM*

*Section 11.1 Covenants.*

*11.1.1 Borrower shall, and shall cause the Punta Mita Borrowing Base Entities to, cause the Condominium Board to deliver toAdministrative Agent within sixty (60) days after written request, an estoppel certificate from the Condominium Board in the form required under the Condominium Documents (or if no form is required under the Condominium Documents, in a formreasonably acceptable to Administrative Agent); provided, however, that for so long as Borrower or the Borrowing Base Entities are diligently proceeding in good faith to obtain such estoppel certificate, Borrower’s failure toobtain such estoppel certificate shall not be deemed a Default.*

*11.1.2 Borrower shall, and shall cause the PuntaMita Borrowing Base Entities to, observe and perform each and every material term to be observed or performed by Punta Mita Borrowing Base Entities pursuant to the terms of the Condominium Documents.*

*11.1.3 Borrower shall promptly deliver to Lender a true and full copy of all notices of default received by Borrower or the Punta MitaBorrowing Base Entities with respect to any obligation or duty of the Punta Mita Borrowing Base Entities under the Condominium Documents. Without the prior written consent of Administrative Agent (which approval shall not be unreasonably withheld,conditioned or delayed), Borrower shall not, and shall not permit the Punta Mita Borrowing Base Entities to, approve or otherwise agree or consent to (by affirmative action or inaction on its part) any decisions that require the concurrence or voteof the Punta Mita Borrowing Base Entities pursuant to the Condominium Documents that could reasonably be expected to have a material adverse effect on the Units or the Common Elements.*

*11.1.4 Without the prior written consent of Administrative Agent, Borrower shall not, and shall not permit the Punta Mita BorrowingBase Entities to (i) institute any action or proceeding for partition of the Units, under the Condominium Documents that could reasonably be expected to have a material adverse effect on the Units, (ii) vote for or consent to anymodification of, amendment to or relaxation in the enforcement of the*

 

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*Condominium Documents that could reasonably be expected to have a material adverse effect on the Units or the Common Elements (taken as a whole) or(iii) in the event of damage to or destruction of the Units, the Common Elements, vote in opposition to a motion to repair, restore or rebuild the same contrary to the provisions of Article XII hereof.*

*11.1.5 Without the prior written consent of Administrative Agent, Borrower shall not, and shall not permit the Punta Mita BorrowingBase Entities to, vote for, agree to or acquiesce in any termination of the Condominium Documents that could reasonably be expected to have a material adverse effect on the Units or the Common Elements (taken as a whole). Any agreement to whichBorrower or the Punta Mita Borrowing Base Entities is a party whereby any of the Condominium Documents is terminated or the Units are withdrawn therefrom (and replacement Condominium Documents reasonably approved by Administrative Agent are notsimultaneously recorded) shall constitute a Transfer prohibited under this Agreement.*

*Section 11.2Representations. Borrower hereby represents and warrants as follows:*

*11.2.1 To Borrower’s knowledge,the Condominium Documents are in full force and effect and there is no default, breach or violation existing thereunder by any party thereto and, to Borrower’s knowledge, no event has occurred, that, with the passage of time or the giving ofnotice, or both, would constitute a default, breach or violation by any party thereunder. The Punta Mita Borrowing Base Entities are not party to any other agreements or understandings other than the Condominium Documents with respect to the Units.*

*11.2.2 Neither the Third Amendment Transaction nor the exercise of any remedies by Administrative Agent permittedthereunder, will adversely affect Borrower’s or the Punta Mita Borrowing Base Entities’ rights under the Condominium Documents.*

*11.2.3 A Punta Mita Borrowing Base Entity owns fee simple title to the Sub-Condominium Unit RC-1/A of Sub-Condominium RC-1 of Punta Mita Condominium, Sub-Condominium Unit RC-1/B of Sub-Condominium RC-1 of PuntaMita Condominium, Sub-Condominium Unit RC-1/G of Sub-Condominium RC-1 of Punta Mita Condominium (collectively, the “Units”).*

*11.2.4 There have been no common charges, common expenses, unit expenses nor special levies assessed or levied against the Units by the Condominium Board except for annual maintenance fees. The annual maintenancefee for calendar year 2008 was $3,514,691.26 MXP plus VAT for a total of $4,041,894.95 MXP. The 2009 annual fees have yet to be billed.*

 

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*11.2.5 To the extent required under the Condominium Documents, the Condominium Boardhas received notice from the Punta Mita Borrowing Base Entities that the Units have been encumbered with the applicable First Lien Mortgage. Administrative Agent is permitted under the Condominium Documents as a mortgagee of the Units, and therecordation of the applicable First Lien Mortgage is permitted under the Condominium Documents.*

*11.2.6 Allobligations required to be performed by the Punta Mita Borrowing Base Entities prior to the date hereof in connection with the maintenance, repair and replacement of any portion of the Units have been satisfied.*

*11.2.7 To Borrower’s knowledge, all obligations and conditions under the Condominium Documents to be performed to date by eitherthe Condominium Board or the Punta Mita Borrowing Base Entities with respect to the Units have been satisfied.*

*11.2.8 To Borrower’s knowledge, there is no proposed amendment of the Condominium Documents.*

*11.2.9 To Borrower’s knowledge, there is no proposed termination of condominium status or transfer of any part of the Common Elements.*

*11.2.10 To Borrower’s knowledge, (i) no portion of the Condominium has been the subject of a Taking and (ii) there isno proposed Taking that affects any portion of the Units or the Condominium.*

*ARTICLE XII*

*CONDEMNATION AND INSURANCE PROCEEDS*

*Section 12.1 Notification. Borrower shall promptly notify Administrative Agent in writing upon obtaining knowledge (provided that knowledge of a Borrowing Base Entity shall be deemed to beimputed to Borrower) of (i) the institution of any proceedings relating to any Taking (whether material or immaterial) of, or (ii) the occurrence of any casualty, damage or injury to, a Borrowing Base Property or any portion thereof, therestoration of which is estimated by Borrower in good faith to cost more than the Casualty Amount. In addition, each such notice shall set forth such good faith estimate of the cost of repairing or restoring such casualty, damage, injury or Takingin reasonable detail if the same is then available and, if not, as soon thereafter as it can reasonably be provided.*

*Section 12.2 Proceeds.********In the event of any Taking of or any casualty or other damage or injury to a Borrowing Base Property, (A) Borrower’s and any Borrowing Base Entity’s right, title andinterest in and to all compensation, awards, proceeds, damages, claims, insurance recoveries, causes and rights of action (whether accrued prior to or after the Third Amendment Closing Date), and (B) payments which Borrower or a Borrowing BaseEntity may receive or to which Borrower may become entitled with respect to a*

 

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*Borrowing Base Property or any part thereof other than payments received in connection with any liability or loss of rental value or business interruptioninsurance (collectively, “Proceeds”), in connection with any such Taking of, or casualty or other damage or injury to, a Borrowing Base Property or any part thereof are hereby assigned by Borrower and, in the case of such BorrowingBase Entity’s interest in the Proceeds, shall be caused by Borrower to be assigned to Administrative Agent and, except as otherwise herein provided, shall be paid to Administrative Agent. Borrower shall and shall cause the applicable BorrowingBase Entity to, in good faith and in a commercially reasonable manner, file and prosecute the adjustment, compromise or settlement of any claim for Proceeds and, subject to Borrower’s, the applicable Manager’s or such Borrowing BaseEntity’s right to receive the direct payment of any Proceeds as herein provided, will cause the same to be held and applied in accordance with the provisions of this Agreement. Except upon the occurrence and during the continuance of an Eventof Default, Borrower or the applicable Borrowing Base Entity may settle any insurance claim with respect to Proceeds which does not exceed the Casualty Amount. Whether or not an Event of Default shall have occurred and be continuing, AdministrativeAgent shall have the right to approve, such approval not to be unreasonably withheld, any settlement which might result in any Proceeds in excess of the Casualty Amount, and Borrower or the applicable Borrowing Base Entity shall deliver or cause tobe delivered to Administrative Agent all instruments reasonably requested by Administrative Agent to permit such approval. Borrower shall pay all reasonable out-of-pocket costs, fees and expenses reasonably incurred by Administrative Agent(including all reasonable attorneys’ fees and expenses, the reasonable fees of insurance experts and adjusters and reasonable costs incurred in any litigation or arbitration), and interest thereon at a rate equal to the Alternate Base Rate thenin effect for Base Rate Loans plus the Applicable Margin for Base Rate Loans plus two percent (2%) to the extent not paid within ten (10) Business Days after delivery of a request for reimbursement by Administrative Agent, in connectionwith the settlement of any claim for Proceeds and seeking and obtaining of any payment on account thereof in accordance with the foregoing provisions. If any Proceeds are received by Borrower or the applicable Borrowing Base Entity and may beretained by Borrower or such Borrowing Base Entity pursuant to this Section 12.2, such Proceeds shall, until the completion of the related Work, be held in trust for Administrative Agent (but shall not required to be segregated fromother funds of Borrower or such Borrowing Base Entity) to be used to pay for the cost of the Work in accordance with the terms hereof, and in the event such Proceeds exceed the Casualty Amount, such Proceeds shall be forthwith paid directly to andheld by Administrative Agent in a Proceeds reserve account in trust for Borrower, in each case to be applied or disbursed in accordance with this Section 12.2. If an Event of Default shall have occurred and be continuing, or if Borroweror the applicable Borrowing Base Entity fails to file and/or prosecute any insurance claim for a period of fifteen (15) Business Days following Borrower’s receipt of written notice from Administrative Agent, Borrower hereby irrevocablyempowers, and shall cause the applicable Borrowing Base Entity to irrevocably empower, Administrative Agent, in the name of Borrower or such Borrowing Base Entity, as applicable, as its true and lawful attorney-in-fact, to file and prosecute suchclaim (including settlement thereof) with counsel satisfactory to Administrative Agent and to collect and to make receipt for any such payment, all at Borrower’s expense (including payment of and interest thereon at a rate equal to theAlternate Base Rate then in effect for Base Rate Loans plus the Applicable*

 

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*Margin for Base Rate Loans plus two percent (2%) for any amounts advanced by Administrative Agent pursuant to this Section 12.2).Notwithstanding anything contained in the Loan Documents, including this Article XII, to the contrary, all rights, restrictions and provisions relating to Takings or casualties shall be subject to the rights of Managers and the obligations ofProperties Owners and Operating Lessees under the applicable Management Agreements.*

*Section 12.3 MajorCasualty/Condemnation Events.********If a Major Casualty/Condemnation Event occurs, then Borrower shall (A) promptly deliver to Administrative Agent an updated or replacement Acceptable Appraisal reflecting the casualty orTaking at such Borrowing Base Property and, notwithstanding the provisions of Section 7.1.7, Borrower shall reimburse Administrative Agent the costs thereof within thirty (30) days after receipt by Borrower of an invoice therefor,(B) as soon as practicable after the occurrence of such Major Casualty/Condemnation Event, but in no event later than thirty (30) days after the occurrence of such Major Casualty/Condemnation Event, either (x) release such BorrowingBase Property from the lien of the applicable First Lien Mortgage pursuant to Section 7.1.22 (other than Section 7.1.22(f)(ii)) of this Agreement if Borrower is entitled to release such Borrowing Base Property underSection 7.1.22 (other than Section 7.1.22(f)(ii)) or (y) if such release is not permitted hereunder pursuant to Section 7.1.22 (other than Section 7.1.22(f)(ii)), restore the applicable Borrowing Base Propertypursuant to Section 12.4, provided that such restoration obligations set forth therein shall be subject to the casualty and condemnation provisions set forth in the applicable Management Agreement.*

*Section 12.4 Borrower or Borrowing Base Entity to Restore.*

*12.4.1 Provided Borrower has not released the applicable Borrowing Base Property pursuant to Section 12.3, promptly afterthe occurrence of any damage or destruction to all or any portion of a Borrowing Base Property or a Taking of a portion of such Borrowing Base Property, Borrower shall commence and diligently prosecute, or cause the applicable Borrowing Base Entityto commence and diligently prosecute, to completion, subject to Excusable Delays, the repair, restoration and rebuilding of such Borrowing Base Property (in the case of a partial Taking, to the extent it is capable of being restored) so damaged,destroyed or remaining after such Taking in full compliance with all material Legal Requirements and free and clear of any and all Liens except Permitted Borrowing Base Liens (such repair, restoration and rebuilding are sometimes hereinaftercollectively referred to as the “Work”). The plans and specifications shall require that the Work be done in a first-class workmanlike manner at least equivalent to the quality and character prior to the damage or destruction(provided, however, that in the case of a partial Taking, the applicable Borrowing Base Property restoration shall be done to the extent reasonably practicable after taking into account the consequences of such partial Taking), so thatupon completion thereof, such Borrowing Base Property shall be at least equal in general utility to the applicable Borrowing Base Entities prior to the damage or destruction; it being*

 

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*understood, however, that Borrower and the applicable Borrowing Base Entity shall not be obligated to restore such Borrowing Base Property to the precisecondition of such Borrowing Base Property prior to any partial Taking of, or casualty or other damage or injury to, such Borrowing Base Property. Subject to Borrower’s right to elect to release the applicable Borrowing Base Property pursuantto Section 12.3.1, Borrower shall be obligated to restore the Borrowing Base Property suffering a casualty or which has been subject to a partial Taking in accordance with the provisions of this Article XII at Borrower’s solecost and expense whether or not the Proceeds shall be sufficient, provided that, if applicable, the Proceeds shall be made available to Borrower by Administrative Agent in accordance with this Agreement.*

*12.4.2 Administrative Agent shall make the Proceeds that it is holding pursuant to the terms hereof (after payment of any reasonableout-of-pocket expenses actually incurred by Administrative Agent in connection with the collection thereof plus interest thereon at a rate equal to the Alternate Base Rate then in effect for Base Rate Loans plus the Applicable Margin for Base RateLoans plus two percent (2%) (from the date advanced through the date of reimbursement) to the extent the same are not paid within ten (10) Business Days after request for reimbursement by Administrative Agent) available to Borrower forpayment of or reimbursement of Borrower’s expenses incurred with respect to the Work, upon the terms and subject to the conditions set forth in paragraphs (a) through (d) below and in Section 12.5:*

*(a) at the time of loss or damage or at any time thereafter while Borrower or the applicable Borrowing Base Entity is holding anyportion of the Proceeds, there shall be no continuing Event of Default;*

*(b) if, at any time, the estimated cost ofthe Work (as estimated by Borrower or the Independent Architect referred to in clause (c) below, if applicable) shall exceed the Proceeds (a “Deficiency”) and for so long as a Deficiency shall exist, Administrative Agent shallnot be required to make any Proceeds disbursement to Borrower unless Borrower (within a reasonable period of time after receipt of such estimate), at its election, either deposits with or delivers to Administrative Agent (A) cash and CashEquivalents in an amount equal to the estimated cost of the Work less the Proceeds, or (B) such other evidence of Borrower’s ability to meet such excess costs and which is reasonably satisfactory to Administrative Agent;*

*(c) Each of Administrative Agent and the Independent Architect shall have reasonably approved the plans and specifications for theWork reasonably estimated to exceed five percent (5%) of the Appraised Value of such Borrowing Base Property immediately prior to such casualty or Taking and any change orders in connection with such plans and specifications; and*

 

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*(d) Administrative Agent shall, within a reasonable period of time prior to requestfor initial disbursement, be furnished with an estimate of the cost of the Work accompanied, to the extent such estimate shall exceed five percent (5%) of the Appraised Value of such Borrowing Base Property immediately prior to such casualty orTaking, by an Independent Architect’s certification as to such costs and appropriate plans and specifications for the Work. Borrower shall restore, or shall cause to be restored, all Improvements such that when they are fully restored and/orrepaired, such Improvements and their contemplated use fully comply with all applicable Legal Requirements including zoning, environmental and building laws, codes, ordinances and regulations.*

*Section 12.5 Disbursement of Proceeds.*

*12.5.1 Disbursements of the Proceeds in cash and Cash Equivalents to Borrower hereunder shall be made from time to time (but not morefrequently than once in any month) by Administrative Agent but only for so long as no Event of Default shall have occurred and be continuing, as the Work progresses upon receipt by Administrative Agent of (i) an Officer’s Certificate datednot more than ten (10) Business Days prior to the application for such payment, requesting such payment or reimbursement and describing the Work performed that is the subject of such request, the parties that performed such Work and the actualcost thereof, and also certifying that such Work and materials are or, upon disbursement of the payment requested to the parties entitled thereto, will be free and clear of Liens other than Permitted Borrowing Base Liens, (ii) evidencereasonably satisfactory to Administrative Agent that (A) all materials installed and work and labor performed in connection with such Work have been paid for in full and (B) there exists no notices of pendency, stop orders, mechanic’sliens or notices of intention to file same (unless the same is required by state law as a condition to the payment of a contractor) or any liens or encumbrances of any nature whatsoever on the applicable Borrowing Base Property arising out of theWork which have not been either fully bonded to the satisfaction of Administrative Agent or discharged of record or in the alternative, fully insured to the satisfaction of Administrative Agent by the Title Company that issued the Title Policy orotherwise contested in accordance with Section 7.1.31 and (iii) an Independent Architect’s certificate certifying performance of the Work together with an estimate of the cost to complete the Work. No payment made prior to thefinal completion of the Work, as certified by the Independent Architect, except for payment made to contractors whose Work shall have been fully completed and from which final lien waivers have been received, shall exceed ninety percent(90%) of the value of the Work performed and materials furnished and incorporated into the Improvements*

 

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*from time to time, and at all times the undisbursed balance of said Proceeds together with all amounts deposited, bonded, guaranteed or otherwise providedfor pursuant to Section 12.4.2 above, shall be at least sufficient to pay for the estimated cost of completion of the Work; final payment of all Proceeds remaining with Administrative Agent shall be made upon receipt by AdministrativeAgent of a certification by an Independent Architect, as to the completion of the Work substantially in accordance with the submitted plans and specifications, final lien releases, and the filing of a notice of completion and the expiration of theperiod provided under the law of the state for the filing of mechanics’ and materialmens’ liens which are entitled to priority as to other creditors, encumbrances and purchasers, as certified pursuant to an Officer’s Certificate, anddelivery of a certificate of occupancy with respect to the Work, or, if not applicable, an Officer’s Certificate to the effect that a certificate of occupancy is not required.*

*12.5.2 If, after the Work is completed in accordance with the provisions hereof and Administrative Agent receives evidence that allcosts of completion have been paid, there are any excess Proceeds, such excess Proceeds shall be paid over to Borrower.*

*ARTICLE XIII*

*MAINTENANCE OF PROPERTY*

*Section 13.1 Maintenance of Property. Borrower shall keep and maintain, and cause the applicable Borrowing Base Entities to keep and maintain, the Borrowing Base Properties and every part thereof ingood condition and repair, subject to ordinary wear and tear, and, subject to Excusable Delays and the provisions of this Agreement with respect to damage or destruction caused by casualty events or Takings, shall not permit or commit any waste,impairment, or deterioration of any portion of the Borrowing Base Properties in any material respect. Borrower further covenants to do, and to cause the applicable Borrowing Base Entities to do, all other acts which from the character or use of theBorrowing Base Properties may be reasonably necessary to protect the security hereof, the specific enumerations herein not excluding the general. Borrower shall not remove or demolish, or permit the applicable Borrowing Base Entities to remove ordemolish, any Improvement on the Borrowing Base Properties except as the same may be necessary in connection with an Alteration or a restoration in connection with a Taking or casualty, or as otherwise permitted herein, in each case in accordancewith the terms and conditions hereof.*

*Section 13.2 Conditions to Alterations. Provided that no Event ofDefault shall have occurred and be continuing hereunder, Borrower shall have the right, without Administrative Agent’s consent, to undertake any alteration, improvement, demolition or removal of a Borrowing Base Property or any portion thereof(any such alteration, improvement, demolition or removal, an “Alteration”) so long as (i) Borrower provides Administrative Agent with prior written notice of any Material Alteration, and (ii) such Alteration is undertakenin accordance with the applicable provisions of this Agreement and*

 

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*the other Loan Documents, is not prohibited by any relevant REAs and the Leases and shall not, upon completion (giving credit to rent and other chargesattributable to Leases executed upon such completion), have a Material Adverse Effect on the value, use or operation of the applicable Borrowing Base Property taken as a whole or otherwise. Borrower shall deliver to Administrative Agent, forinformation purposes only and not for approval by Administrative Agent, detailed plans and specifications and cost estimates therefor, for any Material Alterations. Such plans and specifications may be revised at any time and from time to time byBorrower; provided that material revisions of such plans and specifications are filed with Administrative Agent, for information purposes only. All work done in connection with any Alteration shall be performed with due diligence in a goodand workmanlike manner, all materials used in connection with any Alteration shall not be less than the standard of quality of the materials currently used at the applicable Borrowing Base Property and all materials used shall be in accordance withall applicable material Legal Requirements and Insurance Requirements. Notwithstanding anything in this Article XIII to the contrary, the restrictions contained herein are subject to the rights of a Manager under any applicable ManagementAgreement to undertake Alterations or cause Borrower or any Subsidiary to undertake Alterations, subject, in each case, to the provisions of Section 7.2.14 of this Agreement*

*Section 13.3 Costs of Alterations. Notwithstanding anything to the contrary contained in this Article XIII, noMaterial Alteration or Alteration which when aggregated with all other related Alterations (other than Material Alterations) then being undertaken by Borrower or the applicable Borrowing Base Entities exceeds the Threshold Amount, shall be performedby or on behalf of Borrower or the applicable Borrowing Base Entities unless Borrower shall have delivered to Administrative Agent cash and Cash Equivalents as security in an amount not less than the estimated cost of the Material Alteration or theAlterations minus the Threshold Amount. In addition to payment or reimbursement from time to time of Borrower’s or the applicable Borrowing Base Entities’ expenses incurred in connection with any Material Alteration or any such Alteration,the amount of such security shall be reduced on any given date to the written estimate of the cost to complete the Material Alteration or the Alterations (including any retainages), free and clear of Liens, other than Permitted Borrowing Base Liens.Costs which are subject to retainage (which in no event shall be less than five percent (5%) in the aggregate) shall be treated as due and payable and unpaid from the date they would be due and payable but for their characterization as subjectto retainage. In the event that any Material Alteration or Alteration shall be made in conjunction with any restoration with respect to which Borrower shall be entitled to withdraw Proceeds pursuant to Article XII, the amount of the cash andCash Equivalents to be furnished pursuant hereto need not exceed the aggregate cost of such restoration and such Material Alteration or Alteration, less the sum of the amount of any Proceeds which Borrower may be entitled to withdraw pursuant toArticle XII and which are held by Administrative Agent in accordance with Article XII. Payment or reimbursement of Borrower’s or the applicable Borrowing Base Entity’s expenses incurred with respect to any Material Alterationor any such Alteration shall be accomplished upon the terms and conditions specified in Article XII.*

*At anytime after substantial completion of any Material Alteration or any such Alteration in respect of which cash and Cash Equivalents is deposited pursuant hereto,*

 

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*the whole balance of any cash and Cash Equivalents so deposited by Borrower with Administrative Agent and then remaining on deposit (together withearnings thereon), as well as all retainages, may be withdrawn by Borrower and shall be paid by Administrative Agent to Borrower, and any other cash and Cash Equivalents so deposited or delivered shall, to the extent it has not been called upon,reduced or theretofore released, be released to Borrower, within ten (10) days after receipt by Administrative Agent of an application for such withdrawal and/or release together with an Officer’s Certificate, setting forth in substance asfollows:*

*13.3.1 that the Material Alteration or Alteration in respect of which such cash and Cash Equivalents wasdeposited has been substantially completed in all material respects substantially in accordance with any plans and specifications therefor previously filed with Administrative Agent under Section 13.2 and that, if applicable, acertificate of occupancy has been issued with respect to such Material Alteration or Alteration by the relevant Governmental Authority(ies) or, if not applicable, that a certificate of occupancy is not required; and*

*13.3.2 that to the knowledge of the certifying Person all amounts which Borrower or the applicable Borrowing Base Entity is or maybecome liable to pay in respect of such Material Alteration or Alteration through the date of the certification have been paid in full or adequately provided for or are being contested in good faith and that lien waivers have been obtained from thegeneral contractor and major subcontractors performing such Material Alterations or Alterations (or such waivers are not customary and reasonably obtainable by prudent managers in the area where the applicable Borrowing Base Property is located).*

*Notwithstanding anything in the Loan Documents, including this Article XIII, to the contrary, all rights,restrictions and provisions relating to maintenance and Alterations shall be subject to the rights of the Manager and obligations of the Property Owner and Operating Lessees under the applicable Management Agreements.*

*ARTICLE XIV*

*GROUND LEASE*

*Section 14.1 Leasehold Representations, Warranties. Borrower hereby represents and warrants asfollows:*

*14.1.1 the Lincolnshire Ground Lease is in full force and effect, unmodified by any writing or otherwise,and Borrower has not waived, canceled or surrendered any of its rights thereunder;*

*14.1.2 all rent, additional rentand/or other charges reserved in or payable under the Lincolnshire Ground Lease have been paid to the extent that they are payable to the Third Amendment Closing Date;*

 

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*14.1.3 the Lincolnshire Ground Lessee enjoys the quiet and peaceful possession of theLincolnshire Leasehold Estate;*

*14.1.4 the Lincolnshire Ground Lessee has not delivered or received any notices ofdefault under the Lincolnshire Ground Lease and to the best of Borrower’s knowledge the Lincolnshire Ground Lessee is not in default under any of the terms of the Lincolnshire Ground Lease, and there are no circumstances which, with the passageof time or the giving of notice, or both, would constitute a default under the Lincolnshire Ground Lease;*

*14.1.5 Tothe best knowledge of Borrower, Lincolnshire Fee Owner is not in default under any of the terms of the Lincolnshire Ground Lease on its part to be observed and performed;*

*14.1.6 Borrower has delivered to Administrative Agent a true, accurate and complete copy of the Lincolnshire Ground Lease; and*

*14.1.7 Borrower knows of no adverse claim to the title or possession of the Lincolnshire Ground Lessee or theLincolnshire Fee Owner.*

*Section 14.2 Cure by Administrative Agent. In the event of a default by a GroundLessee in the performance of any of its obligations under a Ground Lease, (i) which default would permit the Fee Owner to terminate such Ground Lease and (ii) Borrower or the applicable Borrowing Base Entities are not diligentlyprosecuting the cure thereof, then, in each and every such case, Borrower shall cause the Ground Lessee to (A) permit Administrative Agent to, at its option, cause the default or defaults to be remedied and (B) otherwise exercise any andall rights of the Ground Lessee thereunder in the name of and on behalf of the Ground Lessee. Borrower shall cause the Ground Lessee to, on demand, reimburse Administrative Agent for all advances made and expenses incurred by Administrative Agent incuring any such default (including, without limitation, reasonable attorneys’ fees and disbursements), together with interest thereon at a rate equal to the Alternate Base Rate then in effect for Base Rate Loans plus the Applicable Margin forBase Rate Loans plus two percent (2%) from the date that such advance is made to and including the date the same is paid to Administrative Agent.*

*Section 14.3 Option to Renew or Extend a Ground Lease. Borrower shall cause each Ground Lessee to give Administrative Agent written notice of its intention to exercise each and every option, if any, torenew or extend the term of a Ground Lease, at least thirty (30) days prior to the expiration of the time to exercise such option under the terms thereof (the “Exercise Period”). If required by Administrative Agent, Borrowershall cause such Ground Lessee to duly exercise during the Exercise Period any renewal or extension option with respect to such Ground Lease if Administrative Agent reasonably determines that the exercise of such option is necessary to protect theCollateral. If such Ground Lessee intends to renew or extend the term of such Ground Lease, Borrower shall deliver to Administrative Agent, with the notice of such decision, a copy of the notice of renewal or extension delivered to the Fee Owner,together with the terms and conditions of such renewal or*

 

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*extension. If such Ground Lessee does not renew or extend before or during the Exercise Period the term of such Ground Lease, Administrative Agent may, atits option (if Administrative Agent reasonably determines that the exercise of such option is necessary to protect the Collateral), exercise during the Exercise Period the option to renew or extend, subject to the terms thereof, in the name of andon behalf of such Ground Lessee. Borrower shall cause (and with respect to the Lincolnshire Ground Lessee does cause) each Ground Lessee to irrevocably appoint Administrative Agent as its attorney-in-fact, coupled with an interest, to execute anddeliver, for and in the name of such Ground Lessee, all instruments and agreements necessary under the Lincolnshire Ground Lease or otherwise to cause (if Administrative Agent reasonably determines that the exercise of such option is necessary toprotect the Collateral) any renewal or extension of the Ground Lease during the Exercise Period.*

*Section 14.4Ground Lease Covenants.*

*14.4.1 Waiver of Interest in New Ground Lease. In the event a Ground Leaseshall be terminated by reason of a default thereunder by the Ground Lessee and Administrative Agent shall require from Fee Owner a new ground lease, Borrower hereby waives and shall cause such Ground Lessee to waive any right, title and interest inand to such new Ground Lease or the leasehold estate created thereby, waiving all rights of redemption now or hereafter operable under any law.*

*14.4.2 No Election to Terminate. Borrower shall not permit a Ground Lessee to elect to treat a Ground Lease as terminated, canceled or surrendered pursuant to the applicable provisions of the Bankruptcy Code(including, without limitation, Section 365(h)(1) thereof) without Administrative Agent’s prior written consent in the event of Fee Owner’s bankruptcy. In addition, Borrower shall, in the event of Fee Owner’s bankruptcy, causethe applicable Ground Lessee to reaffirm and ratify the legality, validity, binding effect and enforceability of the applicable Ground Lease and to remain in possession of the Leasehold Estate and any Improvements, notwithstanding any rejectionthereof by Fee Owner or any trustee, custodian or receiver.*

*14.4.3 Notice Prior to Rejection. Borrower shallgive Administrative Agent not less than thirty (30) days prior written notice of the date on which a Ground Lessee shall apply to any court or other governmental authority for authority and permission to reject a Ground Lease in the event thatthere shall be filed by or against the Borrower or Ground Lessee any petition, action or proceeding under the Bankruptcy Code or under any other similar federal or state law now or hereafter in effect and if a Ground Lessee determines to reject theapplicable Ground Lease. Administrative Agent shall have the right, but not the obligation, to serve upon Borrower within such thirty (30) day period a notice stating that (i) Administrative Agent demands that Borrower cause such GroundLessee to assume and assign such Ground Lease to Administrative Agent subject to*

 

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*and in accordance with the Bankruptcy Code, and (ii) Administrative Agent covenants to cure or provide reasonably adequate assurance thereof withrespect to all defaults reasonably susceptible of being cured by Administrative Agent and of future performance under such Ground Lease. If Administrative Agent serves upon Borrower the notice described above, Borrower shall not permit such GroundLessee to seek to reject such Ground Lease and shall comply with the demand provided for clause (i) above within fifteen (15) days after the notice shall have been given by Administrative Agent.*

*14.4.4 Administrative Agent Right to Perform. During the continuance of an Event of Default, Borrower shall cause each GroundLessee to permit Administrative Agent to have the right, but not the obligation, (i) to perform and comply with all obligations of a Ground Lessee under the applicable Ground Lease without relying on any grace period provided therein,(ii) to do and take, without any obligation to do so, such actions as Administrative Agent deems necessary or desirable to prevent or cure any default by a Ground Lessee under the applicable Ground Lease, including, without limitation, any act,deed, matter or thing whatsoever that a Ground Lessee may do in order to cure a default under the applicable Ground Lease and (iii) to enter in and upon the subject Property or any part thereof to such extent and as often as AdministrativeAgent deems necessary or desirable in order to prevent or cure any default of a Ground Lessee under the applicable Ground Lease. Borrower shall, within five (5) Business Days after written request is made therefor by Administrative Agent,execute and deliver, or cause the applicable Ground Lessee to execute and deliver, to Administrative Agent or to any party designated by Administrative Agent, such further instruments, agreements, powers, assignments, conveyances or the like as maybe reasonably necessary to complete or perfect the interest, rights or powers of Administrative Agent pursuant to this Section 14.4.4 or as may otherwise be required by Administrative Agent.*

*14.4.5 Administrative Agent Attorney in Fact. In the event of any arbitration under or pursuant to a Ground Lease in whichAdministrative Agent elects to participate, Borrower shall cause the applicable Ground Lessee to irrevocably appoint Administrative Agent as its true and lawful attorney-in-fact (which appointment shall be deemed coupled with an interest) toexercise, during the continuance of an Event of Default, all right, title and interest of such Ground Lessee in connection with such arbitration, including, without limitation, the right to appoint arbitrators and to conduct arbitration proceedingson behalf of Borrower, such Ground Lessee and Administrative Agent. All costs and expenses incurred by Administrative Agent in connection with such arbitration and the settlement thereof shall be borne solely by Borrower, including, withoutlimitation, attorneys’ fees and disbursements. Nothing contained in this Section 14.4.5 shall obligate Administrative Agent to participate in any such arbitration.*

 

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*14.4.6 Payment of Rent. Borrower shall cause each Ground Lessee to promptlypay the rent and all other sums and charges mentioned in, and payable under, the applicable Ground Lease.*

*14.4.7Performance of Covenants. Borrower shall cause each Ground Lessee to promptly perform and observe all of the terms, covenants and conditions required to be performed and observed by the lessee under the applicable Ground Lease, the breach ofwhich could permit any party to such Ground Lease validly to terminate such Ground Lease (including, without limitation, all payment obligations), shall do all things necessary to preserve and to keep unimpaired its rights under such Ground Lease,shall not waive, excuse or discharge any of the material obligations of Fee Owner without Administrative Agent’s prior written consent in each instance, and shall diligently and continuously enforce the obligations of the Fee Owner.*

*14.4.8 No Defaults. Borrower shall cause each Ground Lessee not to do, permit or suffer any event oromission as a result of which there could occur a default by a Ground Lessee under a Ground Lease or any event which, with the giving of notice or the passage of time, or both, would constitute a default by a Ground Lessee under a Ground Leasewhich, in any of the foregoing events, could permit any party to a Ground Lease validly to terminate the Ground Lease (including, without limitation, a default in any payment obligation), and Borrower shall cause each Ground Lessee to obtain theconsent or approval of Fee Owner to the extent required pursuant to the terms of a Ground Lease.*

*14.4.9 NoModification. Borrower shall not permit a Ground Lessee to cancel, terminate, surrender, modify or amend or in any way alter, surrender all or any portion of the subject Property, permit the alteration of any of the provisions of a Ground Leaseor agree to any termination, amendment, modification or surrender of a Ground Lease without Administrative Agent’s prior written consent in each instance, which consent shall not be unreasonably withheld, provided such amendment ormodification does not increase a Ground Lessee’s obligations thereunder or shorten the term thereof.*

*14.4.10Notices of Default. Borrower shall deliver and shall cause each Ground Lessee to deliver to Administrative Agent copies of any notice of default by any party under the applicable Ground Lease, or of any notice from Fee Owner of its intentionto terminate a Ground Lease or to re-enter and take possession of any portion of the subject Property, immediately upon delivery or receipt of such notice, as the case may be.*

*14.4.11 Delivery of Information. Borrower shall cause each Ground Lessee to promptly furnish to Administrative Agent copies ofsuch information and evidence as Administrative Agent may reasonably request concerning such Ground Lessee’s due observance, performance and compliance with the terms, covenants and conditions of the applicable Ground Lease.*

 

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*14.4.12 No Subordination. Borrower shall not permit a Ground Lessee to consentto the subordination of a Ground Lease to any mortgage or other lease of the fee interest in any portion of the subject Property except as may be required by such Ground Lease.*

*14.4.13 Further Assurances. Borrower, at its sole cost and expense, shall cause each Ground Lessee to execute and deliver toAdministrative Agent, within five (5) Business Days after request, such documents, instruments or agreements as may be reasonably required to permit Administrative Agent to cure any default under the applicable Ground Lease.*

*14.4.14 Estoppel Certificates. Borrower shall cause each Ground Lessee to use its reasonable efforts to obtain and deliver toAdministrative Agent within twenty (20) days after written demand by Administrative Agent, an estoppel certificate from the applicable Fee Owner setting forth (i) the name of the lessee and the lessor thereunder, (ii) that theapplicable Ground Lease is in full force and effect and has not been modified or, if it has been modified, the date of each modification (together with copies of each such modification), (iii) the date to which all rental charges have been paidby the lessee under the applicable Ground Lease, (iv) whether there are any alleged defaults of the lessee under the applicable Ground Lease and, if there are, setting forth the nature thereof in reasonable detail, (v) if the lessee underthe applicable Ground Lease shall be in default, the default and (vi) such other matters as Administrative Agent shall reasonably request.*

*14.4.15 Administrative Agent Right to Participate. Borrower acknowledges and shall cause each Ground Lessee to acknowledge that Administrative Agent shall have the right, but not the obligation, to proceedin respect of any claim, suit, action or proceeding relating to the rejection of a Ground Lease by the applicable Fee Owner as a result of such Fee Owner’s bankruptcy, including, without limitation, the right to file and prosecute any and allproofs of claims, complaints, notices and other documents in any case in respect of such Fee Owner under and pursuant to the Bankruptcy Code.*

*14.4.16 No Liability. Administrative Agent shall have no liability or obligation under any Ground Lease by reason of its acceptance of the First Lien Mortgages, this Agreement and the other Loan Documents.Administrative Agent shall be liable for the obligations of a Ground Lessee arising under a Ground Lease for only that period of time during which Administrative Agent is in possession of the portion of the subject Property covered by said lease orhas acquired, by foreclosure or otherwise, and is holding all of Borrower’s right, title and interest therein.”.*

 

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**Section 1.7 Amendments to Schedules, Exhibits and References Thereto**. 

**1.7.1**All Schedules to the Original Agreement are hereby deleted in their entirety and replaced with Schedules I through XIX as setforth on Exhibit A to this Third Amendment. From and after the Third Amendment Closing Date, any representation made after such date as to the accuracy or completeness of any Schedule as of the Closing Date shall be deemed to be amended so asto refer to the amended and restated Schedules attached hereto as of the Third Amendment Closing Date. The Original Agreement is hereby amended by inserting Exhibits K and L (as set forth on Exhibit B to this Third Amendment)following Exhibit J of the Original Agreement. 

 
 **II.****AMENDMENTS TO OTHER LOAN DOCUMENTS**
**Section 2.1 Omnibus Amendment to All Loan Documents**. 

**2.1.1**As of the date hereof, each reference to thedefined terms that have been modified pursuant to this Third Amendment shall be deemed to be a reference to such defined term as so modified. 

 
 **III.****CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT**
**Section 3.1 Conditions Precedent to this Third Amendment**. The obligations of Lenders to make any Loans and the obligations of the Issuer to issue any Letter of Credit shall be subject to the prior or concurrentsatisfaction or waiver (which shall be waived if Administrative Agent executes and delivers this Third Amendment without requiring satisfaction at such time, subject to any post-closing conditions agreement) of each of the conditions precedent setforth in this Section 3.1 and in Section 6.3 on or before the Third Amendment Closing Date. 

**3.1.1**Execution of Third Amendment. On or prior to the Third Amendment Closing Date, there shall have been delivered to Administrative Agent for the account of each Lender duly executed copies of this Third Amendment. 

**3.1.2**Amended and Restated Revolving Notes. On or prior to the Third Amendment Closing Date, there shall have been delivered toAdministrative Agent for the account of each Lender duly executed copies of the Amended and Restated Revolving Notes. 

**3.1.3**Reaffirmation of Guaranty. The Guarantor shall have duly authorized, executed and delivered to Administrative Agent the Reaffirmation of Guaranty. 

**3.1.4**Reaffirmation of Subsidiary Guaranty. The Subsidiary Guarantors shall have duly authorized, executed and delivered to Administrative Agent the Reaffirmation of Subsidiary Guaranty, and eachBorrowing Base Entity of a Borrowing Base Property that is not a party to the Subsidiary Guaranty shall execute a signature page acknowledging its liability as a Subsidiary Guarantor. 

**3.1.5**Reaffirmation of Guarantor Pledge Agreement. The Guarantor shall have duly authorized, executed and delivered to Administrative Agentthe Reaffirmation of Guarantor Pledge Agreement. 

 

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**3.1.6**Reaffirmation of Subsidiary Pledge Agreement. The Subsidiary Guarantors shall haveduly authorized, executed and delivered to Administrative Agent the Reaffirmation of Subsidiary Pledge Agreement. 

**3.1.7**D.C.Loan Subordination. Borrower and SHC Washington, L.L.C shall have duly authorized, executed and delivered to Administrative Agent the D.C. Loan Subordination. 

**3.1.8**Reaffirmation of D.C. Loan Pledge. The pledgor under the D.C. Loan Pledge shall have duly authorized, executed and delivered to Administrative Agent the Reaffirmation of D.C. Loan Pledge.

**3.1.9**Third Amendment Fee Letter. Borrower shall have duly authorized, executed and delivered to Administrative Agent theThird Amendment Fee Letter. 

**3.1.10**Closing Date Certificate. Administrative Agent shall have received, with counterparts foreach Lender, a closing date certificate in the form of Exhibit N attached hereto, dated the Third Amendment Closing Date and duly executed and delivered by an Authorized Officer of Borrower. 

**3.1.11**Projections; Solvency Certificate. On or prior to the Third Amendment Closing Date, there shall have been delivered toAdministrative Agent: 

projected financial and cash flow statements for the Consolidated Group for the period from theClosing Date to and including at least December 31, 2010 (the “Projections”), which Projections shall reflect the forecasted financial condition, income and expenses and cash flows of the Consolidated Group after giving effectto the Transaction; and 

a solvency certificate as to Borrower and its Subsidiaries, taken as a whole, from an AuthorizedFinancial Officer, substantially in the form of Exhibit M attached hereto, addressed to Administrative Agent and the Lenders and dated the Third Amendment Closing Date. 

**3.1.12**First Lien Mortgages and Assignment of Leases and Rents. Administrative Agent shall have received evidence that originalcounterparts of the First Lien Mortgages and Assignment of Leases and Rents, in proper form for recordation, have been delivered to the Title Company for recording, so as effectively to create, in the reasonable judgment of Administrative Agent,upon such recording valid and enforceable first priority Liens upon the Borrowing Base Properties, in favor of Administrative Agent (or such other trustee as may be required or desired under local law), subject only to Permitted Borrowing Base Liensand such other Liens as are permitted pursuant to the Loan Documents. 

**3.1.13**Mexico Pledge Agreement. The Operating Lesseesand the Property Owners of the Four Seasons Punta Mita and the Four Seasons Mexico City shall have duly authorized, executed and delivered to Administrative Agent the Mexico Pledge Agreement. 

**3.1.14**UCC Financing Statements. Administrative Agent shall have received evidence that the UCC financing statements relating to the FirstLien Mortgages and the Agreement have been delivered to the Title Company for filing in the applicable jurisdictions. 

 

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**3.1.15**Account Control Agreements. Each applicable Borrowing Base Entity that is the holderof an Account and The PrivateBank and Trust Company shall have duly authorized, executed and delivered to Administrative Agent an Account Control Agreement in form and substance reasonably acceptable to Administrative Agent with respect to suchAccount. 

**3.1.16**Lenders’ Fees. Borrower shall have paid to each Lender that executes this Third Amendment on or beforethe Third Amendment Closing Date a fee in an amount equal to the product of (x) 0.75 times (y) the sum of such approving Lender’s Revolving Loan Commitment and Letter of Credit Commitment. 

**3.1.17**Survey. Administrative Agent shall have received copies of the Surveys listed on Schedule XVI attached to the Agreement.

**3.1.18**Zoning. Administrative Agent shall have received (i) letters or other evidence with respect to each BorrowingBase Property from the appropriate municipal authorities (or other Persons) concerning applicable zoning and building laws reasonably acceptable to Administrative Agent or (ii) an ALTA 3.1 zoning endorsement for the Title Policy. 

**3.1.19**Tax Lot. Administrative Agent shall have received evidence that each Borrowing Base Property constitutes one (1) or moreseparate tax lots, which evidence shall be reasonably satisfactory in form and substance to Administrative Agent. 

**3.1.20**Management Agreement. Administrative Agent shall have received a certified copy of each Management Agreement. 

**3.1.21**Assignment of Agreements. Each Borrowing Base Entity shall have duly authorized, executed and delivered to Administrative Agent the Assignment of Agreements with respect to the applicable Borrowing Base Property. 

**3.1.22**Operating Lease Subordination Agreement. Each Operating Lessee of a Borrowing Base Property located in the United States shall haveduly authorized, executed and delivered to Administrative Agent a Operating Lease Subordination Agreement with respect to the applicable Borrowing Base Property. 

**3.1.23**Opinions of Counsel. Administrative Agent shall have received opinions, each dated the Third Amendment Closing Date and addressed to Administrative Agent, each Lender and the Issuer, (A) fromPerkins Coie LLP, as special counsel to Borrower and Guarantor, (B) from local counsel in the jurisdiction of the Borrowing Base Properties and (C) from Maryland counsel as counsel to Guarantor. 

**3.1.24**Title Policies. Administrative Agent shall have received (i) a Title Policy issued by First American (as to 50% of thecoverage) and dated as of the Third Amendment Closing Date, with co-insurance in the form of “Me-Too” and other applicable co-insurance endorsements from Stewart-U.S. (and in jurisdictions where available, tie-in endorsements from eachTitle Company with respect to such coverage) as well as direct access agreements acceptable to Administrative Agent with respect to the Borrowing Base Properties located in the United States and (ii) a Title Policy issued by Stewart-Mexico anddated as of the Third Amendment Closing Date, with re-insurance from First American (as to 50% of the coverage) and Stewart-U.S. (as to 50% of the coverage), and in jurisdictions where available, tie-in endorsements from each Title Company withrespect to such coverage as well as direct access agreements acceptable to Administrative Agent with respect to the Borrowing Base Properties located in Mexico. Each Title Policy, whether attributable to a Borrowing Base Property in the 

 

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United States or Mexico, shall (A) provide coverage with respect to each Borrowing Base Property in the initial amounts set forth on Schedule IXattached hereto, (B) insure Administrative Agent that the applicable First Lien Mortgage creates a valid, first priority Lien on the applicable Borrowing Base Property, free and clear of all exceptions from coverage other than PermittedBorrowing Base Liens and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (C) contain the endorsements and affirmative coverages set forth on Schedule X attached hereto and such additionalendorsements and affirmative coverages as Administrative Agent may reasonably request, and (D) name Administrative Agent on behalf of the Lenders as the insured. The Title Policy shall be assignable. Administrative Agent also shall havereceived evidence that all premiums in respect of such Title Policy have been paid. 

**3.1.25**Searches. Administrative Agentshall have received searches with respect to (i) each of Borrower, Guarantor and each Borrowing Base Entity for liens, federal tax liens, state tax liens, bankruptcies and judgments and (ii) each Borrowing Base Property for judgment, taxliens, building violations, mechanics liens and water and sewer charges, satisfactory to Administrative Agent. 

**3.1.26**Certificate of Occupancy; Licenses. To Borrower’s knowledge, all certifications, permits, licenses and approvals, including, without limitation, certificates of completion and occupancy permits required for the legal use, occupancyand operation of each Borrowing Base Property as a hotel (collectively, the “Licenses”), have been obtained and are in full force and effect, other than the certificate of occupancy with respect to the Four Seasons Mexico City andthe Marriott Lincolnshire. Borrower shall keep and maintain or shall cause the applicable Borrowing Base Entity to keep and maintain, all Licenses necessary for the operation of each Borrowing Base Property as a hotel. The use being made of eachBorrowing Base Property is in conformity with the certificate of occupancy, to the extent available, issued for such Borrowing Base Property. 

**3.1.27**Insurance Certificates. Administrative Agent shall have received certificates of insurance complying with the terms of the Agreement. 

**3.1.28**Environmental Reports. Administrative Agent shall have received Phase I Environmental Reports with respect to each Borrowing Base Property in form and substance reasonably satisfactory toAdministrative Agent. 

**3.1.29**Appraisal. Administrative Agent shall have received Acceptable Appraisals with respect to eachBorrowing Base Property complying with the terms of the Agreement. 

**3.1.30**Lincolnshire Ground Lease Estoppel. Fee Ownershall have duly authorized, executed and delivered to Administrative Agent a Ground Lessor Estoppel with respect to the Marriott Lincolnshire in form and substance reasonably satisfactory to Administrative Agent. 

**3.1.31**Manager Estoppel. The Manager at each Borrowing Base Property shall have duly authorized, executed and delivered to AdministrativeAgent a Manager’s Consent to Assignment and Estoppel Certificate in form and substance reasonably satisfactory to Administrative Agent. 

 

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**3.1.32**Manager SNDA. The Manager at each Borrowing Base Property shall have dulyauthorized, executed and delivered to Administrative Agent a Property Manager Subordination, Non-Disturbance and Attornment Agreement in form and substance reasonably satisfactory to Administrative Agent. 

**3.1.33**Resolutions, etc. Administrative Agent shall have received from Borrower, Guarantor and each Borrowing Base Entity, as applicable,(i) good standing certificates for each such Person from the Secretary of State (or similar applicable Governmental Authority) of such Person’s state of incorporation and each state where Borrower or such other Person, as the case may be,is qualified to do business as a foreign corporation as of a recent date, together with a bring-down certificate by facsimile, dated a date reasonably close to the Third Amendment Closing Date (provided, however, Borrower and Guarantorshall only be required to provide such certificates with respect to Delaware, California, Illinois, Washington, D.C. and Mexico, if qualified in such jurisdictions), (ii) a chart depicting the ownership structure for Borrower, Guarantor, eachSubsidiary Guarantor and their Subsidiaries and (iii) a certificate, dated the Third Amendment Closing Date and with counterparts for each Lender, duly executed and delivered by such Person’s Secretary or Assistant Secretary, as to:

resolutions of each such Person’s Board of Directors then in full force and effect authorizing, to the extentrelevant, the execution, delivery and performance of this Third Amendment, the Amended and Restated Notes, each other Loan Document to be executed by such Person and the transactions contemplated hereby and thereby; 

the incumbency and signatures of those of its officers authorized to act with respect to this Third Amendment, the Notes and each otherLoan Document to be executed by such Person; and 

each Organic Document of such Person, 

upon which certificates Administrative Agent and each Lender may conclusively rely until it shall have received a further certificate of the Secretary or AssistantSecretary of any such Person canceling or amending the prior certificate of such Person. 

Financial Information, etc. AdministrativeAgent shall have received evidence of pro forma financial covenant compliance with the covenants set forth in Section 7.2.4 in the form as set forth on Annex I to Exhibit N attached hereto. 

**3.1.34**Litigation. There shall exist no pending or threatened action, suit, investigation, litigation or proceeding in any court or beforeany arbitrator or governmental instrumentality which (x) purports to affect the consummation of the Third Amendment Transaction or the legality or validity of this Third Amendment or any other Loan Document or (y) could reasonably beexpected to have a Material Adverse Effect. 

**3.1.35**No Material Adverse Effect. On or prior to the Third Amendment ClosingDate, in the determination of Administrative Agent, no Material Adverse Effect shall have occurred, and neither Administrative Agent nor Lenders shall have become aware of any facts, conditions or other information not previously known to it whichcould reasonably be expected to have a Material Adverse Effect. 

 

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**3.1.36**Approvals. All governmental and third-party approvals necessary in connection withthe Third Amendment Transaction and the continuing operations of Borrower and its Subsidiaries shall have been obtained and shall be in full force and effect except as could not, either individually or in the aggregate, reasonably be expected tohave a Material Adverse Effect, and all applicable waiting periods, if any, shall have expired without any action being taken or threatened by any competent authority which could restrain, prevent or otherwise impose materially adverse conditions onthe Third Amendment Transaction hereby. 

Closing Fees, Expenses, etc. Administrative Agent shall have received evidence of paymentby Borrower of (or a draw request with respect to) all accrued and unpaid fees, costs and expenses to the extent then due and payable under this Third Amendment on the Third Amendment Closing Date, together with all reasonable legal costs andexpenses of Administrative Agent to the extent invoiced prior to or on the Third Amendment Closing Date, including any such fees, costs and expenses arising under this Third Amendment. 

Diligence. Administrative Agent shall have received the due diligence materials with respect to Borrower and Guarantor and their respectiveSubsidiaries and the Borrowing Base Properties that it has reasonably requested. 

 
 **IV.****REPRESENTATIONS AND WARRANTIES**
**Section 4.1 Borrower Representations and Warranties**. As of the Third Amendment Closing Date, Borrower represents and warrants unto Administrative Agent, the Issuer and each Lender: 

**4.1.1**Original Agreement. Each of the representations and warranties made by Borrower in the Original Agreement and in the other LoanDocuments is true and correct in all material respects as if made as of the Third Amendment Closing Date (unless stated to relate to an earlier date in which case such representations and warranties shall be true in all material respects as of suchearlier date). 

**4.1.2**Title. Each Property Owner of a Borrowing Base Property, other than the Lincolnshire Ground Lessee, hasgood, marketable and insurable fee simple title with respect to each Borrowing Base Property to the Land and the Improvements (except in the case of the Lincolnshire Ground Lessee leasehold title to the Land and the Improvements), free and clear ofall Liens whatsoever except the Permitted Borrowing Base Liens, such other Liens as are permitted pursuant to the Loan Documents and the Liens created by the Loan Documents. Each Property Owner of a Borrowing Base Property has good and marketabletitle to the remainder of the applicable Borrowing Base Property, free and clear of all Liens whatsoever except the Permitted Borrowing Base Liens. The First Lien Mortgages and Assignments of Leases and Rents, when properly recorded in theappropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (a) a valid, perfected first mortgage lien on the Land and the Improvements, subject only to PermittedBorrowing Base Liens and (b) perfected security interests in and to, and perfected collateral assignments of, all personalty (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable PermittedBorrowing Base Liens. There are no claims for payment for work, labor or materials affecting a Borrowing Base Property which are or may become a lien prior to, or of equal priority with, the Liens created by the Loan Documents except as permitted bythe Loan Documents. Each Property Owner of a Borrowing 

 

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Base Property represents and warrants that none of the Permitted Borrowing Base Liens will materially and adversely affect (i) the ability of suchProperty Owner to pay any of its obligations to any Person as and when due, (ii) the fair market value of the applicable Borrowing Base Property, (iii) the marketability of title to the applicable Borrowing Base Property, or (iv) theuse or operation of the applicable Borrowing Base Property as of the Third Amendment Closing Date and thereafter. Each Property Owner of a Borrowing Base Property shall, subject to the provisions of the Loan Documents, preserve its right, title andinterest in and to the applicable Borrowing Base Property for so long as the Facility remains outstanding and will warrant and defend same and the validity and priority of the Lien hereof from and against any and all claims whatsoever other than thePermitted Borrowing Base Liens. 

**4.1.3**Compliance. Borrower, each Borrowing Base Entity, and the Borrowing Base Propertiesand the use thereof comply in all material respects with all applicable Legal Requirements, including, without limitation, building and zoning ordinances and codes. To the best knowledge of Borrower, Borrower is not in default or in violation of anyorder, writ, injunction, decree or demand of any Governmental Authority. To the best knowledge of each Borrowing Base Entity, such Borrowing Base Entity is not in default or in violation of any order, writ, injunction, decree or demand of anyGovernmental Authority. To the best knowledge of Borrower and each Borrowing Base Entity, there has not been committed by Borrower or such Borrowing Base Entity any act or omission affording the federal government or any other Governmental Authoritythe right of forfeiture as against the Borrowing Base Properties or any part thereof or any monies paid in performance of Borrower’s or such Borrowing Base Entity’s obligations under any of the Loan Documents. 

**4.1.4**Condemnation. No Condemnation has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any portionof any Borrowing Base Property or for the relocation of roadways providing access to any Borrowing Base Property. 

**4.1.5**Utilities and Access. Each Borrowing Base Property has rights of access to public ways and is served by water, sewer, sanitary sewer and storm drain facilities adequate to service each Borrowing Base Property for its intended uses. ToBorrower’s knowledge, all utilities necessary to the existing use of each Borrowing Base Property are located either in the public right-of-way abutting the Borrowing Base Property (which are connected so as to serve the Borrowing Base Propertywithout passing over other property) or in recorded easements serving the Borrowing Base Property and such easements are set forth in and insured by the Title Policy. All roads necessary for the use of each Borrowing Base Property for its currentpurposes have been completed and, if necessary, dedicated to public use. 

**4.1.6**Separate Lots. Each Borrowing Base Propertyis comprised of one (1) or more contiguous parcels which constitute a separate tax lot or lots and does not constitute or include a portion of any other tax lot not a part of such Borrowing Base Property. 

**4.1.7**Assessments. To the best of Borrower’s knowledge, there are no pending or proposed special or other assessments for publicimprovements or otherwise affecting any Borrowing Base Property, nor are there any contemplated improvements to any Borrowing Base Property that may result in such special or other assessments. 

**4.1.8**Enforceability. The Loan Documents are not subject to any existing right of rescission, set-off, counterclaim or defense by Borrower,including, without limitation, the defense of usury, nor would the operation of any of the terms of the Loan Documents, or the 

 

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exercise of any right thereunder, render the Loan Documents unenforceable (subject to applicable bankruptcy, insolvency and similar laws affecting rights ofcreditors generally, and subject as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)), and Borrower has not asserted any right of rescission, set-off, counterclaimor defense with respect thereto. 

**4.1.9**No Prior Assignment. There are no prior sales, transfers or assignments of the Leasesor any portion of the Rents due and payable or to become due and payable which are presently outstanding, other than those being terminated or assigned to Administrative Agent concurrently herewith or permitted under the Loan Documents. 

**4.1.10**Insurance. Borrower has obtained and has delivered to Adminsitrative Agent certified copies or originals of all insurancepolicies required under the Agreement, reflecting the insurance coverages, amounts and other requirements set forth in the Agreement. Borrower has not, and to the best of Borrower’s knowledge no Person has, done by act or omission anythingwhich would impair the coverage of any such policy. Borrower is in compliance as of the Third Amendment Closing Date with the Insurance Requirements. 

**4.1.11**Use of Borrowing Base Properties. Each Borrowing Base Property is used exclusively for hotel purposes and other appurtenant and related uses. 

**4.1.12**Certificate of Occupancy; Licenses. To Borrower’s knowledge, all certifications, permits, licenses and approvals, including,without limitation, certificates of completion and occupancy permits required for the legal use, occupancy and operation of each Borrowing Base Property as a hotel (collectively, the “Licenses”), have been obtained and are in fullforce and effect, other than the certificate of occupancy with respect to the Four Seasons Mexico City and the Marriott Lincolnshire. Borrower shall keep and maintain or shall cause the applicable Borrowing Base Entity to keep and maintain, allLicenses necessary for the operation of each Borrowing Base Property as a hotel. The use being made of each Borrowing Base Property is in conformity with the certificate of occupancy, to the extent available, issued for such Borrowing Base Property.

Borrower has informed Administrative Agent and the Lenders that with respect to the Marriott Lincolnshire, based solelyupon (i) the letter dated February 9, 2009 from the Village of Lincolnshire to Kathleen Mitchell (the “Village Letter”), (ii) the letter from Michael Jesse, Building Inspector, to Kathleen Mitchell as referenced inthe Village Letter, and (iii) the email dated February 6, 2009 from The Village of Lincolnshire Code Enforcement Inspector to Kathleen Mitchell (such documents are herein collectively referred to as the “Lincolnshire ZoningDocuments”), the Village of Lincolnshire has been unable to locate a certificate of occupancy for the Marriott Lincolnshire. Based solely upon the Lincolnshire Zoning Documents (A) the Village of Lincolnshire has evidence in theirrecords that a certificate of occupancy was issued and subsequently lost or misplaced (B) the absence of a certificate of occupancy for the Marriott Lincolnshire will not give rise to any enforcement action affecting the Marriott Lincolnshire,and (C) a certificate of occupancy for the Marriott Lincolnshire will only be required to the extent of any construction activity, restoring, renovating or expanding the Marriott Lincolnshire or any part thereof. 

 

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A certificate of occupancy is not required to use, occupy and operate The Four SeasonsMexico City as it is currently being used, occupied and operated. 

**4.1.13**Flood Zone. None of the improvements or fixtures onany Borrowing Base Property is located in an area as identified by the Federal Emergency Management Agency as an area having special flood hazards except for those Borrowing Base Properties for which Borrower has purchased, or has caused theapplicable Borrowing Base Entities to purchase, flood insurance in form and substance reasonably acceptable to Administrative Agent, other than the outbuildings relating to the golf course at Marriott Lincolnshire. 

**4.1.14**Physical Condition. To the best of Borrower’s knowledge and as except as disclosed in reports delivered to AdministrativeAgent, each Borrowing Base Property, including, without limitation, all buildings, Improvements, parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment,elevators, exterior sidings and doors, landscaping, irrigation systems and all structural components, are in good condition, order and repair in all material respects; to the best of Borrower’s knowledge and except as disclosed in reportsdelivered to Administrative Agent, there exists no structural or other material defects or damages in or to any Borrowing Base Property, whether latent or otherwise, and Borrower has not received any written notice from any insurance company orbonding company of any defects or inadequacies in any Borrowing Base Property, or any part thereof, which would adversely affect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any terminationor threatened termination of any policy of insurance or bond. 

**4.1.15**Boundaries. To the best of Borrower’s knowledgeand except as disclosed by the Surveys, all of the Improvements at each Borrowing Base Property lie wholly within the boundaries and building restriction lines of the Real Property, and no Improvements on adjoining properties encroach upon the RealProperty, and no easements or other encumbrances upon the Real Property encroach upon any of the Improvements, so as to have a material adverse affect on the value or marketability of the Real Property except those for which affirmative insuranceset forth in the Title Policy acceptable to Administrative Agent shall have been obtained. 

**4.1.16**Leases. No Borrowing BaseProperty is subject to any Leases, other than the Leases described in the certified rent roll delivered to Administrative Agent and attached hereto as Schedule XV. Such certified rent roll is true, complete and correct in all materialrespects as of the date set forth therein. Such rent roll contains a true correct and complete list of all security deposits and the amounts thereof, currently in Borrower’s or Borrowing Base Entity’s possession. No Person other thanManagers, Operating Lessees and certain invitees in the ordinary course of business, has any possessory interest in any Borrowing Base Property or right to occupy the same except under and pursuant to the provisions of the Leases. The current Leasesare in full force and effect and to the best of Borrower’s knowledge, there are no material defaults thereunder by either party (other than as expressly disclosed on the certified rent roll delivered to Administrative Agent) and there are noconditions that, with the passage of time or the giving of notice, or both, would constitute material defaults thereunder. No rent has been paid more than one (1) month in advance of its due date. There has been no prior sale, transfer orassignment, hypothecation or pledge by Borrower of any Lease or of the rents received therein, which will be outstanding following the funding of the Facility, other than those being assigned to Administrative Agent concurrently herewith. No tenantunder any Lease has a right or option pursuant to such Lease or otherwise to purchase all or any part of the property of which the leased premises are a part. 

 

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**4.1.17**Filing and Recording Taxes. All mortgage, mortgage recording, stamp, intangible orother similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents,including, without limitation, the First Lien Mortgages, have been paid, and, under current Legal Requirements, each First Lien Mortgage is enforceable against the applicable Borrowing Base Entity in accordance with its terms by Administrative Agent(or any subsequent holder thereof) subject only to applicable bankruptcy, insolvency and similar laws affecting rights of creditors generally, and subject as to enforceability, to general principles of equity (regardless of whether enforcement issought in a proceeding in equity or at law). 

**4.1.18**Labor. No organized work stoppage or labor strike is pending or toBorrower’s knowledge threatened by employees and other laborers at any Borrowing Base Property. To Borrower’s knowledge, neither a Borrowing Base Entity nor the Manager of such Borrowing Base Property (i) is involved in or threatenedwith any material labor dispute, grievance or litigation relating to material labor matters involving any employees and other laborers at the Borrowing Base Property, including, without limitation, violation of any federal, state or local labor,safety or employment laws (domestic or foreign) and/or charges of unfair labor practices or discrimination complaints, (ii) has engaged in any unfair labor practices within the meaning of the National Labor Relations Act or the Railway LaborAct or (iii) is a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and other laborers at any Borrowing Base Property and no such agreement or contract is currently being negotiated byBorrower, Manager or any Borrowing Base Entity. 

**4.1.19**Brokers. Borrower has not dealt with any broker or finder withrespect to the transactions contemplated by the Loan Documents has not done any acts, had any negotiations or conversations, or made any agreements or promises which will in any way create or give rise to any obligation or liability for the paymentof any brokerage fee, charge, commission or other compensation to any Person with respect to the transactions contemplated by this Third Amendment. Administrative Agent has not dealt with any broker or finder with respect to the transactionscontemplated by the Loan Documents has not done any acts, had any negotiations or conversations, or made any agreements or promises which will in any way create or give rise to any obligation or liability for the payment of any brokerage fee,charge, commission or other compensation to any Person with respect to the transactions contemplated by this Third Amendment. Borrower and Administrative Agent shall each indemnify and hold harmless the other from and against any loss, liability,cost or expense, including any judgments, attorneys’ fees, or costs of appeal, incurred by the other party and arising out of or relating to any breach or default by the indemnifying party of its representations, warranties and/or agreementsset forth in this Section 4.1.19. The provisions of this Section 4.1.19 shall survive the expiration and termination of the Agreement and the payment of the Indebtedness. 

**4.1.20**Taxpayer Identification Number. Borrower’s Federal taxpayer identification number is 36-4200430. The Federal taxpayer numberfor each Property Owner of a Borrowing Base Property located in the United States of America is 36-4312527 (with respect to SHC Laguna Niguel I LLC), 36-4312523 (with respect to SHC Lincolnshire LLC) and 20-4135050 (with respect to SHC Washington,L.L.C.). The Federal taxpayer number for each 

 

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Operating Lessee of a Borrowing Base Property located in the United States of America is 20-4707064 (with respect to DTRS Laguna, L.L.C.), 20-1232041 (withrespect to DTRS Lincolnshire, L.L.C.) and 20-4135120 (with respect to DTRS Washington, L.L.C.). 

**4.1.21**Solvency/FraudulentConveyance. Borrower and the Borrowing Base Entities (a) have not entered into the transaction contemplated by the Agreement or any Loan Document with the actual intent to hinder, delay, or defraud any creditor and (b) have receivedreasonably equivalent value in exchange for their obligations under the Loan Documents. After giving effect to the Facility and the provisions of the Loan Documents, the fair saleable value of Borrower’s assets exceeds and will, immediatelyfollowing the making of the Facility, exceed Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed and contingent liabilities. After giving effect to the Facility and the provisions of the LoanDocuments, the fair saleable value of the assets of each Borrowing Base Entity exceeds and will, immediately following the execution and delivery of this Third Amendment, exceed the total liabilities of such Borrowing Base Entity, including, withoutlimitation, subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will, immediately following the execution and delivery of this Third Amendment, be greater than Borrower’sprobable liabilities, including the maximum amount of its contingent liabilities on its Indebtedness as such Indebtedness become absolute and matured. The fair saleable value of the assets of each Borrowing Base Entity is and will, immediatelyfollowing the execution and delivery of this Third Amendment, be greater than the probable liabilities of such Borrowing Base Entity, including the maximum amount of its contingent liabilities on its Indebtedness as such Indebtedness becomesabsolute and matured. The assets of Borrower and each Borrowing Base Entity do not and, immediately following the execution and delivery of this Third Amendment will not, constitute unreasonably small capital to carry out each party’s businessas conducted or as proposed to be conducted. Each of Borrower and each Borrowing Base Entity does not intend to, and does not believe that it will, incur Indebtedness and liabilities (including contingent liabilities and other commitments) beyondtheir ability to pay such Indebtedness and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower or such Borrowing Base Entity and the amounts to be payable on or in respect of obligations ofBorrower or such Borrowing Base Entity). 

**4.1.22**Leases and REAs. Borrower represents that it has heretofore delivered, orcaused the applicable Borrowing Base Entity to deliver, to Administrative Agent true and complete copies of all Leases and REAs and any and all amendments or modifications thereof. To Borrower’s knowledge, no events or circumstances exist whichwith or without the giving of notice, the passage of time or both, may constitute a material default on the part of Borrower or such Borrowing Base Entity under any Leases or REAs except as disclosed on Schedule XVII. To Borrower’sknowledge, Borrower or its predecessors and each Borrowing Base Entity of a Borrowing Base Property or its predecessors have complied with and performed all of its or their material construction, improvement and alteration obligations with respectto each Borrowing Base Property required as of the date hereof and any other obligations under the other REAs or the Leases that are required as of the date hereof have either been complied with or the failure to comply with the same does not andcould not reasonably be expected to have a Material Adverse Effect. 

**4.1.23**Borrowing Base Property. Each Borrowing BaseProperty satisfies the following criteria: (i) such Borrowing Base Property is leased to an Operating Lessee; (ii) such 

 

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Borrowing Base Property is designated a full-service property (in accordance with industry standard, as reasonably determined by Administrative Agent);(iii) the Specified Borrowing Base Properties shall at all times be luxury or better quality hotels, and Marriott Lincolnshire shall at all times be an upper-upscale, luxury or better quality hotel, as designated by Smith Travel Research (or asimilar successor company designated by Administrative Agent); (iv) such Property is operated under a nationally recognized brand (a) in the case of Marriott Lincolnshire, by an Approved Manager (as set forth on Schedule IV of theOriginal Agreement) and (b) in the case of the Specified Borrowing Base Properties, by an Approved Luxury Manager; (v) such Borrowing Base Property is fully operating, open to the public and not under development or redevelopment (exceptfor routine, ordinary course renovation, maintenance and repair that does not result in the closure of more than fifteen percent (15%) of the rooms at such hotel); provided, however, that temporary closure due to force majeureevents, not to exceed five (5) Business Days, shall be permitted; (vi) such Borrowing Base Property is not subject to or encumbered by any Indebtedness other than Permitted Borrowing Base Debt; (vii) such Borrowing Base Property isfree of material structural defects or material environmental issues; (viii) neither such Borrowing Base Property nor the Property Owner thereof is encumbered with Permitted Borrowing Base Debt or any other Material Agreement that by its termsprecludes the grant of the Collateral or the exercise by or on behalf of the Secured Creditors of remedies with respect to the Collateral; and (ix) the Property Owner of such Borrowing Base Property is Borrower or a Subsidiary Guarantor.

**4.1.24**Mexico Insurance. The insurance policies listed and described on Annex A to the Irrevocable Administration andSecurity Trust Agreement with Reversion Rights, dated the Third Amendment Closing Date, with respect to the real estate and the equipment used to operate the Four Seasons Mexico City and the Four Seasons Punta Mita which are the Company’sresponsibility, are valid and effective as of the date hereof. 

 
 **V.****RELEASE OF ADMINISTRATIVE AGENT AND THE LENDERS**
**Section 5.1**Borrower, on its own behalf and on behalf of Guarantor and all Subsidiaries (the “Releasing Parties”), hereby releases, remises, acquits and forever discharges each of Administrative Agent and theLenders, and their respective employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiaries, parents and affiliates (all of the foregoinghereinafter called the “Released Parties”), from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, includinglegal fees, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter arising, for or because of any matter or things done, omitted or suffered to be done by any of the ReleasedParties prior to and including the date of this Third Amendment that, in any way directly or indirectly, arise out of or in any way are connected to or related to the Original Agreement, the Facility or the Loan Documents, including but not limitedto, claims relating to any settlement negotiations (all of the foregoing hereinafter called the “Released Matters”). Each of the Released Parties acknowledges that the agreements in this Article V are intended to be in fullsatisfaction of all or any alleged injuries or damages arising in connection with the Released Matters. Each of the Releasing Parties hereby represents and warrants to Released Parties that it has not purported to transfer, assign or otherwiseconvey any of its right, title or interest in any Released Matter to any other Person and that the foregoing constitutes a full and complete release of all Released Matters.”. 

 

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 **VI.****MISCELLANEOUS PROVISIONS**
**Section 6.1**Defined Terms. Except with respect to terms that are defined in this Third Amendment or terms used in the Original Agreement that are redefined in this Third Amendment, capitalized terms used in this ThirdAmendment shall have the meaning given such terms in the Original Agreement. 

**Section 6.2**Use of Defined Terms. Allreferences in this Third Amendment or in the Loan Documents to the Loan Documents or the Original Agreement shall mean the Loan Documents and the Original Agreement as hereby modified. 

**Section 6.3**Counterparts. This Third Amendment may be executed in any number of counterparts with the same effect as if all partieshereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. This Third Amendment shall becomeeffective when counterparts hereof executed on behalf of the Borrower, the Administrative Agent and each of the Lenders (or notice thereof satisfactory to the Administrative Agent) shall have been received by the Administrative Agent and noticethereof shall have been given by the Administrative Agent to the Borrower and each Lender. 

**Section 6.4**Successors andAssigns Bound. This Third Amendment shall be binding upon and inure to the benefit of the parties and their respective legal representatives, permitted successors and permitted assigns. 

**Section 6.5**Governing Law. 

**6.5.1**THIS AMENDMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THEUNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY,AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLESTEXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AMENDMENT AND THE NOTE, AND THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. 

 

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**6.5.2**ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATINGTO THIS AMENDMENT MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAYNOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATEAND APPOINT: 

CORPORATION SERVICE COMPANY 

80 STATE STREET 

ALBANY, NEW YORK 12207-2543 

AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDINGIN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECTEFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROMTIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTEIF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR. 

**6.5.3** THE FIRSTLIEN MORTGAGES SHALL BE GOVERNED BY THE LAWS OF THE APPLICABLE JURISDICTION IN WHICH THE BORROWING BASE PROPERTIES ARE LOCATED. 

**6.5.4**Further Modifications. No modification, amendment, extension, discharge, termination or waiver of any provision of this Third Amendment or of any other Loan Document, nor consent to any departure by Borrower therefrom, shall in any eventbe effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such modification, amendment, extension, discharge, termination, waiver or consent shall be effective only in the specific instance,and for the purpose, for which given. 

**6.5.5**Ratification. As amended by this Third Amendment, all terms, covenants andprovisions of the Original Agreement, the Pledge Agreement, the Guarantor Pledge Agreement, the Guaranty and the Subsidiary Guaranty, and each of the other Loan Documents, are ratified and confirmed and shall be and remain in full force and effectas first written. 

**6.5.6**No Implied Extension of Loan. No term or provision in any of the Loan Documents, as amended hereby,shall constitute the express or implied consent of Administrative 

 

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Agent or any Lender to, or the express or implied satisfaction of any conditions or terms with respect to, any exercise by Borrower of any Extension Optionor any other request for the extension of the Loan, and each such request shall be subject to each term and condition applicable thereto under the Loan Documents. 

**6.5.7**Severability. In case any provision of this Third Amendment shall be invalid, illegal, or unenforceable, such provision shall be deemed to have been modified to the extent necessary to make itvalid, legal, and enforceable. The validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 

**6.5.8**Entire Agreement. The Agreement and the other Loan Documents contain the entire agreement of the parties hereto in respect of the transactions contemplated hereby, and all prior communications oragreements among or between such parties, whether oral or written, with respect to the subject matter hereof, are superseded by the terms of the Agreement and the other Loan Documents. 

**[Remainder of Page Intentionally Left Blank]**

 

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**IN WITNESS WHEREOF**, the parties hereto have caused this Third Amendment to be duly executed bytheir duly authorized representatives, all as of the day and year first above written. 

 

**BORROWER:**

STRATEGIC HOTEL FUNDING, L.L.C.

a Delawarelimited liability company
By: 
/S/ RYAN M. BOWIE
Name: Ryan BowieTitle: Vice President and TreasurerAddress: 200 West Madison Street Suite 1700 Chicago, Illinois 60606Telephone No.: (312) 658-5000Facsimile No.: (312) 658-5799Attention: General CounselWith a copy to:Strategic Hotel Funding, L.L.C.200 West Madison StreetSuite 1700Chicago, Illinois 60606Telephone No.: (312) 658-5000Facsimile No.: (312) 658-5799Attention: Treasurer
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

****DEUTSCHE BANK TRUST COMPANY****

AMERICAS, a New York banking corporation
By: 
/s/ GEORGE R. REYNOLDS
Name: George R. ReynoldsTitle: DirectorBy: 
/s/ JAMES ROLISON
Name: James RolisonTitle: Managing DirectorAddress: 60 Wall Street New York, New York 10005Telephone No.: (212) 250-3352Facsimile No.: (212) 797-4496Attention: James RolisonWith a copy to:Deutsche Bank Securities Inc.Crescent CourtSuite 550Dallas, Texas 75201Telephone No.: (214) 740-7900Facsimile No.: (214) 740-7910Attention: Linda Davis
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

CITICORP NORTH AMERICA, INC.By: 
/s/ David Bouton
Name: 
David Bouton
Title: Vice PresidentAddress: 2 Penns Way, 1st Floor New Castle, Delaware 19720Telephone No.: 302-894-6052Facsimile No.: 212-994-0849Attention: Jessica Zimmers, Loan Specialist
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

BANK OF AMERICA, N.A.
By: 
/s/ STEVEN P. RENWICK
Name: Steven P. RenwickTitle: Senior Vice PresidentAddress: 901 Main Street, 64th Floor Dallas, Texas 75202Telephone No.: 214-209-1867Facsimile No.: 214-209-0085Attention: Steven Renwick
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

JPMORGAN CHASE BANK, N.A.By: 
/s/ MARC E. CONSTANTINO
Name: Marc E. CostantinoTitle: Executive DirectorAddress: 383 Madison Avenue 40th Floor New York, New York 10179Telephone No.: 212-622-8167Facsimile No.: 646-328-3037Attention: Marc E. Costantino
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

WACHOVIA BANK, NATIONAL ASSOCIATIONBy: 
/s/ AMIT V. KHIMJI
Name: Amit V. KhimjiTitle: Vice PresidentAddress: 301 S. College Street NC 0172 Charlotte, NC 28288-0172Telephone No.: (704) 715-1347Facsimile No.: (704) 383-6205Attention: Amit V. Khimji
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

CREDIT SUISSE, Cayman Islands Branch
By: 
/s/ MIKHAIL FAYBUSOVICH
Name: Mikhail FaybusovichTitle: Vice PresidentBy: 
/s/ KARIM BLASETTI
Name: Karim BlasettiTitle: Vice PresidentAddress: Eleven Madison Avenue New York, New York 10005Facsimile No.: (646) 935-8518Telephone No.: (212) 325-5714Attention: Mikhail Faybusovich
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

BARCLAYS CAPITAL REAL ESTATE INC.By: 
/s/ LORI ANN RUNG
Name: Lori Ann RungTitle: Vice PresidentAddress: 200 Park Avenue, 5th Floor New York, NY 10166Facsimile No.: (212) 412-1664Telephone No.: (212) 412-3026Attention: David Proctor
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

RAYMOND JAMES BANK, FSBBy: 
/s/ THOMAS G. SCOTT
Name: Thomas G. ScottTitle: Senior Vice PresidentAddress: 710 Carillon Parkway PO Box 11628 St. Petersburg, FL 33733Telephone No.: (727) 567-4196Facsimile No.: (727) 567-8830Attention: Thomas Scott
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

E. SUN COMMERCIAL BANK LTD., LOS ANGELES BRANCHBy: 
/s/ BENJAMIN LIN
Name: Benjamin LinTitle: EVP & General ManagerAddress: 17700 Castleton St., Suite 500 City of Industry, CA 91748Telephone No.: 626-839-5531Facsimile No.: 626-810-2400Attention: Edward Chen
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

AAREAL CAPITAL CORPORATIONBy: 
 
Name: Title: By: 
 
Name: Title: Address: 250 Park Avenue Suite 820 New York, New York 10017Telephone No.: 646-205-4503Facsimile No.: 917-322-0290Attention: Juan Vives
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

HUA NAN COMMERCIAL BANK, LOS ANGELES BRANCHBy: 
/s/ OLIVER C.H. HSU
Name: Oliver C.H. HsuTitle: VP & General ManagerAddress: 707 Wilshire Blvd., #3100 Los Angeles, CA 90017Telephone No.: (213) 362-6666 ext.233Facsimile No.: (213) 362-6617Attention: Howard Hung/ Senior Manager
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

SUMITOMO MITSUI BANKING CORPORATIONBy: 
/s/ DAVID A. BUCK
Name: David A. BuckTitle: Senior Vice PresidentAddress: 277 Park Avenue New York, NY 10172Telephone No.: 212-224-4147Facsimile No.: 212-224-4391Attention: David Wasserman
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

METLIFE INSURANCE COMPANY OF CONNECTICUT, a Connecticut corporationBy: 
/s/ LOUIS KRUK
Name: Louis KrukTitle: DirectorAddress: 10 Park Avenue Morristown, NJ 07960Telephone No.: 973-355-4474Facsimile No.: 973-355-4420Attention: Louis Kruk
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

EUROHYPO AG, NEW YORK BRANCHBy: 
/s/ MARK A. FISHER
Name: Mark A. FisherTitle: Executive DirectorBy: 
/s/ JOHN HAYES
Name: John HayesTitle: Vice PresidentAddress: Eurohypo AG, New York Branch 1114 Avenue of the Americas 29th Floor New York, New York 10036Telephone No.:Facsimile No.: 866-267-7680Attention: Legal DirectorWith a copy to:Eurohypo AG, New York Branch1114 Avenue of the Americas, 29th FloorNew York, New York 10036Telephone No.:Facsimile No.: 866-267-7680Attention: Head of Portfolio Operations
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

  EUROPE ARAB BANK PLCBy: /s/ SJ Kemp  By: /s/ Rowan Austin SJ Kemp  Name: Rowan Austin Director Structured Trade Finance  Title: Head of Commodities & Trade FinanceAddress: 13-15 Moorgate, London EC2R 6ADTelephone No.: 0207 315 8500Facsimile No.: 0207 796 3994Telephone No.: 07703 751546Attention: Rod Taylor
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

ROYAL BANK OF CANADABy: 
 
Name: Dan LePageTitle: Attorney-in-FactAddress:   One Liberty Plaza, 4th Floor 165 Broadway New York, NY 10006-1404Telephone No.: (212)428-6459Facsimile No.: (212) 428-6605Attention: Dan LePage
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

MEGA INTERNATIONAL COMMERCIAL BANK CO., LTD. NEW YORK BRANCHBy: 
/s/ TSANG-PEI HSU
Name: Tsang-Pei HsuTitle: VP & Deputy General ManagerAddress: 65 Liberty Street New York, NY 10005Telephone No.: (212) 815-9135Facsimile No.: (212) 608-4888Attention: Mabel Chiang
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

TAIPEI FUBON COMMERCIAL BANK CO., LTD., Los Angeles BranchBy: 
/s/ SOPHIA JING
Name: Sophia JingTitle: First Vice President/General ManagerAddress: 700 S. Flower Street, Suite 3300 Los Angeles, CA 90017Telephone No.: (213) 236-9151Facsimile No.: (213) 236-9155Attention: Loan Department
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCHBy: 
/s/ JOSEPH BASSIL
Name: Joseph BassilTitle: Managing DirectorBy: 
/s/ DIRK ZIEMER
Name: Dirk ZiemerTitle: Director – Head UnderwriterLending Office andAddress for Notices:c/o Norddeutsche LandesbankGirozentrale, New York Branch1114 Avenue of the AmericasNew York, New York 10036Facsimile No.: (212) 812-6860Telephone No.: (212) 812-6809Attention: Arcadio Diaz
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

FIRST COMMERCIAL BANK NEW YORK AGENCYBy: 
/s/ MAY HSIAO
Name: May HsiaoTitle: Assistant General ManagerAddress:   750 Third Avenue, 34th Floor New York, New York 10017Telephone No.: (212) 599-6868Facsimile No.: (212) 599-6133Attention: May Hsiao
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement 

THE BANK OF EAST ASIA, LIMITED, NEW YORK BRANCHBy: 
/s/ KENNETH PETTIS
Name: Kenneth PettisTitle: Senior Vice PresidentBy: 
/s/ KITTY SIN
Name: Kitty SinTitle: Senior Vice PresidentAddress: 202 Canal Street New York, New York 10013Telephone No.: 212-238-8393Facsimile No.: 212-219-3211Attention: Ken Pettis
 

Signature Page to Strategic Hotel Funding, L.L.C. Agreement