Unassociated Document


    FIFTH
AMENDMENT TO LOAN DOCUMENTS

     

    THIS
FIFTH AMENDMENT TO LOAN DOCUMENTS (“Fifth Amendment”) is effective as of
March 22, 2010 (“Effective
Date”), and is made by and between Private Escapes Pinnacle, LLC, a
Colorado limited liability company (“Borrower”) and Kederike, LLC,
a Colorado limited liability company (“Lender”), and is joined by
Ultimate Escapes Holdings, LLC, a Delaware limited liability company (“Holdings”), solely with
respect to Sections 2(a) and 2(b)(i) below, as the successor in interest of
Borrower with respect to ownership of Private Escapes Pinnacle 1600 Broadway,
LLC, a New York limited liability company (“1600 LLC”).

     

    Background
Information

     

    By this
Fifth Amendment, Lender and Borrower seek to further amend the Loan Agreement
between Borrower and Lender dated June 1, 2006, (the “Loan Agreement”), as
previously amended by a First Amendment to Loan Agreement dated November 13,
2006 (the “First
Amendment”), a Second Amendment to Loan Agreement dated December 21, 2007
(the “Second
Amendment”), a Third Amendment to Loan Documents dated March 31, 2008
(the “Third Amendment”),
and the Fourth Amendment to Loan Documents dated March 20, 2009 (the “Fourth
Amendment”).  Unless a capitalized term is defined otherwise in
this Fifth Amendment, it shall have the same meaning as in the Loan Documents,
as previously amended.

     

    On
September 15, 2009 (the “Closing Date”), Borrower and
certain of its affiliates and Holdings and certain of its affiliates consummated
transactions contemplated by that Third Amended and Restated Contribution
Agreement dated as of July 21, 1009, as amended (“Contribution
Agreement”).  Included among the transactions consummated was
an assignment to a subsidiary of Holdings of all of Borrower’s right, title and
interest in and to 1600 LLC.  As of the Closing Date, 1600 LLC owned
as its principal assets the real property located at 1600 Broadway, PH5D, New
York, New York, and all of the furnishings, fixtures and equipment in place on
that real property as of the Closing Date (collectively, the “1600 Property”).  As
of the Closing Date, 1600 LLC was subject to the Pledge Agreement, and the 1600
Property was subject to Security Instrument in favor of Lender titled “Mortgage
and Security Agreement” which is dated January 31, 2007 and was recorded in the
records of New York County, New York on February 12, 2007, at Document ID
2007000081077 (the “1600
Mortgage”).   Excluded from the transactions contemplated
by the Contribution Agreement was any transfer by Borrower of its interests in
any of the other real estate or property referred to in the Loan Agreement, as
amended (“Other
Properties”), all of which has been retained by Borrower.

     

    By this
Fifth Amendment, the parties seek to cause a portion of the amount due and
certain obligations under the Loan Documents to be bifurcated from the Loan and
assumed by Holdings on the terms and conditions below, after which Holdings
shall be solely responsible and liable for the bifurcated amount and
obligations, and Borrower shall remain responsible and liable for all other
amounts and obligations under the Loan.

     

    Agreement

     

    For good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties agree:


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    1.           Consent to
Assignment.  Lender acknowledges that, as of the Closing Date,
Borrower has assigned to UE Member NCS, LLC, a Delaware limited liability
company and an affiliate of Holdings (“NCS”), all of Borrower’s
right, title and interest in and to 100% of the membership interests in the 1600
LLC, and Lender consents to such assignment.

     

    2.           Amendment. The Loan Documents
are amended as follows, notwithstanding existing terms of any of the Loan
Documents to the contrary:

     

    (a)           Partial
Assumption.  Contemporaneously with execution of this Fifth
Amendment, Holdings has assumed a portion of the remaining principal amount due
under the Loan, in an amount equal to $234,031.25 (the “Partial Assumption
Amount”).  This partial assumption has been effected
by:

     

    (i)           Holdings’
execution and delivery to Lender of the Promissory Note attached as Exhibit A to
this Fifth Amendment (“Holdings
Note”);

     

    (ii)          Holdings’
tender to Lender within seven (7) days of the Effective Date, in good funds, the
sum of $6,414.41, representing accrued interest on the Partial Assumption Amount
from the Closing Date through  January 31, 2010 (“Partial Assumption
Interest”);

     

    (iii)         Holdings’,
1600 LLC’s and Lender’s execution of the First Amendment to Mortgage and
Security Agreement attached as Exhibit B to this Fifth Amendment (“First Amendment to 1600
Mortgage”); and

     

    (iv)         Borrower’s
and Lender’s execution of the First Amendment to Pledge Agreement attached as
Exhibit C to this Fifth Amendment (“First Amendment to Pledge
Agreement”); and

     

    (v)          Execution
of the Pledge Agreement attached as Exhibit D to this Fifth Amendment (“Holdings’ Pledge Agreement”)
by Holdings, NCS and Lender.

     

    (b)           Effect.  By
these actions, the parties intend that, as of the Effective Date:

     

    (i)           The
obligations of Holdings shall be only those obligations set forth in Section
2(a) of this Fifth Amendment, the Holdings Note, the 1600 Mortgage as amended by
the First Amendment to 1600 Mortgage and the Holdings’ Pledge
Agreement.  Holdings shall not be deemed to have assumed or undertaken
any obligation that is not expressly stated in Sections 2(a) of this Fifth
Amendment, the Holdings Note, the 1600 Mortgage as amended by the First
Amendment to 1600 Mortgage or the Holdings’ Pledge Agreement.  The
respective obligations of Holdings and Borrower SHALL NOT be cross-defaulted or
cross-collateralized.

     

    (ii)          Borrower’s
repayment obligation under the Loan Documents shall be reduced by the amount of
the Partial Assumption Amount and Partial Assumption Interest.

     

    
       

    

    
 

    
      
         
Fifth Amendment to Loan
Documents

      

      
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    (iii)         All
other obligations and liabilities under the Loan Documents and this Fifth
Amendment shall be or remain the obligations of Borrower.

     

    3.           Ratification. Except as
modified by this Fifth Amendment and each prior amendment, all other terms and
conditions of the Loan Documents remain in full force and effect.

     

    4.           Counterparts. This Fifth
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. This Fifth Amendment may be executed and delivered by facsimile or
email transmission of a file in “.pdf” or similar format and upon such delivery,
each signature shall be deemed to have the same effect as if the original
signature had been delivered to the other party(ies) hereto.

     

    [signature
page follows]


    
      
        Fifth
Amendment to Loan Documents

      

      
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    BY THEIR
SIGNATURES BELOW, the parties have caused this Fifth Amendment to Loan Documents
to be executed and delivered as of the Effective Date stated above.

    


    
      
        	
                BORROWER:

              	 
      	
                LENDER:

              	 
      
	 
      	 
      	 
      	 
      
	
                PRIVATE
      ESCAPES PINNACLE, LLC

              	 
      	
                KEDERIKE,
      LLC

              	 
      
	
                By:  Private
      Escapes Holdings, LLC

              	 
      	 
      	 
      	 
      
	
                Manager

              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                /s/ Richard V. Keith Jr.

              	 
      	
                By:

              	
                /s/ Kenneth E. DeLine

              	 
      
	 
      	
                Richard
      V. Keith, Jr., Managing Member

              	 
      	 
      	
                Kenneth
      E. DeLine, Manager

              	 
      


      

    

    


    HOLDINGS:

    


    ULTIMATE
ESCAPES HOLDINGS, LLC

    


    
      
        	
                By:

              	
                /s/  Philip
    Callaghan

              	 
      


      

    

    
      
        	
                Name:

              	
                Philip Callaghan

              	 
      


      

    

    
      
        	
                Title:

              	
                SVP/CFO

              	 
      


      

    

    


    TABLE
OF EXHIBITS

    


    
      
        
          
            	
                    Exhibit

                  	 
      	
                    Description

                  
	 
      	 
      	 
      
	
                    A

                  	 
      	
                    Holdings
      Note

                  
	 
      	 
      	 
      
	
                    B

                  	 
      	
                    First
      Amendment to 1600 Mortgage

                  
	 
      	 
      	 
      
	
                    C

                  	 
      	
                    First
      Amendment to Pledge Agreement

                  
	 
      	 
      	 
      
	
                    D

                  	
                      

                  	
                    Holdings’
      Pledge
Agreement

                  


          

        

      

    


    
      
        Fifth Amendment to Loan Documents

      

      
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    EXHIBIT
D

    


    PLEDGE
AGREEMENT

     

    THIS
PLEDGE AGREEMENT, made and entered into this _________ day of March, 2010, by
and between ULTIMATE ESCAPES HOLDINGS, LLC, a Delaware limited liability company
and UE MEMBER NCS, LLC, a Delaware limited liability company (collectively,
“Borrower”) and
KEDERIKE, LLC, a Colorado limited liability company (“Secured Party”).

     

    RECITALS

     

    Secured
Party has made a loan to Borrower that is represented by a Promissory Note (the
“Note”) dated as of the
date of this Pledge Agreement. The parties intend for this loan to be secured by
Borrower’s pledge of a security interest granted by Borrower in favor of Secured
Party against the Collateral described below. All capitalized terms in this
Pledge Agreement not otherwise defined herein shall have the meanings given them
in the Note.

     

    AGREEMENT

     

    In
consideration of the mutual covenants and conditions hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree:

     

    1.           Definitions. “Collateral” shall mean all of
Borrower’s right, title and interest in and to Borrower’s membership interest in
Private Escapes Pinnacle 1600 Broadway, LLC, together with: (i) any and all
distributions made in respect of such interests at any time during which any
amount remains due under the Note; and (ii) any interests into which such
interests may be the converted, or for which such interests may be exchanged, at
any time during which any amount remains due under the Note; and (iii) all
contractual, legal, equitable or other rights held by Borrower with regard to
such interests; and (iv) all proceeds of the interests.

     

    2.           Pledge. As security
for the Note, Borrower hereby pledges the Collateral to Secured Party as a
continuing first-lien security interest in the Collateral.

     

    3.           Obligations Secured.
Subject to the provisions of paragraph 5 of this Pledge Agreement, this Pledge
Agreement is made to secure repayment of the Note and Borrower’s obligations in
the Note.

     

    4.           Representations and
Warranties. Borrower expressly represents and warrants as
follows:

     

    (a)           To
Borrower’s knowledge, except for the security interest granted hereby, Borrower
owns the Collateral free and clear from any adverse claim, lien, encumbrance,
security interest, charge or any other right, title or interest which
constitutes an imperfection of title.

     

    (b)           Borrower
will defend the Collateral against all claims and demands of all persons at any
time claiming the same or any interest therein.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    (c)           Borrower
has full power and lawful authority to grant to Secured Party a valid security
interest in the Collateral as herein provided.

     

    (d)           Until
the Note is paid in full, Borrower will not transfer, encumber, dispose of or
alienate the Collateral or any interest therein without the prior written
consent of the Secured Party, such consent shall not be unreasonably withheld,
The Note shall become immediately due and payable in full upon any sale,
transfer, disposition or alienation of the Collateral.

     

    (e)           Borrower
will not permit or allow any adverse lien, security interest or encumbrance
whatsoever upon the Collateral and not to permit the same to be attached or
replevied without the written consent of Secured Party, which consent shall not
be unreasonably withheld.

     

    5.           Events of Default.
For purposes of this Agreement, “Default” shall be defined to
include any of the following events, if not cured within the applicable period
after Borrower’s receipt of timely written notice from Secured
Party:

     

    (a)           Any
event of default as specified in the Note;

     

    (b)           Breach
of any representation or warranty made by Borrower herein; or

     

    (c)           Failure
by Borrower to timely perform any other obligation owed by that Borrower to
Secured Party in this Pledge Agreement or the Note.

     

    If no
period to cure a Default is specified in the Note or otherwise, Borrower shall
have a period of 30 days after receipt of written notice of default from Secured
Party in which to cure such default.

     

    6.           Remedies of Secured Party in
Event of Default. If any Default is not cured within the applicable
period after receipt of written notice from Secured Party, Secured Party may
declare all obligations secured hereby immediately due and payable and shall
have all of the rights and remedies of a “secured party” under applicable law,
and may cause the Collateral to be transferred to Secured Party or its designee.
Secured Party will accept the pledged Collateral in full satisfaction of the
principal amount of indebtedness in the event of default. The interest
obligation of Borrower or right to repayment of interest from Borrower shall be
governed by the provisions of the Note.

     

    7.           Additional
Provisions. The following additional provisions shall apply:

     

    (a)           Preservation of
Collateral. Borrower shall perform all of Borrower’s obligations under
any laws, rules or documents governing the ownership of the Collateral. If the
Borrower fails to perform any of Borrower’s obligations in this Pledge
Agreement, or if any action or proceeding is commenced which materially affects
Secured Party's interest in the Collateral, then Secured Party, at Secured
Party's option, with notice to Borrower if required by law, may make such
appearances, disburse such sums and take such action as is necessary to protect
Secured Party's interest. Any amounts disbursed by Secured Party pursuant to
this paragraph, with interest thereon at the rate provided in the Note, shall
become additional indebtedness of Borrower secured by this Pledge Agreement.
Such amounts shall be payable upon notice from Secured Party to Borrower
requesting payment thereof, and Secured Party may bring suit to collect any
amounts so disbursed plus interest at the rate stated in the Note. Nothing
contained in this paragraph shall require Secured Party to incur any expense or
take any action hereunder.


    
      
         


      

      
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    (b)           Remedies Cumulative.
Each remedy provided in the Note or this Pledge Agreement shall be distinct from
and cumulative to all other rights or remedies under the Note or this Pledge
Agreement or afforded by law or equity, and may be exercised concurrently,
independently or successively.

     

    8.           Waiver. No waiver by
Secured Party of any Default shall operate as the waiver of any other Defaults
or of the same Default on a future occasion. Any forbearance by Secured Party in
exercising any right or remedy hereunder, or otherwise afforded by law, shall
not be a waiver or preclude the exercise of any such right or
remedy.

     

    9.           Notices. Borrower
hereby waives presentment, demand, notice, notice of dishonor, notice of
acceptance of this Pledge Agreement and hereby assents to any extension or
postponement of any payment or of any other indulgence, to any release of
Collateral, to the addition or release of any party or person, primarily or
secondarily liable, to the acceptance of partial payments thereon in the
settlement, compromising or adjusting of any part thereof, all in such manner
and at such time or times as the Secured Party may deem advisable. Any notice
required by law or by this Pledge Agreement shall be deemed given if sent by
certified mail, return receipt requested, postage prepaid, to the recipient at
the address set forth below each party’s signature below, and shall be deemed
given as of the third business day after mailing.

     

    10.         Miscellaneous.

     

    (a)           Binding Effect. All
agreements and duties of Borrower under this Pledge Agreement shall bind
Borrower, its successors, or assigns, and all rights of Secured Party hereunder
shall inure to the benefit of his successors, personal representatives, heirs
and/or assigns.

     

    (b)           Governing Law. This
Pledge Agreement shall be governed by and construed in accordance with the laws
of Colorado.

     

    (c)           Termination. This
Pledge Agreement shall automatically terminate upon Borrower’s payment in full
of the Note and any sums due and owing thereunder.

     

    (d)           Further Assurances.
Borrower agrees to take such further action as may be reasonably requested by
Secured Party in order to perfect the security interest granted
hereby.

     

    (e)           Assignment. Borrower
acknowledges that Secured Party's rights under this Pledge Agreement may be
assigned by Secured Party, with notice to Borrower.


    
      
         


      

      
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    (f)           Construction. All
headings and titles in this Pledge Agreement are for convenience of reference
only and shall not affect the meaning of any term or provision of this Pledge
Agreement.

     

    (g)           Rights of Secured
Party. Secured Party may, but shall not be obligated to, at any time
without notice and at the expense of Borrower: (a) give notice to any person of
Secured Party's rights hereunder and enforce such rights; and (b) protect,
defend and preserve the Collateral or any rights or interests of Secured Party
therein; and (c) upon an event of Default that is not cured within the
applicable period, cause the Collateral to be transferred to Secured Party or
any designee of Secured Party. Secured Party shall have no duty or obligation to
make or give any presentments, demands for performance, notices of
nonperformance, notices of protest or notices of dishonor in connection with any
of the Collateral.

     

    (h)           Counterpart
Signatures. This Pledge Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
instrument.

     

    [signature
page follows]

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, Borrower and Secured Party have signed this Pledge Agreement as
of the date first above written.

     

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                BORROWER:

                              	 
      	
                                SECURED
      PARTY:

                              	 
      
	 
      	 
      	 
      	 
      
	
                                ULTIMATE
      ESCAPES HOLDINGS, LLC

                              	 
      	
                                KEDERIKE,
      LLC

                              	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                By:

                              	/s/
      Philip Callaghan  	 
      	
                                By:

                              	/s/
      Kenneth E. DeLine	 
      
	
                                Title:

                              	SVP/CEO 
      	 
      	
                                Title:

                              	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                Address
      for Notices:

                              	 
      	
                                Address
      for Notices:

                              	 
      
	
                                Ultimate Resort
    LLC  

                              	 
      	
                                P.O. Box 230  

                              	 
      
	
                                3501 W. Vine Street:
      Suite 335 

                              	 
      	
                                Ridgway, CO
    81432  

                              	 
      
	Kissimmee,
      FL 34741 	 	 	 
	 
      	 
      	 
      	 
      	 
      
	
                                UE
      MEMBER NCS, LLC

                              	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      	 
      
	
                                By:

                              	/s/
      Philip Callaghan	 
      	 
      	 
      	 
      
	
                                Title:

                              	SVP/CEO 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                                Address
      for Notices:

                              	 
      	 
      	 
      	 
      
	
                                      
                                  Ultimate Resort
      LLC

                                

                              	 
      	 
      	 
      	 
      
	
                                      
                                  3501 W. Vine Street:
      Suite 335  

                                

                              	 
      	 
      	 
      	 
      
	Kissimmee,
      FL 34741 	 	 	 	 


                      

                    

                  

                

              

            

          

        

      

    


    
      
         


      

      
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