Desert Ridge-Promissory Note


    
      
        

      

      PROMISSORY
        NOTE

      $270,000,000.00                                                                                                          
        June 15, 2005

      FOR VALUE RECEIVED, and upon the terms and
        conditions set forth in this Promissory Note (this “Promissory
        Note”), DESERT RIDGE RESORT, LLC, a Delaware limited liability
        company (“Borrower”), promises to pay to the order of
        BARCLAYS CAPITAL REAL ESTATE INC., a Delaware corporation (together with
        its
        successors and assigns, “Lender”), at Lender’s office
        located at 200 Park Avenue, New York, NY 10166, Attn:  CMBS Servicing,
        or
        at such other place as Lender may designate to Borrower in writing from time
        to
        time, the principal amount of TWO HUNDRED SEVENTY MILLION AND NO/100 DOLLARS
        ($270,000,000.00), together with interest thereon, in the amounts, at the
        times
        and otherwise in accordance with the terms set forth in that certain Loan
        Agreement of even date herewith (“Loan Agreement”)
        between Borrower and Lender, which terms are incorporated herein by this
        reference thereto.

       

      ARTICLE
        I

TERMS OF PROMISSORY NOTE

       

              Section
        1.01         
Loan Agreement.  This Promissory Note (which Promissory
        Note
        is referred to as the “Note” in the Loan Agreement) evidences the Loan made by
        Lender to Borrower pursuant to the Loan Agreement.  All capitalized
        terms
        used herein and not defined herein have the meanings specified in the Loan
        Agreement.  All of the terms, conditions and provisions of the Loan
        Agreement applicable to this Promissory Note and the debt evidenced hereby
        are
        incorporated herein by this reference thereto.

       

              Section
        1.02         
Exculpation.  NOTWITHSTANDING ANY PROVISION HEREOF
        TO THE
        CONTRARY, BORROWER’S PERSONAL LIABILITY FOR PAYMENT OF THIS PROMISSORY NOTE AND
        PERFORMANCE OF ITS OBLIGATIONS UNDER THIS PROMISSORY NOTE IS LIMITED IN THE
        SAME
        MANNER AND TO THE SAME EXTENT AS EXPRESSLY PROVIDED IN THE LOAN AGREEMENT,
        AND
        THE PROVISIONS OF ARTICLE 12 OF THE LOAN AGREEMENT ARE HEREBY INCORPORATED
        HEREIN BY THIS REFERENCE THERETO.

       

              Section
        1.03         
Borrower’s Waivers.  Borrower, for itself and all others
        who
        may become liable for payment of all or any portion of this Promissory Note,
        hereby waives presentment for payment, demand, protest, and notice of dishonor,
        protest, nonpayment, demand, intent to accelerate, and acceleration. Borrower,
        for itself and all others who may become liable for payment of all or any
        portion of this Promissory Note, hereby further waives and renounces, to
        the
        fullest extent permitted by law, all rights to the benefits of any moratorium,
        reinstatement, marshalling, forbearance, valuation, stay, extension, redemption,
        appraisement, exemption and homestead now or hereafter provided, both as
        to
        party and property (real and personal), against the enforcement and collection
        of the obligations evidenced by this Promissory Note or any of the other
        Loan
        Documents.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

              Section
        1.04         
Unconditional Payment.  Any payment received by Lender
        hereunder that is required to be refunded or recovered from Lender as a voidable
        preference or a fraudulent transfer or is otherwise set-aside pursuant to
        the
        Bankruptcy Code or any insolvency or other debtor relief law shall not be
        considered as a payment made on the Loan or under this Promissory Note. 
        Borrower’s liability under this Promissory Note to make such payment shall be
        reinstated, notwithstanding that this Promissory Note may have been marked
        satisfied and returned to Borrower or otherwise canceled, and such payment
        shall
        be immediately due and payable upon demand.

       

      ARTICLE
        II

DEFAULT AND REMEDIES

       

              Section
        2.01         
Event of Default.  A default (“Event of Default”)
        shall occur under this Promissory Note if an “Event of Default”, as that term is
        defined under the Loan Agreement or any other Loan Document, has occurred
        and
        remains uncured.

       

              Section
        2.02         
Cumulative and Independent Remedies.  Following an Event of
        Default (which has not been waived in writing by Lender), Lender, without
        notice
        or consent from Borrower, shall be entitled to exercise all rights and remedies
        as have been provided to Lender hereunder, under the Loan Agreement and other
        Loan Documents, by law or in equity.  Such rights and remedies are
        cumulative and may be exercised independently, concurrently or successively
        in
        Lender’s sole discretion and as often as occasion therefor shall arise. No
        partial exercise by Lender of any right or remedy will preclude further exercise
        thereof.  Notice or demand given to Borrower in any instance will
        not
        entitle Borrower to notice or demand in similar or other circumstances or
        constitute Lender’s waiver of its right to take any future action in any
        circumstance without notice or demand (except where expressly required by
        this
        Promissory Note, the Loan Agreement or other Loan Documents to be given).
        Lender
        may release security for the Loan, may release any party liable for the Loan,
        may grant extensions, renewals or forbearances with respect thereto, and
        may
        apply any security held by it to payment of the Loan, in each case without
        prejudice to its rights under this Promissory Note.  Lender will not
        be
        deemed as a consequence of its delay or failure to act, or any forbearances
        granted, to have waived or be estopped from exercising any of its rights
        or
        remedies.

       

      ARTICLE
        III

MISCELLANEOUS
        PROVISIONS

       

              Section
        3.01         
Savings Clause.  At no time is Borrower required
        to pay
        interest on the Loan or on any other payment due under any of the Loan Documents
        (or to make any other payment deemed by law or by a court of competent
        jurisdiction to be interest) at a rate which would subject Lender either
        to
        civil or criminal liability as a result of being in excess of the maximum
        interest rate which Borrower is permitted by applicable law to pay. 
        If
        interest (or such other amount deemed to be interest) paid or payable by
        Borrower is deemed to exceed such maximum rate, then the amount to be paid
        immediately shall be reduced to such maximum rate and thereafter computed
        at
        such maximum rate. All previous payments in excess of
        such maximum rate shall be deemed to have been payments of principal (in
        inverse
        order of maturity) and not on account of interest due hereunder. 
        For
        purposes of determining whether any applicable usury law has been violated,
        all
        payments deemed by law or a court of competent jurisdiction to be interest
        shall, to the extent permitted by applicable law, be deemed to be amortized,
        prorated, allocated and spread over the full term of the Loan in such manner
        so
        that interest is computed at a rate throughout the full term of the Loan
        which
        does not exceed the maximum lawful rate of interest.

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

              Section
        3.02         
Incorporation from Loan Agreement.  All provisions of
        Articles 12, 17 and 18, inclusive, of the Loan Agreement are
        incorporated into this Promissory Note by this reference thereto, as if fully
        reproduced herein.

       

              Section
        3.03         
Joint and Several.  If Borrower consists of more than
        one
        Person, each such Person shall be jointly and severally liable
        hereunder.

       

              Section
        3.04         
Governing Law.  THIS PROMISSORY NOTE WAS NEGOTIATED
        IN THE
        STATE OF <?xml:namespace prefix = st1 ns =
        "urn:schemas-microsoft-com:office:smarttags" />NEW YORK AND WAS MADE BY
        BORROWER AND ACCEPTED BY LENDER IN THE STATE OF NEW YORK.  THE PROCEEDS
        OF
        THIS PROMISSORY NOTE WERE DISBURSED FROM THE STATE OF NEW YORK. THE PARTIES
        AGREE THAT THE STATE OF NEW YORK HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES
        AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY AND THAT IN ALL RESPECTS,
        INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
        CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS PROMISSORY NOTE 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).  TO THE
        FULLEST
        EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY
        WAIVES
        ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
        PROMISSORY NOTE AND THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED
        IN
        ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
        SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

       

              Section
        3.05         
Consent to Jurisdiction.  ANY LEGAL SUIT, ACTION OR
        PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS
        PROMISSORY NOTE 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 MAY NOW 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 DESIGNATE AND APPOINT:

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      Richard
        J. Fildes, Esq.
Lowndes, Drosdick, Doster, Kantor & Reed, PA
450 South
        Orange Avenue, Suite 800
Orlando, FL  32801

      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 PROCEEDING IN 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 RESPECT EFFECTIVE 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
        FROM
        TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW
        YORK,
        NEW YORK OR ORLANDO, FLORIDA, AS APPLICABLE (WHICH SUBSTITUTE AGENT AND OFFICE
        SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND
        (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED
        AGENT
        CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR ORLANDO, FLORIDA, AS
        APPLICABLE, OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.

       

              Section
        3.06         
WAIVER OF JURY TRIAL.  BORROWER HEREBY WAIVES ITS RIGHT,
        TO
        THE FULL EXTENT PERMITTED BY LAW, AND AGREES NOT TO ELECT, A TRIAL BY JURY
        WITH
        RESPECT TO ANY ISSUE ARISING OUT OF THIS PROMISSORY NOTE OR THE RELATIONSHIP
        BETWEEN THE PARTIES AS BORROWER AND LENDER.

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    IN WITNESS WHEREOF, the undersigned hereby signs
      and delivers this Promissory Note, intending to be legally bound hereby.

    
      	 	 	 

              BORROWER:

            
	 	       
              DESERT
              RIDGE RESORT, LLC,
	 
 	 
 	a
              Deleware limited liability company
 
	 	By:  	/s/ John
              X. Brady, Jr.
	 	
              
Name:
              John X. Brady, Jr.
	 	Title:
              Vice President