Exhibit
10.2


FIRST
AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS

AGREEMENT


THIS FIRST AMENDMENT
TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this “Amendment”) is made as of this       
day of July, 2007 by and among MezzCo, L.L.C., a Nevada limited liability
company (the “Company”), EquityCo,
L.L.C., a Nevada limited liability company and the sole member of the Company (“EquityCo” or the “Member”) and
the persons identified on the signature pages hereto as the Mezzanine Investors
(each, a “Mezzanine Investor” and
collectively, the “Mezzanine Investors”).


WITNESSETH:


WHEREAS, the Securityholders (as defined
below), the Company and the other signatories thereto are parties to that
certain Investor Rights Agreement dated as of August 9, 2004 (the “Original Investor Rights Agreement”) pursuant to which,
among other things, the Mezzanine Investors acquired warrants (the “Original Warrants”) in an aggregate amount of 17,500 of the
Company’s units (subject to adjustment and increase as provided in the Original
Warrants) representing membership interests in the Company;


WHEREAS, the Company, the Mezzanine Investors and other members of the
Company or holders of securities convertible into securities of the Company
(together with the Member, the “Non-Mezz Investors”)
are parties to that certain Amended and
Restated Investors Rights Agreement dated as of November 30, 2006 (the “Investors Agreement”) and (i) the Company entered
into that certain credit facility with Column Financial Inc., in the aggregate
amount of up to $820,000,000 (the “CMBS Facility”),
and (ii) in connection therewith, the
Company and the Securityholders determined to enter into the Investors
Agreement which amends, restates and supersedes the Original Investor Rights
Agreement and the terms of the Original Warrants (each such amended and
restated Original Warrant, a “Warrant”
and collectively, the  “Warrants”).  The Mezzanine Investors and the Non-Mezz
Investors are herein collectively referred to as the “Securityholders” and each a “Securityholder.”


WHEREAS, the parties to the Investors
Agreement desire to amend the terms of the Investors Agreement and upon the
terms and subject to the conditions set forth herein.


NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree as follows:


1.             Defined
Terms.  Capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Investors
Agreement.


2.             Amendments
to Investors Agreement.  Upon
satisfaction of the conditions set













forth in Section 3
hereof, the Investors Agreement is hereby amended as follows:


(i)  The definition of “Additional Room
Renovation Expenses” is hereby added to Section 1.3 of the Investors Agreement
as follows:


“ ‘Additional Room Renovation Expenses’ means expenses
Incurred by the Company and its Subsidiaries to renovate rooms at the Hotel
Premises in addition to the 608 rooms included within the original renovation
plan approved by the CMBS Lenders.”


(ii)                                  The
definition of “GAAP” is hereby added to Section 1.3 of the Investors Agreement
as follows:


“ ‘GAAP’ means
United States generally accepted account principles, as in effect from time to
time.”


(iii)  The
definition of “Incurred” is hereby added to Section 1.3 of the Investors
Agreement as follows:


“ ‘Incurred’
means expenses incurred or accrued, payables accrued, and/or
capital expenditures recorded by the Company or any of its Subsidiaries during
the relevant period all in accordance with GAAP.”


(iv)  The
definition of “Permitted Indebtedness” is hereby amended and restated in its
entirety as follows:


“ ‘Permitted Indebtedness’ means (a) Indebtedness incurred in
connection with the CMBS Facility and any Indebtedness incurred in refinancings
of the outstanding principal amount of the CMBS Facility (together with any
accrued interest, premiums, and any reasonable fees and expenses incurred
therewith); provided that in no event shall the principal amount thereof exceed
$860 million less the amount of any repayments of principal and any permanent reductions
in the commitments, and (b) Indebtedness incurred in connection with the
financing of the utility plant owned and operated by Northwind and located on
the Energy Premises.”


(v)  Sections
7.7 (m) and (n) of  the Investors
Agreement are hereby amended and restated in their entirety as follows:


“(m)        concurrently
with the delivery of any financial and other reports and notices to the CMBS
Lender under the CMBS Documents or any other holder of Indebtedness, a copy of
all such financial and other reports and notices so delivered;


“(n)         such
additional information as the Majority Holders may from time to time reasonably
request regarding the financial and business affairs, operations or prospects
of the Company and its Subsidiaries; and”



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(vi)  Section
7.7 (o) shall be added to the Investors Agreement in its entirety as follows:


“(o)         within
six months of a draw upon the Tranche B facility under the CMBS Documents, a
certificate from an Approved Officer of the Company (with supporting
calculations) that demonstrates that the Company has Incurred Additional Room
Renovation Expenses, whether Incurred prior to or after the date of such draw,
in an amount at least equal to the amount of such draw.”


(vii)  Section
8.4 of the Investors Agreement is hereby amended and restated in its entirety
as follows:


“Section 8.4.  Limitations
on Incurrence of Indebtedness and Issuance of Interests.  Notwithstanding any provision of this
Agreement to the contrary, no Indebtedness (other than Permitted Indebtedness)
shall be incurred by EquityCo or any of its Subsidiaries and no additional
Interests in the Company or any of its Subsidiaries shall be issued to any
Person, until such time as at least $100 million in cash is contributed to the
Company (the “Minimum Equity Contribution”)
for common Interests of the type authorized and issued as of the date
hereof.  In no event shall the Interests
issuable in respect of the Minimum Equity Contribution be dilutive to the
percentage interest of any Mezzanine Investor, and in connection with any such
issuance the number of Warrant Interests (as defined in the Warrants) issuable
upon exercise or conversion of the Warrant by such Mezzanine Investor shall be
increased by the number of units of additional Equity Interests as is necessary
to maintain at least the same percentage interest of such Mezzanine Investor in
the Company and, indirectly, in its Subsidiaries, that such Mezzanine Investor’s
Warrant represented immediately prior to the Minimum Equity Contribution.  Upon request of any Mezzanine Investor, the
Company shall deliver a certificate of an Approved Officer confirming the
adjustment to the Warrant.  The
requirement to make a Minimum Equity Contribution shall be reduced, on a
dollar-for-dollar basis, by the net proceeds received by the Company in a
Qualified Public Offering.”


3.             Conditions.  The effectiveness of this Amendment is
subject to the following conditions:


a.             The Company shall have executed and
delivered this Amendment.


b.             The Company shall have delivered the
Indemnification Agreement dated as of July      ,
2007, made by and between BH/RE, L.L.C and the Mezzanine Investors.



 3
 









c.             The Company shall have delivered, or shall
have caused to be delivered  such other
documents, agreements and instruments as may be reasonably requested by
Mezzanine Investors, each such document, agreement and instrument in form and
content reasonably acceptable to Mezzanine Investors.


d.             The Mezzanine Investors shall have
executed this Amendment.


e.             All proceedings taken in connection with
the transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to the Mezzanine
Investors and their legal counsel;


f.              The Company shall have paid all costs and
expenses incurred by the Mezzanine Investors in connection with the
preparation, negotiation, execution and delivery of this Amendment and any
documents executed or delivered in connection herewith.


4.             No
Modification.  Except as amended
hereby, the Investors Agreement remains unmodified and is in full force and
effect.


5.             Warrants.  The Company and the Mezzanine Investors agree
that the Company shall issue to each Mezzanine Investor an Amended and Restated
Warrant To Purchase Membership Interests of MEZZCO, L.L.C. (each, a “Warrant Certificate”)
in the form of Exhibit A attached hereto within fourteen (14) days of
the date hereof; provided, that in order for a Mezzanine Investor to receive
its Warrant Certificate, such Mezzanine Investor shall have complied with its
obligations under Section 9 of the Restructuring Agreement, including without
limitation, delivery to the Company of such Mezzanine Investor’s Note(s) (as
defined in the Restructuring Agreement) and/or Warrant(s) (as defined in the
Restructuring Agreement) (or evidence indicating such Note(s) and/or Warrant(s)
have been lost, stolen or misplaced, in the form of an affidavit reasonably
acceptable to the Company), and the Company shall be under no obligation to
deliver such Warrant Certificate until such time as such Mezzanine Investor
shall have complied with such obligations. 
In addition, the Mezzanine Investors agree that Exhibit A hereto shall
replace Exhibit 3(h) of the Restructuring Agreement.


6.             Counterparts.  This Amendment may be executed by one or more
of the parties to this Amendment and any number of separate counterparts, each
of which when so executed, shall be deemed an original and all said
counterparts when taken together shall be deemed to constitute but one and the
same instrument.  Any signature delivered
by a party by facsimile or portable document format (pdf) transmission shall be
deemed an original signature hereto.


7.             Successors
and Assigns.  This Amendment shall be
binding upon and inure to the benefit of the Company and its successors and
assigns and Mezzanine Investors and their successors and assigns.


8.             Further
Assurance.  The Company hereby agrees
from time to time, as and when requested by the Mezzanine Investors, to execute
and deliver or cause to be executed and delivered, all such documents, instruments
and agreements and to take or cause to be taken such



 4
 









further or other action as the Mezzanine Investors may
reasonably deem necessary or desirable in order to carry out the intent and
purposes of this Amendment and the Investors Agreement.


9.             GOVERNING LAW.  THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


10.           Severability.   Wherever
possible, each provision of this Amendment shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Amendment.


[Remainder of Page Intentionally Left Blank; Signature Page Follows]



 5















IN WITNESS WHEREOF,
each of the undersigned has executed this Amendment as of the date set forth
above.


	
  

  	
  THE COMPANY:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MezzCo, L.L.C.,

  
	
   

  	
  a Nevada limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DONNA LEHMANN

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Donna Lehmann

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President/Chief Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
  MEMBER:

  	
   

  
	
   

  	
   

  
	
   

  	
  EquityCo,
  L.L.C.,

  
	
   

  	
  a Nevada limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ DOUGLAS
  TEITELBAUM

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Douglas
  Teitelbaum

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Manager

  	
   

  
								



 













 


	
  

  	
   

  	
  MEZZANINE INVESTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  POST TOTAL RETURN MASTER FUND, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  POST DISTRESSED MASTER FUND, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  STATE OF SOUTH DAKOTA RETIREMENT

  SYSTEM FUND

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its Authorized

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  DB DISTRESSED OPPORTUNITIES MASTER

  PORTFOLIO, LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its Authorized

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  MW POST PORTFOLIO FUND, LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its Authorized

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  THE OPPORTUNITY FUND, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its Authorized

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  HFR DS OPPORTUNITY MASTER TRUST

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, L.L.C., its Authorized

  Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  POST HIGH YIELD, L.P.

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, LLC, its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  POST BALANCED FUND, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Post Advisory Group, LLC, its General

  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ CARL GOLDSMITH

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Carl Goldsmith

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Investment Officer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  CANPARTNERS INVESTMENTS IV, L.L.C.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ MITCH JULIUS

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Mitch Julius

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Managing Partner

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  CONTINENTAL CASUALTY COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ MARILOU R. MCGIRR

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Marilou R. McGirr

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President and Assistant Treasurer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  JOHN HANCOCK HIGH YIELD FUND

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ ISMAIL GUNES

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Ismail Gunes

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President Investment Operations

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  COCHRAN ROAD, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ LAWRENCE CUTLER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Lawrence Cutler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Operating Officer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
  

  	
   

  	
   

  	
  YORK CREDIT OPPORTUNITIES FUND, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ ADAM J. SEMLER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  	
  Adam J. Semler

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
							



 


[Signature Page to
First Amendment to Investors Agreement]













 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  

  	
   

  	
   

  	
   

  	
  /s/ JEFFREY D. BENJAMIN

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  JEFFREY D. BENJAMIN

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Signature Page to
First Amendment to Investors Agreement]