Exhibit 10.5





Exhibit 10.5




SECOND AMENDMENT TO LOAN AGREEMENT




by and between




HRHH DEVELOPMENT TRANSFEREE, LLC,

as Borrower




and




EASTERN CAPITAL FUND I SPE (VEGAS PARADISE) LLC,

as Lender




Dated: As of December 24, 2009






 


 









 







SECOND AMENDMENT TO LOAN AGREEMENT




THIS SECOND AMENDMENT TO LOAN AGREEMENT, dated as of December 24, 2009 (this “Amendment”), is
made by and between EASTERN CAPITAL FUND I SPE (VEGAS PARADISE) LLC, a Delaware limited liability
company (together with its, successors and assigns, as successor in interest to Original Lender
(defined below), “Lender”), and HRHH DEVELOPMENT TRANSFEREE, LLC, a Delaware limited liability
company, having its principal place of business c/o Morgans Hotel Group Co., 475 Tenth Avenue, New
York, New York 10018, Attention: Marc Gordon, Chief Investment Officer (“Borrower”) and agreed to
and accepted by EASTERN CAPITAL FUND I SPE (VEGAS PARADISE AFFILIATE) LLC, a Delaware limited
liability company (“Eastern Affiliate”), and NRFC UL HOLDINGS, LLC, a Delaware limited liability
company (“NRFC”).



W I T N E S S E T H:




WHEREAS, Column Financial Inc., a Delaware corporation (“Original Lender”), made a mortgage
loan to Borrower in the original principal amount of Fifty Million and 00/100 Dollars
($50,000,000.00) (the “Loan”) pursuant to that certain Loan Agreement, dated as of August 1, 2008,
by and between Original Lender and Borrower (the “Original Loan Agreement”), as amended by (i) that
certain First Amendment to Loan Agreement, dated as of November 10, 2008, between Borrower and
Original Lender (the “First Amendment”), (ii) that certain Letter Agreement, dated as of August 7,
2009, from TriMont Real Estate Advisors, Inc., as servicer and asset manager on behalf of Lender
(“Servicer”), to Borrower (the “First Letter Agreement”), (iii) that certain Letter Agreement,
dated as of September 4, 2009, from Servicer, on behalf of Lender, to Borrower (the “Second Letter
Agreement”) and (iv) that certain Letter Agreement, dated as of October 9, 2009, from Servicer, on
behalf of Lender, to Borrower (the “Third Letter Agreement”; together with the Original Loan
Agreement, the First Amendment, the First Letter Agreement and the Second Letter Agreement,
collectively, the “Loan Agreement”);



WHEREAS, the Loan is evidenced by that certain Promissory Note, dated as of August 1, 2008, in
the original principal amount of Fifty Million and 00/100 Dollars ($50,000,000.00), made by
Borrower and payable to Original Lender (the “Original Note”), which Original Note is secured by,
among other things, that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Financing Statement (Fixture Filing), dated as of August 1, 2008, executed by Borrower for the
benefit of Original Lender and recorded in the Official Records of Clark County, Nevada (the
“Official Records”) (the “Original Mortgage”);



WHEREAS, pursuant to that certain Participation Agreement, dated as of August 1, 2008, between
Original Lender, as Initial Participation A Holder, and NRFC, as Initial Participation B Holder
(the “Original Participation Agreement”), Original Lender created a $20,000,000.00 Participation A
interest and a $30,000,000.00 Participation B interest in the Loan and conveyed the $30,000,000.00
Participation B interest to NRFC;


 


 









 





WHEREAS, pursuant to that certain First Amendment to Participation Agreement, dated as of
November 10, 2008, by and among Original Lender, as Initial Participation A-1 Holder, Original
Lender, as Initial Participation A-2 Holder, and NRFC, as Initial Participation B Holder (the
“First Amendment to Participation Agreement”), Original Lender split the $20,000,000.00
Participation A interest into a Participation A-1 interest and a Participation A-2 Interest;



WHEREAS, as of the date hereof, Lender is the owner of the Participation A-1 interest and
Eastern Affiliate is the owner of the Participation A-2 interest pursuant to those certain
Assignment and Assumption Agreements, each dated as of November 12, 2008, between Original Lender
and Lender and between Original Lender and Eastern Affiliate, respectively;



WHEREAS, simultaneously herewith, Lender, Eastern Affiliate and NRFC are entering into that
certain First Amended and Restated Participation Agreement, dated as of the date hereof (the
“Participation Agreement”), which Participation Agreement amends and restates, in its entirety, the
terms and provisions of the Original Participation Agreement, as amended by the First Amendment to
Participation Agreement;



WHEREAS, Borrower has requested, and Lender has agreed, to amend the Loan Agreement to, among
other things, increase the Loan amount by $3,850,000.00 and to otherwise modify the terms of the
Loan and the Loan Agreement in certain other respects;



WHEREAS, in connection with the foregoing, Borrower and Lender are simultaneously herewith
amending and restating the Original Note in its entirety to, among other things, increase the
principal amount of the Loan by $3,850,000.00 to a principal amount of $53,850,000.00, pursuant to
that certain Amended and Restated Promissory Note in the stated principal amount of $53,850,000.00,
dated as of the date hereof, between Borrower and Lender (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the “Note”), and Borrower and
Lender are amending the Original Mortgage to secure the increased obligations of Borrower under the
Note pursuant to that certain First Amendment to Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Financing Statement (Fixture Filing), dated as of the date hereof, between
Borrower and Lender, to be recorded in the Official Records (collectively with the Original
Mortgage, as the same may be further amended, restated, replaced, supplemented or otherwise
modified from time to time, the “Mortgage”) (the Loan Agreement, the Note and the Mortgage,
together with all of the other “Loan Documents” (as such term is defined in the Loan Agreement) as
the same are being amended as of the date hereof, are collectively referred to herein as the “Loan
Documents”);



WHEREAS, simultaneously herewith, Borrower is entering into that certain Contingent Interest
Promissory Note for the benefit of NRFC (as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time, the “Contingent Interest Promissory Note”),
dated as of the date hereof, which Contingent Interest Promissory Note evidences the obligation of
Borrower to pay NRFC the


 


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Contingent Interest (as defined in the Contingent Interest Promissory Note) pursuant to the
terms thereof;



WHEREAS, capitalized terms used but not defined herein shall have the meanings assigned to
such terms in the Loan Agreement; and



WHEREAS, the parties hereto now desire to amend and modify the Loan Agreement as hereinafter
set forth;



NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated into the
operative provisions of this Amendment by this reference, and for $10 (ten dollars) other good and
valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged by the
parties hereto, Borrower and Lender hereby agree as follows:



1. Reaffirmation of Loan Documents. Borrower reaffirms all of its obligations under
the Loan Agreement as modified herein and the other Loan Documents and Borrower acknowledges that,
as of the date hereof, it has no claims, counterclaims, offsets, rights of setoff or defenses
whatsoever with respect to the payment of sums now or hereafter payable or the performance of any
other obligations under the Loan Agreement, as amended herein, or any of the other Loan Documents.




2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:



(a) Each reference in the Loan Agreement to the dollar amount “$50,000,000.00” shall be
deleted and replaced with a reference to the dollar amount “$53,850,000.00”.



(b) Each reference in the Loan Agreement to “FIFTY MILLION AND NO/100 DOLLARS
($50,000,000.00)” shall be deleted and replaced with a reference to “FIFTY-THREE MILLION EIGHT
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($53,850,000.00)”.



(c) Each reference in the Loan Agreement to “Lender” shall be deemed to refer to Lender (as
defined in this Amendment).



(d) The following new definitions are hereby added to Section 1.1 of the Loan
Agreement in the appropriate alphabetical order:




“A Piece Holder” shall mean the Participation A Holder as such term is defined in
the Participation Agreement.




“Accepted Affiliate Refinancing” shall mean any Affiliate Refinancing with respect
to which Borrower has demonstrated, to Lender’s reasonable satisfaction, that
Borrower followed a competitive marketing process in connection with obtaining such
financing; it being agreed that Borrower shall deliver copies of all


 


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financing proposals received by Borrower from
Qualified Lenders to Lender and, if such Qualified Lender proposals contain terms
and provisions that are less favorable to Borrower than the terms and provisions of
any proposed Affiliate Refinancing (taking into account all relevant factors,
including, without limitation, monetary and non-monetary terms and provisions, the
Borrower, the Property, and market conditions) and Borrower has received at least
two (2) such proposals from Qualified Lenders, then Borrower shall be deemed to
have followed a competitive marketing process. Notwithstanding the foregoing, if
confidentiality provisions with a Qualified Lender prohibit Borrower from
disclosing a financing proposal in full, Borrower shall be permitted to deliver to
Lender a redacted copy of such financing proposal, provided that the financing
proposal, as redacted, continues to reflect all of the economic terms of such
proposal. Lender shall notify Borrower within five (5) Business Days of Lender’s
receipt of all financing proposals submitted to Borrower by Qualified Lenders that
a proposed Affiliate Refinancing is an Accepted Affiliate Refinancing.




“Additional Interest Reserve Funds” shall have the meaning set forth in Section
7.2.1(b) hereof.




“Affiliate Refinancing” shall mean any refinancing of the Loan provided by an
affiliate of a DLJ Party or a Credit Suisse Party.




“B Piece Holder Mezzanine Loan” shall have the meaning set forth in Section
9.8 hereof.




“B Piece Holder Mezzanine Loan Documents” shall have the meaning set forth in
Section 9.8 hereof.




“Borrower’s Deposited Interest Reserve Funds” shall have the meaning set forth in
Section 7.2.1(b) hereof.




“Consensual Foreclosure” shall mean the transfer of the Property to Lender or its
Designee by foreclosure pursuant to and in accordance with the Consensual
Foreclosure Documents.




“Consensual Foreclosure Documents” shall have the meaning set forth in the Deed in
Lieu Event Agreement.




“Contingent Interest” shall have the meaning set forth in the Contingent Interest
Promissory Note.




“Contingent Interest Promissory Note” shall mean that certain Contingent Interest
Promissory Note, dated as of the date hereof, made by


 


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Borrower in favor of B Piece
Holder, as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.
“Credit Suisse Party” shall mean Credit Suisse Securities (USA) LLC, a Delaware
limited liability company, Column Financial, Inc., a Delaware corporation, and/or
any of their respective Affiliates.




“DLJ Party” shall mean one or more of DLJ Merchant Banking, Inc., a Delaware
corporation, DLJ Merchant Banking Partners IV, L.P., a Delaware limited
partnership, DLJ Offshore Partners IV, L.P., a Cayman Islands limited partnership,
DLJ Merchant Banking Partners IV (Pacific), L.P., an Ontario limited partnership,
MBP IV Plan Investors, L.P., a Bermuda limited partnership, DLJMB HRH
Co-Investments, L.P., a Delaware limited partnership, and DLJ MB IV HRH, LLC, a
Delaware limited liability company, and/or any of their respective Affiliates.




“Deed” shall have the meaning set forth in the Deed in Lieu Event Agreement.




“Deed in Lieu Event” shall mean an Event of Default.




“Deed in Lieu Event Agreement” shall mean that certain Deed In Lieu Event
Agreement, dated as of the date hereof, by and between Borrower and Lender.




“Deed in Lieu Notice” shall have the meaning set forth in Section 13.2
hereof.




“Designee” shall have the meaning set forth in the Deed in Lieu Event Agreement.




“Escrow Agreement” shall have the meaning set forth in the Deed in Lieu Event
Agreement.




“Escrowed Documents” shall have the meaning set forth in the Deed in Lieu Event
Agreement.




“Exit Fee” shall have the meaning set forth in Section 2.8 hereof.




“Extension Interest Reserve Replenishment Amount” shall have the meaning set forth
in Section 2.7.1(d) hereof.




“Extension Tax and Insurance Reserve Replenishment Amount” shall have the meaning
set forth in Section 2.7.1(e) hereof.


 


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“Fair Market Value” shall mean the fair market value of the Property as determined
by an MAI appraisal performed by an appraiser with at least ten (10) years of
experience with similar properties located in Las Vegas, Nevada commissioned by B
Piece Holder, the cost of which appraisal shall be paid solely by Borrower.




“Gross Refinancing Proceeds” shall mean, in connection with the payment in full of
the Loan, the maximum principal amount of loan proceeds required to be advanced to
Borrower (including any mandatory future advances) pursuant to definitive loan
documents between Borrower and a refinancing lender and secured by a lien on the
Property.




“Gross Sale Proceeds” shall mean all proceeds received by Borrower in connection
with and on account of a sale of the Property.




“Interest Reserve Replenishment Amount” shall have the meaning set forth in
Section 7.2.1(b) hereof.




“Mezzanine Borrower” shall have the meaning set forth in Section 9.8
hereof.




“Minimum Interest Reserve Deposit” shall have the meaning set forth in Section
7.2.1(a) hereof.




“Minimum Tax and Insurance Reserve Deposit” shall have the meaning set forth in
Section 7.1(a) hereof.




“Net Refinancing Proceeds” shall mean Gross Refinancing Proceeds less (i)
any amounts required by a refinancing lender to be deposited into interest, tax
and/or insurance escrows at the closing of a refinancing, so long as such
refinancing is not an Accepted Affiliate Refinancing and such refinancing is a land
loan relating solely to the Property and not part of a larger construction
financing secured by other property; provided, however, that if such refinancing is
an Accepted Affiliate Refinancing, then the maximum interest reserve escrow amounts
to be deducted from Gross Refinancing Proceeds pursuant to this subclause shall not
exceed an amount equal to two (2) years of interest on the Loan calculated at an
interest rate equal to the then current LIBOR in effect at the time of such
refinancing plus 17.9%, and (ii) the lesser of (a) fees and expenses actually
incurred and paid or to be paid to third parties by Borrower in connection with the
refinancing of the Property and (b) three percent (3%) of Gross Refinance Proceeds.


 


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“Net Sale Proceeds” shall mean Gross Sale Proceeds minus the lesser of (i)
fees and expenses actually incurred and paid by Borrower in connection with the
sale of the Property and (ii) six percent (6%) of Gross Sale Proceeds.




“Omnibus Amendment” shall mean that certain Omnibus Amendment to Loan Documents,
dated as of December 24, 2009, by and between Lender and Borrower.




“Participation Agreement” shall mean that certain First Amended and Restated
Participation Agreement, dated as of December 24, 2009, by and
among Eastern Capital Fund I SPE (Vegas Paradise) LLC, as Participation A-1 Holder,
Eastern Capital Fund I SPE (Vegas Paradise Affiliate) LLC, as Participation A-2
Holder, and NRFC UL Holdings, LLC, as Participation B Holder, as the same may be
further amended, restated or otherwise modified from time to time.




“Qualified Lender” shall mean any Person regularly in the business of making loans
secured by commercial real estate who meets the definition of a Qualified Guarantor
Transferee and who is unaffiliated with all DLJ Parties and all Credit Suisse
Parties.




“Reserve Advances” shall mean, collectively, the B Piece Interest Reserve Fund
Advance, the B Piece Tax and Insurance Escrow Advance, the Second B Piece Interest
Reserve Fund Advance and the Second B Piece Tax and Insurance Escrow Advance.




“Second Amendment to Loan Agreement” shall mean that certain Second Amendment to
Loan Agreement, dated as of December 24, 2009, by and between Lender and Borrower.




“Second B Piece Interest Reserve Fund Advance” shall mean the advance of
$515,589.72 made by B Piece Holder on November 9, 2009, as additional proceeds of
the Loan pursuant to the terms hereof.




“Second B Piece Tax and Insurance Escrow Advance” shall mean the advance of
$159,410.28 made by B Piece Holder on November 9, 2009, as additional proceeds of
the Loan pursuant to the terms hereof.




“Tax and Insurance Reserve Replenishment Amount” shall have the meaning set forth
in Section 7.1(b) hereof.



(e) The definition of “A Piece Percentage” set forth in the Third Letter Agreement is hereby
deleted in its entirety and replaced with the following:


 


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““A Piece Percentage” shall mean (a) prior to any Assumption, (i) in connection
with any prepayment of the Loan other than from the proceeds of the Five Acre
Release Price, thirty-seven and one hundred forty thousandths of one percent
(37.140%), and (ii) in connection with any prepayment of the Loan from the proceeds
of the Five Acre Release Price, one hundred percent (100%); and (b) in connection
with any prepayment of the Loan after any Assumption and payment in full of the
Five Acre Release Price, zero percent (0%), in all cases as the same may be
adjusted from time to time to reflect paydowns of principal in accordance with the
terms of this Agreement.”



(f) The definition of “A Piece Prime Rate Spread” set forth in the First Amendment is hereby
deleted in its entirety and replaced with the following:




““A Piece Prime Rate Spread” shall mean the difference (expressed as the number of
basis points) between (i)(a) prior to the Initial Maturity Date, LIBOR plus 1500
basis points on the date LIBOR was last applicable to the Loan and (b) from and
after the Initial Maturity Date through and including the Maturity Date, LIBOR plus
2000 basis points on the date LIBOR was last applicable to the Loan, and (ii) the
Prime Rate on the date that LIBOR was last applicable to the Loan;
provided, however, in no event shall such difference be a negative
number.”



(g) The definition of “Applicable A Interest Rate” set forth in the First Amendment is hereby
deleted in its entirety and replaced with the following:




““Applicable A Interest Rate” shall mean (a)(i) prior to the Initial Maturity Date,
the lesser of (A) a per annum interest rate equal to LIBOR plus 1500 basis points
for a LIBOR Loan and (B) 2500 basis points and (ii) from and after the Initial
Maturity Date through and including the Maturity Date, the lesser of (A) a per
annum interest rate equal to LIBOR plus 2000 basis points for a LIBOR Loan and (B)
2500 basis points, or (b) for a Prime Rate Loan if the Loan is converted to a Prime
Rate Loan pursuant to the provisions of Section 2.2.3(c) or (f)
hereof, the lesser of (A) the Prime Rate plus the A Piece Prime Rate Spread and (B)
2500 basis points.”



(h) The definition of “Applicable B Interest Rate” set forth in the First Amendment is hereby
deleted in its entirety and replaced with the following:




““Applicable B Interest Rate” shall mean a rate equal to the lesser of (a) (i) a
per annum interest rate equal to LIBOR plus 200 basis points for a LIBOR Loan or
(ii) the Prime Rate plus the B Piece Prime Rate Spread for a Prime Rate Loan if the
Loan is


 


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converted to a Prime Rate Loan pursuant to the provisions of Section
2.2.3(c) or (f) hereof, and (b) 250 basis points (2.50%).”



(i) The definition of “B Piece Additional Advance” set forth in the Third Letter Agreement is
hereby deleted in its entirety and replaced with the following:



““B Piece Additional Advance” shall mean the advance of $2,825,000.00 made
by B Piece Holder on December 24, 2009, as additional proceeds of the Loan
pursuant to the terms of this Agreement.”



(j) The definition of “B Piece Holder” set forth in the Third Letter Agreement is hereby
amended and restated as follows:




““B Piece Holder” shall mean the Participation B Holder as such term is defined in
the Participation Agreement.”



(k) The definition of “B Piece Interest Reserve Fund Advance” set forth in the Third Letter
Agreement is hereby amended and restated as follows:




““B Piece Interest Reserve Fund Advance” shall mean the advance of $253,260.57 made
by B Piece Holder on October 9, 2009, as additional proceeds of the Loan pursuant
to the terms hereof.”



(l) The definition of “B Piece Percentage” set forth in the Third Letter Agreement is hereby
deleted in its entirety and replaced with the following:




““B Piece Percentage” shall mean (a) prior to any Assumption, (i) in connection
with any prepayment of the Loan other than from the proceeds of the Five Acre
Release Price, sixty-two and eight hundred sixty thousandths of one percent
(62.860%), and (ii) in connection with any prepayment of the Loan from the proceeds
of the Five Acre Release Price, zero percent (0%); and (b) in connection with any
prepayment of the Loan after any Assumption and payment in full of the Five Acre
Release Price, one hundred percent (100%), in all cases as the same may be adjusted
from time to time to reflect paydowns of principal in accordance with the terms of
this Agreement.”



(m) The definition of “B Piece Prime Rate Spread” set forth in the First Amendment is hereby
deleted in its entirety and replaced with the following:




““B Piece Prime Rate Spread” shall mean the difference (expressed as the number of
basis points) between (i) LIBOR plus 200 basis points on the date LIBOR was last
applicable to the Loan and (ii) the Prime Rate on the date that LIBOR was last
applicable


 


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to the Loan; provided, however, in no event shall such
difference be a negative number.”



(n) The definition of “B Piece Tax and Insurance Escrow Advance” set forth in the Third Letter
Agreement is hereby amended and restated as follows:




““B Piece Tax and Insurance Escrow Advance” shall mean the advance of $96,739.43
made by B Piece Holder on October 9, 2009, as additional proceeds of the Loan
pursuant to the terms hereof.”



(o) The definition of “Debt” set forth in Section 1.1 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:




““Debt” shall mean the aggregate outstanding principal amount set forth in, and
evidenced by, this Agreement, the Contingent Interest Promissory Note, the Note,
together with all interest accrued and unpaid thereon and all other sums
(including, if applicable, any Breakage Costs and/or Prepayment Premium) due to
Lender (and, with respect to the Contingent Interest Promissory Note, due to B
Piece Holder) in respect of the Loan under the Note, the Contingent Interest
Promissory Note, this Agreement, the Mortgage and the other Loan Documents.”



(a) The definition of “First Extended Maturity Date” set forth in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced with the following:




““First Extended Maturity Date” shall mean February 9, 2013, as the same may be
extended pursuant to Section 2.7 hereof.”



(b) The definition of “Initial Maturity Date” set forth in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:




““Initial Maturity Date” shall mean February 9, 2012, as the same may be
extended pursuant to Section 2.7 or Section 5.2.11(b)(i)
hereof.”



(c) The definition of “Interest Reserve Account” set forth in Section 1.1 of the Loan
Agreement shall be deleted in its entirety and replaced with the following:




““Interest Reserve Account” shall have the meaning set forth in Section
7.2.1(d) hereof.”



(d) The definition of “Interest Reserve Fund” set forth in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:


 


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““Interest Reserve Fund” shall have the meaning set forth in Section
7.2.1(d) hereof.”



(e) The definition of “Loan Documents” set forth in Section 1.1 of the Loan Agreement
is hereby deleted in its entirety and replaced with the following:




““Loan Documents” shall mean, collectively, this Agreement, the Contingent Interest
Promissory Note, the Note, the Mortgage, the Assignment of Leases, the
Environmental Indemnity, the O&M Agreement, the Assignment of Management Agreement,
if applicable, the Non-Recourse Guaranty, the Cash Management Agreement, the
Insurance Agreement, the Collateral Assignment of Hard Rock Pool License, the
Collateral Assignment of Intellectual Property License Agreement, the Option
Agreement, the Deed in Lieu Event Agreement, the Escrow Agreement, the Escrowed
Documents and all other documents executed and/or delivered in connection with the
Loan, as any of the foregoing hereafter may be amended, restated, replaced,
supplemented or otherwise modified from time to time.”



(f) The definition of “Note” set forth in Section 1.1 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:




““Note” shall mean that certain Amended and Restated Promissory Note, dated as of
December 24, 2009, in the stated principal amount of FIFTY-
THREE MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($53,850,000.00),
between Borrower and Lender, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.”



(g) The definition of “Prepayment Premium” set forth in the First Amendment is hereby deleted
in its entirety and replaced with the following:




““Prepayment Premium” shall mean an amount equal to the following: (i) with
respect to any prepayment on or before February 9, 2011, the greater of (a) Spread
Maintenance and (b) five percent (5%) of the principal balance of the Loan being
prepaid, (ii) with respect to any prepayment after February 9, 2011 through but
excluding the Initial Maturity Date, five percent (5%) of the principal balance of
the Loan being prepaid, and (iii) with respect to any prepayment from and after the
Initial Maturity Date, zero percent (0%) of the principal balance of the Loan being
prepaid.”



(h) The definition of “Second Extended Maturity Date” set forth in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced with the following:


 


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““Second Extended Maturity Date” shall mean February 9, 2014.”



(i) The definition of “Spread” set forth in the First Amendment is hereby deleted in its
entirety and replaced with the following:




““Spread” shall mean, subject to application of the Default Rate, a blended rate
calculated by Lender based on the Applicable A Interest Rate on the A Piece
Percentage of the Loan and the Applicable B Interest Rate on the B Piece Percentage
of the Loan, in each case based on the Outstanding Principal Balance as of the date
of such calculation.”



(j) The definition of “Spread Maintenance” set forth in the First Amendment is hereby deleted
in its entirety and replaced with the following:




““Spread Maintenance” shall mean, with respect to any prepayment of the Loan prior
to the February 9, 2011, an amount equal to the product of (a) the A Piece
Percentage of such prepayment, (b) 1500 basis points, and (c) a fraction, the
numerator of which shall equal the actual number of days from the date of such
prepayment through the February 9, 2011 and the denominator of which is 360.”



(k) “The definition of “Tax and Insurance Escrow Account” set forth in Section 1.1 of
the Loan Agreement is hereby deleted in its entirety and replaced with the following:




““Tax and Insurance Escrow Account” shall have the meaning set forth in Section
7.1(c) hereof.”



(l) “The definition of “Tax and Insurance Escrow Fund” set forth in Section 1.1 of the
Loan Agreement is hereby deleted in its entirety and replaced with the following:




““Tax and Insurance Escrow Fund” shall have the meaning set forth in Section
7.1(c) hereof.”



(m) Each of the following definitions set forth in the Loan Agreement is hereby deleted
therefrom in its entirety: “A Piece Prepayment Premium”, “Acceptable Counterparty”, “Accrued
Interest”, “B Piece Current Pay Interest Rate”, “B Piece Current Pay Prime Rate Spread”, “B Piece
Prepayment Premium”, “Counterparty”, “Collateral Assignment of Interest Rate Cap”, “Interest Rate
Cap Agreement”, “Replacement Interest Rate Cap Agreement” and “Strike Price”.



(n) Section 2.1.2 of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:



“2.1.2 Disbursements of Loan Proceeds to Borrower.


 


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(a) On the Closing Date, Original Lender made an initial advance of the Loan to
Borrower in the amount of $50,000,000.00. On October 9, 2009, B Piece Holder made (i) the
B Piece Interest Reserve Fund Advance, which B Piece Interest Reserve Fund Advance was
deposited into the Interest Reserve pursuant to Section 7.2.1 hereof and shall be
disbursed in accordance with Section 7.2.2 hereof and (ii) the B Piece Tax and
Insurance Escrow Advance, which B Piece Tax and Insurance Escrow Advance was deposited into
the Tax and Insurance Escrow Account and shall be applied in accordance with Section
7.1 hereof. On November 9, 2009, B Piece Holder made (i) the Second B Piece Interest
Reserve Fund Advance, which Second B Piece Interest Reserve Fund Advance was deposited into
the Interest Reserve pursuant to Section 7.2.1 hereof and shall be disbursed in
accordance with Section 7.2.2 hereof and (ii) the Second B Piece Tax and Insurance
Escrow Advance, which Second B Piece Tax and Insurance Escrow Advance was deposited into
the Tax and Insurance Escrow Account and shall be applied in accordance with Section
7.1 hereof. The parties hereto agree that, for all purposes under this Agreement
(except as otherwise expressly provided), the Reserve Advances shall be included when
calculating the Outstanding Principal Balance of the Loan and the Outstanding Principal
Balance of the Loan (expressly including the Reserve Advances) shall accrue interest at the
Applicable Interest Rate in accordance with Section 2.2 hereof.




(b) On December 24, 2009, pursuant to Section 7.2.1 hereof, B Piece Holder
shall make the B Piece Additional Advance to be deposited into and disbursed from the
Interest Reserve Account in accordance
with Section 7.2.2 hereof. The parties hereto agree that, for all purposes
under this Agreement, the B Piece Additional Advance shall be included when calculating the
Outstanding Principal Balance of the Loan and the Outstanding Principal Balance of the Loan
(expressly including the B Piece Additional Advance) shall accrue interest at the
Applicable Interest Rate in accordance with Section 2.2 hereof. Neither Lender nor
B Piece Holder is funding any portion of the Loan from any account holding “plan assets” of
one or more plans within the meaning of 29 C.F.R. 2510.3-101 unless the Loan does not
constitute a non-exempt prohibited transaction under ERISA.”



(o) Section 2.2.1 of the Loan Agreement and Section 3 of the Second Letter Agreement
are hereby deleted in their entirety and replaced with the following:




“2.2.1 Interest Generally. Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, interest on the
Outstanding Principal Balance of the Loan shall accrue from the Closing Date to but
excluding the Maturity Date at the Applicable Interest Rate. Borrower shall pay to
Lender (a) on each Payment Date from the Closing Date to but excluding August 9,
2009, the


 


13









 






interest accrued on the Outstanding Principal Balance of the Loan at the
Applicable Interest Rate for the preceding Interest Period and (b) on each Payment
Date from August 9, 2009 to but excluding the Maturity Date, (i) the interest
accrued on the A Piece Percentage of the Outstanding Principal Balance of the Loan
for the preceding Interest Period at the Applicable A Interest Rate plus
(ii) the interest accrued on the B Piece Percentage of the Outstanding Principal
Balance of the Loan for the preceding Interest Period at the Applicable B Interest
Rate.”



(p) The first sentence of Section 2.2.2 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:




“Interest on the Outstanding Principal Balance shall be calculated by
multiplying (a) the actual number of days elapsed in the period for which the
calculation is being made by (b) a daily rate based on a three hundred sixty (360)
day year by (c) the Outstanding Principal Balance and shall accrue on a monthly
basis as and to the extent provided in Section 2.2.1 hereof.”



(q) Section 2.2.3(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:




“(a) Subject to Section 2.2.1 hereof, the Applicable Interest Rate
shall be: (i) LIBOR plus the Spread with respect to the applicable Interest Period
for a LIBOR Loan or (ii) the Prime Rate plus the Prime Rate Spread for a Prime Rate
Loan if the Loan is converted to a Prime Rate Loan pursuant to the provisions of
Section 2.2.3(c) or (f) hereof,
subject in both of the foregoing instances to the terms of Section
5.2.11(b)(ii) hereof.



(r) Section 2.2.3(b) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:




“(b) Subject to the terms and conditions of Section 2.2.1 hereof and
this Section 2.2.3, the Loan shall be a LIBOR Loan and interest shall
accrue on the Outstanding Principal Balance at LIBOR plus the Spread for the
applicable Interest Period. Any change in the Applicable Interest Rate hereunder
due to a change in LIBOR shall become effective as of the opening of business on
the first day of the applicable Interest Period.”



(s) Section 2.2.7 of the Loan Agreement is hereby amended to include the following
provision as a new Section 2.2.7(g):




“(g) Notwithstanding anything to the contrary contained elsewhere in this
Agreement, Borrower shall not be required to purchase, deliver or maintain an
Interest Rate Cap Agreement or a Replacement Interest Rate Cap Agreement with
respect to the period from August 9, 2009 to and including the Maturity Date.”


 


14









 





(t) Section 2.3.1(a) of the Loan Agreement is hereby amended by adding the following
at the beginning thereof:




“Subject to Section 2.2.1 hereof,”.



(u) Section 2.3 of the Loan Agreement is hereby amended to include the following
provision as a new Section 2.3.5:




“2.3.5 Payment on Contingent Interest Promissory Note.
Notwithstanding anything to the contrary in this Agreement, Borrower’s obligations
with respect to the payment and performance of the Contingent Interest under the
Contingent Interest Promissory Note shall be due and payable only to the extent
provided in, and interpreted in accordance with, this Agreement and the Contingent
Interest Promissory Note.



(v) Subclause (ii) of Section 2.4.1 of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:




“(ii) the Prepayment Premium, if any, due with respect to the amount prepaid, and”



(w) Section 2.7 of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:




“Section 2.7 Extensions of the Initial Maturity Date. Borrower shall
have the option (each, an “Extension Option”) to extend the term of
the Loan beyond the Initial Maturity Date for two (2) successive terms (each,
an “Extension Term”) of one (1) year each (the Initial Maturity Date following the
exercise of each Extension Option being the “Extended Maturity Date”) pursuant to
this Section 2.7.




2.7.1 First Extension Option. Borrower shall have the right to extend
the term of the Loan from the Initial Maturity Date to the First Extended Maturity
Date (the “First Extension Option”; and the period commencing on the first
(1st) day following the Initial Maturity Date and ending on the First
Extended Maturity Date being referred to herein as the “First Extension Term”),
provided that all of the following conditions are satisfied or waived by
Lender in writing:




(a) no monetary Default nor any Event of Default shall have occurred and be
continuing at the time the First Extension Option is exercised or on the date that
the First Extension Term commences;




(b) Borrower shall notify Lender in writing of its irrevocable election to
exercise the First Extension Option no less than ninety (90) days prior to the
Initial Maturity Date;


 


15









 






(c) not later than one (1) Business Day immediately preceding the first
(1st) day of the First Extension Term, all accrued and unpaid interest
(excluding Contingent Interest due under the Contingent Interest Promissory Note)
and any unpaid or unreimbursed amounts in respect of the Loan and any other sums
then due to Lender hereunder or under any of the other Loan Documents shall have
been paid in full;




(d) Borrower shall have deposited into the Interest Reserve Account an amount
equal to Lender’s reasonable estimate of twelve (12) months of estimated Monthly
Interest Payments, as calculated based on a five (5) year 30-day LIBOR forward
curve as reported by Bloomberg on the date of such calculation (the “Extension
Interest Reserve Replenishment Amount”), no later than fifteen (15) days
immediately preceding the first (1st) day of the First Extension Term,
which Extension Interest Reserve Replenishment Amount shall be applied by Lender in
accordance with Section 7.2.2 hereof;




(e) Borrower shall have deposited into the Tax and Insurance Escrow Account an
amount equal to Lender’s reasonable estimate of twelve (12) months of Taxes and
Insurance Premiums payable with respect to the Property (the “Extension Tax and
Insurance Reserve Replenishment Amount”) not later than fifteen (15) days
immediately preceding the first (1st) day of the First Extension Term,
which Extension Tax and Insurance Reserve Replenishment Amount shall be applied by
Lender in accordance with Section 7.1 hereof;




(f) Borrower shall have delivered to Lender a “110.5A” (extension of maturity
date) endorsement to the Title Insurance Policy; and




(g) Borrower shall have reimbursed Lender for all costs reasonably incurred by
Lender in processing the extension request, including, without limitation,
reasonable legal fees and expenses; provided, however, that in no
event shall Borrower be required to pay any such fees, costs or expenses in excess
of $20,000.




2.7.2 Second Extension Option. Borrower shall have the right to
extend the term of the Loan beyond the First Extended Maturity Date to the Second
Extended Maturity Date (the “Second Extension Option”; and the period commencing on
the first (1st) day following the First Extended Maturity Date and
ending on the Second Extended Maturity Date being referred to herein as the “Second
Extension Term”), provided that all of the following conditions are
satisfied or waived by Lender in writing:


 


16









 






(a) no monetary Default nor any Event of Default shall have occurred and be
continuing at the time the Second Extension Option is exercised or on the date that
the Second Extension Term commences;




(b) Borrower shall notify Lender in writing of its irrevocable election to
exercise the Second Extension Option no less than ninety (90) days prior to the
First Extended Maturity Date;




(c) not later than one (1) Business Day immediately preceding the first
(1st) day of the Second Extension Term, all accrued and unpaid interest
(excluding Contingent Interest due under the Contingent Interest Promissory Note)
and any unpaid or unreimbursed amounts in respect of the Loan and any other sums
then due to Lender hereunder or under any of the other Loan Documents shall have
been paid in full;




(d) Borrower shall have deposited into the Interest Reserve Account the
Extension Interest Reserve Replenishment Amount no later than fifteen (15) days
immediately preceding the first (1st) day of the Second Extension Term,
which Extension Interest Reserve Replenishment Amount shall be applied by Lender in
accordance with Section 7.2.2 hereof;




(e) Borrower shall have deposited into the Tax and Insurance Escrow Account
the Extension Tax and Insurance Reserve Replenishment Amount not later than fifteen
(15) days immediately preceding the first (1st) day of the Second
Extension Term, which Extension Tax and Insurance Reserve Replenishment Amount
shall be applied by Lender in accordance with Section 7.1 hereof;




(f) Borrower shall have delivered to Lender a “110.5A” (extension of maturity
date) endorsement to the Title Insurance Policy; and




(g) Borrower shall have reimbursed Lender for all costs reasonably incurred by
Lender in processing the extension request, including, without limitation,
reasonable legal fees and expenses; provided, however, that in no
event shall Borrower be required to pay any such fees, costs or expenses in excess
of $20,000.



(x) The following provision is hereby added to the Loan Agreement as a new Section
2.8:




“Section 2.8 Exit Fee. On any prepayment of the Loan, in whole or in
part, or upon any other repayment of the Loan (including on the Maturity Date), and
in addition to any other fees payable by Borrower pursuant to this Agreement,
Borrower shall pay to Lender a fee (the “Exit Fee”) equal to 1.50% of the principal
amount of the Loan being prepaid or repaid. Notwithstanding anything herein to the
contrary, Borrower’s


 


17









 






obligation to pay B Piece Holder the Contingent Interest
pursuant to the terms and provisions of this Agreement and the Contingent Interest
Promissory Note shall be subordinate to Borrower’s obligation to pay Lender the
Exit Fee pursuant to this Section 2.8.



(y) Section 4.1.2 of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:




“4.1.2 Proceedings. Borrower has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the other
Loan Documents. This Agreement and the other Loan Documents have been duly
executed and delivered by or on behalf of Borrower and, except for the possible
non-enforceability of certain Escrowed Documents and the Deed in Lieu Event
Agreement under Nevada law and New York law, constitute the legal, valid and
binding obligations of Borrower enforceable against Borrower in accordance with
their respective terms, 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
is sought in a proceeding in equity or at law).”



(z) All references in Section 4.3 of the Loan Agreement to “Brian Zaumeyer” are hereby
deleted.



(aa) Section 7.1 of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:




“Section 7.1 Tax and Insurance Escrow Fund.




(a) Notwithstanding anything in this Agreement to the contrary, Borrower
hereby agrees that at all times throughout the term of the Loan, including any
Extension Terms, Borrower shall be required to maintain on deposit in the Tax and
Insurance Escrow Account (as hereinafter defined) a minimum deposit equal to
one-fourth (1/4th) of the annual estimated Taxes and Insurance Premiums
payable with respect to the Property (the “Minimum Tax and Insurance Reserve
Deposit”).




(b) On the Closing Date, Borrower deposited with Lender $950,000.00 on account
of Taxes coming due after the Closing Date and through December 9, 2009 and $-0- on
account of Insurance Premiums coming due after the Closing Date and through
December 9, 2009. With respect to Taxes and Insurance Premiums payable with
respect to the Property from December 9, 2009 through but not including February 9,
2010, the parties hereto agree that the Second B Piece Tax and Insurance Escrow
Advance shall be used by Lender to make such payments. On December 24, 2009,
Borrower deposited with Lender the amount of $860,000.00 (which amount represented
Lender’s reasonable estimate of


 


18









 






fifteen (15) months of Taxes and Insurance Premiums
payable with respect to the Property (which fifteen (15) month estimation included
the Minimum Tax and Insurance Reserve Deposit)) on account of Taxes and Insurance
Premiums coming due from February 9, 2010 and through but not including December 9,
2010. On December 9, 2010, Borrower shall be required to replenish the Tax and
Insurance Escrow Fund (as hereinafter defined) by depositing with Lender an amount
sufficient, in the reasonable estimation of Lender, to cause the total deposits in
the Tax and Insurance Escrow Account, as of such date, to be equal to sixteen (16)
months of reasonably estimated Taxes and Insurance Premiums to be payable with
respect to the Property (which sixteen (16) month estimation shall include the
Minimum Tax and Insurance Reserve Deposit) (the “Tax and Insurance Reserve
Replenishment Amount”). Additionally, additional amounts may be deposited with
Lender from time to time pursuant to Section 2.7.1(e) and/or Section
2.7.2(e) hereof.




(c) All amounts deposited with Lender pursuant to Section 7.1(b)
hereof, shall hereinafter be called the “Tax and Insurance Escrow Fund” and the
account in which such amounts are held shall hereinafter be called the “Tax and
Insurance Escrow Account”. Lender will apply the Tax and Insurance Escrow Fund to
payments of Taxes and Insurance Premiums required to be made by Borrower pursuant
to Section 5.1.2 hereof and under the Mortgage. When making any tax or
insurance payments with funds from the Tax and Insurance Escrow Fund, Lender shall
be entitled to rely on any bill, statement or estimate procured from the
appropriate public office (with respect to Taxes) or insurer or agent (with respect
to Insurance Premiums), without inquiry into the accuracy of such bill, statement
or estimate or into the validity of any tax, assessment, sale forfeiture, tax lien
or title or claim thereof. To the extent sufficient
amounts have been deposited into the Tax and Insurance Escrow Fund with Lender
in compliance with this Section 2.7.1(e), Section 2.7.2(e) and this
Section 7.1, it shall not be an Event of Default if the Insurance Premiums
and/or the Taxes are not paid due to Lender’s failure to apply such amounts to the
payment of the Insurance Premiums or Taxes on the respective dates on which each
are due provided that Borrower has not impeded Lender’s attempt to pay such
Insurance Premiums or Taxes. Any amount remaining in the Tax and Insurance Escrow
Fund after the Debt has been paid in full shall be returned to Borrower and when
returning such excess amounts, Lender may deal with the Person shown on the records
of Lender to be the owner of the Property.”



(bb) Section 7.2.1 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:




“7.2.1 Deposits to Interest Reserve Account.



 


19









 






(a) Notwithstanding anything herein to the contrary, Borrower hereby agrees
that at all times throughout the term of the Loan, including any Extension Terms,
Borrower shall be required to maintain on deposit in the Interest Reserve Account
(as hereinafter defined) a minimum deposit equal to three (3) months of estimated
Monthly Interest Payments, calculated based on a five (5) year 30-day LIBOR forward
curve as reported by Bloomberg on the date of such calculation (the “Minimum
Interest Reserve Deposit”).




(b) On the Closing Date, Borrower deposited with Lender the amount of
$9,473,611.11, which amount was used by Lender to make all of the Monthly Interest
Payments due with respect to the Loan from and after the Closing Date through but
not including December 9, 2009. The parties hereto agree that the Second B Piece
Interest Reserve Advance shall be used by Lender to make the Monthly Interest
Payments due with respect to the Loan from December 9, 2009 through but not
including February 9, 2010. On December 24, 2009 (i) Borrower deposited with
Lender the amount of $2,140,000.00 into the Interest Reserve Account (the
“Borrower’s Deposited Interest Reserve Funds”) and (ii) B Piece Holder deposited
the B Piece Additional Advance into the Interest Reserve Account (the Borrower’s
Deposited Interest Reserve Funds, together with the B Piece Additional Advance,
collectively, the “Additional Interest Reserve Funds”). The Additional Interest
Reserve Funds represent an amount, in the aggregate, equal to Lender’s reasonable
estimate of at least fifteen (15) months of Monthly Interest Payments, calculated
based on a five (5) year 30-day LIBOR forward curve as reported by Bloomberg on the
date of such calculation (which fifteen (15) month estimate includes the Minimum
Interest Reserve Deposit) and shall be used by Lender to make the Monthly Interest
Payments due with respect to the Loan from February 9, 2010 through but not
including December 9, 2011. The
Additional Interest Reserve Funds shall constitute the Interest Reserve Fund
for all purposes under the Loan Agreement and shall be held as additional
collateral for the Loan and disbursed from the Interest Reserve Account in
accordance with Section 7.2.2 hereof.




(c) On December 9, 2010, Borrower shall be required to replenish the Interest
Reserve Account by depositing with Lender an amount sufficient, in the reasonable
estimation of Lender, to cause the total deposits in the Interest Reserve Account,
as of such date, to equal Lender’s reasonable estimate of sixteen (16) months of
estimated Monthly Interest Payments (which sixteen (16) month estimation shall
include the Minimum Interest Reserve Deposit (as hereinafter defined), as
calculated based on a five (5) year 30-day LIBOR forward curve as reported by
Bloomberg on the date of such calculation (the “Interest Reserve Replenishment
Amount”), which Interest Reserve Replenishment Amount shall be disbursed from the
Interest Reserve Account by Lender in accordance with Section 7.2.2 hereof.


 


20









 






(d) In addition to the foregoing, additional amounts may be deposited with
Lender from time to time (a) pursuant to Section 2.6.2(b)(v), Section
2.7.1(d), Section 2.7.2(d) and/or Section 5.2.11(a)(viii)
hereof, and/or (b) otherwise at Borrower’s election in its sole discretion from
additional equity of Borrower. All amounts deposited with Lender pursuant to this
Section 7.2.1 shall hereinafter be referred to as Borrower’s “Interest
Reserve Fund” and the account in which such amounts are held shall hereinafter be
referred to as Borrower’s “Interest Reserve Account”.”




(cc) Section 8.1(a) of the Loan Agreement is hereby amended as follows:




(i) Section 8.1(a)(xiii) of the Loan Agreement is hereby amended by adding “;”
at the end thereof.




(ii) Section 8.1(a)(xiv) of the Loan Agreement is hereby amended by deleting
the “or” at the end thereof.




(iii) Section 8.1(a)(xv) of the Loan Agreement is hereby amended by deleting
the “.” at the end thereof and replacing it with “; or”.




(iv) The following provision shall be added to the Loan Agreement as a new Section
8.1(a)(xvi):




“(xvi) if at any time Lender reasonably determines that the amount on deposit
in the Interest Reserve Account is less than the Minimum Interest Reserve Deposit,
unless within three (3) Business Days following notice to Borrower of such default,
Borrower deposits into the Interest Reserve Account an amount equal to the Minimum
Interest
Reserve Deposit less the amount then on deposit in the Interest Reserve
Account; or”




(v) The following provision shall be added to the Loan Agreement as a new Section
8.1(a)(xvii):




“(xvii) if at any time Lender reasonably determines that the amount on deposit
in the Tax and Insurance Escrow Account is less than the Minimum Tax and Insurance
Reserve Deposit, unless within three (3) Business Days following notice to Borrower
of such default, Borrower deposits into the Tax and Insurance Escrow Account an
amount equal to the Minimum Tax and Insurance Reserve Deposit less the
amount then on deposit in the Tax and Insurance Escrow Account; or”




(vi) The following provision shall be added to the Loan Agreement as a new Section
8.1(a)(xviii):


 


21









 






“(xviii) if Borrower fails to deposit the Tax and Insurance Reserve
Replenishment Amount into the Tax and Insurance Escrow Account pursuant to
Section 7.1(b) hereof, unless within three (3) Business Days following
notice to Borrower of such default, Borrower deposits the Tax and Insurance Reserve
Replenishment Amount into the Tax and Insurance Escrow Account; or”




(vii) The following provision shall be added to the Loan Agreement as a new
Section 8.1(a)(xix):




“(xix) if Borrower fails to deposit the Interest Reserve Replenishment Amount
into the Interest Reserve Account pursuant to Section 7.2.1(c) hereof,
unless within three (3) Business Days following notice to Borrower of such default,
Borrower deposits the Interest Reserve Replenishment Amount into the Interest
Reserve Account.”




(dd) Section 9.4 of the Loan Agreement is hereby amended as follows:




(i) Section 9.4(ix) of the Loan Agreement is hereby amended by deleting the
existing provision in its entirety and replacing it with the following:




“if any of the restrictions to Transfer set forth in Section 5.2.10 of the
Loan Agreement or in any of the other Loan Documents are violated (other than in
connection with a Transfer of the Property to Lender or Lender’s designee pursuant
to a foreclosure, deed in lieu of foreclosure, or other consensual Transfer);”.




(ii) Section 9.4(xiii) of the Loan Agreement is hereby amended by deleting the
existing provision in its entirety and replacing it with the following:




“intentionally omitted;”.




(iii) Section 9.4(xiv) of the Loan Agreement is hereby amended by deleting the
following at the end thereof:




“and/or”.




(iv) Section 9.4(xv) of the Loan Agreement is hereby amended by deleting the
existing provision in its entirety and replacing it with the following:




“intentionally omitted;”.




(v) The following provision shall be added to the Loan Agreement as a new Section
9.4(xvi):


 


22









 






“(xvi) if Borrower or Guarantor, or any Affiliate of Borrower or Guarantor,
objects (either in formal notice delivered to Lender or in any legal proceeding)
to, interferes with, or prevents Lender from exercising any of the rights or
remedies available to Lender pursuant to and in accordance with the Deed in Lieu
Event Agreement (notwithstanding the possible non-enforceability of such Deed in
Lieu Event Agreement), including the right to record the Deed and/or pursue a
Consensual Foreclosure under the Deed in Lieu Event Agreement, provided that Lender
shall have complied with the terms and provisions of the Deed in Lieu Event
Agreement; and/or;”




(vi) The following provision shall be added to the Loan Agreement as a new Section
9.4(xvii):




“(xvii) if Borrower, Guarantor, or any Affiliate of Borrower or Guarantor,
fails to cooperate with Lender, as determined by Lender in Lender’s reasonable
discretion, to effectuate Lender’s rights to record the Deed or pursue a Consensual
Foreclosure pursuant to and in accordance with the Deed in Lieu Event Agreement
(notwithstanding the possible non-enforceability of such Deed in Lieu Event
Agreement), including failure of Borrower or Guarantor, as applicable, to execute
and deliver a substitute deed, Consensual Foreclosure Documents or other similar
documents reasonably necessary for Lender to exercise such rights or remedies upon
Lender’s request and reasonable notice from Lender.”



(ee) The following provision shall be added to the Loan Agreement as a new Section
9.8:




“Section 9.8 B Piece Holder Mezzanine Financing. Notwithstanding
anything to the contrary contained herein, Borrower hereby agrees that B Piece
Holder, or an affiliate of B Piece Holder, as applicable, shall have the right (but
shall in no event be obligated), at any
time after the date hereof, to advance loan proceeds to direct or indirect
equity owners of Borrower (each, a “Mezzanine Borrower”) in the form of one or more
mezzanine loans, which mezzanine loans shall be secured by a pledge of direct or
indirect equity interests in Borrower by such Mezzanine Borrower (any such advances
made in accordance with the terms hereof, a “B Piece Holder Mezzanine Loan”). In
connection with any such B Piece Holder Mezzanine Loan, Borrower shall reasonably
cooperate with B Piece Holder, and Borrower agrees and acknowledges that Mezzanine
Borrower shall enter into mezzanine loan documents (the “B Piece Holder Mezzanine
Loan Documents”), which B Piece Holder Mezzanine Loan Documents shall be reasonably
satisfactory to Borrower in form and substance and shall also be subject to the
approval of Lender as set forth in the Participation Agreement and otherwise
acceptable to B Piece Holder, in its reasonable discretion, and shall provide,
among other things, (i) that Mezzanine Borrower shall deliver to B Piece Holder, or
its


 


23









 






affiliate, as applicable, an original limited liability company certificate
evidencing Mezzanine Borrower’s 100% direct or indirect equity interest in
Borrower, as the case may be, and (ii) that upon Borrower’s failure to deposit the
Tax and Insurance Reserve Replenishment Amount and the Interest Reserve
Replenishment Amount each as required pursuant to and to the extent required by
Section 7.1(b) and Section 7.2.1(c) hereof, respectively, within
three (3) Business Days following notice to Borrower of such failure, B Piece
Holder, as the lender under such B Piece Holder Mezzanine Loan, shall have the
right to pursue any and all remedies provided in the B Piece Holder Mezzanine Loan
Documents, including, without limitation, the right to pursue a strict foreclosure
under the B Piece Holder Mezzanine Loan Documents (upon terms and conditions
substantially similar to those set forth in the Deed in Lieu Event Agreement in
connection with Lender’s exercise of remedies). Notwithstanding anything in this
Section 9.8 to the contrary, to the extent the B Piece Holder Mezzanine
Loan Documents provide that the funds advanced thereunder, or any portion thereof,
are to be used, in whole or in part, to fund the Tax and Insurance Reserve
Replenishment Amount and/or the Interest Reserve Replenishment Amount required to
be deposited by Borrower pursuant to Section 7.1(b) and Section
7.2.1(c) hereof, respectively, and such B Piece Holder Mezzanine Loan funds are
deposited by Borrower pursuant to Section 7.1(b) and Section
7.2.1(c) hereof, respectively, then the actual amount of such funds so
deposited shall be credited against Borrower’s obligation to deposit the Tax and
Insurance Reserve Replenishment Amount and/or the Interest Reserve Replenishment
Amount pursuant to and to the extent required by Section 7.1(b) and
Section 7.2.1(c) hereof, respectively. Notwithstanding anything in this
Section 9.8 to the contrary, in no event shall Borrower incur any
additional obligations under the Loan in connection with a B Piece Holder Mezzanine
Loan.”



(ff) The Lender addresses set forth in Section 10.6 of the Loan Agreement are hereby
deleted and replaced in their entirety with the following:



	 	 	 
	If to Lender:

	 	Eastern Capital Fund I SPE (Vegas Paradise)
	 

	 	LLC and Eastern Capital Fund I
	 

	 	SPE (Vegas Paradise Affiliate) LLC
	 

	 	c/o Easter Real Estate LLC
	 

	 	120 Presidential Way, Suite 300
	 

	 	Woburn, Massachusetts 01801
	 

	 	Attention: Raymond M. Murphy
	 

	 	Facsimile No.: (781) 926-6426
	 
	 	 
	with a copy to:

	 	Goodwin Procter, LLP
	 

	 	53 State Street
	 

	 	Exchange Place
	 

	 	Boston, Massachusetts 02109






 


24









 





	 	 	 
	 

	 	Attention: Minta Kay
	 

	 	Facsimile No.:(617) 523-1231
	 
	 	 
	with a copy to:

	 	NRFC UL Holdings, LLC
	 

	 	c/o NorthStar Realty Finance Corp.
	 

	 	433 East Colinas Blvd., Suite 100
	 

	 	Irving, Texas 75039
	 

	 	Attention: Robert Riggs
	 

	 	Facsimile No.: (972) 869-6521
	 
	 	 
	with a copy to:

	 	Sidley Austin LLP
	 

	 	787 Seventh Avenue
	 

	 	New York, New York 10019
	 

	 	Attention: Alan S. Weil, Esq.
	 

	 	Facsimile No.: (212) 839-5599






(gg) Section 10.16(c) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:




“(c) Intentionally omitted.”



(hh) Article 12 of the Loan Agreement is hereby deleted in its entirety and replaced with the
following:



“ARTICLE XII

INTENTIONALLY OMITTED”




(ii) The following provisions are hereby added to the Loan Agreement as a new Article XIII:



“ARTICLE XIII

DEED IN LIEU OF FORECLOSURE





Section 13.1 Deed in Lieu Documents and Consensual Foreclosure Documents.
Lender and Borrower are parties to the Deed in Lieu Event Agreement and, as more
particularly set forth therein, Lender and Borrower have irrevocably and unconditionally
delivered to Escrow Agent those certain duly executed Escrowed Documents to be released
from escrow by Escrow Agent in accordance with the Escrow Agreement. Subject to
Section 13.2 below, upon the occurrence of any Deed in Lieu Event, Lender shall
have all rights and remedies available to it hereunder, under the other Loan Documents and
under the Deed in Lieu Event Agreement.




Section 13.2 Deed in Lieu Event; Release from Escrow; Election of Remedies.
At any time after the occurrence of a Deed in Lieu Event, Lender shall deliver a notice of
the same to Escrow Agent and Borrower in accordance with the terms of the Escrow Agreement
(a “Deed in Lieu


 


25









 






Notice”). Subject to the terms and conditions of the Escrow Agreement and
the Deed in Lieu Event Agreement, upon receipt of a Deed in Lieu Notice, the Escrowed
Documents shall be released from escrow to Lender or Lender’s Designee and Borrower (as
applicable) by Escrow Agent in accordance with the Escrow Agreement. Subject to the terms
and conditions of the Escrow Agreement and the Deed in Lieu Event Agreement, after the
occurrence of a Deed in Lieu Event, Lender or Lender’s Designee shall have the right to
elect whether to record the Deed and/or pursue a Consensual Foreclosure. It is
acknowledged and agreed that none of Lender or Lender’s Designee shall have any obligation
to record the Deed, and title to the Property shall not be deemed to have been transferred
to Lender or Lender’s Designee, unless and until such party makes the election referred to
in the prior sentence and the Deed is recorded or the Consensual Foreclosure is
consummated. Notwithstanding the foregoing, if Lender or Lender’s Designee has not (i)
elected to either pursue a Consensual Foreclosure or record the Deed within twelve (12)
months after the occurrence of a Deed in Lieu Event and (ii) actually taken title to the
Property pursuant to the Deed or the Consensual Foreclosure Documents or otherwise within
such twelve (12) month period, then, subject to the Deed in Lieu Event Agreement and the
Escrow Agreement, if the Deed in Lieu Documents have not theretofore been released, Escrow
Agent shall automatically release such Deed in Lieu Documents to Lender or Lender’s
Designee on the date that is twelve (12) months after such Deed in Lieu Event and, unless
the failure of Lender or Lender’s Designee to take title pursuant to subclause (ii) above
was caused by the existence of an intervening lien (other than a Permitted Encumbrance) or
other action or inaction of Borrower in violation of this Agreement, Lender or Lender’s
Designee shall promptly thereupon effectuate the taking of title to the Property by way of
the Deed or otherwise. Nothing in the preceding sentences shall limit the right of Lender
to exercise any other remedies available to Lender under this Agreement or the other Loan
Documents or, if Lender has elected to (i) pursue but has not consummated a Consensual
Foreclosure, to thereafter record the Deed or (ii) record the Deed and, after title to
the Property has been transferred to Lender or Lender’s Designee, to thereafter elect
to pursue the Consensual Foreclosure; provided, however, that upon (A) conveyance of title
to the Property to Lender or Lender’s Designee pursuant to the election and completion of
remedies under the Deed in Lieu Event Agreement and (B) the expiration of any right of
redemption in favor of Borrower with respect to the Property, Lender or Lender’s Designee
shall no longer have the right to pursue any other rights and remedies granted to such
party under the Loan Documents other than as set forth in Section 13.4 hereof with
respect to the continuing liability of Guarantor under the Non-Recourse Guaranty (if
applicable) and other than the pursuit of the Consensual Foreclosure pursuant to the
Consensual Foreclosure Documents and, provided further, that following the delivery


 


26









 






by
Lender to Borrower of the Deed in Lieu Notice, as long as Borrower is complying with the
Deed in Lieu Event Agreement (including without limitation the cooperation of Borrower and
Guarantor, as applicable, with Lender pursuant to the Deed in Lieu Event Agreement to the
extent required by the Deed in Lieu Event Agreement), Lender shall forebear from pursuing
any other remedy provided for in the Loan Documents, other than with respect to Lender’s
right to make claims under the Non-Recourse Guaranty, subject to any limitations on
Guarantor’s continuing liability under the Non-Recourse Guaranty as set forth in
Section 13.4 hereof. Lender shall be solely responsible for all costs and expenses
associated with the transfer of title to the Property from Borrower to Lender or Lender’s
Designee.




Section 13.3 Absolute Conveyance. Borrower acknowledges and agrees that the
conveyance of the Property to Lender or Lender’s Designee pursuant to the conveyances
provided for in the Escrowed Documents and/or the Consensual Foreclosure Documents shall be
an absolute transfer, assignment and conveyance of all of Borrower’s right, title and
interest in and to the Property in fact as well as in form and is not now and shall not be
intended as a mortgage, trust conveyance, deed of trust or security instrument of any kind;
that the consideration for such conveyance is and shall be exactly as recited herein and in
the Escrowed Documents and/or the Consensual Foreclosure Documents and Borrower shall have,
from and after the transfer of title to the Property to Lender or Lender’s Designee, of
record, pursuant to the Deed and/or the Consensual Foreclosure Documents as provided for
herein, no further right, title or interest, including right of redemption or claims, in
and to the Property (or any portion thereof) or to the proceeds and profits which may be
derived therefrom of any kind whatsoever. Upon release of the Escrowed Documents from
escrow to Lender or Lender’s Designee and/or execution of the Consensual Foreclosure
Documents by the appropriate parties thereto, to the extent that Borrower receives any
Gross Income from Operations, Borrower shall deliver or cause to be delivered all such
Gross Income from Operations, immediately upon receipt by Borrower, to Lender or Lender’s
Designee, as applicable, and all such Gross Income from Operations shall be held in trust
for the benefit of Lender or Lender’s Designee, until so delivered.




Section 13.4 Release of Borrower from Liability; Limited Release of Guarantor.
Lender has executed and delivered, as one of the Escrowed Documents, a release of Borrower
and Guarantor from their respective obligations under the Loan Documents, however, it is
acknowledged and agreed that the liability of Guarantor under the Non-Recourse Guaranty
shall continue for any actions or inaction of Borrower or its Affiliates or conditions
arising or occurring prior to the date upon which Lender or Lender’s Designee acquires
title to the Property in accordance with the Deed in Lieu Event Agreement and all
redemption


 


27









 






rights of Borrower have expired, provided, however, that
Guarantor shall have no continuing liability under Section 1.2(ix) of the Non-Recourse
Guaranty solely as such Section would be applicable to a Transfer of the Property to Lender
or Lender’s Designee pursuant to a Deed granted in favor of Lender or Lender’s Designee or
a Consensual Foreclosure, each in accordance with the Deed in Lieu Event Agreement, or
under Sections 1.2(xvi) and 1.2(xvii) of the Non-Recourse Guaranty, in each case following
(A) transfer of title to the Property to Lender or Lender’s Designee pursuant to the Deed
in Lieu Event Agreement and (B) the expiration of any right of redemption in favor of
Borrower with respect to the Property. Except as set forth in the immediately preceding
sentence and the release, the liability of Guarantor under the Non-Recourse Guaranty shall
continue for a period of twelve (12) months following the date Lender or Lender’s Designee
acquires title to the Property and all redemption rights of Borrower have expired, and
after such twelve (12) month period shall be deemed fully released (other than with respect
to claims or actions commenced prior to the expiration of such twelve (12) month period
which shall continue beyond such twelve month period until fully adjudicated) in accordance
with the release delivered by Lender in accordance with the Deed in Lieu Event Agreement.”




(jj) The following provisions are hereby added to the Loan Agreement as a new Article XIV:



“ARTICLE XIV

APPLICATION OF PROCEEDS FROM A SALE OF THE PROPERTY





Section 14.1 Net Sale Proceeds. If Borrower sells the Property, or any
interest therein prior to the Maturity Date or acceleration of the Loan, Borrower shall pay
all Net Sale Proceeds received by Borrower as follows:




(a) first, to A Piece Holder to prepay in full the A Piece
Percentage of the aggregate Outstanding Principal Balance of the Loan plus all
accrued but unpaid interest at the Applicable A Interest Rate and all other
fees (including the Exit Fee and the applicable Prepayment Premium, if any),
payments of interest at the Default Rate or other penalties that are
otherwise
payable to A Piece Holder as a result of an Event of Default or the late
payment of any amounts required to be paid under the Loan Documents, if any;
and




(b) second, to B Piece Holder to prepay in full the B Piece
Percentage of the aggregate Outstanding Principal Balance of the Loan plus all
accrued and unpaid interest at the Applicable B Interest Rate and all other
fees, payments of interest at the Default Rate or other penalties that are


 


28









 






otherwise payable to B Piece Holder as a result of an Event of Default or the
late payment of any amounts required to be paid under the Loan Documents, if
any.”



3. Conforming Changes. Each reference in the Loan Agreement to “this
Agreement” shall, effective upon the date upon which the execution of this Amendment and the
satisfaction of the conditions precedent set forth herein shall have occurred, be deemed a
reference to the Loan Agreement as amended by this Amendment and shall include this Amendment.
This Amendment shall form a part of the Loan Agreement and shall always be construed as amending
the Loan Agreement.



4. Conditions Precedent. Before this Amendment becomes effective, all of the
following conditions shall have been satisfied at Borrower’s sole cost and expense, in a manner
acceptable to Lender in its reasonable judgment:



(a) Borrower shall have deposited with Lender $860,000.00, which shall be deposited by Lender
into the Tax and Insurance Escrow Account and shall thereafter constitute a portion of the Tax and
Insurance Escrow Fund for all purposes under the Loan Agreement and the other Loan Documents.



(b) Borrower shall have deposited with Lender $2,140,000.00, which shall be deposited by
Lender into the Interest Reserve Account and shall thereafter constitute a portion of the Interest
Reserve Fund for all purposes under the Loan Agreement and the other Loan Documents.



(c) Lender shall have received (i) an updated Title Insurance Policy (or endorsement to the
Title Insurance Policy) insuring that the terms and provisions of this Amendment shall not affect
the priority of the Mortgage and insuring an amount equal to the stated principal amount of the
Note (ii) and an updated endorsement to be attached to the Title Insurance Policy or an updated
Title Insurance Policy with respect to the Option Parcel, each in form and substance reasonably
satisfactory to Lender (collectively, the “Updated Title Policy”).



(d) No Default or Event of Default shall have occurred and be continuing.



(e) Lender shall have received opinion letters from Borrower’s counsel with respect to the due
execution, authority and enforceability of the Note, this Amendment and the other Loan Documents
(except for the possible non-enforceability of certain Escrowed Documents and the Deed in Lieu
Event Agreement under Nevada law and New York law) being executed on the date hereof, and such
other matters as Lender may reasonably require, all such opinion letters in form, scope and
substance satisfactory to Lender and Lender’s counsel in their reasonable discretion.



(f) Each Guarantor shall have executed and delivered to Lender the Consent and Reaffirmation
of Guarantor attached hereto as Exhibit A.


 


29









 





(g) Each of the DLJMB Parties and DLJ Guarantor shall have executed and delivered to Lender
the Consent and Reaffirmation of DLJMB Parties and DLJ Guarantor attached hereto as Exhibit
B.



(h) HRHH Development shall have executed and delivered to Lender the Consent and Reaffirmation
of HRHH Development attached hereto as Exhibit C.



(i) Borrower and Lender shall have executed and delivered to Lender the Deed in Lieu Event
Agreement, the Escrow Agreement and the Escrowed Documents in accordance with the terms of the Deed
in Lieu Event Agreement and the Escrow Agreement, and shall have satisfied all conditions in such
agreements to the extent such conditions are required to be satisfied as of the date of this
Amendment.



(j) All costs and actual out-of-pocket expenses incurred by Lender and NRFC in connection with
this Amendment, the First Letter Agreement, the Second Letter Agreement and the Third Letter
Agreement, including, without limitation, charges for the Updated Title Policy and reasonable legal
fees and expenses of the counsel to Lender and NRFC, and reasonable legal fees of Borrower’s
counsel in connection with this Amendment, the First Letter Agreement, the Second Letter Agreement
and the Third Letter Agreement (collectively, the “Second Amendment Costs”), shall have been paid
from the Borrower’s Deposited Interest Reserve Funds.



5. Borrower’s Representations and Warranties. Borrower represents and warrants to
Lender as follows as of the date hereof:



(a) All of the representations and warranties made and given by Borrower in the Loan Documents
are true, accurate and correct.



(b) No Default or Event of Default has occurred and is continuing.



(c) The execution and delivery of this Amendment and the performance of Borrower’s obligations
under the Loan Agreement as modified herein and the other Loan Documents have been duly authorized
by all requisite action by or on behalf of Borrower. The Loan Agreement as modified herein and the
other Loan Documents are the legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms, subject to principles of equity and bankruptcy,
insolvency and other laws generally affecting creditors’ rights and the enforcement of debtors’
obligations.



6. Lender’s Representations and Warranties. Lender represents and warrants to
Borrower that, as of the date hereof, Lender is the record holder of legal title to the Loan and,
with the exception of the Contingent Interest Promissory Note and the Option Agreement, the Loan
Documents, pursuant to (i) that certain Assignment and Assumption Agreement, dated November 12,
2008, by and between Original Lender and Lender, (ii) that certain Allonge, dated as of November
12, 2008, made by Original Lender in favor
of Lender, (iii) that certain General Assignment and Assumption (Mortgage Loan Documents),
dated as of November 12, 2008, by and among Original Lender, Lender and Eastern Affiliate, (iv)
that certain UCC-3 Financing Statement Assignment, naming Lender as the secured party, which
Financing Statement was filed on November 19, 2008 with the Delaware Secretary of State as Filing
Number 20083869599 and (v) that certain UCC-3 Financing Statement Assignment, naming


 


30









 




Lender as the
secured party, which Financing Statement was filed on November 19, 2008 in the official records of
Clark County, Nevada as Book / Instrument Number 20081119-0003534 (the “Assignment Documents”) and,
pursuant to the Assignment Documents, Lender is authorized to act as “Lender” for all purposes
under the Loan Agreement and the Loan Documents (other than the Contingent Interest Promissory
Note), including the execution and delivery of this Amendment and all other documents contemplated
hereby, subject to the rights of Eastern Affiliate and the B Piece Holder under the Participation
Agreement.



7. No Prejudice; Reservation of Rights. This Amendment shall not prejudice any
rights or remedies of Lender under the Loan Documents. Lender reserves, without limitation, all
rights which it has against any indemnitor, guarantor or endorser of the Loan Documents.




8. No Impairment. Except as specifically modified by this Amendment and the Omnibus
Amendment and the other amendment documents executed by the parties hereto on the date hereof, all
terms, covenants and provisions of the Loan Agreement and the other Loan Documents shall remain
unmodified and in full force and effect. Any property or rights to or interests in property
granted as security in the Loan Documents shall remain as security for the Loan and the obligations
of Borrower in the Loan Documents.



9. Purpose and Effect of Lender’s Approval. Lender’s approval of any matter in
connection with the Loan shall be for the sole purpose of protecting Lender’s security and rights.
No such approval shall result in a waiver of any default of Borrower, except if and to the extent
such waiver is expressly stated therein. In no event shall Lender’s approval be a representation
of any kind with respect to the matter being approved.



10. No Rights Conferred on Others. Nothing contained in this Amendment or the Loan
Documents shall be construed as giving any Person, other than the parties hereto, any right, remedy
or claim under or with respect to this Amendment or the Loan Documents.



11. Counterparts. This Amendment may be executed by one or more of the parties hereto
on any number of separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.



12. Successors and Assigns. This Amendment shall inure to the benefit of and be
binding upon Borrower and Lender, and their respective successors and assigns.



13. Modification. This Amendment may not be modified, amended, waived, changed or
terminated orally, but only by an agreement in writing signed by the
party(ies) against whom the enforcement of the modification, amendment, waiver, change or
termination is sought.


 


31









 





14. Governing Law. This Amendment shall be governed by the terms and provisions of
Section 10.3 of the Loan Agreement.



15. Severability. In the event any one or more of the provisions contained in this
Amendment shall be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this Amendment, and this
Amendment shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.



16. Integration. The Loan Documents, including this Amendment, are intended by the
parties as the final expression of the agreement with respect to the terms and conditions set forth
in those documents and as the complete and exclusive statement of the terms agreed to by the
parties. In the event of any conflict between the terms of this Amendment and the terms of the
Loan Agreement or any of the other Loan Documents, the terms of this Amendment shall govern.



17. Exculpation. Section 9.4 of the Loan Agreement (as amended pursuant to
Section 2(r) hereof) is incorporated herein by reference as if the same were set forth in full
herein.



[SIGNATURE PAGES FOLLOW]





 


32









 







IN WITNESS WHEREOF, Borrower and Lender have executed this Second Amendment to Loan Agreement
as of the day and year first above written.



	 	 	 	 	 
	 	BORROWER:




HRHH DEVELOPMENT TRANSFEREE, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Richard Szymanski
 	 
	 	 	Name:  	Richard Szymanski 	 
	 	 	Title:  	Vice President 	 
	 
	 	LENDER:




EASTERN CAPITAL FUND I SPE (VEGAS PARADISE) LLC,
a Delaware limited liability company

 	 
	 	By:  	/s/ Raymond M. Murphy
 	 
	 	 	Name:  	Raymond M. Murphy 	 
	 	 	Title:  	General Counsel 	 



[Signatures continue on following page.]




 


 









 





	 	 	 	 	 	 	 
	Agreed to and Accepted by:	 	 
	 
	 	 	 	 	 	 
	EASTERN CAPITAL FUND I SPE (VEGAS 
PARADISE AFFILIATE) LLC,
a Delaware
 limited liability company	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Raymond M. Murphy	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Raymond M. Murphy	 	 
	 

	 	Title:
	 	General Counsel	 	 






	 	 	 	 	 	 	 
	NRFC UL HOLDINGS, LLC,
a Delaware
 limited liability company	 	 
	 
	 	 	 	 	 	 
	By:	 	/s/ Daniel R. Gilbert	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Daniel R. Gilbert	 	 
	 

	 	Title:
	 	Executive Vice President &

Chief Investment Officer	 	 






 


 









 





Exhibits Omitted