Exhibit 10.1


WAIVER
AND AMENDMENT NO. 1 AGREEMENT


WAIVER AND AMENDMENT NO. 1 AGREEMENT,
dated as of October 23, 2006 (this “Amendment”), to the Amended and
Restated Loan and Facilities Agreement, dated as of August 31, 2004 (as the
same may be amended, supplemented or modified from time to time in accordance
with its terms, the “Loan Agreement”), by and among the lenders party
thereto (the “Lenders”), The Bank of New York, as administrative agent
and collateral agent (the “Agent”), and Opbiz, L.L.C., a Nevada limited
liability company, as borrower (the “Borrower”).


WHEREAS, the Borrower, the Lenders and the Agent are parties to the
Loan Agreement;


WHEREAS, the Borrower has requested that the Lenders and Agent waive
certain alleged Events of Default and amend the Loan Agreement as set forth
herein;


WHEREAS, pursuant to Section 11.14(a) of the Loan Agreement
(Modification), the consent of the Required Lenders is required to effect the
waivers and amendments set forth herein;


WHEREAS, subject to the terms and conditions set forth herein, the
Agent and each of the Lenders party to a Lender’s Consent (as defined below)
constituting Required Lenders (such Lenders, the “Consenting Lenders”)
are willing to waive the alleged Events of Default and amend the Loan Agreement
as set forth herein;


NOW, THEREFORE, for
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and subject to the fulfillment of the conditions set forth below,
the parties hereto agree as follows:


SECTION 1.           Definitions.  Unless otherwise defined herein, or the
context otherwise requires, capitalized terms used in this Amendment shall have
the meanings ascribed to such terms in the Loan Agreement.


SECTION 2.           Amendments to Loan Agreement.  Subject to the terms and conditions set forth
herein, the Loan Agreement is hereby amended as follows:


(a)           The following new
defined term is hereby added to Section 1.1 of the Loan Agreement (Specific
Definitions):


“ “Waiver Effective Date” means
October 23, 2006, the date that the Waiver and Amendment No. 1 to the Loan
Agreement became effective .”


(b)           The definition of “Loan
Documents” set forth in Section 1.1 of the Loan Agreement (Specific
Definitions) is hereby amended by deleting such definition in its entirety and
replacing it with the following new definition:


“ “Loan Documents” means, collectively, this
Agreement, the Term Loan Notes, the Financing Statements, any Security
Document, the Environmental Indemnity (if any), the Subordination Agreements,
the Borrower Certificate, the Representation and Warranty Certificate, any
Hedging Agreement, the Holdings Guarantee, the Mezzanine Intercreditor
Agreement, the Warrants, and such other documents, agreements and instruments
evidencing, securing or pertaining to the Obligations, or any part thereof
executed by the Borrower, any Manager or any other Person or, as shall, from
time to time thereafter be executed and delivered 









 



by the Borrower, any Manager or any other Person, in
each case pursuant to or in connection with the Loan or any other Loan
Document.  “Loan Documents” shall  expressly exclude any and all of the
Pre-Petition Credit Agreement, the GECC Facilities Agreement and any documents
and agreements executed in connection therewith or contemplated thereby, except
to the extent any of the foregoing agreements or instruments have been amended
and restated and signed by the Borrower pursuant to this Agreement or any other
Loan Document.”


(c)           The definition of “Letter
of Credit” set forth in Section 1.1 of the Loan Agreement (Specific Definitions)
is hereby amended by deleting such definition in its entirety.


(d)           The definition of “Renovation
Capital Expenditure Account” set forth in Section 1.1 of the Loan Agreement
(Specific Definitions) is hereby amended by deleting such definition in its
entirety and replacing it with the following new definition:


“ “Renovation Capital Expenditure Account”
means an account of the Borrower held at The Bank of New York and subject to a
deposit account control agreement (in form and substance reasonably satisfactory
to the Agent) designated for Renovation Capital Expenditures (it being
understood that the Borrower may withdraw funds from such account solely in
order to satisfy its obligations to spend $90,000,000 on and for Renovation
Capital Expenditures as provided herein).”


(e)           The definition of “Theater
Renovation Account” set forth in Section 1.1 of the Loan Agreement (Specific
Definitions) is hereby amended by deleting such definition in its entirety and
replacing it with the following new definition:


“ “Theater Renovation Account” means
the Theater Escrow Account (as defined in the Mezzanine Loan Agreement) (it
being understood that the Borrower may withdraw funds from such account solely
to be used in order to satisfy the Borrower’s obligations to spend $90,000,000
on and for Renovation Capital Expenditures as provided herein).”


(f)            Section 2.7 of the
Loan Agreement (Term Loan Account) is hereby amended by deleting such clause in
its entirety and replacing it with the following new Section 2.7:


“Section 2.7           Term
Loan Account.  The Agent will
establish a loan account for the Borrower with each Lender.  Unless the Agent otherwise elects, the
principal amount of each Term Loan A and each Term Loan B, the amount of each
required principal repayment, all accrued interest, all fees, all payments due
to the Agent or a Lender from the Borrower under Sections 3.8 (Requirements of
Law), 3.9 (Capital Adequacy Costs), and 3.11 (Indemnity), and all costs and
expenses described in Section 11.10 (Fees and Expenses) will be charged to the
Borrower’s account with the Agent or Affiliate thereof, and upon an Event of
Default, the Agent may direct or cause the Borrower to direct payment from the
Theater Renovation Account or from such other account of the Borrower subject to
a deposit account control agreement in favor of the Agent (and in form and
substance reasonably satisfactory to the Agent) as of the date made, or the
date such other amount is due from the Borrower or is paid or incurred by the
Agent or a Lender, or the date such amount becomes chargeable to the Borrower’s
loan account pursuant to Section 11.10 (Fees and Expenses), as the case may be.”



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(g)           Section 4.3(b) of
the Loan Agreement (Mandatory Prepayments—Renovation Capital Expenditures) is
hereby amended by deleting such clause in its entirety and replacing it with “Intentionally
Omitted.”


(h)           Section 7.13 of the
Loan Agreement (Use of Additional Capital for Renovation Capital Expenditures)
is hereby amended by deleting such Section in its entirety and replacing it
with the following new Section 7.13:


“Section 7.13         Use
of Additional Capital for Renovation Capital Expenditures and Related Matters.   The Borrower shall spend and pay not less
than $90,000,000 on and for Renovation Capital Expenditures as described in the
next sentence and the last sentence of this Section 7.13. The Borrower shall
spend and pay (i) not less than $81,000,000 on and for Renovation Capital
Expenditures for works of improvement in place or for work actually performed
on or in the Premises, and for the purchase of fixtures or materials which are
or which will be stored on the Premises so long as the Agent has at all times a
duly perfected first priority security interest in such fixtures or materials,
payment of labor or professionals for work actually performed and other costs
actually incurred, in each case as of the date of payment (all of which shall
be made pursuant to bona fide, commercially reasonable, arms length, fully
executed agreements with third parties delivered to the Agent pursuant to
Section 7.2(e)(ii) and Section 7.33), by no later than April 30, 2007 and (ii)
an additional $9,000,000 for a total of $90,000,000 on and for Renovation
Capital Expenditures for works of improvement in place or for work actually
performed on or in the Premises, and for the purchase of fixtures or materials
which are or which will be stored on the Premises so long as the Agent has at
all times a duly perfected first priority security interest in such fixtures or
materials stored on the Premises, the payment of labor or professionals for
work actually performed and other costs actually incurred, in each case as of
the date of payment (all of which shall be made pursuant to bona fide,
commercially reasonable, arms length, fully executed agreements with third
parties delivered to the Agent pursuant to Section 7.2(e)(ii) and Section
7.33), on or before August 31, 2007.  The
Borrower hereby acknowledges and agrees that the $14,000,000 payment described
in Section 5.1(x), shall not reduce the total $90,000,000 of Renovation Capital
Expenditures required to be made pursuant to this Section 7.13.  In addition, the Borrower shall use
commercially reasonable efforts to substantially complete all of the items set
forth on Exhibit L by no later than August 31, 2007. The Borrower hereby agrees
that in no event shall it prepay for materials, fixtures, labor, fabrication,
services or other items that constitute Renovation Capital Expenditures in
exchange for future discounts, consideration or otherwise other than up to
$5,000,000 outstanding at any one time (which $5,000,000 limitation shall be in
addition to the $5,000,000 outstanding prior to the Waiver Effective Date)
which may be spent for prepaid fabricated items or deposits for the purchase of
fixtures or materials, and the Borrower shall specify in any request for funds
to be disbursed whether it intends to prepay in accordance with this last
sentence of Section 7.13 and the amount of any such prepayment.”


(i)            Section 7.14 of the
Loan Agreement (Letter of Credit) is hereby amended by deleting such Section in
its entirety and replacing it with “Intentionally Omitted.”


(j)            Section 7.18(b) of
the Loan Agreement (Repairs) is hereby amended by deleting the last sentence of
such Section and replacing it with the following new sentence: “The Borrower
shall not undertake to construct (i) any Renovation Capital Expenditures and
any other Significant Repair or Improvement except in compliance with this
Section 7.18(b) hereof, and (ii) with respect to any Renovation Capital
Expenditures, also in compliance with Section 7.13 and Section 7.33.”


(k)           A new Section 7.33
is hereby added to the Loan Agreement as follows:



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“Section 7.33         Certain
Requirements Relating to Disbursement of Funds in the Renovation Capital
Expenditure Account. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document (including, without limitation, the
control agreement governing the Renovation Capital Expenditure Account), at
least three Business Days prior to the Borrower requesting that any amounts in
the Renovation Capital Expenditure Account be disbursed, the Borrower shall
deliver to the Agent a construction draw request substantially in the form
attached hereto as Exhibit B which shall in any event include the
following, (i) an explanation of the proposed uses of the funds, including
without limitation, the name of all entities to receive payment, (ii) a
comparison between expenses incurred to date and (x) expenses budgeted in the
Borrower’s phasing plans delivered to the Agent on or about September 20, 2006
and (y) expenses budgeted in the Borrower’s overall budget, (iii) the amount
and nature of any Renovation Capital Expenditures made since the last request
for disbursement of funds with, to the extent not previously delivered to the
Agent, attached copies of any contracts entered into, invoices received and
evidence of payment made with respect to any such expenditure, and (iv) copies
of any construction draw requests, invoices and other disbursement requests
received by the Borrower or any Affiliate which the Borrower intends to pay
with the funds that it is currently requesting to be disbursed. Upon the Agent’s
receipt of a duly completed construction draw request that conforms to the
requirements of this Section 7.33 and provided that the Borrower shall utilize
the funds as required by this Agreement (including, without limitation, by
Section 7.13) and provided, further that no Event of Default exists at such
time or would result therefrom, the Agent shall use commercially reasonable
efforts to cause the funds to be disbursed within 7 Business Days following
receipt of such construction draw request.”


(l)            Section 9.1(c)(ii)
of the Loan Agreement (Events of Default) is hereby amended by adding, “7.33”
after “7.30” and before “or Article 8” in such clause.



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SECTION 3.           Waivers.  The Agent and the Required Lenders have
alleged that certain Events of Default exist under the Loan Agreement. Without
any admission of liability on the part of the Borrower, the Agent and the
Required Lenders each hereby waives the Events of Default resulting from the
Borrower’s violation of (i) Section 7.2(a) of the Loan Agreement, (ii) Section
7.2(b) of the Loan Agreement, (iii) Section 7.2(c)(i) of the Loan Agreement,
(iv) Section 7.2(d) of the Loan Agreement, (iv) Section 7.2(e) of the Loan
Agreement, (v) Section 7.2(l) of the Loan Agreement, (vi) Section 7.2(p) of the
Loan Agreement solely relating to the Borrower’s failure to deliver to the
Agent prior to the Waiver Effective Date copies of the monthly reports on the
progress of the renovations that were required to be delivered to the Mezzanine
Lenders, (vii) Section 7.13 of the Loan Agreement (and related Section 4.3 of
the Loan Agreement) relating to Borrower’s failure, in each case, to spend and
pay at least $72,000,000 on and for Renovation Capital Expenditures by the
First Renovation Capital Expenditure Date, (viii) Section 7.18(b) of the Loan
Agreement solely with respect to requirements or conditions that relate to
Renovation Capital Expenditures, and (ix) Section 7.24 of the Loan Agreement
solely with respect to any Material Operating Agreement that relates directly
to Renovation Capital Expenditures.  The
waivers set forth in this Section 3 are effective as of the Waiver Effective
Date and only for the instances and to the extent set forth above (such Events
of Default being so waived, being collectively, the “Specified Defaults”),
and such limited waivers shall not constitute a course of dealing between
Borrower, on the one hand, and the Agent and/or the Lenders, on the other
hand.  Except as specifically provided
herein, nothing contained herein shall constitute a waiver of any other or
subsequent Event or Event of Default including any that may exist as of the
date of this Amendment (other than those specified in Section 3 hereof),
whether of the same or different nature or a waiver of any of the Agent’s or
the Lenders’ rights and remedies under the Loan Agreement and/or any of the
other Loan Documents, all of which are hereby reserved.


SECTION 4.           Covenants
Of The Borrower.  The Borrower
covenants and agrees with the Agent and each of the Lenders as follows:  (a)  This
Amendment is a Loan Document and all of the Borrower’s obligations arising
under and relating to this Amendment, including the exit fee set forth in
Section 4(b) of this Amendment and the Borrower’s obligation to pay the
Interest Differential (as defined below) set forth in Section 4(c) of this
Amendment, constitute Obligations under the Loan Agreement.


(b)           On the date that the
Obligations become due and payable (whether at scheduled maturity or by
acceleration or by voluntary prepayment or mandatory prepayment or otherwise),
the Borrower hereby agrees to pay to the Agent, for the ratable benefit of the
Lenders, an exit fee equal to .75% percent of the outstanding principal balance
of the Loans as of September 1, 2006 (i.e. an exit fee of $3,723,184.78 in the
aggregate). Such exit fee shall be (i) in addition to any and all amounts then
due and payable as of such payment date by the Borrower and Loan Parties
pursuant to this Agreement and the other Loan Documents and any contingent
obligations which by their terms survive termination of this Agreement and the
other Loan Documents and (ii) deemed fully earned as of the Waiver Effective
Date.


(c)           In addition to any
amounts due and payable under Section 3.1 of the Loan Agreement (Term A
Interest) or otherwise, the Borrower hereby agrees to pay to the Agent, for the
ratable benefit of the Term Loan A Lenders, on each date that interest is due
and payable under Section 3.1 (the “Term Loan A Interest Payment Date”)
during the period commencing September 1, 2006 and ending on August 31, 2007,
an amount (the “Term Loan A Interest Differential”) equal to the
difference between (i) the amount of interest due and payable by the Borrower
pursuant to Section 3.1(a) of the Loan Agreement on such Term Loan A Interest
Payment Date (without regard to the imposition of any default rate of interest
under Section 3.3 of the Loan Agreement and subject to adjustment as provided
in the last sentence of this Section 4(c)) and (ii) an amount equal to a rate
per annum equal to three month LIBOR plus 3.25% on the unpaid principal amount
of the Term Loan A during the Fiscal Quarter last ended prior to such Term Loan
A Interest Payment Date. The Term Loan A Interest Differential shall be payable
on each Term Loan A Interest Payment Date in kind by each Term Loan A Lender’s
pro rata amount of the 



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Term Loan A Interest Differential being automatically
added to the principal amount of such Term Loan A Lender’s Loan on such Term
Loan A Interest Payment Date.  The
Borrower hereby agrees that the Term Loan A Interest Differential amount due
under this Section 4(c) for the period commencing on September 1, 2006 and ending
on the Term Loan A Interest Payment Date relating to the Fiscal Quarter ending
September 30, 2006 (the “October 2006 Term Loan A
Interest Payment Date”) shall be automatically added to the
principal amount of such Term Loan A Lender’s Loan on the Waiver Effective Date
if the Waiver Effective Date is after the October 2006 Term Loan A Interest
Payment Date or otherwise shall be automatically added to the principal amount
of such Term Loan A Lender’s Loan on the October 2006 Term Loan A Interest
Payment Date. The Borrower hereby further agrees that the Term Loan A Interest
Differential shall be due and payable for the period commencing July 2, 2007
and ending August 31, 2007 and shall be payable as provided above on the
October 1, 2007 Interest Payment Date. The parties hereto further agree that in
the event that the Borrower is required at any time under Section 3.1(a)(ii) to
pay the Agent a Shortfall Interest Amount, the Borrower may pay the Shortfall
Interest Amount by paying the Agent in cash the full amount of each Term Loan A
Interest Differential that was added to the aggregate principal amount of the
Term Loan A on each Term Loan A Interest Payment Date during the prior Fiscal
Year as provided in this Section 4(c) and any Shortfall Interest Amount paid by
Borrower and actually received by Agent in cash shall reduce, on a dollar for
dollar basis, the amount of the Term Loan A Interest Differential that was
added to the principal balance of the Term Loan A.”


(d)           As of October 2,
2006, the aggregate outstanding principal amount of the Loans is an amount
equal to $495,043,387.53 (which does not give effect to any Term Loan A
Interest Differential).


(e)           The Borrower’s
obligations to the Agent and each of the Lenders as evidenced by or otherwise
arising under the Loan Agreement and the other Loan Documents remain in full
force and effect and are confirmed and ratified in all respects.


(f)            The amendments and
waivers provided for herein are limited to the specific sections of the Loan
Agreement specified herein and shall not constitute an amendment or waiver of,
or an indication of the Agent’s or the Lenders’ willingness to amend or waive,
any other provisions of the Credit Agreement or the same sections for any other
date or purpose.


SECTION 5.           Representations
and Warranties.  The Borrower and
each of the Loan Parties represents and warrants (which representations and
warranties shall survive the execution and delivery hereof) to the Agent and
Lenders that:


(a)           it has the requisite
limited liability company power and authority to execute, deliver and perform
the terms and provisions of this Amendment and the transactions contemplated
hereby and has taken or caused to be taken all necessary limited liability
company action to authorize the execution, delivery and performance of this
Amendment and the transactions contemplated hereby;


(b)           no consent of any
Person (including, without limitation, shareholders or creditors of the
Borrower or any Loan Party), and no consent, approval or authorization of, or
filing with any Governmental Authority is required to authorize, or is
otherwise required in connection with the execution, delivery and performance
of this Amendment and the other instruments and documents contemplated hereby
which has not been duly obtained;


(c)           each of this
Amendment and any other instruments and documents contemplated hereby has been
duly executed and delivered by a duly authorized officer on behalf of such
party, and constitutes a legal, valid and binding obligation of such party
enforceable against such party in accordance with its terms, subject to
bankruptcy, reorganization, insolvency, moratorium and other 



 6
 






 



similar laws affecting the enforcement of creditors’
rights generally and the exercise of judicial discretion in accordance with
general principles of equity;


(d)           the execution,
delivery and performance by the Loan Parties of this Amendment, and the other
instruments and documents contemplated hereby will not violate any law, statute
or regulation, or any order or decree of any court or governmental
instrumentality applicable to the Loan Parties, or conflict with, or result in
the breach of, or constitute a default under any contractual obligation of such
party;


(e)           after giving effect
to this Amendment, there does not exist any Event or Event of Default; and


(f)            after giving effect
to this Amendment, the representations and warranties contained in the Loan
Agreement and in the other Loan Documents are true and correct in all respects
on and as of the Waiver Effective Date as if such representations and
warranties had been made on and as of the Waiver Effective Date (except to the
extent such representations and warranties expressly relate to an earlier date
in which case such representations and warranties shall be true and correct in
all respects as of such earlier date).


SECTION 6.           Conditions
to Effectiveness.  This Amendment
shall become effective on the date (the “Waiver Effective Date”) upon
which the following conditions have been satisfied in full or waived by the
Agent in writing:


(a)           the Agent shall have
received in form and substance satisfactory to the Agent and its counsel,
counterparts of this Amendment duly executed by the Borrower and Agent and such
other approvals or documents as the Agent may reasonably request.


(b)           the Agent shall have
received in form and substance satisfactory to the Agent and its counsel, the
Acknowledgement and Consents, in form set forth hereto as Exhibit B (each, a “Lender
Consent”), executed by the Lenders constituting the Required Lenders.


(c)           the Agent shall have
received in form and substance reasonably satisfactory to the Agent and its
counsel a duly executed amendment to the Mortgage and increases to the Title
Insurance Policy to reflect the agreements set forth in this Agreement.


(d)           counsel for the Agent
shall have received, by wire transfer of immediately available funds, the
outstanding attorneys’ fees and disbursements invoiced to the Borrower and
required to paid under Section 13 of this Amendment and Section 11.10 of the
Loan Agreement


(e)           the Agent shall have
received such other instruments, documents and assurances as the Agent or its
counsel may reasonably request.


SECTION 7.           Ratification;
Waiver of Defenses; and Release.


(a)           The Loan Agreement
and each of the other Loan Documents shall be and remain in full force and
effect and are hereby ratified and affirmed in all respects.  The Borrower and each Loan Party hereby (i)
confirms and agrees that the Borrower is truly and justly indebted to the Agent
and the Lenders in the aggregate amount of the Obligations without defense,
counterclaim or offset of any kind whatsoever; and (ii) reaffirms and admits
the validity and enforceability of the Loan Agreement and the other Loan
Documents and the Liens in the Collateral which were granted pursuant to the
Loan Documents and otherwise.



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(b)           Each Loan Party, on
its own behalf and on behalf of its successors and assigns, hereby waives,
releases and discharges the Agent and each Lender and all of the affiliates of
the Agent and each Lender, and all of the directors, officers, employees,
attorneys, agents, successors and assigns of the Agent, each Lender and such
affiliates, from any and all claims, demands, actions or causes of action
(known and unknown) arising out of or in any way relating to the Loan Documents
and any documents, agreements, dealings or other matters connected with any of
the Loan Documents, in each case to the extent arising (x) on or prior to the
date hereof or (y) out of, or relating to, actions, dealings or matters
occurring on or prior to the date hereof. 
The waivers, releases, and discharges in this Section 7
shall be effective on the Waiver Effective Date regardless of any event that
may occur or not occur after the date hereof.


(c)           This Amendment shall
be limited precisely as written and shall not be deemed (i) other than as
specifically provided herein, to be a consent granted pursuant to, or a waiver
or modification of, any other term or condition of the Loan Agreement or any of
the instruments or agreements referred to therein or a waiver of any Event or
Event of Default under the Loan Agreement 
whether or not known to the Agent or the Lenders or as a consent,
modification or waiver of any right, power, or remedy of Agent or any Lender
under the Loan Agreement or any other Loan Document, (ii) to prejudice any
other right or rights which the Agent or the Lenders may now have or have in
the future under or in connection with the Loan Agreement or any of the
instruments or agreements referred to therein or (iii) to constitute an acknowledgement,
admission or course of conduct regarding the consent required to effectuate
this Amendment or the Loan Documents.   
The waivers, consents, and modifications herein are limited to the
specifics hereof, shall not apply with respect to any facts or occurrences
other than those on which the same are based, shall not excuse future
non-compliance with the Loan Documents, and shall not operate as a consent to
any further or other matter under the Loan Documents.  Except to the extent hereby waived or modified,
the Loan Agreement and each of the other Loan Documents shall continue in full
force and effect in accordance with the provisions thereof on the date hereof.


SECTION 8.           References.  All references to the “Loan Agreement,” “thereunder,”
“thereof” or words of like import in the Loan Agreement or any other Loan
Document and the other documents and instruments delivered pursuant to or in
connection therewith shall mean and be a reference to the Loan Agreement or any
other Loan Document as modified hereby and as each may in the future be
amended, restated, supplemented or modified from time to time.  This Amendment shall constitute a Loan
Document.


SECTION 9.           Counterparts.  This Amendment may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all of which, taken together, shall constitute
one and the same agreement.  Delivery of
an executed counterpart of a signature page by telecopier shall be effective as
delivery of a manually executed counterpart.


SECTION 10.         GOVERNING
LAW.  THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER 
IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATION LAW OF THE
STATE OF NEW YORK, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS
PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.


SECTION 11.         Successors
and Assigns.  The provisions of this
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.


SECTION 12.         Acknowledgement
by Loan Parties.  Each of the Loan
Parties hereby acknowledge that it has read this Amendment and consents to the
terms hereof and further confirms and 



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agrees that the Loan Documents to which such Loan
Party is a party and all of the Collateral, as the case may be, described
therein do, and shall continue to, secure the payment of all of the
Obligations.


SECTION 13.         Costs and
Expenses.  The Borrower agrees that
its obligations set forth in Section 11.10 of the Loan Agreement shall
extend to the preparation, execution and delivery of this Amendment (whether or
not this Amendment becomes effective), including, but not limited to, the
reasonable fees and disbursements of Kaye Scholer LLP, counsel for the Agent.


SECTION 14.         Severability.  If any provisions of this Amendment shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or enforceability without in any manner affecting the validity or
enforceability of such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.


SECTION 15.         Survival.  All representations, warranties, covenants,
agreements, undertakings, waivers and releases of the Borrower and the Loan
Parties contained herein shall survive the Maturity Date and the indefeasible
payment in full in cash of the Obligations.


SECTION 16.         Integration.  This Amendment represents the entire
agreement of the parties hereto with respect to the subject matter hereof.  There are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto,
relating to the subject matter of this Amendment, which are not fully expressed
herein.


SECTION 17.         Consultation
with Advisors.  The Loan Parties
acknowledge that they have consulted with counsel and with such other experts
and advisors as they have deemed necessary in connection with the negotiation,
execution and delivery of this Amendment. 
This Amendment shall be construed without regard to any presumption or
rule requiring that it be construed against the party causing this Amendment or
any part thereof to be drafted.


SECTION 18.         Further
Deliveries.  The parties hereto
shall, at any time and from time to time following the execution of this
Amendment, execute and deliver all such further instruments and take all such
further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this
Amendment.


SECTION 19.         Headings.  Section headings in this Amendment are
included herein for convenience of reference only and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.


[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]



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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be duly executed as of the day and the
year first written.


	
  

  	
  OPBIZ, L.L.C., a Nevada limited liability company,

  as Borrower,

  
	
   

  	
  By:

  	
  MezzCo, L.L.C., a
  Nevada limited liability

  company, its sole member

  
	
   

  	
  By:

  	
  EquityCo, L.L.C., a
  Nevada limited liability

  company, its sole member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Manager

  
	
   

  	
  MEZZCO, L.L.C., a
  Nevada limited liability company,

  as Loan Party

  
	
   

  	
  By:

  	
  EquityCo, L.L.C., a
  Nevada limited liability company, its sole member

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 



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  THE BANK OF NEW YORK, as Administrative Agent

  and Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 



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Exhibit
A — Form of Lender Consent


Acknowledgement and Consent


To:          The Bank of New York, as
Administrative Agent and Collateral Agent


Re:          Opbiz,
L.L.C.


Reference is made to the Second Amended and Restated Loan and
Facilities Agreement, dated as of August 31, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement), among by and among
Opbiz, L.L.C., a Nevada limited liability company, as borrower (the “Borrower”),
the lenders party thereto (the “Lenders”), and The Bank of New York, as
administrative agent and as collateral agent (the “Agent”).


The Borrower has requested that the Lenders waive certain existing Events
of Default and amend the Loan Agreement as set forth in the Waiver and
Amendment attached hereto as Exhibit A (the “Amendment”).


Pursuant to Section 11.14 (Modifications) of the Loan Agreement, the
undersigned Lender hereby consents to the terms of the Amendment and authorizes
the Agent to execute and deliver the Amendment on its behalf.


 


	
  

  	
  Very truly yours,

  
	
   

  	
  [INSERT NAME OF LENDER]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


Dated as of October ___,
2006


 



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 EXHIBIT B TO WAIVER AND AMENDMENT NO. 1


FORM OF CONSTRUCTION DRAW REQUEST


[DATE]


Mr.
Stephen C. Jerard

The Bank of New York, as Agent
600 East Las Colinas Blvd, #1300
Irving, Texas 75039


Re:      Construction Draw Request


Dear
Steve:


Reference is made to the Amended and Restated
Loan and Facilities Agreement, dated as of August 31, 2004 (as the same may be
amended, supplemented or modified from time to time in accordance with its
terms, the “Loan Agreement”), by and among the lenders party thereto,
The Bank of New York, as administrative agent and collateral agent (the “Agent”),
and Opbiz, L.L.C., a Nevada limited liability company, as borrower (the “Borrower”).


The Borrower hereby requests that [$_____] be
disbursed from the Renovation Capital Expenditure Account and hereby notifies
the Agent that of the [$______] requested to be disbursed, $[       ] shall be used to purchase prepaid
fabricated items or deposits for the purchase of fixtures or materials as
permitted by Section 7.13 of the Loan Agreement and as described in more detail
below.


The Borrower will use the funds to [DESCRIBE
USE OF FUNDS] and in particular shall pay the following Persons the following
amounts upon receipt of the funds [INSERT NAME OF ALL ENTITIES RECEIVING
PAYMENT AND AMOUNT OF SUCH PAYMENT].


Attached hereto as Exhibit A is a comparison
between expenses incurred to date for Renovation Capital Expenditures and (x)
expenses budgeted in the Borrower phasing plans delivered to the Agent on or
about September 20, 2006 and (y) expenses budgeted in the Borrower’s overall
budget.


Attached hereto as Exhibit B is a list of the
amount and nature of any Renovation Capital Expenditures made since the last
request for disbursement of funds with, to the extent not previously delivered
to the Agent, attached copies of 



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any contracts entered into,
invoices received and evidence of payment made with respect to any such
expenditure.


Attached hereto as Exhibit C are copies of
any construction draw requests, invoices and other disbursement requests
received by the Borrower or any Affiliate which the Borrower intends to pay
with the funds that it is currently requesting to be disbursed.


Attached hereto as Exhibit D is an updated
version of the Borrower’s phasing plans that were initially submitted to the
Agent on or about September 20, 2006 (Borrower shall use the same form and just
update the amounts and other information).


The Borrower hereby represents and warrants
to the Agent and the Lenders that it shall use the funds as required by the
Loan Agreement (including without limitation Section 7.13) and that no Event of
Default exists or would exist after giving effect to this construction draw
request.


	
  

  	
  OPBIZ, L.L.C.

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 



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