Exhibit 10.2
FIRST AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this
"Amendment") is made as of this
day of July, 2007 by and among MezzCo,
L.L.C., a Nevada limited liability company (the "Company"), EquityCo, L.L.C., a
Nevada limited liability company and the sole member of the Company ("EquityCo"
or the "Member") and the persons identified on the signature pages hereto as the
Mezzanine Investors (each, a "Mezzanine Investor" and collectively, the
"Mezzanine Investors").
WITNESSETH:
WHEREAS, the Securityholders (as defined below), the Company and the other
signatories thereto are parties to that certain Investor Rights Agreement dated
as of August 9, 2004 (the "Original Investor Rights Agreement") pursuant to
which, among other things, the Mezzanine Investors acquired warrants (the
"Original Warrants") in an aggregate amount of 17,500 of the Company's units
(subject to adjustment and increase as provided in the Original Warrants)
representing membership interests in the Company;
WHEREAS, the Company, the Mezzanine Investors and other members of the Company
or holders of securities convertible into securities of the Company (together
with the Member, the "Non-Mezz Investors") are parties to that certain Amended
and Restated Investors Rights Agreement dated as of November 30, 2006 (the
"Investors Agreement") and (i) the Company entered into that certain credit
facility with Column Financial Inc., in the aggregate amount of up to
$820,000,000 (the "CMBS Facility"), and (ii) in connection therewith, the
Company and the Securityholders determined to enter into the Investors Agreement
which amends, restates and supersedes the Original Investor Rights Agreement and
the terms of the Original Warrants (each such amended and restated Original
Warrant, a "Warrant" and collectively, the
"Warrants").
The Mezzanine
Investors and the Non-Mezz Investors are herein collectively referred to as the
"Securityholders" and each a "Securityholder."
WHEREAS, the parties to the Investors Agreement desire to amend the terms of the
Investors Agreement and upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
1.
DEFINED TERMS.
CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN
SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE INVESTORS AGREEMENT.
2.
AMENDMENTS TO INVESTORS AGREEMENT.
UPON SATISFACTION OF THE
CONDITIONS SET
FORTH IN SECTION 3 HEREOF, THE INVESTORS AGREEMENT IS HEREBY AMENDED AS FOLLOWS:
(I)
THE DEFINITION OF "ADDITIONAL ROOM RENOVATION EXPENSES" IS HEREBY ADDED TO
SECTION 1.3 OF THE INVESTORS AGREEMENT AS FOLLOWS:
" 'ADDITIONAL ROOM RENOVATION EXPENSES' MEANS EXPENSES INCURRED BY THE COMPANY
AND ITS SUBSIDIARIES TO RENOVATE ROOMS AT THE HOTEL PREMISES IN ADDITION TO THE
608 ROOMS INCLUDED WITHIN THE ORIGINAL RENOVATION PLAN APPROVED BY THE CMBS
LENDERS."
(ii)
The definition of "GAAP" is hereby added
to Section 1.3 of the Investors Agreement as follows:
" 'GAAP' means United States generally accepted account principles, as in effect
from time to time."
(iii)
The definition of "Incurred" is hereby added to Section 1.3 of the
Investors Agreement as follows:
" 'Incurred'