NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/14/2015

Exhibit 4

FILED: NEW YORK COUNTY CLERK 08/14/2015 06:26 PM INDEX NO. 651888/2015

NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/14/2015

THIRD OMNIBUS AMENDMENT TO LOAN DOCUMENTS

THIS THIRD OMNIBUS AMENDMENT TO LOAN DOCUMENTS (the "Third Omnibus Amendment") is made as of August 22, 2012, by VENETO HOTEL & CASINO, S.A., a corporation organized under the laws of the Republic of Panama ("Borrower"), the undersigned Guarantors, and GERMAN AMERICAN CAPITAL CORPORATION, a Maryland corporation, ("Lender").

WHEREAS, pursuant to that certain Loan and Security Agreement, dated June 14, 2007, between Lender, as lender (in such capacity the "Original Lender"), and Borrower, as amended by that certain Omnibus Amendment to Loan Documents, dated as of June 8, 2009 (the "First Omnibus Amendment"), by and among Borrower, Original Lender and Exmoor 2008-1, LTD., as assignee of a $44,000,000 principal portion of Original Lender's interests in the Loan, as further amended by that certain Second Omnibus Amendment to Loan Documents, dated as of March 19, 2010 (the "Second Omnibus Amendment"), by and among Borrower, Original Lender and Exmoor 2008-1, LTD. (as amended hereby and as may be amended, restated, replaced, supplemented or otherwise modified from time to time), Original Lender made a loan to Borrower in the stated maximum principal amount of up to $60,000,000 (such principal amount and all sums payable by Borrower in connection with such loan, the "Loan");

WHEREAS, the Loan was evidenced by that certain Promissory Note, dated as of the Closing Date, made by Borrower for the benefit of Original Lender in the principal amount of up to $60,000,000, vihich Promissory' Note was subsequently split into (1) a certain Note A for the benefit of Original Lender, dated as of June 15, 2008, in the principal amount of up to $44,000,000, and (2) a certain Note B for the benefit of Original Lender, dated as of June 15, 2008, in the principal amount of up to $16,000,000.

WHEREAS, the Loan is secured by, among other things, the Security Documents (as defined in the Loan Agreement) and certain other documents executed or delivered in connection with the Loan;

WHEREAS, Borrower and Lender desire to amend the terms of the Loan Agreement and the Loan Documents to reflect certain matters as more particularly set forth herein, and in connection therewith enter into a Replacement Consolidated Note, dated the date hereof;

NOW THEREFORE, in consideration of the foregoing premises and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Lender agree to amend the Loan Documents as follows:

1. Definitions; Recitals. Capitalized terms used in this Third Omnibus Amendment and not defined herein shall have the meaning provided in the Loan Agreement. The parties intend the Recitals set forth above to be a material part of this Third Omnibus Amendment.

2. Loan Agreement.

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(a)

Definitions. The following modifications are hereby made to Section 1.1 of the Loan Agreement:

(1)

The definition of "Approved Counterparty" is hereby deleted in its entirety and replaced with the following:

"Approved Counterparty" shall mean a bank or other financial institution which has (a) a long-term unsecured debt or counterparty rating of "A +" or higher by S&P; (b) a long-term unsecured debt or counterparty rating of not less than "A 1" by Moody's; and (c) if the counterparty is rated by Fitch, either a long-term unsecured debt rating of not less than "A" from Fitch or a short-term unsecured debt rating of not less than "F-1" from Fitch."

(ii) The definition of "Annual Budget" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Annual Budget" shall mean the operating budget for the Property prepared by Borrower or, while a Management Agreement is in full force and effect, Manager (on Borrower's behao, as applicable, for the applicable Fiscal Year or other period setting forth, in reasonable detail, Borrower's or Manager's, as applicable, good faith estimates of the anticipated results of operations of the Property, including revenues from all sources, all Operating Expenses, management fees, Capital Expenditure and with respect to FF&E Expenditures setting forth the line item, "Project Budget."

(iii) The following is inserted before the definition of "Cash and Cash Equivalents":

"Cash Management Agreement" shall mean that certain Account and Control Agreement by and among Lender, Borrower and Servicer, dated as of June , 2010, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time."

(iv) The definition of "Casino Component Collection Account" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Casino Component Collection Account" shall mean a collection account, account number 10012520234, established with the Account Trustee for the benefit of Lender, as secured party, for funds from the Casino Component with the account name "Fideicomiso-Multi Trust, Inc. No.023-8". For purposes of clarification, the Casino Component Collection Account shall be the re-designated Casino Component FF&E Reserve Account in existence prior to the Third Omnibus Amendment Closing Date."


(v) The definition of "Credit Card Collection Account" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Credit Card Collection Account" shall mean a collection account, account number 10012520168, established with the Account Trustee for the benefit of Lender, as secured party, for credit card receipts from the Hotel with the account name "Fideicomiso-Multi Trust, Inc. No,023-1". For purposes of clarification, the Credit Card Collection Account shall be the re-designated Collection Account in existence prior to the Third Omnibus Amendment Closing Date."

(vi) The following is inserted after the definition of "Excess Cash Flow":

"Excess Cash Flow Payment Account" shall mean an account established with the Servicer in the name of Lender for the retention of Monthly Excess Cash Flow Payments with the account number 538363.2,"

(vii) The definition of "Debt Service Reserve Account" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Debt Service Reserve Account" shall mean an account established with the Servicer in the name of Lender for the retention of Account Collateral in respect of Debt Service on the Loan with the account number PORT S38363 . 1. "

(viii) The following is hereby inserted after the definition of "FF&E":

"FF&E Expenditures" shall mean expenditures related to FF&E, including FF&E expenditures that constitute Capital Expenditures."

"FF&E Reserve Amount" shall have the meaning set forth in Section 16.3."

(ix) The following is hereby inserted after the definition of "FF&E Reserve Amount":

"FF&E Reserve Account" shall mean a sub-account, account number 10012520200, for the retention of Account Collateral in respect of FF&E with respect to the Hotel and the Casino Component with the account name "Fideicomiso-Multi Trust, Inc. No.023-5." For purposes of clarification, the FF&E Reserve Account shall be the re-designated Operating Expense Reserve Account in existence prior to the Third Omnibus Amendment Closing Date."

(x) The definition of "Hotel Collection Account" is hereby deleted in its entirety and replaced with the following in lieu thereof:


"Hotel Collection Account" shall mean a collection account, account number 10012520242, established with the Account Trustee for the benefit of Lender, as secured party, for funds from the Hotel with the account name "Fideicomiso-Multi Trust, Inc. No.023-9." For purposes of clarification, the Hotel Collection Account shall be the re-designated Hotel FF&E Reserve Account in existence prior to the Third Omnibus Amendment Closing Date."

(xi) The following is inserted after the definition of "Lender Expenses":

(xii) "Lender Parties shall have the meaning set forth in Section 8 herein. "

(xiii) The definition of "Loan Documents " is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Loan Documents" shall mean, collectively, the Loan Agreement, the Note, the Security Trust Agreement, the Assignment of Agreements, the Asset Manager 's Consent, the Franchisor Comfort Letter, the Recourse Guaranty, the Environmental Indemnity, the Pledge and the Security Instrument, the Cash Management Agreement, and any and all other agreements, instruments or documents executed by Borrower evidencing, securing or delivered in connection with the Loan and the transactions contemplated thereby, including, without limitation, officer's certificates, in each case as amended, restated or modified or as may be further amended, restated or otherwise modified "

(xiv) The following is hereby inserted before the definition of "Monthly Insurance Reserve Amount":

"Monthly Excess Cash Flow Payments" shall have the meaning set forth in Section 5.1.28."

"Monthly FF&E Reserve Amount" shall have the meaning set forth in Section 16.3."

(xv) The following is inserted before the definition of "Operating Expenses":

"Operating Expense Reserve Account" shall mean a sub-account, to be established with the Account Trustee for the benefit of Lender, as secured party, in respect of Approved Operating Expenses. "

(xvi) The following is inserted after the definition of "Regulatory Change":

"Released Parties shall have the meaning set forth in Section 8 herein."

"Released Matters shall have the meaning set forth in Section 8 herein. "

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"Releasing Parties shall have the meaning set forth in Section 8 herein."

(xvii) The following is inserted before the definition of "Required Franchise Investment":

"Required Annual Excess Cash Flow Payment" shall have the meaning set forth in Section 5.1.28."

(xviii) The definition of "Security Trust Agreement" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Security Trust Agreement" shall mean the Security Trust Agreement, dated as of March 19, 2010, by and among Lender, Borrower, Account Trustee and Multibank Inc., as depository bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time."

(xix) The definition of "Strike Price" is hereby deleted in its entirety and replaced with the following in lieu thereof:

"Strike Price" shall mean from and after the Third Omnibus Amendment Closing Date until the Maturity Date, 6.00% per annum."

(xx) The following is hereby inserted after the definition of "Tenant":

"Third Omnibus Amendment Closing Date" shall mean August 22, 2012."

(xxi) The following definitions are hereby deleted and references to such terms in any Loan Document shall be deemed a reference to the "Monthly FF&E Reserve Amount", " FF&E Reserve Amount", or " FF&E Reserve Account", as applicable:

"Monthly Casino Component FF&E Reserve Amount", "Monthly Hotel FF&E Reserve Amount", "Casino Component FF&E Reserve Amount", "Hotel FF&E Reserve Amount", "Casino Component FF&E Reserve Account", and "Hotel FF&E Reserve Account"

(b) Accounts.

(i)

Section 3.1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

3.1.1 Borrower hereby confirms that, simultaneously with the execution of this Agreement, pursuant to the Security Trust Agreement, Borrower has established or converted one of the existing accounts (other than those sub-accounts that will be reinstated pursuant to that certain Post Closing Agreement dated as of the date hereof by Borrower), with Account Trustee, in the name of


Account Trustee for the benefit of Lender, as secured party, (i) the Casino Component Collection Account, the Hotel Collection Account, and the Credit Card Collection Account (the Casino Component Collection Account, Hotel Collection Account and Credit Collection Account hereinafter referred to as, individually and collectively, the "Collection Account') and (ii) a holding account for funds from the Property (the "Holding Account'). Borrower has collaterally assigned to Account Trustee, for the benefit of Lender as provided herein and in the Security Trust Agreement, all funds from operations of the Casino Component and the Hotel Component. Both the Collection Account and the Holding Account and each sub-account of such accounts and the funds deposited therein and securities and other assets credited thereto shall serve as additional security for the Loan. Pursuant to the Security Trust Agreement, Borrower shall irrevocably instruct and authorize Account Trustee to disregard any and all orders for withdrawal from the Collection Account or the Holding Account made by, or at the direction of Borrower other than to transfer all amounts on deposit in the Collection Account on a daily basis to the Holding Account. Pursuant to the Security Trust Agreement, Account Trustee on a daily basis shall transfer all collected and available, funds as determined by Account Trustee's then current funds availability schedule received in the Collection Account to the Holding Account. In recognition of Lender's security interest in the funds deposited into the Collection Account and the Holding Account, Borrower shall identin) both the Collection Account and the Holding Account with the name of Lender, as secured party. The Holding Account shall be account number 10012520176 and shall be named as follows: "Fideicomiso-Multi Trust, Inc. No.023-2". Borrower confirms that it has established, or with respect to the Operating Expense Reserve Account will establish, with Account Trustee the following sub-accounts of the Holding Account (each a "Sub-Account", collectively the "Sub-Accounts", and together with the Holding Account and the Collection Account the "Collateral Accounts'), which (i) may be ledger or book entry sub-account and need not be actual sub-account, (it) shall each be linked to the Holding Account, (iii) RESERVED and (iv) shall each be an Eligible Account to which certain funds shall be allocated and from which disbursements shall be made pursuant to the terms of this Agreement:

(a) a sub-account, account number 10012520184, for the retention of Account Collateral in respect of Impositions and Other Charges for the Property with the account name "Fideicomiso-Multi Trust, Inc. No.023-3" (the "Tax Reserve Account'), which sub-account will be reinstated;

(b) a sub-account, account number 10012520192, for the retention of Account Collateral in respect of insurance premiums for the Property with the account name "Fideicomiso-Multi Trust, Inc. No.023-4" (the "Insurance Reserve Account');


(c) the Operating Expense Reserve Account, which sub- account will be established;

(d) a sub-account, account number 10012520226, for the retention of Account Collateral in respect of Asset Management Fees with respect to the Property with the account name "Fideicomiso-Multi Trust, Inc. No.023-6" (the "Asset Management Fee Reserve Account'), which sub-account will be reinstated,.

(e) a sub-account, account number 10012520218, for the retention of Account Collateral in respect of Franchisor Fees with respect to the Property with the account name "Fideicomiso-Multi Trust, Inc, No.023-7" (the "Franchisor Fee Reserve Account');

(f) the FF&E Reserve Account, which sub-account will be reinstated.

(ii) The following is inserted as the Section 3.1.4(c):

"3.1.4(c) Borrower hereby agrees and covenants to maintain in each Collateral Account, at all times, minimum amounts of funds required by the Depository Bank to keep such Collateral Account open."

Sections 3.1.7(a)(vi) and 3.1.7(a)(vii) of the Loan Agreement are hereby deleted in their entirety and the following are hereby inserted as Sections 3.1.1(a)(vi) and 3.1.1(a)(vii), respectively:

"(vi) until an amount equal to the Monthly FF&E Reserve Amount has accumulated in the FF&E Reserve Account with respect to the immediately following month, transfer such funds from the Holding Account to the FF&E Reserve Account;

(vii) RESERVED. "

(iv) Sections 3.1.8(a)(vi) and 3.1.8(a)(vii) of the Loan Agreement are hereby deleted in their entirety and the following are hereby inserted as Sections 3.1.1(a)(vi) and 3.1.1(a)(vii), respectively:

"(vi) provided Borrower shall have complied with the procedures set forth in Section 16.3, funds from the FF&E Reserve Account to the Borrower's Account to pay for FF&E Expenditures allocable to the Hotel and the


Casino Component until an amount equal to the Monthly FF&E Reserve Amount has been so transferred;

(v) (vii) RESERVED."

(c) Borrower Covenants.

(i) The following is hereby inserted as Section 5.1.28.

"Commencing on January 1, 2013 until the Loan is indefeasibly paid in full, Borrower shall cause thirty percent (30%) of the Excess Cash Flow (the "Monthly Excess Cash Flow Payments') for each calendar month to be deposited into the Excess Cash Flow Payment Account within forty-five (45) days after the end of such calendar month. Within two (2) Business Days following the deposit of Monthly Excess Cash Flow Payments into the Excess Cash Flow Payment Account, Servicer, on behalf of Borrower, shall prepay the then outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of such Monthly Excess Cash Flow Payments and earnings thereon. In the event the aggregate Monthly Excess Cash Flow Payments including earnings thereon that is actually paid to Lender is less than One Million Dollars ($1 ,000,000) for any calendar year (such amount, as may be prorated, the "Required Annual Excess Cash Flow Payment"), Borrower shall pay to Lender within 45 days of the end of such calendar year (other than the Required Annual Excess Cash Flow Payment for the calendar year in which the Maturity Date occurs), the shortfall amount between the actually received aggregate Monthly Excess Cash Flow Payments including earnings thereon that is actually paid to Lender and the Required Annual Excess Cash Flow Payment. Not later than thirty (30) days after the end of each calendar month, Borrower shall deliver to Lender an Officer's Certificate stating the Excess Cash Flow for such month with detailed evidence of items used in such calculations and other back-up documentation requested by Lender."

(d) Reserve Accounts.

(i)

Sections 16.3(a) and 16.3(b) of the Loan Agreement are hereby deleted in their entirety and the following is hereby inserted as 16.3(a):

"Borrower shall deposit, or cause to be deposited, into the FF&E Reserve Account during each calendar month, with respect to the Hotel and the Casino Component (i) commencing on the Third Omnibus Amendment Closing Date until the Maturity Date, an amount equal to a minimum of One Million Dollars ($1,000,000) per annum (Eighty Three Thousand Three Hundred Thirty Three Dollars ($83,333) per month) ( the "Monthly FF&E Reserve Amount" and together with all amounts deposited in the FF&E Reserve Account, the "FF&E Reserve Amount"). Any shortfall in a FF&E Reserve Account at the end of a calendar month, to the extent not


otherwise funded by Borrower, shall be funded into the FF&E Reserve Account from amounts that otherwise would be distributed to Borrower from the Borrower Account on the Payment Date immediately following the end of the month in which such adjustment is computed, and any overages shall be paid to or as directed by Borrower from the FF&E Reserve Account on such date; "

The following is hereby inserted as Section 16.3(b).

"So long as no Event of Default has occurred or is continuing, and subject to Section 16.3(d), Borrower shall be authorized to use the funds in the FF&E Reserve Account to pay for actual costs incurred in connection with the FF&E Expenditures (to the extent such expenditures are not prohibited under the Loan Documents), provided that on a monthly basis, Borrower shall provide Lender a status report of FF&E Expenditures setting forth the line items, "Project Budget", "Costs Incurred—Current Month", "Costs Incurred—Year to Date", "Payments—Current Month" and "Payments—Year to Date". With respect to (i) any category of FF&E Expenditures in excess of $25, 000, Borrower shall provide to Lender invoices evidencing the costs for which such disbursements were used, and (ii) any category of the FF&E Expenditures less than S25,000, if requested by Lender, Borrower shall provide to Lender invoices evidencing the costs far which such disbursements were used. Upon the occurrence and during the continuation of an Event of Default, in no event shall Lender be obligated to disburse funds from the FF&E Reserve Account and may apply the funds in the FF&E Reserve Account to the payment of any amounts, in such order as the Lender may elect, as shall have become due and payable by the Borrower to the Lender under the Loan Documents."

(iii) Section 16.3(c) is hereby deleted in its entirety and the following is hereby inserted as 16.3(c)

"Any amounts remaining in the FF&E Reserve Account after the Indebtedness has been indefeasibly paid in full shall be returned to Borrower."

(iv) The following is hereby inserted as Section 16.3(d).

"In the event Borrower fails to provide the status report or the invoices as contemplated by Section 16.3(b), Borrower shall not be authorized to use the funds in the FF&E Reserve Account without the Lender 's prior written consent, in Lender 's sole discretion."

(e) Event of Default.


(i)

Section 18.1(a)(i) of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

"(a) Each of the following events shall constitute an event of default hereunder (an "Event of Default"):

(i) if (A) the Indebtedness is not paid in full on the Maturity Date, (B) any regularly scheduled monthly payment of interest due under the Note is not paid in full on the applicable Payment Date, (C) any prepayment of principal due under this Agreement or the Note is not paid when due, (D) intentionally omitted, (E) any deposit to the Collection Account (including Borrower's obligations under Section 16) is not made on the required deposit date therefore, or any amounts required to paid under Section 5.1.28 are not paid when due; or (F) except as to any amount included in (A), (B), (C), (D), and/or (E) of this clause (i), any other amount payable pursuant to this Agreement, the Note or any other Loan Document is not paid in full when due and payable in accordance with the provisions of the applicable Loan Document, with such failure continuing for ten (10) Business Days after Lender delivers written notice thereof to Borrower; provided that it shall not be an Event of Default i f a monthly installment of interest or other required amount is not paid when due if sufficient funds are on deposit in the applicable Collateral Account, the Debt Service Account or the Excess Cash Flow Payment Account, as may be, for the payment of such amount on the applicable Payment Date in question and Account Trustee or Service, as applicable, at the direction of Lender, is required to apply such funds pursuant to the terms of this Agreement or the other Loan Documents to pay same but fails to pay same and provided Borrower has not attempted to delay, prevent, enjoin or otherwise disrupt or interfere with the payment of such sums, "

3. Document References. All references to (i) the "Loan Agreement" in each Loan Document shall be deemed to be a reference to the Loan Agreement as amended by the First Omnibus Amendment, the Second Omnibus Amendment, and this Third Omnibus Amendment, and (ii) any of the Loan Documents referenced in any other Loan Document shall be deemed to be a reference to such Loan Document as amended by the terms of this Third Omnibus Amendment,

4. Conditions to Closing. This Third Omnibus Amendment shall only be effective if the following conditions are satisfied by Borrower, provided however, execution and delivery of this Third Omnibus Amendment and other Loan Documents entered in connection herewith shall be deemed Lender's acceptance that all such conditions have been satisfied:

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(a) Lender or its counsel shall have received, on or prior to the Third Omnibus Amendment Closing Date (or such other date as specified below), in form and substance satisfactory to Lender, the following:

(i)

Five Million Dollars ($5,000,000) to be used to pay-down the outstanding Principal Amount immediately prior to effectiveness of this Third Omnibus Amendment;

(ii) executed originals of this Third Omnibus Amendment, and the following documents:

(1) Replacement Consolidated Note by and between Borrower and Lender, dated the date hereof; and

(2) Amendment to Account and Control Agreement by and among Lender, Borrower and Servicer, dated as of the date hereof.

(iii) written opinions of counsel from Borrower's Panamanian counsel addressed to Lender with respect to the corporate matters (valid existence, good standing, authority to enter into the Loan Documents in connection with the Third Omnibus Amendment;

(iv) satisfactory evidence that the insurance policies required maintained by Borrower under the Loan Documents are in effect and premiums for such policies have been fully paid;

(v) a Replacement Interest Rate Cap Agreement with a Counterparty Opinion or proof of extension of the existing Interest Rate Cap Agreement which Replacement Interest Rate Cap Agreement(s) (or the extended Interest Rate Cap Agreement or Replacement Rate Cap Agreement, as the case may be) shall be effective for the period commencing on August 9, 2012 and ending on the last day of the Interest Period in which the Amended Maturity Date occurs; and

(vi) such other and further approvals, opinions, documents and information as Lender or its counsel may have reasonably requested.

(b) Borrower shall have paid all reasonable, out-of-pocket costs and expenses of Lender (including all transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid, recording fees, registration fees, and Lender's reasonable attorneys' fees) incurred in connection with the negotiation and delivery of this Third Omnibus Amendment and any other Loan Documents related thereto.


5. Borrower Representations. Borrower represents and warrants as of the Third Omnibus Amendment Closing Date that:

(a) except as set forth in that certain Borrower's Certificate dated as the date hereof attached hereto as Exhibit I, the representations and warranties of Borrower contained in the Loan Agreement and the other Loan Documents are true and correct on and as of the Third Omnibus Amendment Closing Date, with the same effect as if made on and as of the Third Omnibus Amendment Closing Date;

(b) no Event of Default has occurred and is continuing, and to Borrower's knowledge, no Default has occurred or exists and no condition or circumstance exists which with the passage of time or the giving of notice, or both, would constitute an Event of Default on the Third Omnibus Amendment Closing Date after giving effect to this Third Omnibus Amendment, and

(c) after giving effect to this Third Omnibus Amendment, Borrower is in compliance in all material respects with all terms and conditions set forth in the Loan Agreement and in each other Loan Document on its part to be observed or performed.

6. Reaffirmation of Guaranties and Additional Agreements. In connection with and in consideration of this Third Omnibus Amendment, each Guarantor hereby:

(a) consents to and acknowledges this Third Omnibus Amendment and acknowledges and agrees that neither this Third Omnibus Amendment nor any documents entered into in connection with this Third Omnibus Amendment shall impair, reduce, modify or adversely affect the nature of the obligations of Guarantor under the Recourse Guaranty or the Environmental Indemnity;

(b) ratifies, reaffirms, assumes, adopts, and agrees to be bound by the Loan Documents applicable to it and the Recourse Guaranty or the Environmental Indemnity;

(c) acknowledges and agrees that its ratifications and reaffii mations set forth in this Third Omnibus Amendment are not required by the Loan Documents and that Lender's request in this Third Omnibus Amendment or in any other Loan Document that each Guarantor ratify and reaffirm the Recourse Guaranty or the Environmental Indemnity and the obligations owed thereunder shall not be deemed in anyway to create such a requirement or any duty or obligation or otherwise require Lender to obtain any ratifications, reaffirmations, consents or waivers; and

(d) acknowledges that this reaffirmation of the Recourse Guaranty or the Environmental Indemnity is for the benefit of Lender.

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7. Full Force and Effect Ratification. Except as amended by this Third Omnibus Amendment, the Loan Agreement and each of the other Loan Documents shall continue to remain in full force and effect. The Loan Agreement and each of the other Loan Documents, each as amended by this Third Omnibus Amendment, constitute the valid and binding obligations of Borrower enforceable in accordance with their terms. Furthermore, Borrower hereby confirms and ratifies its respective obligations pursuant to the Loan Documents (as amended hereby). As of the date hereof, each reference to the defined terms which have been modified pursuant to this Third Omnibus Amendment shall be deemed to be a reference to such defined term as so modified.

8. Release of Lender.

(a) Each of Borrower and each Guarantor (the "Releasing Parties") hereby releases, remises, acquits and forever discharges each of Lender and every Servicer (including any subservicer of the Loan), and their respective employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiaries, parents and affiliates (all of the foregoing hereinafter called the "Released Parties"), from any and all actions and causes of action, judgments, executions, suits, debts, claims, demands, liabilities, obligations, damages and expenses of any and every character, including legal fees, known or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter arising, for or because of any matter or things done, omitted or suffered to be done by any of the Released Parties prior to and including the date of this Amendment that, in any way directly or indirectly, arise out of or in any way are connected to or related to this Amendment, the transactions contemplated by this Third Omnibus Amendment, the Loan or the Loan Documents, including but not limited to, claims relating to any settlement negotiations, but only to the extent asserted by the Releasing Parties or Persons claiming by, through or under the Releasing Parties (all of the foregoing hereinafter called the "Released Matters"). Each of the Released Parties acknowledges that the agreements in this Section 7 are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Released Matters. Each of the Releasing Parties hereby represents and warrants to Lender that it has not purported to transfer, assign or otherwise convey any of its right, title or interest in any Released Matter to any other Person and that the foregoing constitutes a full and complete release of all Released Matters.

9. Further Assurances. Except as otherwise prohibited by Panamanian law, Borrower shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to Lender all documents, and take all actions, reasonably required by Lender from time to time to carry out the purposes of this Third Omnibus Amendment.


10. Headings. Each of the captions contained in this Third Omnibus Amendment are for the convenience of reference only and shall not define or limit the provisions hereof.

11. Governing Law. THIS THIRD OMNIBUS AMENDMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS THIRD OMNIBUS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA.

12. Counterparts. This Third Omnibus Amendment may be executed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one binding agreement.

13. Severability. The provisions of this Third Omnibus Amendment are severable, and if any one clause or provision hereof shall be held invalid or unenforceable in whole or in part, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, and not any other clause or provision of this Third Omnibus Amendment.


ERMAN, an individual

IN WITNESS WHEREOF, the parties hereto have entered into this Third Omnibus Amendment on the date first written above.

BORROWER:

VENETO HOTEL & CASINO, S.A., a corporation organized under the laws of the Republic of Panama

By: Name: Title: AlernnIPT

GUARANTOR:

ANDREW SILVERMAN, an individual

Veneto Hotel and Casino—Third Omnibus Amendment Signature Pages

IN WITNESS WHEREOF, the parties hereto have entered into this Third Omnibus Amendment on the date first written above.

BORROWER:

VENETO HOTEL & CASINO, S.A., a corporation organized under the laws of the Republic of Panama

By: Name: Title:

GUARANTOR:

ANDREW SILVERMAN, an individual

ALEXANDER SILVERMAN, an individual

ALLEN SILVERNIAN, an individual

Veneto Hotel and Casino—Third Omnibus Amendment Signature Pages

By: Name: Title:

-i ,

James F. DV l ‘naging Difector

LENDER:

GERMAN AMERICAN CAPITAL CORPORATION

By: Name: 0i a Vasile Title: Director

Veneto Hotel and Casino Third Omnibus Amendment Signature Pages

NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/14/2015

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Transcript of NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 08/14/2015