Common use of Designation of Restricted and Unrestricted Subsidiaries Clause in Contracts

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Defaultin accordance with the definition of “Unrestricted Subsidiary”; provided that, immediately after giving effect to such designation, the Borrower would be in pro forma compliance with the financial covenant set forth in Section 7.11, whether or not such covenant is applicable, no Default or Event of Default shall have occurred and (iii) either (1) the Borrower could incur $1.00 of additional Indebtedness pursuant to Section 7.03(a) or (2) (A) the Fixed Charge Coverage Ratio for the Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio immediately prior to such designation or (B) the Consolidated Leverage Ratio for the Borrower and its Restricted Subsidiaries would be equal to or less than such ratio immediately prior to such designation In addition, (a) any Unrestricted Subsidiary must be a Person of which shares of the Equity Interests (including partnership interests) entitled to cast at least a majority of the votes that in no event shall Project Assets may be cast by all Equity Interests having ordinary voting power for the election of directors or other governing body are owned, directly or indirectly, by the Borrower, (b) such designation will be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made at the time of the designation and (c) each of (I) the Subsidiary to be so designated and (II) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender with respect to such Indebtedness has recourse to any of the Properties be transferred to assets of the Borrower or held by an Unrestricted any Restricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all All outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made as of at the time of the designation and designation. The amount of all such outstanding Investments will reduce be the amount available for Restricted Payments under Section 4.07 or under one or more clauses aggregate fair market value of such Investments at the time of the definition of Permitted Investments, as determined by ACEPdesignation. That The designation will only not be permitted if the such Investment would not be permitted under Section 7.06 at that time and if the such Restricted Subsidiary does not otherwise meets meet the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Borrower as an Unrestricted Subsidiary will shall be evidenced to the Trustee Administrative Agent by filing with delivering to the Trustee Administrative Agent a certified copy of a the board resolution of the Board of Directors Borrower giving effect to such designation and a certificate signed by an Officers' Certificate Officer of the Borrower certifying that such designation complied with the preceding foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” and was permitted by this Section 4.07 hereof6.15. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements as of an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary will and (3) any Investments of such Subsidiary, in each case shall be deemed to be incurred by a Restricted Subsidiary of ACEP the Borrower as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Defaultdate. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will shall be deemed to be an incurrence incurrence, on the date of Indebtedness designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness Indebtedness, Liens and Investments of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if as of such date, (1) such Indebtedness is Indebtedness, Liens and Investments are permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would shall have occurred and be continuing. The Specified Subsidiaries are designated as Unrestricted Subsidiaries under this Agreement as of the Closing Date, and any direct or indirect now or hereafter created or acquired Subsidiary of any of the foregoing. The foregoing sentence does not prohibit or limit in existence following any respect the ability of the Borrower to designate any of the foregoing Persons as Restricted Subsidiaries and thereafter re-designate any or all of such designationPersons as Unrestricted Subsidiaries, in each case, subject to the terms and conditions of this Section 6.17.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company in its discretion and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation, and as a result of such designation. Notwithstanding the foregoing, the Company may at any time and from time to time designate any Designated Entity, by written notice to the Trustee, as an Unrestricted Subsidiary, and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Company (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an Officers’ Certificate) (each, a “Specified Unrestricted Subsidiary Designation”). The aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in such Designated Entities so designated as Unrestricted Subsidiaries will, as calculated and to the extent permitted by clause (18) of the definition of Permitted Investments, be deemed to be an Investment made as of the time of such Specified Unrestricted Subsidiary Designation under such clause (18), and not reduce the amount available for Restricted Payments under Section 4.07 hereof.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company if that redesignation would not cause a Default; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-four full fiscal quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Except after a Covenant Termination Event, the Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary (other than TCI) is designated as an Unrestricted SubsidiarySubsidiary after the Issue Date, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary so designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. As of the Merger Date, TCI is designated as an Unrestricted Subsidiary. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary (other than TCI) will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the designation and will either reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to no longer meet the preceding requirements for designation as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (11)(a) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period or (b) the Company’s Fixed Charge Coverage Ratio is equal to or greater immediately following such designation than the Company’s Fixed Charge Coverage Ratio immediately preceding such designation, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein (including pursuant to clause 5(b) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Company, including any Subsidiary is previously designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its as a Restricted Subsidiaries in the Subsidiary; PROVIDED, that a Restricted Subsidiary which has been designated as an Unrestricted Subsidiary will may not be deemed to be an Investment made designated as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the a Restricted Subsidiary otherwise meets before the definition of date which is one year after the date such Restricted Subsidiary most recently became an Unrestricted Subsidiary. The PROVIDED that the Consolidated Net Worth of the Company and the Restricted Subsidiaries at the time of such designation is not less than $400,000,000 and shall not be reduced below $400,000,000 by such designation, the Board of Directors of ACEP the Company may redesignate designate any Unrestricted Subsidiary to be of the Company, including any Subsidiary previously designated as a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Subsidiary, as an Unrestricted Subsidiary if (a) the Subsidiary to be so designated does not own any Capital Stock or indebtedness of, or own or hold any Lien on any Property of, the Company or any Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated by any indebtedness or Lien that, if in default, would result (with the passage of time or notice or otherwise) in a default on any indebtedness of the Company or any Restricted Subsidiary, and (c) immediately after and after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. Unless so designated as an Unrestricted Subsidiary, any Subsidiary of the Company will be evidenced to the Trustee classified as a Restricted Subsidiary. Upon any such designation by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company, the Company shall promptly deliver to the Agent a copy of the resolution of such Board giving effect to such designation and an Officers' Officer's Certificate certifying that demonstrating (with applicable computations in reasonable detail) compliance by the Company and the Restricted Subsidiaries with the provisions of SECTIONS 9.6 AND 9.7 and this SECTION 9.17 after giving effect to such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. Ifstating that, at any timeimmediately after and after giving effect to such designation, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture there existed and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) exists no Default or Event of Default would be in existence following such designationDefault.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any All of the Properties Corporation’s existing Wholly-Owned Subsidiaries shall be transferred to or held by an Unrestricted Subsidiary. If a “Restricted Subsidiaries” and any future Wholly-Owned Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the Corporation shall become a “Restricted Subsidiary” as at such time that it becomes a Wholly-Owned Subsidiary of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryCorporation. The Board of Directors of ACEP may redesignate the Corporation shall not be permitted to designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a existing or future Wholly-Owned Subsidiary of ACEP the Corporation as an “Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of Subsidiary”. However, the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with of the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to Corporation shall be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time (1) designate any Unrestricted Subsidiary to be or any Subsidiary that is not a Wholly-Owned Subsidiary as a “Restricted Subsidiary of ACEP; Subsidiary”, provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any in an amount equal to the outstanding Indebtedness of such Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation will shall only be permitted if (1a) such Indebtedness is permitted under Section 4.095.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2b) no Default or Event of Default would be in existence following such designation, or (2) subject to the first paragraph of Section 5.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an “Unrestricted Subsidiary” if, as at the time of such designation, (a) such designation would not cause a Default, and (b) after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and (ii) the sum, without duplication, of the total assets of the Corporation’s Unrestricted Subsidiaries, would not be greater than 10% of the total assets of the Corporation and its Subsidiaries, on a consolidated basis, all as shown on the most recent internal income statement and balance sheet of the Corporation; provided, however, that upon such designation the aggregate Fair Market Value of all outstanding Investments owned by the Corporation and its Restricted Subsidiaries in such Restricted Subsidiary shall be deemed to be an Investment made as of the time of the designation and shall reduce the amount available for Restricted Payments under Section 5.6 or under one or more clauses of the definition of “Permitted Investments”, as determined by the Corporation, and provided further that such designation shall only be permitted if the Investment would be permitted at that time and if such Restricted Subsidiary that is not a Wholly-Owned Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustees by filing with the Trustees a certified copy of a resolution of the Board of Directors of the Corporation giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted under Section 5.6. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.7, the Corporation shall be in default of such Section 5.7. Mediative G.P. Inc. and Mediative Performance L.P. shall be treated as “Unrestricted Subsidiaries” from and after the date of this Indenture. In the event Mediative G.P. Inc. and Mediative Performance L.P. become Wholly-Owned Subsidiaries of the Corporation, Mediative G.P. Inc. and Mediative Performance L.P. will, at such time, become Restricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. The Company’s Board of Directors of ACEP may designate any Restricted of its Subsidiaries, including any newly formed Subsidiary or any Person that will become a Subsidiary by way of acquisition, to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of . If any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Company’s Restricted Subsidiary Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary newly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the that designation and will reduce the amount available for Restricted Payments under Section 4.07 4.10(a) or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Company. That The designation of such a Subsidiary or Person as an “Unrestricted Subsidiary” will only be permitted if only if, in the case of a Restricted Subsidiary, the deemed Investment would be permitted at that the time and if the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in any case, if that Subsidiary or Person otherwise meets satisfies the requirements set forth in the definition of an “Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. .” Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 4.10 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a one of the Company’s Restricted Subsidiary of ACEP Subsidiaries of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that such designation would not cause a Default; provided that an Event of Default described in no event shall Project Assets clauses (1), (2), (7) or (8) of any of the Properties be transferred to or held by an Unrestricted SubsidiarySection 6.01(a). If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 3.03 hereof or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Issuer. That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that such redesignation would not cause a an Event of Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with delivering to the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted not prohibited by Section 4.07 3.03 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is or Liens are not permitted to be incurred as of such date under by Section 4.09 3.02 or Section 3.06 hereof, ACEP the Issuer will be in Defaultdefault of such covenant. The Board of Directors of ACEP Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of ACEP of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.02 hereof (including pursuant to Section 3.02(b)(5) treating such redesignation as an acquisition for the purpose of such clause) and Section 3.06 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default described in clauses (1), (2), (7) or (8) of Section 6.01(a) would be in existence following such designation. Any such designation by the Issuer shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP MagnaChip may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by MagnaChip Semiconductor Ltd. be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP MagnaChip and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPMagnaChip. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP MagnaChip may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP MagnaChip as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP MagnaChip as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP MagnaChip will be in Defaultdefault of such Section. The Board of Directors of ACEP MagnaChip may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPMagnaChip; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP MagnaChip of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence and be continuing following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be either (1) an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under Section 4.07 4.07(a) hereof or (2) a Permitted Investment under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; period and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Holdings may designate any Restricted Subsidiary (other than the Company) to be an Unrestricted Subsidiary if that designation no Default or Event of Default would not cause be in existence as a Default; provided that in no event shall Project Assets result of any of the Properties be transferred to or held by an Unrestricted Subsidiarysuch designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Holdings and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for be treated as a Restricted Payments Payment under Section 4.07 3.3 hereof or a Permitted Investment under one or more clauses of the definition of Permitted Investments, as determined by ACEPHoldings. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Holdings may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation no Default or Event of Default would not cause be in existence as a Defaultresult of such redesignation. Any designation of a Subsidiary of ACEP Holdings as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of Holdings giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 3.3 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Holdings as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 3.2 hereof, ACEP Holdings will be in Defaultdefault of such covenant. The Board of Directors of ACEP Holdings may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPHoldings; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Issuer may designate any Restricted Subsidiary of the Issuer to be an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Issuer is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under one or more clauses of Section 4.07 4.06 hereof or under one or more clauses of the definition of “Permitted Investments”, as determined by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary of the Issuer otherwise meets the definition of an “Unrestricted Subsidiary”. The Board of Directors of ACEP the Issuer may redesignate any Unrestricted Subsidiary of the Issuer to be a Restricted Subsidiary if that redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 4.06 hereof. If, at any time, any Unrestricted Subsidiary of the Issuer would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 4.08 hereof, ACEP the Issuer will be in Defaultdefault of such Section 4.08. The Trustee shall have no obligation to monitor the status of any such Subsidiary or whether a Default or Event of Default exists at such time as a Subsidiary shall cease to be Unrestricted Subsidary. The Board of Directors of ACEP the Issuer may at any time designate any Unrestricted Subsidiary of the Issuer to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if if: (1) such Indebtedness is permitted under Section 4.094.08 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company in its discretion and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation, and as a result of such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted not prohibited by Section 4.07 hereof3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company in its discretion and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following following, and as a result of, such designation. Notwithstanding the foregoing, the Company may at any time and from time to time designate any Designated Entity, by written notice to the Trustee, as an Unrestricted Subsidiary, and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Company (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an Officers’ Certificate) (each, a “Specified Unrestricted Subsidiary Designation”). The aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in such Designated Entities so designated as Unrestricted Subsidiaries will, as calculated and to the extent permitted by clause (20) of the definition of Permitted Investments, be deemed to be an Investment made as of the time of such Specified Unrestricted Subsidiary Designation under such clause (20), and not reduce the amount available for Restricted Payments under Section 4.07 hereof.

Designation of Restricted and Unrestricted Subsidiaries. The Company's Board of Directors of ACEP may designate any Restricted of its Subsidiaries, including any newly formed Subsidiary or any Person that will become a Subsidiary by way of acquisition, to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of . If any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Company's Restricted Subsidiary Subsidiaries is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary newly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the that designation and will either reduce the amount available for Restricted Payments under Section 4.07 4.10(a) or 4.10(b) or reduce the amount available for future Investments under one or more clauses of the definition of "Permitted Investments, ," as determined by ACEPthe Company determines in its sole discretion. That The designation of such a Subsidiary or Person as an "Unrestricted Subsidiary" will only be permitted if if, in the case of a Restricted Subsidiary, the deemed Investment would be permitted at that the time and if the Restricted Subsidiary is designated as an Unrestricted Subsidiary and, in any case, if that Subsidiary or Person otherwise meets satisfies the requirements set forth in the definition of an "Unrestricted Subsidiary. ." The Company's Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation designation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 ‎Section 4.07(a) hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section ‎Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section ‎Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09‎Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by the Issuer be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company, Xxxxxxx Corp. or a Subsidiary of Xxxxxxx Corp. as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrower) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that Default or Event of Default and the other requirements for such designation prescribed in no event shall Project Assets the definition of any of the Properties be transferred to or held by an “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 4.07 8.01 or under one or more clauses of the definition of represent Permitted Investments, as determined by ACEPHoldings. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of ACEP; Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.098.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; , and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Company or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to or held by an Unrestricted SubsidiaryCompany. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value of all outstanding Investments owned by ACEP Company will be classified as a Restricted Subsidiary; PROVIDED, HOWEVER, that such Subsidiary shall not be designated a Restricted Subsidiary and its Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made as if either of the time requirements set forth in clauses (x) and (y) of the designation and immediately following paragraph will reduce not be satisfied after giving pro forma effect to such classification. Except as provided in the amount available for Restricted Payments under Section 4.07 or under one or more clauses first sentence of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to clause (a) of the first paragraph of Section 4.03 and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Supplemental Indenture, any Investments made in such Subsidiary will be deemed to be an Investment made in a Restricted Subsidiary of the Company as of such date (and increase the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company), and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Issuer will be in Defaultdefault of such covenant. The Board of Directors of ACEP Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Issuer shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company and (ii) any Guarantee by the Company or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Supplemental Indenture, any Investments made in such Subsidiary will be deemed to be an Investment made in a Restricted Subsidiary of the Company as of such date (and increase the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company), and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by the Hungarian Subsidiary be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1i) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2ii) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the designation and will either reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to no longer meet the preceding requirements for designation as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board Chief Executive Officer or the Chief Financial Officer of Directors of ACEP the Borrower may designate any Restricted Subsidiary of the Borrower to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by the Borrower be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 9.2(C) or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Borrower. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Restricted Subsidiary of ACEP the Borrower as an Unrestricted Subsidiary in accordance with the preceding paragraph will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution certificate of the Board Chief Executive Officer or the Chief Financial Officer of Directors the Borrower giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereofthe covenant described above under the caption “- Restricted Payments”. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Loan Agreement and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Borrower as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP 9.2(D) the Borrower will be in Defaultdefault of such covenant. The Board Chief Executive Officer or the Chief Financial Officer of Directors of ACEP the Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1a) such Indebtedness is permitted under Section 4.099.2(D), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2b) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP (a) Subject to Section 10.13(b), the Company may designate any Subsidiary to be a Restricted Subsidiary and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if by giving written notice to each holder of Notes that designation would not cause a Default; provided that in no event shall Project Assets the Board of any Directors of the Properties Company has made such designation, provided, however, that no Subsidiary may be transferred to or held by an Unrestricted Subsidiary. If designated a Restricted Subsidiary is and no Restricted Subsidiary may be designated as an Unrestricted Subsidiary unless, at the time of such action and after giving effect thereto, (1) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its such Restricted Subsidiaries in the Subsidiary being designated as an Unrestricted Subsidiary will be deemed to be an shall not have any continuing Investment made as of in the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 Company or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the any other Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would shall have occurred and be continuing (provided that, with respect to Sections 10.1 and 10.2, calculation of compliance therewith shall be made as of the date of determination under this Section 10.13 and not as of the end of the immediately preceding fiscal quarter of the Company). Any Restricted Subsidiary which has been designated an Unrestricted Subsidiary and which has then been redesignated a Restricted Subsidiary, in existence each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.13, shall not at any time thereafter be redesignated a Restricted Subsidiary without the prior written consent of the Required Holders. If the Company enters into any credit facility or note purchase agreement after the date hereof and New Jersey Natural Gas shall be designated as a “restricted subsidiary” under, then the Company shall, within 10 Business Days of its entering into such credit facility or note purchase agreement, designate New Jersey Natural Gas as a Restricted Subsidiary under this Agreement. If the Company enters into any credit facility or note purchase agreement after the date of Closing and New Jersey Natural Gas shall be subjected to any negative covenants of the type included in this Section 10 of such credit facility or note purchase agreement, then and in any such event the Company shall give written notice thereof to each holder not later than 30 days following the date of execution of any such designationagreement. Effective on the date of execution of any such agreement, such additional covenant that is included in such agreement and any related definitions shall be deemed to have been incorporated herein. The Company further covenants to promptly execute and deliver at its expense (including, without limitation, the fees and expenses of counsel for the holders) an amendment to this Agreement in form and substance satisfactory to the Required Holders evidencing the amendment of this Agreement to include such additional covenant.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Inmarsat Group Limited may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of the business currently operated by any of the Properties Issuer, Inmarsat Investments Limited, Inmarsat Ventures Limited, Inmarsat Ltd (UK), Inmarsat Leasing (Two) Ltd and Inmarsat Launch Company Limited be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Inmarsat Group Limited and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPInmarsat Group Limited. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Inmarsat Group Limited may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Inmarsat Group Limited as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee on the effective date of such designation a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Inmarsat Group Limited as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP Inmarsat Group Limited will be in Defaultdefault of such covenant. The Board of Directors of ACEP Inmarsat Group Limited may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Inmarsat Group Limited of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; period and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of ACEP the Borrower may designate any Restricted Subsidiary of the Borrower to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Borrower is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 4.07 7.01 or under one or more clauses of the definition of represent Permitted Investments, as determined by ACEPthe Borrower. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary and such Subsidiary. The Board : (i) except to the extent permitted by subclause (b)(ii) of Directors the definition of ACEP may redesignate “Permitted Business Investments,” has no Indebtedness other than Non-Recourse Debt owing to any Unrestricted Subsidiary Person other than the Borrower or any of its Restricted Subsidiaries; (ii) is not party to be a any agreement, contract, arrangement or understanding with the Borrower or any Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary the Borrower unless the terms of ACEP as an Unrestricted Subsidiary will be evidenced any such agreement, contract, arrangement or understanding are no less favorable to the Trustee by filing with Borrower or such Restricted Subsidiary than those that might be obtained at the Trustee a certified copy of a resolution time from Persons who are not Affiliates of the Board Borrower; (iii) is a Person with respect to which neither the Borrower nor any of Directors giving effect its Restricted Subsidiaries has any direct or indirect obligation (1) to subscribe for additional Equity Interests or (2) to maintain or preserve such designation Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and an Officers' Certificate certifying that such designation complied with (iv) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the preceding conditions and was permitted by Section 4.07 hereofBorrower or any of its Restricted Subsidiaries. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Agreement and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Borrower as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof7.03, ACEP the Borrower will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness default of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.covenant..

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board Borrower may designate, by a certificate executed by a Responsible Officer of Directors of ACEP may designate the Borrower, any Restricted Subsidiary (other than any Subsidiary constituting or owning Core Collateral) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that the Borrower is in no event shall Project Assets of any of compliance with the Properties be transferred to or held by an Unrestricted SubsidiaryRestricted Payment Conditions at the time of, and after giving effect to, such designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the provisions of Section 4.07 6.06 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Borrower; provided, however, that to the extent an Excluded Subsidiary is designated as an Unrestricted Subsidiary, the amount of the Investment deemed to have been made in respect of such Unrestricted Subsidiary will be calculated without duplication of the amount of the Investment made as a result of such Excluded Subsidiary’s initial designation as such plus any subsequent Investments made in such Excluded Subsidiary prior to such subsequent designation. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board A Responsible Officer of Directors of ACEP the Borrower may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationDefault.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of there be any of Unrestricted Subsidiaries on or immediately following the Properties be transferred to or held by an Unrestricted SubsidiaryClosing Date. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary so designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the such designation and will either reduce the amount available for Restricted Payments under Section 4.07 6.07(a) or reduce the amount available for future Investments under one or more clauses of the definition of “Permitted Investments, as determined by ACEP. .” That designation will shall only be permitted if the such Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.096.06, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company are listed on Schedule IV (Existing Subsidiaries) hereto. The Board of Directors of ACEP Company may at any time after the Issue Date (a) designate any Restricted Subsidiary that is not the Company, a Guarantor, a Securitization Entity or a “Loan Party” under the Senior Credit Agreement to be an Unrestricted Subsidiary if that and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that, in the case of a designation would not cause of a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by Restricted Subsidiary as an Unrestricted Subsidiary, (i) such entity is designated by the Board of Directors, (ii) such entity and its Subsidiaries do not hold any Indebtedness that is recourse to the Company or any Restricted Subsidiary, (iii) such entity and its Subsidiaries do not own any Capital Stock, are not an obligor under any Indebtedness of, and do not own or hold any Lien on any property of, the Company or any other Subsidiary of the Company and (iv) no Default or Event of Default has occurred and is continuing or would be caused after giving effect to such designation. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the such Restricted Subsidiary designated as an Unrestricted Subsidiary and its Subsidiaries will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 7.12 or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted under the Indenture at that time of such designation and if the such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof7.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is and Liens are not permitted to be incurred as of such date under Section 4.09 hereof7.13 and Section 7.15, ACEP respectively, the Company will be in Defaultdefault of such covenants. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that, in the case of a re-designation of an Unrestricted Subsidiary of ACEP; provided that as a Restricted Subsidiary, (i) such re-designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of ACEP of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such re-designation will only be permitted if (1) such Indebtedness is permitted under Section 4.097.13 and Section 7.15, calculated on a pro forma basis as if such re-designation had occurred at the beginning of the four-quarter reference period; period referred to in such Section and (2ii) no Default or Event of Default has occurred and is continuing or would be in existence following caused thereby after giving effect to such re-designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof3.3, other than Section 3.3(b)(16). If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred Incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred Incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Issuer will be in Defaultdefault of Section 3.2. The Board of Directors of ACEP the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following before or after such designation. Any such designation by the Board of Directors of the Issuer shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary if that (i) the Subsidiary to be so designated does not own any Capital Stock or Indebtedness of, or own or hold any Lien on any property of, the Company or any other Restricted Subsidiary, (ii) the Subsidiary to be so designated is not obligated under any Indebtedness or other obligation that, if in default, would result (with the passage of time or the giving of notice or otherwise) in a default on any Indebtedness of the Company or any Restricted Subsidiary and (iii) either (a) the Subsidiary to be so designated has total assets of $1,000 or less or (b) if such Subsidiary has assets greater than $1,000, such designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If permitted under Section 4.04 as a Restricted Subsidiary is Payment. Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned by ACEP and its any Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made classified as of the time of the designation and will reduce the amount available for a Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Notwithstanding the foregoing sentence, the Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Defaultif, immediately after giving pro forma effect to such designation, (i) the Company could incur $1.00 of additional Indebtedness pursuant to clause (i) of the definition of Permitted Indebtedness and (ii) no Default shall have occurred and be continuing. Any such designation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary will Directors shall be evidenced to the Trustee by promptly filing with the Trustee a certified copy of a resolution of the Board of Directors Certified Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Borrower may designate (or re-designate) any Restricted Subsidiary to be as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if that designation would not cause a an Event of Default; provided provided, however, that in no event shall Project Assets of any Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Properties be transferred to or held by an Unrestricted SubsidiaryABL Credit Agreement. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries then, other than in the Subsidiary designated as an Unrestricted Subsidiary case of New PortLP and New PortGP, such designation will be deemed to be an Investment by the Borrower therein made as of the time of the designation in an amount equal to the portion of the Fair Market Value of the net assets of such Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith, and will reduce the amount available for Restricted Payments under Section 4.07 9.3 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Borrower, in an amount equal to such deemed Investment. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Borrower; provided that such designation will be deemed to be an incurrence of Liens and Indebtedness by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Liens and Indebtedness is are permitted under Section 4.09Sections 9.1 and 9.4, in each case, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; period and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Notwithstanding anything to the contrary herein, on the Closing Date, New PortLP and New PortGP shall be the only Subsidiaries of the Borrower that shall be Unrestricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company are Restricted Subsidiaries and all of the Immaterial Subsidiaries of the Company are listed on Schedule IV hereto. The Board of Directors of ACEP Company may at any time after the Issue Date (a) designate any Restricted Subsidiary to be an Unrestricted Subsidiary if and (b) redesignate any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that designation would not cause a Default; provided that in immediately before and after any such designation, no event Default or Event of Default shall Project Assets of any of the Properties have occurred and be transferred to or held by an Unrestricted Subsidiarycontinuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 4.12 or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.14, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; the Company, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.14, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference periodperiod referred to in such Section; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of ACEP Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP Holdings and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 7.06 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Borrower. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Notwithstanding the foregoing, no Subsidiary may redesignate any be designated an Unrestricted Subsidiary to be a Restricted if such Subsidiary if that redesignation would not cause a Defaultowns any Material Intellectual Property. (b) Any designation of a Subsidiary of ACEP the Borrower as an Unrestricted Subsidiary will be evidenced to the Trustee Administrative Agent by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof7.06. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. (c) The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.097.03 (including pursuant to Section 7.03(b)(v) treating such redesignation as an acquisition for the purpose of such clause (v)), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Section 6.14

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by Greektown Casino, L.L.C. be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Company may at any time designate any Restricted Subsidiary (as used herein, a “Proposed Re-Designated Subsidiary”) that is not a Borrower or a Material Subsidiary and has not previously been an Unrestricted Subsidiary to as an Unrestricted Subsidiary; in each case, so long as (i) immediately before and after such designation, no Default shall have occurred and be continuing, (ii) no such Proposed Re-Designated Subsidiary may be designated as an Unrestricted Subsidiary if any of its Subsidiaries is a Restricted Subsidiary of ACEP; provided that (in either case unless such Subsidiaries are also Proposed Re-Designated Subsidiaries being designated as Unrestricted Subsidiaries simultaneously therewith), (iii) immediately after giving effect to such designation will the Company and its Restricted Subsidiaries shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09in compliance, calculated on a pro forma basis Pro Forma Basis pursuant to Section 1.09, with the covenants set forth in Section 7.11, (iv) such Proposed Re-Designated Subsidiary would not constitute a Material Subsidiary as of the end of the period of twelve consecutive months most recently ended, and (v) prior to the effectiveness of any such designation, the Company shall deliver to the Administrative Agent a certificate in form and substance reasonably acceptable to the Administrative Agent setting forth in reasonable detail the calculations demonstrating compliance with the preceding clauses (iii) through (vi). Notwithstanding anything in this Agreement or any other Loan Document to the contrary, in no event shall (i) any Subsidiary be designated as an Unrestricted Subsidiary if it, or if any of its Subsidiaries, owns or holds (including by way of an exclusive license or otherwise) any intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business, (ii) (A) any Unrestricted Subsidiary, or any of its Subsidiaries, own or hold (including by way of an exclusive license or otherwise) or (B) the Company or any Restricted Subsidiary transfer (including by way of an exclusive license or otherwise) to any Unrestricted Subsidiary, or any of its Subsidiaries, any material intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business or (iii) the aggregate book value of all assets transferred (including by way of an exclusive license or otherwise) (after giving effect to such designation had occurred transfer) by the Company and its Restricted Subsidiaries from and after the Effective Date to all Unrestricted Subsidiaries and their respective Subsidiaries equal or exceed an amount equal to 5.0% of Consolidated Total Assets at the beginning time of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationtransfer.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Wxxx Capital may designate any Restricted Subsidiary Subsidiary, other than Wynn Capital, to be an Unrestricted Subsidiary of Wxxx Las Vegas if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of Wxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Wxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPWxxx Las Vegas. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary of Wxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Wynn Capital may redesignate any Unrestricted Subsidiary of Wxxx Las Vegas to be a Restricted Subsidiary of Wxxx Las Vegas if that the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of ACEP Wxxx Las Vegas as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will shall be deemed to be incurred by a Restricted Subsidiary of ACEP Wxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will Wxxx Las Vegas shall be in Defaultdefault of such covenant. The Board of Directors of ACEP Wynn Capital may at any time designate redesignate any Unrestricted Subsidiary of Wxxx Las Vegas to be a Restricted Subsidiary of ACEPWxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Wxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference periodReference Period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that such designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Issuer. That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that such redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP the Issuer will be in Defaultdefault under Section 4.09. The Board of Directors of ACEP Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period; , and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board board of Directors of ACEP directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP Sunburst and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses the first paragraph of the definition of covenant described above under the caption "--Restricted Payments" or Permitted Investments, as determined by ACEPSunburst. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board board of Directors of ACEP directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that the redesignation would not cause a Default. Any designation Limitation on Issuances and Sales of a Subsidiary Equity Interests in Wholly Owned Restricted Subsidiaries Sunburst will not, and will not permit any of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy its Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, Equity Interests in any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Wholly Owned Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted Sunburst to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be Person (other than Sunburst or a Wholly Owned Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted SubsidiarySunburst), and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.unless:

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Xxxx Capital may designate any Restricted Subsidiary Subsidiary, other than Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPXxxx Las Vegas. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary of Xxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Xxxx Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if that the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of ACEP Xxxx Las Vegas as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will shall be deemed to be incurred by a Restricted Subsidiary of ACEP Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will Xxxx Las Vegas shall be in Defaultdefault of such covenant. The Board of Directors of ACEP Xxxx Capital may at any time designate redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of ACEPXxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference periodReference Period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. At the time the Notes are originally issued, all of the Subsidiaries of the Company will be Restricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under the first paragraph of Section 4.07 or under one or more clauses of the definition of represent Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if that redesignation (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and Section 4.12 and (2) no Default or Event of Default would not cause a Defaultbe in existence following such designation. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP the Company will be in Defaultdefault of such covenant. The Board foregoing not withstanding, following the termination of Directors certain covenants pursuant to Section 4.19, the Company may not designate or redesignate any of ACEP may at any time designate any Unrestricted Subsidiary its Subsidiaries pursuant to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under this Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation4.18.

Designation of Restricted and Unrestricted Subsidiaries. Upon the completion of the Oxford Acquisition and the Initial Oxford Dropdown pursuant to the Acquisition Agreement and the Contribution Agreement, respectively, on the terms described in the Offering Memorandum in all material respects Oxford GP and its Subsidiaries, including the Oxford MLP, will be automatically and without any further action by our Board of Directors designated as Unrestricted Subsidiaries under this Indenture. The Board of Directors of ACEP the Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Issuer. That The designation of a Restricted Subsidiary as an Unrestricted Subsidiary will only be permitted if the Investment would be permitted under the terms of this Indenture at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions of this Section 4.17 and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as of this Section 4.17 to be an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Issuer will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) (x) the Issuer could incur such Indebtedness is permitted under pursuant to Section 4.094.09(a) hereof, calculated or (y) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis as if taking into account such designation had occurred at the beginning of the four-quarter reference perioddesignation; and (2) no Default or Event of Default would immediately be in existence following as a consequence of such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors Supervisors of ACEP Suburban Propane may designate any of its Restricted Subsidiary Subsidiaries, other than the Operating Partnership or Finance Corp., to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Supervisors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Suburban Propane as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereofconditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Suburban Propane as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP Suburban Propane will be in Defaultdefault of such covenant. The Board of Directors Supervisors of ACEP Suburban Propane may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Suburban Propane of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under by Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Parent may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPdesignation. That designation will only be permitted if the Investment would be permitted at that time under Section 4.07 hereof and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Parent giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Defaultconditions. The Board of Directors of ACEP the Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted only if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; period and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted not prohibited by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default3.3 herein. The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Company shall be evidenced to the Trustee by an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company (or the Parent from the Guarantee Effective Date) may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein but excluding the Company) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Parent, the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 4.07(a) hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company or the Parent. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company (or the Parent from the Guarantee Effective Date) may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Parent or the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company or the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company or the Parent will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company (or the Parent from the Guarantee Effecgive Date) may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company or the Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company or the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, (i) the aggregate Fair Market Value of all outstanding Investments owned by ACEP Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 the covenant described above under the caption “—Restricted payments” or under one or more clauses of the definition of Permitted Investments, as determined by ACEPIssuer in its discretion, and (ii) any Guarantee by Issuer or any Restricted Subsidiary thereof of any Indebtedness of the Restricted Subsidiary being so designated will be deemed to be an incurrence of Indebtedness by Issuer or such Restricted Subsidiary (or both, if applicable) at the time of such designation. That designation will only be permitted if the Investment and/or incurrence of Indebtedness would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee trustee by filing with the Trustee trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officersofficers' Certificate certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a covenant described above under the caption “—Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. payments.” The Board of Directors of ACEP Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPIssuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, the covenant described under the caption “—Incurrence of indebtedness and issuance of preferred stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following following, and as a result of, such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Parent may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein but excluding the Company) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 4.07(a) hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Parent. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Parent will be in Defaultdefault of such covenant. The Board of Directors of ACEP Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Parent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Defaultin accordance with the definition of “Unrestricted Subsidiary”; provided that (i) immediately before and after giving effect to such designation, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.11 (whether or not such covenant is applicable at such time in accordance with its terms), and (iii) no event shall Project Assets of any of the Properties Subsidiary may be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” as defined in any of the Senior Notes; provided that (x) solely with respect to the Designated Subsidiaries the foregoing clause (iii) shall not apply for a period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” as defined in any of the Senior Notes and ending on the date that is 30 days thereafter, and (y) the aggregate Fair Market Value Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to make a written list of all Designated Subsidiaries available to Lenders on the “Private Side Information” portion of the Platform. 125 All outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made as of at the time of the designation and designation. The amount of all such outstanding Investments will reduce be the amount available for Restricted Payments under Section 4.07 or under one or more clauses aggregate fair market value of such Investments at the time of the definition of Permitted Investments, as determined by ACEPdesignation. That The designation will only not be permitted if the such Investment would not be permitted under Section 7.02 at that time and if the such Restricted Subsidiary does not otherwise meets meet the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Borrower as an Unrestricted Subsidiary will shall be evidenced to the Trustee Administrative Agent by filing with delivering to the Trustee Administrative Agent a certified copy of a the board resolution of the Board of Directors Borrower giving effect to such designation and an Officers' Certificate a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the preceding foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” and was permitted by this Section 4.07 hereof6.17, provided, however, (i) no Subsidiary may be designated as an Unrestricted Subsidiary if such designated Unrestricted Subsidiary will own any IP Rights and the failure of the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall be permitted to contribute any IP Rights to an Unrestricted Subsidiary if (x) the failure by the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect or (y) after giving effect to such contribution the Borrower would not be in pro forma compliance with the covenant set forth in Section 7.11 whether or not such covenant is applicable at such time in accordance with its terms. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements as of an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary will and (3) any Investments of such Subsidiary, in each case shall be deemed to be incurred by a Restricted Subsidiary of ACEP the Borrower as of such date and, if such Liens, Investments, or Indebtedness is are not permitted to be incurred as of such date under Section 4.09 hereof7.01, ACEP will Section 7.02 or Section 7.03, as applicable, the Borrower shall be in Defaultdefault of such Section 7.01, Section 7.02 or Section 7.03, as applicable. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will shall be deemed to be an incurrence incurrence, on the date of Indebtedness designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness Indebtedness, Liens and Investments of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Liens are permitted under Section 7.01, such Investments are permitted under Section 7.02, and such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period7.03; and (2) no Default or Event of Default would shall have occurred and be continuing; and provided further, however, if any such Subsidiaries are Designated Subsidiaries, then the foregoing proviso shall not apply to any such Designated Subsidiaries and, notwithstanding anything contained herein or in existence the other Loan Documents to the contrary, such Designated Subsidiaries shall not be subject to the terms and provisions of this Agreement (including, without limitation, Section 6.11 and Section 6.15) and the other Loan Documents during the period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” hereunder and ending on the date that is 30 days thereafter, and on such thirtieth day any such Designated Subsidiary that is a Restricted Subsidiary at such time shall be deemed, for purposes of Sections 7.01, 7.02 and 7.03, to have incurred all Liens, Investments, and Indebtedness of such Designated Subsidiary then outstanding. 126 The following entities have previously been designated as Unrestricted Subsidiaries under this Agreement and remain Unrestricted Subsidiaries as of the Closing Date: 8tx Xxxxxx Xood & Provisions, Inc., a Missouri corporation, Active Nutrition International GmbH, a German entity, Agricore United Holdings Inc., a Delaware corporation, American Blanching Company, a Georgia corporation, Attune Foods, LLC, a Delaware limited liability company, BellRing Brands, Inc., a Delaware corporation, BellRing Brands, LLC, a Delaware limited liability company, Dakota Growers Pasta Company, Inc., a North Dakota corporation, DNA Dreamfields Company, LLC, an Ohio limited liability company, Dymatize Enterprises, LLC, a Delaware limited liability company, GB Acquisition USA, Inc., a Washington corporation, Golden Acquisition Sub, LLC, a Delaware limited liability company, Golden Boy Nut Corporation, a Delaware corporation, Golden Nut Company (USA) Inc., a Washington corporation, Nuts Distributor of America Inc., a Washington corporation, Premier Nutrition Company, LLC, a Delaware limited liability company, Primo Piatto, Inc., a Minnesota corporation, Golden Boy Foods Ltd., a British Columbia corporation, PHI Acquisition GP ULC, a British Columbia unlimited liability company, PHI Acquisition LP ULC, a British Columbia unlimited liability company, PHI Acquisition Limited Partnership, a British Columbia limited partnership, Supreme Protein, LLC, a Delaware limited liability company, TA/DEI-A Acquisition Corp., a Delaware corporation, and any direct or indirect now or hereafter created or acquired Subsidiary of any of the foregoing. The foregoing sentence does not prohibit or limit in any respect the ability of the Borrower to designate any of the foregoing Persons as Restricted Subsidiaries and thereafter re-designate any or all of such designationPersons as Unrestricted Subsidiaries, in each case, subject to the terms and conditions of this Section 6.17.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Subsidiary of the Company or any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Company or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to Company or held by an Unrestricted any Restricted Subsidiary. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned by ACEP any Restricted Subsidiary will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary shall not be designated a Restricted Subsidiary and its Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made as if (A) such Subsidiary is a Subsidiary of a Restricted Subsidiary (other than a Wholly Owned Subsidiary) or (B) either of the time requirements set forth in clauses (x) and (y) of the designation and immediately following paragraph will reduce not be satisfied after giving pro forma effect to such classification. Except as provided in the amount available for Restricted Payments under Section 4.07 or under one or more clauses first sentence of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.03(a)(i) and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal 60 52 quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to either be an Investment made as a “Restricted Payment” as of the time of the designation and that will reduce the amount available for Restricted Payments under Section 4.07 4.07(a) or represent a Permitted Investment under one or more clauses of the definition of “Permitted Investments, ,” as determined in good faith by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an “Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. .” Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. The Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness and Liens by a Restricted Subsidiary of the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, with the Fixed Charge Coverage Ratio calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable reference period; (2) such Indebtedness is permitted under Section 4.12; and (3) no Default or Event of Default would be in existence following such designation. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness and Liens of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is or Liens are not permitted to be incurred as of such date under Section Sections 4.09 hereofand/or 4.12, ACEP the Issuer will be in Default. The Board default of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted SubsidiarySection 4.09 and/or Section 4.12, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationapplicable.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Borrower may designate (or re-designate) any Restricted Subsidiary to be as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if that designation would not cause a an Event of Default; provided provided, however, that in no event shall Project Assets of any Subsidiary may be designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” for the purpose of the Properties be transferred to or held by an Unrestricted SubsidiaryABL Credit Agreement. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries then, other than in the Subsidiary designated as an Unrestricted Subsidiary case of New PortLP and New PortGP, such designation will be deemed to be an Investment by the Borrower therein made as of the time of the designation in an amount equal to the portion of the Fair Market Value of the net assets of such Subsidiary attributable to the Borrower’s equity interest therein as estimated by the Borrower in good faith, and will reduce the amount available for Restricted Payments under Section 4.07 9.03 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Borrower, in an amount equal to such deemed Investment. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Borrower; provided that such designation will be deemed to be an incurrence of Liens and Indebtedness by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Liens and Indebtedness is are permitted under Section 4.09Sections 9.01 and 9.04, in each case, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; period and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Borrower shall be evidenced to the Administrative Agent by an Officer’s Certificate certifying that such designation complies with the preceding conditions. Notwithstanding anything to the contrary herein, on the Closing Date, New PortLP and New PortGP shall be the only Subsidiaries of the Borrower that shall be Unrestricted Subsidiaries.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Inmarsat Holdings Limited may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of the business currently operated by any of the Properties Issuer, Inmarsat Group Limited, Inmarsat Investments Limited, Inmarsat Ventures Limited, Inmarsat Ltd (UK), Inmarsat Leasing (Two) Ltd and Inmarsat Launch Company Limited be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Inmarsat Holdings Limited and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPInmarsat Holdings Limited. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Inmarsat Holdings Limited may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Inmarsat Holdings Limited as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee on the effective date of such designation a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Inmarsat Holdings Limited as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP Inmarsat Holdings Limited will be in Defaultdefault of such covenant. The Board of Directors of ACEP Inmarsat Holdings Limited may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Inmarsat Holdings Limited of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; period and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Issue Date, all of the Subsidiaries of the Company will be Restricted Subsidiaries. The Board of Directors of ACEP may will be able, at any time after the Issue Date, to designate any Restricted Subsidiary to be an Unrestricted Subsidiary if Subsidiary; provided, that designation would not cause a Default; provided that in immediately before and after such designation, no event Default or Event of Default shall Project Assets of any of the Properties have occurred and be transferred to or held by an Unrestricted Subsidiarycontinuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments permitted under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP4.12. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. .” Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors or a committee thereof giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.12. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.10, ACEP the Company will be in DefaultDefault of Section 4.10. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.10, calculated on a pro forma basis as if such designation had occurred at the beginning of the relevant four-quarter reference period; (2) such Lien is permitted; and (23) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of there be any of Unrestricted Subsidiaries on or immediately following the Properties be transferred to or held by an Unrestricted SubsidiaryClosing Date. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary so designated as an Unrestricted (after giving effect to any sale of Equity Interests of such Subsidiary in connection with such designation) will be deemed to be an Investment made as of the time of the such designation and will either reduce the amount available for Restricted Payments under Section 4.07 6.07(a) or reduce the amount available for future Investments under one or more clauses of the definition of "Permitted Investments, as determined by ACEP. ." That designation will shall only be permitted if the such Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.096.06, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The As long as no Default (other than a Reporting Default) or Event of Default has occurred and is continuing, the Board of Directors of ACEP the Company may designate any newly-formed Subsidiary of the Company or any Subsidiary of the Company acquired after the date of the indenture pursuant to an Acquisition permitted under the provisions governing Restricted Subsidiary Payments and Permitted Investments to be an Unrestricted Subsidiary if if, in either case, that designation would not cause a Default; provided that in no event . Any such designation shall Project Assets of any be made on or promptly after the date such Subsidiary becomes a Subsidiary of the Properties be transferred to Company (and, in any case, within 30 days of the formation or held by an Unrestricted Subsidiaryacquisition thereof). If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be either an Investment made as of the time of the designation and that will reduce the amount available for Restricted Payments under Section 4.07 the first paragraph of the covenant described above under the caption “Restricted Payments” or represent (and will reduce the amount available for) Permitted Investments under one or more clauses clause (10) of the definition of Permitted Investments, thereof as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; Subsidiary, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, the covenant described above under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; , and (2) no Default or Event of Default would be in existence following such designation. Additional Subsidiary Guarantees If, after the date of the indenture, any Restricted Subsidiary of the Company that is not already a Guarantor or an Issuer guarantees (or is a co-borrower, co-issuer or co-direct obligor of) any other Indebtedness of any Issuer or Guarantor, then in either case that Subsidiary will become a Guarantor by executing a supplemental indenture and delivering it to the trustee within 10 Business Days of the date on which it guaranteed or incurred such Indebtedness, as the case may be; provided, however, that the preceding shall not apply to Subsidiaries of the Company that have properly been designated as Unrestricted Subsidiaries in accordance with the indenture for so long as they continue to constitute Unrestricted Subsidiaries. In the event (a) the Priority Lien Debt is paid-off or otherwise discharged or the guaranty-related provisions thereunder are otherwise made materially less restrictive on the Issuers and Guarantors than the Priority Lien Documents as in effect on the date of the indenture, the indenture shall provide for customary guaranty-related provisions substantially consistent with those in effect under the Priority Lien Debt on the date of the indenture or (b) the Priority Lien Collateral Agent or holders of the Priority Lien Debt fail to require, fail to take any action to obtain or otherwise waive the right to receive a guaranty from a Restricted Subsidiary to the extent such guaranty would be required (or could be required upon reasonable request or otherwise) under the Priority Lien Documentation as in effect on the Issue Date, the collateral trustee, at the request of the Majority Holders, or the Majority Holders, will have the right to require the Issuers and Guarantors to take reasonable actions to cause such Restricted Subsidiary to execute a supplemental indenture (if any) within 60 days of the date of such request (or such later date as the Majority Holders may reasonably determine).

Designation of Restricted and Unrestricted Subsidiaries. The Company’s Board of Directors of ACEP may designate any Restricted Subsidiary (other than BHA) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets . Any designation of any of the Properties be transferred to or held by a Subsidiary as an Unrestricted SubsidiarySubsidiary will be deemed to be a designation of each of such entity’s Subsidiaries as Unrestricted Subsidiaries. If Following the Issue Date, if a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 4.8 hereof or under one or more of the clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Company’s Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that the redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation redesignation will be deemed to be an incurrence of Indebtedness and, if applicable, an incurrence of related Liens by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness and, if applicable, related Liens of such Unrestricted Subsidiary, Subsidiary and such designation redesignation will only be permitted if (1) such Indebtedness is and, if applicable, related Liens are permitted under Section 4.094.9 hereof and, calculated if applicable, Section 4.11 hereof (other than clause (3) under the definition of “Permitted Liens”), calculated, if applicable, on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Xxxx Capital may designate any Restricted Subsidiary Subsidiary, other than Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPXxxx Las Vegas. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary of Xxxx Las Vegas otherwise meets the definition of an "Unrestricted Subsidiary. ." The Board of Directors of ACEP Wynn Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if that the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of ACEP Xxxx Las Vegas as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will shall be deemed to be incurred by a Restricted Subsidiary of ACEP Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will Xxxx Las Vegas shall be in Defaultdefault of such covenant. The Board of Directors of ACEP Wynn Capital may at any time designate redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of ACEPXxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Company or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to or held by an Unrestricted SubsidiaryCompany. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value of all outstanding Investments owned by ACEP Company will be classified as a Restricted Subsidiary; PROVIDED, HOWEVER, that such Subsidiary shall not be designated a Restricted Subsidiary and its Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made as if either of the time requirements set forth in clauses (x) and (y) of the designation and immediately following paragraph will reduce not be satisfied after giving pro forma effect to such classification. Except as 40 provided in the amount available for Restricted Payments under Section 4.07 or under one or more clauses first sentence of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.03(a)(i) and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of ACEP may designate any Restricted Subsidiary (other than the Significant Guarantors) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPdesignation. That designation will only be permitted only if the Investment would be permitted at that time under Section 4.6 and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. .” (b) Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Defaultconditions. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted only if (1) such Indebtedness is permitted under Section 4.094.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.. (c) As of the Closing Date, each of Sunseeker Resorts, Inc., Sunseeker Florida, Inc., Point Charlotte Development, LLC and Point Charlotte, LLC will be an Unrestricted Subsidiary. Section 4.11. Transactions with Affiliates (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any 66

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Defaultin accordance with the definition of “Unrestricted Subsidiary”; provided that (i) immediately before and after giving effect to such designation, no Event of Default shall have occurred and be continuing, (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.11 (whether or not such covenant is applicable at such time in accordance with its terms), and (iii) no event shall Project Assets of any of the Properties Subsidiary may be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary if it is a “Restricted Subsidiary” as defined in any of the Senior Notes; provided that (x) solely with respect to the Designated Subsidiaries the foregoing clause (iii) shall not apply for a period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” as defined in any of the Senior Notes and ending on the date that is 30 days thereafter, and (y) the aggregate Fair Market Value Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to make a written list of all Designated Subsidiaries available to Lenders on the “Private Side Information” portion of the Platform. 134 All outstanding Investments owned by ACEP the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be treated as an Investment by the Borrower or such Restricted Subsidiary, as applicable, made as of at the time of the designation and designation. The amount of all such outstanding Investments will reduce be the amount available for Restricted Payments under Section 4.07 or under one or more clauses aggregate fair market value of such Investments at the time of the definition of Permitted Investments, as determined by ACEPdesignation. That The designation will only not be permitted if the such Investment would not be permitted under Section 7.02 at that time and if the such Restricted Subsidiary does not otherwise meets meet the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Borrower as an Unrestricted Subsidiary will shall be evidenced to the Trustee Administrative Agent by filing with delivering to the Trustee Administrative Agent a certified copy of a the board resolution of the Board of Directors Borrower giving effect to such designation and an Officers' Certificate a certificate signed by a Responsible Officer of the Borrower certifying that such designation complied with the preceding foregoing conditions and the conditions set forth in the definition of “Unrestricted Subsidiary” and was permitted by this Section 4.07 hereof6.17, provided, however, (i) no Subsidiary may be designated as an Unrestricted Subsidiary if such designated Unrestricted Subsidiary will own any IP Rights and the failure of the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect and (ii) neither the Borrower nor any of its Restricted Subsidiaries shall be permitted to contribute any IP Rights to an Unrestricted Subsidiary if (x) the failure by the Borrower or any of its Restricted Subsidiaries to own such IP Rights could reasonably be expected to have a Material Adverse Effect or (y) after giving effect to such contribution the Borrower would not be in pro forma compliance with the covenant set forth in Section 7.11 whether or not such covenant is applicable at such time in accordance with its terms. If, at any time, any Unrestricted Subsidiary would fail to meet any of the preceding requirements as of an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Agreement and (1) any Indebtedness of such Subsidiary, (2) any Liens of such Subsidiary will and (3) any Investments of such Subsidiary, in each case shall be deemed to be incurred by a Restricted Subsidiary of ACEP the Borrower as of such date and, if such Liens, Investments, or Indebtedness is are not permitted to be incurred as of such date under Section 4.09 hereof7.01, ACEP will Section 7.02 or Section 7.03, as applicable, the Borrower shall be in Defaultdefault of such Section 7.01, Section 7.02 or Section 7.03, as applicable. 135 The Board of Directors of ACEP Borrower may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will shall be deemed to be an incurrence incurrence, on the date of Indebtedness designation, of Indebtedness, Liens and Investments by a Restricted Subsidiary of ACEP the Borrower of any outstanding Indebtedness Indebtedness, Liens and Investments of such Unrestricted Subsidiary, Subsidiary and such designation will shall only be permitted if (1) such Liens are permitted under Section 7.01, such Investments are permitted under Section 7.02, and such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period7.03; and (2) no Default or Event of Default would shall have occurred and be continuing; and provided further, however, if any such Subsidiaries are Designated Subsidiaries, then the foregoing proviso shall not apply to any such Designated Subsidiaries and, notwithstanding anything contained herein or in existence the other Loan Documents to the contrary, such Designated Subsidiaries shall not be subject to the terms and provisions of this Agreement (including, without limitation, Section 6.11 and Section 6.15) and the other Loan Documents during the period commencing on the date the Designated Subsidiaries are designated as “Restricted Subsidiaries” hereunder and ending on the date that is 30 days thereafter, and on such thirtieth day any such Designated Subsidiary that is a Restricted Subsidiary at such time shall be deemed, for purposes of Sections 7.01, 7.02 and 7.03, to have incurred all Liens, Investments, and Indebtedness of such Designated Subsidiary then outstanding. The following entities have previously been designated as Unrestricted Subsidiaries under this Agreement and remain Unrestricted Subsidiaries as of the Closing Date: 0xx Xxxxxx Food & Provisions, Inc., a Missouri corporation, Active Nutrition International GmbH, a German entity, Agricore United Holdings Inc., a Delaware corporation, American Blanching Company, a Georgia corporation, Attune Foods, LLC, a Delaware limited liability company, BellRing Brands, Inc., a Delaware corporation, BellRing Brands, LLC, a Delaware limited liability company, Dakota Growers Pasta Company, Inc., a North Dakota corporation, DNA Dreamfields Company, LLC, an Ohio limited liability company, Dymatize Enterprises, LLC, a Delaware limited liability company, GB Acquisition USA, Inc., a Washington corporation, Golden Acquisition Sub, LLC, a Delaware limited liability company, Golden Boy Nut Corporation, a Delaware corporation, Golden Nut Company (USA) Inc., a Washington corporation, Nuts Distributor of America Inc., a Washington corporation, Premier Nutrition Company, LLC, a Delaware limited liability company, Primo Piatto, Inc., a Minnesota corporation, Golden Boy Foods Ltd., a British Columbia corporation, PHI Acquisition GP ULC, a British Columbia unlimited liability company, PHI Acquisition LP ULC, a British Columbia unlimited liability company, PHI Acquisition Limited Partnership, a British Columbia limited partnership, Supreme Protein, LLC, a Delaware limited liability company, TA/DEI-A Acquisition Corp., a Delaware corporation, and any direct or indirect now or hereafter created or acquired Subsidiary of any of the foregoing. The foregoing sentence does not prohibit or limit in any respect the ability of the Borrower to designate any of the foregoing Persons as Restricted Subsidiaries and thereafter re-designate any or all of such designationPersons as Unrestricted Subsidiaries, in each case, subject to the terms and conditions of this Section 6.17.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Issuer may designate any Restricted Subsidiary of the Issuer to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Issuer is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount Cumulative Buildup Basket or amounts available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, Investments or one or more clauses of Section 4.07(b) as determined by ACEPthe Issuer. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a DefaultDefault and either: (1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, or (3) the Indebtedness to Tangible Net Worth Ratio for the Issuer and its Restricted Subsidiaries would be less than or equal to such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such redesignation. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Issuer giving effect to such designation and an Officers' Certificate officer’s certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation4.07.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors Supervisors of ACEP Suburban Propane may designate any of its Restricted Subsidiary Subsidiaries, other than the Operating Partnership or Finance Corp., to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors Supervisors of ACEP Suburban Propane may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Suburban Propane as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereofconditions. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Suburban Propane as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 9.10 hereof, ACEP Suburban Propane will be in Defaultdefault of Section 9.10. The Board of Directors Supervisors of ACEP Suburban Propane may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided provided, that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Suburban Propane of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.099.10 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Company or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to Company or held by an Unrestricted any Restricted Subsidiary. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, provided that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by ACEP and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made Subsidiary. Except as provided in the first sentence of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.05(a) and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. CMC and its Subsidiaries shall automatically become Unrestricted Subsidiaries, without designation, upon consummation of a CMC IPO. Except in connection with a CMC IPO, CMC, Classmates, and MyPoints shall not be designated as Unrestricted Subsidiaries. Intermediate Co., Merger Sub, FTD and their respective Subsidiaries shall constitute Unrestricted Subsidiaries, without designation, on the date of the indenture. The Board of Directors of ACEP UOL may designate any other Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP UOL and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 the covenant described above under the caption “—Restricted Payments” or under one or more clauses of the definition of Permitted Investments, as determined by ACEPUOL (for the avoidance of doubt, this provision will not apply to CMC or its Subsidiaries upon a CMC IPO, Intermediate Co., Merger Co., FTD or their respective Subsidiaries). That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP UOL may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. UOL and its Restricted Subsidiaries shall cause their Unrestricted Subsidiaries to meet the requirements of the definition of “Unrestricted Subsidiary.” Any designation of a Subsidiary of ACEP UOL as an Unrestricted Subsidiary will be evidenced to the Trustee trustee by filing with the Trustee trustee a certified copy of a resolution of the Board of Directors of UOL giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. the covenant described above under the caption “—Restricted Payments.” If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture the indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP UOL as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the covenant described under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” UOL will be in Defaultdefault of such covenant (for the avoidance of doubt, this provision will not apply to CMC and its Subsidiaries upon a CMC IPO, Intermediate Co., Merger Co., FTD and their respective Subsidiaries). The Board of Directors of ACEP UOL may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPUOL; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP UOL of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, the covenant described under the caption “—Incurrence of Indebtedness and Issuance of Preferred Stock,” calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any of its Restricted Subsidiary Subsidiaries to be an Unrestricted Subsidiary if that designation would not cause a Default; provided Default and if that in no event shall Project Assets designation otherwise is consistent with the definition of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will either reduce the amount available for Restricted Payments under Section 4.07 4.10 or under one or more clauses of the definition of be a Permitted InvestmentsInvestment, as determined by ACEPthe Company; provided that no designation of an Unrestricted Subsidiary may be made in reliance on 4.10(b)(6). That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.10. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as of an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP the Company will be in Defaultdefault of Section 4.09 unless such Unrestricted Subsidiary is made to meet such requirements. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness and Liens of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is and Liens are permitted under Section 4.09Sections 4.09 and 4.11, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a DefaultDefault and either: (1) the Issuers could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test described in Section 4.09(a) or (2) the Fixed Charge Coverage Ratio for the Issuers and the Restricted Subsidiaries would be greater than such ratio for the Issuers and the Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will shall be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP will the Company shall be in DefaultDefault of Section 4.09. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; 4.09 and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Holdings may designate any Restricted Subsidiary of Holdings (other than the Borrowers) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that Default or Event of Default and the other requirements for such designation prescribed in no event shall Project Assets the definition of any of the Properties be transferred to or held by an “Unrestricted Subsidiary” are satisfied. If a Restricted Subsidiary of Holdings is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Holdings and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 4.07 6.01 or under one or more clauses of the definition of represent Permitted Investments, as determined by ACEPHoldings. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary so designated otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Holdings may at any time designate any Unrestricted Subsidiary of Holdings to be a Restricted Subsidiary of ACEP; Holdings, provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Holdings of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.096.03, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; , and (2) no Default (other than a Reporting Default) or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of Directors of ACEP Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP Holdings and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 7.06 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Notwithstanding the foregoing, no Subsidiary designated an Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Defaultshall own any Material Intellectual Property. (b) Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee Administrative Agents by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof7.06. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. (c) The Board of Directors of ACEP Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.097.03 (including pursuant to Section 7.03(b)(v) treating such redesignation as an acquisition for the purpose of such clause (v)), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.. Any 165 #95598837v24

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP Company may at any time designate any Restricted Subsidiary (as used herein, a “Proposed Re-Designated Subsidiary”) that is not a Borrower or a Material Subsidiary and has not previously been an Unrestricted Subsidiary to as an Unrestricted Subsidiary; in each case, so long as (i) immediately before and after such designation, no Default shall have occurred and be continuing, (ii) no such Proposed Re-Designated Subsidiary may be designated as an Unrestricted Subsidiary if any of its Subsidiaries is a Restricted Subsidiary of ACEP; provided that (in either case unless such Subsidiaries are also Proposed Re-Designated Subsidiaries being designated as Unrestricted Subsidiaries simultaneously therewith), (iii) immediately after giving effect to such designation will the Company and its Restricted Subsidiaries shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09in compliance, calculated on a pro forma basis Pro Forma Basis pursuant to Section 1.09, with the covenants set forth in Section 7.11, (iv) such Proposed Re-Designated Subsidiary would not constitute a Material Subsidiary as of the end of the period of twelve consecutive months most recently ended, and (v) prior to the effectiveness of any such designation, the Company shall deliver to the Administrative Agent a certificate in form and substance reasonably acceptable to the Administrative Agent setting forth in reasonable detail the calculations demonstrating compliance with the preceding clauses (iii) through (vi). Notwithstanding anything in this Agreement or any other Loan Document to the contrary, in no event shall (i) any Subsidiary be designated as an Unrestricted Subsidiary if it, or if any of its Subsidiaries, owns or holds (including by way of an exclusive license or otherwise) any intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business, (ii) (A) any Unrestricted Subsidiary, or any of its Subsidiaries, own or hold (including by way of an exclusive license or otherwise) or (B) the Company or any Restricted Subsidiary transfer (including by way of an exclusive license or otherwise) to any Unrestricted Subsidiary, or any of its Subsidiaries, any material intellectual property or any other assets material to any Borrower’s or Restricted Subsidiary’s business or (iii) the aggregate book value of all assets transferred (including by way of an exclusive license or otherwise) (after giving effect to such designation had occurred transfer) by the Company and its Restricted Subsidiaries from and after the Amendment No. 1 Effective Date to all Unrestricted Subsidiaries and their respective Subsidiaries equal or exceed an amount equal to 5.0% of Consolidated Total Assets at the beginning time of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationtransfer.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPdesignation. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary designated as an Unrestricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such provisions in this Indenture. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Parent may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under as described in Section 4.07 3.3 herein or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Parent. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with delivering to the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 hereof3.3 herein. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof3.2 herein, ACEP the Parent will be in Defaultdefault of such covenant. The Board of Directors of ACEP Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Parent; provided that such designation will be deemed to be an incurrence Incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 herein (including pursuant to clause 5(ii) thereof treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Parent shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary, (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Company or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to or held by an Unrestricted SubsidiaryCompany. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value of all outstanding Investments owned by ACEP Company will be classified as a Restricted Subsidiary; provided, however, that such Subsidiary shall not be designated a Restricted Subsidiary and its Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made as if (A) such Subsidiary is a Subsidiary of a Restricted Subsidiary (other than a Wholly Owned Subsidiary) or (B) either of the time requirements set forth in clauses (x) and (y) of the designation and immediately following paragraph will reduce not be satisfied after giving pro forma effect to such classification. Except as provided in the amount available for Restricted Payments under Section 4.07 or under one or more clauses first sentence of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) subject to Section 4.06(c), the Company could Incur at least $1.00 of additional Debt pursuant to clause (i) of Section 4.06(a) and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Parent may designate any Restricted Subsidiary of Parent (other than the Issuers) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of will the Properties business currently operated by MagnaChip Korea be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Parent and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPMagnaChip. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Parent may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP Parent as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of Parent giving effect to such designation and an Officers' Certificate officers’ certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP Parent as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP MagnaChip will be in Defaultdefault of such covenant. The Board of Directors of ACEP Parent may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPParent; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Parent of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the 66 beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuers may designate any Restricted Subsidiary (other than the Co-Issuer) to be an Unrestricted Subsidiary if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under pursuant to Section 4.07 3.3 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Issuer. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP Issuers may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a an Event of Default. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary (other than the Co-Issuer who, for the avoidance of doubt, cannot be an Unrestricted Subsidiary) will be evidenced to the Trustee by filing with delivering to the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied complies with the preceding conditions and was permitted by Section 4.07 3.3 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 3.2 hereof, ACEP the Issuers will be in Defaultdefault of such covenant. The Board of Directors of ACEP Issuers may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.093.2 hereof (including pursuant to Section 3.2(b)(5) treating such redesignation as an acquisition for the purpose of such clause), calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference periodapplicable Reference Period; and (2) no Default or Event of Default would be in existence following such designation. Any such designation by the Issuers shall be evidenced to the Trustee by delivering to the Trustee an Officer’s Certificate certifying that such designation complies with the preceding conditions.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Parent may designate any Restricted Subsidiary (other than a Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) the Group shall be in compliance with the financial covenant set forth in Section 6.07 (whether or not then tested) on a pro forma basis after giving effect to such designation as of the last day of the Fiscal Quarter most recently ended and (iii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is it was previously designated as an Unrestricted Subsidiary, Subsidiary pursuant to this Section 5.19. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment equal to the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Parent and its the Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investmentsdesignation, as determined by ACEPthe Parent. That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary 133 otherwise meets the definition of an Unrestricted Subsidiary. The Board designation of Directors of ACEP may redesignate any Unrestricted Subsidiary to be as a Restricted Subsidiary if that redesignation would not cause a Default. Any shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a Subsidiary return on any Investment by the applicable Loan Party in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of ACEP such designation of such Loan Party’s Investment in such Subsidiary. Notwithstanding the foregoing (i) no Borrower may be designated as an Unrestricted Subsidiary will and (ii) no Person may be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements designated as an “Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, ” if such Indebtedness Person is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such “Unrestricted Subsidiary” or is a “Guarantor” under any Senior Notes, and such designation will only be permitted if (1) such Indebtedness is permitted the Senior Secured Notes, the Senior Refinancing Notes or under Section 4.09any agreement, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default document or Event of Default would be in existence following such designationinstrument evidencing any Material Indebtedness.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties business currently operated by the Canadian Issuer be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted SubsidiarySubsidiary and has assets of more than $1,000, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate of the Company certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will the Company shall be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. As of the Effective Date, all of the Subsidiaries of Holdings will be Restricted Subsidiaries. The Board of Directors of ACEP may will be able, at any time after the Effective Date, to designate any Restricted Subsidiary (other than a Borrower) to be an Unrestricted Subsidiary if Subsidiary; provided, that designation would not cause a Default; provided that in immediately before and after such designation, no event Default or Event of Default shall Project Assets of any of the Properties have occurred and be transferred to or held by an Unrestricted Subsidiarycontinuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Holdings and its the Restricted Subsidiaries in the Restricted Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments permitted under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP7.7. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. .” Any designation of a Subsidiary of ACEP Holdings as an Unrestricted Subsidiary will be evidenced to the Trustee Lenders by filing with the Trustee Lenders a certified copy of a resolution of the Board of Directors or a committee thereof giving effect to such designation and an Officers' Certificate certifying a certified by a Responsible Officer that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof7.7. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Unrestricted Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof7.4, ACEP will Borrowers shall be in Defaultdefault of Section 7.4. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that (i) such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary and the creation, incurrence, assumption or otherwise causing to exist any Lien of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.097.4, calculated on a pro forma basis as if such designation had occurred at the beginning of the relevant four-quarter reference period; (2) such Lien is permitted; and (23) no Default or Event of Default would be in existence following such designation and (ii) no Subsidiary may be designated as an Unrestricted Subsidiary if, after such designation, it would be a “Restricted Subsidiary” under the Second Lien Note Purchase and Exchange Agreement, the Existing Notes, any Permitted Refinancing Indebtedness with respect to the foregoing or any other Junior Indebtedness.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by under Section 4.07 hereofand that the resolution of the Board of Directors of the Company giving effect to such designation is a true, complete and correct copy of the resolutions of the Board of Directors giving effect to such designation and that such resolutions have not been amended, modified, revoked or rescinded and are in full force and effect on the date thereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPSubsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, 4.09 calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period; period and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Parent may designate any Restricted Subsidiary (other than a Borrower) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided, that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (ii) the Group shall be in compliance with the financial covenant set forth in Section 6.07 (whether or not then tested) on a pro forma basis after giving effect to such designation as of the last day of the Fiscal Quarter most recently ended and (iii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is it was previously designated as an Unrestricted Subsidiary, Subsidiary pursuant to this Section 5.19. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary shall constitute an Investment equal to the aggregate Fair Market Value fair market value of all outstanding Investments owned by ACEP the Parent and its the Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investmentsdesignation, as determined by ACEPthe Parent. That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board designation of Directors of ACEP may redesignate any Unrestricted Subsidiary to be as a Restricted Subsidiary if that redesignation would not cause a Default. Any shall constitute (i) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (ii) a Subsidiary return on any Investment by the applicable Loan Party in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of ACEP such designation of such Loan Party’s Investment in such Subsidiary. Notwithstanding the foregoing (i) no Borrower may be designated as an Unrestricted Subsidiary will and (ii) no Person may be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements designated as an “Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, ” if such Indebtedness Person is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such “Unrestricted Subsidiary” or is a “Guarantor” under any Senior Notes, and such designation will only be permitted if (1) such Indebtedness is permitted the Senior Secured Notes, the Senior Refinancing Notes or under any agreement, document or instrument evidencing any Material Indebtedness. Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.5.20

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Issuer may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that such designation would not cause a Default; provided that in Default or Event of Default and (y) no event shall Project Assets Default or Event of any of the Properties be transferred to or held by an Unrestricted SubsidiaryDefault has occurred and is continuing. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Issuer and its Restricted Subsidiaries in the Subsidiary proposed to be designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Issuer. That Such designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Issuer may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that (x) such redesignation would not cause a DefaultDefault or Event of Default and (y) no Default or Event of Default has occurred and is continuing, and subject to the requirements of the following paragraph. Any designation of a Subsidiary of ACEP the Issuer as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture Indenture, and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Issuer as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP the Issuer will be in Defaultdefault under Section 4.09. The Board of Directors of ACEP Issuer may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Issuer; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Issuer of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the applicable four-quarter reference period; , and (2) no Default or Event of Default would be in existence following such designation.. Section 4.18

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Company may designate any Subsidiary to be a Restricted Subsidiary and may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if by giving written notice to each holder of Notes that designation would not cause a Default; provided that in no event shall Project Assets the Board of any Directors of the Properties Company has made such designation, provided, however, that no Subsidiary may be transferred to or held by an Unrestricted Subsidiary. If designated a Restricted Subsidiary is and no Restricted Subsidiary may be designated as an Unrestricted Subsidiary unless, at the time of such action and after giving effect thereto, (a) solely in the case of a Restricted Subsidiary being designated an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its such Restricted Subsidiaries in the Subsidiary being designated as an Unrestricted Subsidiary will be deemed to be an shall not have any continuing Investment made as of in the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 Company or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the any other Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2b) no Default or Event of Default would shall have occurred and be continuing (provided that, after the Release Date, with respect to Section 10.1, calculation of compliance therewith shall be made as of the date of determination under this Section 10.12 and not as of the end of the immediately preceding fiscal quarter of the Company). Any Restricted Subsidiary which has been designated an Unrestricted Subsidiary and which has then been redesignated a Restricted Subsidiary, in existence following such designationeach case in accordance with the provisions of the first sentence of this Section 10.12, shall not at any time thereafter be redesignated an Unrestricted Subsidiary without the prior written consent of the Required Holders. Any Unrestricted Subsidiary which has been designated a Restricted Subsidiary and which has then been redesignated an Unrestricted Subsidiary, in each case in accordance with the provisions of the first sentence of this Section 10.12, shall not at any time thereafter be redesignated a Restricted Subsidiary without the prior written consent of the Required Holders.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Wise Intermediate Holdings may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of Wise Intermediate Holdings) to be an Unrestricted Subsidiary if that designation would not cause a Defaultunless such Subsidiary owns any Equity Interests of, or owns or holds any Lien on any property of, Wise Intermediate Holdings or any Restricted Subsidiary; provided that in no event shall Project Assets (A) any Guarantee by Wise Intermediate Holdings or any Restricted Subsidiary of any Indebtedness of the Properties Subsidiary being so designated shall be transferred to deemed an “incurrence” of such Indebtedness and an “Investment” by Wise Intermediate Holdings or held by an Unrestricted Subsidiary. If a such Restricted Subsidiary is designated as an Unrestricted Subsidiary(or both, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of if applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000, such designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time under Section 4.04 and (C) if applicable, the Restricted Subsidiary otherwise meets incurrence of Indebtedness and the definition Investment referred to in clause (A) of an Unrestricted Subsidiarythis proviso would be permitted under Section 4.03 and Section 4.04. The Board of Directors of ACEP Wise Intermediate Holdings may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that (a) immediately after giving pro forma effect to such designation, (i) Wise Intermediate Holdings would be able to incur at least $1.00 of Indebtedness under the Fixed Charge Coverage Ratio described under Section 4.03(a) and (ii) the Fixed Charge Coverage Ratio would be equal to or greater than immediately prior to such designation; (b) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation and (c) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately after such designation would, if that redesignation would not cause a Defaultincurred at such time, have been permitted to be incurred (and shall be deemed to have been incurred) for all purposes of this Indenture. Any such designation by the Board of a Subsidiary Directors of ACEP as an Unrestricted Subsidiary will Wise Intermediate Holdings shall be evidenced to the Trustee by promptly filing with the Trustee a certified copy of a the resolution of the Board of Directors of Wise Intermediate Holdings giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationforegoing provisions.

Designation of Restricted and Unrestricted Subsidiaries. The Board Company may designate, by a certificate executed by a Responsible Officer of Directors of ACEP may designate the Company, any Restricted Subsidiary other than the Co-Issuer to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board A Responsible Officer of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default or Event of Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with delivering to the Trustee a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Officer’s Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would should fail to meet the preceding requirements as as, respectively, an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for the purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company, as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter applicable reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Company or any other Restricted Subsidiary and (b) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) such designation would not cause is effective immediately upon such entity becoming a Default; provided that in no event shall Project Assets of any Subsidiary of the Properties be transferred to Company or held by an Unrestricted any Restricted Subsidiary. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Company or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, PROVIDED that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by ACEP and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries Subsidiary shall be automatically classified as an Unrestricted Subsidiary. Except as provided in the first sentence of this paragraph, no Restricted Subsidiary designated may be redesignated as an Unrestricted Subsidiary. In addition, neither the Company nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Debt that provides that the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its Stated Maturity upon the occurrence of a default with respect to any Debt, Lien or other obligation of any Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary, but excluding any Limited Recourse Guaranty). Upon designation of a Restricted Subsidiary as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under in compliance with this Section 4.07 or under one or more clauses of the definition of Permitted Investments4.14, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the such Restricted Subsidiary otherwise meets shall, by execution and delivery of a supplemental indenture in form satisfactory to the definition of an Unrestricted Trustee, be released from any Subsidiary Guaranty previously made by such Restricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Company could Incur at least $1.00 of additional Debt pursuant to Section 4.05(a) and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Company in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Company's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary of the Company to be an Unrestricted Subsidiary if that designation would not cause a Default or Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 3 of this Annex or under one or more clauses of the definition of “Permitted Investments, ,” as determined by ACEPthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee Collateral Agent by filing with the Trustee Collateral Agent a certified copy of a resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Certificate officers’ certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes 3 of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in DefaultAnnex. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.092 of this Annex, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would occur and be in existence continuing following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP the Company and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPthe Company. That designation will only be permitted if (a) either (i) the Subsidiary to be so designated has total consolidated assets of $10,000 or less or (ii) if such Subsidiary has consolidated assets greater than $10,000, the Investment would be permitted at that time and if (b) the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP the Company may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP the Company as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. hereof If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under by Section 4.09 hereof, ACEP the Company will be in Defaultdefault of such covenant. The Board of Directors of ACEP the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPthe Company; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under by Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any All of the Properties Corporation's existing Wholly-Owned Subsidiaries shall be transferred to or held by an Unrestricted Subsidiary. If a "Restricted Subsidiaries" and any future Wholly-Owned Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the Corporation shall become a "Restricted Subsidiary" as at such time that it becomes a Wholly-Owned Subsidiary of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryCorporation. The Board of Directors of ACEP may redesignate the Corporation shall not be permitted to designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a existing or future Wholly-Owned Subsidiary of ACEP the Corporation as an "Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of Subsidiary". However, the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with of the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to Corporation shall be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time (1) designate any Unrestricted Subsidiary to be or any Subsidiary that is not a Wholly-Owned Subsidiary as a "Restricted Subsidiary of ACEP; Subsidiary", provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any in an amount equal to the outstanding Indebtedness of such Unrestricted Subsidiary or Subsidiary that is not a Wholly-Owned Subsidiary, as applicable, and such designation will shall only be permitted if (1a) such Indebtedness is permitted under Section 4.095.7, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2b) no Default or Event of Default would be in existence following such designation., or (2) subject to the first paragraph of Section 5.7, designate any Restricted Subsidiary that is not a Wholly-Owned Subsidiary as an "Unrestricted Subsidiary" if, as at the time of such designation, (a) such designation would not cause a Default, and (b) after giving pro forma effect to such designation, (i) the sum, without duplication, of the EBITDA of the Corporation's Unrestricted Subsidiaries, would not be greater than 10% of the EBITDA of the Corporation and its Subsidiaries, on a consolidated basis, and

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP Xxxx Capital may designate any Restricted Subsidiary Subsidiary, other than Xxxx Capital, to be an Unrestricted Subsidiary of Xxxx Las Vegas if that designation would not cause a Default or an Event of Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary of Xxxx Las Vegas is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP Xxxx Las Vegas and its Restricted Subsidiaries in the Subsidiary properly designated as an Unrestricted Subsidiary will shall be deemed to be an Investment made in an Unrestricted Subsidiary as of the time of the designation and will shall reduce the amount available for Restricted Payments under Section 4.07 hereof or under one or more clauses of the definition of Permitted Investments, as determined by ACEPXxxx Las Vegas. That designation will shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary of Xxxx Las Vegas otherwise meets the definition of an “Unrestricted Subsidiary. .” The Board of Directors of ACEP Wynn Capital may redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of Xxxx Las Vegas if that the redesignation would not cause a Default or an Event of Default. Any designation of a Subsidiary of ACEP Xxxx Las Vegas as an Unrestricted Subsidiary will shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will shall be deemed to be incurred by a Restricted Subsidiary of ACEP Xxxx Las Vegas as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will Xxxx Las Vegas shall be in Defaultdefault of such covenant. The Board of Directors of ACEP Xxxx Capital may at any time designate redesignate any Unrestricted Subsidiary of Xxxx Las Vegas to be a Restricted Subsidiary of ACEPXxxx Las Vegas; provided that such designation will shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP Xxxx Las Vegas of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will shall only be permitted if (1) such Indebtedness is permitted under Section 4.094.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP PES may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary or Person that becomes a Subsidiary through merger or consolidation or Investment therein) to be an Unrestricted Subsidiary if that designation would not cause a Default; provided that in no event shall Project Assets of any of the Properties be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by ACEP PES and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investments, as determined by ACEPPES. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of ACEP PES may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation would not cause a Default. Any designation of a Subsidiary of ACEP PES as an Unrestricted Subsidiary will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' ’ Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07 hereof4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of ACEP PES as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof4.09, ACEP PES will be in Defaultdefault of such covenant. The Board of Directors of ACEP PES may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEPPES; provided provided, that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP PES of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, 4.09 calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors of ACEP may designate any Restricted Subsidiary of the Corporation to be an Unrestricted Subsidiary if that designation (a) the Subsidiary to be so designated does not own any Capital Stock or Debt of, or own or hold any Lien on any Property of, the Corporation or any other Restricted Subsidiary (b) the Subsidiary to be so designated is not obligated under any Debt, Lien or other obligation that, if in default, would not cause result (with the passage of time or notice or otherwise) in a Default; provided that in no event shall Project Assets default on any Debt of the Corporation or of any Restricted Subsidiary and (c) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii such designation is effective immediately upon such entity becoming a Subsidiary of the Properties be transferred to Corporation or held by an Unrestricted any Restricted Subsidiary. If a Restricted Subsidiary is Unless so designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary of the aggregate Fair Market Value Corporation or of all outstanding Investments owned any Wholly Owned Subsidiary will be classified as a Restricted Subsidiary, provided that the requirements set forth in clauses (x) and (y) of the immediately following paragraph would be satisfied after giving pro forma effect to such classification. Any Person not permitted by ACEP and its the terms of the immediately preceding sentence to be classified as a Restricted Subsidiaries in the Subsidiary designated shall be automatically classified as an Unrestricted Subsidiary will be deemed to be an Investment made Subsidiary. Except as provided in the first sentence of the time of the designation and will reduce the amount available for Restricted Payments under Section 4.07 or under one or more clauses of the definition of Permitted Investmentsthis paragraph, as determined by ACEP. That designation will only be permitted if the Investment would be permitted at that time and if the no Restricted Subsidiary otherwise meets the definition of may be redesignated as an Unrestricted Subsidiary. The Board of Directors of ACEP may redesignate designate any Unrestricted Subsidiary to be a Restricted Subsidiary if that redesignation if, immediately after giving pro forma effect to such designation, (x) the Corporation could Incur at least $1.00 of additional Debt pursuant to Section 4.05 and (y) no Default or Event of Default shall have occurred and be continuing or would not cause a Defaultresult therefrom. Any such designation or redesignation by the Board of a Subsidiary of ACEP as an Unrestricted Subsidiary Directors will be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors Resolution giving effect to such designation or redesignation and an Officers' Certificate (a) certifying that such designation complied or redesignation complies with the preceding conditions foregoing provisions and was permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet (b) giving the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness effective date of such Subsidiary will be deemed designation or redesignation, such filing with the Trustee to be incurred by occur within 45 days after the end of the fiscal quarter of the Corporation in which such designation or redesignation is made (or, in the case of a Restricted Subsidiary designation or redesignation made during the last fiscal quarter of ACEP as the Corporation's fiscal year, within 90 days after the end of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, ACEP will be in Default. The Board of Directors of ACEP may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary of ACEP; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of ACEP of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designationfiscal year).