LOAN AGREEMENT Dated as of June 25, 2009 among THE PARTIES NAMED AS “BORROWER” HEREIN collectively, as Borrower GOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P. as Initial Lender THE OTHER LENDERS FROM TIME TO TIME PARTIES HERETO WELLS FARGO BANK,...

LOAN AGREEMENT Dated as of June 25, 2009 among THE PARTIES NAMED AS “BORROWER” HEREIN collectively, as Borrower GOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P. as Initial Lender THE OTHER LENDERS FROM TIME TO TIME PARTIES HERETO WELLS FARGO BANK,...

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Table of Contents

Exhibit 10.1

EXECUTION VERSION

LOAN AGREEMENT

Dated as of June 25, 2009

among

THE PARTIES NAMED AS “BORROWER” HEREIN
collectively, as Borrower

XXXXXXX XXXXX COMMERCIAL MORTGAGE CAPITAL, L.P.
as Initial Lender

THE OTHER LENDERS FROM TIME TO TIME PARTIES HERETO

XXXXX FARGO BANK, N.A.,
as Collateral Agent,

and

ARCHON GROUP, L.P.
as Administrative Agent

TABLE OF CONTENTS


	Page
DEFINITIONS		7

ARTICLE I
GENERAL TERMS

Section 1.1. The Loan		42
Section 1.2. The Term		42
Section 1.3. Interest and Principal		42
Section 1.4. Determination of Interest Rate		43
Section 1.5. Interest Rate Cap Agreements		44
Section 1.6. Method and Place of Payment		45
Section 1.7. Regulatory Change		45
Section 1.8. Taxes		46
Section 1.9. Release		47

ARTICLE II
VOLUNTARY PREPAYMENT; ASSUMPTION

Section 2.1. Voluntary Prepayment		48
Section 2.2. Property Releases		50
Section 2.3. Prepayments after Default		52
Section 2.4. Release of Individual Parcels		53
Section 2.5. Release of Second Floor Space		55
Section 2.6. Assumption		57

ARTICLE III
ACCOUNTS

Section 3.1. Cash Management Account		60
Section 3.2. Distributions from Cash Management Account		61
Section 3.3. Loss Proceeds Account		63
Section 3.4. Taxes and Insurance Escrow Account		63
Section 3.5. Surplus Cash Amortization Reserve Account		64
Section 3.6. FF&E Reserve Account		65
Section 3.7. Deferred Maintenance and Environmental Escrow Account		66
Section 3.8. Capital Expenditure Escrow Account		68
Section 3.9. Excess Cash Flow Reserve Account		70
Section 3.10. Account Collateral		71
Section 3.11. Permitted Investments		71
Section 3.12. Bankruptcy		72
Section 3.13. Delivery of Documents		72


	Page
ARTICLE IV
REPRESENTATIONS

Section 4.1. Organization		73
Section 4.2. Authorization		74
Section 4.3. No Conflicts		74
Section 4.4. Consents		74
Section 4.5. Enforceable Obligations		74
Section 4.6. No Default		74
Section 4.7. Payment of Taxes		74
Section 4.8. Compliance with Law		75
Section 4.9. ERISA		75
Section 4.10. Government Regulation		75
Section 4.11. No Bankruptcy Filing		75
Section 4.12. Other Debt		76
Section 4.13. Litigation		76
Section 4.14. Major Leases; Material Agreements		76
Section 4.15. Full and Accurate Disclosure		77
Section 4.16. Financial Condition		77
Section 4.17. Single-Purpose Requirements		77
Section 4.18. Location of Chief Executive Offices		77
Section 4.19. Not Foreign Person		77
Section 4.20. Labor Matters		77
Section 4.21. Title		77
Section 4.22. No Encroachments		78
Section 4.23. Physical Condition		78
Section 4.24. Fraudulent Conveyance		79
Section 4.25. Management		79
Section 4.26. Condemnation		79
Section 4.27. Utilities and Public Access		79
Section 4.28. Environmental Matters		80
Section 4.29. Assessments		80
Section 4.30. No Joint Assessment		81
Section 4.31. Separate Lots		81
Section 4.32. Permits; Certificate of Occupancy		81
Section 4.33. Flood Xxxx		00
Xxxxxxx 4.34. Security Deposits		81
Section 4.35. Intentionally Omitted		81
Section 4.36. Insurance		81
Section 4.38. Trade Name; Other Intellectual Property		82
Section 4.39. Embargoed Person		83
Section 4.40. REAs		83
Section 4.41. Survival		83
Section 4.42. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws		83

ARTICLE V
AFFIRMATIVE COVENANTS

Section 5.1. Existence		84
Section 5.2. Maintenance of Property		84


	Page
Section 5.3. Compliance with Legal Requirements		84
Section 5.4. Impositions and Other Claims		85
Section 5.5. Access to Properties		85
Section 5.6. Cooperate in Legal Proceedings		85
Section 5.7. Leases		86
Section 5.8. Plan Assets, etc.		88
Section 5.9. Further Assurances		88
Section 5.10. Management of Collateral		88
Section 5.11. Certain Notices and Reports		90
Section 5.12. Annual Financial Statements		90
Section 5.13. Quarterly Financial Statements		90
Section 5.14. Monthly Financial Statements		91
Section 5.15. Insurance		92
Section 5.16. Casualty and Condemnation		96
Section 5.17. Annual Budget		99
Section 5.19. General Indemnity		99
Section 5.20. Intentionally Omitted		100
Section 5.21. Intentionally Omitted		101
Section 5.22. REA Covenants		101
Section 5.23. Property Agreement Covenants		102
Section 5.24. Equity Contribution Account		102
Section 5.25. Gaming Approvals		103

ARTICLE VI
NEGATIVE COVENANTS

Section 6.1. Liens on the Properties		103
Section 6.2. Ownership		103
Section 6.3. Transfer		103
Section 6.4. Debt		104
Section 6.5. Dissolution; Merger or Consolidation		105
Section 6.6. Change In Business		105
Section 6.7. Debt Cancellation		105
Section 6.8. Affiliate Transactions		105
Section 6.9. Misapplication of Funds		105
Section 6.10. Place of Business		105
Section 6.11. Modifications and Waivers		105
Section 6.12. ERISA		106
Section 6.13. Alterations and Expansions		106
Section 6.14. Advances and Investments		107
Section 6.15. Single-Purpose Entity		107
Section 6.16. Zoning and Uses		107
Section 6.17. Waste		108
Section 6.18. Intentionally Omitted		108
Section 6.19. Distributions		108
Section 6.20. Financial Covenants		108


	Page
ARTICLE VII
DEFAULTS

Section 7.1. Event of Default		108
Section 7.2. Remedies		113
Section 7.3. No Waiver		114
Section 7.4. Application of Payments after an Event of Default		114

ARTICLE VIII
CONDITIONS PRECEDENT

Section 8.1. Conditions Precedent to Closing		114

ARTICLE IX
MISCELLANEOUS

Section 9.1. Successors		116
Section 9.2. Governing Law		116
Section 9.3. Modification, Waiver in Writing		117
Section 9.4. Notices		118
Section 9.5. Trial By Jury		120
Section 9.6. Headings		120
Section 9.7. Assignment and Participation		120
Section 9.8. Severability		123
Section 9.9. Preferences		123
Section 9.10. [Intentionally Omitted]		123
Section 9.11. Offsets, Counterclaims and Defenses		123
Section 9.12. No Joint Venture		124
Section 9.13. Conflict; Construction of Documents		124
Section 9.14. Brokers and Financial Advisors		124
Section 9.15. Counterparts		124
Section 9.16. Estoppel Certificates		124
Section 9.17. Payment of Expenses; Mortgage Recording Taxes		124
Section 9.18. No Third-Party Beneficiaries		125
Section 9.19. Recourse		126
Section 9.20. Right of Set-Off		127
Section 9.21. Exculpation of Lender		127
Section 9.22. Servicer		128
Section 9.23. Prior Agreements		128
Section 9.24. Purchase of Loan by Sponsor		128
Section 9.25. No Fiduciary Duty		130
Section 9.26. Confidentiality		130
Section 9.27. Patriot Act Records		131

ARTICLE X
AGENTS

Section 10.1. Appointment		131
Section 10.2. Delegation of Duties		133
Section 10.3. Exculpatory Provisions		133


	Page
Section 10.4. Reliance by Agents		133
Section 10.5. Credit Decision		134
Section 10.6. Non-Reliance on Agents		134
Section 10.7. Indemnification		135
Section 10.8. Agents in Their Individual Capacity		136
Section 10.9. Successor Agents		136
Section 10.10. Standard of Care of the Collateral Agent; etc.		137
Section 10.11. Standard of Care of the Administrative Agent; etc.		138
Section 10.10 Electronic Communication		139
Section 10.13 Actions by the Collateral Agent and the Administrative Agent		140
Section 10.14 Payment of Expenses and Indemnity		141
Section 10.15 Marshalling		142

Exhibits


A		Form of Cash Management Agreement
B		Second Floor Space
C		Form of Subordination, Non-Disturbance and Attornment Agreement
D		Form of Subordination of Property Management Agreement
E-1		Form of Cash Flow Analysis (Restricted Parties)
E-2		Form of Cash Flow Analysis
F		Form of Narrative Description (Quarterly)
G		OpCo Pledge and Security Agreement
H		Form of Account Control Agreement
I		Form of Assignment and Assumption Agreement
J		Form of Debt to EBITDA Certificate
K		Holdings LLC Agreement
L		Disbursement Instructions

Schedules


A		Properties
		X-0 Xxxxxxxxxxxx Xxxxx & Xxxxxx
		X-0 Aquarius Casino
		A-3 Arizona Charlie’s Decatur
		A-4 Arizona Charlie’s Boulder

B		Exception Report
C		Liquor Licenses
D		Material Agreements
E-1		Allocated Loan Amounts
E-2		Groupings for Release Parcels
F		[Intentionally Omitted]
G		Organizational Chart
H		Competitor Assignees
I		[Intentionally Omitted]
J		[Intentionally Omitted]
K		Approved Property Managers
L		Gaming Licenses
M		Intellectual Property
N		Approved Cash Management Banks

LOAN AGREEMENT

This Loan Agreement is dated as of June 25, 2009 and is among XXXXXXX XXXXX COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership (“Initial Lender”), each party identified as a “Borrower” on the signature pages hereto (each, together with its permitted successors and assigns, a “Co-Borrower,” and collectively, the “Borrower”), XXXXX FARGO BANK, N.A., a national banking association, as collateral agent for the benefit of Lender (as such collateral agent may be changed from time to time in accordance with the provisions of this Agreement, the “Collateral Agent”), ARCHON GROUP, L.P., a Delaware limited partnership, in its capacity as administrative agent for the benefit of Lender (as such administrative agent may be changed from time to time in accordance with the provisions of this Agreement, the “Administrative Agent”), and the other lenders comprising “Lender” from time to time party hereto.

RECITALS

Borrower desires to obtain from Initial Lender the Loan (as hereinafter defined) in connection with the financing of the Properties (as hereinafter defined).

Initial Lender is willing to make the Loan on the terms and conditions set forth in this Agreement if Borrower joins in the execution and delivery of this Agreement, issues the Note and executes and delivers the other Loan Documents.

Lender has appointed Collateral Agent and Administrative Agent to perform certain duties for and on behalf of Lender under this Agreement and the other Loan Documents to which Administrative Agent and/or Collateral Agent are a party, respectively, and Collateral Agent and Administrative Agent have agreed to perform such duties under the terms and conditions set forth in this Agreement and such other Loan Documents;

Lender, Collateral Agent, Administrative Agent and Borrower therefore agree as follows:

DEFINITIONS

(a) When used in this Agreement, the following capitalized terms have the following meanings:

“Acceptable Counterparty” means any counterparty to an Interest Rate Cap Agreement that has and maintains (a) either (i) a long-term unsecured debt rating or counterparty rating of A+ or higher from S&P, or (ii) a short-term unsecured debt rating of A-1 or higher from S&P, and (b) a long-term unsecured debt rating of Aa3 or higher from Xxxxx’x.

“Accepted Administrative Agent Practices” means the servicing and administration of the Loan in accordance with the terms and provisions of this Agreement and the other Loan Documents to which Administrative Agent is a party.

“Accepted Collateral Agent Practices” means the performance of administrative and custodial duties with respect to the Collateral and Account Collateral in accordance with the terms and provisions of this Agreement and the other Loan Documents to which Collateral Agent is a party.

“Account Collateral” means, collectively, the Collateral Accounts and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, chattel paper, deposit accounts, instruments, documents or securities.

“Account Control Agreement” means an account control agreement in substantially the form of Exhibit H, as the same may from time to time be modified or replaced in accordance herewith.

“ACEP Borrower” means American Casino & Entertainment Properties LLC.

“Administrative Agent” shall have the meaning provided in the first paragraph of this Agreement.

“Affiliate” means, with respect to any Person, any other Person Controlling, Controlled by or under common Control with such Person.

“Agent” means each of Administrative Agent and Collateral Agent (and “Agents” means, collectively, Administrative Agent and Collateral Agent).

“Agent Fee Agreements” means any fee agreements or the equivalent entered into from time to time on customary market terms between Lenders and any one or more of the Agents and the Servicer in respect of their services as Administrative Agent, Collateral Agent or Servicer, as applicable, hereunder and under the other Loan Documents. ACEP Borrower and the initial Collateral Agent have entered into a fee agreement, dated as of June 24, 2009, with respect to the initial Collateral Agent’s role as Collateral Agent hereunder.

“Agent-Related Persons” shall have the meaning provided in Section 10.3.

“Agreement” means this Loan Agreement, as the same may from time to time hereafter be modified or replaced.

“Allocated Loan Amount” means, with respect to each Property, the Stratosphere Excess Land or any Release Parcel, at any time, the portion of the Loan Amount allocated thereto as set forth in Schedule E-1 and Schedule E-2, as reduced by the allocable portion of any (i) voluntary prepayment pursuant to Section 2.1 that is not associated with the release of a Property, (ii) any prepayment pursuant to Section 3.9(d) and (iii) any prepayment made in connection with the release of a Release Parcel pursuant to Section 2.4 (the allocation for purposes of foregoing clauses (i), (ii) and (iii) to be pro rata among all the Properties on the basis of the Allocated Loan Amounts of the Properties as in effect immediately prior to such prepayment).

“ALTA” means the American Land Title Association, or any successor thereto.

“Alteration” means any demolition, alteration, installation, improvement or expansion of or to any of the Properties or any portion thereof, excluding the installation or replacement of FF&E in the ordinary course of business, Tenant Improvements required under Leases and any of the foregoing relating to a Casualty or a Condemnation.

“Annual Budget” means a capital and operating expenditure budget for the Properties, showing revenues and such expenditures on a pro forma month-by-month basis for the relevant Fiscal Year, prepared by Borrower and specifying amounts reasonably foreseeable to be sufficient to operate and maintain the Properties at a standard at least equal to that maintained on the Closing Date.

“Applicable Interest Rate” means (i) for so long as the Loan is a LIBOR Loan, the LIBOR Rate of Interest and (ii) if the Loan is converted to a Prime Rate Loan pursuant to Section 1.4(b) or 1.4(d), the Prime Rate of Interest.

“Appraisal” means an as-is appraisal of each Property that is prepared by a member of the Appraisal Institute selected by Administrative Agent, meets the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA), and complies with the Uniform Standards of Professional Appraisal Practice (USPAP).

“Approved Annual Budget” has the meaning set forth in Section 5.17.

“Approved Management Agreement” has the meaning set forth in Section 5.10(a).

“Approved Property Manager” means, with respect to each Property, (i) each of the Persons listed on Schedule K, provided that there is no material deterioration in such Person’s reputation or financial stability after the Closing Date (as reasonably determined by Administrative Agent on instruction from the Required Lenders, acting reasonably) and (ii) any management company approved by Administrative Agent (on instruction from the Required Lenders in their sole discretion), in each case unless and until Administrative Agent requests the termination of that management company pursuant to Sections 5.10(d) or 5.10(e).

“Assignment” has the meaning set forth in Section 9.7(b).

“Assignment of Interest Rate Cap Agreement” means each collateral assignment of an interest rate cap agreement executed by Borrower and an Acceptable Counterparty in accordance herewith, each of which must be in the form executed by Borrower and the initial Acceptable Counterparty on the Closing Date or otherwise reasonably acceptable to Administrative Agent, as the same may from time to time be modified or replaced in accordance therewith and herewith.

“Assumed Note Rate” has the meaning set forth in Section 2.1(a).

“Assumed Note Rate Payment” has the meaning set forth in Section 2.1(a).

“Assumed Note Rate Period” has the meaning set forth in Section 2.1(a).

“Assumption” has the meaning set forth in Section 2.6.

“Bankruptcy Code” has the meaning set forth in Section 7.1(d).

“Blocked Account Agreement” has the meaning set forth in Section 3.1(b).

“Blocked Accounts” has the meaning set forth in Section 3.1(b).

“Borrower” has the meaning set forth in the first paragraph of this Agreement.

“Borrower Election Amount” has the meaning set forth in Section 3.2(d).

“Business Day” means any day other than (i) a Saturday and a Sunday and (ii) a day on which commercial banks in the State of New York or the state in which the offices of Administrative Agent, Lender, its trustee, or Administrative Agent’s collection account are located are authorized or obligated by law, governmental decree or executive order to be closed; except that when used with respect to an Interest Determination Date, “Business Day” shall mean a day on which banks are open for dealing in foreign currency and exchange in London.

“Capital Expenditure” means hard and soft costs incurred by Borrower with respect to replacements and capital repairs made to the Properties (including repairs to, and replacements of, structural components, roofs, building systems, parking garages and parking lots, environmental remediation and FF&E), in each case to the extent capitalized in accordance with GAAP.

“Capital Expenditure Amount” means $21,977,438.

“Capital Expenditure Reserve Account” has the meaning set forth in Section 3.8(a).

“Cash Management Account” has the meaning set forth in Section 3.1(a).

“Cash Management Agreement” means a cash management agreement in substantially the form of Exhibit A, as the same may from time to time be modified or replaced in accordance herewith.

“Cash Management Bank” means, initially, Xxxxx Fargo Bank, N.A., or any other Eligible Institution selected by the Administrative Agent.

“Casino Components” means, collectively, those portions of each Property devoted to casino gaming operations, including (without limitation) those areas devoted to the conduct of games of chance, facilities associated directly with gaming operations including, without limitation, casino support areas such as surveillance and security areas, cash cages, counting and accounting areas and gaming back-of-the-house areas in each case, to the extent the operation thereof requires a Gaming License under applicable Gaming Laws.

“Casino Comps” means, for any period, the aggregate amount of the actual retail value of goods and services provided free of charge to guests at a Property (determined on the

basis of prices routinely charged for such goods and services at the applicable Property during such period).

“Casino Discounts” means, for any period, the sum of (i) the cash value of casino points actually redeemed as cash during such period, plus (ii) the cash value of slot machine “free-play” actually redeemed during such period, plus (iii) the actual retail value of goods and services redeemed using casino points during such period (determined on the basis of prices routinely charged for such goods and services at the applicable Property during such period).

“Casino Lessee Borrower” means, individually or collectively as the context requires, (i) Aquarius Gaming LLC, a Nevada limited liability company, (ii) Stratosphere Gaming LLC, a Nevada limited liability company, (iii) Arizona Charlie’s, LLC, a Nevada limited liability company, and (iv) Fresca, LLC, a Nevada limited liability company, each in its capacity as lessee under its respective Casino Operating Lease, together with their respective successors and permitted assigns.

“Casino Operating Lease” means, individually or collectively as the context requires, each of those certain Casino Lease Agreements dated as of February 20, 2008, as amended as of the Closing Date, each by and between each Property Owner Borrower and a Casino Lessee Borrower, with respect to the Properties described on Schedules A-1 through A-4.

“Casino Participation Expenses” means, for any period, the aggregate liability of Borrower to any slot machine manufacturer entitled to a percentage of the revenues generated by one or more slot machines leased to the Borrower pursuant to a written lease agreement during such period.

“Casino Progressive Expenses” means, for any period, the aggregate liability of Borrower for in-house and wide-area progressive slot machine jackpots during such period.

“Casino Promotional Amount” means, for any period, an amount equal to the sum of (i) Casino Discounts, plus (ii) Casino Comps, plus (iii) Casino Progressive Expenses, plus (iv) Casino Participation Expenses, in each case, for such period.

“Casualty” means a fire, explosion, flood, collapse, earthquake or other casualty affecting all or any portion of a Property.

“Certificates” means, collectively, any senior and/or subordinate notes, debentures or pass-through certificates, or other evidence of indebtedness, or debt or equity securities, or any combination of the foregoing, representing a direct or beneficial interest, in whole or in part, in the Loan.

“Change of Control” means the occurrence of any one or combination of the following: (i) the failure of a Co-Borrower to be Controlled by Whitehall, or (ii) the failure of the Single-Purpose Equityholder (if any) of a Co-Borrower to be Controlled by Whitehall.

“Closing Date” means the date of this Agreement.

“Code” means the Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.

“Collateral” means (i) all assets owned from time to time by Borrower, including the Properties, the Revenues, the Account Collateral and all other tangible and intangible property (including all of Property Owner Borrower’s right, title and interest in and to the Operating Leases) in respect of which Collateral Agent is granted a Lien under the Loan Documents, and all proceeds thereof, and (ii) the Equity Collateral.

“Collateral Accounts” means, collectively, the Cash Management Account, the Pledged Operating Accounts, the Loss Proceeds Account, the Tax and Insurance Reserve Account, the FF&E Reserve Account, the Capital Expenditure Reserve Account, the Deferred Maintenance and Environmental Reserve Account, the Excess Cash Flow Reserve Account, the Surplus Cash Amortization Reserve Account and the Blocked Accounts.

“Collateral Agent” shall have the meaning provided in the first paragraph of this Agreement.

“Collateral Assignment of Intellectual Property” means that certain Trademark Security Agreement, dated as of the Closing Date, by Borrower for the benefit of Collateral Agent for the purpose of filing with the U.S. Patent and Trademark Office, as the same may be from time to time modified or replaced in accordance herewith.

“Competitor Assignee” means the Persons listed on Schedule H hereto.

“Condemnation” means a taking or voluntary conveyance of all or part of any of the Properties or any interest in or right accruing to or use of any of the Properties, as the result of, or in settlement of, any condemnation or other eminent domain proceeding by any Governmental Authority.

“Consolidated Net Income” means, for any period, the net income (or loss) of Borrower on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP, minus (a) any gains or losses attributable to dispositions of assets or returned surplus assets of any pension plan, and (b) to the extent not included in clause (a) above, any net extraordinary gains or net extraordinary losses.

“Contingent Obligation” means, with respect to any Person, any obligation of such Person directly or indirectly guaranteeing any Debt of any other Person in any manner and any contingent obligation to purchase, to provide funds for payment, to supply funds to invest in any other Person or otherwise to assure a creditor against loss.

“Control” of any entity means (i) the ownership, directly or indirectly, of at least 51% of the equity interests in, and the right to at least 51% of the distributions from, such entity and (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity, whether through the ability to exercise voting power, by contract or otherwise (“Controlled” and “Controlling” each have the meanings correlative thereto).

“Cooperation Agreement” means that certain Mortgage Loan Cooperation Agreement, dated as of the Closing Date, among Borrower, Sponsor, Lender, and Administrative Agent, as the same may from time to time be modified or replaced in accordance herewith.

“Damages” to a party means any and all liabilities, obligations, losses, damages, penalties, assessments, actions, judgments, suits, claims, costs, expenses (including reasonable attorneys’ fees whether or not suit is brought), settlement costs and disbursements imposed on, incurred by or asserted against such party.

“Debt” means, with respect to any Person, without duplication:

(i) all indebtedness of such Person to any other party (regardless of whether such indebtedness is evidenced by a written instrument such as a note, bond or debenture), including indebtedness for borrowed money or for the deferred purchase price of property or services;

(ii) all letters of credit issued for the account of such Person in respect of which such Person has reimbursement obligations and all unreimbursed amounts drawn thereunder;

(iii) all indebtedness secured by a Lien on any property owned by such Person (whether or not such indebtedness has been assumed) except obligations for impositions (including Taxes) which are not yet due and payable;

(iv) all Contingent Obligations of such Person;

(v) all payment obligations of such Person under any interest rate protection agreement (including any interest rate swaps, floors, collars or similar agreements) and similar agreements; and

(vi) all contractual indemnity obligations of such Person.

“Debt Service” means, with respect to any Test Period, the product of (x) the Principal Indebtedness, times (y) the sum of the Spread plus the lesser of (A) the LIBOR Strike Rate and (B) the then current determination of LIBOR (or if the Loan shall have been converted to a Prime Rate Loan, the then current determination of the Prime Rate).

“Debt to EBITDA” means, with respect to any Test Period, the quotient of (i) the Principal Indebtedness, divided by (ii) EBITDA for such Test Period.

“Debt to EBITDA Covenant Quotient” means with respect to the Test Period whose last Fiscal Quarter is the Fiscal Quarter ending:

(i) March 31, 2010, 9.00x;

(ii) June 30, 2010, 9.00x;

(iii) September 30, 2010, 9.00x;

(iv) December 31, 2010, 9.00x;

(v) March 31, 2011, 8.75x;

(vi) June 30, 2011, 8.50x;

(vii) September 30, 2011, 8.25x;

(viii) December 31, 2011, 8.00x;

(ix) March 31, 2012, 6.75x;

(x) June 30, 2012, 6.50x;

(xi) September 30, 2012, 6.25x;

(xii) December 31, 2012, 6.00x;

(xiii) March 31, 2013, 5.50x;

(xiv) June 30, 2013, 5.25x;

(xv) September 30, 2013, 5.00x;

(xvi) December 31, 2013, 5.00x;

(xvii) March 31, 2014, 4.75x; and

(xviii) June 30, 2014, 4.75x.

“Default” means the occurrence of any event which, but for the giving of notice or the passage of time, or both, would be an Event of Default.

“Default Rate” means, with respect to any Note, the greater of (x) 5% per annum in excess of the interest rate otherwise applicable to such Note hereunder and (y) 1% per annum in excess of the Prime Rate from time to time.

“Deferred Maintenance Letter” means a letter from Lender to Borrower to be delivered within 10 days of Lender’s receipt of an Engineering Report for each Property, which letter shall set forth the Deferred Maintenance Amount and the Deferred Maintenance Conditions, as reasonably determined by Lender in consultation with Borrower based on a review of the Engineering Reports.

“Deferred Maintenance Amount” means the amount set forth in the Deferred Maintenance Letter, allocated among the Properties as set forth therein.

“Deferred Maintenance and Environmental Reserve Account” has the meaning set forth in Section 3.7(a).

“Deferred Maintenance Conditions” means those items described in the Deferred Maintenance Letter.

“DSCR” means, with respect to any Test Period, the quotient of (i) EBITDA for such Test Period, divided by (ii) the Debt Service for such Test Period.

“Easement Areas” has the meaning set forth in Section 4.27(ii).

“EBITDA” means, for any period, Consolidated Net Income, plus, to the extent reducing Consolidated Net Income, the sum, without duplication, of amounts for (a) consolidated

interest expense with respect to interest on the Loan, (b) provisions for taxes based on income, (c) total depreciation expense, (d) total amortization expense, (e) other non-cash charges reducing Consolidated Net Income (excluding any such non-cash charge to the extent that it represents an accrual or reserve for potential cash charge in any future period or amortization of a prepaid cash charge that was paid in a prior period), (f) actual out-of-pocket transaction costs payable by Borrower pursuant hereto in connection with the closing and syndication of the Loan, (g) FF&E expenditures and (h) consulting fees actually paid to Highgate Hotels L.P., to the extent permitted herein, minus other non-cash gains increasing Consolidated Net Income for such period (excluding any such non-cash gain to the extent it represents the reversal of an accrual or reserve for potential cash gain in any prior period).

“Eligible Account” means (i) a segregated account maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution, or (ii) a segregated trust account or accounts maintained with the corporate trust department of a federal depository institution or state-chartered depository institution which has an investment-grade rating and is subject to regulations regarding fiduciary funds on deposit under, or similar to, Title 12 of the Code of Federal Regulations Section 9.10(b) which, in either case, has corporate trust powers, acting in its fiduciary capacity.

“Eligible Assignee” means (i) any Lender and any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (ii) any commercial bank, investment bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act of 1933, as amended from time to time, and any successor statute) and which extends credit or buys loans in the ordinary course of business; provided, that no Affiliate of any Borrower shall be an Eligible Assignee, except for GS Lending Partners LLC, Xxxxxxx Xxxxx Mortgage Company, Xxxxxxx Sachs Commercial Mortgage Capital, L.P. and any entities that succeed to substantially all of the business of any such Affiliate.

“Eligible Institution” means an institution (i) whose commercial paper, short-term debt obligations or other short-term deposits are rated at least X-0, Xxxxx-0 or F-1, as applicable, by each of the Rating Agencies and whose long-term senior unsecured debt obligations are rated at least A or A2, as applicable, by each of the Rating Agencies, and whose deposits are insured by the FDIC or (ii) with respect to which Lender shall have received Rating Confirmation.

“Embargoed Person” has the meaning set forth in Section 4.39.

“Engineering Report” means a structural and, where applicable, seismic, engineering report or reports with respect to each of the Properties prepared by an independent engineer approved by Administrative Agent and delivered to Administrative Agent in accordance with the terms hereof and the other Loan Documents, and any amendments or supplements thereto delivered to Administrative Agent.

“Environmental Claim” means any written notice, claim, proceeding, investigation or demand by any Person or Governmental Authority alleging or asserting liability with respect to Borrower or any of the Properties arising out of, based on or resulting from (i) the alleged presence, Use or Release of any Hazardous Substance, (ii) any alleged violation of any

Environmental Law, or (iii) any alleged injury or threat of injury to property, health or safety or to the environment caused by Hazardous Substances.

“Environmental Indemnity” means the environmental indemnity agreements executed by Borrower and the Sponsor as of the Closing Date, as the same may from time to time be modified or replaced in accordance herewith.

“Environmental Laws” means any and all present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, any judicial or administrative orders, decrees or judgments thereunder, and any permits, approvals, licenses, registrations, filings and authorizations, in each case as now or hereafter in effect, concerning pollution, protection or cleanup of the environment, the impact of Hazardous Substances on property, health or safety, or the Use or Release of Hazardous Substances, or relating to the liability for or costs of other actual or threatened danger to health or the environment allegedly caused by any Hazardous Substance. The term “Environmental Law” includes, but is not limited to, the following statutes, as amended, any successors thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act (including Subtitle I relating to underground storage tanks); the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; those portions of the Occupational Safety and Health Act relating to the use, handling or exposure to any Hazardous Substance; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act.

“Environmental Reports” means “Phase I Environmental Site Assessments” as referred to in the ASTM Standards on Environmental Site Assessments for Commercial Real Estate, E 1527-05 (and, if necessary, “Phase II Environmental Site Assessments”), prepared by an independent environmental auditor approved by Administrative Agent and delivered to Administrative Agent and any amendments or supplements thereto delivered to Administrative Agent, and shall also include any other environmental reports delivered to Administrative Agent pursuant to this Agreement and the Environmental Indemnity.

“Equity Collateral” means, collectively, (i) 100% of the issued and outstanding limited and general partnership interests in Property Owner Borrower, (ii) 100% of the issued and outstanding limited liability interests in Property Owner Borrower GP, which together with the interests described in clause (i) above, constitute 100% of the direct and indirect equity interests in Property Owner Borrower, (iii) all other collateral pledged under the Pledge Agreement and (iv) all proceeds of all of the foregoing.

“Equity Contribution Account” has the meaning set forth in Section 5.24.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated thereunder.

“ERISA Affiliate,” at any time, means each trade or business (whether or not incorporated) that would, at the time, be treated together with Borrower as a single employer under Section 414 of the Code or Section 4001 of ERISA.

“Event of Default” has the meaning set forth in Section 7.1.

“Exception Report” means the report prepared by Borrower and attached to this Agreement as Schedule B, setting forth any exceptions to the representations set forth in Article IV.

“Excess Cash Flow Reserve Account” has the meaning set forth in Section 3.9(a).

“Excluded Tax” means, with respect to any Lender and to each Person to whom there has been an Assignment or Participation of the Loan, (a) income or franchise tax imposed on (or measured by) its net income or gross receipts, by or on behalf of the United States of America or any taxing authority thereof or (b) any branch profits tax imposed by the United States of America or any other taxing authority thereof.

“Existing Engineering Reports” means the structural and, where applicable, seismic reports with respect to each of the Properties prepared by an independent engineer approved by Initial Lender and delivered to Initial Lender on or prior to February 20, 2008 in connection with a prior financing from Initial Lender to the Property Owner Borrower, and any amendment or supplements thereto delivered to Initial Lender.

“FF&E” means all fixtures, furniture, furnishings, equipment (including operating equipment, operating supplies and fixtures attached to and forming part of the Improvements), apparatus and other personal property used in, or held in storage for use in (or if the context so dictates, required in connection with), or required for the operation of that portion of Improvements to be used as a hotel or a casino in accordance with this Agreement, including, without limitation, (i) office furnishings and equipment, (ii) specialized hotel, gaming and spa equipment necessary for the operation of any portion of the Improvements, including equipment for kitchens, laundries, dry cleaning facilities, bars, restaurants, public rooms, commercial and parking space, spa and recreational facilities, (iii) design and project fees, shipping costs, taxes and installation; and (iv) all other furnishings and equipment as Borrower deems necessary or desirable for the operation of that portion of Improvements to be used as a hotel or casino in accordance with this Agreement.

“FF&E Reserve Account” has the meaning set forth in Section 3.6(a).

“FF&E Upfront Reserve Amount” means $5,000,000.

“Fiscal Quarter” means the three-month period ending on March 31, June 30, September 30 and December 31 of each year, or such other fiscal quarter of Borrower as Borrower may select from time to time with the prior consent of Administrative Agent (on instruction from the Required Lenders, Lender agreeing for the benefit of Borrower that such consent shall not be unreasonably withheld, delayed or conditioned).

“Fiscal Year” means the 12-month period ending on December 31 of each year, or such other fiscal year of Borrower as Borrower may select from time to time with the prior consent of Administrative Agent (on instruction from the Required Lenders, Lender agreeing for the benefit of Borrower that such consent shall not be unreasonably withheld, delayed or conditioned).

“Fitch” means Fitch, Inc. and its successors.

“Form W-8BEN” means Form W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding) of the Department of Treasury of the United States of America, and any successor form.

“Form W-8ECI” means Form W-8ECI (Certificate of Foreign Person’s Claim for Exemption from Withholding of Tax on Income Effectively Connected with the Conduct of a Trade or Business in the United States) of the Department of the Treasury of the United States of America, and any successor form.

“GAAP” means generally accepted accounting principles in the United States of America, consistently applied.

“Gaming Authorities” means, in any jurisdiction in which a Property is located, the applicable gaming board, commission, or other governmental gaming regulatory authority, body or agency which (a) has, or may at any time after the Closing Date have, jurisdiction over the gaming activities at the Property or (b) is, or may at any time after the Closing Date be, responsible for interpreting, administering and enforcing the Gaming Laws.

“Gaming Equipment”means any and all gaming devices (as defined in NRS 463.0155), gaming device parts inventory and other related gaming equipment and supplies used in connection with the operation of a casino, including (without limitation), slot machines, gaming tables, cards, dice, chips, tokens, player tracking systems, cashless wagering systems, mobile gaming systems and associated equipment (including that defined in NRS 463.0136) which are located at the Casino Components, owned or leased by Casino Lessee Borrower and used or useable exclusively in the present or future operation of slot machines and live games at the Casino Components, together with all improvements and/or additions thereto.

“Gaming Equipment Facility Agreements” means, collectively, those certain Loan Agreements, dated as of February 20, 2008, as amended as of the Closing Date, entered into by and between each Property Owner Borrower and its corresponding Lessee Borrower, as each of the same may hereafter be amended, supplemented, or otherwise modified from time to time, to the extent permitted herein.

“Gaming Laws” means all applicable constitutions, treatises, laws and statutes pursuant to which any Gaming Authority possesses regulatory, licensing or permitting authority over gaming, gambling or casino or casino-related activities and all rules, rulings, orders, ordinances and regulations of any Gaming Authority applicable to the gambling, casino, gaming businesses or casino or casino-related activities of Borrower or any of its subsidiaries in any jurisdiction, as in effect from time to time, including the policies, interpretations and administration thereof by the Gaming Authorities.

“Gaming License” means, in any jurisdiction in which a Property is located, any license, qualification, franchise, accreditation, approval, registration, permit, finding of suitability or other authorization relating to gaming, the gaming or gambling business or the operation of a casino under the Gaming Laws or required by the Gaming Authorities or otherwise necessary for the operation of gaming, the gaming business (including a racebook and/or a sports pool) or a resort casino.

“Gaming Liquidity Requirements” means the minimum bankroll requirements for cash and cash equivalents required to be maintained by Casino Lessee Borrower pursuant to Gaming Laws in an amount no greater than is mandated by applicable Gaming Laws, which requirements may be subject to (a) adjustment in an amount equal to any incremental increase or decrease in the amount of the Gaming Liquidity Requirement that is required to be maintained by Casino Lessee Borrower under applicable Gaming Laws as a result of any increase or decrease in gaming business at the applicable Casino Component, (b) subject to increase or decrease due to any change in the applicable requirements under Gaming Laws generally or (c) subject to increase by the Chairman of the Nevada Gaming Control Board pursuant to Regulation 6.150.6 of the Regulations of the Nevada Gaming Commission and Nevada State Gaming Control Board.

“Gaming Operating Reserve” means, with respect to the Casino Component, such cash funds and reserves that are held and maintained at each Property by Casino Lessee Borrower, in its capacity as the duly licensed operator of the Casino Component, including (without limitation) casino chips, tokens, checks and markers; provided, however, that all such Gaming Operating Reserves (a) are funded and maintained in accordance with the requirements of applicable Gaming Laws and in amounts that are reasonable and customary for comparable Properties, but in no event less than Gaming Liquidity Requirements, and (b) are solely for use in the day-to-day operation and management of each Casino Component in the ordinary course of business.

“Gaming Operating Reserve Excess” means the amount by which the funds contained in the Gaming Operating Reserve exceed the minimum amount required to be contained therein pursuant to Gaming Liquidity Requirements, to the extent that such excess is withdrawn, disbursed or otherwise removed from the Gaming Operating Reserve for any purpose other than payment to third parties in order to comply with applicable Gaming Laws.

“Governmental Authority” means any federal, state, county, regional, local or municipal government, any bureau, department, agency or political subdivision thereof and any Person with jurisdiction exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government (including any court and any Gaming Authority).

“Gross Revenue” means, for any period (1) all operating income of Borrower from each of the Properties during such period determined in accordance with GAAP (but without straight-lining of rents), other than (i) Loss Proceeds (but Operating Income will include rental loss insurance proceeds to the extent allocable to such period), (ii) any interest income from any source, (iii) any repayments received from any third party of principal loaned or advanced to such third party by Borrower, (iv) any proceeds resulting from the Transfer of all or any portion of any Property, (v) sales, use and occupancy or other taxes on receipts required to

be accounted for by Borrower to any government or governmental agency, (vi) any other extraordinary or non-recurring items, and (vii) payments among or between Co-Borrowers (including payments under any Operating Lease), less, without duplication, (2) the Casino Promotional Amount for such period. For the avoidance of doubt, Gross Revenue shall not include employee tips, to the extent actually distributed to employees, and “front money deposits” held on account for customers at a Property.

“Hazardous Substances” means any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, toxic substances, toxic pollutants, contaminants, pollutants or words of similar meaning or regulatory effect under any present or future Environmental Laws or that have a negative impact on human health or the environment or the presence of which on, in or under any of the Properties is prohibited under Environmental Law, including petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead and radon, and compounds containing them (including gasoline, diesel fuel, oil and lead-based paint), and radioactive materials, flammables and explosives and compounds containing them, excluding, however, products or substances which are generally used in the ordinary course of operations at the Property in question, work projects and similar activities undertaken by or on behalf of Borrower or any Tenants at the Property in question, in each case in such quantities and concentrations as are reasonable for their intended application.

“Holdings LLC Agreement” has the meaning set forth in Section 5.25.

“Highgate Subordination Agreement” means that certain Consent and Subordination Agreement by Highgate Hotels L.P. for the benefit of Lender.

“Hotel Operating Lease” means, individually or collectively as the context requires, each of those certain Hotel Lease Agreements dated as of February 20, 2008, as amended as of the Closing Date, each by and between each Property Owner Borrower and a Hotel Lessee Borrower, with respect to the Properties described on Schedule A-1 through A-4.

“Hotel Lessee Borrower” means, individually or collectively as the context requires, (i) Aquarius Gaming LLC, a Nevada limited liability company, (ii) Stratosphere Gaming LLC, a Nevada limited liability company, (iii) Arizona Charlie’s, LLC, a Nevada limited liability company, and (iv) Fresca, LLC, a Nevada limited liability company, each in its capacity as lessee under its respective Hotel Operating Lease, together with their respective successors and permitted assigns.

“Increased Costs” has the meaning set forth in Section 1.7.

“Indebtedness” means the Principal Indebtedness, together with interest and all other payment obligations of Borrower to Lender and the Agents then due under the Loan Documents, including all Transaction Costs, Spread Maintenance Amounts (if applicable) and other amounts due or to become due to Lender pursuant to this Agreement, under the Note or in accordance with any of the other Loan Documents, and all other amounts, sums and expenses payable and/or reimbursable by Borrower to Lender and the Agents pursuant to this Agreement or under the Note or in accordance with any of the other Loan Documents.

“Indemnified Liabilities” has the meaning set forth in Section 9.19(b).

“Indemnified Parties” has the meaning set forth in Section 5.19(a).

“Independent Director” of any corporation or limited liability company means an individual who is duly appointed as a member of the board of directors or board of managers of such corporation or limited liability company or as a member of the limited liability company and who is not, and has not been at any time during the 5 years preceding such appointment, and will not while serving as Independent Director, be any of the following:

(i) a member, partner, equityholder, manager, director, officer or employee of Borrower, any Single-Purpose Equityholder or any of their respective equityholders or Affiliates (other than as an independent director, manager or member of an Affiliate of Borrower or any Single-Purpose Equityholder that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such independent director, manager or member is employed by a company that routinely provides professional independent directors, managers or members);

(ii) a creditor, supplier or service provider (including provider of professional services) to Borrower, any Single-Purpose Equityholder or any of their respective equityholders or Affiliates (other than a company that routinely provides professional independent managers, directors or members and which also provides lien search and other similar services to Borrower, any Single-Purpose Equityholder or any of their respective equityholders or Affiliates in the ordinary course of business);

(iii) a member of the immediate family by blood, marriage or adoption of any of the Persons described in clauses (i) and (ii); or

(iv) a Person that controls (whether directly, indirectly or otherwise) any of the Persons described in clauses (i), (ii) or (iii) above.

Notwithstanding anything herein to the contrary, an Independent Director may not simultaneously serve as Independent Director of a Borrower or a Single-Purpose Equityholder and independent director of a special purpose entity that owns a direct or indirect equity interest in any Borrower or Single-Purpose Equityholder of any Borrower.

“Initial Lender” has the meaning set forth in the preamble of this Agreement.

“Initial Payment Date” means the Payment Date in August 2009.

“Insurance Requirements” means, collectively, (i) all material terms of any insurance policy required pursuant to this Agreement and (ii) all material regulations and then-current standards applicable to or affecting any of the Properties or any portion thereof or any use or condition thereof, which may, at any time, be recommended by the board of fire underwriters, if any, having jurisdiction over any of the Properties, or any other body exercising similar functions.

“Interest Accrual Period” means, with respect to any specified Payment Date, the period from and including the 15th day of the calendar month preceding such Payment Date to but excluding the 15th day of the calendar month containing such specified Payment Date (in each case without regard to whether such 15th day is a Business Day), provided that prior to a Securitization or syndication of the Loan (and only for so long as Initial Lender or any of its Affiliates shall hold any portion of the Loan), Lender shall have the one-time right, in connection with a change in the Payment Date in accordance with the terms of the Cooperation Agreement, to make a corresponding one-time change to the Interest Accrual Period (which change shall remain effective for the life of the Loan) provided same has no adverse effect on Borrower to more than a de minimis extent. Notwithstanding the foregoing, the first Interest Accrual Period (relating to the stub interest paid at closing) shall commence on and include the Closing Date and end on and include July 14, 2009.

“Interest Determination Date” means, in connection with the calculation of interest accrued for any Interest Accrual Period, the second Business Day preceding the ninth day of the month in which such Interest Accrual Period will commence; except that with respect to the first Interest Accrual Period (relating to the stub interest paid at closing), the Interest Determination Date shall be the second Business Day preceding the Closing Date.

“Interest Rate Cap Agreement” means an interest rate cap confirmation reasonably acceptable to Administrative Agent between an Acceptable Counterparty and Borrower.

“Lease” means any lease (including, without limitation, the Operating Lease), license, letting, concession, occupancy agreement, sublease to which Property Owner Borrower or Lessee Borrower is a party or has a consent right, or other agreement (whether written or oral and whether now or hereafter in effect) under which Borrower is a lessor, existing as of the Closing Date or hereafter entered into by Borrower, in each case pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in any of the Properties, and every modification or amendment thereof, and every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto, excluding short-term agreements in the ordinary course of business pursuant to which hotel rooms and facilities are made available to individual hotel guests.

“Legal Requirements” means all governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities (including Environmental Laws and Gaming Laws) affecting Borrower or any of the Properties or any portion thereof or the construction, ownership, use, alteration or operation thereof (whether now or hereafter enacted and in force), and all permits, licenses (including Gaming Licenses and Liquor Licenses) and authorizations and regulations relating thereto.

“Lender” means, individually and collectively, as the context may require, the Initial Lender and such other lenders that are from time to time parties to this Agreement pursuant to Section 9.7.

“Lessee Borrower” means, individually or collectively as the context requires, each Hotel Lessee Borrower and Casino Lessee Borrower.

“Lessee Pledge” has the meaning set forth in Section 5.25.

“LIBOR” means the greater of (x) 2.5% and (y) the rate per annum calculated as set forth below:

(i) On each Interest Determination Date, LIBOR for the applicable period will be the offered rate for deposits in United States dollars for a one-month period from Bloomberg Financial Markets Commodities News that appears on Moneyline Telerate Page 3750 (as defined in the International Swaps and Derivatives Association, Inc. 1991 Interest Rate and Currency Exchange Definitions) (or such other page as may replace that page, or such page or replacement therefor on any successor service) as the London interbank offered rate as of 11:00 a.m., London time, on such date.

(ii) With respect to an Interest Determination Date on which no such rate appears as the London interbank offered rate on such Bloomberg page (or such other page as may replace that page, or such page or replacement therefor on any successor service) as described above, LIBOR for the applicable period will be determined on the basis of the rates at which deposits in United States dollars are offered by the Reference Banks at approximately 11:00 a.m., London time, on such date to prime banks in the London interbank market for a one-month period (each a “Reference Bank Rate”). Administrative Agent shall request the principal London office of each of the Reference Banks to provide a quotation of its Reference Bank Rate. If at least two such quotations are provided, LIBOR for such period will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR for such period will be the arithmetic mean of the rates quoted by major banks in New York City, selected by Administrative Agent (at the direction of the Required Lenders), at approximately 11:00 a.m., New York City time, on such date for loans in United States dollars to leading European banks for a one-month period.

All percentages resulting from any calculations or determinations referred to in this definition will be rounded upwards to the nearest multiple of 1/100 of 1% and all U.S. dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent or more being rounded upwards).

“LIBOR Loan” means the Loan at such time as interest thereon accrues at a rate of interest based upon LIBOR.

“LIBOR Rate of Interest” means the sum of LIBOR, determined as of the applicable Interest Determination Date, plus the applicable Spread.

“LIBOR Strike Rate” means 4.75%.

“Lien” means any mortgage, lien (statutory or other), pledge, hypothecation, assignment, preference, priority, security interest, or any other encumbrance or charge on or affecting any Collateral or any portion thereof, or any interest therein (including any conditional

sale or other title retention agreement, any sale-leaseback, any financing lease or similar transaction having substantially the same economic effect as any of the foregoing, the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any other jurisdiction, domestic or foreign, and mechanics’, materialmen’s and other similar liens and encumbrances, as well as any option to purchase, right of first refusal, right of first offer or similar right).

“Liquor Licenses” means the agreements set forth on Schedule C hereto.

“Loan” has the meaning set forth in Section 1.1.

“Loan Amount” means $350,000,000.

“Loan Documents” means this Agreement, the Note(s), the Mortgage (and related financing statements), the Pledge Agreement, the Assignment of Interest Rate Cap Agreement, the Environmental Indemnity, any Subordination of Property Management Agreement, the Recourse Guaranty, the Cash Management Agreement, the Cooperation Agreement, Account Control Agreement, the Collateral Assignment of Intellectual Property, the Pledge of Gaming Equipment Facility Agreements, the Blocked Account Agreement, the Highgate Subordination Agreement, the Subordination of Operating Lease Agreements, any Qualified Letter of Credit, any post-closing requirements letter, any fee letters between the parties, and all other agreements, instruments, certificates and documents necessary to effectuate the granting to Lender of first-priority Liens on the Collateral or otherwise in satisfaction of the requirements of this Agreement or the other documents listed above, as all of the aforesaid may be modified or replaced from time to time in accordance herewith.

“Loss Proceeds” means amounts, awards or payments payable to Borrower or Lender in respect of all or any portion of any of the Properties in connection with a Casualty or Condemnation thereof (after the deduction therefrom and payment to Borrower and Lender, respectively, of any and all reasonable expenses incurred by Borrower and Lender in the recovery thereof, including all attorneys’ fees and disbursements, the fees of insurance experts and adjusters and the costs incurred in any litigation or arbitration with respect to such Casualty or Condemnation).

“Loss Proceeds Account” has the meaning set forth in Section 3.3(a).

“Major Lease” means each Operating Lease and any Lease (including a sublease of an Operating Lease) which (i) is expected to contribute more than 5% of the Revenue from any Property during any 12-month period (after adjustment to eliminate the effect of free rent periods) or to cover more than 20,000 rentable square feet, (ii) contains an option or preferential right to purchase all or any portion of such Property, (iii) is with an Affiliate of Borrower as Tenant, or (iv) is entered into during the continuance of an Event of Default.

“Material Action” means (i) any determination to commence or not to commence foreclosure proceedings or exercise any other remedy provided for in this Agreement or in any of the other Loan Documents during the continuance of an Event of Default, (ii) any modification or waiver of any provision contained in Section 5.15, (iii) the granting or withholding of any consent or approval under, or the taking of any action in connection with, Sections 2.2, 2.4, 5.15,

5.16, 5.17, 5.20, 5.22, 6.5, 6.11, 6.13, 6.16 or 7.2, (iv) the granting or withholding of any consent or approval under Section 5.7, in connection with any Lease involving the payment of rent in excess of $250,000.00 per annum, (v) any modification of the definitions of “Permitted Debt”, “Permitted Encumbrance”, “Acceptable Counterparty”, “Eligible Institution” or “Eligible Account”, (vi) any material modification of, or deviation from the procedures set forth in, Sections 3.2, 3.5, 3.6, 3.7, or 3.8, (vii) any discretionary determination relating to the definitions of “Eligible Institution” and “Permitted Investments”, (viii) the approval of a property manager pursuant to clause (ii) of the definition of “Approved Property Manager”, (ix) any waiver of a Default or Event of Default under this Agreement or any other Loan Document, (x) the replacement of Administrative Agent or Collateral Agent, (xi) the application of payments pursuant to Section 7.4, (xii) any release of the Second Floor Space requiring consent or approval pursuant to Section 2.5(a), (xiii) all Non-Unanimous Modifications, and (xiv) any other action to be taken or omitted under, pursuant to or in accordance with this Agreement and/or the other Loan Documents that is not expressly set forth in foregoing clauses (i) through (xiii) or in the definition of Unanimous Action.

“Material Adverse Effect” means with respect to a Property, a material adverse effect upon (i) the ability of Borrower to perform its material obligations under the Loan Documents to which it is a party, (ii) the enforceability of any material provision of any Loan Document (other than as a result of Lender’s or Administrative Agent’s bad faith, gross negligence or willful misconduct), or (iii) the value, EBITDA or use of such Property or the operation thereof.

“Material Agreements” means each contract and agreement (other than Leases and any Approved Management Agreement) relating to the ownership, management, development, use, operation, maintenance, repair or improvement of any of the Properties, and/or otherwise imposing obligations on Borrower (i) under which Borrower would have the obligation to pay more than $1,000,000 per annum, (ii) which is required for a Property to be in compliance with Legal Requirements, including any local land-use or zoning ordinances, (iii) which is with an Affiliate of Borrower, or (iv) which provides for the use of an off-site facility related to a Property, if loss of such use would have a Material Adverse Effect.

“Material Alteration” means any Alteration to be performed by or on behalf of Borrower at any of the Properties which (a) is reasonably likely to have a Material Adverse Effect, (b) is reasonably expected to cost (other than the replacement of FF&E to the extent performed in the ordinary course of business, Tenant Improvements under any Lease entered into in accordance with this Agreement and any work required by Legal Requirements) in excess of 10% of the Allocated Loan Amount of the applicable Property, as determined by an independent architect selected by Borrower and reasonably acceptable to Administrative Agent, and the cost of such Alteration is paid out of any account other than the Capital Expenditure Reserve Account or the FF&E Reserve Account or (c) is made in connection with a master lease entered into pursuant to Section 2.5.

“Maturity Date” means the maturity date of the Loan as set forth in Section 1.2.

“Minimum Working Capital Amount” means, as of any Payment Date, the amount equal to (x) $40,000,000 less (y) the balance of the Gaming Operating Reserve on such Payment Date.

“Monthly FF&E Reserve Amount” means, with respect to each Payment Date, an amount equal to (x) 1/12 times (y) 3.0% times (z) Gross Revenues of the Properties during the 12-month period ending on the last day of the second to last calendar month immediately preceding such Payment Date (excluding any Properties that have been released from the Liens of the Loan Documents in accordance herewith during the immediately preceding 12-month period).

“Moody’s” means Xxxxx’x Investors Service, Inc. and its successors.

“Mortgage” means that certain fee and leasehold deed of trust, assignment of rents and leases, security agreement and fixture filing encumbering the Properties executed by Property Owner Borrower as of the Closing Date, as the same may from time to time be modified or replaced in accordance herewith.

“Net Proceeds” means, (1) in connection with the sale or disposition of a Property, the Stratosphere Excess Land or any Release Parcel, in each case for any reason permitted hereunder other than a disposition of a Property pursuant to Section 7.1(n), 100% of the proceeds of such sale or disposition, minus the lesser of (x) reasonable and customary transaction costs payable to unaffiliated third parties and (y) 3% of the gross proceeds of such sale or disposition (or, in the case of a release of a Property pursuant to Section 7.1(n), the appraised value of the Property pursuant to a then-current Appraisal reasonably acceptable to Lender), and (2) in connection with a disposition of a Property, the Stratosphere Excess Land or any Release Parcel pursuant to Section 7.1(n), the fair market value of such Property as determined by a
then-current Appraisal of such Property reasonably acceptable to the Administrative Agent.

“Non-Unanimous Modifications” means all amendments, supplements or modifications to, or waivers of, this Agreement and/or to the other Loan Documents (including amendments and restatements hereof or thereof) that are not Unanimous Modifications.

“Note(s)” means that certain Promissory Note, dated as of the Closing Date, made by Borrower to the order of Lender to evidence the Loan, as such note may be replaced by multiple Notes and as otherwise modified, assigned (in whole or in part) and/or replaced from time to time in accordance herewith.

“OFAC List” means the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the U.S. Treasury Department, Office of Foreign Assets Control pursuant to any applicable governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities, including, without limitation, trade embargo, economic sanctions, or other prohibitions imposed by Executive Order of the President of the United States. The OFAC List currently is accessible through the internet website at xxxx://xxx.xxxxx.xxx/xxxx/x00xxx.xxx.

“Officer’s Certificate” means a certificate delivered to Lender, Administrative Agent or Collateral Agent, as applicable, which is signed by an authorized officer of Borrower (or of a Person that is authorized to act on its behalf, such as Borrower’s general partner) and certifies the information therein to such officer’s knowledge.

“Operating Lease” means, individually or collectively as the context requires, each Hotel Operating Lease and Casino Operating Lease.

“Overlapping Release Parcels” means those parcels identified as “12” and “48” on Schedule E-2.

“Participation” has the meaning set forth in Section 9.7(b).

“Payment Date” means the Initial Payment Date and, thereafter, the 9th day of each month (or, if such 9th day is not a Business Day, the first preceding Business Day); provided that the Payment Date on which the Maturity Date falls shall be the second to last Business Day of the Interest Accrual Period in which such Maturity Date falls. For the avoidance of doubt, references to Payment Dates that fall in specified months ignore the preceding Business Day convention.

“Peg Balance” has the meaning set forth in Section 3.2(a).

“Permits” means all licenses, permits, variances and certificates used in connection with the ownership, operation, use or occupancy of each of the Properties (including certificates of occupancy, business licenses, state health department licenses, licenses to conduct business, licenses to sell and serve alcoholic beverages at the Properties, and all such other permits, licenses and rights, obtained from any Governmental Authority or private Person concerning ownership, operation, use or occupancy of such Property).

“Permitted Debt” means:

(i) the Indebtedness;

(ii) Trade Payables and payments under financing leases or equipment or vehicle leases, or financings, in each case not represented by a note, customarily paid by Borrower within 60 days of incurrence and in fact not more than 60 days outstanding, which are incurred in the ordinary course of Borrower’s ownership of the Properties, in amounts that in the aggregate, when aggregated with the amounts described in clause (b)(ii) of this definition, do not exceed 5.0% of the Loan Amount in the aggregate;

(iii) obligations contained in a customary owner’s affidavit to a title policy as reasonably approved by the Administrative Agent;

(iv) cash deposits from amounts otherwise not constituting Collateral and securing or in lieu of surety, appeal or customs bonds in proceedings to which Borrower is a party;

(v) indebtedness secured by a Lien permitted under clause (iv) of the definition of “Permitted Encumbrances”;

(vi) obligations to return or repay tenant security deposits;

(vii) contractual indemnity obligations entered into in the ordinary course of business in connection with the normal course of operation of the Properties, such as customary indemnities contained in Leases and the Approved Management Agreements; and

(viii) obligations under the Gaming Equipment Facility Agreements; and

(ix) the Operating Lease.

“Permitted Encumbrances” means:

(i) the Liens created by or pursuant to the Loan Documents, the Operating Lease and the Gaming Equipment Facility Agreements;

(ii) all Liens and other matters specifically disclosed on Schedule B of the Qualified Title Insurance Policies;

(iii) Liens, if any, for Taxes not yet delinquent, the nonpayment of which is permitted by the terms of this Agreement, or are being contested in good faith and by appropriate proceedings in accordance herewith, provided that no such Lien is in imminent danger of foreclosure;

(iv) workers’, mechanics’, materialmen’s or similar Liens, if any, and Liens for delinquent taxes or impositions, in each case only if being contested in good faith and by appropriate proceedings, provided that no such Lien is in imminent danger of foreclosure and provided further, with respect to any individual Lien greater than $100,000 and with respect to Liens totaling, in the aggregate, the product of $1,000,000 times a fraction, (x) the numerator of which is sum of the Allocated Loan Amounts of the Properties that are then subject to the Liens of the Loan Documents and (y) the denominator of which is the Loan Amount, either (a) each such Lien is released or discharged of record or fully insured over by the title insurance company issuing the Qualified Title Insurance Policy within 30 days of its creation, or (b) Borrower deposits with Collateral Agent, by the expiration of such 30-day period, an amount equal to 125% of the dollar amount of such Lien or a bond in the aforementioned amount from such surety, and upon such terms and conditions, as is reasonably acceptable to Administrative Agent, as security for the payment or release of such Lien;

(v) rights of existing and future Tenants as tenants only pursuant to written Leases, in the case of future Tenants, entered into in conformity with the provisions of this Agreement;

(vi) any attachment or judgment Lien, provided that the judgment it secures shall, within 60 days after the entry thereof, have been discharged or execution thereof

stayed pending appeal, or shall have been discharged within 60 days after the expiration of any such stay, provided that no such Lien is in imminent danger of foreclosure;

(vii) mechanics’ liens, which are subordinate to the Lien of the Mortgage, arising out of work performed by or materials furnished to or on behalf of tenants for which Borrower is not indebted, provided that no such Lien is in imminent danger of foreclosure and Borrower is actively enforcing its rights under the applicable Leases to release or discharge, or cause to be released or discharged, such Lien of record;

(viii) easements, rights-of-way, restrictions (including zoning restrictions), defects or irregularities in title and other similar title matters not, in any material respect, interfering with the operation, use or value of the Property encumbered or affected; and

(ix) Liens created in connection with financing leases or equipment or vehicle leases or financings to the extent such Liens constitute Permitted Debt.

“Permitted Investments” means the following, subject to qualifications hereinafter set forth:

(i) obligations of, or obligations directly and unconditionally guaranteed as to principal and interest by, the U.S. government or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States of America and have maturities not in excess of one year;

(ii) federal funds, unsecured certificates of deposit, time deposits, demand deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 90 days of any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the short-term debt obligations of which are rated A-1– (or the equivalent) by each of the Rating Agencies and, if it has a term in excess of three months, the long-term debt obligations of which are rated AA (or the equivalent) by each of the Rating Agencies, and that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000;

(iii) deposits that are fully insured by the Federal Deposit Insurance Corp. (FDIC);

(iv) commercial paper rated A–1+ (or the equivalent) by each of the Rating Agencies and having a maturity of not more than 90 days;

(v) any money market funds that (a) has substantially all of its assets invested continuously in the types of investments referred to in clause (i) above, (b) has net assets of not less than $5,000,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s; and

(vi) such other investments as to which Administrative Agent shall approve on instruction from the Required Lenders.

Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with the Standard & Poor’s “r” symbol (or any other Rating Agency’s corresponding symbol) attached to the rating (indicating high volatility or dramatic fluctuations in their expected returns because of market risk), as well as any mortgage-backed securities and any security of the type commonly known as “strips”; (ii) shall be limited to those instruments that have a predetermined fixed dollar of principal due at maturity that cannot vary or change; and (iii) shall exclude any investment where the right to receive principal and interest derived from the underlying investment provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment. Interest may either be fixed or variable, and any variable interest must be tied to a single interest rate index plus a single fixed spread (if any), and move proportionately with that index. No investment shall be made which requires a payment above par for an obligation if the obligation may be prepaid at the option of the issuer thereof prior to its maturity. All investments shall mature or be redeemable upon the option of the holder thereof on or prior to the earlier of (x) three months from the date of their purchase or (y) the Business Day preceding the day before the date such amounts are required to be applied hereunder.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, estate, trust, unincorporated association or any other entity or any Governmental Authority and any fiduciary acting in such capacity on behalf of any of the foregoing.

“Plan Assets” means assets of any (i) employee benefit plan (as defined in Section 3(3) of ERISA) subject to Title I of ERISA, (ii) plan (as defined in Section 4975(e)(1) of the Code) subject to Section 4975 of the Code, or (iii) governmental plan (as defined in Section 3(32) of ERISA) subject to federal, state or local laws, rules or regulations substantially similar to Title I of ERISA or Section 4975 of the Code.

“Pledge Agreement” means that certain Pledge and Security Agreement, dated as of the Closing Date, executed by W2007 ACEP First Mezzanine A Borrower, L.P., W2007 ACEP First Mezzanine B Borrower, L.P., W2007 Stratosphere Gen-Par, L.L.C., W2007 Stratosphere Land Gen-Par, L.L.C., W2007 Aquarius Gen-Par, L.L.C., W2007 Arizona Charlie’s Gen-Par, L.L.C. and W2007 Fresca Gen-Par, L.L.C. in favor of Collateral Agent and Administrative Agent, each for and on behalf of Lender, as the same may from time to time be modified or replaced in accordance herewith.

“Pledged Operating Accounts” means, collectively, each bank account owned and maintained by the Borrower from time to time, except for the Cash Management Account and its subaccounts, the Gaming Operating Reserve, any accounts maintained solely for the purpose of complying with Legal Requirements and any accounts maintained solely to hold amounts that are not the property of Borrower (e.g., employee tip accounts). Each Pledged Operating Account shall be maintained at an Eligible Institution and pledged to the Collateral Agent for the benefit of Lender.

“Pledge of Gaming Equipment Facility Agreements” means each Collateral Assignment of Rights, dated as of the Closing Date, by each Borrower in favor of Collateral Agent for the benefit of Lender, as the same may from time to time be modified or replaced in accordance herewith.

“Policies” has the meaning set forth in Section 5.15(b).

“Portfolio Material Adverse Effect” means a material adverse effect upon (i) the ability of Borrower to perform its material obligations under the Loan Documents to which it is a party, (ii) the enforceability of the material provisions of the Loan Documents (other than as a result of Lender’s or any Agent’s bad faith, gross negligence or willful misconduct), or (iii) the aggregate value, EBITDA or use of the Properties, or the operation thereof, in each case taken as a whole.

“Prepayment Notice” has the meaning set forth in Section 2.1(b).

“Prime Rate” means, the greater of (i) 2.5% and (ii) the “prime rate” published in the “Money Rates” section of The Wall Street Journal on each Interest Determination Date. If The Wall Street Journal ceases to publish the “prime rate,” then Administrative Agent and Borrower shall reasonably select an equivalent publication that publishes such “prime rate,” and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then Administrative Agent and Borrower shall reasonably select a comparable interest rate index.

“Prime Rate Loan” means the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate.

“Prime Rate of Interest” means the sum of the Prime Rate, determined as of the applicable Interest Determination Date, plus the applicable Prime Rate Spread.

“Prime Rate Spread” means the greater of (x) 900 basis points (9.0%) and (y) the difference (expressed as the number of basis points) between (a) LIBOR plus the Spread on the date LIBOR was last applicable to the Loan and (b) the Prime Rate on the date that LIBOR was last applicable to the Loan.

“Principal Indebtedness” means the principal balance of the Loan outstanding from time to time.

“Properties” means the real property described on Schedules X-0, X-0, X-0, and A-4 together with all buildings and improvements thereon.

“Property Agreements” means, collectively, the “Property Agreements” as defined in the Mortgage.

“Property Operating Expenses” means, for any period, all operating, renting, administrative, management, legal and other expenses of Borrower during such period, determined in accordance with GAAP, including all prepaid expenses, deposits and downpayments, to the extent paid or made in the ordinary course of business and amounts payable to Highgate Hotels L.P. pursuant to Section 3.2(d) hereof; provided, however, that such expenses shall not include (i) Capital Expenditures, (ii) FF&E expenditures and (iii) equity distributions.

“Property Owner Borrower” means, W2007 Stratosphere Propco, L.P., W2007 Stratosphere Land Propco, L.P., W2007 Aquarius Propco, L.P., W2007 Arizona Charlie’s Propco, L.P. and W2007 Fresca Propco, L.P., individually or collectively as the context may require.

“Property Owner Borrower GP” means, W2007 Xxxxxxxxxxxx Xxx-Xxx, X.X.X., X0000 Stratosphere Land Gen-Par, L.L.C., W2007 Aquarius Gen-Par, L.L.C., W2007 Arizona Charlie’s Gen-Par, L.L.C. and W2007 Fresca Gen-Par, L.L.C., individually or collectively as the context may require.

“Qualified Joint Venture” has the meaning set forth in Section 2.5(a).

“Qualified Letter of Credit” means a clean, irrevocable, unconditional, transferable letter of credit in form reasonably satisfactory to Lender with respect to which Borrower has no reimbursement obligation, payable on sight draft only, in favor of Lender and entitling Lender to draw thereon in New York, New York or anywhere inside or outside of New York, New York if it is capable of being drawn upon by facsimile presentation, issued by a domestic bank or the U.S. agency or branch of a foreign bank or Bank of Scotland, in each case, provided the long-term unsecured debt rating thereof is not less than A- (or the equivalent) from each of the Rating Agencies and the short-term unsecured debt rating thereof is not less than A-1 (or the equivalent) from each of the Rating Agencies; provided that a letter of credit shall cease to be a Qualified Letter of Credit if at any time the long-term unsecured debt rating of the issuing bank from any of the Rating Agencies shall fall below A- (or the equivalent) or the short-term unsecured debt rating of the issuing bank from any of the Rating Agencies shall fall below A-1 (or the equivalent). The following terms and conditions shall apply to each Qualified Letter of Credit:

(i) Each such Qualified Letter of Credit shall expressly provide that partial draws are permitted thereunder.

(ii) Each such Qualified Letter of Credit shall expressly provide that it is freely transferable to any successor or assign of Lender, without payment of any fee by Lender.

(iii) Lender shall be entitled to draw on any Qualified Letter of Credit immediately and without further notice (a) upon the occurrence and during the continuance of any Event of Default, (b) if Borrower shall not have delivered to Lender, no less than 30 days prior to the expiration date of such Qualified Letter of Credit (including any renewal or extension thereof), a renewal or extension of such Qualified Letter of Credit or a replacement Qualified Letter of Credit for a term of not less than one year (or through the date that is 30 days beyond the Maturity Date, whichever is earlier), or (c) if the credit rating or financial condition of the issuing bank falls below the ratings set forth above in this definition and Borrower fails to satisfy its obligations under Section 3.8(d).

“Qualified Successor Borrower” means a Single-Purpose Entity that is Controlled by one or more Qualified Successor Sponsors.

“Qualified Successor Lessee Borrower” means a Single-Purpose Entity that is Controlled by the same Qualified Successor Sponsor that Controls each other Qualified Successor Borrower and is a successor to a Lessee Borrower under an Operating Lease.

“Qualified Successor Sponsor” means a bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, real estate company, investment fund or an institution substantially similar to any of the foregoing that, in each case, is reasonably satisfactory to Administrative Agent (at the direction of the Required Lenders, acting reasonably), provided in each case that such Person (x) has total assets (in name or under management) in excess of $2 billion and (except with respect to a pension advisory firm or similar fiduciary) capital/statutory surplus or shareholder’s equity in excess of $1 billion (in both cases, exclusive of the Properties), and (y) is regularly engaged in the business of owning and/or operating properties similar to the Properties.

“Qualified Survey” means, with respect to each of the Properties, current title surveys of such Property, certified to Borrower, the title company issuing the Qualified Title Insurance Policy and Administrative Agent and their respective successors and assigns.

“Qualified Title Insurance Policy” means an ALTA extended coverage mortgagee’s title insurance policy for each of the Properties.

“Rating Agency” means (i) until a Securitization or series of Securitizations has occurred, which, in the aggregate shall have securitized the entire Loan, S&P, Xxxxx’x and Fitch, and (ii) from and after the occurrence of a Securitization or series of Securitizations which, in the aggregate, shall have securitized the entire Loan, those of S&P, Xxxxx’x and Fitch that rate the Certificates issued in such Securitization or series of Securitizations.

“Rating Confirmation” means, with respect to any proposed action, confirmation in writing from each of the Rating Agencies that such action shall not result, in and of itself, in a downgrade, withdrawal or qualification of any rating then assigned to any outstanding Certificates; except that if any portion of the Loan shall not have been securitized pursuant to a Securitization rated by the Rating Agencies, then “Rating Confirmation” shall instead mean that the matter in question is subject to the prior written approval of both (x) the applicable Rating Agencies (if and to the extent that any portion of the Loan has been securitized pursuant to a Securitization or series of Securitizations rated by such Rating Agencies), and (y) with respect to the portion of the Loan that has not been securitized, Lender in its sole discretion. No Rating Confirmation shall be regarded as having been received unless and until any conditions imposed on its effectiveness by any Rating Agency shall have been satisfied.

“REA” means, with respect to each of the Properties, each instrument described in the applicable Qualified Title Insurance Policy which (i) contains a material agreement for reciprocal obligations between Property Owner Borrower and any other parties thereto, or (ii) grants to Property Owner Borrower a material right necessary for the operation and use of any of the Properties in compliance with applicable land-use laws and/or zoning ordinances (including, by way of example only, any agreement for parking spaces required for the operation and use of

a Property in compliance with applicable land-use laws and/or zoning ordinances), as each may be amended, modified or replaced from time to time in accordance herewith.

“Recourse Guaranty” means the guaranty of recourse obligations, dated as of the Closing Date, made in favor of Lender by Sponsor.

“Reference Banks” means four major banks in the London interbank market selected by the Administrative Agent at the direction of Required Lenders.

“Regulatory Change” means any change after the Closing Date in federal, state or foreign laws or regulations or the adoption or the making, after such date, of any interpretations, directives or requests applying to a class of banks or companies controlling banks, including Lender, of or under any federal, state or foreign laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof.

“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

“Release” with respect to any Hazardous Substance means any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances into the indoor or outdoor environment (including the movement of Hazardous Substances through ambient air, soil, surface water, ground water, wetlands, land or subsurface strata).

“Release Notice” has the meaning set forth in Section 2.2(a).

“Release Parcel” means each grouping of the parcels of land set forth on Schedule E-2 (which parcels are more particularly described on Schedule A-1).

“Release Price” means,

(i) with respect to any Property, other than the Stratosphere Excess Land or any Release Parcel, the greater of (a) 100% of the Allocated Loan Amount applicable thereto, and (b) 100% of the Net Proceeds from the sale of such Property; and

(ii) with respect to the Stratosphere Excess Land or any Release Parcel, the greater of (a) $3,000,000 per acre (pro rated for partial acres), and (b) 100% of the Net Proceeds from the sale of such Stratosphere Excess Land or Release Parcel.

“Remaining Property” means, as of the date of determination, that portion of the Stratosphere Excess Land that has not been released pursuant to Section 2.4.

“Required Lenders” means (i) with respect to a Material Action, Lenders holding in the aggregate more than 50% of the Principal Indebtedness and (ii) with respect to a Unanimous Action, Lenders holding in the aggregate 100% of the Principal Indebtedness.

“Reserve Excess” means, in connection with the release of a particular Property pursuant to Section 2.2, Section 2.4 or Section 7.1, the excess amounts (if any) contained in the Capital Expenditure Reserve Account and/or the Deferred Maintenance and Environmental Reserve Account, in each case, solely to the extent such amounts are attributable to the Property so released.

“Restoration Threshold” has the meaning set forth in Section 5.16(a).

“Restricted Information” means all financial information regarding Borrower and the Properties except for the information contained in a report in the form of Exhibit E-1.

“Revenues” means all rents, rent equivalents, moneys payable as damages pursuant to a Lease or in lieu of rent or rent equivalents, royalties (including all oil and gas or other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits (including security, utility and other deposits), accounts, cash, issues, profits, charges for services rendered, and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower from any and all sources including any obligations now existing or hereafter arising or created out of the sale, lease, sublease, license, concession or other grant of the right of the use and occupancy of property or rendering of services by Borrower and proceeds, if any, from business interruption or other loss of income insurance.

“S&P” means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and its successors.

“Second Floor Space” means the space delineated as such on Exhibit B hereto.

“Second Floor Space Release Price” means $25,000,000.

“Securitization” means a transaction in which all or any portion of the Loan is deposited into one or more trusts which issue Certificates to investors, or a similar transaction.

“Service” means the Internal Revenue Service or any successor agency thereto.

“Shared Intellectual Property” has the meaning set forth in Section 1.9.

“Single Member LLC” means a limited liability company which either (x) has only one economic member, or (y) has multiple members, none of which is a Single-Purpose Equityholder.

“Single-Purpose Entity” means, with respect to each Property, a Person which (a) was formed under the laws of the State of Delaware or, in the case of the Lessee Borrowers, exists under the laws of the State of Nevada, (i) in the case of Property Owner Borrower and Lessee Borrower, solely for the purpose of acquiring, holding, developing, owning, selling, leasing, transferring, exchanging, managing, maintaining and operating the Properties, entering into the Loan Documents, refinancing the Properties in connection with a permitted repayment of the Loan in accordance herewith, and transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing, or (ii) in the case of Lessee Borrower, the leasing, maintenance and operation of the Properties and transacting any and all lawful business

that is incident, necessary and appropriate to accomplish the foregoing or (iii) in the case of ACEP Borrower, operating the Properties and, together with any Single-Purpose Equityholder of any Co-Borrower, owning all of the direct or indirect ownership interests in each Co-Borrower and any Single-Purpose Equityholder of any Co-Borrower, entering into this Agreement, transacting prepayment or repayment of the Loan in accordance with this Agreement, and transacting any and all lawful business that is incident, necessary and appropriate to accomplish the foregoing or (iv) in the case of a Single-Purpose Equityholder, an ownership interest in Borrower, (b) does not engage in any business unrelated to (i) in the case of Property Owner Borrower and Lessee Borrower, such Properties, (ii) in the case of ACEP Borrower, its operation of the Properties and its direct or indirect ownership interest in each Co-Borrower and any Single-Purpose Equityholder of each Co-Borrower, or (iii) in the case of a Single-Purpose Equityholder, its ownership interest in Borrower, (c) does not have any assets other than those related to (i) in the case of Property Owner Borrower and Lessee Borrower, its interest in such Properties, or (ii) in the case of ACEP Borrower, its operation of the Properties and its ownership interests in Property Owner Borrower and any Single-Purpose Equityholder of Property Owner Borrower or (iii) in the case of a Single-Purpose Equityholder, its ownership interest and general partner or managing member, as the case may be, role in Borrower, (d) does not have any Debt, other than, in the case of Borrower, Permitted Debt or, in the case of a Single-Purpose Equityholder, unsecured trade and operational debt incurred in the routine administration of Borrower, (e) maintains books, accounts, records, financial statements, stationery, invoices and checks which are separate and apart from those of any other Person (except that such Person’s financial position, assets, results of operations and cash flows may be included in the consolidated financial statements and tax returns of an Affiliate of such Person in accordance with GAAP, provided that any such consolidated financial statements shall contain a note indicating that such Person and its Affiliates are separate legal entities and maintain records, books of account separate and apart from any other Person), (f) is subject to and complies with all of the limitations on powers and separateness requirements set forth in the organizational documentation of such Person as of the Closing Date, if any, (g) holds itself out as being a Person separate and apart from each other Person and not as a division or part of another Person, (h) conducts its business in its own name (except for services rendered by a manager under a management agreement with an Affiliate, so long as such manager, or equivalent thereof, under such management agreement holds itself out as an agent of such Person), (i) exercises reasonable efforts to correct any known misunderstanding actually known to it regarding its separate identity, and maintains an arm’s-length relationship with its Affiliates, (j) except as contemplated under the Loan Documents, pays its own liabilities out of its own funds (including the salaries of its own employees) and reasonably allocates any overhead that is shared with an Affiliate, including paying for shared office space and services performed by any officer or employee of an Affiliate, (k) maintains a sufficient number of employees in light of its contemplated business operations, (l) in the case of (i) a corporation, observes all applicable corporate formalities in all material respects, (ii) a limited liability company, observes all applicable limited liability company formalities in all material respects, and (iii) a limited partnership, observes all applicable limited partnership formalities in all material respects, (m) except as contemplated under the Loan Documents, does not commingle its assets with those of any other Person and holds such assets in its own name, (n) except as set forth in the Loan Documents, does not assume, guarantee or become obligated for the debts of any other Person, and does not hold out its credit as being available to satisfy the obligations or securities of others, (o) does not acquire

obligations or securities of its shareholders, members or partners (other than the Gaming Equipment Facility Agreements), (p) except as set forth in the Loan Documents, does not pledge its assets for the benefit of any other Person and does not make any loans or advances to any Person (other than the Gaming Equipment Facility Agreements), (q) currently (i.e., as of the date of this Agreement) maintains, and intends to maintain adequate capital in light of its contemplated business operations from and to the extent of its revenues, (r) except in the case of ACEP Borrower and any Lessee Borrower, has two Independent Directors, or, in the case of limited partnership, has a Single-Purpose Equityholder with two Independent Directors, (s) except in the case of ACEP Borrower and any Lessee Borrower, has by-laws or an operating agreement, or, in the case of a limited partnership, has a Single-Purpose Equityholder with by-laws or an operating agreement, which provides that, for so long as the Loan is outstanding, such Person shall not take or consent to any of the following actions except to the extent expressly permitted in this Agreement and the other Loan Documents:

(i) the dissolution, liquidation, consolidation, merger or sale of all or substantially all of its assets (and, in the case of Single-Purpose Equityholder, the assets of Borrower);

(ii) the engagement by such Person in any business other than (w) in the case of Property Owner Borrower, the acquisition, financing, refinancing, holding, development, management, selling, leasing, transferring, exchanging, ownership, maintenance and operation of the Properties, and activities incidental thereto, (x) in the case of Lessee Borrower, the leasing, maintenance and operation of the Properties, and activities incidental thereto (y) in the case of ACEP Borrower, the operation of the Properties and the acquisition and ownership of its ownership interests in Property Owner Borrower and Property Owner Borrower GP, and activities incidental thereto and (z) in the case of a Single-Purpose Equityholder, activities incidental to its role as the sole general partner or managing member, as the case may be, of Borrower;

(iii) the filing, or consent to the filing, of a bankruptcy or insolvency petition, any general assignment for the benefit of creditors or the institution of any other insolvency proceeding, or the seeking or consenting to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official in respect of such Person without the affirmative vote of both of its Independent Directors (and, in the case of a Single-Purpose Equityholder, in respect of Borrower without the affirmative vote of both of such Single-Purpose Equityholder’s Independent Directors); and

(iv) any amendment or modification of any provision of its (and, in the case of a Single-Purpose Equityholder, Borrower’s) organizational documents relating to qualification as a “Single-Purpose Entity”,

and (u) except in the case of ACEP Borrower and any Lessee Borrower, if such entity is a Single Member LLC, has organizational documents which provide that upon the occurrence of any event (other than a permitted equity transfer) that causes its sole member to cease to be a member while the Loan is outstanding, to the fullest extent permitted by law, the personal representative of such member shall be authorized to, and shall, within 90 days after the occurrence of the event that terminated the continuing membership of such member in the Single

Member LLC, agree in writing (i) to continue the existence of the Single Member LLC without dissolution and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Single Member LLC.

“Single-Purpose Equityholder” means an entity that both (i) is a Single-Purpose Entity that is a limited liability company or corporation formed under the laws of the State of Delaware or the State of Nevada and (ii) serves as the general partner or managing member of Borrower, it being understood that in no event shall ACEP Borrower be required to have Single-Purpose Equityholder.

“Sponsor” means Whitehall Street Global Real Estate Limited Partnership 2007, a Delaware limited partnership.

“Spread” means one thousand basis points (10.00%).

“Spread Maintenance Amount” means:

(i) with respect to the period commencing on the Closing Date to but excluding the second anniversary of the Closing Date, the product of (1) 1/360, times (2) the Spread, times (3) the number of days from and including the date of prepayment through and second anniversary of the Closing Date, times (4) the amount repaid;

(ii) with respect to the period commencing on the second anniversary of the Closing Date to but excluding the third anniversary of the Closing Date, 1.5% of the amount repaid;

(iii) with respect to the period commencing on the third anniversary of the Closing Date to but excluding the fourth anniversary of the Closing Date, 0.5% of the amount repaid; and

(iv) with respect to the period commencing on the fourth anniversary of the Closing Date to but excluding the Maturity Date, zero.

“Spread Maintenance Period” means the period from the Closing Date to but excluding the fourth anniversary of the Closing Date.

“Stratosphere” means the Property described on Schedule A-1, together with all buildings and improvements thereon.

“Stratosphere Excess Land” means, collectively, all of the Release Parcels together with all buildings and improvements thereon.

“Subordination of Operating Lease Agreement” means those certain Subordination of Operating Lease Agreements, dated as of the Closing Date, by each Lessee Borrower for the benefit of Lender.

“Subordination of Property Management Agreement” means those certain consents and agreements of manager and subordinations of management agreements that may be

executed by an Approved Property Manager from time to time, if any, as the same may from time to time be modified or replaced in accordance herewith, substantially in the form attached hereto as Exhibit D.

“Surplus Cash Amortization Reserve Account” has the meaning set forth in Section 3.5(a).

“Tax and Insurance Reserve Account” has the meaning set forth in Section 3.4(a).

“Taxes” means all real estate and personal property taxes, assessments, fees, taxes on rents or rentals, water rates or sewer rents, facilities and other governmental, municipal and utility district charges or other similar taxes or assessments now or hereafter levied or assessed or imposed against the Properties or Borrower with respect to the Properties or rents therefrom or which may become Liens upon any of the Properties, without deduction for any amounts reimbursable to Borrower by third parties.

“Tenant” means any Person liable by contract or otherwise to pay monies (including a percentage of gross income, revenue or profits) pursuant to a Lease.

“Tenant Improvements” means, collectively, (i) tenant improvements to be undertaken for any Tenant which are required to be completed by or on behalf of Property Owner Borrower pursuant to the terms of such Tenant’s Lease, and (ii) tenant improvements paid or reimbursed through allowances to a Tenant pursuant to such Tenant’s Lease.

“Test Period” means each 12-month period ending on the last day of a Fiscal Quarter.

“Trade Payables” means unsecured amounts payable by or on behalf of Borrower for or in respect of the operation of the Properties in the ordinary course and which would under GAAP be regarded as ordinary expenses, including amounts payable to suppliers, vendors, contractors, mechanics, materialmen or other Persons providing property or services to the Properties or Borrower and the capitalized amount of any ordinary-course financing leases.

“Transaction” means, collectively, the transactions contemplated by the Loan Documents.

“Transaction Costs” means the costs and expenses described in Section 9.17.

“Transfer” means (i) with respect to the Properties, the sale or other whole or partial conveyance of all or any portion of any of the Properties or any direct or indirect interest therein to a third party, including granting of any purchase options, rights of first refusal, rights of first offer or similar rights in respect of any portion of such Property or the subjecting of any portion of such Property to restrictions on transfer; except that the conveyance of a space lease at such Property in accordance herewith shall not constitute a Transfer and (ii) with respect to the Equity Collateral, unless expressly permitted hereunder, the pledge, sale or other whole or partial conveyance to a third party of either or both of (x) the Equity Collateral or any direct or indirect interest therein (other than any pledge, sale or other whole or partial conveyance of direct or indirect equity interests in Whitehall) and/or (y) the transfer of any other direct interest in

Property Owner Borrower or Property Owner Borrower GP. For the avoidance of doubt, neither (i) transfers of direct and indirect equity interests in ACEP Borrower (including, without limitation, transfers of interests in W2007/ACEP Holdings, LLC) to the extent not constituting a Change of Control hereunder, nor (ii) equity pledges to the extent not prohibited under Section 7.1(f) shall constitute a “Transfer” hereunder.

“Unanimous Action” means (i) any Unanimous Modification, (ii) any determination with respect to the disposition of Hazardous Substances at any of the Properties, (iii) any instruction to the Cash Management Bank or a bank at which a Blocked Account or Pledged Operating Account is held to release amounts to any Borrower, except in accordance with the terms of this Agreement or any other Loan Document, (iv) the subordination of any lien created pursuant to the terms of this Agreement or any of the other Loan Documents, (v) any amendment to any single purpose entity provisions contained in this Agreement or any of the other Loan Documents (including, without limitation, any modification of the definition of “Single-Purpose Entity” and/or “Independent Director”), or the approval of any amendment of the operating agreement of any Borrower relating to the single-purpose entity provisions or Independent Director provisions contained therein, (vi) any Assumption and (vii) any disbursement to Borrower pursuant to Section 3.5(c).

“Unanimous Modification” means any written amendments, supplements or modifications to, or waivers of, this Agreement and/or to the other Loan Documents (including amendments and restatements hereof or thereof) that:

(i) forgive or reduce the Principal Indebtedness or extend the Maturity Date;

(ii) forgive or reduce the amount of, or the stated rate of, any interest or fee payable under the Loan Documents;

(iii) extend the scheduled date of any payment of principal, interest or fees or change the order of application of any amounts paid by Borrower;

(iv) release Borrower from its obligation to repay the Loan or any of Borrower’s material obligations under the Loan Documents;

(v) release any portion of the Collateral which secures the Loan, except pursuant to the terms hereof and the other Loan Documents;

(vi) amend, modify or waive any provision of Section 9.3 or this definition;

(vii) amend or modify the definition of “Required Lenders”

(viii) consent to the assignment or transfer by Borrower of any of its rights and obligations under the Loan Documents;

(ix) amend, modify or waive any provision of Article VII (except Section 7.1(e)); or

(x) impose restrictions on assignments and participations that are more restrictive than, or additional to, those set forth in Section 9.7 without the consent of each Lender directly affected thereby.

“Use” means, with respect to any Hazardous Substance, the generation, manufacture, processing, distribution, handling, use, treatment, recycling or storage of such Hazardous Substance or transportation of such Hazardous Substance.

“U.S. Person” means a United States person within the meaning of Section 7701(a)(30) of the Code.

“U.S. Tax” means any present or future tax, assessment or other charge or levy imposed by or on behalf of the United States of America or any taxing authority thereof that is not an Excluded Tax.

“Whitehall” means, individually or collectively, as the context may require, W2007 Finance Sub, LLC and Whitehall Parallel Global Real Estate Limited Partnership 2007.

“Working Capital Excess” means the amount by which the aggregate funds on deposit in the Pledged Operating Accounts (excluding amounts contained in the Equity Contribution Account) exceeds the Minimum Working Capital Amount.

(b) Rules of Construction. All references to sections, schedules and exhibits are to sections, schedules and exhibits in or to this Agreement unless otherwise specified. Unless otherwise specified: (i) all meanings attributed to defined terms in this Agreement shall be equally applicable to both the singular and plural forms of the terms so defined, (ii) “including” means “including, but not limited to”, (iii) “mortgage” means a mortgage, deed of trust, deed to secure debt or similar instrument, as applicable, and “mortgagee” means the secured party under a mortgage, deed of trust, deed to secure debt or similar instrument, (iv) references to Payment Dates that fall in specified months ignore the preceding Business Day convention and (v) each reference to “Borrower”, “Lessee Borrower”, “Casino Lessee Borrower”, “Hotel Lessee Borrower” and “Property Owner Borrower” shall mean such Borrowers collectively and/or individually, as the context may logically require. All accounting terms not specifically defined in this Agreement shall be construed in accordance with GAAP, as same may be modified in this Agreement; provided, however, that with respect to the application of GAAP to the calculation of DSCR and Debt to EBITDA, such calculations shall be made in accordance with GAAP as in existence as of the date hereof. For the avoidance of doubt, any breach of a covenant or representation hereunder by any individual Borrower, or any Event of Default caused by any individual Borrower, shall, in each case, constitute a breach or Event of Default, as the case may be, by each and every Borrower hereunder. Any reference herein to an Agent taking, or refraining from taking, an action in its sole or reasonable discretion shall be construed to mean that such Agent shall take or refrain from taking such action at the direction of the Required Lenders at Required Lenders’ sole or reasonable discretion, as the case may be.

ARTICLE I

GENERAL TERMS

1.1. The Loan. On the Closing Date, subject to the terms and conditions of this Agreement, Lender shall make a loan to Borrower (the “Loan”) in an amount equal to the Loan Amount. The Loan shall initially be represented by a single Note which shall bear interest as described in this Agreement at a per annum rate as provided in Section 1.3(a). The Loan shall be secured by the Collateral.

1.2. The Term. The Maturity Date of the Loan shall be the Payment Date in June 2014, or such earlier date as may result from acceleration in accordance with this Agreement.

1.3. Interest and Principal.

(a) Commencing with the Initial Payment Date and on each and every Payment Date thereafter, Borrower shall pay to Administrative Agent for the benefit of Lender interest on the Principal Indebtedness for the Interest Accrual Period in which such Payment Date falls at a rate per annum equal to the Applicable Interest Rate (except that interest shall be payable on the Indebtedness, including due but unpaid interest, at the Default Rate with respect to any portion of such Interest Accrual Period falling during the continuance of an Event of Default). Interest payable hereunder shall be computed on the basis of a 360-day year and the actual number of days elapsed. Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 1.3 on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day).

(b) No prepayments of the Loan shall be permitted except as provided in Sections 2.1, 2.2, 3.9(c), 5.16(e). The entire outstanding Principal Indebtedness, together with all interest thereon through the end of the Interest Accrual Period in which the applicable Maturity Date falls (calculated as if such Principal Indebtedness were outstanding for the entire Interest Accrual Period) and all other amounts then due under the Loan Documents shall be due and payable by Borrower to Administrative Agent, for the benefit of Lender, on the applicable Maturity Date.

(c) Other than in the case of payments in respect of principal due on the Maturity Date or upon acceleration of the Loan hereunder, any payments of interest not paid when due hereunder shall bear interest at the applicable Default Rate and, when paid, shall be accompanied by a late fee in an amount equal to 2% times the amount of such late payment. Borrower acknowledges that (i) a delinquent payment will cause damage to Lender; (ii) the late fee is intended to compensate Lender for the loss of use of the delinquent payment and the expense incurred and time and effort associated with recovering the delinquent payment; (iii) it will be extremely difficult and impractical to ascertain the extent of Lender’s damages caused by the delinquency; and (iv) the late fee represents Lender’s and Borrower’s reasonable estimate of Lender’s damages from the delinquency and is not a penalty.

(d) Whenever in this Agreement Borrower is required to make a payment to any Lender, whether a payment of interest, principal or otherwise, Borrower will have satisfied its obligation upon making such payment to the Administrative Agent for the benefit of Lender.

(e) Administrative Agent shall have no duty, liability or obligation to calculate any amounts due by the Borrower under this Agreement and the Loan Documents, including, without limitation, the amounts of interest due to the Lender on any Payment Date.

(f) Administrative Agent shall only be obligated to transfer any amounts to the Lender if and to the extent Administrative Agent has actually received such amounts from Borrower or a Collateral Account in accordance with the terms of the Loan Documents.

1.4. Determination of Interest Rate.

(a) Subject to the terms and conditions of this Section 1.4, the Loan shall be a LIBOR Loan and Borrower shall pay interest on the Principal Indebtedness at the LIBOR Rate of Interest for the applicable Interest Accrual Period. Each determination by the Administrative Agent of the Applicable Interest Rate shall be made in accordance with the provisions of this Agreement and shall be conclusive and binding for all purposes, absent manifest error.

(b) In the event that Lender shall determine (which determination shall be conclusive and binding upon Borrower absent manifest error) that by reason of circumstances affecting the interbank eurodollar market, adequate and reasonable means do not exist for ascertaining LIBOR, then Administrative Agent shall give notice to Borrower by telephone of such determination, confirmed in writing as promptly as practicable, but in any event at least one Business Day prior to the last day of the related Interest Accrual Period. If such notice is given, the related outstanding LIBOR Loan (including any and all portions thereof held by Lender pursuant to an Assignment or participation) shall be converted to a Prime Rate Loan as of the last day of the then current Interest Accrual Period.

(c) If, pursuant to the terms of this Agreement, any portion of the Loan has been converted to a Prime Rate Loan and Lender shall determine (which determination shall be conclusive and binding upon Borrower absent manifest error) that the event(s) or circumstance(s) which resulted in such conversion shall no longer be applicable, Administrative Agent shall give notice of such determination to Borrower and to each Lender by telephone, confirmed in writing as promptly as practicable, but in any event at least two Business Days prior to the last day of the related Interest Accrual Period. If such notice is given, the related outstanding Prime Rate Loan shall be converted to a LIBOR Loan as of the last day of the then current Interest Accrual Period.

(d) If at any time after the date hereof any law is adopted or changed or the interpretation or application thereof is changed, and the effect of same is to make it unlawful for Lender to maintain a LIBOR Loan as contemplated hereunder and the events giving rise thereto affect similarly situated banks or financial institutions generally, (i) Lender shall thereafter have no obligation to convert a Prime Rate Loan to a LIBOR Loan and (ii) any outstanding LIBOR Loan shall be converted automatically to a Prime Rate Loan as of the last day of the then-current Interest Accrual Period or within such earlier period as required by law.

1.5. Interest Rate Cap Agreements.

(a) On or prior to the 60^th day following the date hereof (or such earlier date as may be determined by the Required Lenders in their sole discretion, which date shall be not less than ten days after Borrower’s receipt of written notice from the Required Lenders), Borrower shall obtain, and thereafter maintain in effect (unless replaced pursuant to Section 1.5(e) below), an Interest Rate Cap Agreement, which shall cover the period from the date such Interest Rate Cap Agreement is obtained to but excluding the second anniversary of the Closing Date and have a notional amount that is not less than the Principal Indebtedness. On or prior to the second anniversary of the Closing Date, Borrower shall obtain, and thereafter maintain in effect (unless replaced pursuant to Section 1.5(e) below), an Interest Rate Cap Agreement, which shall cover the period from such second anniversary of the Closing Date to and including the third anniversary of the Closing Date and have a notional amount that is not less than the Principal Indebtedness. On or prior to the third anniversary of the Closing Date, Borrower shall obtain, and thereafter maintain in effect (unless replaced pursuant to Section 1.5(e) below), an Interest Rate Cap Agreement, which shall cover the period from such third anniversary of the Closing Date to and including the fourth anniversary of the Closing Date and have a notional amount that is not less than the Principal Indebtedness. On or prior to the fourth anniversary of the Closing Date, Borrower shall obtain, and thereafter maintain in effect (unless replaced pursuant to Section 1.5(e) below), an Interest Rate Cap Agreement, which shall cover the period from such fourth anniversary of the Closing Date to and including the Maturity Date and have a notional amount that is not less than the Principal Indebtedness. Any Interest Rate Cap Agreement shall have a LIBOR strike rate equal to or less than the LIBOR Strike Rate. Failure to obtain any such Interest Rate Cap Agreement on or prior to the respective date set forth above shall constitute an immediate Event of Default.

(b) Immediately following its acquisition of each Interest Rate Cap Agreement, Borrower shall collaterally assign to Collateral Agent, for the benefit of Lender, pursuant to an Assignment of Interest Rate Cap Agreement all of its right, title and interest in any and all payments under such Interest Rate Cap Agreement and shall deliver to Collateral Agent an executed counterpart of such Interest Rate Cap Agreement and obtain the consent of the Acceptable Counterparty to such collateral assignment (as evidenced by the Acceptable Counterparty’s execution of such Assignment of Interest Rate Cap Agreement).

(c) Borrower shall comply with all of its obligations under the terms and provisions of each Interest Rate Cap Agreement. All amounts paid under an Interest Rate Cap Agreement shall be deposited directly into the Cash Management Account. Borrower shall take all actions reasonably requested by Administrative Agent to enforce Lender’s and Collateral Agent’s rights under each Interest Rate Cap Agreement in the event of a default by the counterparty thereunder and shall not waive, amend or otherwise modify any of its material rights thereunder.

(d) If, at any time during the term of the Loan, the counterparty to the Interest Rate Cap Agreement then in effect ceases to be an Acceptable Counterparty and thereafter fails to abide by the requirements set forth in such Interest Rate Cap Agreement with respect to ratings downgrades, then Borrower shall promptly obtain a replacement Interest Rate Cap Agreement satisfying the requirements set forth in paragraph (a) above with a counterparty that

is an Acceptable Counterparty, which replacement Interest Rate Cap Agreement shall be collaterally assigned to Collateral Agent as set forth in paragraph (b) above.

(e) At Closing and at any time that Borrower obtains a replacement Interest Rate Cap Agreement pursuant to this Section 1.5, Borrower shall cause to be delivered to Administrative Agent a legal opinion or opinions from counsel to the applicable Acceptable Counterparty (which counsel may be internal counsel) in form and substance reasonably satisfactory to Lender.

(f) Borrower may, without the consent of Lender or any Agent, cause the notional amount of the Interest Rate Cap Agreements required pursuant to Sections 1.5 to be reduced, dollar-for-dollar, by any actual prepayment of the Loan made in accordance herewith and Collateral Agent shall, at the direction of Required Lenders and at Borrower’s sole cost and expense, cooperate with Borrower in effecting such reduction, provided that the notional amount thereof shall at no time be less than the Principal Indebtedness.

(g) Collateral Agent shall have no duty, obligation or liability under this Section 1.5 other than to receive any Assignment of Interest Rate Cap Agreement delivered by Borrower. Without limiting the generality of the foregoing, Collateral Agent shall not be required to request any Assignment of Interest Rate Cap Agreement, to monitor Borrower’s compliance with the terms of any such agreement or to review the terms of any such agreement.

1.6. Method and Place of Payment. Except as otherwise specifically provided in this Agreement, all payments and prepayments under this Agreement and the Notes (including any deposit into the Cash Management Account pursuant to Section 3.2(c) and any reserve deposits required hereunder) shall be made to Administrative Agent for the benefit of Lender not later than 11:00 a.m., New York City time, on the date when due and shall be made in lawful money of the United States of America by wire transfer in federal or other immediately available funds to the account specified from time to time in a writing by Administrative Agent to Borrower. Any funds received by Administrative Agent after such time shall be deemed to have been paid on the next succeeding Business Day. Administrative Agent shall notify Borrower in writing of any changes in the account to which payments are to be made. If the amount received from the Cash Management Account pursuant to Section 3.2(b) is less than the sum of all amounts then due and payable or required to be deposited hereunder, such amount shall be applied, at Lender’s sole discretion, either toward the components of the Indebtedness (e.g., interest, principal and other amounts payable hereunder) and the Notes in such sequence as Lender shall elect in its sole discretion (subject, as between the holders of the Notes, to any intercreditor agreement), or toward the payment of Taxes, Property Operating Expenses, FF&E and Capital Expenditures. Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 1.6, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day).

1.7. Regulatory Change. If, as a result of any Regulatory Change, any reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with, any Lender is imposed, modified or deemed applicable and the result is to increase the cost to such Lender of making LIBOR-based loans, or to reduce the amount

receivable by Lender hereunder in respect of any portion of the Loan with respect to LIBOR-based loans by a material amount (such increases in cost and reductions in amounts receivable, “Increased Costs”), then Borrower agrees that it will pay to Lender upon Lender’s request such additional amount or amounts (based upon a reasonable allocation thereof by such Lender to the LIBOR-based loans made by such Lender) as will compensate such Lender for such Increased Costs to the extent that such Increased Costs are reasonably allocable to the Loan. Lender will notify Borrower in writing of any event occurring after the Closing Date which will entitle Lender to compensation pursuant to this Section 1.7 as promptly as practicable after it obtains knowledge thereof and determines to request such compensation and will designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. If such Lender shall fail to notify Borrower of any such event within 90 days following the end of the month during which such event occurred, then Borrower’s liability for any amounts described in this Section 1.7 incurred by such Lender as a result of such event shall be limited to those attributable to the period occurring subsequent to the 90th day prior to the date upon which such Lender actually notified Borrower of the occurrence of such event. Notwithstanding the foregoing, in no event shall Borrower be required to compensate any Lender (i) for any portion of the income or franchise taxes of Lender, whether or not attributable to payments made by Borrower and (ii) unless the events giving rise to such compensation affect similarly situated banks or financial institutions generally and are not applicable to such lender solely or primarily by reason of such lender’s particular conduct or condition. If a Lender requests compensation under this Section 1.7, Borrower may, by notice to Lender, require that such Lender furnish to Borrower a statement setting forth in reasonable detail the basis for requesting such compensation and the method for determining the amount thereof. This Section 1.7 shall apply only with respect to any portion of the Loan that is not contained in a Securitization. This Section 1.7 shall not apply to a regulatory change with respect to any taxes (including, but not limited to, U.S. Taxes).

1.8. Taxes.

(a) Borrower agrees to indemnify Lender and Agents against any present or future stamp, documentary or other similar or related taxes or other similar or related charges now or hereafter imposed, levied, collected, withheld or assessed by any United States Governmental Authority by reason of the execution and delivery of the Loan Documents and any consents, waivers, amendments and enforcement of rights under the Loan Documents.

(b) If Borrower is required by law to withhold or deduct any amount from any payment hereunder in respect of any U.S. Tax, Borrower shall withhold or deduct the appropriate amount, remit such amount to the appropriate Governmental Authority and pay to each Person to whom there has been an Assignment or Participation of a Loan and who is not a U.S. Person such additional amounts as are necessary in order that the net payment of any amount due to such non-U.S. Person hereunder after deduction for or withholding in respect of any U.S. Tax imposed with respect to such payment (or in lieu thereof, payment of such U.S. Tax by such non-U.S. Person), will not be less than the amount stated in this Agreement to be then due and payable; except that the foregoing obligation to pay such additional amounts shall not apply (i) to the extent that Borrower would be required to withhold or deduct any U.S. Tax if a payment to an assignee would be made on the date of the Assignment or Participation (for the avoidance of

doubt, Borrower shall not be required to pay any additional amounts under this Section 1.8(b) to the extent that the rate of withholding or payments to an assignee on any Payment Date is equal to or less than the rate of withholding that would apply to payments to such assignee if a payment was made on the date of such Assignment or Participation), (ii) to any assignee that has not complied with the obligations contained in Section 9.7(c), (iii) to any U.S. Taxes imposed solely by reason of the failure by such Person (or, if such Person is not the beneficial owner of the relevant Loan, such beneficial owner) to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of such Person (or beneficial owner, as the case may be) if such compliance is required by statute or regulation of the United States of America as a precondition to relief or exemption from such U.S. Taxes; or (iv) with respect to any Person who is a fiduciary or partnership or other than the sole beneficial owner of such payment, to any U.S. Tax imposed with respect to payments made under any Note to a fiduciary or partnership to the extent that the beneficial owner or member of the partnership would not have been entitled to the additional amounts if such beneficial owner or member of the partnership had been the holder of the Note. Within 30 days after paying any amount from which it is required by law to make any deduction or withholding, and within 30 days after it is required by law to remit such deduction or withholding to any relevant taxing or other authority, Borrower shall deliver to such non-U.S. Person satisfactory evidence of such deduction, withholding or payment (as the case may be). This Section 1.8(b) shall apply only with respect to any portion of the Loan that is not contained in a Securitization.

1.9. Release.

(a) Upon (i) payment of the Indebtedness in full when permitted or required hereunder or (ii) release of any Property pursuant to Section 2.2, Section 2.4 or Section 7.1(n) hereunder, Collateral Agent shall, at Borrower’s sole cost and expense, execute and deliver to Borrower instruments requested by Borrower for filing in the applicable jurisdictions, prepared by Borrower and reasonably acceptable to Administrative Agent, to, at Borrower’s election: (1) release and discharge the Liens of the Loan Documents on all Collateral (or the applicable portion thereof in the case of a release of less than all of the Properties pursuant to the terms of this Agreement), securing payment of the Indebtedness (or such applicable portion thereof in the case of a release of less than all of the Properties pursuant to the terms of this Agreement) (in each case subject to Borrower’s obligation to pay any associated fees and expenses), including all balances in the Collateral Accounts and the return of any Qualified Letters of Credit (or such applicable portion thereof in the case of the release of less than all of the Properties pursuant to the terms of this Agreement); or (2) (x) in the case of a prepayment in full of the Indebtedness, assign the Mortgage to a new lender designated by Borrower and endorse the Notes (and any other applicable Loan Documents), to a new lender designated by Borrower or, (y) in the case of a release of less than all of the Properties pursuant to the terms of this Agreement, assign the Mortgage to a new lender designated by Borrower and sever the Notes, at Borrower’s sole cost and expense, into multiple Notes, such that a separate Note or Notes shall represent the Allocated Loan Amount of the Property or Properties released pursuant to the terms of this Agreement and the other Note or Notes shall represent the Principal Indebtedness after giving effect to such release, and assign the Note(s) representing the Allocated Loan Amount of the Property or Properties released to a new lender designated by Borrower. In addition, if there is Intellectual Property pledged as Collateral used by more than one Property (“Shared Intellectual Property”),

upon the release of the Liens pursuant to the foregoing sentence on the majority of the Properties for which such Shared Intellectual Property is used, at Borrower’s election, Collateral Agent shall, at Borrower’s sole cost and expense, execute and deliver to Borrower instruments requested by Borrower for filing in the applicable jurisdictions, prepared by Borrower and reasonably satisfactory to Borrower and Lender, to release such Shared Intellectual Property from the Liens under the Loan Documents, provided that prior to such execution and delivery, Borrower shall deliver to Administrative Agent a license reasonably satisfactory to Required Lenders, that includes a non-exclusive, perpetual, irrevocable, worldwide (to the extent Borrower has the ability to grant a worldwide license), royalty-free, sublicenseable (to vendors, contractors, or other third parties providing services to Borrower or its Affiliates or otherwise involved in the operation of the business of Borrower or its Affiliates) and non-transferable (except in the event of a foreclosure or an Event of Default for a specific Property, in which case such license shall become freely assignable and transferable to any Person involved in the operation of such Property) right to use such Intellectual Property in connection with the operation of the remaining Co-Borrowers’ Properties (including the right to disclose and share such data in connection therewith subject to reasonable confidentiality restrictions as may be appropriate to protect trade secret status, as applicable), except to the extent the foregoing would violate or breach any legal or contractual restriction unless and until such legal or contractual restriction is rendered ineffective pursuant to Part 4 of Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction, and such license is pledged to Collateral Agent as additional Collateral in a manner reasonably satisfactory to Lender.

(b) Whether or not expressly stated herein or in any other Loan Document, in connection with (i) any release, discharge, assignment, transfer or any similar action under the Loan Documents, in whole or in part, with respect to the Liens of the Loan Agreement and/or the other Loan Documents on the Collateral and (ii) the execution and delivery by the Collateral Agent of any instruments or other documents, and/or the taking of any other action by the Collateral Agent, in connection therewith, the Collateral Agent shall be entitled to receive (A) a written direction from the Required Lenders and (B) an Officer’s Certificate from Borrower stating that (x) the release, discharge, assignment, transfer or other action and (y) the execution and delivery and/or other action to be taken by the Collateral Agent each complies with the terms of the Loan Documents and that all conditions precedent thereto (other than discretionary actions or determinations of the Lender) provided in the Loan Documents have been complied with.

ARTICLE II

VOLUNTARY PREPAYMENT; ASSUMPTION

2.1. Voluntary Prepayment; Mandatory Prepayment.

(a) Borrower may voluntarily prepay the Loan in whole or in part on any Business Day (and shall prepay the Loan pursuant to Section 3.5(d) and in connection with the release of any Property pursuant to Section 2.2), except that no prepayments shall be permitted during the last two Business Days in any Interest Accrual Period unless such prepayment is accompanied by interest in respect of the next succeeding Interest Accrual Period as set forth in the next sentence. Each such prepayment shall be accompanied by (i) the amount of interest theretofore accrued but unpaid in respect of the principal amount so prepaid; plus (ii) the amount

of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period in which such prepayment is made (plus, without duplication, in the case of a prepayment during the last two Business Days during an Interest Accrual Period, the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period following the Interest Accrual Period in which such prepayment is made); and for avoidance of doubt, no interest shall be payable in respect of the amount so prepaid after payment of the amounts set forth herein on the date of such prepayment. In addition, if such prepayment is made during the Spread Maintenance Period, such prepayment shall be accompanied by the applicable Spread Maintenance Amount; provided, however, that no Spread Maintenance Amount shall be payable with respect to (x) the first $50 million of prepayments in the aggregate that are made in connection with releases of Properties pursuant to Section 2.2 or (y) any prepayment of the Loan made pursuant to Section 3.5(d), except for any portion thereof constituting a Borrower Election Amount for which the applicable Spread Maintenance Amount shall be payable.

In the event that Borrower makes a prepayment of the Loan in accordance with the provisions of this Agreement on a Business Day that falls from and including the second to last day in an Interest Accrual Period to but excluding the first succeeding Interest Determination Date immediately following such Payment Date (each such period, an “Assumed Note Rate Period”), it may be impossible for Borrower and Lender to calculate with certainty the interest that would have accrued at the applicable interest rate on the amount then prepaid through the end of the Interest Accrual Period whose LIBOR or Prime Rate, as the case may be, is determined on such Interest Determination Date. Accordingly, in the event that any portion of the Loan is prepaid during an Assumed Note Rate Period, the interest that would have accrued on such prepaid amount at the applicable Interest Rate through the end of such Interest Accrual Period shall be estimated based on an interest rate (the “Assumed Note Rate”) equal to (1) in the case of a LIBOR Loan, the sum of (i) LIBOR calculated in accordance with the definition of “LIBOR” herein, but assuming that the Interest Determination Date used in such definition is the date that is two Business Days prior to the date on which such prepayment is made, plus (ii) the applicable Spread, plus (iii) 1.00% , or (2) in the case of a Prime Rate Loan, the sum of (i) the Prime Rate calculated in accordance with the definition of “Prime Rate” herein, but assuming that the Interest Determination Date used in such definition is the date that is two Business Days prior to the date on which such prepayment is made, plus (ii) the applicable Prime Rate Spread, plus (iii) 1.00% (the amount of interest prepaid based on either of the foregoing calculations, the “Assumed Note Rate Payment”). Thereafter, on the Interest Determination Date for the applicable Interest Accrual Period, Lender shall determine LIBOR or the Prime Rate, as the case may be, with respect to such Interest Accrual Period in accordance with the definition of “LIBOR” or “Prime Rate”, as the case may be, set forth herein. If it is determined by Lender that LIBOR or the Prime Rate, as the case may be, as so determined for the applicable Interest Accrual Period plus the applicable Spread or Prime Rate Spread, as the case may be, is less than the Assumed Note Rate, Lender shall credit against the amount payable to Lender by Borrower on the next succeeding Payment Date an amount (without interest) equal to the difference between (x) the Assumed Note Rate Payment and (y) the amount of interest which would have been payable on the prepaid amount based on LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date. Alternatively, in the event that it is determined

that LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date plus the Spread or the Prime Rate Spread, as the case may be, is greater than the Assumed Note Rate, Borrowers shall pay to Administrative Agent, for the benefit of Lender, without additional interest or other late charges or penalties on the Payment Date that falls during such Interest Accrual Period an amount equal to the difference between (x) the amount of interest which would have been payable on the prepaid amount based on LIBOR or the Prime Rate, as the case may be, as determined on the Interest Determination Date and (y) the Assumed Note Rate Payment.

(b) As a condition to any voluntary prepayment, Borrower shall give Administrative Agent written notice (a “Prepayment Notice”) of its intent to prepay, which notice must be given at least five Business Days and not more than 60 days prior to the Business Day upon which prepayment is to be made and must specify the Business Day on which such prepayment is to be made and the amount of such prepayment. If any such notice is given, then, subject to the immediately succeeding sentence, the amount specified in such notice will be due and payable on the date specified therein. Notwithstanding the foregoing, if no Event of Default is then continuing, such Prepayment Notice may be rescinded or amended by written notice to Administrative Agent (for example, to adjourn the prepayment date or the amount of such prepayment) without the need to once again comply with the Prepayment Notice time period requirements set forth in the first sentence of this Section 2.1(b); provided, however, no such amendment shall result in Administrative Agent having fewer than two Business Days advance notice of the newly proposed prepayment date, and any such newly proposed prepayment date shall not be more than 30 days after the prepayment date specified in the original Prepayment Notice, and provided further that Borrower shall compensate Lender and Agents for any and all Damages incurred by Lender, any Agent and/or their respective agents resulting from such rescission.

(c) If the Note has been bifurcated into multiple Notes, all voluntary prepayments of the Loan pursuant to this Section 2.1 shall be applied to the Notes on a pro rata basis.

(d) Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 2.1, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m. New York City time shall be deemed to have been received on the next succeeding Business Day.

2.2. Property Releases.

(a) So long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Property proposed to be released pursuant to Section 7.1(n)), any Co-Borrower may obtain the release of the Property owned by such Co-Borrower from the Liens of the Loan Documents and the release of such Co-Borrower from any and all of its obligations under this Agreement and the other Loan Documents and such Property may be Transferred (whether directly or indirectly by transferring the ownership interests in the Co-Borrower that owns such Property) to an unaffiliated third

party in a bona fide arms-length transaction (except that, if the release is being effectuated pursuant to the provisions of Section 7.1(n), Borrower may Transfer such Property to an Affiliate of Borrower) upon satisfaction of the following conditions:

(i) Borrower shall deliver to Administrative Agent and Collateral Agent notice (a “Release Notice”) of its intent to release one or more of the Properties, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made, shall specify the Property or Properties that Borrower intends to release and shall be executed by each Borrower. Borrower shall promptly reimburse Lender, Administrative Agent and Collateral Agent for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel) incurred by any of them in connection with a release pursuant to this Section 2.2.

(ii) At the time of such release, and as a condition thereto: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1, to the extent applicable; provided, however, that no Spread Maintenance Amount shall be payable with respect to the first $50,000,000 of prepayments in the aggregate that are made in connection with releases pursuant to this Section 2.2, Section 2.4, Section 2.5 and Section 7.1(n), (2) after giving effect to such release, Borrower shall not be in violation of Section 6.20 and (3) DSCR calculated for the Test Period ending as of the last day of the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or greater than DSCR calculated for the Test Period ending as of the last day of the Fiscal Quarter then most recently ended but without such recalculation; provided, however, that if the Release Price paid by Borrower pursuant to the foregoing clause (1) shall be equal to or greater than 105% of the Allocated Loan Amount for the Property being released, then the DSCR test described in this clause (3) shall not be a condition to the release of such Property.

(iii) In connection with a release of the Stratosphere, either (x) the Stratosphere Excess Land shall have theretofore been released or (y) Borrower shall cause the Stratosphere Excess Land to be released contemporaneously therewith in accordance with the requirements set forth herein.

(b) Subject to Section 1.9(b), immediately upon satisfaction of the requirements in Sections 2.1, 2.2, 2.4 or 7.1(n), as applicable, Collateral Agent shall, at Borrower’s sole cost and expense, execute and deliver to Borrower such instruments, prepared by Borrower and approved by Administrative Agent at the direction of Required Lenders (Lender agreeing, for the benefit of Borrower, that such approval, in the absence of an Event of Default (other than an Event of Default that would be eliminated after giving effect to the release of the Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Co-Borrower, the applicable Property

and the applicable portion of any other Collateral securing the Loan with respect to such Property and such Co-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to such Property and such Co-Borrower) from the Liens of the Loan Documents. Any Property and any Co-Borrower released pursuant to this Section 2.2, Section 2.4 or Section 7.1(n) shall, effective upon such release, no longer be deemed a “Property” or a “Co-Borrower”, respectively, for any purpose of this Agreement or the other Loan Documents. At Borrower’s request, Collateral Agent will promptly assign the portion of the Indebtedness secured by the portion of the Collateral to be released, as well as the applicable Mortgage encumbering such portion of the Collateral, to a third party specified by Borrower without representation or warranty (except that, if requested by Borrower, Lender shall join in such assignment for the express purpose of representing that (i) Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently with such assignment; and (iii) the full amount of the then-outstanding Indebtedness) in accordance with Section 1.9.

(c) Upon the release of a Property pursuant to this Section 2.2, Section 2.4, Section 2.5 and Section 7.1(n), Borrower shall have the right to apply any Reserve Excess to the prepayment of the Loan, subject to and in accordance with Section 2.1.

(d) Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 2.2, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m., New York City time shall be deemed to have been received on the next succeeding Business Day.

2.3 Prepayments after an Event of Default. Following the occurrence and during the continuance of an Event of Default, except to the extent that the Required Lenders shall have instructed Administrative Agent to apply amounts received by, or under the control of, Administrative Agent to the payment of (x) fees, reimbursable expenses and any other amounts due and payable to the Agents and (y) Taxes, Property Operating Expenses and Capital Expenditures pursuant to Section 7.4, all amounts received by Administrative Agent on account of the Indebtedness shall be disbursed by Administrative Agent within one Business Day of its receipt of such amounts as follows:

(i) First, to Administrative Agent and Collateral Agent, any fees due and payable to, together with expenses incurred by and all other amounts due to, such Agents in connection with the performance of their respective duties and the enforcement of the rights of Lender under the Loan Documents, including, without limitation, all costs and expenses of collection, reasonable attorneys’ fees, court costs and other amounts payable by Borrower as provided by this Agreement or any of the other Loan Documents;

(ii) Second, to each Lender, pro rata in accordance with their respective pro rata shares, until interest accrued on the Loan has been paid in full;

(iii) Third, to each Lender, pro rata in accordance with their respective pro rata shares, until the Principal Indebtedness has been reduced to zero; and

(iv) Fourth, to each Lender, any remaining amount owed to such Lender pursuant to the terms hereof multiplied by a fraction, the numerator of which is all remaining amounts owed to such Lender hereunder and the denominator of which is the aggregate of all remaining amounts due each Lender hereunder, until all such remaining amounts have been paid in full; and

(v) Finally, to the extent the Principal Indebtedness has been reduced to zero and all other amounts due and owing to Lender and Agents pursuant to this Agreement and the other Loan Documents have been paid in full, any remaining amounts to the Borrower or to any Person designated by Borrower.

The order of priority set forth in this Section 2.3 and the related provisions of this Agreement are set forth solely to determine the rights and priorities of Agents and each Lender as among themselves. The order of priority set forth in clauses (i) through (iv) of this Section 2.3 may at any time and from time to time be changed by the Required Lenders without necessity of notice to or consent of or approval by Borrower or any other Person; provided, however, that the order of priority with respect to clause (i) of this Section 2.3 may be changed only with the prior written consent of Administrative Agent and Collateral Agent.

2.4. Release of Release Parcels.

(a) Subject to Section 1.9(b), so long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Release Parcel proposed to be released pursuant to Section 7.1(n)), Borrower may obtain the release of a Release Parcel from the Liens of the Loan Documents in connection with the Transfer of such Release Parcel to either (x) an unaffiliated third party in a bona fide arms-length transaction or (y) an Affiliate of Borrower in an arms-length transaction at a fair market value purchase price (and Administrative Agent shall have the right, on behalf of Lender, to obtain an appraisal with respect to such Release Parcel at Borrower’s sole cost and expense), in each case, upon satisfaction of the following conditions:

(i) Borrower shall deliver to Administrative Agent and Collateral Agent notice of its intent to release one or more of the Release Parcels, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made and shall specify the Release Parcel(s) that Borrower intends to release. Borrower shall promptly reimburse Lender, Administrative Agent and Collateral Agent for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel) incurred by any of them in connection with a release pursuant to this Section 2.4.

(ii) At the time of such release, Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1; provided, however, that no Spread Maintenance Amount shall be payable with respect to the first $50,000,000 of

prepayments in the aggregate that are made in connection with releases of Properties or Release Parcels pursuant to Section 2.2, this Section 2.4, Section 2.5 and Section 7.1(n);

(iii) Borrower shall have delivered to Administrative Agent and Collateral Agent evidence satisfactory to the Required Lenders that (1) the applicable Release Parcel has been legally subdivided from the Remaining Property, a separate tax identification number shall have been issued for such Release Parcel and all necessary variances, if any, shall have been obtained (with the result that, upon the transfer and release of such Release Parcel, no part of the Remaining Property shall be part of a tax lot which includes any portion of such Release Parcel); (2) after giving effect to such transfer, each of the Release Parcel and the Remaining Property conforms to and is in compliance in all material respects with applicable Legal Requirements (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) and constitutes a separate tax lot, (3) the Release Parcel is not necessary for the Remaining Property to comply with any zoning, building, land use or parking or other Legal Requirements applicable to it or for the then current use of the Remaining Property, including without limitation for access, driveways, parking, utilities or drainage or, to the extent that the Release Parcel is necessary for any such purpose, a reciprocal easement agreement or other agreement has been executed and recorded that would allow the owner of the Remaining Property to continue to use the Release Parcel (at no cost or expense to Borrower) to the extent necessary for such purpose, and (4) with respect to the Overlapping Release Parcels, the lots have been demised to Required Lenders’ satisfaction in their sole discretion;

(iv) Borrower shall deliver to Administrative Agent an endorsement to the Qualified Title Insurance Policy insuring the Mortgage (1) extending the effective date of the policy to the effective date of the release; (2) confirming no change in the priority of the Mortgage on the Remaining Property (exclusive of the Release Parcel) or in the amount of the insurance or the coverage of the Property (exclusive of the Release Parcel) under the policy; and (3) insuring the rights and benefits under any new or amended reciprocal easement agreement or such other agreement required pursuant to clause (v)(3) of this Section that has been executed and recorded, if any;

(v) Borrower has complied with any requirements applicable to the release in the Leases, reciprocal easement agreements, operating agreements, parking agreements or other similar agreements affecting the Remaining Property and the release does not violate any of the provisions of such documents in any respect that would result in a termination (or give any other party thereto the right to terminate), extinguishment or other loss of material rights of Borrower or in a material increase in Borrower’s obligations under such documents and, to the extent necessary to comply with such documents, the transferee of the Release Parcel has assumed Borrower’s obligations, if any, relating to the Release Parcel under such documents;

(vi) ingress to and egress from all portions of the Remaining Property shall be over (i) physically open and fully dedicated public roads or (ii) vehicle and pedestrian

easements which (1) provide vehicular and pedestrian access to a physically open and fully dedicated public road, (2) are recorded in the chain of title to both the property which is encumbered thereby and the Remaining Property, (3) are irrevocable and nonterminable without the consent of the owner of the Remaining Property; and provided further that, if lawfully obtainable, Borrower delivers to Administrative Agent an endorsement to the Qualified Title Insurance Policy, which endorsement shall insure that (A) the benefit of each such easement inures and runs to the benefit of the owner of the Remaining Property, (B) the lien of the Mortgage is a first lien on Borrower’s beneficial interest in such easement, subject to no exceptions other than Permitted Encumbrances and those approved by Administrative Agent as directed by Required Lenders in their reasonable discretion and (C) no then-existing mortgages, liens, security interests or other encumbrances (other than Permitted Encumbrances) on the Release Parcel burdened by such easement are superior to, or under any circumstances could terminate, impair or limit the terms of such easement;

(vii) Borrower shall have delivered to Administrative Agent an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in this Section 2.4 have occurred or shall occur concurrently with the transfer and release of the applicable Release Parcel; and

(viii) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions.

(b) Notwithstanding anything to the contrary contained herein, Borrower shall not be permitted to (i) obtain the release of the parcels identified as Group 6 on Schedule E-2, without either previously or simultaneously obtaining the release of the parcels identified as Group 5 on Schedule E-2 and (ii) obtain the release of the parcels identified as Group 7 on Schedule E-2, without either previously or simultaneously obtaining the release of the parcels identified as Group 5 and Group 6 on Schedule E-2

(c) Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 2.4, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m. New York City time shall be deemed to have been received on the next succeeding Business Day.

2.5. Release of Second Floor Space.

(a) Subject to Section 1.9(b), so long as no Event of Default is then continuing, Borrower may either (i) enter into a master lease of the Second Floor Space with an unaffiliated third party or, subject to the reasonable consent of Administrative Agent, with a Person that is a joint venture in which an Affiliate of Borrower owns no more than (and is prohibited from owning any more than) a non-controlling 49% equity interest therein (“Qualified Joint Venture”), which master lease shall be on terms and conditions reasonably acceptable to Lender and shall provide, among other things, that any rent payable thereunder shall be paid directly into the Cash Management Account and that the uses permitted thereunder shall be

consistent with and not detrimental to or competitive with the operation of the Stratosphere (and, in connection with any such master lease, Borrower shall provide Lender adequate security for the completion of any construction or Alterations of the Second Floor Space, which security shall, at Lender’s option, be comprised of a completion guaranty, construction deposit, subguard insurance, bond and/or letter of credit covering the cost of such construction or Alterations) or (ii) obtain the release of the Second Floor Space from the Liens of the Loan Documents in connection with the Transfer of the Second Floor Space to an unaffiliated third party or, subject to the reasonable consent of Administrative Agent, with a Qualified Joint Venture, upon satisfaction of the following conditions:

(i) Borrower shall deliver to Administrative Agent and Collateral Agent notice of its intent to release the Second Floor Space, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made.

(ii) At the time of such release, Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the Second Floor Space Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1; provided, however, that no Spread Maintenance Amount shall be payable with respect to the first $50,000,000 of prepayments in the aggregate that are made in connection with releases pursuant to Section 2.2, Section 2.4, Section 2.5 and Section 7.1(n).

(iii) Borrower shall have delivered to Administrative Agent and Collateral Agent evidence satisfactory to the Required Lenders that (1) the Stratosphere is subject to a condominium declaration that complies with all Legal Requirements and that the Second Floor Space has been legally subdivided as a condominium unit separate and apart from the remainder of the Stratosphere, a separate tax identification number shall have been issued for such condominium unit and all necessary variances, if any, shall have been obtained (with the result that, upon the transfer and release of the Second Floor Space, no part of the Stratosphere shall be part of a tax lot which includes any portion of the Second Floor Space); (2) after giving effect to such transfer, each of the Second Floor Space condominium unit and the other condominium units comprising the Stratosphere conforms to and is in compliance in all material respects with applicable Legal Requirements (including, without limitation, all condominium, zoning and subdivision laws, parking ratio requirements, use requirements, building and fire code requirements and environmental requirements), (3) a reciprocal easement agreement or the equivalent, in each case reasonably acceptable to Administrative Agent, has been executed and recorded that would, among other things, allow the sharing of mechanical services, utilities and safety systems and provide for sufficient ingress and egress between the Second Floor Space condominium unit and the other condominium units comprising the Stratosphere;

condominium regime; (3) confirming no change in the priority of the Mortgage on the condominium units comprising the Stratosphere (exclusive of the Second Floor Space) or in the amount of the insurance or the coverage of the Property (exclusive of the Second Floor Space) under the policy; and (4) insuring the rights and benefits under the reciprocal easement agreement required pursuant to clause (iii)(3) of this Section that has been executed and recorded;

(v) the release does not violate any of the provisions of any Lease or Material Agreement, and the deed conveying the condominium unit comprising the Second Floor Space contains adequate restrictions on the use of such space, such that all such uses are consistent with and not detrimental to or competitive with the operation of the Property;

(vi) Borrower shall provide Lender adequate security for the completion of any construction or Alterations at the Second Floor Space, which security shall, at Lender’s option, be comprised of a completion guaranty, construction deposit, subguard insurance, bond and/or letter of credit covering the cost of such construction of Alterations;

(vii) Borrower shall have (x) obtained Lender’s advance written approval (not to be unreasonably withheld) of any agreement forming or relating to a Qualified Joint Venture, (y) pledged to Lender its interest in any Qualified Joint Venture as additional collateral for the Loan in a manner reasonably acceptable to Administrative Agent and (z) taken such actions and entered into such agreements as necessary to cause all income and/or distributions from any Qualified Joint Venture to be deposited into the Cash Management Account;

(viii) Borrower shall have delivered to Administrative Agent an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in this Section 2.5 have occurred or shall occur concurrently with the transfer and release of the applicable Release Parcel; and

(ix) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions.

Borrower shall promptly reimburse Lender, Administrative Agent and Collateral Agent for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel) incurred by any of them in connection with a master lease or release of the Second Floor Space pursuant to this Section 2.5.

(b) Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 2.5, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m. New York City time shall be deemed to have been received on the next succeeding Business Day.

2.6. Assumption. Subject to the advance written consent of the Administrative Agent in its sole discretion (which consent shall be granted or withheld at the written direction of the Required Lenders necessary for a Unanimous Action), the initial

Borrower may contemporaneously Transfer all of the Collateral to a Qualified Successor Borrower that will assume all of the obligations of Borrower hereunder (an “Assumption”). In the event Administrative Agent shall grant its consent to an Assumption, such consent shall be conditioned on there being no Event of Default then continuing (or resulting from such Assumption) and the satisfaction by Borrower of the following conditions to the reasonable satisfaction of Required Lenders:

(i) such Qualified Successor Borrower shall have executed and delivered to Administrative Agent an assumption agreement, in form and substance reasonably acceptable to Administrative Agent, evidencing its agreement to abide and be bound by the terms of the Loan Documents and containing representations substantially equivalent to those contained in Article IV, and such other representations (and evidence of the accuracy of such representations) as Administrative Agent shall reasonably request;

(ii) the obligations of each Lessee Borrower under their respective Operating Leases shall have been assumed by a Qualified Successor Lessee Borrower pursuant to an assumption agreement, in form and substance reasonably acceptable to Administrative Agent, and such Qualified Successor Lessee Borrower shall have delivered to Lender all documents reasonably requested by it relating to the existence of such Qualified Successor Lessee Borrower and the due authorization of such Qualified Successor Lessee Borrower to assume the obligations under the relevant Operating Lease, each in form and substance reasonably acceptable to Administrative Agent, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Lessee Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Lessee Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;

(iii) such Qualified Successor Borrower shall execute and deliver such Uniform Commercial Code financing statements as may be reasonably requested by the Administrative Agent;

(iv) either (A) such Qualified Successor Borrower shall deliver to Administrative Agent a new environmental indemnity and guaranty of recourse carveouts, in each case, in form and substance reasonably acceptable to Administrative Agent, with respect to each Property, and executed by a substitute indemnitor satisfactory to Required Lenders, which in each case cover indemnified matters first occurring after the date of the Assumption, in which event Sponsor shall have no liability for indemnified matters first occurring after the date of such Assumption or (B) Sponsor shall agree to continue to be obligated under the Environmental Indemnity and Recourse Guaranty and shall execute and deliver such documents as Administrative Agent shall require to confirm and evidence the same;

(v) such Qualified Successor Borrower shall have delivered to Administrative Agent legal opinions of counsel reasonably acceptable to Administrative Agent which are reasonably equivalent to the opinions delivered to Initial Lender on the date hereof; and

Borrower and the Qualified Successor Borrower shall have delivered such other documents and certificates as Administrative Agent shall reasonably request;

(vi) such Qualified Successor Borrower shall have delivered to Administrative Agent all documents reasonably requested by it relating to the existence of such Qualified Successor Borrower and the due authorization of the Qualified Successor Borrower to assume the Loan and to execute and deliver the documents described in this Section 2.6, each in form and substance reasonably acceptable to Administrative Agent, including a certified copy of the applicable resolutions from all appropriate persons, certified copies of the organizational documents of the Qualified Successor Borrower, together with all amendments thereto, and certificates of good standing or existence for the Qualified Successor Borrower issued as of a recent date by its state of organization and each other state where such entity, by the nature of its business, is required to qualify or register;

(vii) the Qualified Title Insurance Policies shall have been properly endorsed to reflect the Transfer of the Properties to the Qualified Successor Borrower;

(viii) such Qualified Successor Borrower shall have delivered to Administrative Agent evidence reasonably acceptable to Administrative Agent of any required approval or consent of any Governmental Authority, including the Gaming Authorities, that has direct or indirect authority or oversight over Borrower, the Properties, Lessee Borrower or the operations conducted at the Properties to the change in ownership and/or operator of the Properties (or any part thereof);

(ix) after a Securitization, Rating Confirmation shall have been received with respect to the legal structure of the Qualified Successor Borrower, the documentation of the Assumption and the related legal opinions; and

(x) the Administrative Agent shall have received on behalf of Lender a nonrefundable assumption fee equal to 1% of the Principal Indebtedness and shall have received payment of all reasonable out-of-pocket costs and expenses incurred by Lender, Collateral Agent and Administrative Agent, as applicable, in connection with such assumption (including reasonable attorneys’ fees and costs, the cost of an endorsement to the Title Insurance Policy reflecting the conveyance of the Properties to the Qualified Successor Borrower, lien search and credit investigation expenses and rating agency fees and expenses).

Upon an Assumption by a Qualified Successor Borrower in accordance with this Section 2.6, the initial Borrower shall be replaced by such Qualified Successor Borrower as “Borrower” for all purposes under this Agreement and all other Loan Documents and Lender shall release Borrower from any liability due to any Indebtedness arising from and after the date of such Assumption. Notwithstanding the foregoing, subject to the prior written consent of the Administrative Agent in its sole discretion (which consent shall be granted or withheld at the written direction of the Required Lenders necessary for a Unanimous Action), an Assumption may take the form of a transfer of equity interests in Borrower to a Qualified Successor Borrower, in which case the foregoing requirements shall only apply to the extent applicable.

ARTICLE III

ACCOUNTS

3.1. Cash Management Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain (i) with the Cash Management Bank one or more cash management accounts into which income from the Properties will be deposited (collectively, the “Cash Management Account”) and (ii) with one or more Eligible Institutions, the Pledged Operating Accounts. As a condition precedent to the closing of the Loan, Borrower shall cause (i) the Cash Management Bank to execute and deliver a Cash Management Agreement that provides, inter alia, that no party other than Administrative Agent shall have the right to withdraw funds from the Cash Management Account and (ii) each Eligible Institution at which a Pledged Operating Account is maintained to execute and deliver an Account Control Agreement that provides, inter alia, that upon the occurrence of an Event of Default, no party other than Administrative Agent shall have the right to withdraw funds from the Pledged Operating Account. The fees and expenses of the Cash Management Bank and the Eligible Institutions at which Pledged Operating Accounts are maintained shall be paid by Borrower.

(b) Borrower shall cause (i) all cash Revenues from the Properties received by or for the benefit of Borrower (other than (w) tenant security deposits required to be held in reserve accounts, (x) credit card receivables, which shall be remitted in accordance with clause (ii) of this sentence, and (y) amounts retained as a Gaming Operating Reserve) to be deposited into the Cash Management Account or other Eligible Accounts pledged to Collateral Agent hereunder (the “Blocked Accounts”) by the end of the third Business Day following Borrower’s receipt thereof and (ii) all credit card receivables not otherwise deposited into a Collateral Account in accordance herewith to be remitted directly into either the Cash Management Account or a Blocked Account. Each bank in which such Blocked Accounts are maintained shall enter into a blocked account agreement (a “Blocked Account Agreement”) reasonably acceptable to Administrative Agent pursuant to which such bank will remit, at the end of each Business Day, all amounts contained therein to an account specified by the Administrative Agent (the Administrative Agent hereby agreeing to specify the Cash Management Account so long as no Event of Default has occurred and is then continuing). The so-called “ACEP Concentrator Account” shall be deemed a Blocked Account for all purposes hereunder, provided that it is subject to a Blocked Account Agreement.

(c) Administrative Agent shall have the right at any time, on thirty days prior notice to Borrower, with or without cause, to replace the Cash Management Bank with any other financial institution at which Eligible Accounts may be maintained that is selected by Administrative Agent and reasonably approved by Borrower, or at any of the financial institutions listed on Schedule N (without any requirement to receive Borrower’s consent), which financial institution shall enter into a Cash Management Agreement (and Borrower shall cooperate with Administrative Agent in connection with such transfer and the execution and delivery of such Cash Management Agreement); provided that (x) Administrative Agent shall only replace the Cash Management Bank without cause one time following a Securitization of the Loan, (y) such replacement Cash Management Bank shall be one of the financial institutions

set forth on Schedule N, or shall be subject to Borrower’s consent, not to be unreasonably withheld, conditioned or delayed and (z) Lender agrees to reimburse Borrower for its reasonable out of pocket expenses in effecting such transfer, not to exceed $10,000 per transfer. Administrative Agent shall have the right to replace, upon not less than thirty days’ prior written notice, any bank at which a Blocked Account is maintained with any other financial institution reasonably satisfactory to Borrower in which Eligible Accounts may be maintained, which financial institution shall enter into a Blocked Account Agreement (and Borrower shall cooperate with Lender in connection with such transfer and the execution and delivery of such Blocked Account Agreement) in the event that (i) at any time the Blocked Account bank ceases to be an Eligible Institution (unless the applicable Collateral Accounts are maintained as segregated trust accounts in accordance with clause (ii) of the definition of Eligible Accounts), or (ii) the Blocked Account bank fails to comply with the Blocked Account Agreement.

(d) On or prior to July 15, 2009, Borrower shall determine in good faith the aggregate amount on deposit in the Pledged Operating Accounts and the Gaming Operating Reserve as of June 30, 2009. If such amount is less than $40,000,000, then Borrower and the Lenders shall cause amounts to be transferred from the Capital Expenditure Reserve Account and the Equity Contribution Account, on a 50%-50% basis, to one or more of the Pledged Operating Accounts and/or the Gaming Operating Reserve (as selected by Borrower) until such time as either (x) the balance of the Pledged Operating Accounts and the Gaming Operating Reserve as of June 30, 2009 plus all amounts transferred thereto pursuant to this provision equals $40,000,000 or (y) the balance of the Capital Expenditure Reserve Account equals $15,000,000 and the balance of the Equity Contribution Account equals $20,000,000.

3.2. Distributions from Cash Management Account.

(a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit to a Pledged Operating Account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), the amount, if any, by which amounts then contained in the Cash Management Account exceed the aggregate amount required to be paid to or reserved with Lender and the Agents on the next Payment Date pursuant to this Agreement (plus any additional amounts retained in such account by the Cash Management Bank in accordance with the second following proviso) (the “Peg Balance”); provided, however, that the Administrative Agent shall terminate such remittances during the continuance of an Event of Default (and once again continue such remittances when no Event of Default exists, provided that the Loan has not theretofore been accelerated); and provided further, that the Cash Management Bank may retain in the Cash Management Account a nominal amount of funds (not to exceed $5,000) for the purpose of covering miscellaneous fees and charges associated with the administration of the Cash Management Account to the extent provided in the Cash Management Agreement. The initial Peg Balance is $7,981,361.11. The Administrative Agent (at the direction of the Required Lenders) may notify the Cash Management Bank at any time of any change in the Peg Balance. Any amounts so remitted to Borrower shall be applied by Borrower solely in the manner permitted under Section 3.2(d), and any amount not so applied shall be remitted by Borrower to the Excess Cash Flow Reserve Account and the Surplus Cash Amortization Reserve Account in accordance with Section 3.2(d).

(b) On each Payment Date, provided no Event of Default has occurred and is continuing, Administrative Agent shall, at the direction of the Required Lenders given at least two Business Days prior to each Payment Date in the form of Exhibit L, transfer amounts from the Cash Management Account, to the extent available therein, to make the following payments in the following order of priority:

(i) to Agents and the Servicer (if any), all amounts due and payable to Agents and Servicer (if any) pursuant to the Agent Fee Agreements and the Loan Documents;

(ii) to the Tax and Insurance Reserve Account, the amount then required to be deposited therein pursuant to Section 3.4;

(iii) to Lender, the amount of all scheduled or delinquent interest on the Loan and all other amounts then due and payable under the Loan Documents;

(iv) to the FF&E Reserve Account, the amount required to be deposited therein pursuant to Section 3.6;

(v) to the Pledged Operating Account specified by Borrower, all remaining amounts.

(c) If on any Payment Date the amount in the Cash Management Account shall be insufficient to make all of the transfers described in Section 3.2(b)(i) through (iv), Borrower shall deposit into the Cash Management Account on such Payment Date the amount of such deficiency. If Borrower shall fail to make such deposit, the same shall constitute an Event of Default and, in addition to all other rights and remedies provided for under the Loan Documents, Administrative Agent may disburse and apply the amounts in the Collateral Accounts in accordance with Section 3.10(c).

(d) All amounts deposited into the Pledged Operating Accounts pursuant to Section 3.2(a) and Section 3.2(b)(v) shall be used by Borrower solely to (i) pay Property Operating Expenses, (ii) make prepayments of the Loan pursuant to Section 2.1(a), (iii) transfer amounts to the Gaming Operating Reserve in accordance with the terms hereof or (iv) make deposits into the Cash Management Account pursuant to Section 3.2(c). Borrower shall not use the amounts on deposit in the Pledged Operating Accounts to (i) pay the fees of the Approved Property Manager, except to the extent that such fees do not exceed those expressly set forth in the Approved Management Agreement, (ii) pay for FF&E or Capital Expenditures, (iii) pay a dividend to any Person (other than to a Co-Borrower) or (iv) make any payment or distribution to an Affiliate of Borrower, unless agreed to in writing by Administrative Agent (except that Borrower shall be permitted to pay to Highgate Hotels L.P. (x) a consulting fee out of the Pledged Operating Accounts, to the extent such asset management fee does not to exceed $1,500,000 in the aggregate per annum (provided that, to the extent the amount paid in respect of such consulting fee is less than $1,500,000 in any year, the difference between the amount paid in such year and $1,500,000 may be paid in a subsequent year) and (y) expense reimbursements out of the Pledged Operating Accounts not to exceed $100,000 in any calendar year). On each Payment Date, Borrower shall remit to each of the Excess Cash Flow Reserve Account and the Surplus Cash Amortization Reserve Account an amount equal to 50% times the Working Capital

Excess as of the end of the second calendar month immediately preceding the calendar month in which such Payment Date occurs (or, at Borrower’s election, such greater amount as Borrower may determine, provided that after giving effect to such election, the Pledged Operating Accounts shall contain amounts sufficient to operate the Properties; the portion of any such greater amount in excess of the amount required to be remitted to the Surplus Cash Amortization Reserve Account pursuant to this sentence shall be referred to herein as the “Borrower Election Amount”).

(e) Any Gaming Operating Reserve Excess shall be reasonably promptly remitted into a Pledged Operating Account, to the extent actually withdrawn, disbursed or otherwise removed from the Gaming Operating Reserve.

3.3. Loss Proceeds Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of depositing any Loss Proceeds in accordance with Section 5.16(c) (the “Loss Proceeds Account”).

(b) Provided no Event of Default is continuing, funds in the Loss Proceeds account shall be applied in accordance with Section 5.16.

3.4. Taxes and Insurance Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving amounts payable by Borrower in respect of Taxes and insurance premiums (the “Tax and Insurance Reserve Account”).

(b) On the Closing Date, the Tax and Insurance Reserve Account shall be funded by Borrower in an amount equal to the sum of (i) an amount sufficient to pay all Taxes by the 30^th day prior to the date they come due, assuming subsequent monthly fundings on Payment Dates of 1/12 of projected annual Taxes, plus (ii) if a blanket insurance policy is not maintained pursuant to Section 3.4(e), an amount sufficient to pay all insurance premiums by the 30^th day prior to the date they come due, assuming subsequent monthly fundings on Payment Dates of 1/12 of projected annual insurance premiums.

(A) 1/12 of the Taxes that Administrative Agent reasonably estimates, based on information provided by Borrower, will be payable during the next ensuing 12 months, plus

(B) subject to Section 3.4(e), 1/12 of the insurance premiums that Administrative Agent reasonably estimates, based on information provided by Borrower, will be payable during the next ensuing 12 months;

provided, however, that if at any time the Required Lenders reasonably determine that the amount in the Tax and Insurance Reserve Account will not be sufficient to accumulate (upon payment of subsequent monthly amounts in accordance with the provisions of this Agreement) the full amount of all installments of Taxes and, subject to Section 3.4(e), insurance premiums by the date on which such amounts come due, then Administrative Agent, at the direction of Required Lenders, shall notify Borrower of such determination and Borrower shall increase its monthly payments to the Tax and Insurance Reserve Account by the amount that the Required Lenders reasonably estimate is sufficient to achieve such accumulation; provided further, however, that if any Property is released pursuant to Section 2.2, Section 2.4 or Section 7.1(n), Borrower shall decrease its monthly payments to the Tax and Insurance Reserve Account to an amount that Borrower reasonably estimates is sufficient to adequately fund the Tax and Insurance Reserve Account.

(d) Borrower shall provide Administrative Agent with copies of all tax and, subject to Section 3.4(e), insurance bills relating to each Property promptly after Borrower’s receipt thereof. Lender will apply amounts in the Tax and Insurance Reserve Account toward the purposes for which such amounts are deposited therein and, provided no Event of Default has occurred and is continuing, the failure by Borrower to satisfy any payment covenants in respect of Taxes and insurance premiums (provided, in the case of insurance premiums, that Borrower is then obligated to reserve amounts in respect of insurance premiums in accordance with Section 3.4(e)) under this Agreement or any of the other Loan Documents shall not be deemed a breach of such covenant and shall not, in itself, result in a Default or Event of Default hereunder or under any of the other Loan Documents. In connection with the making of any payment from the Tax and Insurance Reserve Account, Administrative Agent may, at the direction of the Required Lenders, cause such payment to be made according to any xxxx, statement or estimate procured from the appropriate public office or insurance carrier, without inquiry into the accuracy of such xxxx, statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof unless given written advance notice by Borrower of such inaccuracy, invalidity or other contest.

(e) Notwithstanding the foregoing, Borrower shall have no obligation to reserve funds in the Tax and Insurance Reserve Account in respect of insurance premiums (including, without limitation, pursuant to Section 3.4(b)), to provide additional payments in respect of insurance premiums pursuant to Section 3.4(c) or to provide insurance bills pursuant to Section 3.4(d), in each case, so long as Borrower delivers evidence to Administrative Agent that the insurance required hereunder is maintained under the Whitehall blanket insurance policy and that the applicable insurance premiums have been paid in advance.

3.5. Surplus Cash Amortization Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving surplus cash flow (the “Surplus Cash Amortization Reserve Account”).

(b) On each Payment Date, Borrower shall deposit into the Surplus Cash Amortization Reserve Account the amounts required to be deposited therein in accordance with Section 3.2(d).

(c) To the extent that the aggregate amount on deposit in the Pledged Operating Accounts and the Excess Cash Flow Account in a particular month are insufficient to pay Property Operating Expenses, Capital Expenditures and/or FF&E for such month, Borrower may make a written request to Administrative Agent for a disbursement from the Surplus Cash Amortization Reserve Account to cover such shortfall (to the extent of the amount contained therein), which request shall be granted or denied by Administrative Agent at the direction of the Required Lenders in their sole discretion as a Unanimous Action. In the event Administrative Agent shall agree to grant such request, it shall make such Disbursement to Borrower, provided that:

(i) no Event of Default has occurred and is continuing;

(ii) Borrower shall deliver to Administrative Agent invoices evidencing that the costs for which such disbursement is requested are due and payable;

(iii) Borrower shall deliver to Administrative Agent an Officer’s Certificate confirming that all such costs have been previously paid by Borrower or will be paid from the proceeds of the requested disbursement and that, as of the date of such Officer’s Certificate, no Event of Default has occurred and is ongoing.

(d) On each Payment Date occurring in the first month of a Fiscal Quarter, at the direction of the Required Lenders given at least two Business Days prior to each such Payment Date, all amounts on deposit in the Surplus Cash Amortization Reserve Account shall be applied to the prepayment of the Loan, subject to and in accordance with Section 2.1. To the extent that any amounts are disbursed to Borrower pursuant to clause (c) of this Section 3.5, such amounts shall be deemed to have been disbursed first from amounts on deposit in the Surplus Cash Amortization Account constituting a Borrower Election (if any).

3.6. FF&E Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving amounts in respect of FF&E (the “FF&E Reserve Account”).

(b) On the Closing Date, Borrower shall deposit into the FF&E Reserve Account the FF&E Upfront Reserve Amount. On each Payment Date, Administrative Agent, at the direction of the Required Lenders given at least two Business Days prior to each such Payment Date, shall deposit into the FF&E Reserve Account from amounts on deposit in the Cash Management Account an amount equal to the Monthly FF&E Reserve Amount. In the event that any Property is released pursuant to Section 2.2, Section 2.4 or Section 7.1(n) subsequent to a determination of the Monthly FF&E Reserve Amount, the Monthly FF&E Reserve Amount shall be appropriately adjusted in accordance with the definition thereof.

(c) Upon the request of Borrower at any time that no Event of Default is continuing (but not more often than once per calendar month), Administrative Agent shall, at the direction of the Required Lenders, cause disbursements to Borrower from the FF&E Reserve Account in order for Borrower to pay, or to reimburse Borrower for, the cost of FF&E; provided that:

(i) Borrower shall deliver to Administrative Agent invoices evidencing that the costs for which such disbursements are requested are due and payable;

(ii) Borrower shall deliver to Administrative Agent an Officer’s Certificate confirming that all such costs have been previously paid by Borrower or will be paid from the proceeds of the requested disbursement and that, as of the date of such Officer’s Certificate, no Event of Default has occurred and is ongoing and that all conditions set forth in this Section 3.6(c) (other than the condition set forth in clause (iii) below) have been satisfied; and

(iii) Administrative Agent may condition the making of a requested disbursement on reasonable evidence establishing that Borrower has applied any amounts previously received by it in accordance with this Section for the expenses to which specific draws made hereunder relate.

Any such reimbursement shall be made within 10 Business Days after Borrower has made a request therefor and has satisfied each of the conditions to such reimbursement set forth in this Section 3.6.

3.7. Deferred Maintenance and Environmental Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving amounts anticipated to be required to correct Deferred Maintenance Conditions (the “Deferred Maintenance and Environmental Reserve Account”).

(b) Within three Business Days after its receipt of the Deferred Maintenance Letter, Borrower shall either (x) deposit into the Deferred Maintenance and Environmental Reserve Account an amount equal to the Deferred Maintenance Amount (which deposit may be made with funds contained in the Pledged Operating Accounts or the Equity Contribution Account) and/or (y) deliver to Collateral Agent, for the benefit of Lender, a Qualified Letter of Credit in respect of such amount, provided that the aggregate amounts deposited in the Deferred Maintenance and Environmental Reserve Account and any Qualified Letter of Credit delivered to Collateral Agent shall at all times equal the Deferred Maintenance Amount.

(c) Borrower shall correct the Deferred Maintenance Conditions in a diligent, workmanlike manner and shall complete the same within the respective time periods set forth in the Deferred Maintenance Letter. Upon the request of Borrower at any time that no Event of Default is continuing (but not more often than once per calendar month), Administrative Agent shall, at the direction of the Required Lenders, cause disbursements to Borrower from the Deferred Maintenance and Environmental Reserve Account to reimburse Borrower (or advance

sums necessary to pay) for reasonable costs and expenses incurred in order to correct Deferred Maintenance Conditions (or, if applicable, shall permit the reduction of the amount of the Qualified Letter of Credit by the amount that would have been so disbursed, provided that such reductions shall be permitted only in minimum increments equal to the lesser of (x) $1,000,000 or (y) the amount then contained in such Collateral Account), provided that

(i) Borrower shall deliver to Administrative Agent invoices evidencing that the costs for which such disbursements are requested are due and payable;

(ii) Borrower shall deliver to Administrative Agent an Officer’s Certificate confirming that all such costs have been previously paid by Borrower or will be paid from the proceeds of the requested disbursement and that, as of the date of such Officer’s Certificate, no Event of Default has occurred and is ongoing and that all conditions set forth in this Section 3.7(c) (other than the condition set forth in clause (iii) below) have been satisfied; and

(iii) Administrative Agent may condition the making of a requested disbursement on (1) reasonable evidence establishing that Borrower has applied any amounts previously received by it in accordance with this Section for the expenses to which specific draws made hereunder relate, (2) site inspections reasonably acceptable to Administrative Agent or its designee, if the cost of the contemplated work exceeds $1,000,000 (it being agreed that any such site inspection shall take place within 10 Business Days after Administrative Agent’s receipt of a written request for such disbursement), and, (3) receipt of conditional lien releases and waivers from any contractors, subcontractors and others with respect to such amounts if such amounts exceed $500,000 (provided that, with respect to any amounts to be paid from the requested disbursement, Borrower shall deliver to Administrative Agent, on or prior to the following Payment Date, lien releases and waivers in respect of such amounts if the costs thereof exceed $500,000).

Any such reimbursement shall be made within 10 Business Days after Borrower has made a request therefor and has satisfied each of the conditions to such reimbursement set forth in this Section 3.7.

(d) If Borrower satisfies all or any portion of its obligation under Section 3.7(b) by providing a letter of credit which at any time ceases to be a Qualified Letter of Credit, Borrower shall, within 10 Business Days thereafter, either deliver to Collateral Agent, for the benefit of Lender, a replacement Qualified Letter of Credit or deposit into the Deferred Maintenance and Environmental Reserve Account the amount necessary to cause the amount on deposit therein to equal the amount that would be contained therein had Borrower deposited the Deferred Maintenance Amount in the Deferred Maintenance and Environmental Reserve Account on the Closing Date and subsequently withdrawn therefrom all amounts that would have been permitted to be withdrawn therefrom pursuant to Section 3.7(c). In addition, if Borrower delivers or causes to be delivered (at any time and from time to time) a Qualified Letter of Credit to Collateral Agent, for the benefit of Lender on account of all or any portion of the amounts required to be reserved and/or delivered in respect of this Section 3.7, then, so long as no Event of Default is continuing, Administrative Agent, at the direction of the Required

Lenders, shall cause to be disbursed to Borrower from the Deferred Maintenance and Environmental Reserve Account the amount by which the amounts reserved and/or deposited with respect to this Section 3.7 exceed the amount required to be reserved and/or deposited pursuant to this Section 3.7 (taking into account all disbursements and reductions theretofore made pursuant to Section 3.7(c).

(e) Upon substantial completion (as reasonably determined by Administrative Agent) of the portion of the Deferred Maintenance Conditions identified as an individual item in the Deferred Maintenance Letter, and provided no Event of Default is then continuing, the remainder of the portion of the Deferred Maintenance Reserve Account held for such line item (as shown adjacent to such line item in the Deferred Maintenance Letter) shall promptly be remitted to the Cash Management Account (or, if applicable, the amount of any Qualified Letter of Credit delivered pursuant to this Section 3.7 shall be accordingly reduced by Administrative Agent, at the direction of the Required Lenders). Upon the correcting of all Deferred Maintenance Conditions, provided no Event of Default is then continuing, any amounts then remaining in the Deferred Maintenance Reserve Account shall promptly be remitted to the Cash Management Account by Administrative Agent, at the direction of the Required Lenders and the Deferred Maintenance Account will no longer be maintained and/or, to the extent applicable, any Qualified Letter of Credit delivered pursuant to this Section 3.7 shall be returned to Borrower.

(f) Any amount of the Deferred Maintenance and Environmental Reserve Account allocable to a Property that is released pursuant to Section 2.2, Section 2.4 or Section 7.1(n) shall be promptly remitted to the Cash Management Account and/or any Qualified Letter of Credit delivered pursuant to this Section 3.7 shall be reduced accordingly.

3.8. Capital Expenditure Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving amounts in respect of Capital Expenditures (the “Capital Expenditure Reserve Account”).

(b) Borrower shall either (x) deposit into the Capital Expenditure Reserve Account an amount equal to the Capital Expenditure Amount and/or (y) deliver to Collateral Agent, for the benefit of Lender, a Qualified Letter of Credit in respect of the Capital Expenditure Amount; provided that the aggregate amounts deposited in the Capital Expenditure Reserve Account and any Qualified Letter of Credit delivered to Collateral Agent shall at all times equal the Capital Expenditure Amount.

(c) Upon the request of Borrower at any time that no Event of Default is continuing, Administrative Agent shall, at the direction of the Required Lenders, cause disbursements to Borrower from the Capital Expenditure Reserve Account in order for Borrower to pay, or to reimburse Borrower for, reasonable costs and expenses incurred in performing Capital Expenditures (and/or, as applicable, shall permit the reduction of the amount of the Qualified Letter of Credit delivered to Lender, by the amount that would have been so disbursed), provided that

(i) Borrower shall deliver to Administrative Agent invoices evidencing that the costs for which such disbursements are requested are due and payable;

(ii) Borrower shall deliver to Administrative Agent an Officer’s Certificate confirming that all such costs have been previously paid by Borrower or will be paid from the proceeds of the requested disbursement and that, as of the date of such Officer’s Certificate, no Event of Default has occurred and is ongoing and that all conditions set forth in this Section 3.8(c) (other than the condition set forth in clause (iii) below) have been satisfied;

(iv) such costs and expenses shall be limited to the following categories of Capital Expenditures: (i) restaurants, bars and entertainment facilities, (ii) meeting and banquet space, (iii) hotel and casino public space and common areas, (iv) Gaming Equipment, and (v) hotel rooms.

Any such reimbursement shall be made within 10 Business Days after Borrower has made a request therefor and has satisfied each of the conditions to such reimbursement set forth in this Section 3.8.

(d) If Borrower satisfies its obligation under Section 3.8(b) by providing a letter of credit which at any time ceases to be a Qualified Letter of Credit, Borrower shall, within 10 Business Days thereafter, either (x) deliver to Collateral Agent, as applicable, a Qualified Letter of Credit in the amount required to satisfy its obligations under Section 3.8(b) or (y) deposit into the Capital Expenditure Reserve Account such amount. In addition, Borrower shall have the right at any time to deposit into the Capital Expenditure Reserve Account the amount described in clause (y), whereupon any Qualified Letter theretofore delivered to Collateral Agent pursuant to Section 3.8(b) shall be returned to Borrower, and Borrower shall thereafter have the right to redeliver a Qualified Letter of Credit in such amount, whereupon the corresponding amounts then contained in the Capital Expenditure Reserve Account shall be remitted to the Cash Management Account by the Administrative Agent, at the direction of the Required Lenders.

(e) On a quarterly basis, on or prior to the date on which Borrower delivers to Lender its quarterly financial statements pursuant to Section 5.13, Borrower shall deliver to Administrative Agent a report prepared on a Property-by-Property basis detailing the status of each capital improvement project for which amounts have been disbursed to Borrower from the Capital Expenditure Reserve Account or the Excess Cash Flow Reserve Account.

3.9. Excess Cash Flow Reserve Account.

(a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with the Cash Management Bank an account (which may be a subaccount of the Cash Management Account maintained on a ledger basis) for the purpose of reserving excess cash flow (the “Excess Cash Flow Reserve Account”).

(b) On each Payment Date, Borrower shall deposit into the Excess Cash Flow Reserve Account the amounts required to be deposited therein in accordance with Section 3.2(d).

(c) To the extent that the amounts on deposit in the Pledged Operating Accounts in a particular month are insufficient to pay Property Operating Expenses and/or the amounts required to be deposited into the Cash Management Account pursuant to Section 3.2(b)(i) through (iv) for such month, upon the written request of Borrower, Administrative Agent shall, at the direction of the Required Lenders, cause a disbursement to Borrower from the Excess Cash Flow Reserve Account to cover such shortfall, to the extent of the amount contained therein, provided that:

(i) no Event of Default has occurred and is continuing;

(ii) Borrower shall deliver to Administrative Agent invoices evidencing that the costs for which such disbursement is requested are due and payable;

In addition, Borrower shall be permitted to request disbursements from the Excess Cash Flow Reserve Account in respect of Capital Expenditures and/or FF&E, and Administrative Agent, at the direction of the Required Lenders, shall cause such disbursements to Borrower, provided that the conditions contained in foregoing clauses (i), (ii) and (iii) of this Section 3.9(c) have been met with respect to any such requested disbursement.

(d) To the extent necessary to comply with Section 6.20, or at any other time as Borrower may elect, provided that no Event of Default has occurred and is continuing (except for an Event of Default under Section 6.20), Borrower may from time to time request that all or any portion of the amounts on deposit in the Excess Cash Flow Reserve Account be applied to the prepayment of the Loan, subject to and in accordance with Section 2.1, which prepayment shall be made on the first Payment Date that is at least five Business Days after Administrative

Agent’s receipt of (A) Borrower’s written request for such prepayment and (B) the direction of the Required Lenders.

3.10. Account Collateral.

(a) Borrower hereby grants a perfected first-priority security interest in favor of Collateral Agent, for the benefit of Lender, in and to the Account Collateral as security for the Indebtedness, together with all rights of a secured party with respect thereto. Each Collateral Account shall be an Eligible Account under the sole dominion and control of Collateral Agent and shall be in the name of Borrower, as pledgor, and Collateral Agent, as pledgee for the benefit of Lender. Borrower shall have no right to make withdrawals from any of the Collateral Accounts. Funds in the Collateral Accounts shall not be commingled with any other monies at any time. Borrower shall execute any additional documents that Administrative Agent, at the direction of the Required Lenders in their reasonable discretion, may require and shall provide all other evidence reasonably requested by Administrative Agent to evidence or perfect the Collateral Agent’s first-priority security interest in the Account Collateral. Within five Business Days of the establishment of any Pledged Operating Account not in existence as of the date hereof, Borrower shall execute and deliver to Administrative Agent and Collateral Agent an Account Control Agreement with respect thereto.

(b) The insufficiency of amounts contained in the Collateral Accounts shall not relieve Borrower from its obligation to fulfill all covenants contained in the Loan Documents.

(c) During the continuance of an Event of Default, Administrative Agent may, at the direction of the Required Lenders in their sole discretion, apply funds in the Collateral Accounts, and funds resulting from the liquidation of Permitted Investments related to the Collateral Accounts, either toward the components of the Indebtedness (e.g., interest, principal and other amounts payable hereunder), the Loan and the Notes in such sequence as Administrative Agent shall elect at the direction of Required Lenders in their sole discretion, and/or toward the payment of Taxes, Property Operating Expenses and Capital Expenditures.

3.11. Permitted Investments.

(a) Funds in the Collateral Accounts shall be invested by Administrative Agent at the direction of Required Lenders only in Permitted Investments, provided, however, that Borrower shall be permitted to direct the investment of funds contained in the Pledged Operating Accounts and the Equity Contribution Account, so long as (i) no Event of Default has occurred and is continuing and (ii) all such investments are in Permitted Investments.

(b) All income and gains from the investment of funds in the Collateral Accounts other than the Tax and Insurance Reserve Account shall be retained in the Collateral Accounts (unless and until disbursed in accordance with the terms hereof) from which they were derived and shall belong to Borrower, subject to Collateral Agent’s Lien thereon. Unless otherwise required by applicable law, all income and gains from the investment of funds in the Tax and Insurance Reserve Account shall be for the account of Lender, and the Required Lenders shall have the right at any time to direct the Administrative Agent to cause the Cash

Management Bank to remit such amounts to Lender. The insufficiency of amounts contained in the Collateral Accounts shall not relieve Borrower from its obligation to fulfill all covenants contained in the Loan Documents. As between Borrower and Lender, Borrower (or Lender with respect to the Tax and Insurance Reserve Account, to the extent of any income actually received with respect thereto) shall treat all income, gains and losses from the investment of amounts in the Collateral Accounts as its income or loss for federal, state and local income tax purposes.

(c) After the Loan and all other Indebtedness have been paid in full, the Collateral Accounts shall be closed and the balances therein, if any, shall be paid to Borrower.

3.12. Bankruptcy. Borrower and Lender acknowledge and agree that upon the filing of a bankruptcy petition by or against Borrower under the Bankruptcy Code, the Account Collateral and the Revenues (whether then already in the Collateral Accounts, or then due or becoming due thereafter) shall be deemed not to be property of Borrower’s bankruptcy estate within the meaning of Section 541 of the Bankruptcy Code. If, however, a court of competent jurisdiction determines that, notwithstanding the foregoing characterization of the Account Collateral and the Revenues by Borrower and Lender, the Account Collateral and/or the Revenues do constitute property of Borrower’s bankruptcy estate, then Borrower and Lender further acknowledge and agree that all such Revenues, whether due and payable before or after the filing of the petition, are and shall be cash collateral of Lender. Borrower acknowledges that Lender does not consent to Borrower’s use of such cash collateral and that, in the event Lender elects (in its sole discretion) to give such consent, such consent shall only be effective if given in writing signed by Lender. Except as provided in the immediately preceding sentence, Borrower shall not have the right to use or apply or require the use or application of such cash collateral (i) unless Borrower shall have received a court order authorizing the use of the same, and (ii) Borrower shall have provided such adequate protection to Lender as shall be required by the bankruptcy court in accordance with the Bankruptcy Code.

3.13. Delivery of Documents. Notwithstanding any other provision of the Loan Documents, in making any disbursements, transfers and/or deposits from or to the Collateral Accounts, Administrative Agent shall receive, and shall be entitled to rely upon a direction from the Required Lenders (which direction shall be given at least two Business Days prior to any such disbursement, transfer and/or deposit), provided that Administrative Agent may make disbursements and/or distributions to Lender in accordance with the terms of the Loan Documents without the direction of the Required Lenders, unless otherwise expressly provided in the Loan Documents or instructed by the Required Lenders. Administrative Agent shall have no duty or obligation with respect to any such disbursements, transfers and/or deposits, other than to receive the documents enumerated in the provisions of this Agreement and the other Loan Documents and to make the applicable disbursements, transfers and/or deposits in accordance with the terms hereof and thereof. Administrative Agent shall provide to each Lender, at least two Business Days prior to each Payment Date (and once each week, during the continuance of an Event of Default), the account balances for the Cash Management Account and each subaccount to the Cash Management Account, to the extent such balances have been made available to the Administrative Agent by the Cash Management Bank.

ARTICLE IV

REPRESENTATIONS

Borrower represents to Lender and Agents that, as of the Closing Date, except as set forth in the Exception Report:

4.1. Organization.

(a) Each Property Owner Borrower is a limited partnership, duly organized, validly existing and in good standing under the laws of the State of Delaware, and is in good standing as a foreign partnership company in each other jurisdiction where ownership of its properties or the conduct of its business requires it to be so, and Property Owner Borrower has all power and authority under such laws and its organizational documents and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted. Each Lessee Borrower is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Nevada, and is in good standing as a foreign limited liability company in each other jurisdiction where ownership of its properties or the conduct of its business requires it to be so, and each Lessee Borrower has all power and authority under such laws and its organizational documents and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted. ACEP Borrower is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware, and is in good standing as a foreign limited liability company in each other jurisdiction where ownership of its properties or the conduct of its business requires it to be so, and ACEP Borrower has all power and authority under such laws and its organizational documents and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.

(b) The sole general partner of each Property Owner Borrower (as set forth in the signature page hereto), is a Single-Purpose Equityholder that is a limited liability company and is duly organized, validly existing and in good standing under the laws of the State of Delaware, and is in good standing as a foreign limited liability company in each other jurisdiction where ownership of its assets or the conduct of its business requires it to be so, and such general partner has all power and authority under such laws and its organizational documents and all material governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted.

(e) Property Owner Borrower does not have any subsidiaries nor does it own any equity interest in any other Person. Property Owner Borrower’s Single-Purpose Equityholder has no subsidiaries and does not own any equity interest in any other Person (other than Borrower). ACEP Borrower does not have any subsidiaries or own any equity interest in any other Person, other than Stratosphere, LLC, Aquarius Gaming LLC and Charlie’s Holding, LLC. Lessee Borrower does not have any subsidiaries nor does it own any equity interest in any other Person, except W2007 ACEP First Mezzanine A Gen-Par, L.L.C., W2007 First Mezzanine A Borrower, L.P., W2007 ACEP First Mezzanine B Gen-Par, L.L.C. and W2007 ACEP First Mezzanine B Borrower, L.P.

(e) The organizational chart contained in Schedule G is true and correct as of the date hereof.

4.2. Authorization. Borrower has the power and authority to enter into this Agreement and the other Loan Documents, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated by the Loan Documents and has by proper action duly authorized the execution and delivery by Borrower of the Loan Documents.

4.3. No Conflicts. Neither the execution and delivery of the Loan Documents, nor the consummation of the transactions contemplated therein, nor performance of and compliance with the terms and provisions thereof will (i) violate or conflict with any provision of its limited partnership agreement, certificate of limited partnership or other governance document, (ii) violate any law, regulation (including Regulation U, Regulation X, Regulation T or any Gaming Laws), order, writ, judgment, injunction, decree or permit presently in effect and applicable to it, (iii) violate or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, contract or other Material Agreement to which Borrower or Sponsor is a party or by which Borrower or Sponsor may be bound, or (iv) result in or require the creation of any Lien or other charge or encumbrance upon or with respect to the Collateral in favor of any party other than Lender and other than a Permitted Encumbrance.

4.4. Consents. No consent, approval, authorization or order of, or qualification with, any court or Governmental Authority or any parties to an REA other than Borrower, is required in connection with the execution, delivery or performance by Borrower of this Agreement or the other Loan Documents, except for any of the foregoing which have already been obtained and except as provided in Regulation 8.130 of the Regulations of the Nevada Gaming Commission and State Gaming Control Board with respect to renewals, changes or modifications to the Loan Documents subsequent to the Closing Date.

4.5. Enforceable Obligations. As of the Closing Date, this Agreement and the other Loan Documents have been duly executed and delivered by Borrower and constitute Borrower’s legal, valid and binding obligations, enforceable in accordance with their respective terms, subject to (i) bankruptcy, insolvency and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) Regulation 8.130 of the Regulations of the Nevada Gaming Commission and State Gaming Control Board. As of the Closing Date, subject to Regulation 8.130 of the Regulations of the Nevada Gaming Commission and State Gaming Control Board, the Loan Documents are not subject to any right of rescission, set-off, counterclaim or defense by Borrower, including the defense of usury.

4.6. No Default. As of the Closing Date, no Default or Event of Default exists.

4.7. Payment of Taxes. Each of Borrower has filed (or have obtained extensions for filing), or has caused to be filed, all tax returns (federal, state, local and foreign), including all reports relating to gaming taxes and fees to the Gaming Authorities, required to be filed and paid all amounts of taxes stated to be due on such returns (including interest and penalties) except for taxes which are not yet delinquent and has paid all other taxes, fees,

assessments and other governmental charges (including mortgage recording taxes, documentary stamp taxes and intangible taxes) owing by it necessary to preserve the Liens in favor of Lender.

4.8. Compliance with Law. Except as set forth in the Engineering Report, each Borrower, the Properties and the use thereof comply in all material respects with all applicable Insurance Requirements and Legal Requirements, including building and zoning ordinances and codes, except to the extent that non-compliance therewith would not reasonably be likely to have a Material Adverse Effect. To the extent reasonably necessary to avoid a Material Adverse Effect, each of the Properties conforms to current zoning requirements (including requirements relating to parking) and is neither an illegal nor a legal nonconforming use. Except as set forth in the Engineering Report, no Borrower is in default or in violation of any order, writ, injunction, decree or demand of any Governmental Authority the default or violation of which could adversely affect the Properties or the condition (financial or otherwise) or business of Borrower, which default or violation is reasonably likely to have a Material Adverse Effect or a Portfolio Material Adverse Effect. There has not been committed by or on behalf of Borrower or, to the best of Borrower’s knowledge, any other person in occupancy of or involved with the operation or use of the Properties, any act or omission affording any federal Governmental Authority or any state or local Governmental Authority the right of forfeiture as against the Properties or any portion thereof or any monies paid in performance of its obligations under any of the Loan Documents. To Borrower’s knowledge, Borrower has not purchased any portion of the Properties with proceeds of any illegal activity. To Borrower’s knowledge, there is no federal, state or local law or regulation that makes the Administrative Agent or Collateral Agent or any of their Affiliates subject to any penalty, sanction or fine in connection with the Transaction.

4.9. ERISA. Neither Borrower nor any ERISA Affiliate of Borrower has incurred or could be subjected to any liability under Title IV or Section 302 of ERISA or Section 412 of the Code or maintains or contributes to, or is or has been required to maintain or contribute to, any employee benefit plan (as defined in Section 3(3) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 of the Code. The consummation of the transactions contemplated by this Agreement will not constitute or result in any non-exempt prohibited transaction by Borrower or any of its subsidiaries or Lender under Section 406 of ERISA, Section 4975 of the Code or substantially similar provisions under federal, state or local laws, rules or regulations.

4.10. Government Regulation. Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. Borrower is not a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” or either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.

4.11. No Bankruptcy Filing. No Borrower is contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of its assets or property. No Borrower has knowledge of any Person contemplating the filing of any such petition against it.

4.12. Other Debt. No Borrower has outstanding any Debt other than Permitted Debt.

4.13. Litigation. To Borrower’s actual knowledge, there are no actions, suits, proceedings, arbitrations or governmental investigations by or before any Governmental Authority or other agency now pending, and to the best of Borrower’s knowledge there are no such actions, suits, proceedings, arbitrations or governmental investigations threatened against or affecting Borrower or the Properties, in each case, except as listed in the Exception Report (and there are no actions, suits, proceedings, arbitrations or governmental investigations by or before any Governmental Authority or other agency now pending, and to the best of Borrower’s knowledge there are no such actions, suits, proceedings, arbitrations or governmental investigations threatened against or affecting Borrower or the Properties, in each case, whether or not listed in the Exception Report, which alone or in the aggregate, if determined against Borrower or the Properties, is likely to result in a Material Adverse Effect or a Portfolio Material Adverse Effect).

4.14. Major Leases; Material Agreements.

(a) To Borrower’s actual knowledge (except as set forth in the Exception Report), there are no Major Leases as of the date hereof other than the Operating Leases. Except as set forth in the Exception Report, (i) no Person has any possessory interest in the Properties or right to occupy the same except under and pursuant to the provisions of the Leases or any sublease or any other occupancy agreement granted by a Tenant under a Lease, (ii) no security deposits are being held by Borrower, (iii) no Tenant or other party has any option, right of first refusal or similar preferential right to purchase or lease all or any portion of the Properties, (iv) no fixed rent has been paid more than 30 days in advance of its due date and (v) no payments of rent are more than 30 days delinquent, in each of the foregoing cases, other than a party to a Lease which is not a Major Lease. Other than Major Leases, there are no Leases the existence or termination of which is reasonably likely to have a Material Adverse Effect.

(b) To Borrower’s actual knowledge, all work to be performed by the landlord under the Major Leases has been substantially performed, all contributions to be made by the landlord to the Tenants thereunder have been made, all other conditions to each Tenant’s obligations thereunder have been satisfied, no Tenant has the right to require Borrower to perform or finance Tenant Improvements or Material Alterations and no Leasing Commissions are owed or would be owed upon the exercise of any such Tenant’s existing renewal or expansion options.

(c) To Borrower’s actual knowledge,(i) there are no Material Agreements except as described in Schedule D, (ii) Borrower has made available to Lender true and complete copies of all Material Agreements and (iii) each Material Agreement has been entered into at arm’s length in the ordinary course of business by or on behalf of Borrower.

(d) To Borrower’s knowledge, the Major Leases and the Material Agreements are in full force and effect and there are no material defaults thereunder by Borrower or, to Borrower’s best knowledge, any other party thereto. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or

conditions contained in any Permitted Encumbrance or any other material agreement or instrument to which it is a party or by which it or any of the Properties are bound.

(e) The Operating Leases are true leases to the Lessee Borrowers and not financings.

4.15. Full and Accurate Disclosure. To Borrower’s knowledge, no statement of fact heretofore delivered by any Borrower or its respective Affiliates to Lender in writing in respect of the Properties or any Borrower, when considered together, contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein not misleading unless subsequently corrected. There is no fact presently actually known to Borrower which has not been disclosed to Lender which is reasonably likely to result in a Portfolio Material Adverse Effect.

4.16. Financial Condition. All financial data concerning Borrower and the Properties heretofore provided to Lender, taken as a whole, fairly presents in accordance with GAAP the financial position of Borrower in all material respects, as of the date on which it was made, and does not omit to state any material fact necessary to make statements contained herein or therein not misleading. Since the delivery of such data, except as otherwise disclosed in writing to Lender, there have occurred no changes or circumstances presently known to Borrower and relating to Borrower or the Property which have had or are reasonably likely to result in a Portfolio Material Adverse Effect.

4.17. Single-Purpose Requirements. Each Borrower and each of their respective Single-Purpose Equityholders (if any) is now, and each Borrower except for the ACEP Borrower and each Lessee Borrower has always been since its formation, a Single-Purpose Entity.

4.18. Location of Chief Executive Offices. The location of Borrower’s principal place of business and chief executive office is the address listed in Section 9.4.

4.19. Not Foreign Person. Borrower is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code.

4.20. Labor Matters. Except as set forth in the Exception Report, Borrower nor is not a party to any collective bargaining agreements.

4.21. Title. Property Owner Borrower owns good, marketable and insurable title in fee or leasehold title, as applicable, to the Properties and owns good and marketable title to the related personal property (to the extent not owned by the tenants, guests or employees at the Properties), to the Collateral Accounts and to any other Collateral, in each case free and clear of all Liens whatsoever except the Permitted Encumbrances. The Mortgage, when properly recorded in the appropriate records, together with any Uniform Commercial Code financing statements required to be filed in connection therewith, will create (i) valid, perfected first priority Liens on the Properties and/or Property Owner Borrower’s leasehold interest in the Properties, as applicable, and the rents therefrom, enforceable as such against creditors of and purchasers from Property Owner Borrower and subject only to Permitted Encumbrances, and (ii) perfected Liens (pursuant to the Uniform Commercial Code of the State of Delaware or the State of Nevada, as applicable) in and to all Collateral that is personalty owned by Borrower, all

in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. The Pledge Agreement and the other Loan Documents, upon the filing of Uniform Commercial Code financing statement in the appropriate jurisdiction, create and constitute a valid and perfected first priority Lien on the Equity Collateral, free and clear of all Liens other than the Permitted Encumbrances. To Borrower’s knowledge, the Permitted Encumbrances do not and will not affect or interfere with the value, or current use or operation, of the Properties, or the security intended to be provided by the Mortgage or Borrower’s ability to repay the Indebtedness in accordance with the terms of the Loan Documents, in each case, other than in a way that would not have a Material Adverse Effect. Except as indicated on a Qualified Title Insurance Policy, there are no claims for payment for work, labor or materials affecting the Properties which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents. No creditor of Borrower other than Lender has in its possession any goods that constitute or evidence the Collateral.

4.22. No Encroachments. Except as shown on the Qualified Survey, all of the improvements on the Properties that were included in determining the appraised value of the Properties lie wholly within the boundaries and building restriction lines of the Properties, and no improvements on adjoining property encroach upon the Properties, and no easements or other encumbrances upon the Properties encroach upon any of the improvements, so as, in either case, to have a Material Adverse Effect except those which are indicated on a Qualified Title Insurance Policy.

4.23. Physical Condition.

(a) To Borrower’s knowledge, except as set forth in the Existing Engineering Reports, the Properties (including sidewalks, storm drainage system, roof, plumbing system, HVAC system, fire protection system, electrical system, equipment, elevators, exterior sidings and doors, irrigation system and all structural components) are in good condition, order and repair in all respects material to its use, operation or value, allowing for ongoing repairs and maintenance conducted in a commercially reasonable manner in the ordinary course of business.

(b) Borrower is not aware of any material structural defect or damages in the Properties, whether latent or otherwise, except as set forth in the Existing Engineering Reports.

(c) Borrower has not received and is not aware of any other party’s receipt of notice from any insurance company or bonding company of any defects or inadequacies in the Properties which would, alone or in the aggregate, adversely affect in any material respect the insurability of the same or cause the imposition of extraordinary premiums or charges thereon or of any termination or threatened termination of any policy of insurance or bond.

(d) Except as set forth in the Exception Report, each Property has available to it adequate parking to permit the operation of such Property as currently operated and in compliance with the standards set forth in the applicable Approved Management Agreement, in each case, in all material respects.

(e) All of the rooms at each Property are in service in all material respects, except for (i) rooms that are temporarily out of service for remodeling in the ordinary course of

business or routine maintenance and repair and (ii) the “Meadow Tower” rooms at the Arizona Charlie’s Decatur Property, which from time to time are in service only on select weekends.

4.24. Fraudulent Conveyance. Borrower has not entered into the Transaction or any of the Loan Documents with the actual intent to hinder, delay or defraud any creditor. Borrower has received reasonably equivalent value in exchange for its obligations under the Loan Documents. Borrower’s aggregate assets do not and, immediately following the making of the Loan and the use and disbursement of the proceeds thereof will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including Contingent Obligations and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts reasonably expected to be payable on or in respect of obligations of Borrower).

4.25. Management. Except for any Approved Management Agreement, Borrower is not a party to any property management agreement that is in effect with respect to the Properties. Except as set forth in the Exception Report, no party to any Approved Management Agreement (other than Borrower) has any possessory interest in, or right to occupy, or any option, right of first refusal or similar preferential right to purchase or lease, all or any portion of the Properties.

4.26. Condemnation. No Condemnation has been commenced or, to Borrower’s knowledge, is contemplated with respect to all or any material portion of the Properties or for the relocation of roadways providing access to the Properties.

4.27. Utilities and Public Access. The following statements are accurate in all material respects:

(i) The Properties have adequate rights of access to dedicated public ways (and makes no material use of any means of access or egress that is not pursuant to such dedicated public ways or recorded, irrevocable rights-of-way or easements) and is adequately served by all public utilities necessary to the continued use and enjoyment of the Properties as presently used and enjoyed.

(ii) All such utilities are located in the public rights-of-way abutting the premises or in areas (“Easement Areas”) that are the subject of recorded irrevocable easement agreements which benefit the Properties and which are listed in Schedule A of the applicable Qualified Title Insurance Policy so as to be included in the coverage thereof.

(iii) All such utilities are connected so as to serve the Properties without passing over other property other than Easement Areas.

(iv) All roads necessary for the full utilization of each of the Properties for their current purposes have been completed and are either part of the relevant Properties (by way of deed, easement or ground lease) or dedicated to public use and accepted by all Governmental Authorities.

4.28. Environmental Matters. Except as disclosed in the Environmental Reports:

(i) The Properties are in compliance in all material respects with all Environmental Laws applicable to the Properties (which compliance includes, but is not limited to, the possession of, and compliance with, all environmental, health and safety permits, approvals, licenses, registrations and other governmental authorizations required in connection with the ownership and operation of the Properties under all Environmental Laws).

(ii) No Environmental Claim is pending with respect to any of the Properties, nor, to Borrower’s knowledge, is any threatened, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or similar administrative enforcement or judicial requirements outstanding under any Environmental Law with respect to Borrower or the Properties.

(iii) Without limiting the generality of the foregoing, other than in compliance with applicable Environmental Laws there is not present at, on, in or under any Property, any Hazardous Substances, PCB-containing equipment, asbestos or asbestos containing materials, underground storage tanks or surface impoundments for any Hazardous Substance, lead in drinking water (except in concentrations that comply with all Environmental Laws), or lead-based paint.

(iv) To Borrower’s knowledge, there have not been and are no past, present or threatened Releases of any Hazardous Substance from or at any of the Properties that are reasonably likely to form the basis of any Environmental Claim, and, to Borrower’s knowledge, there is no threat of any Release of any Hazardous Substance migrating to any of the Properties that could reasonably be expected to result in liability to Borrower or otherwise have a Material Adverse Effect.

(v) No Liens are presently recorded with the appropriate land records under or pursuant to any Environmental Law with respect to any of the Properties and, to Borrower’s best knowledge, no Governmental Authority has been taking any action to subject any of the Properties to Liens under any Environmental Law.

(vi) There have been no material environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession of Borrower in relation to any of the Properties which have not been made available to Lender.

4.29. Assessments. There are no pending or, to Borrower’s knowledge, proposed special or other assessments for public improvements or otherwise affecting any of the Properties, nor, to Borrower’s knowledge, are there any contemplated improvements to any of the Properties that may result in such special or other assessments. No extension of time for assessment or payment by Borrower of any federal, state or local tax is in effect. All amounts owed to date by Borrower as owner of the Properties in the nature of common area maintenance expenses, parking fees, common association dues, assessments and similar charges have been paid in full.

4.30. No Joint Assessment. Borrower has not suffered, permitted or initiated the joint assessment of the Properties (i) with any other real property constituting a separate tax lot, or (ii) with any personal property, or any other procedure whereby the Lien of any Taxes which may be levied against such other real property or personal property shall be assessed or levied or charged to the Properties as a single Lien.

4.31. Separate Lots. No portion of any of the Properties is part of a tax lot that also includes any real property that is not Collateral.

4.32. Permits; Certificate of Occupancy.

(i) Each of Borrower and/or each Approved Property Manager has obtained all Permits necessary for the present and contemplated use and operation of the Properties except for Permits the absence of which would not reasonably be likely to have a Material Adverse Effect. The uses being made of the Properties are in conformity in all material respects with the certificate of occupancy and/or Permits for such Properties.

(ii) Schedule C sets forth the owner of the Liquor Licenses required for the provision of alcoholic beverages at each of the Properties.

4.33. Flood Zone. Except as shown in a Qualified Survey, none of the Improvements on the Properties are located in areas identified by the Federal Emergency Management Agency or the Federal Insurance Administration as a “100 year flood plain” or as having special flood hazards (including Zones A, B, C, V and X and Shaded X areas), or, to the extent that any portion of the Properties are located in such an area, the applicable Properties are covered by flood insurance meeting the requirements set forth in Section 5.15(a)(ii).

4.34. Security Deposits. To Borrower’s knowledge, Borrower is in compliance in all material respects with all Legal Requirements relating to security deposits.

4.35. [Intentionally Omitted].

4.36. Insurance. Borrower has obtained or caused to be obtained insurance policies reflecting the insurance coverages, amounts and other requirements set forth in this Agreement. All premiums on such insurance policies required to be paid as of the Closing Date have been paid for the current policy period. To Borrower’s knowledge, no Person, including Borrower, has done, by act or omission, anything which would impair the coverage of any such policy in any material respect.

4.37. Gaming Licenses.

(a) Schedule L contains a true, correct and complete list of all Gaming Licenses for the Properties, and the holder thereof, and each is in full force and effect and has not been amended or otherwise modified, rescinded, revoked or assigned.

(b) Each Borrower and each of their respective Affiliates are in compliance in all material respects with all such Gaming Licenses to the extent the same is applicable thereto.

(c) No event (including, without limitation, any violation of any Gaming Law) has occurred which would be reasonably likely to lead to the revocation or termination of any such Gaming License or the imposition of any material restriction thereon.

(d) Borrower has no reason to believe that any of the Casino Lessee Borrowers will not be able to maintain in effect all Gaming Licenses necessary for the lawful conduct of its business or operations wherever now conducted and as planned to be conducted, including the operation of the Casino Components, pursuant to all applicable Legal Requirements.

(e) Each Casino Lessee Borrower possesses all Gaming Licenses which are material to the conduct of its business and the use, occupation and operation of the Property.

(f) Each Casino Lessee Borrower and each of its Affiliates, their respective directors, members, managers, officers, key personnel and all Persons holding a five percent (5%) or greater equity or economic interest directly or indirectly in each Casino Lessee Borrower is in compliance in all material respects with all such Gaming Licenses.

(g) The prior consent of Gaming Authorities is not required in connection with any Assignment, Participation or other transfer of the Loan by Lender.

(h) Neither the execution, delivery or performance of any of the Loan Documents (nor the Securitization or any participations in the Loan) will, except as provided in Regulation 8.130 of the Regulations of the Nevada Gaming Commission and State Gaming Control Board with respect to renewals, changes or modifications to the Loan Documents subsequent to the Closing Date: (i) require the consent of any Gaming Authority not heretofore obtained or (ii) allow or result in the imposition of any material penalty under, or the revocation or termination of, any Gaming License or any material impairment of the rights of the holder of any Gaming License.

4.38 Trade Name; Other Intellectual Property. Borrower owns or licenses (as the case may be) all such patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service xxxx rights, domain names, copyrights, trade secrets and other proprietary information, including customer data (collectively, the “Intellectual Property”), as Borrower considers necessary for the conduct of its business as now conducted (including such registered trademarks, service marks, domain names, patents and copyrights, and applications therefore, owned by Borrower described on Schedule M), without individually or in the aggregate, infringement upon intellectual property rights of other Persons, in each case except as could not reasonably be expected to materially and adversely (i) affect the value of the Property, (ii) impair the use and operation of the Property or (iii) impair Borrower’s ability to pay their respective obligations (under the Loan Documents or the Operating Leases, as the case may be) in a timely manner. With respect to the Intellectual Property owned by Borrower or its Affiliates, as among such parties, Borrower owns all Intellectual Property necessary for the business of Borrower, except for such Intellectual Property that may be owned by an Affiliate and is subject to legal or contractual restrictions that restrict its assignment to Borrower (or, in the case of Intellectual Property such as intent-to-use trademark applications, would be materially impaired by such assignment) in which case, subject to legal or contractual restrictions

that restrict its licensing to Borrower, Borrower has a license to such Intellectual Property which license is pledged to Lender pursuant to the Mortgage.

4.39 Embargoed Person. (a) None of the funds or other assets of any of Borrower, any Single-Purpose Equityholder or Sponsor constitute property of, or are beneficially owned, directly or indirectly, by any person, entity or government subject to trade restrictions under federal law, including, without limitation, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. , and any executive orders or regulations promulgated thereunder, with the result that (i) the investment in any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable (whether directly or indirectly), is prohibited by law or (ii) the Loan is in violation of law (any such person, entity or government, an “Embargoed Person”); (b) no Embargoed Person has any interest of any nature whatsoever in any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable (whether directly or indirectly), with the result that (i) the investment in any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable (whether directly or indirectly) is prohibited by law or (ii) the Loan is in violation of law and (c) none of the funds of any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable, have been derived from any unlawful activity with the result that (i) the investment in any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable (whether directly or indirectly) is prohibited by law or (ii) the Loan is in violation of law. Notwithstanding Section 4.42 to the contrary, the representations and warranties contained in this Section 4.39 shall survive in perpetuity.

4.40 REAs. Neither Borrower nor, to Borrower’s knowledge, any other party thereto, is in material default under any REA. Borrower has obtained all necessary approvals and consents from all other parties to each REA to the extent such approval or consent is necessary to encumber the Properties.

4.41 Survival. Borrower agrees that all of the representations of Borrower set forth in this Agreement and in the other Loan Documents shall survive for so long as any portion of the Indebtedness is outstanding. All representations, covenants and agreements made by Borrower in this Agreement or in the other Loan Documents shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.

4.42 Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws. Borrower, and to the best of Borrower’s knowledge after due inquiry, (a) each Person owning an interest in any of Borrower, any Single-Purpose Equityholder or Sponsor, (b) each Single-Purpose Equityholder, if any, and (c) Sponsor (i) is not currently identified on the OFAC List and (ii) is not a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of any Legal Requirement.

ARTICLE V

AFFIRMATIVE COVENANTS

5.1. Existence. Borrower and, if applicable, each Single-Purpose Equityholder, shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and all rights, licenses, Permits, franchises and other agreements necessary for the continued use and operation of its business. Borrower and, if applicable, each Single-Purpose Equityholder shall deliver to Administrative Agent a copy of each amendment or other modification to any of its organizational documents promptly after the execution thereof. Any Co-Borrower that is a limited liability company shall have the right to convert itself into a limited partnership, provided that in connection therewith (i) notwithstanding such conversion, such Co-Borrower shall continue to be a Single-Purpose Entity, (ii) such converted Co-Borrower shall execute all documents reasonably necessary to continue the Lien and ensure the enforceability of the Loan Documents with respect to such converted Co-Borrower, including, without limitation, amendments to the Loan Documents, (iii) new operating agreements, good standing certificates, certificates of formation and organizational charts shall be delivered to Administrative Agent with respect to any such converted Co-Borrower, (iv) new legal opinions with respect to such converted Co-Borrower shall be delivered to Administrative Agent, (v) Borrower shall pay all of Lender’s and Agents’ actual out-of-pocket expenses in connection with any such conversion (including reasonable legal expenses), (vi) any such conversion of a Co-Borrower shall not take the form of a dissolution of such Co-Borrower and the execution of such conversion shall assure the continued existence of such Co-Borrower and (vii) Borrower shall otherwise provide and/or execute such other documents and certificates in connection with such conversion of a Co-Borrower as Administrative Agent shall reasonably request.

5.2. Maintenance of Properties.

(a) Borrower will keep the Properties in good working order and repair, reasonable wear and tear excepted. Subject to Section 6.13, Borrower shall from time to time make, or cause to be made, all reasonably necessary repairs, renewals, replacements, betterments and improvements to such properties.

(b) Borrower shall diligently perform to completion all work as and to the extent required under any “Property Improvement Plans,” “Restoration Scope” plans, or similar capital improvement or expenditure obligations provided for in any Approved Management Agreement and any other capital improvement or expenditure obligation which Borrower is obligated to perform or undertake (as any such plan or obligation may be modified from time to time in accordance herewith).

5.3. Compliance with Legal Requirements. Borrower shall, in all material respects, comply with, and shall cause the Properties to comply with and be operated, maintained, repaired and improved in compliance with, all Legal Requirements (including Gaming Laws), Insurance Requirements and all material contractual obligations by which

Borrower is legally bound. Notwithstanding the foregoing, but without limiting the requirements of any other provision of this Agreement permitting such proceedings (including clauses (iv) and (vi) of the definition of “Permitted Encumbrances”) Borrower may contest by appropriate legal proceedings, initiated and conducted in good faith and with reasonable diligence, the validity, amount or application of any Legal Requirement, provided that and so long as: (i) such proceeding shall be permitted under and be conducted in accordance with the applicable provisions of any other instrument governing the contest of such Legal Requirements to which Borrower or any such Property is subject and shall not constitute a default thereunder; (ii) no part of or interest in any Property (or Borrower’s interest therein) will be reasonably expected to be in danger of being sold, forfeited, terminated, canceled or lost during the pendency of the proceeding; (iii) such proceeding shall not reasonably be expected to subject Borrower, Lender or any Agent to criminal liability; (iv) Borrower shall upon final determination thereof pay the amount of such items, together with all costs, interest and penalties; and (v) such proceeding would not have a Portfolio Material Adverse Effect.

5.4. Impositions and Other Claims. Borrower shall pay and discharge all taxes, assessments and governmental charges levied upon it, its income and its assets prior to the time when such taxes, assessments and charges become delinquent, as well as all lawful claims for labor, materials and supplies or otherwise, subject to any rights to contest contained in the definition of Permitted Encumbrances; provided, however, that Borrower’s obligation to directly pay taxes shall be suspended for so long as Borrower complies with the terms and provisions of Section 3.4 of this Agreement. Borrower shall file all federal, state and local tax returns and other reports that it is required by law to file. If any law or regulation applicable to Lender, any Note, the Properties or the Mortgage is enacted that deducts from the value of property for the purpose of taxation any Lien thereon, or imposes upon Lender the payment of the whole or any portion of the taxes or assessments or charges or Liens required by this Agreement to be paid by Borrower, or changes in any way the laws or regulations relating to the taxation of mortgages or security agreements or debts secured by mortgages or security agreements or the interest of the mortgagee or secured party in the property covered thereby, or the manner of collection of such taxes, so as to affect the Mortgage, the Indebtedness or Lender, then Borrower, upon demand by Administrative Agent, shall pay such taxes, assessments, charges or Liens, or reimburse Lender for any amounts paid by Lender.

5.5. Access to Properties. Borrower shall permit agents, representatives and employees of Lender and Agents (at Lender’s sole cost and expense unless an Event of Default shall have occurred and is then continuing), who shall be accompanied by a representative of Borrower, to inspect the Properties or any portion thereof, and/or the books and records of Borrower, at such reasonable times on Business Days as may be requested by Administrative Agent upon reasonable advance notice, subject to the terms of the Leases, and provided such entry and inspection shall not unreasonably interfere with the usual operation and conduct of business at the Properties or the use and enjoyment of the Properties by Borrower or its tenants, customers and guests.

5.6. Cooperate in Legal Proceedings. Except with respect to any claim by Borrower against Lender and any claim brought by Lender against Borrower, Borrower shall cooperate fully with Lender and each Agent with respect to any proceedings before any Governmental Authority which may in any way affect the rights of Lender hereunder or under

any of the Loan Documents and, in connection therewith, Lender and/or any Agent may, at Lender’s election and expense, participate or designate a representative to participate in any such proceedings.

5.7. Leases.

(a) Borrower shall furnish Administrative Agent with executed copies of all Major Leases, together with a detailed breakdown of income and cost associated therewith. All Leases executed after the date hereof and renewals or amendments of Leases after the date hereof must be entered into on an arms-length basis with Tenants whose identity and creditworthiness is appropriate for tenancy in a property of comparable quality and nature to the applicable Property, must provide for rental rates and other economic terms which, taken as a whole, are at least equivalent to then-existing market rates, based on the applicable market, and must contain terms and conditions that are commercially reasonable (in each case, unless Administrative Agent consents to such Lease in its sole discretion, unless with respect to any renewal or amendment, Borrower is obligated to execute and deliver the same pursuant to a Lease in effect as of the date hereof or entered into subsequent to the date hereof and in accordance with the terms hereof). All new Leases must provide that they are subject and subordinate to any current or future mortgage financing on the Properties and that the Tenants agree to attorn to any foreclosing mortgagee at such mortgagee’s request. Upon Borrower’s request, at Borrower’s sole cost and expense, Administrative Agent, on behalf of Lender, shall reasonably promptly (but in no event later than 10 Business Days following Borrower’s request therefor as long as the Required Lenders have given a direction to the Administrative Agent before such time) execute and deliver a Subordination, Non-Disturbance and Attornment Agreement to the Tenant of any future Lease, in substantially the form attached hereto as Exhibit C and with such changes as may be reasonably requested by Tenant from time to time.

(b) All Leases executed after the date hereof which are Major Leases, and all terminations (other than as a result of a material default by the Tenant thereunder), renewals (other than as required pursuant to any Major Lease) and material amendments of Major Leases (other than as required pursuant to any Major Lease), and any surrender of landlord’s material rights under any Major Lease, shall be subject to the prior written consent of Administrative Agent, which consent shall be granted or withheld at the direction of the Required Lenders and, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Each request for approval of a Lease which is submitted to Administrative Agent in an envelope marked “URGENT — LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a copy of the proposed Lease, a summary of the material economic terms thereof and any termination and other material options contained therein, and copies of all written materials obtained by Borrower in connection with its evaluation of the creditworthiness of the proposed Tenant or, with respect to a proposed termination, a description of the reason therefor, shall be deemed approved if Administrative Agent shall not have notified the Borrower in writing of its disapproval within 10 Business Days after receipt of such submission. Notwithstanding the foregoing, the deemed approval provision of the immediately preceding sentence shall not apply to any Operating Lease or any amendment thereof.

(c) Borrower shall (i) observe and perform in a commercially reasonable manner all the material obligations imposed upon the lessor under the Leases; (ii) enforce in a

commercially reasonable manner all of the material terms, covenants and conditions contained in the Leases on the part of the lessee thereunder to be observed or performed, short of termination thereof, except that Borrower may terminate any Lease following a material default thereunder by the respective Tenant or, in the case of Leases which are not Material Leases, if such termination would not have a Material Adverse Effect; (iii) not collect any of the rents thereunder more than one month in advance of its due date (other than security deposits held in accordance with the terms of this Agreement); (iv) not execute any assignment of lessor’s interest in the Leases or associated rents other than the assignments of rents and leases under the Mortgage; and (v) not cancel or terminate any guarantee of any of the Major Leases without the prior written consent of Administrative Agent, which consent shall be granted or withheld at the direction of the Required Lenders and, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned. Any request for Administrative Agent’s consent pursuant to this Section 5.7(c)(v) shall be submitted to Administrative Agent in an envelope marked “URGENT — LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a detailed description of the request for which Administrative Agent’s consent is sought and any documentation needed for Administrative Agent to evaluate such request, and shall be deemed approved if Administrative Agent shall not have notified Borrower in writing of its disapproval thereof and the reasons for such disapproval within five Business Days after Borrower shall have given Administrative Agent written notice confirming that at least ten Business Days have elapsed since such submission, which written notice shall be submitted to Administrative Agent in an envelope marked “URGENT — SECOND AND FINAL NOTICE — LENDER’S ATTENTION REQUIRED BY [DATE]”).

(d) Security deposits of Tenants under all Leases, whether held in cash or any other form, shall not be commingled with any other funds of Borrower and, if cash, shall be deposited by Borrower at such commercial or savings bank or banks as may be reasonably acceptable to Administrative Agent and Borrower’s rights thereto pledged to Collateral Agent. Any bond or other instrument which Borrower is permitted to hold in lieu of cash security deposits under any applicable Legal Requirements shall be maintained in full force and effect unless replaced by cash deposits as described above, shall be issued by an institution reasonably acceptable to Administrative Agent, shall (if not prohibited by any Legal Requirements) name Collateral Agent as payee or mortgagee for the benefit of Lender thereunder (or be fully assignable to Collateral Agent for the benefit of Lender) or may name Borrower as payee thereunder so long as such bond or other instrument is pledged to Collateral Agent as security for the Indebtedness and shall, in all respects, comply with any applicable Legal Requirements and otherwise be reasonably acceptable to Administrative Agent. Borrower shall, upon Administrative Agent’s request, provide Administrative Agent with evidence reasonably acceptable to Administrative Agent of Borrower’s compliance with the foregoing. During the continuance of any Event of Default, Borrower shall, upon Administrative Agent’s request, deposit with Collateral Agent in a segregated Eligible Account pledged to Collateral Agent for the benefit of Lender an amount equal to the aggregate security deposits of the Tenants (and any interest theretofore earned on such security deposits and actually received by Borrower) which Borrower had not returned to the applicable Tenants or applied in accordance with the terms of the applicable Lease, and Collateral Agent shall hold such security deposits in a segregated account in accordance with the applicable Lease.

(e) Notwithstanding anything to the contrary contained in this Section 5.7, neither (i) the failure to pay rent or any other amounts under any Operating Lease as a result of the Lessee Borrower under such Operating Lease having insufficient funds to pay such rent or other amounts nor (ii) the failure to observe any non-monetary covenants or obligations under any Operating Leases (except, in the case of (ii) only, to the extent that such failure would result in a Material Adverse Effect or otherwise impair the value of the Lease as Collateral) shall result in a breach, Default or Event of Default under this Agreement or any of the other Loan Documents. Lessee Borrower hereby agrees that the failure by the lessor under any Operating Lease to enforce any provision thereof (including, without limitation, the obligation to pay rent or any other amounts due under any Operating Lease), or any waiver of any provision of any Operating Lease by the lessor thereunder, shall not constitute a waiver of such provision by Administrative Agent or Lender and, upon a foreclosure of any Collateral subject to such Operating Lease, all such provisions shall remain in full force and effect and enforceable against Lessee Borrower by Administrative Agent, Lender or its designee.

5.8. Plan Assets, etc. Borrower will do, or cause to be done, all things necessary to ensure that it will not be deemed to hold Plan Assets at any time.

5.9. Further Assurances. Borrower shall, at Borrower’s sole cost and expense, from time to time as reasonably requested by Administrative Agent at the direction of the Required Lenders, execute, acknowledge, record, register, file and/or deliver to Collateral Agent such other instruments, agreements, certificates and documents (including Uniform Commercial Code financing statements and amended or replacement mortgages) as Administrative Agent may reasonably request at the direction of Required Lenders to evidence, confirm, perfect and maintain the Liens securing or intended to secure the obligations of Borrower under the Loan Documents or to facilitate a replacement of the Cash Management Bank pursuant to Section 3.1(c) or a bifurcation of the Note pursuant to, and subject to any conditions, terms and limitations specified in, Section 9.7(a) (including, without limitation, the party bearing the cost thereof), in each case if reasonably requested by Administrative Agent at the direction of Required Lenders, and do and execute all such further lawful and reasonable acts, conveyances and assurances necessary for the carrying out of the intents and purposes of this Agreement and the other Loan Documents as Administrative Agent shall reasonably request at the direction of Required Lenders from time to time. The Administrative Agent shall have no duty, liability or obligation to make any request under this Section 5.9, absent the direction of the Required Lenders.

5.10. Management of Collateral.

(a) Each Property shall at all times be operated by the applicable Lessee Borrower pursuant to the applicable Operating Lease. Any management or similar agreement relating to any Property shall be (i) subject to the prior written consent of the Administrative Agent (which consent shall be granted or denied at the direction of the Required Lenders, not to be unreasonably withheld) (an “Approved Management Agreement”) and (ii) with an Approved Property Manager. The Approved Property Manager under any Approved Management Agreement shall enter into a Subordination of Property Management Agreement. Notwithstanding anything to the contrary contained herein, this Section 5.10(a) is subject to compliance with applicable Gaming Laws and shall not be construed as meaning or requiring

anything that would be in contravention thereof and, where required by applicable Gaming Law, is subject to the acquisition of all necessary Gaming Licenses.

(b) Borrower shall cause each Approved Property Manager (including any successor Approved Property Manager) to maintain at all times worker’s compensation insurance as required by Governmental Authorities.

(c) Borrower shall notify Administrative Agent in writing of any material default of Borrower or an Approved Property Manager under any of the Approved Management Agreements, after the expiration of any applicable cure periods, of which Borrower has actual knowledge. Administrative Agent shall have the right, after reasonable notice to Borrower and in accordance with the applicable Subordination of Management Agreement, to cure defaults of Borrower under such Approved Management Agreement. Any reasonable out-of-pocket expenses incurred by Lender or any Agent to cure any such default in accordance with such Subordination of Management Agreement shall constitute a part of the Indebtedness and shall be due from Borrower upon demand by Administrative Agent. Notwithstanding anything to the contrary, in the case of a material default by Borrower under any Approved Management Agreement relating to a failure to provide adequate working capital in respect of payroll and related employee expenses or otherwise, Borrower shall cure any such default promptly upon its receipt of notice thereof from the applicable Approved Property Manager and in any event by no later than 5 Business Days prior to the expiration of any applicable cure periods provided under the applicable Approved Management Agreement. Notwithstanding anything to the contrary contained herein, this Section 5.10(c) is subject to compliance with applicable Gaming Laws and shall not be construed as meaning or requiring anything that would be in contravention thereof and, where required by applicable Gaming Law, is subject to the acquisition of all necessary Gaming Licenses.

(d) Upon the occurrence and during the continuance of an Event of Default, Administrative Agent may at the direction of the Required Lenders in their sole discretion, require Borrower to terminate one or more of the Approved Management Agreements, if any, and engage one or more Approved Property Managers selected by Administrative Agent to serve as replacement Approved Property Managers pursuant to Approved Management Agreements, subject, however, to the acquisition by such Approved Property Manager(s) of all necessary Gaming Licenses to the extent required under applicable law. Notwithstanding anything to the contrary contained herein, this Section 5.10(d) is subject to compliance with applicable Gaming Laws and shall not be construed as meaning or requiring anything that would be in contravention thereof and, where required by applicable Gaming Laws, is subject to acquisition of all necessary Gaming Licenses.

(e) Upon the filing of a bankruptcy petition or the occurrence of a similar event with respect to an Approved Property Manager, or upon the occurrence and during the continuance of a material default by an Approved Property Manager under an Approved Management Agreement such that the Approved Management Agreement is terminable by Borrower in accordance with the terms thereof, subject, in each case, to the acquisition of all necessary Gaming Licenses, to the extent required under applicable law,

(i) if the applicable Approved Property Manager is an Affiliate of Borrower, Administrative Agent may, at the direction of the Required Lenders in their sole discretion, require Borrower to terminate the applicable Approved Management Agreement and cause Borrower to engage one or more replacement Approved Property Managers pursuant to Approved Management Agreements; and

(ii) if the applicable Approved Property Manager is not an Affiliate of Borrower, provided no Event of Default is then continuing, Borrower shall have the right, without Administrative Agent’s consent, to terminate the applicable Approved Property Manager and to engage a replacement Approved Property Manager pursuant to an Approved Management Agreement.

5.11. Certain Notices and Reports.

(a) Borrower shall give Administrative Agent prompt notice (containing reasonable detail) of (i) any condition or event that constitutes a Default or an Event of Default, (ii) any Material Adverse Effect or any Portfolio Material Adverse Effect, in either case, as reasonably determined by Borrower, including the termination or cancellation of terrorism or other insurance required by this Agreement, (iii) the termination of any Major Lease or material license, including any Gaming License and (iv) any litigation or governmental proceedings pending or threatened in writing against Borrower which is reasonably likely to have a Material Adverse Effect or a Portfolio Material Adverse Effect.

(b) Borrower shall deliver to Administrative Agent copies of the periodic reports delivered to Borrower by the Approved Property Managers pursuant to the respective Approved Management Agreements.

5.12. Annual Financial Statements. As soon as available, and in any event within 90 days after the close of each Fiscal Year, Borrower shall furnish to Administrative Agent a consolidated balance sheet of Borrower (including each Lessee Borrower) as of the end of such year, together with related statements of income and equityholders’ capital for such Fiscal Year, audited by a “Big Four” accounting firm (or another independent accounting firm of national repute reasonably approved by Administrative Agent) whose opinion shall be to the effect that such financial statements have been prepared in accordance with GAAP applied on a consistent basis and shall not be qualified as to the scope of the audit or as to the status of Borrower a going concern. Together with Borrower’s aforementioned annual financial statements, Borrower shall furnish to Administrative Agent:

(i) a statement of cash flows;

(ii) an annual report for the most recently completed fiscal year, describing Capital Expenditures (stated separately with respect to any project costing in excess of $500,000), Tenant Improvements and Leasing Commissions; and

(iii) such other information as Administrative Agent shall reasonably request.

5.13. Quarterly Financial Statements. As soon as available, and in any event within 45 days after the end of each Fiscal Quarter (including year-end), Borrower shall furnish

to Administrative Agent, on a Property by Property basis, quarterly and year-to-date unaudited financial statements prepared for such fiscal quarter with respect to Borrower (including each Lessee Borrower), including a balance sheet and operating statement as of the end of such Fiscal Quarter, together with related statements of income, equityholders’ capital and cash flows for such Fiscal Quarter and for the portion of the Fiscal Year ending with such Fiscal Quarter, which statements shall be accompanied by an Officer’s Certificate certifying that the same are true and correct and were prepared in accordance with GAAP applied on a consistent basis, subject to changes resulting from audit and normal year-end audit adjustments. Each such quarterly report shall be accompanied by the following:

(i) copies of each of the Major Leases signed during such quarter, together with a summary thereof which shall include the Tenant’s name, lease term, base rent, Tenant Improvements, leasing commissions paid, free rent and other material tenant concessions;

(ii) then current franchise reports (if any), average daily room rates and occupancy reports;

(iii) then current rent roll with respect to each of the Properties;

(iv) a report detailing material variations from the Approved Annual Budget;

(v) updates to the business plan for the Properties containing the narrative in the form of Exhibit F hereto; and

(vi) a “Debt to EBITDA Certificate” with respect to such Fiscal Quarter in the form attached hereto as Exhibit J;

(vi) an Officer’s Certificate reasonably acceptable to Administrative Agent calculating Debt to EBITDA for the most recently ended Fiscal Quarter and certifying Borrower’s compliance with Section 6.20; and

(vi) such other information as Administrative Agent shall reasonably request.

If the certificates described in forgoing clauses (v) and (vi) are delivered prior to the delivery of the other information required in this Section, then Borrower shall also deliver the certificates described in forgoing clauses (v) and (vi) when such other information is delivered, which new certificates shall take into account any additional information that has become available to Borrower since such certificates were first delivered.

5.14. Monthly Financial Statements. Until the occurrence of a Securitization and during the continuance of an Event of Default (or, in the case of item (iv) below, at all times), Borrower shall furnish to Administrative Agent within 30 days after the end of each calendar month both monthly and year-to-date unaudited financial statements prepared on a Property by Property basis for the applicable month with respect to Borrower (including each Lessee Borrower), including a balance sheet and operating statement as of the end of such month, together with related statements of income, equityholders’ capital and cash flows for such month and for the portion of the Fiscal Year ending with such month, which statements shall be

accompanied by an Officer’s Certificate certifying that the same are true and correct and were prepared in accordance with GAAP applied on a consistent basis, subject to changes resulting from audit and normal year-end audit adjustments. Each such monthly report shall be accompanied by the following:

(i) a summary of Major Leases signed during such month, which summary shall include the Tenant’s name, lease term, base rent, escalations, Tenant Improvements, leasing commissions paid, free rent and other concessions;

(ii) then current franchise reports (if any), average daily room rates and occupancy reports;

(iii) then current rent roll with respect to each of the Properties;

(iv) cash flow analyses in the forms attached hereto as Exhibit E-1 and Exhibit E-2 comparing actual monthly and year-to-date financials to budget and historical results for those same periods; and

(v) such other information as Administrative Agent shall reasonably request.

5.15. Insurance.

(a) Borrower shall obtain and maintain or cause to be obtained and maintained with respect to the Properties, for the mutual benefit of Borrower and Administrative Agent at all times, the following policies of insurance:

(i) insurance against loss or damage by standard perils included within the classification “All Risks Special Form Cause of Loss” (including coverage for damage caused by windstorm and hail). Such insurance shall (A) be in an aggregate amount equal to the lesser of (1) the full replacement cost (exclusive of costs of excavations, foundations, underground utilities and footings) of the applicable Properties and fixtures (without deduction for physical depreciation) and (2) the product of $620,000,000 and a fraction, the numerator of which is the applicable Property’s Allocated Loan Amount and the denominator of which is the Loan Amount (notwithstanding anything to the contrary in this subclause (A), the full replacement cost of the applicable Property shall be required at all times, unless Borrower secures and maintains an endorsement to the property policy whereby the carrier thereof has agreed that there is no obligation on the part of the Borrower to rebuild and that Borrower will receive proceeds in the amount of full replacement cost for the applicable Property, regardless of whether or not the applicable Property is actually rebuilt); (B) have deductibles acceptable to Administrative Agent (but in any event not in excess of $1,000,000 (except as otherwise provided in this Section 5.15 with respect to particular types of insurance coverage)); (C) contain a “Replacement Cost Endorsement”, or an “Agreed Amount Endorsement”, providing a waiver of co-insurance; (D) include an ordinance or law coverage endorsement containing Coverage A: “Loss Due to Operation of Law”, Coverage B: “Demolition Cost” and Coverage C: “Increased Cost of Construction” coverages with limits as Administrative Agent may reasonably require; and (E) permit that the improvements and other property covered by such insurance be rebuilt at another location in the event that

such improvements and other property cannot be rebuilt at the location on which they are situated as of the date hereof;

(ii) Flood insurance if the Property is located in a “100 Year Flood Plain” or “special hazard area” (including Zones A and V Areas) in an amount equal to the maximum amount of such insurance available from FEMA/FIA, plus such excess limits as reasonably requested by Administrative Agent (up to $25,000,000), and having a deductible reasonably acceptable to Administrative Agent (but in any event not in excess of 5% of the insurable value of such Property;

(iii) commercial general liability insurance, including broad form coverage of property damage, blanket contractual liability and personal injury (including death resulting therefrom), containing minimum limits per occurrence of not less than $1,000,000 with not less than a $2,000,000 general aggregate for any policy year (and if on a blanket policy, containing an “Aggregate Per Location” endorsement). In addition, at least $100,000,000 excess and/or umbrella liability insurance shall be obtained and maintained for any and all claims, including all legal liability imposed upon Borrower and all related court costs and attorneys’ fees and disbursements;

(iv) rental loss and/or business interruption insurance for the actual period of restoration on an actual loss sustained basis commencing on the date of any Casualty or Condemnation, and containing an extended period of indemnity endorsement covering the 12 month period commencing on the date on which the applicable Property has been restored;

(v) insurance against loss or damage from (A) leakage of sprinkler systems and (B) explosion of steam boilers, air conditioning equipment, high pressure piping, machinery and equipment, pressure vessels or similar apparatus now or hereafter installed in any of the Improvements (without exclusion for explosions) and insurance against loss of occupancy or use arising from any breakdown, in such amounts as are generally available and are generally required by institutional lenders for properties comparable to the Properties;

(vi) worker’s compensation insurance with respect to all employees of Borrower as and to the extent required by any Governmental Authority or Legal Requirement and employer’s liability coverage of at least $5,000,000, crime coverage of at least $5,000,000 and employment practices liability and directors and officer’s liability with a combined limit of no less than $10,000,000;

(vii) at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the property coverage form does not otherwise apply, in form and substance acceptable to Administrative Agent (A) owner’s contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above mentioned commercial general liability insurance policy; and (B) the insurance provided for in clauses (i), (ii), (iv), (v), (ix) and (x) of this Section 5.15(a) (including fire and extended coverage and collapse of the Improvements to agreed limits) written in a so-called Builder’s Risk Completed Value

form (1) on a non-reporting basis, (2) against “special causes of loss” insured against pursuant to clauses (i), (iv), (v) and (x) of this Section 5.15(a), covering 100% of total costs of construction (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions;

(viii) [Intentionally Omitted]

(ix) if required by Administrative Agent, earthquake insurance (A) in an amount equal to 1.0 times the probable maximum loss of each Property, including business income, with the equivalent probable maximum loss greater than 20%, (B) having a deductible reasonably acceptable to Administrative Agent and subject to Rating Confirmation (but in any event earthquake insurance for each of the Properties shall not be in excess of 5% of the insurable value of such Property) and (C) if such Property is legally nonconforming under applicable zoning ordinances and codes, containing ordinance of law coverage in amounts as required by Administrative Agent;

(x) so long as the Terrorism Risk Insurance Act of 2002 (“TRIA”) or a similar statute is in effect, terrorism insurance for Certified and Non-Certified acts (as such terms are defined in TRIA) in an amount equal to the lesser of (1) the full replacement cost of the applicable Properties for Certified acts (plus twelve months of business interruption coverage) and (2) the product of $620,000,000 and a fraction, the numerator of which is the applicable Property’s Allocated Loan Amount and the denominator of which is the Loan Amount (notwithstanding anything to the contrary in this clause (x), the full replacement cost of the applicable Property shall be required at all times, unless Borrower secures and maintains an endorsement to the property policy whereby the carrier thereof has agreed that there is no obligation on the part of the Borrower to rebuild and that Borrower will receive proceeds in the amount of full replacement cost for the applicable Property, regardless of whether or not the applicable Property is actually rebuilt); and if the current terrorism limit is reduced due to any claim, Borrower shall reinstate the full limit. If TRIA or a similar statute is not in effect, then provided that terrorism insurance is commercially available, Borrower shall be required to carry terrorism insurance throughout the term of the Loan as required by the preceding sentence, but in such event Borrower shall not be required to spend on terrorism insurance coverage more than the amount of the insurance premium that is payable at such time in respect of the All Risk insurance required hereunder;

(xi) liquor liability insurance in an amount of at least $25,000,000 or in such greater amount as may be required by applicable Legal Requirements against claims or liability arising directly or indirectly to persons or property on account of the sale or dispensing of alcoholic beverages at the Properties; and

(xii) such other insurance as may from time to time be reasonably requested by Administrative Agent.

(b) All policies of insurance (the “Policies”) required pursuant to this Section 5.15 shall be issued by one or more primary insurers having a claims-paying ability of at least “A-” or “A3” by S&P or Xxxxx’x (or such other insurers rated only by A.M. Best as

Administrative Agent may allow the direction of the Required Lenders in their reasonable discretion), or by a syndicate of insurers through which at least 75% of the coverage (if there are 4 or fewer members of the syndicate) or at least 60% of the coverage (if there are 5 or more members of the syndicate) is with carriers having such claims-paying ability ratings (provided that the first layers of coverage are from carriers rated at least “A-” or “A3” and all such carriers shall have claims-paying ability ratings of not less than “BBB+” or “Baa1”). Notwithstanding anything to the contrary herein, for purposes of determining whether the insurer ratings requirements set forth above have been satisfied, (1) any insurer that is not rated by Fitch will be regarded as having a Fitch rating that is the equivalent of the rating given to such insurer by any of Xxxxx’x and S&P that does rate such insurer (or, if both such rating agencies rate such insurer, the lower of the two ratings), and (2) any insurer that is not rated by Xxxxx’x will be regarded as having a Xxxxx’x rating of “Baa1” or better if it is rated “A-” or better by S&P and will be regarded as having a Xxxxx’x rating of “A3” or better if it is rated “A” or better by S&P.

(i) shall be maintained throughout the term of the Loan without cost to Lender or any Agent;

(ii) with respect to casualty policies, shall contain a standard noncontributory mortgagee clause naming Collateral Agent, for the benefit of Lender, and its successors and assigns as first mortgagee and loss payee;

(iii) with respect to liability policies, shall name Collateral Agent, for the benefit of Lender, and its successors and assigns as additional insureds;

(iv) with respect to rental or business interruption insurance policies, shall name Collateral Agent, for the benefit of Lender, and its successors and/or assigns as loss payee;

(v) shall contain an endorsement providing that none of Borrower, Lender, any Agent or any other party shall be a co-insurer under said Policies;

(vi) shall contain an endorsement providing that Administrative Agent shall receive at least 30 Business Days’ prior written notice of any modification, reduction or cancellation thereof and 10 Business Days’ prior written notice of nonpayment of premiums;

(vii) shall contain an endorsement providing that no act or negligence of Borrower or of a Tenant or other occupant shall affect the validity or enforceability of the insurance insofar as a mortgagee is concerned;

(viii) shall contain a waiver of subrogation against Lender;

(ix) shall contain deductibles which, in addition to complying with any other requirements expressly set forth in Section 5.15(a), are acceptable to Administrative Agent and are no larger than is customary for similar policies covering similar properties in the geographic market in which the applicable Property is located and in any event no

larger than $1,000,000, except (A) as provided in Section 5.15(a)(ii) and (ix), and (B) to the extent approved by Administrative Agent in writing, the deductible for windstorm coverage may exceed $1,000,000 (but in any event, such deductible shall not be in excess of 5% of the insurable value of the relevant Property);

(x) may be in the form of a blanket policy, provided that Borrower shall provide evidence acceptable to Administrative Agent that the insurance premiums for the Properties are separately allocated under such Policy to the Properties and that (i) payment of such allocated amount shall maintain the effectiveness of such Policy as to the Properties notwithstanding the failure of payment of any other portion of premiums, and (ii) overall insurance limits will under no circumstance limit the amount that will be paid in respect of the Properties, and provided further that any such blanket policy shall contain an amendment setting forth that (A) the aggregate limit under such policy shall apply separately to each property covered thereunder, and (B) unless otherwise agreed to by Administrative Agent, the limit of such policy shall be a “true blanket limit” and not limited by a schedule of values for the properties covered thereby.

Any policies of insurance maintained by Borrower but not required hereunder shall comply with clauses (ii), (iii), (v), (vii) and (viii) above.

(d) Borrower shall pay or cause to be paid the premiums for all Policies as the same become due and payable; provided, however, that Borrower shall not be deemed to have breached this covenant to the extent sufficient funds to pay such premiums are available in the Taxes and Insurance Reserve Account, to the extent that funds for payment of insurance premiums are then being reserved therein in pursuant to Section 3.4. Not later than 10 Business Days prior to the expiration date of each Policy, Borrower shall deliver to Administrative Agent evidence, reasonably acceptable to Administrative Agent, of its renewal.

(e) If at any time Administrative Agent is not in receipt of written evidence that all insurance required hereunder is in full force and effect, Administrative Agent shall have the right, upon 2 Business Days prior written notice to Borrower, if during such 2 Business Days such written evidence is not provided to Administrative Agent, to take such action as Required Lenders deem reasonably necessary to protect their interest in any applicable Property, including, without limitation, obtaining such insurance coverage as Required Lenders deem appropriate (but limited to the coverages required under Section 5.15(a)) and all premiums incurred by Administrative Agent in connection with such action or in obtaining such insurance and keeping it in effect shall be paid by Borrower to Administrative Agent upon demand and, until paid, shall be secured by the Mortgages and shall bear interest at the Default Rate until such time as Borrower delivers to Administrative Agent such written evidence.

5.16. Casualty and Condemnation.

(a) Borrower shall give prompt notice to Administrative Agent of any Casualty or Condemnation. Administrative Agent may, on behalf of Lender (x) jointly with Borrower settle and adjust any claims, (y) during the continuance of an Event of Default, settle and adjust any claims without the consent or cooperation of Borrower, or (z) allow Borrower to settle and adjust any claims; except that if no Event of Default has occurred and is continuing,

Borrower may settle and adjust claims without Administrative Agent consent aggregating not in excess of $10,000,000 per incident (the “Restoration Threshold”) if such settlement or adjustment is carried out in a commercially reasonable and timely manner; and provided further that if Administrative Agent’s consent is required pursuant to this Section 5.16(a) for Borrower to settle and adjust a claim, such consent shall not be unreasonably withheld, conditioned or delayed. The reasonable out-of-pocket expenses incurred by Agents and Lender in the adjustment and collection of Loss Proceeds shall become part of the Indebtedness and shall be reimbursed by Borrower to Agents and Lender, as applicable, upon demand therefor.

(b) All Loss Proceeds from any Casualty or Condemnation which do not exceed the Restoration Threshold will be promptly disbursed by Administrative Agent, at the direction of the Required Lenders, to Borrower and Borrower shall apply such sums toward the restoration and repair of the applicable Property (with any excess amounts remitted into the Cash Management Account). Promptly after receipt of the Loss Proceeds, Borrower shall commence and satisfactorily complete with due diligence the restoration, repair, replacing or rebuilding of the applicable Property in accordance with the terms of this Agreement, it being understood, however, that Borrower shall not be obligated to restore such Property to the precise condition of such Property prior to such Casualty or Condemnation provided the Property is restored or repaired, to the extent practicable, to be of at least equal value and of substantially the same character as prior to the Casualty or Condemnation.

(c) All Loss Proceeds from any Casualty or Condemnation which exceed the Restoration Threshold shall be immediately deposited into the Loss Proceeds Account (monthly rental loss/business interruption proceeds to be initially deposited into the Loss Proceeds Account and subsequently deposited into the Cash Management Account in installments as and when the lost rental income covered by such proceeds would have been payable). If any Condemnation or Casualty from which the Loss Proceeds exceed the Restoration Threshold occurs as to which, in the reasonable judgment of Required Lenders:

(i) in the case of a Casualty of any of the Properties, the cost of restoration would not exceed 25% of the Allocated Loan Amount and the Casualty does not render untenantable more than 25% of the guest rooms of such Property;

(ii) in the case of a Condemnation of any of the Properties, the Condemnation does not render untenantable more than 15% of the guest rooms of such Properties or materially impair or disrupt the operation of the Property (including the Casino Component); and

(iii) restoration of any of the Properties is reasonably expected to be completed in accordance herewith prior to the expiration of rental interruption insurance and at least 180 days prior to the Maturity Date, unless on or prior to such date the Borrower (x) shall deliver to the Administrative Agent and there shall remain in effect a binding written offer, subject only to customary conditions, of an Eligible Institution or such other financial institution or investment bank reasonably acceptable to Administrative Agent duly authorized to originate loans secured by real property located in the State of Nevada for a loan from such Eligible Institution or such other financial institution or investment bank to the Borrower in a principal amount of not less than the then Principal

Indebtedness and which shall, in the Required Lenders’ reasonable judgment, enable the Borrower to refinance the Loan prior to the Maturity Date and (y) if a Securitization shall have occurred, shall obtain a Rating Confirmation;

or if Administrative Agent otherwise elects to allow Borrower to restore any of the Properties, then the Loss Proceeds after receipt thereof by Administrative Agent and reimbursement of any reasonable expenses incurred by Lender or any Agent in connection therewith shall be applied to the cost of restoring, repairing, replacing or rebuilding each of such Properties or part thereof subject to the Casualty or Condemnation, in the manner set forth below (and Borrower shall commence as promptly and diligently as practicable to prosecute such restoring, repairing, replacing or rebuilding of such Properties in a workmanlike fashion and in accordance with applicable law to a status at least equivalent to the quality and character of such Properties immediately prior to the Condemnation or Casualty, it being understood, however, that Borrower shall not be obligated to restore such Property to the precise condition of such Property prior to such Casualty or Condemnation provided the Property is restored, to the extent practicable, to be of at least equal value and of substantially the same character as prior to the Casualty or Condemnation). Provided that no Event of Default shall have occurred and be then continuing, Administrative Agent shall disburse such Loss Proceeds to Borrower upon Administrative Agent’s being furnished with (i) evidence reasonably acceptable to it of the estimated cost of completion of the restoration, (ii) funds, or assurances reasonably acceptable to Administrative Agent that such funds are available and sufficient in addition to any remaining Loss Proceeds, to complete the proposed restoration, and (iii) to the extent the restoration work exceeds $500,000, such architect’s certificates, waivers of lien, contractor’s sworn statements, bonds, plats of survey and such other evidences of cost, payment and performance as Administrative Agent may reasonably request; and Administrative Agent may, in any event, require that all plans and specifications for restoration reasonably estimated by Administrative Agent to exceed the Restoration Threshold be submitted to and approved by Administrative Agent (at the direction of Required Lenders, not to be unreasonably withheld, conditioned or delayed) prior to commencement of work . If Administrative Agent reasonably estimates that the cost to restore will exceed the Restoration Threshold, Administrative Agent may retain a local construction consultant to inspect such work and review Borrower’s request for payments and Borrower shall, on demand by Administrative Agent, reimburse Administrative Agent for the reasonable fees and expenses of such consultant (which fees and expenses shall constitute Indebtedness). No payment in respect of any contract shall exceed 90% of the value of the work performed from time to time thereunder until such time as 50% of the restoration (calculated based on the anticipated aggregate cost of the work) has been completed, and amounts retained prior to completion of 50% of the restoration shall not be paid prior to the final completion of the restoration. Funds other than Loss Proceeds shall be disbursed prior to disbursement of such Loss Proceeds, and at all times the undisbursed balance of such proceeds remaining in the Loss Proceeds Account, together with any additional funds irrevocably and unconditionally deposited therein or irrevocably and unconditionally committed for that purpose, shall be at least sufficient in the reasonable judgment of Required Lenders to pay for the cost of completion of the restoration free and clear of all Liens or claims for Lien.

(d) Borrower shall cooperate with Administrative Agent in obtaining for Lender the benefits of any Loss Proceeds lawfully or equitably payable to Lender in connection with the Properties. Lender and Agents shall be reimbursed for any expenses reasonably

incurred in connection therewith (including reasonable attorneys’ fees and disbursements, and, if reasonably necessary to collect such proceeds, the expense of an Appraisal on behalf of Lender) out of such Loss Proceeds or, if insufficient for such purpose, by Borrower.

(e) If Borrower is not entitled to apply Loss Proceeds toward the restoration of one of Properties pursuant to Section 5.16(b) or (c) and Administrative Agent elects not to permit such Loss Proceeds to be so applied, such Loss Proceeds, together with such additional amounts as Borrower shall pay to Administrative Agent for the benefit of Lender, shall be applied on the first Payment Date following such election to the prepayment of the Loan and shall be accompanied by interest through the end of the applicable Interest Accrual Period (calculated as if the amount prepaid were outstanding for the entire Interest Accrual Period).

(f) If Borrower is entitled to apply Loss Proceeds toward the restoration of the Property pursuant to Section 5.16(b) or (c), then, after the completion of such restoration in accordance herewith, including, without limitation, delivery of all temporary certificates of occupancy, lien waivers and other evidence Administrative Agent may reasonably require to evidence the lien free completion of such restoration in compliance with all Legal Requirements, as long as no Event of Default has occurred and is continuing, Administrative Agent shall deposit in the Cash Management Account any undisbursed portion of the Loss Proceeds.

5.17. Annual Budget. Borrower has previously delivered to Administrative Agent the Annual Budget (covering both Property Operating Expenses and Capital Expenditures) for the Properties for the 2009 Fiscal Year. At least 15 days prior to the commencement of each subsequent Fiscal Year during the term of the Loan, Borrower shall deliver to Administrative Agent for informational purposes only an Annual Budget for the Properties prepared by Borrower in good faith for the ensuing Fiscal Year (covering both Property Operating Expenses and Capital Expenditures) and, promptly after preparation thereof, any subsequent revisions thereto. Such Annual Budget, and any revisions thereto, shall be subject to Administrative Agent’s approval during the continuance of an Event of Default (such Annual Budget, in the absence of an Event of Default, as so delivered, and during the continuance of an Event of Default, as so approved or deemed approved, is referred to herein as the “Approved Annual Budget”). In addition, Borrower shall deliver to Administrative Agent within 30 days after the end of each calendar month a reconciliation statement comparing the amount of actual Property Operating Expenses and Capital Expenditures made during such calendar month against the amount of Property Operating Expenses and Capital Expenditures set forth on the Annual Budget.

5.18 Operating Lease. Notwithstanding anything to the contrary herein or in any other Loan Documents or in any Operating Lease, upon the foreclosure or deed-in-lieu of foreclosure of the Property, Administrative Agent may, in its sole discretion (acting at the direction of the Required Lenders), terminate the Operating Lease without payment of any termination fee, penalty or other amount.

5.19. General Indemnity.

(a) Borrower shall indemnify, reimburse, defend and hold harmless Lender, Agents and their respective officers, directors, employees, attorneys and agents (collectively, the

“Indemnified Parties”) for, from and against any and all Damages of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Indemnified Parties, in any way relating to or arising out of the making or holding or enforcement of the Loan by Lender or any Agent or the administration of the Transaction to the extent arising from, in connection with or resulting, directly or indirectly, from any claim (including, without limitation any Environmental Claim) made (whether or not in connection with any legal action, suit, or proceeding) by or on behalf of any Person; provided, however, that no Indemnified Party shall have the right to be indemnified hereunder for its own fraud, gross negligence or willful misconduct, as determined by a final nonappealable judgment by a court of competent jursidiction. The provisions of and undertakings and indemnification set forth in this Section 5.19 shall survive the satisfaction and payment in full of the Indebtedness, termination of this Agreement and the resignation or removal of any Agent.

(b) To the extent permitted by applicable law, Borrower shall not assert, and hereby waives, any claim against Lender, each Agent and their respective Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, arising out of, as a result of, or in any way related to, this Agreement or any other Loan Document or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, the Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and Borrower hereby waives, releases and agrees not to xxx upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

5.20 Compliance with Gaming Laws.

(a) Each Casino Lessee Borrower shall maintain the Gaming Licenses in full force and effect with respect to each of the Properties at all times.

(b) Each Casino Lessee Borrower shall post all required bonds, if any, with any Gaming Authority as and in the amounts required under all applicable Legal Requirements (and shall, if Administrative Agent makes a request therefor, promptly provide Administrative Agent with copies of all such bonds).

(c) No Casino Lessee Borrower shall, without Administrative Agent’s prior written consent (at the direction of the Required Lenders, not to be unreasonably withheld, conditioned or delayed), assign or transfer, or delegate any responsibilities with respect to, any Gaming License.

(d) Each Casino Lessee Borrower shall make all filings required under the Gaming Laws, or in connection with any Gaming Licenses, including in connection with the origination of the Loan, and shall deliver copies of such filings as Administrative Agent shall reasonably request to Administrative Agent, promptly following request therefor. Borrower will timely pay all fees, investigative fees and costs required by the Gaming Authorities with respect to any such approvals and licenses. Borrower will diligently and comprehensively respond to

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any inquiries and requests from the Gaming Authorities and promptly file or cause to be filed any additional information required in connection with any required filings as soon as practicable after receipt of requests therefor.

(e) Upon request of Administrative Agent, Borrower shall deliver to Administrative Agent such evidence of compliance (by Borrower and each Property) with all Legal Requirements as shall be reasonably requested by Administrative Agent. Borrower shall immediately deliver to Administrative Agent any notice of material non-compliance or material violation of any Legal Requirement, or of any material inquiry or investigation commenced by the Gaming Authorities in connection with any of the Properties. Borrower shall immediately notify Administrative Agent if it believes that any material license, including any Gaming License, is being or could be revoked or suspended, or that any action is pending, being considered or being, or could be, taken to revoke any of the Gaming Licenses, or to fine, penalize or impose remedies upon Borrower, or that any action is pending, being considered, or being, or could be, taken to discontinue, suspend, deny, decrease or recoup any payments due, made or coming due to Borrower, in each case if same might reasonably be expected to have a Material Adverse Effect.

(f) In the event that any Casino Operating Lease expires or is terminated (without limiting any obligation of Borrower to obtain Administrative Agent’s consent to any termination or modification of any of the Casino Operating Leases in accordance with the terms and provisions of this Agreement), the applicable Property Owner Borrower shall promptly enter into a replacement Casino Operating Lease (in form and substance reasonably acceptable to Administrative Agent) with the applicable Casino Lessee Borrower or another operating company reasonably acceptable to Administrative Agent.

5.21 Intentionally Omitted.

5.22 REA Covenants.

(a) Borrower covenants and agrees as follows:

(i) Borrower shall comply with all material terms, conditions and covenants of each of the REAs;

(ii) Borrower shall promptly deliver to Administrative Agent a true and complete copy of each and every notice of default received by Borrower with respect to any obligation of Borrower under the provisions of any of the REAs;

(iii) Borrower shall deliver to Administrative Agent copies of any written notices of default or event of default relating to any of the REAs served by Borrower;

(iv) after the occurrence and during the continuance of an Event of Default, so long as the Loan is outstanding, Borrower shall not grant or withhold any consent, approval or waiver under any of the REAs without the prior written consent of Administrative Agent; provided that, with respect to matters for which any REA expressly requires the consent of a mortgagee, Borrower shall at all times, whether or not

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an Event of Default has occurred, obtain the prior written consent of Administrative Agent as and to the extent provided for in the applicable REA; and

(v) Borrower shall deliver to each other party to an REA written notice of the identity of Lender on the date hereof and each assignee of Lender of which Borrower is given notice in accordance with Section 9.4 if the terms of such REA provide that such other party(ies) to the REA shall give notices of default thereunder to a lender of which such other party(ies) have notice.

(b) Borrower shall pay all fees, assessments and charges payable by Borrower pursuant to each of the REAs as and when the same become due and payable.

(c) In the event proceeds of a Casualty or Condemnation with respect to any of the Properties are required to be deposited into an account pursuant to the relevant REA, Borrower, to the fullest extent permitted under the applicable REA, shall cause such amounts to be deposited into an Eligible Account, and any amounts released therefrom to Borrower shall be deposited into the Loss Proceeds Account in accordance herewith.

5.23 Property Agreement Covenants.

(a) Borrower shall perform and observe, in a timely manner, all of the covenants, conditions, obligations and agreements of Borrower under the Property Agreements and shall suffer or permit no delinquency on its part to exist thereunder if such delinquency would have a Portfolio Material Adverse Effect.

(b) Borrower shall exercise all reasonable efforts to enforce or secure the performance of each and every obligation, covenant, condition and agreement to be performed by the franchisor, manager, licensor, grantor or other contracting party under the Property Agreements, if the failure to so enforce or secure such performance would have a Material Adverse Effect.

5.24 Equity Contribution Account. All equity contributions to Borrower by Sponsor shall be deposited into a segregated Pledged Operating Account, or a subaccount of a Pledged Operating Account, into which no funds other than such equity contributions may be deposited (the “Equity Contribution Account”). All equity contributions on deposit in the Equity Contribution Account shall not count toward the calculation of Working Capital Excess. Borrower may apply amounts on deposit in the Equity Contribution Account for any purpose related to the Property, the Loan or the business or operations of Borrower, other than to make a distribution to any Person (other than a Co-Borrower), including, without limitation, to pay Property Operating Expenses, Capital Expenditures and FF&E expenses, to make prepayments of the Loan pursuant to Section 2.1 and to transfer amounts on deposit therein to the Gaming Operating Reserve.

5.25 Gaming Approval. Promptly after the date hereof, Borrower shall seek the consent of the Gaming Authorities to (i) the pledge to Lender of 100% of the equity interests in each Lessee Borrower (and if any Lessee Borrower shall have been converted to a limited partnership in accordance with the terms hereof, 100% of the equity interests in such Lessee Borrower’s general partner) as additional collateral for the Loan pursuant to a pledge and

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security agreement substantially in the form attached hereto as Exhibit G (the “Lessee Pledge”) and (ii) the issuance of the equity interests in W2007/ACEP Holdings, LLC to MTGLQ Investors, L.P. pursuant to an amended and restated limited liability agreement in the form of attached hereto as Exhibit K (the “Holdings LLC Agreement”). If and to the extent that Borrower shall receive the consent of the Gaming Authorities described in clause (i) of the immediately preceding sentence, ACEP Borrower shall, and shall cause the other pledgors under the Lessee Pledge to, promptly thereafter execute and deliver to Lender the Lessee Pledge, and if and to the extent that Borrower shall receive the consent of the Gaming Authorities described in clause (ii) of the immediately preceding sentence, Borrower shall promptly thereafter cause the Holdings LLC Agreement to be executed and delivered to MTGLQ Investors, L.P. If Lender wishes to designate any Person other than MTGLQ Investors, L.P. to hold its interest in W2007/ACEP Holdings, LLC, such designee shall be permitted to hold such interest only if (i) all of the provisions relating to the assignment of such interest in the Holdings LLC Agreement are satisfied and (ii) the approval obtained from the Gaming Authorities permits such designee to hold such interest. The reasonable costs and expenses of Lender and Xxxxxxx Xxxxx Mortgage Company (or its designee) in connection with the foregoing shall be paid by Borrower.

ARTICLE VI

NEGATIVE COVENANTS

6.1. Liens on the Properties. Neither Borrower nor, if applicable, any Single-Purpose Equityholder shall permit or suffer the existence of any Lien on any of its assets, other than Permitted Encumbrances.

6.2. Ownership. Borrower shall not own any assets other than, (i) in the case of the Property Owner Borrower, the Properties, the related personal property, FF&E, intangibles, rights, intellectual property and any other property located therein, used in connection therewith or necessary or incidental to the operation of the Properties, or any proceeds of the foregoing, (ii) in the case of the Lessee Borrowers, equity interests in W2007 ACEP First Mezzanine A Gen-Par, L.L.C., W2007 First Mezzanine A Borrower, L.P., W2007 ACEP First Mezzanine B Gen-Par, L.L.C., W2007 ACEP First Mezzanine B Borrower, L.P. and assets related thereto and (iii) in the case of the ACEP Borrower, equity interests in Stratosphere LLC, Aquarius Gaming LLC, and Charlie’s Holding, LLC and assets related thereto (including, without limitation, the Collateral). Borrower shall not permit Property Owner Borrower GP to own any assets other than Property Owner Borrower GP’s general partnership interests in Property Owner Borrower and assets related to Property Owner Borrower GP’s role as the general partner of Property Owner Borrower.

6.3. Transfer. Borrower shall not transfer any Collateral other than in compliance with Article II or Section 7.1(n) and other than the replacement or other disposition of obsolete or non-useful personal property and fixtures in the ordinary course of business, and other than any ground lease of a Release Parcel to an affiliated or unaffiliated third party that is approved by Administrative Agent in its sole and absolute discretion. Borrower shall not hereafter file a declaration of condominium with respect to the Properties, except pursuant to Section 2.5 (and in such case, only with Administrative Agent’s advance written approval of the declaration of condominium and related documents necessary for the creation of a unit

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comprising the Second Floor Space). Notwithstanding anything to the contrary contained in this Agreement, Borrower may, without the consent of Administrative Agent, grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, cable, telephone and telegraph lines, electric lines or other utilities or for other similar purposes, provided that no such Transfer, conveyance or encumbrance shall materially impair the utility and operation of the affected Property, materially reduce the value of such Property or have a Material Adverse Effect. In connection with any Transfer expressly permitted pursuant to this Section 6.3, Collateral Agent shall, at Borrower’s sole cost and expense and subject to Section 1.9(b), execute and deliver any instrument reasonably necessary or appropriate to release the portion of the Property affected by such taking or such Transfer from the Lien of the applicable Mortgage or, in the case of the immediately preceding sentence of this Section 6.3 to subordinate the Lien of the Mortgage to such easements, restrictions, covenants, reservations and rights of way or other similar grants upon receipt by Administrative Agent of the following items from Borrower:

(a) 30 days prior written notice thereof;

(b) a copy of the instrument or instruments of Transfer;

(c) an Officer’s Certificate stating (x) with respect to any Transfer, the consideration, if any, being paid for the Transfer and (y) that such Transfer does not materially impair the utility and operation of the affected Property, materially reduce the value of such Property or have a Portfolio Material Adverse Effect; and

(d) reimbursement of all of Lender’s and Agents’ reasonable costs and expenses (including, reasonable attorneys’ fees) incurred in connection with such Transfer.

Notwithstanding anything to the contrary contained herein, Borrower may let lapse, let expire, abandon or cancel any intellectual property that in the reasonable business judgment of Borrower is no longer material to the business, provided that such lapse, expiration, abandonment or cancellation does not have a Material Adverse Effect.

6.4. Debt. Borrower shall not have any Debt, other than Permitted Debt and Debt incurred in connection with, and substantially simultaneously with, the repayment in full of the Loan. No direct or indirect equityholder of any Co-Borrower, except for Whitehall and any direct or indirect equityholders of Whitehall, shall have any indebtedness for borrowed money (or any preferred equity having the characteristics of indebtedness for borrowed money, including a mandatory redemption date and a current pay preferred return) other than, as applicable, the Loan and the Permitted Debt. The foregoing shall not (i) restrict the making of unsecured loans by the members of W2007/ACEP Holdings, LLC (the “WH/HG JV”) to each other or to the WH/HG JV in accordance with that certain Amended and Restated Limited Liability Company Agreement of W2007/ACEP Holdings, LLC, dated as of the date hereof, or (ii) limit the incurrence of Debt by (x) Persons that own less than 10% of the direct or indirect equity interests in Borrower, (y) Persons for whom direct and indirect equity interests in Borrower do not comprise the majority of such Person’s assets and (z) natural persons, provided that in the case of each of (x), (y) and (z), such Debt is not secured by a pledge of the direct or indirect equity interests in Borrower in violation of the terms of Section 7.1(f) hereof.

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6.5. Dissolution; Merger or Consolidation. Neither Borrower nor, if applicable, any Single-Purpose Equityholder shall dissolve, terminate, liquidate, merge with or consolidate into another Person without first causing the Loan to be assumed by a Qualified Successor Borrower pursuant to Section 2.6.

6.6 Change in Business. Borrower shall not make any material change in the scope or nature of its business objectives, purposes or operations or undertake or participate in activities other than the continuance of its business.

6.7. Debt Cancellation. Borrower shall not cancel or otherwise forgive or release any material claim or Debt owed to it by any Person, except for adequate consideration or in the ordinary course of its business.

6.8. Affiliate Transactions. Borrower shall not enter into, or be a party to, any transaction with any Affiliate of Borrower except for (i) that certain Consulting Agreement, dated as of February 20, 2008, by and between ACEP Borrower and Highgate Hotels, L.P., as amended by that certain First Amendment to Consulting Agreement, dated as of the Closing Date and (ii) any other agreement having terms no less favorable to Borrower than would be obtained in a comparable arm’s length transaction with an unrelated third party and (iii) the Transfer of a Property pursuant to Section 7.1(n).

6.9. Misapplication of Funds. Borrower shall not (a) knowingly distribute any Revenues or Loss Proceeds in violation of the provisions of this Agreement (and shall promptly cause the reversal of any such distributions made in error of which Borrower becomes aware), (b) fail to remit amounts to the Cash Management Account as required by Section 3.1, or (c) misappropriate any security deposit or portion thereof.

6.10. Place of Business. Borrower shall not change its chief executive office or its principal place of business without giving Administrative Agent at least 30 days’ prior written notice thereof and promptly providing Administrative Agent such information as Administrative Agent may reasonably request in connection therewith.

6.11. Modifications and Waivers. Unless otherwise consented to in writing by Administrative Agent at the direction of Required Lenders, which consent, in the absence of a continuing Event of Default, shall not be unreasonably withheld, delayed or conditioned:

(i) Borrower shall not amend, modify, terminate, renew, surrender any material rights or remedies under, or materially default under, any Major Lease, or enter into any Major Lease, except in compliance with Section 5.7;

(ii) Neither Borrower nor, if applicable, any Single-Purpose Equityholder shall terminate, amend or modify any provision in its organizational documents (including, without limitation, any operating agreement, limited partnership agreement, by-laws, certificate of formation, certificate of limited partnership or certificate of incorporation) in a manner that would violate the definition of a “Single-Purpose Entity” contained in this Agreement;

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(iii) Borrower shall not amend, modify, terminate, renew, surrender any rights or remedies under, or materially default under, or enter into, any Approved Management Agreement except in compliance with Section 5.10;

(iv) except as would not reasonably be likely to have a Material Adverse Effect, Borrower shall not amend, modify, terminate, renew, surrender any rights or remedies under, or materially default under, or enter into, any REA;

(v) Borrower shall not (x) sell, assign, transfer, mortgage or pledge any Property Agreement or any such right or interest under any Property Agreement, or (y) subject to Section 5.10 with respect to Approved Management Agreements, cancel, terminate, amend, supplement or modify any Property Agreement, in either case, if such action would have a Material Adverse Effect or is otherwise prohibited under this Agreement; and

(vi) except as would not reasonably be likely to have a Material Adverse Effect, Borrower shall not amend, modify, terminate, renew, surrender any rights or remedies under, or materially default (beyond any applicable grace, notice or cure period) under, or enter into, any Material Agreement.

6.12. ERISA.

(a) Borrower shall not maintain or contribute to, or agree to maintain or contribute to, or permit any ERISA Affiliate of Borrower to maintain or contribute to or agree to maintain or contribute to, any employee benefit plan (as defined in Section 3(3) of ERISA) subject to Title IV or Section 302 of ERISA or Section 412 of the Code. Borrower shall not incur or be subject to, and shall not permit any of its respective ERISA Affiliates to incur or be subject to, any liability under Title IV or Section 302 of ERISA or Section 412 of the Code.

(b) Borrower shall not engage in a non-exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code, or substantially similar provisions under federal, state or local laws, rules or regulations or in any transaction that would cause any obligation or action taken or to be taken hereunder (or the exercise by Lender of any of its rights under the Notes, this Agreement, the Mortgage or any other Loan Document) to be a non-exempt prohibited transaction under such provisions, in either case, which could subject Borrower or Lender to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA, and/or litigation risk, in an amount that would be material.

6.13. Alterations and Expansions. Borrower shall not perform or contract to perform any Material Alteration without the prior written consent of Administrative Agent (as directed by the Required Lenders), not to be unreasonably withheld, delayed or conditioned (in the absence of an Event of Default); provided, however, that no such consent shall be required with respect to a Material Alteration that is part of a renovation of the gaming floor or a renovation of the guest rooms at the Stratosphere Property. Any request for Administrative Agent’s consent pursuant to this Section 6.13 shall be submitted to Administrative Agent in an envelope marked “URGENT — LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with a detailed description of the request for which Administrative Agent’s

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consent is sought and any documentation needed for Administrative Agent to evaluate such request, and shall be deemed approved if Administrative Agent shall not have notified Borrower in writing of its disapproval thereof and the reasons for such disapproval within five Business Days after Borrower shall have given Administrative Agent written notice confirming that at least ten Business Days have elapsed since such submission, which written notice shall be submitted to Administrative Agent in an envelope marked “URGENT — SECOND AND FINAL NOTICE — LENDER’S ATTENTION REQUIRED BY [DATE]”). As a condition to commencing any Material Alteration permitted pursuant to this Section 6.13 (including, without limitation, a Material Alteration that is part of a renovation of the gaming floor or a renovation of the guest rooms at the Stratosphere Property), Borrower shall deliver to Lender an Officer’s Certificate stating that the cost of such renovation and certifying that Borrower has sufficient funds to complete the same.

If Administrative Agent’s consent is requested hereunder with respect to a Material Alteration, Administrative Agent may retain a construction consultant reasonably acceptable to Borrower to review such request and, if such request is granted, Administrative Agent may retain a construction consultant reasonably acceptable to Borrower to inspect the work from time to time. Borrower shall, on demand by Administrative Agent, reimburse Administrative Agent for the reasonable fees and disbursements of such consultant.

6.14. Advances and Investments. Borrower shall not lend money or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, except for Permitted Investments.

6.15. Single-Purpose Entity. No Borrower shall cease to be a Single-Purpose Entity; provided, however, that the violation of any of the requirements set forth in the definition of “Single-Purpose Entity” resulting from dealings of any Borrower with another Borrower shall not cause any Borrower to cease to be a Single-Purpose Entity hereunder. For the avoidance of doubt, Lender acknowledges that ACEP Borrower may not have been a Single-Purpose Entity prior to the date hereof.

6.16. Zoning and Uses. Borrower shall not do any of the following:

(i) initiate or support any limiting change in the permitted uses of any of the Properties (or to the extent applicable, zoning reclassification of any of the Properties) or any portion thereof, seek any variance under existing land use restrictions, laws, rules or regulations (or, to the extent applicable, zoning ordinances) applicable to any Property, or use or permit the use of any Property in a manner that would result in the use of such Property becoming a nonconforming use under applicable land-use restrictions or zoning ordinances or that would violate the terms of any Major Lease, Legal Requirement or Permitted Encumbrance in a manner that would have a Material Adverse Effect;

(ii) consent to any modification, amendment or supplement to any of the terms of any Permitted Encumbrance in a manner that would have a Material Adverse Effect, or materially default in any of its material obligations under a Permitted Encumbrance;

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(iii) impose or consent to the imposition of any restrictive covenants, easements or encumbrances upon a Property in any manner that would have a Material Adverse Effect;

(iv) execute or file any subdivision plat affecting the Properties, or institute, or permit the institution of, proceedings to alter any tax lot comprising the Properties, if same would have a Material Adverse Effect; or

(v) permit or consent to any of the Properties being used by the public or any Person in such manner as might make possible a claim of adverse usage or possession or of any implied dedication or easement.

6.17. Waste. Borrower shall not commit or permit any waste on the Properties so as to result in a Material Adverse Effect, nor take any actions that might invalidate any insurance carried on the Properties (and Borrower shall promptly correct any such actions of which Borrower becomes aware).

6.18 [Intentionally Omitted].

6.19 Distributions. No Borrower shall make any distributions to any partner, member, equityholder or Affiliate of Borrower, except as expressly permitted hereunder.

6.20 Financial Covenants. Commencing in the Fiscal Year beginning January 1, 2010, and for each Fiscal Year thereafter while any portion of the Loan remains outstanding, Borrower shall not permit Debt to EBITDA for any Test Period to be less than the applicable Debt to EBITDA Covenant Quotient.

ARTICLE VII

DEFAULTS

7.1. Event of Default. The occurrence of any one or more of the following events shall be, and shall constitute the commencement of, an “Event of Default” hereunder (any Event of Default which has occurred shall continue unless and until waived by Lender in its sole discretion):

(a) Payment.

(i) Borrower shall default in the payment when due of any principal or interest owing hereunder or under the Notes (including any mandatory prepayment required hereunder); provided that, it shall not be an Event of Default if such payment is not paid when due if there are sufficient sums on deposit in the Cash Management Account for payment of such amounts and Lender’s and Administrative Agent’s access to such funds has not been inhibited or prevented in any manner whatsoever due to circumstances or events which are directly related to Borrower; or

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(ii) Borrower shall default, and such default shall continue for at least five Business Days after notice to Borrower that such amounts are owing, in the payment when due of fees, expenses or other amounts owing hereunder, under the Notes or under any of the other Loan Documents (other than principal and interest owing hereunder or under the Notes); provided that, it shall not be an Event of Default if such payment is not paid when due if there are sufficient sums on deposit in the Cash Management Account for payment of such amounts as well as all principal and interest then due and payable, and Lender’s and Administrative Agent’s access to such funds has not been inhibited or prevented in any manner whatsoever due to circumstances or events which are directly caused by Borrower.

(b) Representations. Any representation made by Borrower or Sponsor in any of the Loan Documents, or in any material report, certificate, financial statement or other instrument, agreement or document furnished to Lender or any Agent shall have been false or misleading in any material respect (or, with respect to any representation which itself contains a materiality qualifier, in any respect) as of the date such representation was made; provided that, with respect to any such breach which is capable of being cured, such breach shall not constitute an Event of Default unless and until it shall remain uncured for 30 days after Borrower receives written notice thereof from Administrative Agent; provided, further, that, with respect to any such breach which cannot be cured by the payment of money but is susceptible of being cured and cannot reasonably be cured within such 30-day period, if Borrower commences to cure such breach within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of 120 days from the original notice from Administrative Agent.

(c) Other Loan Documents. Any Loan Document shall fail to be in full force and effect in all material respects or to convey the material Liens, rights, powers and privileges purported to be created thereby; or a default by Borrower shall occur under any of the other Loan Documents or any of the Approved Management Agreements, or REAs, in each case, beyond the expiration of any applicable cure period.

(d) Bankruptcy, etc.

(i) Borrower or, if applicable, any Single-Purpose Equityholder shall commence a voluntary case concerning itself under Title 11 of the United States Code (as amended, modified, succeeded or replaced, from time to time, the “Bankruptcy Code”);

(ii) Borrower or, if applicable, any Single-Purpose Equityholder shall commence any other proceeding under any reorganization, arrangement, adjustment of debt, relief of creditors, dissolution, insolvency or similar law of any jurisdiction whether now or hereafter in effect relating to Borrower or such Single-Purpose Equityholder, or (except as permitted under Section 6.5 of this Agreement) shall dissolve or otherwise cease to exist;

(iii) there is commenced against Borrower or, if applicable, any Single-Purpose Equityholder an involuntary case under the Bankruptcy Code, or any such other

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proceeding, which is not discharged, stayed or dismissed within a period of 90 days after commencement;

(iv) Borrower or, if applicable, any Single-Purpose Equityholder is adjudicated insolvent or bankrupt;

(v) Borrower or, if applicable, any Single-Purpose Equityholder suffers appointment of any custodian or the like (other than the appointment of a supervisor pursuant to Gaming Laws) for it or for any substantial portion of its property and such appointment continues unchanged or unstayed for a period of 60 days after commencement of such appointment;

(vi) Borrower or, if applicable, any Single-Purpose Equityholder makes a general assignment for the benefit of creditors; or

(vii) any action is taken by Borrower or, if applicable, any Single-Purpose Equityholder for the purpose of effecting any of the foregoing.

(e) Change of Control. A Change of Control shall occur; provided, however, that solely for the purposes of this Section 7.1(e), the fact that W2007/ACEP Managers Voteco, LLC possesses the power to direct or cause the direction of the management or policies of Borrower or any Single-Purpose Equityholder shall not constitute a Change of Control, so long as the equityholders of W2007/ACEP Managers Voteco, LLC are officers of the general partner of Sponsor.

(f) Equity Pledge; Preferred Equity. Any direct or indirect equity interest in or right to distributions from Borrower shall be subject to a Lien in favor of any Person, or Borrower or any holder of a direct or indirect interest in Borrower shall issue preferred equity (or debt granting the holder thereof rights substantially similar to those generally associated with preferred equity); except that the following shall be permitted and shall not constitute a Default or Event of Default:

(i) any pledge of direct or indirect equity interests in and rights to distributions from Sponsor or Whitehall;

(ii) the pledges of direct equity interests in Property Owner Borrower and Property Owner Borrower GP securing the Loan; or

(iii) the issuance of preferred equity interests in Sponsor, Whitehall or any Person holding a direct or indirect interest therein.

Notwithstanding anything to the contrary in this Agreement or any other Loan Document, any sale, assignment, pledge, hypothecation or transfer of any equity interests in Sponsor or any Person holding a direct or indirect interest therein shall be permitted and shall not be deemed a Default or an Event of Default under this Agreement.

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(g) Insurance. Borrower shall fail to maintain in full force and effect all Policies required hereunder unless the sole reason therefor is Administrative Agent’s failure to disburse funds from the Tax and Insurance Reserve Account.

(h) ERISA; Negative Covenants. A default shall occur in the due performance or observance by Borrower of any term, covenant or agreement contained in Section 5.8 or in Article VI.

(i) Qualified Letters of Credit.

(i) With respect to any Qualified Letter of Credit delivered pursuant to the Loan Documents, Borrower shall fail to deliver a renewal, extension or replacement thereof in accordance herewith no less than 30 days prior to the expiration date thereof, unless Borrower deposits the cash equivalent thereof into the applicable Collateral Account to which such Qualified Letter of Credit relates no less than 30 days.

(ii) With respect to any Qualified Letter of Credit delivered pursuant to the Loan Documents which ceases to be a Qualified Letter of Credit, Borrower shall fail to either deliver a replacement Qualified Letter of Credit in accordance herewith or deposit the cash equivalent thereof into the applicable Collateral Account to which such Qualified Letter of Credit relates within 10 Business Days thereafter.

(j) Gaming Licenses. Any Gaming License shall be refused, suspended, revoked or canceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for the purpose of suspending, revoking or canceling any Gaming License, or any Governmental Authority shall have appointed a conservator, supervisor (other than a supervisor appointed pursuant to Gaming Laws) or trustee to or for any of the Casino Components and, in each of the foregoing cases, such action could reasonably be expected to (A) have a Material Adverse Effect, (B) materially and adversely affect the continued operation of the Casino Components in the usual course of business and in substantially the same manner and to at least the same standard as was maintained prior to such action or (C) result in any material decrease in the then expected cash flow and revenues to be derived from the Casino Components; provided, however, that, notwithstanding anything to the contrary contained in this Section 7.1(j), the commencement by a Governmental Authority of a proceeding for the purpose of suspending, revoking, conditioning, or canceling any Gaming License or imposing a fine shall not constitute an Event of Default unless and until (i) Borrower or the other party that owns the applicable Gaming License or any of their Affiliates has had such additional time as is reasonably necessary to defend itself in such proceeding and for so long as such party continues to defend itself in such proceeding in a reasonable and timely manner, and, (ii) after such time, such proceeding has not been suspended or dismissed with the result that the applicable Gaming License has not been suspended, revoked or cancelled.

(k) Reporting Requirements.

(i) Borrower shall fail to deliver to Lender a Debt to EBITDA certificate in the form required pursuant to Section 5.13(v) certifying Borrower’s compliance with Section 6.20, within 45 days after the end of each Fiscal Quarter (including year-end).

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(ii) A default shall occur in the due performance or observance by Borrower of any term, covenant or agreement contained in Section 5.12, 5.13 or in 5.14 (except for the delivery of a Debt to EBITDA certificate pursuant to Section 5.13(v)), and such default shall remain uncured for 15 days after Borrower receives written notice thereof from Administrative Agent.

(l) Certificates of Pledged Collateral. If at any time the equity interests pledged by Borrower pursuant to the Pledge Agreement shall be evidenced by new, replacement or additional certificates and Borrower shall fail to deliver such certificates to Collateral Agent, together with an executed stock, membership or partnership power, as applicable, in blank.

(m) Other Covenants. A default shall occur in the due performance or observance by Borrower of any term, covenant or agreement (other than those referred to in subsections (a) through (l), inclusive, of this Section 7.1) contained in this Agreement or in any of the other Loan Documents, except that if such default referred to in this subsection (m) is susceptible of being cured, such default shall not constitute an Event of Default unless and until it shall remain uncured for 30 days after Borrower receives written notice thereof from Administrative Agent; and if a default cannot be cured by the payment of money but is susceptible of being cured and cannot reasonably be cured within such 30-day period, and Borrower commences to cure such default within such 30-day period and thereafter diligently and expeditiously proceeds to cure the same, Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of 120 days from the original notice from Administrative Agent.

(n) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if a Default or Event of Default shall occur under this Agreement or under another Loan Document because a representation, warranty, affirmative covenant, negative covenant or other provision hereunder or thereunder shall be breached or violated as it affects a particular Property (other than any misappropriation of funds collected in respect thereof), (x) such Default or Event of Default shall be deemed cured, (y) any related acceleration of the Loan shall be rescinded and (z) any other remedy relating to such Default or Event of Default, other than any indemnification to which an Indemnified Party may be entitled hereunder, shall cease to apply upon Borrower causing to occur a Transfer of the applicable Property to an affiliated or unaffiliated Person and the satisfaction of the requirements set forth in Section 2.2 or Section 2.4, as applicable, including payment of the applicable Release Price together with (i) the amount of interest theretofore accrued but unpaid in respect of the principal amount so prepaid; plus (ii) the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period in which such prepayment is made (or in the case of a prepayment during any Assumed Rate Period, the amount of interest which would have accrued on the principal amount so prepaid had it remained outstanding through the end of the Interest Accrual Period following the Interest Accrual Period in which such prepayment is made, as determined in accordance with Section 2.1(a)); plus (iii) any Spread Maintenance Amount, if applicable; provided that such payment must be made not later than 20 calendar days after any acceleration of the Loan. In the event of such payment, so long as no other Event of Default shall have occurred and be continuing hereunder (other than one that is simultaneously being cured pursuant to this Section 7.1(n)), subject to Section 1.9(b), Collateral

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Agent shall release all Liens on such Property and the Collateral related thereto created under this Agreement or under the other Loan Documents.

(o) For the avoidance of doubt, any breach of a covenant or representation hereunder by any individual Borrower, or any Event of Default caused by any individual Borrower, shall, in each case, constitute a breach or Event of Default, as the case may be, by each and every Borrower hereunder.

7.2. Remedies.

(a) During the continuance of an Event of Default, Administrative Agent, on behalf of Lender, may by written notice to Borrower, in addition to any other rights or remedies available pursuant to this Agreement, the Notes, the Mortgage, the Pledge Agreement and the other Loan Documents, at law or in equity, declare by written notice to Borrower all or any portion of the Indebtedness to be immediately due and payable, whereupon all or such portion of the Indebtedness shall so become due and payable, and Administrative Agent, on behalf of Lender, may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Collateral (including all rights or remedies available at law or in equity); provided, however, that, notwithstanding the foregoing, if an Event of Default specified in Section 7.1(d) shall occur, then the Indebtedness shall immediately become due and payable without the giving of any notice or other action by Lender or any Agent. Any actions taken by Administrative Agent, on behalf of Lender, shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth in this Agreement or in the other Loan Documents. For the avoidance of doubt, in exercising its rights hereunder, Administrative Agent, on behalf of Lender, may in Lender’s sole discretion choose, among other things, to foreclose on the Mortgage with or without simultaneously foreclosing on the Equity Collateral, and/or foreclose on a portion of the Equity Collateral without foreclosing on the entirety of the Equity Collateral.

(b) If Administrative Agent, on behalf of Lender, forecloses on the Collateral, Administrative Agent shall apply all net proceeds of such foreclosure to repay the Indebtedness in accordance with Section 2.3, the Indebtedness shall be reduced to the extent of such net proceeds and the remaining portion of the Indebtedness shall remain outstanding and secured by the Collateral and the other Loan Documents, it being understood and agreed by Borrower that Borrower is liable for the repayment of all the Indebtedness; provided, however, that at the election of Lender, the Notes shall be deemed to have been accelerated only to the extent of the net proceeds actually received by Lender with respect to the Collateral and applied in reduction of the Indebtedness.

(c) During the continuance of any Event of Default, Administrative Agent may, on behalf of Lender, but without any obligation to do so and without notice to or demand on Borrower and without releasing Borrower from any obligation hereunder, take any action to cure such Event of Default. Subject to compliance with all applicable Gaming Laws, Lender and/or Administrative Agent may enter upon any or all of the Properties upon reasonable notice to Borrower (during business hours on Business Days) for such purposes (subject to the terms of

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the Leases, and provided such entry and inspection shall not unreasonably interfere with the usual operation and conduct of business at the Properties or the use and enjoyment of the Properties by Borrower or its tenants, customers and guests) or appear in, defend, or bring any action or proceeding to protect its interest in the Properties or any other Collateral or to foreclose the Mortgage, foreclose the security interests pursuant to the Pledge Agreement or collect the Indebtedness. The costs and expenses incurred by Lender and any Agent in exercising rights under this paragraph (including reasonable attorneys’ fees), with interest at the Default Rate for the period after notice from Administrative Agent that such costs or expenses were incurred to the date of payment to Lender and/or Agent, as the case may be, shall constitute a portion of the Indebtedness, shall be secured by the Mortgage, the Pledge Agreement and other Loan Documents and shall be due and payable to Lender, Administrative Agent and/or Collateral Agent, as the case may be, upon demand therefor.

(d) Interest shall accrue on any judgment obtained by Lender in connection with its enforcement of the Loan at a rate of interest equal to the Default Rate.

7.3. No Waiver. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed by Administrative Agent, at the direction of Required Lenders, to be expedient. A waiver of any Default or Event of Default shall not be construed to be a waiver of any subsequent Default or Event of Default or to impair any remedy, right or power consequent thereon.

7.4. Application of Payments after an Event of Default. Notwithstanding anything to the contrary contained herein, during the continuance of an Event of Default all amounts received by Administrative Agent in respect of the Loan shall be applied at Lender’s sole discretion, after payment of all amounts owed to Agents, either toward the components of the Indebtedness pursuant to Section 2.3 (e.g., Lender’s expenses in enforcing the Loan, interest, principal and other amounts payable hereunder) or toward the payment of Taxes, Property Operating Expenses and Capital Expenditures.

ARTICLE VIII

CONDITIONS PRECEDENT

8.1. Conditions Precedent to Closing. This Agreement shall become effective on the date that all of the following conditions shall have been satisfied (or waived in accordance with Section 9.3); provided, however, that if Lender shall fund the Loan, all conditions in this Article VIII shall be deemed satisfied (other than as may be provided for in any post-closing requirements letter):

(a) Loan Documents. Initial Lender shall have received a duly executed copy of this Agreement and the other Loan Documents.

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(b) Opinions of Counsel. Initial Lender shall have received such opinions in form and substance satisfactory to Initial Lender, including (i) a New York legal opinion, (ii) a legal opinion with respect to the laws of the state in which the Borrower is formed, (iii) a legal opinion with respect to the laws of each state in which one of the Properties is located, (iv) a “true lease” opinion with respect to each Operating Lease, (v) an opinion of Nevada counsel regarding gaming matters and (vi) an opinion to the effect that neither the Loan, nor any transfers thereof, shall require any governmental approvals that have not been obtained.

(c) Organizational Documents. Initial Lender shall have received all documents reasonably requested by Initial Lender relating to the existence of Sponsor, each Borrower, each Property Owner Borrower GP, the validity of this Agreement and the other Loan Documents and other matters relating thereto, in form and substance satisfactory to Initial Lender, including:

(i) Authorizing Resolutions. A certified copy of the resolutions of the board of managers or directors of its Single-Purpose Equityholder and Sponsor approving and adopting the Loan Documents to be executed by Borrower and Sponsor, as applicable, and authorizing the execution and delivery thereof.

(ii) Organizational Documents. Certified copies of the organizational documents of Sponsor, Borrower and, if applicable, any Single-Purpose Equityholder (including any certificate of formation, certificate of limited partnership, certificate of incorporation, operating agreement, limited partnership agreement or by-laws), in each case together with all amendments thereto.

(iii) Certificates of Good Standing or Existence. Certificates of good standing or existence for Sponsor, Borrower and, if applicable, any Single-Purpose Equityholder issued as of a recent date by its state of organization (or other jurisdiction) and, in the case of Borrower, by each state in which one of the Properties is located.

(d) Consents, Licenses, Approvals, etc. Initial Lender shall have received copies of all consents, licenses, approvals, if any, required in connection with the execution delivery and performance by Borrower, and the validity and enforceability of the Loan Documents, and the operation of the Properties as casinos (including, without limitation, all applicable Gaming Licenses), and such consents, licenses and approvals shall be in full force and effect.

(e) Operating Lease. Initial Lender shall have received a true and correct copy of each Operating Lease in a form and substance satisfactory to Initial Lender .

(f) Solvency Certificate. Initial Lender shall have received a solvency certificate from each Borrower in a form and substance satisfactory to Initial Lender.

(g) Lien Search Reports. Lender shall have received satisfactory reports of Uniform Commercial Code, tax lien, bankruptcy and judgment searches conducted by a search firm acceptable to Lender with respect to the Properties and Borrower (including Borrower’s immediate predecessor, if any), such searches to be conducted in such locations as Lender shall have requested.

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(h) Insurance. Lender shall have received certificates of insurance on XXXXX Form 28, demonstrating insurance coverage in respect of the Properties of types, in amounts, with insurers and otherwise in compliance with the terms, provisions and conditions set forth in this Agreement. Such certificates shall indicate that Lender and its successors and assigns are named as additional insured on each liability policy, and that each casualty policy and rental interruption policy contains a loss payee and mortgagee endorsement in favor of Lender, its successors and assigns.

(i) Title. Lender shall have received a marked, signed commitment to issue, or a pro-forma version of, a Qualified Title Insurance Policy in respect of each Property, listing only such exceptions as are reasonably satisfactory to Lender.

(j) Equity Contribution Account. Sponsor shall have funded $26,977,438 into the Equity Contribution Account.

(k) Additional Matters. Initial Lender shall have received such other certificates, opinions, documents and instruments relating to the Loan as may have been reasonably requested by Initial Lender. All corporate and other proceedings, all other documents (including all documents referred to in this Agreement and not appearing as exhibits to this Agreement) and all legal matters in connection with the Loan shall be reasonably satisfactory in form and substance to Initial Lender.

ARTICLE IX

MISCELLANEOUS

9.1. Successors. Except as otherwise provided in this Agreement, whenever in this Agreement any of the parties to this Agreement is referred to, such reference shall be deemed to include the successors and permitted assigns of such party. All covenants, promises and agreements in this Agreement by or on behalf of Borrower shall inure to the benefit of Lender and its successors and assigns. All covenants, promises and agreements in this Agreement by or on behalf of Lender shall inure to the benefit of Borrower and its permitted successors and assigns.

9.2. GOVERNING LAW.

(A) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

(B) SUBJECT TO COMPLIANCE WITH ALL APPLICABLE GAMING LAWS, ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (OTHER THAN ANY ACTION IN RESPECT OF THE CREATION, PERFECTION OR ENFORCEMENT OF A LIEN OR SECURITY INTEREST CREATED PURSUANT TO ANY LOAN DOCUMENTS NOT GOVERNED BY THE LAWS OF THE STATE OF NEW YORK) MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK. LENDER AND BORROWER HEREBY

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(i) IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND (ii) IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.

(C) THE PARTIES HERETO HEREBY ACKNOWLEDGE THAT CERTAIN OF THE CO-BORROWERS ARE LICENSED UNDER THE NEVADA GAMING LAWS AND THAT, AS A RESULT, THE LOAN, THE LOAN DOCUMENTS AND THE PARTIES HERETO (IN THEIR CAPACITIES AS PARTIES HERETO) WILL BE SUBJECT TO NEVADA GAMING LAWS, TO THE EXTENT APPLICABLE.

9.3. Modification, Waiver in Writing.

(a) Neither this Agreement nor any other Loan Document nor any of the terms hereof or thereof may be amended, changed, waived, discharged or terminated, nor, except as otherwise expressly provided herein, shall any consent or approval of Lender be granted hereunder, unless such amendment, change, waiver, discharge, termination, consent or approval is in writing signed by the party to be charged therewith. The requisite Required Lenders and Borrower may, or (with the written consent of the requisite Required Lenders) Administrative Agent and Borrower may, from time to time enter into one or more Unanimous Modifications and/or Non-Unanimous Modifications of the Loan Agreement and the other Loan Documents. Any Unanimous Modification or Non-Unanimous Modification of this Agreement or any other Loan Document shall apply equally to each Lender and shall be binding upon each Lender, Administrative Agent, Collateral Agent and all future holders of the Loan, provided that such Unanimous Modification or Non-Unanimous Modification has been approved by the requisite Required Lenders. The parties acknowledge and agree that pursuant to Regulation 8.130 of the Regulations of the Nevada Gaming Commission and Nevada State Gaming Control Board, any “renewal, change or modification” to the terms or conditions of the loan as reported may be required to be reported by Borrower to the Nevada Gaming Control Board and the Nevada Gaming Commission may order rescission of such renewal, change or modification under the circumstances set forth in such Regulation.

(b) In the case of any waiver, Borrower, Lender and Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.

(c) Any waiver, amendment, supplement or modification of this Agreement or the other Loan Documents shall be effected by a written instrument signed by the parties required to sign pursuant to the foregoing provisions of this Section and approved by the requisite Required Lenders. Delivery of an executed signature page of any such instrument by facsimile transmission shall be effective as delivery of a manually executed counterpart thereof. It is expressly agreed and understood that the election by the requisite Required Lenders to

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accelerate (or refrain from accelerating) amounts outstanding hereunder shall not constitute a modification or waiver of any term or provision of this Agreement or any other Loan Document. No modification of any provision of the Loan Documents relating to or affecting the rights, powers, duties or obligations of any Agent shall be effective without the written consent of such Agent. Notwithstanding anything to the contrary contained herein, the requisite Required Lenders may amend or otherwise modify (i) the definition of “Material Action”, (ii) the definition of “Unanimous Action”, (iii) the definition of “Required Lenders”, (iv) the definition of “Non-Unanimous Modification”, (v) the definition of “Unanimous Modification”, (vi) Section 2.3 and (vii) Article X without the consent of, or notice to, Borrower.

9.4. Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing by facsimile (with answer back acknowledged and followed immediately by another method of notice permitted under this Section 9.4), or by expedited prepaid delivery service, either commercial or United States Postal Service or international courier, with proof of delivery or attempted delivery, addressed as follows (or at such other address and person as shall be designated from time to time by any party to this Agreement, as the case may be, in a written notice to the other parties to this Agreement in the manner provided for in this Section). A notice shall be deemed to have been received, (a) in the case of expedited prepaid delivery service, when delivered or upon refusal to accept delivery, (b) in the case of Administrative Agent or Collateral Agent, upon actual receipt thereof, or(c) in the case of facsimile, on the date of transmittal if sent during business hours on a Business Day (otherwise on the next Business Day), provided that such facsimile has been followed by another method of notice permitted under this Section 9.4 on the same day as the transmittal of such facsimile, in each case addressed to the parties as follows:

If to Initial Lender:

Xxxxxxx Xxxxx Commercial Mortgage Capital, L.P.
6000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Xttention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000

and:

Xxxxxxx Xxxxx Mortgage Company
85 Xxxxx Xxxxxx, 00^xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xttention: Xxxxxxx Xxxx and Xxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000

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with a copy to:

Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Onx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xttention: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
If to subsequent Lender, to the respective address set forth in the register
described in Section 9.7(b).

If to Borrower:

c/o W2007 Aquarius Propco, L.P.
c/x Xxxxxxxxx Xxxxxx Xlobal Real Estate Limited Partnership 2000
x/x Xxxxxxx, Xxxxx & Co.
85 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xttention: Whitehall Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and

American Casino & Entertainment Properties, LLC
2000 Xxx Xxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Xttention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000

with a copy to:

Xxxxxxxx & Xxxxxxxx LLP
120 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xttention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000

If to Administrative Agent:

Archon Group, L.P.
600 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xttention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000

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If to Collateral Agent:

Well Fargo Bank, N.A.
45 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xttention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000

9.5. TRIAL BY JURY. LENDER AND BORROWER, TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY LENDER AND BORROWER AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY LENDER OR BORROWER, AS APPLICABLE.

9.6. Headings. The Article and Section headings in this Agreement are included in this Agreement for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

9.7. Assignment and Participation.

(a) Except as explicitly set forth in Section 2.6, Borrower may not sell, assign or transfer any interest in the Loan Documents or any portion thereof (including Borrower’s rights, title, interests, remedies, powers and duties hereunder and thereunder).

(b) Lender and each assignee of all or a portion of the Loan shall have the right from time to time in its discretion to sell one or more of the Notes or any interest therein (an “Assignment”) and/or sell a participation interest in one or more of the Notes (a “Participation”) to such Eligible Assignees as may be selected by Lender on terms and conditions satisfactory to Lender in its sole discretion. Borrower agrees reasonably to cooperate with Lender, at Lender’s request, in order to effectuate any such Assignment or Participation and Lender shall provide or cause to be provided to Borrower all information which Borrower is required to report to the Nevada Gaming Authorities with respect to any such Assignment or Participation. In connection with each Assignment, Assignee shall state in the assignment and assumption agreement delivered to Administrative Agent whether such Assignee is a Competitor Assignee, and in connection with an Assignment to a Person that indicates that it is, or that Administrative Agent actually knows to be, a Competitor Assignee (but not an Affiliate of a Competitor Assignee), neither Lender nor Administrative Agent shall provide such Person with Restricted Information (but Lender and/or Administrative Agent may provide Restricted Information to any Person that

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is not a Competitor Assignee). In connection with each Participation, the participant shall state in the participation agreement whether such participant is a Competitor Assignee, and in connection with a participation to a Person that indicates that it is, or that the participating Lender actually knows to be, a Competitor Assignee (but not an Affiliate of a Competitor Assignee), Lender shall not provide such Person with Restricted Information (but Lender may provide Restricted Information to any Person that is not a Competitor Assignee).

In the case of a Participation (i) Lender’s obligations under this Agreement shall remain unchanged, (ii) Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Lender shall remain the holder of any Note for all purposes of this Agreement and (iv) Borrower shall continue to deal solely and directly with Lender in connection with Lender’s rights and obligations under and in respect of this Agreement and the other Loan Documents. The holder of any Participation, other than an Affiliate of any Lender, shall not be entitled to require Lender to take or omit to take any action hereunder except with respect to any amendment, modification or waiver that would (A) extend the final scheduled maturity of any Loan, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that a waiver of any Default or Event of Default or not constitute a change in the terms of a Participation), (B) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement or (C) release all or substantially all of the Collateral (except as expressly provided in the Loan Documents). Borrower agrees that the holder of any Participation shall be entitled to the benefits of Section 1.7 and Section 1.8 to the same extent as if it were a Lender and had acquired its interest as an Assignment.

In the case of an Assignment, (i) each assignee shall have, to the extent of such Assignment, the rights, benefits and obligations of the assigning Lender as a “Lender” hereunder and under the other Loan Documents, (ii) the assigning Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to an Assignment, relinquish its rights and be released from its obligations under this Agreement, and (iii) Administrative Agent shall serve as agent for each Lender, on a collective basis, and shall be the sole Person to whom notices, requests and other communications shall be addressed and the sole party authorized to grant or withhold consents hereunder on behalf of Lender (subject to the approval of the Required Lenders in accordance with the terms hereof) and to be the sole Person to designate the account to which payments shall be made by Borrower to Lender hereunder. Each Assignment shall be effected by (x) the delivery to Administrative Agent of an assignment and assumption agreement executed by the assigning Lender and the assuming Lender, which agreement shall be substantially in the form attached hereto as Exhibit I, (y) the payment by the assuming Lender directly to the assigning Lender of all amounts due assigning Lender in connection with such Assignment and (z) the delivery to assuming Lender of a Note evidencing the portion of the Loan assigned to such assuming Lender. Administrative Agent shall maintain, or cause to be maintained, as agent for Borrower, a register on which it shall enter the name or names of the registered owner or owners from time to time of the Notes. Lender shall permit Borrower to review the register as needed for Borrower to comply with its obligations under this Agreement, the Loan Documents or any applicable law, regulation or procedure. Borrower agrees that upon effectiveness of any Assignment of any Note in part, Borrower will promptly provide to the assignor and the assignee separate promissory notes in the amount of their respective interests

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(but, if applicable, with a notation thereon that it is given in substitution for and replacement of an original Note or any replacement thereof), and otherwise in the form of such Note, upon return of the Note then being replaced. Each Lender shall have the right to inspect the register maintained by Administrative Agent to ascertain the identity of each other Lender. Each potential or actual assignee, participant or investor in a Securitization, and each Rating Agency, shall be entitled to receive from Lender all information received by Lender under this Agreement. After the effectiveness of any Assignment, the party conveying the Assignment shall provide notice to Borrower, Administrative Agent and each Lender of the identity and address of the assignee. Notwithstanding anything in this Agreement to the contrary, after an Assignment, the assigning Lender (in addition to the assignee) shall continue to have the benefits of any indemnifications contained in this Agreement which such assigning Lender had prior to such assignment with respect to matters occurring prior to the date of such assignment.

For the avoidance of doubt, nothing contained herein shall be construed as restricting or limiting any Lender from pledging its interest in the Loan or from selling its interest in the Loan in connection with a repurchase or similar agreement or arrangement.

(c) If, pursuant to this Section 9.7, any interest in this Agreement or any Note is transferred to any transferee that is not a U.S. Person, the transferor Lender shall cause such transferee, concurrently with the effectiveness of such transfer, (i) to furnish to Borrower and/or the transferor Lender either Form W-8BEN or Form W-8ECI or any other form in order to establish an exemption from, or reduction in the rate of, U.S. withholding tax on all interest payments hereunder, and (ii) to agree (for the benefit of Lender and Borrower) to provide Borrower and the transferor Lender a new Form W-8BEN or Form W-8ECI or any forms reasonably requested in order to establish an exemption from, or reduction in the rate of, U.S. withholding tax upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.

(d) Anything contained herein to the contrary notwithstanding, in the event that (i) any Lender (an “Increased-Cost Lender”) shall give notice to Borrower that such Lender is entitled to receive payments under Section 1.7 or Section 1.8, (ii) the circumstances that entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Borrower’s request for such withdrawal then, with respect to any such Increased-Cost Lender, Borrower may, by giving written notice to Administrative Agent and any such Increased-Cost Lender of its election to do so, elect to cause such Increased-Cost Lender (and such Increased-Cost Lender hereby irrevocably agrees) to assign its interest in the Loan in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of this Section 9.7, provided that, (1) it shall be the sole obligation of Borrower to locate and identify an Eligible Assignee ready, willing and able to purchase such interest, and no Lender shall have any obligation to locate or identify any such Eligible Assignee or to incur any cost or expense in connection therewith, (2) on the date of such assignment, the Replacement Lender shall pay to such Increased-Cost Lender an amount equal to the sum of the outstanding principal balance of the portion of the Loan held by such Increased-Cost Lender together, plus all accrued interest thereon; and (3) on the date of such assignment, Borrower shall pay any amounts payable to such

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Increased-Cost Lender pursuant to Section 1.7 or Section 1.8, together with all other reasonable, out-of-pocket expenses incurred by such Increased-Cost lender in connection with any such Assignment; provided, however, that Borrower shall not have the right to make such election to the extent that (x) such Increased-Cost Lender’s interest in the Loan is equal to or greater than 5% of the Principal Indebtedness or (y) such Assignment would cause the aggregate amount of Assignments made pursuant to this Section 9.7(d) to exceed 15% of the Loan Amount. Upon the Assignment of the Increased-Cost Lender’s interest in the Loan to a Replacement Lender, such Increased-Cost Lender shall no longer constitute a “Lender” for the purposes hereof, but any rights of such Increased-Cost Lender to indemnification under this Agreement shall survive as to such Increased-Cost Lender.

(e) If required by Administrative Agent, the assigning Lender shall pay to Administrative Agent its standard processing and recordation fee, not to exceed $3,500 per Assignment (which fee may be waived or reduced in the sole discretion of the Administrative Agent), and the assignee shall deliver to Administrative Agent such information as Administrative Agent shall reasonably request pursuant to its customary “Know Your Customer” procedures.

9.8. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

9.9. Preferences. Lender shall have no obligation to marshal any assets in favor of Borrower or any other party or against or in payment of any or all of the obligations of Borrower pursuant to this Agreement, the Notes or any other Loan Document. Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder and under the Loan Documents. To the extent Borrower makes a payment or payments to Lender (or to Administrative Agent for the benefit of Lender), which payment or proceeds or any portion thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or portion thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender.

9.10. Intentionally Omitted.

9.11. Offsets, Counterclaims and Defenses. All payments made by Borrower hereunder or under the other Loan Documents shall be made irrespective of, and without any deduction for, any setoffs or counterclaims. Borrower waives the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against it by Lender arising out of or in any way connected with the Notes, this Agreement, the other Loan Documents or the Indebtedness, but Borrower may bring a separate claim against Lender.

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Any assignee of Lender’s interest in the Loan shall take the same free and clear of all offsets, counterclaims or defenses which are unrelated to the Loan.

9.12. No Joint Venture. Nothing in this Agreement is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender, nor to grant Lender any interest in any Property or any other portion of the Collateral other than that of mortgagee, pledgee or lender.

9.13. Conflict; Construction of Documents. In the event of any conflict between the provisions of this Agreement and the provisions of the Notes, the Mortgage, the Pledge Agreement or any of the other Loan Documents, the provisions of this Agreement shall prevail.

9.14. Brokers and Financial Advisors. Borrower represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement. Borrower agrees to indemnify and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower in connection with the transactions contemplated in this Agreement. The provisions of this Section 9.14 shall survive the expiration and termination of this Agreement and the repayment of the Indebtedness.

9.15. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

9.16. Estoppel Certificates.

(a) Borrower agrees at any time and from time to time, to execute, acknowledge and deliver to Lender, within 5 Business Days after receipt of Lender’s written request therefor, a statement in writing setting forth (A) the Principal Indebtedness, (B) the date on which installments of interest and/or principal were last paid, (C) any offsets or defenses to the payment of the Indebtedness, (D) that the Notes, this Agreement, the Mortgage, the Pledge Agreement and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification, (E) that neither Borrower nor, to Borrower’s knowledge, Lender, is in default under the Loan Documents (or specifying any such default), and (F) to Borrower’s knowledge, such other matters as Lender may reasonably request. Any prospective purchaser of any interest in a Loan shall be permitted to rely on such statement.

(b) Lender shall within 5 days after Borrower’s written request therefor furnish Borrower with a statement setting forth (i) the amount of the original principal amount of the Note, (ii) the unpaid principal amount of the Notes, (iii) the rate of interest of the Notes, (iv) the date on which installments of interest and/or principal were last paid, (v) the balance of the sums in the accounts described in Article III, if any; and (vi) a statement regarding whether Lender has delivered to Borrower notice of an Event of Default.

9.17. Payment of Expenses; Mortgage Recording Taxes. Borrower shall reimburse Lender and Agents upon receipt of written notice from Lender for (i) all reasonable

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out-of-pocket costs and expenses incurred by Lender, any Agent (or any of any of their respective Affiliates) in connection with the origination of the Loan, including legal fees and disbursements, accounting fees, and the costs of the Appraisal, the Engineering Report, the Qualified Title Insurance Policy, the Qualified Survey, the Environmental Report and any other third-party diligence materials; (ii) all reasonable out-of-pocket costs and expenses incurred by Administrative Agent pursuant to Section 10.11(a) or by Lender, any Agent or any of any of their respective Affiliates in connection with (A) monitoring Borrower’s ongoing performance of and compliance with Borrower’s agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including confirming compliance with environmental and insurance requirements, in each case in connection with an actual or imminent Default by Borrower, as determined by Lender, (B) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Borrower or by Lender, except for any request made by Lender in connection with any Assignment, Participation or Securitization, (C) filing and recording fees and expenses and other similar expenses incurred in creating and perfecting the Liens in favor of Lender (or Collateral Agent for the benefit of Lender) pursuant to this Agreement and the other Loan Documents, (D) enforcing or preserving any rights, in response to third party claims or the prosecuting or defending of any action or proceeding or other litigation, in each case against, under or affecting Borrower, Property Owner Borrower GP, this Agreement, the other Loan Documents, the Property or any other Collateral, and (E) obtaining any Rating Confirmation required or requested by Borrower hereunder; and (iii) all actual out-of-pocket costs and expenses (including, if the Loan has been securitized, special servicing fees) incurred by Lender, any Agent (or any of any of their respective Affiliates) in connection with the enforcement of any obligations of Borrower, or a Default by Borrower, under the Loan Documents, including any actual or attempted foreclosure, deed-in-lieu of foreclosure, refinancing, restructuring or workout and any insolvency or bankruptcy proceedings; provided, however, that notwithstanding anything in this Section 9.17, Borrower shall not be responsible for the payment of ordinary, master or primary servicing fees (as opposed to special servicing fees). Borrower shall be solely liable for all costs and expenses (third party or otherwise) incurred by Borrower and the initial Lender and its Affiliates in connection with any Securitization, syndication, participation or other secondary market transaction relating to the Loan and shall pay the same reasonably promptly after written request therefor. In addition, and notwithstanding anything to the contrary herein, Borrower shall promptly following request by Administrative Agent pay any and all transfer fees and other banking charges due and payable in connection with any transfer by Administrative Agent of a Qualified Letter of Credit delivered pursuant to this Agreement.

9.18. No Third-Party Beneficiaries. This Agreement and the other Loan Documents are solely for the benefit of Lender and Borrower, and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Agents, Lender and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender, and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof, and no other Person

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shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.

9.19. Recourse.

(a) The Loan and all obligations of Borrower hereunder are fully recourse to Borrower. Except as set forth in Section 9.19(b), in the Recourse Guaranty, in the Environmental Indemnities and in Section 5.19 and in Section 9.14, no recourse shall be had for the Indebtedness or for the performance or observation of any other obligation under this Agreement or any of the Loan Documents against any Affiliate of Borrower that is not a Borrower itself or any officer, director, partner or equityholder of Borrower or any such Affiliate.

(b) Borrower shall indemnify Lender and Agents and hold Lender and Agents harmless from and against any and all Damages to Lender and/or Agents (including the legal and other expenses of enforcing the obligations of Borrower under this Section 9.19 and the Sponsor under the Recourse Guaranty) resulting from or arising out of any of the following (the “Indemnified Liabilities”):

(i) any fraud or intentional misrepresentation committed by Borrower, the Sponsor or any of their respective Affiliates in connection with the Loan;

(ii) the misappropriation or misapplication (in violation of the Loan Documents) by Borrower, the Sponsor or any of their respective Affiliates of any funds (including misappropriation or misapplication of Revenues, security deposits, sales proceeds and/or Loss Proceeds and the violation of the last sentence of Section 5.7(d));

(iii) any voluntary Transfer of Collateral or voluntary Lien which is prohibited hereunder;

(iv) any breach by Borrower or the Sponsor of any representation or covenant regarding environmental matters contained in this Agreement or in the Environmental Indemnity Agreements;

(v) the occurrence of any filing by Borrower or any Property Owner Borrower GP under the Bankruptcy Code or any joining or colluding by Borrower or any Property Owner Borrower or any of their respective Affiliates (including Sponsor) in the filing of an involuntary case in respect of Borrower under the Bankruptcy Code;

(vi) any material failure of Borrower or any Property Owner Borrower GP to be a Single-Purpose Entity, provided that failure to maintain adequate capital to conduct business operations shall not be considered a material failure of Borrower or any Property Owner Borrower GP to be a Single-Purpose Entity;

(vii) the failure of Borrower to deliver any certificates which evidence the equity interests pledged pursuant to the Pledge Agreement to Collateral Agent, together with an executed stock, membership or partnership power, as applicable, in blank; and

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(viii) any intentional physical waste with respect to any Property committed or permitted by Borrower, the Sponsor or any of their respective Affiliates.

(c) The foregoing limitations on personal liability shall in no way impair or constitute a waiver of the validity of the Notes, the Indebtedness secured by the Collateral, or the Liens on the Collateral, or the right of Lender, as mortgagee or secured party, to foreclose and/or enforce its rights with respect to the Collateral after an Event of Default. Nothing in this Agreement shall be deemed to be a waiver of any right which Lender may have under the Bankruptcy Code to file a claim for the full amount of the debt owing to Lender by Borrower or to require that all Collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents. Lender may seek a judgment on the Note (and, if necessary, name Borrower in such suit) as part of judicial proceedings to foreclose under the Mortgage or to foreclose pursuant to any other Loan Documents, or as a prerequisite to any such foreclosure or to confirm any foreclosure or sale pursuant to power of sale thereunder, and in the event any suit is brought on the Notes, or with respect to any Indebtedness or any judgment rendered in such judicial proceedings, such judgment shall constitute a Lien on and will be and can be enforced on and against the Collateral and the rents, profits, issues, products and proceeds thereof. Nothing in this Agreement shall impair the right of Lender to accelerate the maturity of the Note upon the occurrence of an Event of Default, nor shall anything in this Agreement impair or be construed to impair the right of Lender to seek personal judgments, and to enforce all rights and remedies under applicable law against any guarantors (including Sponsors) to the extent allowed by any applicable guarantees (including the Recourse Guaranty). The provisions set forth in this Section 9.19 are not intended as a release or discharge of the obligations due under the Note or under any Collateral Documents, but are intended as a limitation, to the extent provided in this Section 9.19, on Lender’s right to xxx for a deficiency or seek a personal judgment against Borrower or Sponsors.

9.20. Right of Set-Off. In addition to any rights now or hereafter granted under applicable law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, Lender may from time to time, without presentment, demand, protest or other notice of any kind (all of such rights being hereby expressly waived), set-off and appropriate and apply any and all deposits (general or special) and any other indebtedness at any time held or owing by Lender (including branches, agencies or Affiliates of Lender wherever located) to or for the credit or the account of Borrower against the obligations and liabilities of Borrower to Lender hereunder, under the Notes, the other Loan Documents or otherwise, irrespective of whether Lender shall have made any demand hereunder and although such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any such set-off shall be deemed to have been made immediately upon the occurrence of an Event of Default even though such charge is made or entered on the books of Lender subsequent thereto.

9.21. Exculpation of Lender. Neither Lender nor Administrative Agent undertakes or assumes any responsibility or duty to Borrower or any other party to select, review, inspect, examine, supervise, pass judgment upon or inform Borrower or any third party of (a) the existence, quality, adequacy or suitability of Appraisals of the Properties or other Collateral, (b) any environmental report, or (c) any other matters or items, including engineering, soils and seismic reports which are contemplated in the Loan Documents. Any such selection,

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review, inspection, examination and the like, and any other due diligence conducted by Lender, is solely for the purpose of protecting Lender’s rights under the Loan Documents, and shall not render Lender or Administrative Agent liable to Borrower or any third party for the existence, sufficiency, accuracy, completeness or legality thereof.

9.22. Servicer. The Required Lenders may delegate any and all rights and obligations of the Required Lenders hereunder and under the other Loan Documents, other than the right to amend the Loan Documents, to a servicer (the “Servicer”) from time to time upon notice by 100% of the Lenders to Borrower, the Collateral Agent and the Administrative Agent, whereupon any notice, direction or consent from such Servicer to Borrower, the Collateral Agent or the Administrative Agent, and any action by such Servicer on behalf of the Required Lenders, shall have the same force and effect as if such Servicer were the Required Lenders. The fees of the Servicer shall be paid by Borrower.

9.23. Prior Agreements. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND THERETO IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, AND ALL PRIOR AGREEMENTS AMONG OR BETWEEN SUCH PARTIES, WHETHER ORAL OR WRITTEN, INCLUDING ANY TERM SHEETS, CONFIDENTIALITY AGREEMENTS AND COMMITMENT LETTERS (BUT EXCLUDING ANY FEE LETTER, WHICH SHALL BE REGARDED AS A LOAN DOCUMENT HEREUNDER AND SHALL SURVIVE CLOSING), ARE SUPERSEDED BY THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.

9.24. Purchase of Loan by Whitehall.

(a) Subject and pursuant to the provisions of this Section 9.24, Whitehall may from time to time conduct one or more modified Dutch auctions in order to purchase a portion of the Principal Indebtedness evidenced by one or more of the Notes (an “Auction”). The aggregate amount of Principal Indebtedness repurchased by Whitehall through Auctions shall not exceed $35,000,000 (the “Maximum Permitted Auction Amount”).

(b) In connection with each Auction, Whitehall shall provide notification to the Administrative Agent (for distribution to Lender) of the portion of the Principal Indebtedness that will be the subject of the Auction (an “Auction Notice”). Each Auction Notice shall contain (i) the maximum principal amount of Principal Indebtedness that Whitehall is willing to purchase in the Auction, which shall be no less than $10,000,000 or an integral multiple of $500,000 in excess of thereof (the “Auction Amount”); (ii) the range of discounts to par (the “Discount Range”), expressed as a range of prices per $1,000 of the Principal Indebtedness at issue, at which Whitehall would be willing to purchase such Principal Indebtedness in the Auction; and (iii) the date on which the Auction will conclude, on which date Return Bids (as defined below) will be due by 1 p.m. New York time (the “Expiration Time”). Such Expiration Time may be extended upon notice by Whitehall to the Administrative Agent at least 24 hours before the Expiration Time, provided, however, that only one extension per any such Auction Notice shall be permitted, which shall be for a period not exceeding three Business Days.

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(c) In connection with any Auction, each holder of a Note wishing to participate in such Auction must within five Business Days provide the Administrative Agent with a notice of participation (the “Return Bid”) which shall specify (i) a discount to par that must be expressed as a price per $1,000 of Principal Indebtedness evidenced by a particular Note (the “Reply Discount”) within the Discount Range and (ii) the principal amount of its Note(s), in an amount not less than $500,000 or an integral multiple in excess thereof, that such Lender would be willing to offer for sale at that Reply Discount (the “Reply Amount”). A Lender may submit a Reply Amount that is less than the minimum amount and incremental amount requirements described above only if the Reply Amount comprises the entire amount of Principal Indebtedness held by such Lender. Lender may only submit one Return Bid per Auction but each Return Bid may contain up to three component bids, each of which may result in a separate Qualifying Bid (as defined below). In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Administrative Agent, an assignment and acceptance in a form approved by the Administrative Agent.

(d) Based on the Reply Discounts and Reply Amounts received by the Administrative Agent, the Administrative Agent, in consultation with Whitehall, will determine the applicable Reply Discount for the Auction, which will be the lowest Reply Discount (the “Applicable Reply Discount”) at which Whitehall can complete the Auction by purchasing the full Auction Amount (or such lesser amount of Principal Indebtedness for which Whitehall has received Return Bids within the Discount Range), provided that the aggregate principal amount of Principal Indebtedness purchased by Whitehall shall not exceed the Maximum Permitted Auction Amount. Whitehall shall purchase the Principal Indebtedness at the Applicable Reply Discount from each Lender whose Return Bid contains a Reply Discount that is equal to or less than the Applicable Reply Discount (each, a “Qualifying Bid”). Any portion of the Principal Indebtedness included in Return Bids received at a price lower than the Applicable Reply Discount will be purchased at the applicable Reply Discount and shall not be subject to proration. If a Lender has submitted a Return Bid containing multiple component bids at different Reply Discounts, then all Principal Indebtedness held by such Lender offered in Qualifying Bids with prices lower than the Applicable Reply Discount shall also be purchased at the applicable Reply Discounts and shall not be subject to proration. All Principal Indebtedness offered in Return Bids at the Applicable Reply Discount will be purchased at the Applicable Reply Discount; provided that if (a) the aggregate principal amount of all Principal Indebtedness for which Qualifying Bids have been submitted in any given Auction would exceed the remaining portion of the Auction Amount, or (b) the aggregate amount of Principal Indebtedness purchased following such Auction would exceed the Maximum Permitted Auction Amount, Whitehall shall purchase the Principal Indebtedness for which the Qualifying Bids submitted were at the Applicable Reply Discount ratably based on the respective principal amounts offered and in an aggregate amount necessary to complete the purchase of the Auction Amount, applying proceeds up to the lower of (x) the Auction Amount and (y) the highest amount of proceeds that would not cause Whitehall to exceed the Maximum Permitted Auction Amount. No Return Bids will be accepted above the Applicable Reply Discount. Each participating Lender will receive notice from the Administrative Agent of a Qualifying Bid by 4 p.m. New York time on the same business day of the date the Return Bid was due.

(e) Once initiated by an Auction Notice, Whitehall may not withdraw an Auction. Furthermore, in connection with any Auction, upon submission by a Lender of a

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Return Bid, such Lender will not have any withdrawal rights. Any Return Bid delivered to the Administrative Agent may not be modified, revoked, terminated or cancelled by a Lender.

(f) Prior to the consummation of any Auction, Whitehall shall provide to Administrative Agent and Lender an officer’s certificate certifying that it is not in possession of any material non-public information regarding the Borrower or the Properties that has not been disclosed to the Administrative Agent and Lender.

(g) Immediately upon acquisition by Whitehall of any Principal Indebtedness pursuant to this Section 9.24, the amount so acquired shall be deemed to have been prepaid in full, the Principal Indebtedness shall be appropriately reduced and the outstanding principal balance of the portion of the Loan so acquired shall be reduced to zero. Neither Whitehall nor any holder of the portion of the Loan so acquired shall be deemed a “Lender” or have any of the rights of a Lender hereunder. Upon the conclusion of the auction process described in this Section 9.24, Whitehall may designate W2007/ACEP Holdings, LLC as the purchaser of the Principal Indebtedness that was the subject of such auction.

9.25. No Fiduciary Duty. Each Agent, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lending Parties”), may have economic interests that conflict with those of Borrower, its stockholders and/or its Affiliates. Borrower agrees that nothing in this Agreement, the other Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lending Party, on the one hand, and Borrower, its stockholders or its Affiliates, on the other. Borrower acknowledges and agrees that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lending Parties, on the one hand, and Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lending Party has assumed an advisory or fiduciary responsibility in favor of Borrower, its stockholders or its Affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lending Party has advised, is currently advising or will advise Borrower, its stockholders or its Affiliates on other matters) or any other obligation to Borrower except the obligations expressly set forth in the Loan Documents and (y) each Lending Party is acting solely as principal and not as the agent or fiduciary of Borrower, its management, stockholders, creditors or any other Person. Borrower acknowledges and agrees that Borrower has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Borrower agrees that it will not claim that any Lending Party has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to Borrower, in connection with such transaction or the process leading thereto.

9.26. Confidentiality. Each Agent and Lender shall not disclose Restricted Information to any party that Agent or Lender, as applicable, actually knows to be a Competitor Assignee. Each Agent and Lender shall not disclose any non-public information regarding Borrower and the Properties that is marked “confidential” and obtained by such Agent or Lender, it being understood and agreed by Borrower that the Administrative Agent may disclose such information to Lender and each Agent and Lender may make (i) disclosures of such information

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to Affiliates of Lender or Agent and to their respective agents and advisors (and to other Persons authorized by Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 9.26), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of the Loan or any participations therein (provided (x) such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 9.26 or other provisions at least as restrictive as this Section 9.26 and (y) no disclosures of Restricted Information to any Competitor Assignee will be permitted), (iii) disclosure to any Rating Agency when required by it, provided that, prior to any disclosure, such Rating Agency shall undertake in writing to preserve the confidentiality of any confidential information relating to Borrower received by it from any Agent or Lender, (iv) disclosures in connection with the exercise of any remedies hereunder or under any other Loan Document and (v) disclosures required or requested by any internal or external auditor, governmental agency, regulatory authority or representative thereof, or by the NAIC, or pursuant to legal or judicial process or pursuant to applicable law; provided, unless specifically prohibited by applicable law or court order, Lender and each Agent shall make reasonable efforts to notify Borrower of any request by any governmental agency or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of Lender by such governmental agency) for disclosure of any such non-public information prior to disclosure of such information. In addition, each Agent and Lender may disclose the existence of this Agreement and the information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Agents and Lender in connection with the administration and management of this Agreement and the other Loan Documents. Notwithstanding anything herein to the contrary, nothing in the foregoing Section 9.26 nor any other confidentiality requirements prevents the provision by the initial Lender or any of its Affiliates of information to counterparties in connection with a repurchase or similar agreement or arrangement.

9.27. PATRIOT Act Records. Each of Lender and Administrative Agent (for itself and not on behalf of Lender) hereby notifies Borrower that pursuant to the requirements of the PATRIOT Act, it is required to obtain, verify and record information that identifies Borrower and Sponsor, which information includes the name and address of Borrower and Sponsor and other information that will allow Lender or Administrative Agent, as applicable, to identify Borrower or Sponsor in accordance with the PATRIOT Act.

ARTICLE X

AGENTS

10.1 Appointment.

(a) Each Lender hereby irrevocably designates and appoints (i) Administrative Agent as the administrative agent of such Lender and (ii) Collateral Agent as the collateral agent of such Lender, in each case, under this Agreement and the other Loan Documents to which Administrative Agent and/or Collateral Agent are a party, respectively, and each such Lender irrevocably authorizes each such Agent to take such action on its behalf and in such Agent’s

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designated capacity under the provisions of this Agreement and the other Loan Documents to which Administrative Agent and/or Collateral Agent are a party, respectively, and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents to which Administrative Agent and/or Collateral Agent are a party, respectively. Notwithstanding any provision to the contrary elsewhere in this Agreement and the other Loan Documents, no Agent shall have any duties or responsibilities, except those expressly set forth herein and/or in the other Loan Documents to which such Agent is a party, nor shall any Agent have or be deemed to have any fiduciary relationship with or fiduciary obligations to any Lender or any other Person, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist on the part of any Agent. In performing its functions and duties hereunder and under the other Loan Documents to which an Agent is a party, each such Agent shall act solely as an Agent of the Lenders and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for Borrower or any other Person. Wherever in this Agreement or the other Loan Documents the consent of Lender or the Required Lenders is required for any action to be taken by Borrower, Borrower may deliver its request for such consent to the Administrative Agent, the Administrative Agent shall deliver copies of such request to each Lender and the Administrative Agent shall convey to Borrower the response of each Lender.

(b) Administrative Agent shall have the power and authority, and is hereby designated by Lender, to act on behalf, and for the benefit, of Lender, on a collective basis, for all purposes hereunder and under the other Loan Documents to which Administrative Agent is a party, provided that, notwithstanding anything in this Agreement or any other Loan Document to the contrary, Administrative Agent shall not be authorized to take any Material Action or Unanimous Action hereunder or under any of the other Loan Documents without the consent of the requisite Required Lenders.

(c) Notwithstanding any provision of this Agreement or the other Loan Documents, any action to be taken or omitted by Administrative Agent under the terms and provisions of this Agreement and the other Loan Documents shall be taken or omitted solely at the written direction of the Required Lenders (which written direction may be in the form of an e-mail). For the avoidance of doubt, Administrative Agent shall have no discretion under the Loan Documents and shall not be required to make or give any determination, consent, approval, request or direction without the written direction of the Required Lenders (which written direction may be in the form of an e-mail); provided, however, that the written direction of the Required Lenders shall not be required in connection with (i) disbursing amounts to the Lender and Agents (for amounts due to Agents) in accordance with this Agreement and the other Loan Documents, (ii) calculating the interest rate in accordance with this Agreement and (iii) forwarding to Lender notices and other documents received by Administrative Agent pursuant to this Agreement and the other Loan Documents, in each case, unless Required Lenders shall provide specific direction, or Administrative Agent shall request specific direction, with respect thereto. Administrative Agent shall be entitled to rely upon the written direction of the Required Lenders and shall be fully protected in so relying. Wherever in this Agreement or the other Loan Documents the Administrative Agent or the Collateral Agent is required to take or refrain from taking any action, each Lender agrees to direct Administrative Agent or Collateral Agent, as applicable, to take or refrain from taking such action. Administrative Agent shall have no duty,

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obligation or liability to examine, make any investigation or review any notices, requests or other documents or instruments delivered to it under the terms of the Loan Documents, except to deliver copies of the same to Lender in accordance with the terms of this Agreement.

10.2 Delegation of Duties. Each Agent may execute any of its duties under this Agreement and the other Loan Documents by or through receivers, agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agent, receiver or attorneys-in-fact selected by it with reasonable care.

10.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers, directors, employees, agents, attorneys, attorneys-in-fact or Affiliates (collectively, “Agent-Related Persons”) shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person or Persons under or in connection with this Agreement or any other Loan Document or any other document or instrument referred to or provided for herein or therein (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person or Persons’ own gross negligence or willful misconduct and such Person (or Persons) was not selected with reasonable care) or (ii) responsible in any manner to any Lender or any other Person for any recitals, statements, representations or warranties made by any Borrower or any officer thereof contained in any Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by such Agent under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement, any other Loan Document or any Collateral or Property or for the validity, effectiveness, enforceability, sufficiency, priority or perfection of any security interest purported to be granted or created pursuant to the Loan Documents, or for any failure of any Borrower to perform its obligations hereunder or thereunder. Neither any Agent nor any Agent-Related-Person shall be required to initiate or conduct any litigation or collection or other proceeding under the Loan Documents without the express written direction of Required Lenders. Neither any Agent nor any Agent-Related Persons shall be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Borrower. Each Agent agrees to promptly furnish to each Lender copies of all financial statements and other certificates, reports, papers, documents or notices received by it hereunder in its capacity as an Agent. Each Agent and Agent-Related Person shall have the right at any time to seek instructions from the Lenders with respect to the administration of the Loan Documents. Anything to the contrary notwithstanding, in no event shall any Agent or Agent-Related Person be liable to any Person, under this Agreement or any other Loan Document, for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Agent or Agent-Related Person has been advised of the likelihood of such loss or damage.

10.4 Reliance by Agents. Each Agent shall be entitled to rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel

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(including, without limitation, counsel to the Borrower), independent accountants and other experts selected by such Agent. Neither Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, including without limitation any documents delivered to any Agent under Article V and Article VIII. Each Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless such Note shall have been transferred in accordance with this Agreement and all actions required in connection with such transfer shall have been taken. Each Agent shall be fully justified in, and shall have no liability for, failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive direction, request or consent of the Required Lenders and/or it shall first be indemnified to its satisfaction by each Lender against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action; and each Agent has the right to seek instructions from the Required Lenders before acting or electing not to act under this Agreement or any other Loan Document. Each Agent shall in all cases be fully protected and have no liability in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a direction, request or consent of the Required Lenders, and such direction, request or consent and any action taken or failure to act pursuant thereto shall be binding upon each Lender and all future holders of all or any interest in the Loan.

10.5 Notice of Default. No Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of Default under the Loan Documents unless a responsible officer of such Agent shall have received written notice from Lender, another Agent or Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default.” In the event that Administrative Agent shall receive such a notice, it shall promptly give notice thereof to each Lender and Collateral Agent. In the event that Collateral Agent shall receive such a notice, it shall promptly give notice thereof to Administrative Agent, and Administrative Agent shall promptly give notice thereof to each Lender . Each Agent shall take such action with respect to such Default or Event of Default as shall be directed by the Required Lenders.

10.6 Credit Decision. Each Lender expressly acknowledges that neither any Agent nor any Agent-Related Person has made any representations or warranties to it and that no act by any Agent hereafter taken, including without limitation any review of the affairs of Borrower or any Affiliate of Borrower, shall be deemed to constitute any representation or warranty by such Agent to any Lender. Each Lender represents to each Agent that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property (including the Property), financial prospects, and other condition and creditworthiness of the Borrower and its Affiliates and made its own decision to make its pro rata share of the Loan hereunder and enter into this Agreement and extend credit to Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property (including the Property), financial prospects , and other condition

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and creditworthiness of the Borrower and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to Lender by any Agent hereunder, no Agent shall have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property (including the Property), condition (financial or otherwise), prospects or creditworthiness of any Borrower, any Affiliate of any Borrower or any Property that may come into the possession of any Agent or any Agent-Related Persons.

10.7 Indemnification. Each Lender shall indemnify and hold harmless upon demand the Agents and all other Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower and without limiting the obligation of Borrower to do so) ratably (according to the principal amount of the Loan held) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the fees and disbursements of counsel for the Agents and Agent-Related Persons, including in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not any Agent or Agent-Related Person shall be designated a party thereto including those incurred in any bankruptcy proceeding) which may at any time (including at any time following the repayment of the Loan) be imposed on, incurred by or asserted against any such Person in any way as a result of, relating to or arising out of this Agreement, any other Loan Document, the Transaction or any document contemplated by or referred to herein or in any other Loan Document or the transactions contemplated hereby or thereby or any action taken or omitted by any such Person under or in connection with any of the foregoing; provided, however, that no Lender shall be liable for the payment to the Agents and any other Agent-Related Persons of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting solely from such Person’s fraud, bad faith, gross negligence or willful misconduct (each as determined by a final, non-appealable judgment of a court of competent jurisdiction). Without limitation of the foregoing, each Lender shall reimburse each Agent upon demand (to the extent such Agent is not reimbursed upon demand by Borrower, unless such Agent is legally restricted from making such demand upon Borrower, in which case demand need not be made upon Borrower) for its ratable share of any costs or out-of-pocket expenses (including attorneys’ fees and expenses, including the allocated fees of in-house counsel) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein or therein to the extent that such Agent is not reimbursed for such expenses by or on behalf of Borrower. Without limiting the generality of the foregoing, if the Internal Revenue Service or any authority of the United States of America or other jurisdiction asserts a claim that such Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered or was not properly executed, or because such Lender failed to notify such Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), such Lender shall indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction on the amounts payable to such Agent under this Section 10.7, together with all costs, expenses and attorneys’ fees (including allocated costs for in-house legal services). No provision of this Agreement or the other Loan Documents shall require either Agent to expend or risk its own

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funds or otherwise incur any financial liability in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers (except in connection with such Agent’s own overhead and operating costs unless, and to the extent, otherwise expressly set forth in the Agent Fee Agreements) unless Agent shall have received adequate indemnity in such Agent’s reasonable opinion against potential costs and liabilities incurred by such Agent relating thereto. Notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, in the event any Agent is entitled or required to commence an action to foreclose or otherwise exercise its remedies to acquire control or possession of the Collateral, the Agent shall not be required to commence any such action or exercise any such remedy if the Agent has determined in good faith that the Agent may incur liability under any Legal Requirements as the result of the presence at, or release on or from, the Collateral, of any Hazardous Substances unless the Agent has received security or indemnity from the Lenders in an amount and in a form all satisfactory to the Agent in its sole discretion, protecting the Agent from all such liability. Each Agent shall at any time be entitled to cease taking any action described above if it no longer reasonably deems any indemnity, security or undertaking from the Borrower or the Lenders to be sufficient. The obligation of each Lender in this Section 10.7 shall survive the payment of the Indebtedness, the termination of this Agreement and the resignation or removal of the Agents.

10.8 Agents in Their Individual Capacity. Each Agent and each of their respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory or other business with, Borrower and its Affiliates as though such Agent were not an Agent hereunder and without notice to or consent of Lender (except that the foregoing shall not permit any transaction that would otherwise be prohibited hereunder). Lender acknowledges that (i) pursuant to such activities, one or more Agent, and/or one or more of their respective Affiliates may receive information regarding Borrower and its respective Affiliates (including information that may be subject to confidentiality obligations in favor of Borrower and/or such Affiliates), and (ii) neither any Agent, nor any of their respective Affiliates, shall be under any obligation to provide such information to Lender. With respect to the pro rata share (if any) of the Loan made or held by it at any time and any Note issued to it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not Agent, and the term “Lender” shall include each Agent in its individual capacity, to the extent it holds any portion of the Loan.

10.9 Successor Agents. Each of the Administrative Agent and the Collateral Agent may be removed by the Required Lenders (which for the purposes thereof, shall not include the pro rata interest of Lender then serving as Administrative Agent, if applicable) with or without cause upon 10 days’ notice to such Agent. Any Agent may resign hereunder and under the other Loan Documents upon 30 days’ notice to Lender and Borrower. Upon the resignation or removal of any Agent, the Required Lenders shall appoint a successor Administrative Agent or Collateral Agent, as the case may be. Upon the acceptance of its appointment as successor Agent in such capacity hereunder and under the other Loan Documents, a successor Agent shall succeed to all the rights, powers and duties of the retiring or removed Agent in such capacity, and the term “Administrative Agent” or “Collateral Agent”, as the case may be, shall mean such successor Administrative Agent or Collateral Agent, as the case may be, and the retiring or removed Agent’s rights, powers and duties as Agent in such

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capacity shall be terminated. The provisions of this Article X shall continue to inure to the benefit of the Agent that has resigned or been removed as to any actions taken or omitted to be taken by it while it was an Agent under this Agreement and the other Loan Documents. If no successor Agent has accepted appointment as Agent in the applicable capacity by the date which is 10 days or 30 days, as applicable, following a retiring Agent’s notice of resignation or receipt of notice of removal, the retiring Agent’s resignation or removal shall nevertheless be effective and the Required Lenders shall perform all of the duties of such Agent hereunder until such time, if any, as the Required Lenders appoint a successor Agent in such capacity as provided for above. If an Agent consolidates with, merges with or converts into, or transfers all or substantially all of its assets or corporate trust business (including the administration of this Agreement and the other Loan Documents) to, another Person, the resulting, surviving or transferee Person, without any further act, shall be the successor Agent.

Section 10.10. Standard of Care of the Collateral Agent; etc.

(a) The Collateral Agent agrees for the benefit of Lender that it will hold the original Loan Documents it receives, if any, as a custodian and shall handle such Loan Documents in accordance with Accepted Collateral Agent Practices. Collateral Agent may hold such original Loan Documents either directly or indirectly through a custodian. Collateral Agent shall, and shall cause any custodian acting on its behalf to, deliver to Administrative Agent any original Loan Documents in Collateral Agent or such custodian’s possession promptly after Administrative Agent’s request therefor.

(b) The Collateral Agent shall not be required to take any discretionary actions hereunder or under any other Loan Documents. Any provision of this Agreement or any other Loan Document authorizing the Collateral Agent to take any action shall not obligate the Collateral Agent to take such action. The Collateral Agent shall not be under any obligation or duty to perform any act which, in the Collateral Agent’s sole reasonable judgment, could involve it in expense or liability or to institute or defend any suit in respect thereof, or to advance any of its own monies, unless the Administrative Agent, the Required Lenders or Borrower, as the case may be, shall have offered to the Collateral Agent reasonable security or indemnity against such expense, liability, suit or advance satisfactory to the Collateral Agent.

(c) The Collateral Agent may deem and treat the payees of the Notes as the owners thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been delivered to the Collateral Agent.

(d) Collateral Agent shall not have any duty, obligation or liability with respect to any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document delivered by the Borrower under the Loan Documents, including without limitation any documents delivered to any Agent under Article V and Article VIII, other than to deliver copies of the same to Administrative Agent upon Administrative Agent’s request. Without limiting the generality of the foregoing, Collateral Agent shall have no duty, obligation or liability with respect to any notice of default delivered to Collateral Agent (either under the Loan Documents or under any other agreement or document) other than to deliver a copy of the same to Administrative Agent.

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Section 10.11. Standard of Care of the Administrative Agent; etc.

(a) In performing its obligations hereunder, the Administrative Agent shall employ the Accepted Administrative Agent Practices without regard to any relationship that the Administrative Agent or any Affiliate of the Administrative Agent may have with the Borrower or any Affiliate of the Borrower. The servicing and administration of the Loan by the Administrative Agent shall include, without limitation, the following:

(i) if directed by the Required Lenders, using commercially reasonable efforts to enter upon and inspecting a Property to the extent permitted by this Agreement; and

(ii) if directed by the Required Lenders, using commercially reasonably efforts to inspect and examine the Borrower’s books and records in accordance with Section 5.5 (for the avoidance of doubt, notwithstanding the foregoing, Lender, or another agent of Lender, may inspect and examine Borrower’s books and records directly);

(b) Recordkeeping Requirements. The Administrative Agent shall maintain records with respect to the Loan and the Properties, which shall include a file of monthly, quarterly and annual statements, Approved Annual Budgets and any updates thereto, financial information, notices, correspondence and reports to the extent any such documents have been received by the Administrative Agent.

(c) Access to Books and Records and Information Reasonably Requested. The Administrative Agent shall permit the examination by any Lender or its representatives without charge, upon two Business Days’ prior notice and during ordinary business hours, of all books and records kept by the Administrative Agent in the ordinary course of business with respect to the Loan, the Borrower and/or the Properties. In addition to the foregoing, the Administrative Agent shall provide each Lender with photostatic or other copies of such of these records as any Lender may request and at such Lender’s expense.

(d) Subservicing. To the extent necessary for the Administrative Agent to comply with any applicable laws, regulations, codes or ordinances relating to the Administrative Agent’s obligations hereunder, the Administrative Agent may subservice to any Person any of its obligations hereunder; provided, however, that (i) Administrative Agent shall obtain the Required Lenders’ advance written consent to any such Person (not to be unreasonably withheld), (ii) any subservicing agreement shall be consistent with and subject to the provisions of this Agreement and (iii) Administrative Agent shall supervise, and provide oversight to, any such Person. Neither the existence of any subservicing agreement nor any of the provisions of this Agreement relating to subservicing shall relieve the Administrative Agent of its obligations hereunder. Notwithstanding any such subservicing agreement, the Administrative Agent shall be obligated to the same extent and under the same terms and conditions as if the Administrative Agent alone was servicing and administrating the Loan in accordance with the terms of this Agreement. The Administrative Agent shall be solely liable for all fees owed by it to any subservicer, regardless of whether the Administrative Agent’s compensation hereunder is sufficient to pay such fees.

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(e) Merger or Consolidation of the Administrative Agent. The Administrative Agent may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets to any Person, in which case any Person resulting from any merger or consolidation to which it shall be a party, or any Person succeeding to its business shall be the successor of the Administrative Agent hereunder, and shall be deemed to have assumed all of the liabilities of the Administrative Agent hereunder. The Administrative Agent shall notify each Lender upon the occurrence of any such merger, consolidation or succession of business.

(f) Assignment or Participation of the Loan. Any Lender assigning or participating all or a portion of its interest in the Loan to an Eligible Assignee shall notify the Administrative Agent of any such Assignment or Participation. Until the Administrative Agent receives written notice from an assuming or participating Eligible Assignee regarding the consummation of such Assignment or Participation, Lender (which, for the purpose of this subsection, shall mean the Person or Persons which owned and held the Loan immediately prior to the consummation of such Assignment or Participation) shall be presumed to be the owner and holder of the Loan with respect to any duty or obligation of the Administrative Agent hereunder.

(g) Any provision of this Agreement or any other Loan Document authorizing the Administrative Agent to take any action shall not obligate the Administrative Agent to take such action.

(h) Administrative Agent shall not have any duty, obligation or liability with respect to any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document delivered by Borrower under the Loan Documents, including without limitation any documents delivered to any Agent under Article V and Article VIII, other than to deliver copies of the same to a Lender. Without limiting the generality of the foregoing, Administrative Agent shall have no duty, obligation or liability with respect to any notice of default delivered to Administrative Agent (either under the Loan Documents or under any other agreement or document) other than to deliver a copy of the same to Lenders.

10.12 Electronic Communications.

(a) Administrative Agent shall promptly deliver to each Lender hereunder copies of (i) all notices, reports, documents, data and other communications (collectively “Communications”) received from Borrower in connection with this Agreement and the other Loan Documents and (ii) all Communications delivered by Administrative Agent to Borrower in connection with this Agreement and the other Loan Documents. All notices and other communications from any Agent to any Lender hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by such Agent, provided that the foregoing shall not apply to notices to any Lender that has notified such Agent that it is incapable of receiving notices under by electronic communication. Any Agent may agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless an Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended

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recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(b) Borrower understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agree and assume the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the distributing Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

(c) Lender agrees that Approved Electronic Communications are provided “as is” and “as available”. No Agent and no Agent-Related Party warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or any Internet or intranet platform on which they may be provided, and each expressly disclaims liability for errors or omissions in any such platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Agents in connection with any such platform or the Approved Electronic Communications. “Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Borrower provides to an Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to Lender by means of electronic communications pursuant to this Section 10.12.

(d) Each Borrower and each Lender agrees that any Agent may, but shall not be obligated to, store any Approved Electronic Communications on Internet or intranet platform in accordance with such Agent’s customary document retention procedures and policies.

10.13 Actions by the Collateral Agent and the Administrative Agent.

(a) Each Agent shall not be liable for any action it takes or omits to take in good faith in reliance on any written direction by the Required Lenders (which written direction may be in the form of an e-mail) or an Officer’s Certificate from Borrower. Whenever in the administration of any Loan Document any Agent shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any act hereunder or thereunder, such matter (unless other evidence in respect thereof be herein or therein specifically prescribed) may, in the absence of bad faith, gross negligence or willful misconduct on the part of such Agent, be deemed to be conclusively proved and established by any written direction from the Required Lenders or an Officer’s Certificate from Borrower delivered to such Agent, and such written direction or certificate, in the absence of gross negligence or bad faith on the part of such Agent, shall be full authorization to such Agent for any action taken, suffered or omitted to be taken by it under the provisions of any Loan Document.

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(b) In each case that an Agent may or is required hereunder or under any other Loan Document to take any action (an “Agent Action”), including without limitation to make any determination, to give consents, to exercise rights, powers or remedies, to release or sell Collateral or otherwise to act hereunder or under any other Loan Documents, the Agent may seek direction from the Required Lenders. The Agent shall not be liable with respect to any Agent Action taken or omitted to be taken by it in good faith in accordance with the direction from the Required Lenders. If the Agent shall request direction from the Required Lenders with respect to any Agent Action, the Agent shall be entitled to refrain from such Agent Action unless and until such Agent shall have received direction from the Required Lenders, and the Agent shall not incur liability to any Person by reason of so refraining.

(c) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, in no event shall either Agent be responsible for, or have any duty or obligation with respect to, the recording, filing, registering, perfection, protection or maintenance of the security interests or Liens intended to be created by the Loan Documents (including without limitation the filing or continuation of any UCC financing or continuation statements or similar documents or instruments), nor shall either Agent be responsible for, and each Agent makes no representation regarding, the validity, effectiveness or priority of any of the Loan Documents or the security interests or Liens intended to be created thereby.

10.14 Payment of Expenses and Indemnity.

(a) Borrower shall, whether or not the transactions hereby contemplated are consummated, pay all fees and out-of-pocket costs and expenses of each Agent in accordance with the Agent Fee Agreements, in connection with (i) the negotiation, preparation, execution and delivery of the Loan Documents and the documents and instruments referred to therein, (ii) the administration of the Loan Documents and the performance of the Agents’ duties thereunder, (iii) the syndication, management, and administration of the Loan (including reasonable fees and expenses of an independent engineer or an independent environmental auditor in connection with the Engineering Report and the Environmental Report), (iv) the creation, perfection or protection of the Collateral Agent’s Liens in the Collateral (including, without limitation, fees and expenses for title and lien searches and filing and recording fees), and (v) any amendment, waiver or consent relating to any of the Loan Documents (including, without limitation, as to each of the foregoing, the reasonable fees and disbursements of counsel to the Agents (including those incurred in any bankruptcy proceeding) and any other attorneys retained by the Agents and allocated costs of internal counsel).

(b) Borrower shall pay all out-of-pocket costs and expenses of each Agent in connection with the preservation of rights under, and enforcement of, the Loan Documents and the documents and instruments referred to therein or in connection with any restructuring or rescheduling of the Indebtedness (including, without limitation, the reasonable fees and disbursements of counsel for each Agent).

(c) Borrower shall pay, and hold each Agent harmless from and against, any and all present and future stamp, excise, mortgage recording and other similar taxes and fees with respect to the foregoing matters and hold each Agent harmless from and against any and all liabilities with respect to or resulting from any delay or omission to pay such taxes.

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(d) Borrower shall indemnify each Agent and Agent-Related Person (each an “Agent Indemnitee”) from, and hold each of them harmless against, any and all losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Agent Indemnitee) that may at any time (including, without limitation, at any time following the payment of the Indebtedness) be imposed on, asserted against or incurred by any Agent Indemnitee as a result of, or arising out of, or in any way related to or by reason of, (i) any of the transactions contemplated hereby or the execution, delivery or performance of any Loan Document, (ii) any violation by Borrower or its Affiliates of any applicable Legal Requirement, (iii) any Environmental Claim arising out of the management, use, control, ownership or operation of property or assets by Borrower or any of Affiliates, including, without limitation, all on-site and off-site activities involving Hazardous Substances, (iv) the breach of any environmental representation or warranty set forth in any Loan Document, (v) the grant to Lenders of any Lien in any property or assets of Borrower or any equity interest in Borrower and (vi) the exercise by Lender of its rights and remedies including, without limitation, foreclosure) under any agreements creating any such Lien (but excluding, in each case, as to any Agent Indemnitee, any such losses, liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursements to the extent caused by reason of the gross negligence or willful misconduct of such Agent Indemnitee as finally determined by a court of competent jurisdiction). Borrower’s obligations under this Section shall survive the repayment of all Indebtedness, the termination of this Agreement and the resignation or removal of either Agent.

(e) The parties hereto hereby agree and acknowledge that neither Agent shall assume, be responsible for or otherwise be obligated for any liabilities, claims, causes of action, suits, losses, allegations, requests, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable), judgments, expenses and costs (including but not limited to, any remediation, corrective action, response, removal or remedial action, or investigation, operations and maintenance or monitoring costs, for personal injury or property damages, real or personal) of any kind whatsoever, pursuant to any Environmental Laws as a result of this Agreement, any other Loan Documents or any actions taken pursuant hereto or thereto. Further, the parties hereto hereby agree and acknowledge that in the exercise of its rights under this Agreement and the other Loan Documents, each Agent may hold or obtain indicia of ownership primarily to protect the security interest of the Collateral Agent in the Collateral, including without limitation the Properties under the Mortgage, and that any such actions taken by either Agent shall not be construed as or otherwise constitute any participation in the management of such Collateral, including without limitation the Properties under the Mortgage, as those terms are defined in Section 101(20)(E) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., as amended (“CERCLA”)

10.15 Marshalling. No Agent shall be under any obligation to marshal any assets in favor of Borrower or any other party or against or in payment of any or all of the Indebtedness.

10.16 Direction from Required Lenders. Whenever pursuant to this Agreement and the other Loan Documents the Administrative Agent and/or the Collateral Agent would, but for direction being given to such Agent by the Required Lenders, be required to execute a

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document or instrument, release funds or other Collateral or take any other action, such Agent shall notify the Lenders of same (or, in the case of the Collateral Agent, shall notify the Administrative Agent who shall, in turn, notify the Lenders) and the Required Lenders shall, unless an Event of Default has occurred and is continuing, thereafter provide such direction to such Agent promptly upon (i) satisfaction of any conditions expressly set forth in this Agreement or the other Loan Documents, as applicable, and (ii) in the case of any request for a consent, approval, or waiver which is not required to be given by the applicable Agent or the Lenders pursuant to the terms of the applicable provision, the Required Lenders have determined to provide same (which determination shall be in their sole discretion except in those cases where a reasonableness requirement is expressly set forth in the applicable provision); and, upon receipt of such direction, the applicable Agent shall promptly take such action. Administrative Agent shall, and Collateral Agent shall request Administrative Agent to, promptly request direction from the Required Lenders to any action or request that requires the direction of the Required Lenders pursuant to the terms of this Agreement or any other Loan Document (unless such direction has already been delivered to such Agent), and Administrative shall comply with such request. If the Lenders appoint a Servicer pursuant to Section 9.22, then they shall comply or cause the Servicer to comply with this Section.

[No further text on this page; Signature Page Follows]

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Lender, Administrative Agent, Collateral Agent and Borrower are executing this Agreement as of the date first above written.

BORROWER:


AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company


W2007 ACEP FIRST MEZZANINE A BORROWER, L.P., a Delaware limited partnership


By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


By: W2007 ACEP FIRST MEZZANINE A GEN-PAR, L.L.C., a Delaware limited liability company, its general partner


By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


W2007 ACEP FIRST MEZZANINE B BORROWER, L.P., a Delaware limited partnership


ARIZONA CHARLIE’S, LLC, a Nevada limited liability company


By: W2007 ACEP FIRST MEZZANINE B GEN-PAR, L.L.C., a Delaware limited liability company, its general partner


By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


FRESCA, LLC, a Nevada limited liability company
By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


AQUARIUS GAMING LLC, a Nevada limited liability company
By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory


STRATOSPHERE GAMING LLC, a Nevada limited liability company
By:	/s/ Xxxxxxxxx Xxxxxx
	Name:	Xxxxxxxxx Xxxxxx
	Title:	Authorized Signatory

[Signatures continue on following page]

Loan Agreement


W2007 AQUARIUS PROPCO, L.P., a Delaware limited partnership

By:	W2007 AQUARIUS GEN-PAR, L.L.C., a
	Delaware limited liability company, its
	general partner

	By:	/s/ Xxxxxxxxx Xxxxxx

		Name: Xxxxxxxxx Xxxxxx
		Title: Authorized Signatory

W2007 STRATOSPHERE LAND PROPCO, L.P., a Delaware limited partnership

By:	X0000 XXXXXXXXXXXX XXXX GEN-PAR,
	L.L.C., a Delaware limited liability
	company, its general partner

	By:	/s/ Xxxxxxxxx Xxxxxx

		Name: Xxxxxxxxx Xxxxxx
		Title: Authorized Signatory

W2007 FRESCA PROPCO, L.P., a Delaware limited partnership

By:	W2007 FRESCA GEN-PAR, L.L.C., a
	Delaware limited liability company, its
	general partner

	By:	/s/ Xxxxxxxxx Xxxxxx

		Name: Xxxxxxxxx Xxxxxx
		Title: Authorized Signatory


W2007 STRATOSPHERE PROPCO, L.P., a
Delaware limited partnership

By:	W2007 STRATOSPHERE GEN-PAR,
	L.L.C., a Delaware limited liability
	company, its general partner

	By:	/s/ Xxxxxxxxx Xxxxxx

		Name: Xxxxxxxxx Xxxxxx
		Title: Authorized Signatory

W2007 ARIZONA CHARLIE’S PROPCO,
L.P., a Delaware limited partnership

By:	W2007 ARIZONA CHARLIE’S GEN-PAR,
	L.L.C., a Delaware limited liability
	company, its general partner

	By:	/s/ Xxxxxxxxx Xxxxxx

		Name: Xxxxxxxxx Xxxxxx Title: Authorized Signatory

[Signatures continue on following page]

Loan Agreement

ADMINISTRATIVE AGENT:


ARCHON GROUP, L.P., a Delaware limited partnership
By:	/s/ Xxxxxxx Xxxxxx
	Name:	Xxxxxxx Xxxxxx
	Title:	Authorized Signatory

[Signatures continue on following page]

Stratosphere II- Loan Agreement

COLLATERAL AGENT:


XXXXX FARGO BANK, N.A., a national banking association
By:	/s/ Xxxxxx X. Xxxxxx
	Name:	Xxxxxx X. Xxxxxx
	Title:	Vice President

[Signatures continue on following page]

Loan Agreement

LENDER:


XXXXXXX SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership
By:	/s/ Xxxx X. Xxxxx
	Name:	Xxxx X. Xxxxx
	Title:	Managing Director

Loan Agreement

Exhibit A

Form of Cash Management Agreement

CASH MANAGEMENT AGREEMENT

This Cash Management Agreement is dated as of June 25, 2009 (this “Agreement”) and is among XXXXX FARGO BANK, N.A., a national banking association, in its capacity as cash management bank (together with its successors and permitted assigns in such capacity, the “Cash Management Bank”), W2007 AQUARIUS PROPCO, L.P., W2007 STRATOSPHERE PROPCO, L.P., W2007 STRATOSPHERE LAND PROPCO, L.P., W2007 ARIZONA CHARLIE’S PROPCO, L.P., W2007 FRESCA PROPCO, L.P., W2007 ACEP FIRST MEZZANINE A BORROWER, L.P., and W2007 ACEP FIRST MEZZANINE B BORROWER, L.P., each a Delaware limited partnership, and AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company, and ARIZONA CHARLIE’S, LLC, FRESCA, LLC, AQUARIUS GAMING LLC, and STRATOSPHERE GAMING LLC, each a Nevada limited liability company (collectively, jointly and severally, “Borrower”), XXXXX FARGO BANK, N.A., a national banking association (“Collateral Agent”), and ARCHON GROUP, L.P., a Delaware limited partnership (“Administrative Agent”), in their respective capacities as administrative agent and collateral agent, for and on behalf of XXXXXXX XXXXX COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership, together with each other “Lender” from time to time holding any portion of the Loan (collectively, together with their respective successors and assigns as holder of the Note, “Lender”).

WITNESSETH

WHEREAS, pursuant to that certain Loan Agreement, dated as of the date hereof, (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”; capitalized terms used but not defined herein have the meanings ascribed to them therein), by and among Borrower, Collateral Agent, Administrative Agent and Lender, Lender has provided financing to Borrower secured by, among other things, certain parcels of real property more particularly described in the Loan Agreement and the other Loan Documents (the “Properties”).

WHEREAS, the Loan Agreement provides that all credit card receivables and all cash Revenues (collectively, “Receivables”) relating to the Properties and all other money received by Borrower or the Approved Property Manager with respect to the Properties (other than tenant security deposits required to be held in reserve accounts and amounts retained at the Properties as Gaming Operating Reserves) are to be remitted into the Cash Management Account (as defined below); and

WHEREAS, Borrower and Administrative Agent desire to retain the Cash Management Bank to provide the services described herein and the Cash Management Bank agrees to provide such services;

NOW THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

Section 1. Establishment and Maintenance of the Accounts.

(a) Concurrently herewith, the following segregated accounts and subaccounts are being established with the Cash Management Bank:

(i) an account entitled the “Cash Management Account”;

(ii) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Capital Expenditure Reserve Account”;

(iii) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Surplus Cash Amortization Reserve Account”;

(iv) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Tax and Insurance Reserve Account”;

(v) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “FF&E Reserve Account”;

(vi) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Loss Proceeds Account”;

(vii) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Excess Cash Flow Reserve Account”; and

(viii) an account (which may be a subaccount of the Cash Management Account maintained on a ledger-entry basis) entitled the “Deferred Maintenance and Environmental Reserve Account”.

The foregoing accounts are referred to collectively herein as the “Accounts”. Each of the Accounts (a) shall be in the name of Borrower, as pledgor, and Collateral Agent (or such other Person as Collateral Agent shall designate), as secured party for the benefit of the Lender (and, upon the request of Administrative Agent, as directed by Required Lenders, shall bear a designation clearly indicating that the funds deposited therein are held by Collateral Agent as an agent for holders of interests in the Loan), (b) shall be under the sole dominion and control of Administrative Agent, (c) shall be a segregated account (or a ledger-entry subaccount of the Cash Management Account) maintained with the Cash Management Bank, (d) shall not be evidenced by a certificate of deposit, passbook or other instrument, and (e) shall contain only funds held for the benefit of Collateral Agent on behalf of Lender in accordance herewith. Subject to the terms of the Loan Agreement, including but not limited to Section 3.10 thereof, the Cash Management Bank agrees that it shall not respect any requests for withdrawal or any entitlement orders from any party other than Administrative Agent (or such other Person as Administrative Agent shall designate).

(b) The Cash Management Bank represents that it is a federal or state chartered depository institution, subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulations Section 9.10(b).

(c) The Cash Management Bank shall hold amounts deposited in the Accounts in trust for Collateral Agent for the benefit of Lender and shall not commingle such amounts with any other amounts held on behalf of Collateral Agent, Administrative Agent, Lender or any other Person.

(d) Subject to the terms of the Loan Agreement, including but not limited to Section 3.10 thereof, any amount held in any of the Accounts shall either be held in such Accounts in Permitted Investments (as defined on Exhibit 2 hereto) or be left uninvested, in each case, at the written direction of Administrative Agent. In no event shall Cash Management Bank have any responsibility or liability for the types of investments that Administrative Agent may direct, nor shall Cash Management Bank have any duty or responsibility to confirm that the same are in fact Permitted Investments. All earnings on Permitted Investments shall be credited to the Account from which they were derived. Unless otherwise required by applicable law, all income and gains from the investment of funds in the Tax and Insurance Reserve Account shall be for the account of Lender, and Administrative Agent (as directed by Required Lenders) shall have the right at any time to cause the Cash Management Bank to remit such amounts to Lender. None of Lender, Administrative Agent, Collateral Agent or the Cash Management Bank shall be responsible for any losses on any Permitted Investment. As between Borrower on the one hand and Administrative Agent, Collateral Agent and Lender on the other, Borrower (or Lender with respect to the Taxes and Insurance Reserve Account, to the extent of any income actually received with respect thereto in accordance with Section 3.11(b) of the Loan Agreement) shall treat all income, gains and losses from the investment of amounts in the Accounts as its income or loss for federal, state and local income tax purposes.

Section 2. Disbursements from the Accounts.

(a) The Cash Management Bank shall, without the further consent of Borrower, comply with all written instructions (and, with respect to any Permitted Investments, all entitlement orders) received from Administrative Agent, including, without limitation, any instructions that amounts be disbursed therefrom to other Accounts and/or to other accounts specified by Administrative Agent (it being agreed by Administrative Agent, as directed by Required Lenders, for the benefit of Borrower, that such written instructions (and any entitlement orders) shall at all times be in conformance with the provisions of the Loan Agreement), which instructions or entitlement orders are anticipated to be substantially in the form of Exhibit 1 attached hereto (collectively, “Disbursement Instructions ”). Without limiting the generality of the foregoing, until Administrative Agent instructs the Cash Management Bank otherwise (it being agreed by Administrative Agent, for the benefit of Borrower, that such written instructions (and any entitlement orders) shall at all times be in conformance with the provisions of the Loan Agreement), the Cash Management Bank shall transfer, free and clear of all liens, to an account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on a less frequent basis), all collected and available funds deposited in the Cash Management Account in excess of the Peg Balance. Administrative Agent may from time to time, on one Business Day’s prior written notice to the Cash Management Bank and without the

further consent of Borrower, instruct the Cash Management Bank to stop making transfers to Borrower and/or change the Peg Balance (it being agreed by Administrative Agent, for the benefit of Borrower, that Administrative Agent shall only exercise such right in accordance with the terms of the Loan Agreement, including any cure rights of Borrower provided for therein), and the Cash Management Bank is hereby irrevocably instructed by the parties to comply with such notice or instruction. The Cash Management Bank hereby agrees to deliver prompt written notice of any deficiency in the Cash Management Account (relative to any Disbursement Instruction) to Borrower and Administrative Agent within three Business Days prior to any applicable disbursement date specified in a Disbursement Instruction, but Borrower agrees that failure of the Cash Management Bank to deliver such notice shall not in any way alter the obligations of Borrower under the Loan Agreement.

(b) Statements. At the end of each month, the regular statement from the Cash Management Bank covering deposits to and withdrawals from the Cash Management Account shall be sent to Administrative Agent, with a copy to Borrower, at the addresses set forth below.

Section 3. Fees. The Cash Management Bank agrees that it shall look solely to Borrower (subject to the last proviso of this Section 3) for the payment of, and Borrower hereby agrees that it shall pay to the Cash Management Bank, its regular fees in connection with the maintenance of the Accounts and the performance of the Cash Management Bank’s duties hereunder and reasonable attorney’s fees of the Cash Management Bank’s counsel for the review, negotiation and enforcement of this Agreement as such fees are identified in the Agent Fee Agreement (as defined in the Loan Agreement); provided, however, that the Cash Management Bank shall also have the right to set-off against amounts contained in the Cash Management Account for such fees pursuant to Section 5 hereof. In no event shall Administrative Agent or Collateral Agent have any obligation to pay such fees or other amounts to the Cash Management Bank.

Section 4. Termination.

(a) The Cash Management Bank may resign and be discharged from its duties or obligations hereunder by giving 30 days’ prior written notice to Borrower, Collateral Agent and Administrative Agent of such resignation specifying a date when such resignation shall take effect. Upon such resignation or discharge, the Cash Management Bank shall have the right to withhold an amount equal to the amount due and owing to the Cash Management Bank hereunder.

(b) Administrative Agent may terminate this Agreement after 30 days’ prior written notice to the other parties hereto, and upon such termination, shall designate a substitute Cash Management Bank, subject to Borrower’s reasonable approval (except to the extent such approval is not required pursuant to Section 3.1(c) of the Loan Agreement) and otherwise subject to the provisions of Section 3.1(c) of the Loan Agreement, to which all obligations, duties and rights hereunder shall be assigned (it being agreed that Administrative Agent shall only exercise such right if and to the extent permitted under Section 3.1(c) of the Loan Agreement); provided that Cash Management Bank may resign from its duties or obligations hereunder immediately upon written notice to Administrative Agent and Borrower in the event Cash Management Bank

in good faith suspects fraud or other illegal activity in connection with the Accounts or this Agreement.

(c) The Cash Management Bank hereby agrees that it shall take all actions reasonably necessary and shall cooperate with Administrative Agent (without the further consent of Borrower) to facilitate any transfer of its obligations, duties and rights hereunder.

(d) Unless earlier terminated in accordance with Section 4(b) hereof, this Agreement shall terminate upon payment in full of the Loan. Administrative Agent will notify Cash Management Bank in writing of any termination pursuant to this Section 4(d).

Section 5. Cash Management Bank Waiver of Set-off. Each of the Cash Management Bank and Borrower acknowledges and agrees that the Accounts are and shall be subject to the sole dominion and control of Administrative Agent (as directed by Required Lenders), its authorized agents or designees, in each case on behalf of Lender, and Borrower shall have no right of withdrawal with respect to any such account. The Cash Management Bank waives any right to offset any claim or to assert any lien or security interest which it might have against any account maintained hereunder; provided, however, that the Cash Management Bank may charge the Cash Management Account for (i) any accrued and unpaid fees relating to the Accounts, (ii) any reasonable attorney’s fees of the Cash Management Bank’s counsel for the review, negotiation and enforcement of this Agreement which Borrower has failed to pay pursuant to Section 3, and (iii) any items deposited into the Cash Management Account which are returned or otherwise not collected, including, without limitation, returned checks and other deposit items with respect to which Cash Management Bank fails to receive final payment or settlement, and other similar obligations and liabilities for adjustments and corrections arising out of any cash management services provided by the Cash Management Bank pursuant to this Agreement, including, but not limited to, automated clearing house transactions. Borrower hereby agrees that, if, at any time, sufficient funds for payment of any of the items described in clauses (i) through (iii) above are not available in any Account, the Cash Management Bank shall be permitted to look to Borrower for immediate reimbursement, and, thereafter, Borrower shall forthwith provide for such reimbursement. In addition, with respect only to the items described in clause (iii) above, if Borrower fails to reimburse Cash Management Bank therefor, Lender shall, promptly upon demand therefor, reimburse Cash Management Bank for such debits if and to the extent Lender has actually received the proceeds of such check or other deposit or credit item to which such debit relates but only to the extent that Lender has not remitted such proceeds.

Section 6. Security Agreement/Characterization of Accounts. (a) Borrower hereby pledges, transfers and assigns to Collateral Agent for the benefit of Lender, and grants to Collateral Agent for the benefit of Lender, as additional security for the payment and performance of the
Note(s) and the obligations of Borrower under the other Loan Documents, a continuing, perfected first-priority security interest in and to, and a general first lien upon, (i) each of the Accounts and all of Borrower’s right, title and interest in and to all cash, property or rights transferred to or deposited in each such Account from time to time by or on behalf of Borrower, (ii) all earnings, investments and securities held in each of the Accounts, and (iii) any and all proceeds of the foregoing. This Agreement and the pledge, assignment and grant of security interest made hereby shall secure payment of all amounts payable by Borrower to

Lender under the Notes and the other obligations of Borrower under the Loan Documents. Borrower further agrees to execute, acknowledge, deliver, file or do at its sole cost and expense, all other acts, assignments, notices, agreements or other instruments as Collateral Agent (as instructed by Administrative Agent under the direction of the Required Lenders) may reasonably require in order to effectuate, assure, convey, secure, assign, transfer and convey unto Collateral Agent for the benefit of Lender any of the rights granted by this Section.

(b) Cash Management Bank, Borrower, Administrative Agent and Collateral Agent acknowledge and agree this Agreement is intended to be an agreement between the Cash Management Bank, Borrower, Administrative Agent and Collateral Agent governing the Accounts within the meaning of Section 9-304(b) (and, if applicable, Section 8-110(e)(2)) of the Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”) and that the State of New York shall be deemed to be the jurisdiction of the Cash Management Bank for purposes of any matter in respect of the Accounts relating to or arising under Section 9-304 (and, if applicable, Section 9-305) of the UCC. The Cash Management Bank, Borrower, Administrative Agent and Collateral Agent expressly agree that the terms and conditions of any other agreement establishing the Accounts or otherwise governing the Accounts shall, to the extent inconsistent herewith, be subordinate to and controlled by this Agreement. Cash Management Bank represents that the Accounts are and shall each be treated as “deposit accounts” (within the meaning of the UCC) (and, in the case of Permitted Investments, either as “deposit accounts” or “securities accounts,” in each case, within the meaning of the UCC).

(c) Subject to the terms of this Agreement and the Loan Agreement, including but not limited to Section 3.10 of the Loan Agreement, Collateral Agent on behalf of Lender shall be entitled to exercise the rights that comprise any financial asset credited to the Accounts. The Cash Management Bank agrees that all securities or other property constituting Permitted Investments shall be registered in the name of the Cash Management Bank or its nominee, endorsed to the Cash Management Bank or its nominee or in blank or credited to another securities account maintained in the name of the Cash Management Bank (and accordingly Collateral Agent on behalf of Lender shall be the “entitlement holder” (as defined in Section 8-102 of the UCC) of the Accounts) and in no case will any such Permitted Investment be registered in the name of Borrower, payable to the order of Borrower or specially indorsed to Borrower.

Section 7. Certain Matters Affecting the Cash Management Bank.

(a) Cash Management Bank may rely and shall be protected in acting or refraining from acting upon any notice, resolution, request, consent, order, certificate, report, opinion, bond or other paper, document or signature believed by it to be genuine and presented to it by the proper party or parties, and it may be assumed that any person purporting to act on behalf of any Person giving any of the foregoing in connection with the provisions hereof has been duly authorized to do so. Cash Management Bank may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder and in good faith in accordance herewith. Cash Management Bank shall not be liable for any act or omission done or omitted to be done by Cash Management Bank in reliance upon any instruction, direction or certification received by Cash Management Bank and without fraud, bad faith, gross negligence or willful or reckless

misconduct on the part of Cash Management Bank. The Cash Management Bank shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. The Cash Management Bank shall have no duty to solicit any payments which may be due it hereunder.

(b) Cash Management Bank shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that Cash Management Bank’s fraud, willful misconduct or gross negligence was the primary cause of any loss to Lender, Administrative Agent and/or Collateral Agent. In the administration of the Accounts, Cash Management Bank may execute any of its powers and perform its duties hereunder directly or through agents or attorneys (and shall be liable only for the careful selection of such agent or attorney) and may consult with counsel, accountants and other skilled persons to be selected and retained by it.

(c) In no event shall Cash Management Bank be liable either directly or indirectly for losses or delays resulting from force majeure, computer malfunctions, interruption of communication facilities, labor difficulties or other causes, in each case to the extent beyond Cash Management Bank’s reasonable control or for indirect, special or consequential damages.

(d) Borrower shall indemnify, defend and save harmless Cash Management Bank from all loss, liability or expense (including the fees and expenses of in-house or outside counsel) arising out of or in connection with (i) its execution and performance of this Agreement, except to the extent that such loss, liability or expense is due to the fraud, gross negligence or willful misconduct of Cash Management Bank, or (ii) its following any instructions or other directions from Administrative Agent or Borrower, except to the extent that its following any such instruction or direction is expressly forbidden by the terms hereof. Anything in this agreement to the contrary notwithstanding, in no event shall Cash Management Bank be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Cash Management Bank has been advised of the likelihood of such loss or damage and regardless of the form of action.

(e) The duties and responsibilities of Cash Management Bank hereunder shall be determined solely by the express provisions of this Agreement, and no other or further duties or responsibilities shall be implied. Cash Management Bank shall not have any liability under, no duty to inquire into the terms and provisions of any agreement or instructions, other than outlined in the Agreement. Cash Management Bank shall not be under any obligation or duty to perform any act which would involve it in expense (except to the extent such expense is reimbursed to Cash Management Bank in accordance with the terms hereof) or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies.

(f) The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of Cash Management Bank or the termination of this Agreement.

(g) Borrower’s Tax Identification Numbers (TIN) as assigned to it by the Internal Revenue Service are as follows:


AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC		00-0000000

STRATOSPHERE GAMING LLC		00-0000000

AQUARIUS GAMING LLC		00-0000000

ARIZONA CHARLIE’S, LLC		00-0000000

FRESCA, LLC		00-0000000

W2007 AQUARIUS PROPCO, L.P.		00-0000000

W2007 STRATOSPHERE PROPCO, L.P.		00-0000000

W2007 STRATOSPHERE LAND PROPCO, L.P.		00-0000000

W2007 ARIZONA CHARLIE’S PROPCO, L.P.		00-0000000

W2007 FRESCA PROPCO, L.P.		00-0000000

W2007 ACEP FIRST MEZZANINE A BORROWER, L.P.		00-0000000

W2007 ACEP FIRST MEZZANINE B BORROWER, L.P.		00-0000000

All interest or income earned under this Agreement shall be allocated and paid as provided herein and reported by the recipient to the Internal Revenue Service as having been so allocated and paid.

(h) Cash Management Bank will not enter into any additional third-party agreement with respect to the Accounts (including, without limitation, any third party control agreements) without the prior written consent of Administrative Agent.

(i) Cash Management Bank has not received a copy of the Loan Agreement and is not responsible for the provisions set forth therein.

Section 8. Successors and Assigns; Assignments. This Agreement shall bind and inure to the benefit of and be enforceable by the Cash Management Bank, Borrower and Collateral Agent and Administrative Agent on behalf of Lender and their respective permitted

successors and assigns. Collateral Agent and Administrative Agent on behalf of Lender shall have the right to assign or transfer their rights under this Agreement by written notice to the other parties hereto. Any assignee or transferee of Collateral Agent or Administrative Agent, the identity of which shall have been notified to the Cash Management Bank by Administrative Agent, shall be entitled to all of the benefits afforded Collateral Agent and Administrative Agent under this Agreement. Collateral Agent and Administrative Agent shall have the right to delegate their rights hereunder to a mortgage loan servicer by notice to the Cash Management Bank.

Section 9. Notices. Waivers in Writing. (a) Notices shall be sent as follows:

If to Administrative Agent:

Archon Group, L.P.
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: 000-000-0000

and

Xxxxxxx Sachs Commercial Mortgage Capital, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx and Xxxxxxx Xxxx
Facsimile: (000) 000-0000

and

Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000.

If to Collateral Agent:

Xxxxx Fargo Bank, N.A.
00 Xxxxxxxx, 00^xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: 000-000-0000

and

Xxxxxxx Xxxxx Commercial Mortgage Capital, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx and Xxxxxxx Xxxx
Facsimile: (000) 000-0000

and

Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000.

If to Borrower:

x/x Xxxxxxxxx Xxxxxx Global Real Estate Limited Partnership 0000
x/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Whitehall Chief Financial Officer
Facsimile: (000) 000-0000

with a copy to:

Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000.

If to the Cash Management Bank:

Xxxxx Fargo Bank, N.A.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Cash Management
Facsimile: 000-000-0000

or, in each case, to such other or additional addresses as shall be designated in writing by the respective party to the other parties hereto. Unless otherwise expressly provided herein, all such notices, to be effective, shall be in writing (including by facsimile), and shall be deemed to have been duly given or made (x) when delivered by hand or by nationally recognized overnight

carrier (or upon refusal to accept such delivery), (y) upon receipt after being deposited in the mail, certified mail and postage prepaid or (z) in the case of notice by fax, when sent and receipt confirmed by recipient, addressed as set forth above, with a copy of such notice sent by any other means provided in clauses (x) and (y) above.

(b) No modification, amendment, termination or waiver of any provision of this Agreement shall in any event be effective unless the same shall be in a writing signed by the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given.

(c) Administrative Agent and Collateral Agent shall receive copies of all reports, advices, statements and other information supplied hereunder by any party hereto to any other party hereto. In the event funds transfer instructions are given (other than in writing at the time of execution of the Agreement), whether in writing, by facsimile or otherwise, the Cash Management Bank is authorized to seek confirmation of such instructions by telephone call-back, and the Cash Management Bank may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for callbacks may be changed only in a writing actually received and acknowledged by the Cash Management Bank. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.

Section 10. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflicts of laws and any action brought hereunder may be brought in the courts of the State of New York, located in the County of New York. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds, irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of said courts. To the maximum extent permitted under applicable law, each of the Cash Management Bank, Borrower, Lender, and Administrative Agent and Collateral Agent hereby knowingly, voluntarily and intentionally agree to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Agreement or any dealings, conduct, statements (whether verbal or written) or actions by any of them relating to the subject matter of this Agreement. The scope of this waiver is intended to encompass any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. Each of the Cash Management Bank, Lender, Administrative Agent, Collateral Agent and Borrower acknowledge that this waiver is a material inducement to enter into this Agreement, and that each will continue to rely on the waiver in their related future dealings. Each of the Cash Management Bank, Lender, Administrative Agent, Collateral Agent and Borrower further warrant and represent that it has reviewed this waiver with its legal counsel, and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

Section 11. Certain Matters Relating to Borrower, Administrative Agent and Collateral Agent. Borrower, Lender, Administrative Agent and Collateral Agent shall have access (via computer connection) during normal business hours to account information regarding the Accounts in accordance with the Cash Management Bank’s general procedures with regard thereto.

Section 12. Representations of Borrower. Borrower hereby represents to Lender, Administrative Agent and Collateral Agent that, as of the date hereof:

(a) This Agreement, together with the other Loan Documents, create a valid and continuing security interest in the Accounts in favor of Collateral Agent for the benefit of Lender, which security interest is prior to all other Liens, other than Permitted Encumbrances, and is enforceable as such against creditors of and purchasers from Borrower. Other than in connection with the Loan Documents, Borrower has not sold or otherwise conveyed the Accounts;

(b) The Accounts constitute “deposit accounts” within the meaning of the UCC; provided, that with respect to Permitted Investments, the Accounts constitute either “deposit accounts” or “securities account,” in each case, within the meaning of the UCC; and

(c) The Accounts are not in the name of any Person other than Borrower, as pledgor, or Collateral Agent, as pledgee for the benefit of Lender. Borrower has not consented to the Cash Management Bank’s complying with instructions with respect to the Accounts from any Person other than Administrative Agent (or such other Person as Administrative Agent shall designate).

Furthermore, Borrower hereby acknowledges and agrees that, pursuant and subject to the terms hereof, the Cash Management Bank has agreed to comply with all instructions originated by Administrative Agent (or such other Person as Administrative Agent shall designate in accordance with the terms of the Loan Agreement, including but not limited to Section 3.10 thereof), without further consent by Borrower, directing disposition of or otherwise related to the Accounts and all sums at any time held, deposited or invested therein, together with any interest or other earnings thereon, and all proceeds thereof (including proceeds of sales and other dispositions), whether accounts, general intangibles, payment intangibles, investment property, chattel paper, deposit accounts, instruments, documents or securities.

Section 13. Incorporation by Reference. Solely as among Borrower, Lender, Administrative Agent and Collateral Agent, all obligations of Borrower under this Agreement shall be limited by the provisions of Section 9.19 of the Loan Agreement, the provisions of which are incorporated herein by this reference.

Section 14. Concerning the Collateral Agent, Applicability of the Loan Agreement. Xxxxx Fargo Bank, N.A. is entering into this Agreement not in its individual capacity, but solely as Collateral Agent under the Loan Agreement. In performing any acts hereunder, the Collateral Agent shall take direction from the Borrower and the Required Lenders, as the case may be, pursuant to the applicable terms of the Loan Agreement. Notwithstanding any other provision of this Agreement, in connection with its obligations

hereunder, the Collateral Agent has all of the rights, powers, privileges, exculpations, protections and indemnities as are provided for or referred to in the Loan Agreement

Section 15. Interpleader. If at any time, after attempting in good faith to comply with the provisions hereof or with any instructions received pursuant hereto, the Cash Management Bank, in good faith, is in doubt as to the proper action it should take under this Agreement or the Cash Management Bank is served with legal process which it in good faith believes prohibits it from disbursing funds from the Accounts, then the Cash Management Bank shall have the right to (i) place a hold on the funds in all such Accounts until such time as it receives an appropriate court order or other assurance satisfactory to it as to the disposition of the funds in the Accounts, or (ii) commence, at Borrower’s expense, an interpleader action in any competent federal or state court located in the State of New York, and in either event, otherwise to take no further action with respect to such provision or instruction and the Cash Management Bank’s sole obligation shall be to keep safely all property held in escrow until it shall be directed otherwise by joint instructions from Administrative Agent and Borrower or the final order of the court in such action served on the Cash Management Bank.

Section 16. Miscellaneous.

(a) Any legal entity into which the Cash Management Bank in its individual capacity may be merged or converted into or with which it may be consolidated, or any legal entity resulting from any merger, conversion or consolidation to which the Cash Management Bank in its individual capacity shall be a party, or any legal entity to which substantially all the corporate trust business of the Cash Management Bank in its individual capacity may be transferred, shall be the Cash Management Bank under this Agreement without further act.

(b) In the event funds transfer instructions are given (other than in writing at the time of the execution of this Agreement), whether in writing, by telecopier or otherwise, Cash Management Bank is authorized to seek confirmation of such instructions by telephone call-back, and Cash Management Bank may rely upon the confirmations of anyone purporting to be the person or persons so designated. The persons and telephone numbers for call-backs may be changed only in a writing actually received and acknowledged by Cash Management Bank. The parties to this Agreement acknowledge that such security procedure is commercially reasonable.

(c) It is understood that Cash Management Bank and the beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by any of the other parties hereto to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. Cash Management Bank may apply any of the escrowed funds for any payment order it executes using any such identifying number, even where its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank, or an intermediary bank designated.

Section 17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 18. Account Documentation. Borrower and Lender agree that, except as specifically provided in this Agreement, the Accounts and the service related thereto shall be subject to, and Cash Management Bank’s operation of the Accounts and the service related thereto shall be in accordance with, the terms and provisions of Cash Management Bank’s deposit account opening documentation and other account and service related documentation as in effect from time to time (collectively, the “Account Documentation”). Borrower agrees, upon Cash Management Bank’s request, to promptly execute and deliver the Account Documentation to Cash Management Bank. For the avoidance of doubt, the parties hereto acknowledge and agree that pursuant to the Account Documentation, the Accounts may be subject to Cash Management Bank’s sweep product services. The parties agree that in the event of a conflict between this Agreement and the Account Documentation, this Agreement shall control.

Section 19. Entire Agreement. This Agreement constitutes the entire and final agreement between Borrower, Lender, Administrative Agent, Collateral Agent and Cash Management Bank with respect to the subject matter hereof and may only be changed, amended, modified or waived by an instrument in writing signed by Borrower, Lender, Administrative Agent, Collateral Agent and Cash Management Bank.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement in several counterparts (each of which shall be deemed an original) as of the date first above written.

BORROWER:


AMERICAN CASINO &
ENTERTAINMENT PROPERTIES LLC, a
Delaware limited liability company

	By:
		Name:
		Title:


W2007 ACEP FIRST MEZZANINE B
BORROWER, L.P., a Delaware limited
partnership

	By: W2007 ACEP FIRST MEZZANINE
	B GEN-PAR, L.L.C., a Delaware limited
	liability company, its general partner

	By:
		Name:
		Title:

FRESCA, LLC, a Nevada limited liability
company

	By:
		Name:
		Title:

STRATOSPHERE GAMING LLC, a Nevada limited
liability company

	By:
		Name:
		Title:


W2007 ACEP FIRST MEZZANINE A
BORROWER, L.P., a Delaware limited Delaware limited partnership

	By: W2007 ACEP FIRST MEZZANINE
	A GEN-PAR, L.L.C., a Delaware limited
	liability company, its general partner

	By:
		Name:
		Title:
ARIZONA CHARLIE’S, LLC, a Nevada
limited liability company

	By:
		Name:

AQUARIUS GAMING LLC, a Nevada limited
liability company

	By:
		Name:
		Title:

Stratosphere II—Cash Management
Agreement


W2007 AQUARIUS PROPCO, L.P., a Delaware
limited partnership

	By: W2007 AQUARIUS GEN-PAR,
	L.L.C., a Delaware limited liability
	company, its general partner

	By:
		Name:
		Title:

X0000 XXXXXXXXXXXX XXXX PROPCO,
L.P., a Delaware limited partnership

	By: X0000 XXXXXXXXXXXX XXXX
	GEN-PAR, L.L.C., a Delaware limited
	liability company, its general partner

	By:
		Name:
		Title:

W2007 FRESCA PROPCO, L.P., a Delaware limited
partnership

	By: W2007 FRESCA GEN-PAR, L.L.C.,
	a Delaware limited liability company, its
	general partner

	By:
		Name:
		Title:


W2007 STRATOSPHERE PROPCO, L.P., a
Delaware limited partnership

	By: W2007 STRATOSPHERE GEN-
	PAR, L.L.C., a Delaware limited
	liability company, its general partner

	By:
		Name:
		Title:

W2007 ARIZONA CHARLIE’S PROPCO, L.P., a Delaware limited partnership

	By: W2007 ARIZONA CHARLIE’S
	GEN-PAR, L.L.C., a Delaware limited
	liability company, its general partner

	By:
		Name:

[SIGNATURE PAGE FOLLOWS]

Stratosphere II—Cash Management
Agreement

CASH MANAGEMENT BANK:

[SIGNATURE PAGE FOLLOWS]

Stratosphere II—Cash Management
Agreement

ADMINISTRATIVE AGENT:

[SIGNATURE PAGE FOLLOWS]

Stratosphere II—Cash Management
Agreement

COLLATERAL AGENT:

[SIGNATURE PAGE FOLLOWS]

Stratosphere II—Cash Management
Agreement

LENDER:

Stratosphere II—Cash Management
Agreement

EXHIBIT 1

DISBURSEMENT INSTRUCTIONS

[Address]
Attention:

Ladies and Gentlemen:

Reference is made to that certain Cash Management Agreement (the “Agreement”), dated as of June 25, 2009, among XXXXX FARGO BANK, N.A., a national banking association (together with its successors and permitted assigns, the “Cash Management Bank”), W2007 AQUARIUS PROPCO, L.P., W2007 STRATOSPHERE PROPCO, L.P., W2007 STRATOSPHERE LAND PROPCO, L.P., W2007 ARIZONA CHARLIE’S PROPCO, L.P., W2007 FRESCA PROPCO, L.P., W2007 ACEP FIRST MEZZANINE A BORROWER, L.P., W2007 ACEP FIRST MEZZANINE B BORROWER, L.P., each a Delaware limited partnership, AMERICAN CASINO & ENTERTAINMENT PROPERTIES LLC, a Delaware limited liability company, ARIZONA CHARLIE’S, LLC, FRESCA, LLC, AQUARIUS GAMING LLC, and STRATOSPHERE GAMING LLC, each a Nevada limited liability company (collectively, jointly and severally, “Borrower”), XXXXX FARGO BANK, N.A., a national banking association (“Collateral Agent”), ARCHON GROUP, L.P., a Delaware limited partnership (“Administrative Agent”) for XXXXXXX SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership, together with each other “Lender” from time to time holding any portion of the Loan (collectively, together with their respective successors and assigns as holder of the Note, “Lender”).

We hereby authorize and direct the Cash Management Bank to transfer from and disburse on the ___ day of , 20 ___, funds then on deposit in the Cash Management Account (excluding its subaccounts) as follows (with wiring instructions or other account information for each such disbursement as set forth on Annex I hereto)¹:

(a) To Administrative Agent, the amount of $[ ] and to the Collateral Agent, the amount of $[ ].

(b) To the Tax and Insurance Reserve Account, the amount of $[ ].

(d) To the FF&E Reserve Account, the amount of $[ ].


¹		Attach Annex I (wiring and account information).

Stratosphere II—Cash Management
Agreement

Exhibit 1-1

(e) To [Pledged Operating Account specified by Borrower], all remaining amounts.

With respect to any Permitted Investments, we hereby authorize and direct the Cash Management Bank to [ ].²

Very truly yours,


²		During the continuance of an Event of Default, in any manner as Administrative Agent on behalf of Lender may direct.

Stratosphere II—Cash Management
Agreement

Exhibit 1-2

EXHIBIT 2

“Permitted Investments” means the following, subject to qualifications hereinafter set forth:

(ii) federal funds, unsecured certificates of deposit, time deposits, demand deposits, banker’s acceptances, and repurchase agreements having maturities of not more than 90 days of any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the short-term debt obligations of which are rated A-1+ (or the equivalent) by each of the Rating Agencies and, if it has a term in excess of three months, the long-term debt obligations of which are rated AA (or the equivalent) by each of the Rating Agencies, and that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $1,000,000,000;

(iii) deposits that are fully insured by the Federal Deposit Insurance Corp. (FDIC);

(iv) commercial paper rated A-1+ (or the equivalent) by each of the Rating Agencies and having a maturity of not more than 90 days;

(vi) such other investments as to which Lender and Administrative Agent (as directed by Required Lenders) shall have approved.

Stratosphere II—Cash Management
Agreement

to the earlier of (x) three months from the date of their purchase or (y) the Business Day preceding the day before the date such amounts are required to be applied pursuant to the Loan Agreement.

Exhibit B

Second Floor Space

Annex-B-2

Exhibit C

Form of Subordination, Non-Disturbance and Attornment Agreement

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”) is dated the ___ day of , 200___, and is made by and among XXXXXXX SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership, having an address at 000 Xxxx Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 Attention: Xxxxxxx Xxxxxx (together with its successors and assigns, “Lender”), , d/b/a , having an address of ______ (“Tenant”), and , having an address of ______ (“Landlord”).

W I T N E S S E T H

WHEREAS, Tenant has entered into a lease (“Lease”) dated __________ with Landlord, covering the premises known as (the “Premises”) within the property known as , more particularly described as shown on Exhibit A, attached hereto (the “Real Property”).

WHEREAS, Lender has agreed to make or has made a mortgage loan to Landlord, secured by a mortgage, deed of trust or similar security instrument of the Real Property (the “Mortgage”), and the parties desire to set forth their agreement herein.

NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

Section 1. Subordination. The Lease and all extensions, renewals, replacements or modifications thereof are and shall be subject and subordinate to the Mortgage and all terms and conditions thereof insofar as it affects the Real Property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, to the full extent of amounts secured thereby and interest thereon.

Section 2. Attornment. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Mortgage, any transferee who acquires the Premises by deed in lieu of foreclosure, and the successors and assigns of such purchaser(s), as its landlord for the unexpired balance (and any extensions, if exercised) of the term of the Lease on the same terms and conditions set forth in the Lease.

Section 3. Non-Disturbance. If it becomes necessary to foreclose the Mortgage, Lender shall neither terminate the Lease nor join Tenant in summary or foreclosure proceedings for the purpose of terminating the Lease so long as Tenant is not in default under any of the terms, covenants, or conditions of the Lease beyond any applicable notice and cure periods.

Section 4. Limitation of Liability. If Lender succeeds to the interest of Landlord under the Lease, Lender shall not be: (a) liable for the return of any security deposit unless such deposit has been delivered to Lender by Landlord or is in an escrow fund available to Lender, (b) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord), (c) bound by any amendment, modification, or termination of the Lease made without Lender’s prior written consent to the extent such consent is required to be obtained by Landlord under the Loan Agreement (as defined in the Mortgage) (which consent shall not be unreasonably withheld or delayed), (d) liable to Tenant for any act, omission or default of any prior landlord, (e) subject to any offset or defense which the Tenant might have against any prior landlord or (f) personally liable under the Lease, Lender’s liability thereunder being limited to its interest in the Real Property.

Section 5. Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns.

Section 6. Notices. Tenant shall give Lender, by commercial overnight delivery service, a copy of any notice of default served on Landlord at the same time such notice is sent to the Landlord, addressed to Lender at Lender’s address set forth above or at such other address as to which Tenant has been notified in writing. Lender shall have the right, but not the obligation, to cure such default within the time period specified in the Lease.

Section 7. Payment of Rent. Landlord has agreed under the Mortgage and other loan documents that all rentals and other sums payable under the Lease shall be paid directly by Tenant to Lender upon the occurrence of certain circumstances. After receipt of notice from Lender to Tenant, at the address set forth above or at such other address as to which Lender has been notified in writing, that rentals under the Lease shall be paid to Lender, Tenant shall pay to Lender, or at the direction of Lender, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Mortgage, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now or hereafter have against Tenant by reason of such payment to Lender, and any such payment shall discharge the obligations of Tenant to make such payment to Landlord.

Section 8. Further documents. The foregoing provisions shall be self-operative and effective without the execution of any further instruments on the part of any party hereto. Tenant agrees, however, to execute and deliver to Mortgagee or to any person to whom Tenant herein agrees to attorn such other instruments as either shall reasonably request in order to confirm said provisions.

Section 9. Modification. This Agreement may not be modified orally or in a manner other than by an agreement signed by the parties hereto or their respective successors in interest.

Section 10. Choice of Law. This Agreement shall be governed by the internal law (and not the law of conflicts) of the State in which the Real Property is located.

Section 11. Counterparts. This Agreement may be executed in two or more counterparts which, when take together, shall constitute one and the same original.

[No further text on this page; Signature page follows]

Exhibit D

FORM OF SUBORDINATION OF MANAGEMENT AGREEMENT

CONSENT AND AGREEMENT OF MANAGER
AND SUBORDINATION OF MANAGEMENT AGREEMENT
(Mortgage)

THIS CONSENT AND AGREEMENT OF MANAGER AND SUBORDINATION OF MANAGEMENT AGREEMENT (this “Agreement”), dated as of [ ], 200[___], is made by and among [ ], a [ ] (“Manager”), XXXXXXX SACHS COMMERCIAL MORTGAGE CAPITAL, L.P., a Delaware limited partnership (together with its successors and permitted assigns, “Lender”), and, for the purpose of evidencing its consent to the terms, covenants and conditions contained herein, is joined by [ ] (individually or collectively, as the context requires, and together with their respective successors and permitted assigns, “Borrower”), and the Lessee Borrowers identified on Schedule B (the “Lessee Borrowers”).

W I T N E S S E T H:

WHEREAS, Borrower and Lender are parties to a Loan Agreement, dated as of the date hereof (as the same may be modified or replaced, the “Loan Agreement”; all capitalized terms used but not defined herein shall have the meaning given such terms in the Loan Agreement);

WHEREAS, Borrower owns certain fee simple and/or leasehold estates and appurtenant interests in those certain parcels of real property identified as the “Properties” in the Loan Agreement, together with the buildings, structures and other improvements now or hereafter located thereon or thereunder (such parcels of real property being hereinafter referred to collectively as the “Properties”);

WHEREAS, Borrower, as lessor, and the Lessee Borrowers, as lessees, are parties to those certain operating lease agreements identified on Schedule B attached hereto, each dated as of the date hereof (the “Operating Leases”), pursuant to which the Lessee Borrowers lease and operate certain of the Properties;

WHEREAS, the Loan is evidenced by one or more promissory notes, each dated as of the date hereof, executed by Borrower and payable to the order of Lender (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, collectively, the “Note”) and is secured by, among other things, that certain “Deed of Trust” (as defined in the Loan Agreement) executed by Borrower and the applicable Lessee Borrower(s), as grantors, in favor of Lender, as grantee, and encumbering each of the Properties (as the same may be modified or replaced, collectively, the “Mortgage”);

WHEREAS, pursuant to those certain management agreements identified on Schedule C attached hereto, each by and between one or more of the Lessee Borrowers and Manager (the “Management Agreement”). Manager has agreed to operate, direct, manage and

supervise the Property or Properties listed on Schedule A attached hereto (collectively, the “Managed Properties”; and each, a “Managed Property”); and

WHEREAS, Borrower is required to cause Manager to deliver this Agreement to Lender pursuant to the terms of the Loan Agreement and the other Loan Documents.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Lender to accept the Mortgages, Manager hereby represents, warrants, covenants and agrees for the benefit of Lender as follows:

1. Representations. Manager warrants and represents to Lender, as of the date hereof, that the following are true and correct:

(a) Manager has agreed to act as manager of the Managed Properties pursuant to the Management Agreements. A true, correct and complete copy of each of the Management Agreements has been provided to Lender on or prior to the date hereof, each of which is in full force and effect, and none of the Management Agreements has been modified or amended.

(b) The entire agreement between Manager, on the one hand, and Borrower and/or the Lessee Borrowers, on the other hand, for the management and operation of the Managed Properties is evidenced by the Management Agreements, together with those certain agreements identified on Schedule D attached hereto.

(c) Each of the Management Agreements has been executed by the duly authorized officer(s) of Manager and constitutes the valid and binding agreement of Manager, enforceable in accordance with its terms, and Manager has full authority under all state and local laws and regulations to perform all of its obligations under such Management Agreement.

(d) Neither the applicable Lessee Borrower nor Manager is in default in the performance of any of its respective obligations under any of the Management Agreements. All payments and fees required to be paid by the Lessee Borrowers to Manager thereunder have been paid to the date hereof and Manager has no claims against Borrower or any Lessee Borrower for indemnification as of the date hereof.

(e) Neither Manager nor any of its affiliates nor, to Manager’s knowledge, any party other than Borrower or the Lessee Borrowers, owns any interest in any fixtures, equipment, or other articles of personal property located at each of the Managed Properties, including without limitation, the FF&E located at each of the Managed Properties.

2. Consent. Manager hereby consents to the collateral assignment of the Management Agreements to Lender as security for Borrower’s obligations in respect of the Loan, in accordance with the terms and conditions contained herein.

3. Agreements. Notwithstanding the terms of the Management Agreements, so long as the Mortgage encumbering the Managed Properties continues in effect, Manager hereby consents to and covenants and agrees as follows:

(a) No Amendment of Management Agreements. Manager shall not make any material modifications or amendments to any of the Management Agreements (including, without limitation, to any provision with respect to minimum working capital requirements) without first obtaining Lender’s written consent (not to be unreasonably withheld or delayed), and no such modification or amendment without such written consent shall be effective as to Lender.

(b) Notice to Lender and Right to Cure.

(i) Manager shall deliver to Lender a copy of any notice of termination or default from Manager to any Lessee Borrower under any of the Management Agreements, which notice may be given by Manager to Lender simultaneously with such notice to the applicable Lessee Borrower.

(ii) If Manager has elected to terminate the Management Agreement with respect to any of the Managed Properties as a result of a breach or default by any Lessee Borrower thereunder, Manager shall give Lender at least 45 days’ (or, in the case of a breach or default by such Lessee Borrower relating to its failure to provide adequate working capital in respect of payroll and related employee expenses, ten Business Days’ which ten Business Day period shall begin to run from the date Manager gives Lender notice of such default pursuant to Section 3(b)(i) in accordance with Section 9) prior written notice of such election to terminate and the reasons therefor, which notice may be delivered to Lender simultaneously with the notice to such Lessee Borrower. In the event Lender (or Borrower or the Lessee Borrower) shall cure, or cause to be cured, such breach or default within said 45 day period (or, in the case of a breach or default by a Lessee Borrower relating to its failure to provide adequate working capital in respect of payroll and related employee expenses, ten Business Day period), then any termination notice related to such cause shall be null and void and of no further force or effect.

(c) Subordination of Management Agreements to Liens of Mortgage. ¹ The Management Agreements do not create an interest in real property or constitute covenants running with any of the Managed Properties. The Management Agreements and any and all liens, rights and interests (whether xxxxxx or inchoate and including, without limitation, all rights to payment (including, without limitation, any management fees and incentive fees payable to Manager under the Management Agreements) and all mechanic’s and materialmen’s liens under applicable law) owed or claimed by Manager or held by Manager in and to any of the Managed Properties are and shall be in all respects subordinate and inferior to: (i) Lender’s right to payment under the Note and the other Loan Documents, (ii) all obligations of Lessee Borrower to Borrower under the Operating Lease including, without limitation, the payment of all base and percentage rentals thereunder (the “Lease Obligations”), and (iii) the liens and security interests created or to be created for the benefit of Lender and securing the repayment of the Note, including, without limitation, those created under the Mortgage encumbering, among other things, the fee or leasehold interest (as applicable) of the applicable Borrower, and the leasehold or subleasehold interest (as applicable), of the applicable Lessee Borrower in the Managed


¹		If Manager is not an Affiliate of Borrower, this Section is to be adjusted such that base management fees of no more than 2% of gross revenues are not subject to subordination under this Agreement.

Properties, and all renewals, extensions, increases, supplements, amendments, modifications and replacements of each of the foregoing. Without limiting the generality of the foregoing, Manager hereby specifically acknowledges and agrees to the terms of (i) Section 5.10 of the Loan Agreement relating to the management of the Managed Properties and (ii) Section 5.16 of the Loan Agreement relating to the application of Loss Proceeds to the restoration and repair of the Managed Properties following casualty and condemnation.

(d) Lender’s Right to Terminate.

(i) During the continuance of an Event of Default under the Loan Agreement, Manager shall, at the request of Lender, continue performance, on behalf of Lender, of all of Manager’s obligations under the terms of the Management Agreements, notwithstanding any counterclaim, right of set-off, claim for additional payment, defense or like right of Manager against any Lessee Borrower or any Lessee Borrower’s default (including non-payment) under, or breach of, any of the Management Agreements, provided, that Lender sends to Manager the notice set forth in Section 3(h) hereof and performs or causes to be performed the obligations of Lessee Borrowers to Manager under the applicable Management Agreements (including payment of any management fees) accruing or arising from and after, and with respect to the period commencing upon, the effective date of such notice.

(ii) (A) During the continuance of an Event of Default under the Loan Agreement, regardless of whether Lender has theretofore exercised its rights under Section 3(d)(i) above; or (B) if Manager files or is the subject of a petition (and, in the case of an involuntary petition, such petition is not dismissed or discharged within 60 days) in bankruptcy, or if a trustee or receiver is appointed for Manager’s assets or if Manager makes an assignment for the benefit of creditors, or if Manager is adjudicated insolvent; then, in each such case, Lender shall have the right and option to terminate, or to cause the Lessee Borrowers to terminate, the Management Agreements with respect to the applicable Managed Property or Managed Properties or with respect to all of the Managed Properties by giving Manager 30 days’ prior written notice of such termination, in which event Manager shall resign as manager of the applicable Managed Property or Managed Properties effective not later than the end of such 30 day period and, without limiting any rights of Manager against the Lessee Borrowers (except that such rights are subordinated to the repayment in full of all of the Indebtedness and Lease Obligations to the extent set forth in Section 3(c)), Lender shall neither be bound by nor obligated to perform the covenants and obligations of the Lessee Borrowers under the Management Agreements. For purposes of this Section 3(d)(ii), an Event of Default shall be deemed to continue even after a foreclosure or other conveyance-in-lieu of foreclosure upon any or all of the Managed Properties. Without limiting the rights of Manager against the Lessee Borrowers (except that such rights are subordinated to the repayment in full of all of the Indebtedness and Lease Obligations to the extent set forth in Section 3(c)), upon the termination of any Management Agreement in accordance with the terms of this Section 3(d)(ii), Manager agrees not to look to Lender or Borrower for payment of any cancellation or termination fees or payment of any accrued but unpaid management fees relating to any of the Managed Properties subject to such terminated Management

Agreement accruing prior to the effective date of such termination or accruing in connection with or as a result of such termination.

(iii) Notwithstanding anything in the Management Agreements to the contrary, in the event that (A) Lender becomes the owner of any Managed Property or Managed Properties through foreclosure, conveyance in lieu of foreclosure or otherwise, and (B) the Management Agreements with respect to one or more of the Managed Properties is then in full force and effect, then, without the execution of any further instrument, Manager and Lender shall fully and completely recognize each other as parties under the Management Agreement with respect to such Managed Property or Managed Properties for the balance of the term thereof and any extension or renewal thereof (subject to the right of Lender to terminate (or cause the applicable Lessee Borrower to terminate) the Management Agreements pursuant to Section 3(d)(ii)), upon and bound by all of the terms and conditions therein provided, so as to establish direct privity of contract between Manager and Lender. The provisions of this Section 3(d)(iii) shall be effective and self-operative without the execution of any further instrument.

(iv) In the event that Lender and Manager become direct parties to the Management Agreement with respect to any of the Managed Properties pursuant to Section 3(d)(iii), Lender shall have the right to sell, convey, transfer or otherwise assign its interest in any of such Managed Properties and/or the Management Agreement without the consent of Manager and immediately upon such transfer or assignment, Lender, Borrower and the Lessee Borrowers shall be released from, and have no further liability or obligations under, the applicable Management Agreements to Manager or to any other Person in respect of any of such Managed Properties, except for those liabilities and obligations in respect of any of such Managed Properties which by the express terms of such Management Agreements survive after the termination of the Management Agreements in respect of such Managed Properties, but only to the extent that such liabilities and obligations first arise after the date on which Lender becomes owner of such Managed Properties and only to the extent accruing during Lender’s ownership thereof.

(v) Nothing contained in this Agreement (including, but not limited to, Section 3(c) hereof) shall prevent Manager from terminating the Management Agreement in accordance with its terms by reason of nonpayment when due of any management fees or other fees and reimbursements due and owing to Manager under the terms of the Management Agreement (in each case, after any applicable notice and cure periods set forth therein), subject in each case to the terms of Section 3(b) hereof.

(e) Rights of First Offer. To the extent that any Management Agreement or any other agreement to which Manager or any affiliate of Manager is a party grants Manager or any such affiliate a right of first offer or similar right to purchase any one or more of the Managed Properties upon the occurrence of a sale or transfer of such Managed Property, or a sale or transfer of any direct or indirect ownership interest in Borrower or any Lessee Borrower, Manager agrees, for the benefit of Borrower and Lender, that such right of first offer or similar right will not apply in the case of any foreclosure by Lender or any nominee of Lender, or the receipt of a deed-in-lieu of foreclosure by Lender or any such nominee, or the first sale or

transfer of such Managed Property by Lender or its nominee subsequent to such foreclosure or receipt of a deed-in-lieu thereof.

(f) Further Assurances. Manager further agrees to: (i) furnish Lender upon request with copies of such information as Borrower is entitled to receive under the Management Agreements; and (ii) subject of the rights of tenants or other occupants, and subject to the rights of any ground lessors (as applicable) cooperate with Lender’s representative in any inspection of all or any portion of any of the Managed Properties.

(g) Assignment of Leases and Rents. Manager acknowledges that, as further security for the Note, Borrower and Lessee Borrowers have each executed and delivered to Lender, with respect to each of the Managed Properties assigning to Lender, among other things, all of Borrower’s right, title and interest in and to all of the leases now or hereafter affecting such Managed Property and all rents, income, receivables, receipts, revenues, deposits and other consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower.

(h) Lender Not Obligated Under Management Agreements. Manager further agrees that nothing herein shall impose upon Lender any obligation for payment or performance in favor of Manager, unless Lender notifies Manager in writing during the continuance of an Event of Default under the Loan Agreement or otherwise as permitted by the Loan Agreement, that: (i) Lender has elected to assert the applicable Lessee Borrower’s rights and/or the rights of Borrower (if any) under the Management Agreement(s) with respect to a Managed Property or Managed Properties and assume its obligations thereunder with respect to such Managed Property or Managed Properties, and (ii) Lender agrees to pay, or cause to be paid to, Manager the sums due Manager with respect to such Managed Property or Managed Properties under the terms of the relevant Management Agreements from and after the effective date of Lender’s notice to Manager. In no event shall Lender be liable for any action or omission of Borrower, the Lessee Borrowers or any prior owner of any of the Managed Properties, bound by any amendment or modification of any of the Management Agreements made without Lender’s prior written consent or subject to any counterclaim or claims which Manager might assert or is entitled to assert against any Lessee Borrower. Nothing contained in this Agreement shall be deemed a waiver or release by Manager of any rights or remedies Manager may have against the Lessee Borrowers under the Management Agreements (except that such rights are subordinated to the repayment in full of each and all of the Indebtedness and the Lease Obligations to the extent set forth in Section 3(c)).

(i) No Joint Venture. Lender has no obligation to Manager with respect to the Loan Agreement or the other Loan Documents, and Manager shall not be a third party beneficiary with respect to any of Lender’s obligations to Borrower or the Lessee Borrowers set forth in the Loan Documents. The relationship of Lender to Borrower is one of a creditor to a debtor, and Lender is not a joint venturer or partner of Borrower.

(j) Lender’s Reliance on Representations. Manager has executed this Agreement with full knowledge that Lender shall rely upon the representations, warranties, covenants and agreements herein contained.

(k) Governed by Loan Documents. Manager agrees that until such time as all of the Mortgages encumbering any of the Managed Properties shall be released in accordance with the terms of the Loan Documents, in the course of discharging its duties under the Management Agreements, Manager shall not knowingly engage in any act or activity, or knowingly fail to engage in any act or activity, which engagement or failure to engage would constitute a violation of any affirmative or negative covenant of Borrower under the Loan Agreement, or either the Mortgages or the Assignments of Leases encumbering any of the Managed Properties, or with respect to the operation or management of the Managed Properties; provided, however, that (i) Manager’s compliance with the foregoing agreement, to the extent such compliance requires the expenditure of funds, shall at all times be expressly conditioned upon the timely provision to Manager of such funds, (ii) the term “knowingly” as used above shall mean that the applicable affirmative or negative covenant of such Borrower has been disclosed and described to Manager, (iii) the foregoing agreement shall not impose any obligation or duty on Manager to review any of the Loan Documents (but without limiting the provisions of Section 3(c)), and (iv) the foregoing agreement of Manager shall not impose upon Manager any obligation to perform services not within the scope of Manager’s duties or authority as set forth in the Management Agreements.

(l) Successors and Assigns. Manager understands that Lender may assign this Agreement and the Loan Agreement, the Note, the Mortgage encumbering any of the Managed Properties and the other Loan Documents. Manager agrees that this Agreement and its obligations hereunder shall be binding upon it and its successors and assigns and shall inure to the benefit of Lender and its successors and assigns, including, without limitation, any parties to whom Lender’s interest in the Note and the Mortgage encumbering any of the Managed Properties is assigned.

(m) Loan Agreement. Manager hereby agrees that Manager shall at the end of each Business Day deposit into a bank account(s), which account(s) shall be designated by Borrower or Lender and shall be either the Cash Management Account (as defined in the Loan Agreement) or the Blocked Accounts (as defined in the Loan Agreement), each under the control of Lender, all cash and credit card receipts of Borrower or Lessee Borrowers from the operation of the Managed Properties or otherwise arising in respect thereof (collectively, the “Operating Revenues”) received or collected by Manager. Manager shall not commingle any Operating Revenues received by it with respect to any of the Managed Properties with any of its other funds or property. Manager acknowledges and agrees that Manager shall not have any right or authority, whether express or implied, to close, make use of or withdraw any funds from, any such depository account.

(n) Not Entitled to Operating Revenues. Manager acknowledges and agrees that it is collecting and processing the Operating Revenues from the Managed Properties solely as the agent for the Lessee Borrowers, and Manager has no right to, or title in, such Operating Revenues. Notwithstanding anything to the contrary contained in the Management Agreements, Manager acknowledges and agrees that the Operating Revenues from the Managed Properties are the sole property of the Lessee Borrowers, encumbered by the liens of the Mortgage and the other Loan Documents in favor of Lender. In any bankruptcy, insolvency or similar proceeding, Manager, or any trustee acting on behalf of the Manager, waives any claim to such Operating Revenues.

(o) Examination of Books and Records. Lender shall have the right to inspect and make copies of the books, accounts and records of Manager that relate to the Managed Properties or the Management Agreements up to four times per year (or at any time during the continuance of an Event of Default under the Loan Agreement), all at reasonable times and upon reasonable advance notice to Manager.

(p) Liquor Licenses. To the extent Manager or an affiliate thereof is the holder of the Permits required for the provision of alcoholic beverages at any of the Managed Properties, in the event that the Management Agreement is terminated for any reason with respect to any such Managed Properties, Borrower, the applicable Lessee Borrower and Manager shall cooperate with, and Manager shall cause its affiliates to cooperate with, Lender to the extent permitted under applicable laws (i) to facilitate the orderly transfer to Lender or its designee of such Permits in respect of the applicable Managed Property, and (ii) to enable the continued provision of alcoholic beverages and operation of liquor services at the applicable Managed Properties without interruption, in either case, until such time as Lender or its designee shall have obtained such Permits.

4. Termination of the Operating Leases. The parties agree that the Management Agreements and the rights and benefits of Manager thereunder shall not be terminated or disturbed in any respect as a result of the termination of any Operating Lease. Accordingly, if a Operating Lease is terminated for any reason, including, without limitation, expiration of the term thereof or the “rejection” thereof following bankruptcy of the applicable Lessee Borrower (collectively, a “Lease Termination”), Borrower: (a) shall recognize Manager’s rights under the relevant Management Agreement, (b) agrees that Manager shall not be named as a party in any eviction or other possessory action or proceeding, and that Manager shall not be disturbed in its right to manage the relevant Managed Property pursuant to the relevant Management Agreement, and (c) shall at the time of or prior to such Lease Termination, at its option, either (x) assume all of Lessee Borrower’s rights, benefits, privileges and obligations under the relevant Management Agreement with respect to periods after the Lease Termination, or (y) provide a substitute lease reasonably acceptable to Manager and Lender and cause the lessee thereunder to assume all of the applicable Lessee Borrower’s rights, benefits, privileges and obligations under the relevant Management Agreement with respect to periods after the Lease Termination.

5. Limitation on Liability. MANAGER, FOR ITSELF AND ITS OFFICERS, EMPLOYEES, DIRECTORS AND AGENTS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, HEREBY ACKNOWLEDGES AND AGREES THAT THE OBLIGATIONS AND LIABILITY OF LENDER UNDER THIS AGREEMENT AND THE MANAGEMENT AGREEMENT, IF ANY, HOWSOEVER ARISING (INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING FROM LENDER’S NEGLIGENCE) SHALL BE LIMITED TO AND ENFORCEABLE ONLY AGAINST LENDER’S INTEREST IN THE MANAGED PROPERTIES (AS SUCH TERM IS DEFINED HEREIN) MANAGED BY MANAGER AND THE PROCEEDS THEREOF, AND NOT OUT OF OR AGAINST ANY OTHER ASSETS OR MANAGED PROPERTIES OF LENDER.

6. Borrower’s and Lessee Borrowers’ Consent. Borrower and Lessee Borrowers have joined herein to evidence their consent to the terms, covenants and conditions contained in this Agreement.

7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW RULES AND PRINCIPLES OF SUCH STATE; PROVIDED, HOWEVER, THAT IF, NOTWITHSTANDING SUCH AGREEMENT AS TO THE APPLICATION OF THE GOVERNING LAW OF THE STATE OF NEW YORK BY THE PARTIES, LEGAL REQUIREMENTS IN THE JURISDICTION WHERE THE PROPERTY IS LOCATED REQUIRE LOCAL LAW TO GOVERN PARTICULAR CLAIMS UNDER THIS SUBORDINATION, THEN TO THE EXTENT OF SUCH REQUIREMENT, SUCH LOCAL LAW SHALL GOVERN, PROVIDED FURTHER, THAT THIS AGREEMENT, AND THE PROVISIONS HEREIN, ARE SUBJECT TO ALL APPLICABLE GAMING LAWS AND THE RECEIPT OF ALL PRIOR APPROVALS REQUIRED THEREUNDER.

8. Counterparts. This Agreement may be executed in any number of original counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument.

9. Notices. Any notice required or permitted to be given under this Agreement shall be in writing and either shall be mailed by certified mail, postage prepaid, return receipt requested, or sent by overnight air courier service, or personally delivered to a representative of the receiving party, or sent by telecopy (provided an identical notice is also sent simultaneously by mail, overnight air courier, or personal delivery as otherwise provided in this Section 9). All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended at its address set forth below.

If to Manager:

[                    ]
[                    ]
Attention: [                    ]
Facsimile: [                    ]

If to Lessee Borrower:
[ ]

00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000

with a copy to:

Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000

If to Borrower:
[ ]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000

with a copy to:

Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000

If to Lender:

Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx, 00^xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Fastov
Facsimile: (000) 000-0000

with a copy to:

Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000

Any communication so addressed and mailed or sent shall be deemed to be given when actually received or on the date on which delivery is tendered but receipt is declined, in each case to the address of the intended addressee. If given by telecopy, a notice shall be deemed given and received when the telecopy is transmitted to the party’s telecopy number specified above, and confirmation of complete receipt is received by the transmitting party during the recipient’s normal business hours or on the next business day if not confirmed during the recipient’s normal business hours, and an identical notice is also sent simultaneously by mail, overnight air courier, or personal delivery as otherwise provided in this Section 9. Any party may designate a change

of address by giving to the other parties at least ten days’ prior written notice of such change of address.

10. Recitals. The recitals to this Agreement are hereby acknowledged, consented to and agreed to by the parties hereto and are incorporated into the text of this Agreement as if fully set forth herein.

IN WITNESS WHEREOF, the parties hereto have each caused this Consent and Agreement of Manager and Subordination of Management Agreement to be duly executed and delivered by its respective duly authorized representatives, in each case, as of the day and year first above written.


LENDER:

XXXXXXX XXXXX COMEMRCIAL MORTGAGE CAPITAL, L.P.

By:
		Name:
		Title:

[Signatures Continue on the Following Page]

MANAGER:

[ ], a [ ]



	By:
		Name:
		Title:

[Signatures Continue on the Following Page]


To evidence its consent to the terms, covenants and conditions contained herein:

BORROWER: (insert signature blocks as applicable)

[ ], a
Delaware limited partnership

XXXXX FARGO BANK, N.A., a national banking association