**Exhibit 4.5**LOAN AGREEMENTDated as of February 20, 2008amongW2007 AQUARIUS PROPCO, L.P.,W2007 STRATOSPHERE PROPCO, L.P.,W2007 STRATOSPHERE LAND PROPCO, L.P.,W2007 ARIZONA CHARLIE’S PROPCO, L.P.andW2007 FRESCA PROPCO, L.P.each, as a Co-Borrower and collectively as the Borrower,andGOLDMAN SACHS COMMERCIAL MORTGAGE CAPITAL, L.P.as Lender
 

 
TABLE OF CONTENTS       PageDEFINITIONS  1      ARTICLE I    GENERAL TERMS         Section 1.1.   The Loan  38 Section 1.2.   The Term  38 Section 1.3.   Interest and Principal  38 Section 1.4.   Interest Rate Cap Agreements  40 Section 1.5.   Method and Place of Payment  41 Section 1.6.   Regulatory Change  41 Section 1.7.   Taxes  42 Section 1.8.   Release  43      ARTICLE II    VOLUNTARY PREPAYMENT; ASSUMPTION         Section 2.1.   Voluntary Prepayment  44 Section 2.2.   Property Releases  46 Section 2.3.   Assumption  48 Section 2.4.   Release of Individual Parcels  50      ARTICLE III    ACCOUNTS         Section 3.1.   Cash Management Account  53 Section 3.2.   Distributions from Cash Management Account  54 Section 3.3.   Loss Proceeds Account  59 Section 3.4.   Taxes and Insurance Escrow Account  59 Section 3.5.   [Intentionally Omitted]  60 Section 3.6.   FF&E Reserve Account  60 Section 3.7.   Deferred Maintenance and Environmental Escrow Account  61 Section 3.8.   Capital Expenditure Escrow Account  63 Section 3.9.   Intentionally Omitted  66 Section 3.10. Demolition Reserve Account  66 Section 3.11. Cash Reserve Account  66 Section 3.12. Dividend Reserve Account  67 Section 3.13. Account Collateral  67 Section 3.14. Permitted Investments  68 Section 3.15. Bankruptcy  68 Section 3.16. Guaranty Reserves  69      ARTICLE IV    REPRESENTATIONS    
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       PageSection 4.1.     Organization  69 Section 4.2.     Authorization  70 Section 4.3.     No Conflicts  70 Section 4.4.     Consents  70 Section 4.5.     Enforceable Obligations  70 Section 4.6.     No Default  70 Section 4.7.     Payment of Taxes  71 Section 4.8.     Compliance with Law  71 Section 4.9.     ERISA  71 Section 4.10.   Government Regulation  71 Section 4.11.   No Bankruptcy Filing  72 Section 4.12.   Other Debt  72 Section 4.13.   Litigation  72 Section 4.14.   Major Leases; Material Agreements  72 Section 4.15.   Full and Accurate Disclosure  73 Section 4.16.   Financial Condition  73 Section 4.17.   Single-Purpose Requirements  73 Section 4.18.   Location of Chief Executive Offices  74 Section 4.19.   Not Foreign Person  74 Section 4.20.   Labor Matters  74 Section 4.21.   Title  74 Section 4.22.   No Encroachments  74 Section 4.23.   Physical Condition  75 Section 4.24.   Fraudulent Conveyance  75 Section 4.25.   Management  75 Section 4.26.   Condemnation  75 Section 4.27.   Utilities and Public Access  76 Section 4.28.   Environmental Matters  76 Section 4.29.   Assessments  77 Section 4.30.   No Joint Assessment  77 Section 4.31.   Separate Lots  77 Section 4.32.   Permits; Certificate of Occupancy  77 Section 4.33.   Flood Zone  78 Section 4.34.   Security Deposits  78 Section 4.35.   Acquisition Documents  78 Section 4.36.   Insurance  78 Section 4.38.   Trade Name; Other Intellectual Property  79 Section 4.39.   Embargoed Person  79 Section 4.40.   REAs  80 Section 4.41.   Survival  80 Section 4.42.   Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws  80 Section 4.43.   Funding Statement  80      ARTICLE V    AFFIRMATIVE COVENANTS    
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       PageSection 5.1.     Existence  80 Section 5.2.     Maintenance of Property  81 Section 5.3.     Compliance with Legal Requirements  81 Section 5.4.     Impositions and Other Claims  81 Section 5.5.     Access to Properties  82 Section 5.6.     Cooperate in Legal Proceedings  82 Section 5.7.     Leases  82 Section 5.8.     Plan Assets, etc.  84 Section 5.9.     Further Assurances  84 Section 5.10.   Management of Collateral  84 Section 5.11.   Certain Notices and Reports  86 Section 5.12.   Annual Financial Statements  86 Section 5.13.   Quarterly Financial Statements  86 Section 5.14.   Monthly Financial Statements  87 Section 5.15.   Insurance  88 Section 5.16.   Casualty and Condemnation  92 Section 5.17.   Annual Budget  94 Section 5.19.   General Indemnity  95 Section 5.20.   Intentionally Omitted  95 Section 5.21.   Intentionally Omitted  97 Section 5.22.   REA Covenants  97 Section 5.23.   Property Agreement Covenants  97      ARTICLE VI    NEGATIVE COVENANTS         Section 6.1.     Liens on the Properties  98 Section 6.2.     Ownership  98 Section 6.3.     Transfer  98 Section 6.4.     Debt  99 Section 6.5.     Dissolution; Merger or Consolidation  99 Section 6.6.     Change In Business  99 Section 6.7.     Debt Cancellation  99 Section 6.8.     Affiliate Transactions  100 Section 6.9.     Misapplication of Funds  100 Section 6.10.   Place of Business  100 Section 6.11.   Modifications and Waivers  100 Section 6.12.   ERISA  101 Section 6.13.   Alterations and Expansions  101 Section 6.14.   Advances and Investments  102 Section 6.15.   Single-Purpose Entity  102 Section 6.16.   Zoning and Uses  102 Section 6.17.   Waste  102 Section 6.18.   Operating Lessee  102 Section 6.19.   Distributions  103 
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       PageARTICLE VII    DEFAULTS         Section 7.1.     Event of Default  103 Section 7.2.     Remedies  107 Section 7.3.     No Waiver  108 Section 7.4.     Application of Payments after an Event of Default  109      ARTICLE VIII    CONDITIONS PRECEDENT         Section 8.1.     Conditions Precedent to Closing  109      ARTICLE IX    MISCELLANEOUS         Section 9.1.     Successors  110 Section 9.2.     Governing Law  110 Section 9.3.     Modification, Waiver in Writing  111 Section 9.4.     Notices  111 Section 9.5.     Trial By Jury  112 Section 9.6.     Headings  113 Section 9.7.     Assignment and Participation  113 Section 9.8.     Severability  114 Section 9.9.     Preferences  115 Section 9.10.   [Intentionally Omitted]  115 Section 9.11.   Offsets, Counterclaims and Defenses  115 Section 9.12.   No Joint Venture  115 Section 9.13.   Conflict; Construction of Documents  115 Section 9.14.   Brokers and Financial Advisors  115 Section 9.15.   Counterparts  116 Section 9.16.   Estoppel Certificates  116 Section 9.17.   Payment of Expenses; Mortgage Recording Taxes  116 Section 9.18.   No Third-Party Beneficiaries  117 Section 9.19.   Recourse  117 Section 9.20.   Right of Set-Off  119 Section 9.21.   Exculpation of Lender  119 Section 9.22.   Servicer  119 Section 9.23.   Prior Agreements  119 
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Exhibits   A Form of Cash Management AgreementB Form of Interest Rate Cap ConfirmationC Form of Subordination, Non-Disturbance and Attornment AgreementD Form of Subordination of Property Management AgreementE Form of Qualified Purchaser CertificateF Form of Narrative Description (Quarterly)G Form of Narrative Description (Monthly)H Form of Cash Flow AnalysisSchedules   A Properties  A-1  Stratosphere Hotel & Casino  A-2  Aquarius Casino  A-3  Arizona Charlie’s Decatur  A-4  Arizona Charlie’s Boulder  A-5  Release ParcelsB Exception ReportC Liquor LicensesD Material AgreementsE-1 Allocated Loan AmountsE-2 Allocated Loan Amounts and Groupings for Release ParcelsF Deferred Maintenance Conditions and Allocated Deferred Maintenance AmountsG Organizational ChartH [Intentionally Omitted]I [Intentionally Omitted]J Allocated Capital Expenditure AmountsK List of Approved Property ManagersL Gaming LicensesM Intellectual PropertyN Approved Cash Management Banks
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LOAN AGREEMENT          This Loan Agreement is dated February 20, 2008 and is among GOLDMAN SACHS COMMERCIAL MORTGAGECAPITAL, L.P., a Delaware limited partnership, as lender (together with its successors and assigns,including any lawful holder of any portion of the Indebtedness, as hereinafter defined,“Lender”), and W2007 AQUARIUS PROPCO, L.P., a Delaware limited partnership, W2007STRATOSPHERE PROPCO, L.P., a Delaware limited partnership, W2007 STRATOSPHERE LAND PROPCO, L.P., aDelaware limited partnership, W2007 ARIZONA CHARLIE’S PROPCO, L.P., a Delaware limited partnership,and W2007 FRESCA PROPCO, L.P., a Delaware limited partnership, as borrowers (each, together withits permitted successors and assigns, a “Co-Borrower,” and collectively, the“Borrower”).RECITALS          Borrower desires to obtain from Lender the Loan (as hereinafter defined) in connection withthe financing of the Properties (as hereinafter defined).          Lender is willing to make the Loan on the terms and conditions set forth in this Agreement ifBorrower joins in the execution and delivery of this Agreement, issues the Note and executes anddelivers the other Loan Documents.          Lender 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 Agreementthat has and maintains (a) either (i) a long-term unsecured debt rating or counterparty rating ofA+ 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 Moody’s.          “Account Collateral” means, collectively, the Collateral Accounts and all sums at anytime held, deposited or invested therein, together with any interest or other earnings thereon, andall proceeds thereof (including proceeds of sales and other dispositions), whether accounts,general intangibles, chattel paper, deposit accounts, instruments, documents or securities.          “ACEP” has the meaning set forth in Section 6.19.          “ACEP Operating Expenses” has the meaning set forth in Section 6.19.          “Acquisition Documents” means, collectively, (i) that certain Membership InterestPurchase Agreement, dated as of April 22, 2007, by and between W2007/ACEP Managers Voteco, LLC, aDelaware limited liability company (as assignee of W2007/ACEP Holdings, LLC, a Delaware limitedliability company), and American Entertainment Properties Corp., a Delaware corporation, as amendedby that certain First Amendment to Membership Interest
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Purchase Agreement dated as of September 12, 2007, as amended by that certain Second Amendmentto Membership Interest Purchase Agreement dated as of February 8, 2008, as it may be furtheramended, (ii) that certain Real Estate Purchase Agreement, dated July 3, 2007, among GilbertBarbieri and Anna-Maria Barbieri and Equity VII, LLC, and (iii) that certain Purchase Agreement,dated July 18, 2007, between SLS Properties, LLC and 90 West Oakey, LLC, as amended.          “Affiliate” means, with respect to any Person, any other Person Controlling,Controlled by or under common Control with such Person.          “Aggregate Allocated Loan Amount” means with respect to each Property or ReleaseParcel, the portion of the sum of (x) the Loan Amount and (y) the initial Mezzanine Loan PrincipalIndebtedness allocated thereto as set forth in Schedules E-1 and E-2.          “Agreement” means this Loan Agreement, as the same may from time to time hereafter bemodified or replaced.          “Allocated Capital Expenditure Amount” means, with respect to each Property or item ofCapital Expenditure for a Property, the portion of the Capital Expenditure Amount allocated to suchProperty or item of Capital Expenditure for a Property on Schedule J, as the same may bemodified from time to time by Borrower with the reasonable approval of Lender or pursuant toSection 3.8 or 5.17.          “Allocated Deferred Maintenance Amount” means, with respect to each Property, the sumof all amounts specified in Schedule F with respect to Deferred Maintenance Conditions atsuch Property.          “Allocated Loan Amount” means, with respect to each Property at any time, (x) suchProperty’s Aggregate Allocated Loan Amount, times (y) the Mortgage Loan Percentage, asreduced by the allocable portion of any voluntary prepayment pursuant to Section 2.1 thatis not associated with the release of a Property (the allocation for such purposes to beprorata among all the Properties on the basis of the Allocated Loan Amounts of theProperties 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 expansionof or to any of the Properties or any portion thereof, excluding the installation or replacement ofFF&E in the ordinary course of business, Tenant Improvements required under Leases and any of theforegoing relating to a Casualty or a Condemnation.          “Annual Budget” means a capital and operating expenditure budget for the Propertiesprepared by Operating Lessee and specifying amounts reasonably foreseeable to be sufficient (i) tooperate and maintain the Properties at a standard at least equal to that maintained on the ClosingDate and (ii) during the initial term of the Loan, to make appropriate improvements to theProperties in an aggregate amount over the initial term of the Loan of not less than the CapitalExpenditure Amount.
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          “Appraisal” means an as-is appraisal of each Property that is prepared by a member ofthe Appraisal Institute selected by Lender, meets the minimum appraisal standards for nationalbanks promulgated by the Comptroller of the Currency pursuant to Title XI of the FinancialInstitutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA), and complies withthe Uniform Standards of Professional Appraisal Practice (USPAP).          “Approved Annual Budget” has the meaning set forth in Section 5.17.          “Approved Annual Capital Expenditure Budget” has the meaning set forth in Section5.17.          “Approved Annual Operating Expense Budget” has the meaning set forth in Section5.17.          “Approved Management Agreement” means, with respect to each Property, any propertymanagement agreement with an Approved Property Manager entered into with respect to such Propertyafter the date hereof, subject to Lender’s reasonable approval.          “Approved Property Manager” means, with respect to each Property, (i) each of thePersons listed on Schedule K, provided that there is no material deterioration in suchPerson’s reputation after the Closing Date (as reasonably determined by Lender), or the manager ofsuch Property under the initial Approved Management Agreement and (ii) any management companyreasonably approved by Lender with respect to which Lender receives Rating Confirmation, in eachcase unless and until Lender requests the termination of that management company pursuant toSections 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 aninterest rate cap agreement executed by Borrower and an Acceptable Counterparty in accordanceherewith, each of which must be in the form executed by Borrower and the initial AcceptableCounterparty on the Closing Date or otherwise reasonably acceptable to Lender, as the same may fromtime to time be modified or replaced in accordance therewith and herewith.          “Assumption” has the meaning set forth in Section 2.3.          “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).          “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).
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          “Borrower” has the meaning set forth in the first paragraph of this Agreement.          “Budgeted Operating Expenses” means, with respect to any calendar month, (i) an amountequal to the Operating Expenses for such calendar month in the then applicable Approved AnnualOperating Expense Budget, or (ii) such greater amount as shall equal Borrower’s and/or OperatingLessee’s actual Operating Expenses for such month, as notified by Borrower to Lender in writing notless than 10 Business Days prior to the applicable Payment Date, except that during the continuanceof a Mezzanine Loan Event of Default such greater amount may in no event exceed 105% of the amountspecified in clause (i), with no individual budget line item exceeding 110% of the amount set forthin the then applicable Approved Annual Operating Expense Budget with respect to such line item forsuch month, in each case without the prior written consent of Lender, not to be unreasonablywithheld, delayed or conditioned.          “Business Day” means any day other than (i) a Saturday and a Sunday and (ii) a day onwhich federally insured depository institutions in the State of New York or the state in which theoffices of Lender, its trustee, its Servicer or its Servicer’s collection account are located areauthorized or obligated by law, governmental decree or executive order to be closed; except thatwhen used with respect to an Interest Determination Date, “Business Day” shall mean a dayon which banks are open for dealing in foreign currency and exchange in London.          “Capex True-Up Amount” has the meaning set forth in Section 3.8(i).          “Capital Expenditure” means hard and soft costs incurred by Borrower (or OperatingLessee) with respect to replacements and capital repairs made to the Properties (including repairsto, and replacements of, structural components, roofs, building systems, parking garages andparking lots, environmental remediation and FF&E), in each case to the extent capitalized inaccordance with GAAP.          “Capital Expenditure Amount” means $54,000,000.00, allocated among the Properties asset forth in Schedule J, as the same may be modified from time to time pursuant toSection 3.8 or 5.17, less amounts released pursuant to Section3.8(c).          “Capital Expenditure Reserve Account” has the meaning set forth in Section3.8(a).          “Cash Reserve Account” shall have the meaning set forth in Section 3.11.          “Cash Management Account” has the meaning set forth in Section 3.1(a).          “Cash Management Agreement” means a cash management agreement in substantially theform of Exhibit A, as the same may from time to time be modified or replaced in accordanceherewith.          “Cash Management Bank” means, initially, Wells Fargo Bank, NA, or any other EligibleInstitution selected by Lender.
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          “Casino Components” means, collectively, those portions of each Property devoted tocasino gaming operations, including (without limitation) those areas devoted to the conduct ofgames of chance, facilities associated directly with gaming operations including, withoutlimitation, casino support areas such as surveillance and security areas, cash cages, counting andaccounting areas and gaming back-of-the-house areas in each case, to the extent the operationthereof requires a Gaming License under applicable Gaming Laws.          “Casino Operating Lease” means, individually or collectively as the context requires,each of those certain Casino Lease Agreements dated as of the date hereof, each by and between eachCo-Borrower and a Casino Operating Lessee, with respect to the Properties described on SchedulesA-1 through A-4.          “Casino Operating Lessee” means, individually or collectively as the context requires,(i) Aquarius Gaming LLC, a Nevada limited liability company, (ii) Stratosphere Gaming LLC, a Nevadalimited 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 itsrespective Casino Operating Lease, together with their respective successors and permitted assigns.          “Casualty” means a fire, explosion, flood, collapse, earthquake or other casualtyaffecting all or any portion of a Property.          “Certificates” means, collectively, any senior and/or subordinate notes, debentures orpass-through certificates, or other evidence of indebtedness, or debt or equity securities, or anycombination of the foregoing, representing a direct or beneficial interest, in whole or in part, inthe Loan.          “Change of Control” means the occurrence of either or both of the following: (i) thefailure of a Co-Borrower to be Controlled by one or more Qualified Equityholders (individually orcollectively), (ii) the failure of the Single-Purpose Equityholder (if any) of a Co-Borrower to beControlled by the same Qualified Equityholders that Control such Co-Borrower, or (iii) the failureof an Operating Lessee to be Controlled by the same Qualified Equityholders that Control Borrower(individually or collectively).          “Closing Date” means the date of this Agreement.          “Closing Date DSCR” means 1.35x.          “Code” means the Internal Revenue Code of 1986, as amended, and as it may be furtheramended from time to time, any successor statutes thereto, and applicable U.S. Department ofTreasury regulations issued pursuant thereto in temporary or final form.          “Collateral” means all assets owned from time to time by Borrower, including theProperties, the Revenues and all other tangible and intangible property (including all ofBorrower’s right, title and interest in and to the Operating Leases) in respect of which Lender isgranted a Lien under the Loan Documents, and all proceeds thereof.
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          “Collateral Accounts” means, collectively, the Cash Management Account, the LossProceeds Account, the Tax and Insurance Reserve Account, the FF&E Reserve Account, the CapitalExpenditure Reserve Account, the Demolition Reserve Account, the Deferred Maintenance andEnvironmental Reserve Account, the Dividend Reserve Account, any Cash Reserve Account and theBlocked Accounts.          “Collateral Assignment of Intellectual Property” means that certain Trademark SecurityAgreement, dated as of the date hereof, by Borrower for the benefit of Lender for the purpose offiling with the U.S. Patent and Trademark Office.          “Component Balance” has the meaning set forth in Section 1.3(c).          “Component Spread” has the meaning set forth in Section 1.3(c).          “Componentization Notice” has the meaning set forth in Section 1.3(c).          “Condemnation” means a taking or voluntary conveyance of all or part of any of theProperties or any interest in or right accruing to or use of any of the Properties, as the resultof, or in settlement of, any condemnation or other eminent domain proceeding by any GovernmentalAuthority.          “Contingent Obligation” means, with respect to any Person, any obligation of suchPerson directly or indirectly guaranteeing any Debt of any other Person in any manner and anycontingent obligation to purchase, to provide funds for payment, to supply funds to invest in anyother Person or otherwise to assure a creditor against loss.          “Control” of any entity means (i) the ownership, directly or indirectly, of at least51% of the equity interests in, and the right to at least 51% of the distributions from, suchentity and (ii) the possession, directly or indirectly, of the power to direct or cause thedirection of the management or policies of such entity, whether through the ability to exercisevoting power, by contract or otherwise (“Controlled” and “Controlling” each havethe meanings correlative thereto).          “Cooperation Agreement” means that certain Mortgage Loan Cooperation Agreement, datedas of the Closing Date, between Borrower and Lender, as the same may from time to time be modifiedor 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 reasonableattorneys’ 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 suchindebtedness 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 orservices;
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     (ii)  all letters of credit issued for the account of such Person in respect of whichsuch Person has reimbursement obligations and all unreimbursed amounts drawn thereunder;     (iii) all indebtedness secured by a Lien on any property owned by such Person (whetheror not such indebtedness has been assumed) except obligations for impositions (includingTaxes) 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 protectionagreement (including any interest rate swaps, floors, collars or similar agreements) andsimilar agreements; and     (vi) all contractual indemnity obligations of such Person.          “Debt Service” means, with respect to any Test Period, the product of (x) the sum of(a) the Principal Indebtedness, plus (b) the Mezzanine Loan Principal Indebtedness,times (y) the sum of (i) the weighted average of the Spread and the “Spreads” as defined ineach of the Mezzanine Loan Agreements plus (ii) the lesser of (A) the LIBOR Strike Rate and(B) the then current determination of LIBOR.          “Default” means the occurrence of any event which, but for the giving of notice or thepassage of time, or both, would be an Event of Default.          “Default Rate” means, with respect to any Note or Note Component, the greater of (x)3% per annum in excess of the interest rate otherwise applicable to such Note or Note Componenthereunder and (y) 1% per annum in excess of the Prime Rate from time to time.          “Deferred Maintenance Amount” means $2,057,875 allocated among the Properties as setforth in Schedule F.          “Deferred Maintenance and Environmental Reserve Account” has the meaning set forth inSection 3.7(a).          “Deferred Maintenance Conditions” means those items described in Schedule F.          “Demolition” means the demolition and removal of the buildings and other improvementslocated on the Property commonly known as 2112 Paradise Road.          “Demolition Reserve Account” has the meaning set forth in Section 3.10(a).          “Demolition Reserve Amount” means $400,000.          “Dividend Reserve Account” has the meaning set forth in Section 3.12(a).          “DSCR” means, with respect to any Test Period, the quotient of (i) Net OperatingIncome for such Test Period, divided by (ii) the Debt Service for such Test Period.
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          “DSCR Threshold” means, with respect to any release of a Property, the greater of (x)Closing Date DSCR and (y) the DSCR immediately prior to the effective date of the release of suchProperty.          “Easement Areas” has the meaning set forth in Section 4.27(ii).          “Eligible Account” means (i) a segregated account maintained with a federal orstate-chartered depository institution or trust company which complies with the definition ofEligible Institution, or (ii) a segregated trust account or accounts maintained with the corporatetrust department of a federal depository institution or state-chartered depository institutionwhich has an investment-grade rating and is subject to regulations regarding fiduciary funds ondeposit under, or similar to, Title 12 of the Code of Federal Regulations Section 9.10(b) which, ineither case, has corporate trust powers, acting in its fiduciary capacity.          “Eligible Institution” means an institution (i) whose commercial paper, short-termdebt obligations or other short-term deposits are rated at least A-1, Prime-1 or F-1, asapplicable, by each of the Rating Agencies and whose long-term senior unsecured debt obligationsare rated at least A or A2, as applicable, by each of the Rating Agencies, and whose deposits areinsured 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, engineeringreport or reports with respect to each of the Properties prepared by an independent engineerapproved by Lender and delivered to Lender on or prior to the Closing Date in connection with theLoan, and any amendments or supplements thereto delivered to Lender.          “Environmental Claim” means any written notice, claim, proceeding, investigation ordemand by any Person or Governmental Authority alleging or asserting liability with respect toBorrower or any of the Properties arising out of, based on or resulting from (i) the allegedpresence, Use or Release of any Hazardous Substance, (ii) any alleged violation of anyEnvironmental Law, or (iii) any alleged injury or threat of injury to property, health or safety orto the environment caused by Hazardous Substances.          “Environmental Indemnity” means the environmental indemnity agreements executed byBorrower and the Sponsor as of the Closing Date, as the same may from time to time be modified orreplaced in accordance herewith.          “Environmental Laws” means any and all present and future federal, state and locallaws, statutes, ordinances, rules, regulations and the like, as well as common law, any judicial oradministrative orders, decrees or judgments thereunder, and any permits, approvals, licenses,registrations, filings and authorizations, in each case as now or hereafter in effect, concerningpollution, protection or cleanup of the environment, the impact of Hazardous Substances onproperty, health or safety, or the Use or Release of Hazardous Substances, or relating to theliability for or costs of other actual or threatened danger to health or the environment allegedlycaused by any Hazardous Substance. The term “Environmental Law” includes, but is notlimited to, the following statutes, as amended, any successors thereto, and any regulationspromulgated pursuant thereto, and any state or local statutes, ordinances, rules,
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regulations and the like addressing similar issues: the Comprehensive Environmental Response,Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; theHazardous Materials Transportation Act; the Resource Conservation and Recovery Act (includingSubtitle I relating to underground storage tanks); the Clean Water Act; the Clean Air Act; theToxic Substances Control Act; the Safe Drinking Water Act; those portions of the OccupationalSafety and Health Act relating to the use, handling or exposure to any Hazardous Substance; theFederal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; theEndangered Species Act; the National Environmental Policy Act; and the River and HarborsAppropriation Act.          “Environmental Reports” means “Phase I Environmental Site Assessments” as referred toin 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 environmentalauditor approved by Lender and delivered to Lender and any amendments or supplements theretodelivered to Lender, and shall also include any other environmental reports delivered to Lenderpursuant to this Agreement and the Environmental Indemnity.          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended fromtime to time, and the regulations promulgated thereunder.          “ERISA Affiliate,” at any time, means each trade or business (whether or notincorporated) that would, at the time, be treated together with Borrower or Operating Lessee as asingle 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 thisAgreement as Schedule B, setting forth any exceptions to the representations set forth inArticle IV.          “Excess Transfer Proceeds” means Net Proceeds arising from the Transfer of a Propertyto the extent such Net Proceeds exceed the sum of (i) the applicable Release Price, plus(ii) the sum of the applicable “Release Prices” under and as defined in the Mezzanine LoanAgreements.          “Excluded Tax” means, with respect to any Lender and to each Person to whom there hasbeen an Assignment or Participation of the Loan, (a) income or franchise tax imposed on (ormeasured by) its net income or gross receipts, by or on behalf of the United States of America orany taxing authority thereof or (b) any branch profits tax imposed by the United States of Americaor any other taxing authority thereof.          “Extension Interest Rate Cap Agreement” means an interest rate cap confirmationbetween an Acceptable Counterparty and Borrower, relating to the applicable Extension Term, whichis, at all times, in substantially the form of Exhibit B with such changes as may bereasonably acceptable to Lender (together with an interest rate cap agreement and schedulesrelating thereto, which are consistent in form and substance with the terms set forth in suchconfirmation).
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          “Extension Spread” means:          (i) initially, 3.25%; and          (ii) to the extent that the Note has been, will be or is further bifurcated into multiple NoteComponents pursuant to Section 1.3(c), the weighted average of the Component Spreads at thetime of determination, weighted on the basis of the corresponding Component Balances (which shallbe the percentage specified in clause (i) unless and until there is a partial prepayment of theLoan during the continuance of an Event of Default or resulting from a Casualty or Condemnation, inwhich case the variance from the percentage specified in clause (i) shall be limited to the effectof such partial prepayment).          “Extension Term” has the meaning set forth in Section 1.2(b).          “Extraordinary Expense” means any operating or reserve expense or capital expenditurewith respect to any Property that is not set forth on the Approved Annual Budget and is not subjectto payment by withdrawals from any reserve account described in Article III but satisfiesany one of the following: (i) it is necessary to comply with any Legal Requirements or with any ofthe Loan Documents; (ii) it is reasonably necessary as a result of actual occupancy levelsexceeding the levels anticipated by the Approved Annual Budget (including incentive fees under anApproved Management Agreement); (iii) it represents amounts payable in respect of taxes, utilitiesor insurance expenses or any other expense that are not within Borrower’s control; or (iv) anyother non-discretionary operating or capital expense that, due to unforeseen circumstances, was notcontemplated in the Approved Annual Budget.          “FF&E” means furniture, fixtures and equipment (including, without limitation, GamingEquipment) located in a Property.          “FF&E Reserve Account” has the meaning set forth in Section 3.6(a).          “Fiscal Quarter” means the three-month period ending on March 31, June 30, September30 and December 31 of each year, or such other fiscal quarter of Borrower as Borrower may selectfrom time to time with the prior consent of Lender, such consent not to be unreasonably withheld,delayed or conditioned.          “Fiscal Year” means the 12-month period ending on December 31 of each year, or suchother fiscal year of Borrower as Borrower may select from time to time with the prior consent ofLender, not to 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 forUnited States Tax Withholding) of the Department of Treasury of the United States of America, andany successor form.          “Form W-8ECI” means Form W-8ECI (Certificate of Foreign Person’s Claim for Exemptionfrom Withholding of Tax on Income Effectively Connected with the Conduct of a
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Trade or Business in the United States) of the Department of the Treasury of the United Statesof 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, theapplicable gaming board, commission, or other governmental gaming regulatory authority, body oragency which (a) has, or may at any time after the Closing Date have, jurisdiction over the gamingactivities at the Property or (b) is, or may at any time after the Closing Date be, responsible forinterpreting, administering and enforcing the Gaming Laws.          “Gaming Equipment”means any and all gaming devices (as defined in NRS463.0155), gaming device parts inventory and other related gaming equipment and supplies used inconnection with the operation of a casino, including (without limitation), slot machines, gamingtables, cards, dice, chips, tokens, player tracking systems, cashless wagering systems, mobilegaming systems and associated equipment (including that defined in NRS 463.0136) which are locatedat the Casino Components, owned or leased by Casino Operating Lessee and used or useableexclusively in the present or future operation of slot machines and live games at the CasinoComponents, together with all improvements and/or additions thereto.          “Gaming Equipment Facility Agreements” means, collectively, those certain LoanAgreements, dated as of the date hereof, entered into by and between each Co-Borrower and itscorresponding Operating Lessee, as each of the same may hereafter be amended, supplemented, orotherwise modified from time to time, to the extent permitted herein.          “Gaming Laws” means all applicable constitutions, treatises, laws and statutespursuant to which any Gaming Authority possesses regulatory, licensing or permitting authority overgaming, gambling or casino or casino-related activities and all rules, rulings, orders, ordinancesand regulations of any Gaming Authority applicable to the gambling, casino, gaming businesses orcasino or casino-related activities of Borrower or any of its subsidiaries in any jurisdiction, asin effect from time to time, including the policies, interpretations and administration thereof bythe Gaming Authorities.          “Gaming License” means, in any jurisdiction in which a Property is located, anylicense, qualification, franchise, accreditation, approval, registration, permit, finding ofsuitability or other authorization relating to gaming, the gaming or gambling business or theoperation of a casino under the Gaming Laws or required by the Gaming Authorities or otherwisenecessary for the operation of gaming, the gaming business (including a racebook and/or a sportspool) or a resort casino.          “Gaming Liquidity Requirement” means the minimum bankroll requirements for cash andcash equivalents required to be maintained by Casino Operating Lessee pursuant to Gaming Laws in anamount 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 theGaming Liquidity Requirement that is required to be maintained by Casino Operating Lessee underapplicable Gaming Laws as a result of any increase or
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decrease in gaming business at the applicable Casino Component, (b) subject to increase ordecrease 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 Regulation6.150.6 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 cashfunds and reserves that are held and maintained at each Property by Casino Operating Lessee, in itscapacity as the duly licensed operator of the Casino Component, including (without limitation)casino chips, tokens, checks and markers; provided, however, that all such GamingOperating Reserves (a) are established and maintained in compliance with all applicable GamingLiquidity Requirements and limited to the amounts required thereby, and (b) are solely for use inthe day-to-day operation and management of each Casino Component in the ordinary course ofbusiness.          “Governmental Authority” means any federal, state, county, regional, local ormunicipal government, any bureau, department, agency or political subdivision thereof and anyPerson with jurisdiction exercising executive, legislative, judicial, regulatory or administrativefunctions of or pertaining to government (including any court and any Gaming Authority).          “Hazardous Substances” means any and all substances (whether solid, liquid or gas)defined, listed, or otherwise classified as hazardous wastes, hazardous substances, hazardousmaterials, extremely hazardous wastes, toxic substances, toxic pollutants, contaminants, pollutantsor words of similar meaning or regulatory effect under any present or future Environmental Laws orthat have a negative impact on human health or the environment or the presence of which on, in orunder any of the Properties is prohibited under Environmental Law, including petroleum andpetroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead andradon, 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 atthe Property in question, work projects and similar activities undertaken by or on behalf ofBorrower or any Tenants at the Property in question, in each case in such quantities andconcentrations as are reasonable for their intended application.          “Hotel Operating Lease” means, individually or collectively as the context requires,each of those certain Hotel Lease Agreements dated as of the date hereof, each by and between eachCo-Borrower and a Hotel Operating Lessee, with respect to the Properties described on ScheduleA-1 through A-4.          “Hotel Operating Lessee” means, individually or collectively as the context requires,(i) Aquarius Gaming LLC, a Nevada limited liability company, (ii) Stratosphere Gaming LLC, a Nevadalimited 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 itsrespective Hotel Operating Lease, together with their respective successors and permitted assigns.          “Increased Costs” has the meaning set forth in Section 1.6.
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          “Indebtedness” means the Principal Indebtedness, together with interest and all otherpayment obligations of Borrower to Lender then due under the Loan Documents, including allTransaction Costs, Spread Maintenance Amounts (if applicable) and other amounts due or to becomedue to Lender pursuant to this Agreement, under the Note or in accordance with any of the otherLoan Documents, and all other amounts, sums and expenses reimbursable by Borrower to Lenderhereunder or pursuant to the Note or 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.          “Independent Director” of any corporation or limited liability company means anindividual who is duly appointed as a member of the board of directors or board of managers of suchcorporation or limited liability company or as a member of the limited liability company and who isnot, and has not been at any time during the 5 years preceding such appointment, and will not whileserving as Independent Director, be any of the following:     (i) a member, partner, equityholder, manager, director, officer or employee ofBorrower, any Single-Purpose Equityholder or any of their respective equityholders oraffiliates (other than as an independent director, manager or member of an affiliate ofBorrower or any Single-Purpose Equityholder that is required by a creditor to be a singlepurpose bankruptcy remote entity, provided that such independent director, manager or memberis employed by a company that routinely provides professional independent directors,managers or members);     (ii) a creditor, supplier or service provider (including provider of professionalservices) to Borrower, any Single-Purpose Equityholder or any of their respectiveequityholders or affiliates (other than a company that routinely provides professionalindependent managers, directors or members and which also provides lien search and othersimilar services to Borrower, any Single-Purpose Equityholder or any of their respectiveequityholders or affiliates in the ordinary course of business);     (iii) a member of the immediate family by blood, marriage or adoption of any of thePersons described in clauses (i) and (ii); or     (iv) a Person that controls (whether directly, indirectly or otherwise) any of thePersons described in clauses (i), (ii) or (iii) above.Notwithstanding anything herein to the contrary, an Independent Director may notsimultaneously serve as Independent Director of a Borrower or a Single-Purpose Equityholderand independent director of a special purpose entity that owns a direct or indirect equityinterest in any Borrower or Single-Purpose Equityholder of any Borrower; provided, however,that one Independent Director of Borrower or a Single-Purpose Equityholder (but not bothIndependent Directors simultaneously) may serve as an independent director of each MezzanineBorrower or each Mezzanine Borrower’s Single-Purpose Equityholder.
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          “Initial Interest Rate Cap Agreement” means an interest rate cap confirmation betweenan Acceptable Counterparty and Borrower, relating to the initial term of the Loan, which issubstantially in the form of Exhibit B.          “Initial Payment Date” means the Payment Date in April 2008.          “Initial Spread” means:          (i) initially, 3.00%; and          (ii) following the bifurcation of the Note into multiple Note Components pursuant toSection 1.3(c), the weighted average of the Component Spreads at the time of determination,weighted on the basis of the corresponding Component Balances (which shall be the percentagespecified in clause (i) unless and until there is a partial prepayment of the Loan during thecontinuance of an Event of Default or resulting from a Casualty or Condemnation, in which case thevariance from the percentage specified in clause (i) shall be limited to the effect of such partialprepayment).          “Insurance Requirements” means, collectively, (i) all material terms of any insurancepolicy required pursuant to this Agreement and (ii) all material regulations and then-currentstandards applicable to or affecting any of the Properties or any portion thereof or any use orcondition thereof, which may, at any time, be recommended by the board of fire underwriters, ifany, having jurisdiction over any of the Properties, or any other body exercising similarfunctions.          “Interest Accrual Period” means, with respect to any specified Payment Date, theperiod from and including the 6th day of the calendar month preceding such Payment Date to butexcluding the 6th day of the calendar month containing such specified Payment Date (in each casewithout regard to whether such 6th day is a Business Day). Notwithstanding the foregoing, thefirst Interest Accrual Period (relating to the stub interest paid at closing) shall commence on andinclude the Closing Date and end on and include March 5, 2008.          “Interest Determination Date” means, in connection with the calculation of interestaccrued for any Interest Accrual Period, the second Business Day preceding the 14th day of themonth in which such Interest Accrual Period commenced; except that with respect to the firstInterest Accrual Period (relating to the stub interest paid at closing), the Interest DeterminationDate shall be the second Business Day preceding the Closing Date.          “Interest Rate Cap Agreements” means collectively, the Initial Interest Rate CapAgreement and any Extension Interest Rate Cap Agreements.          “Lease” means any lease (including, without limitation, the Operating Lease), license,letting, concession, occupancy agreement, sublease to which Borrower or Operating Lessee is a partyor has a consent right, or other agreement (whether written or oral and whether now or hereafter ineffect) under which Borrower or Operating Lessee is a lessor, existing as of the Closing Date orhereafter entered into by Borrower or Operating Lessee, in each case pursuant to which any Personis granted a possessory interest in, or right to use or occupy all or any portion of any space inany of the Properties, and every modification or amendment thereof,
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and every guarantee of the performance and observance of the covenants, conditions andagreements to be performed and observed by the other party thereto, excluding short-term agreementsin the ordinary course of business pursuant to which hotel rooms and facilities are made availableto individual hotel guests.          “Legal Requirements” means all governmental statutes, laws, rules, orders,regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities (includingEnvironmental Laws and Gaming Laws) affecting Borrower, Operating Lessee or any of the Propertiesor 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 GamingLicenses and Liquor Licenses) and authorizations and regulations relating thereto.          “Lender” has the meaning set forth in the first paragraph of this Agreement and inSection 9.7.          “LIBOR” means the rate per annum calculated as set forth below:     (i) On each Interest Determination Date, LIBOR for the applicable period will be therate for deposits in United States dollars for a one-month period which appears as theLondon interbank offered rate on the display designated as “LIBOR01” on the Reuters Screen(or such other page as may replace that page on that service, or such page or replacementtherefor 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 asthe London interbank offered rate on “LIBOR01” on the Reuters Screen (or such other page asmay replace that page on that service, or such page or replacement therefor on any successorservice) as described above, LIBOR for the applicable period will be determined on the basisof the rates at which deposits in United States dollars are offered by the Reference Banksat approximately 11:00 a.m., London time, on such date to prime banks in the Londoninterbank market for a one-month period (each a “Reference Bank Rate”). Lendershall request the principal London office of each of the Reference Banks to provide aquotation of its Reference Bank Rate. If at least two such quotations are provided, LIBORfor such period will be the arithmetic mean of such quotations. If fewer than twoquotations are provided, LIBOR for such period will be the arithmetic mean of the ratesquoted by major banks in New York City, selected by Lender, at approximately 11:00 a.m., NewYork City time, on such date for loans in United States dollars to leading European banksfor a one-month period.     (iii) If, on any Interest Determination Date, Lender is required but unable todetermine LIBOR in the manner provided in paragraphs (i) and (ii) above, LIBOR for theapplicable period shall be LIBOR as determined on the previous Interest Determination Date.All percentages resulting from any calculations or determinations referred to in this definitionwill be rounded upwards to the nearest multiple of 1/100 of 1% and all U.S. dollar amounts used
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in or resulting from such calculations will be rounded to the nearest cent (with one-half cent ormore being rounded upwards).          “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 oraffecting any Collateral or any portion thereof, or any interest therein (including any conditionalsale or other title retention agreement, any sale-leaseback, any financing lease or similartransaction having substantially the same economic effect as any of the foregoing, the filing ofany financing statement or similar instrument under the Uniform Commercial Code or comparable lawof any other jurisdiction, domestic or foreign, and mechanics’, materialmen’s and other similarliens and encumbrances, as well as any option to purchase, right of first refusal, right of firstoffer 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 $1,107,999,910.00.          “Loan Documents” means this Agreement, the Note(s), the Mortgage (and relatedfinancing statements), the Assignment of Interest Rate Cap Agreement, the Environmental Indemnity,any Subordination of Property Management Agreement, the Recourse Guaranty, the Cash ManagementAgreement, the Cooperation Agreement, the Collateral Assignment of Intellectual Property, thePledge of Gaming Equipment Facility Agreements, the Blocked Account Agreement, the Subordination ofOperating Lease Agreements, the Sponsor Guaranty, any Qualified Letter of Credit, any post-closingrequirements 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 Lienson the Collateral or otherwise in satisfaction of the requirements of this Agreement or the otherdocuments listed above, as all of the aforesaid may be modified or replaced from time to time inaccordance herewith.          “Loss Proceeds” means amounts, awards or payments payable to Borrower, OperatingLessee or Lender in respect of all or any portion of any of the Properties in connection with aCasualty or Condemnation thereof (after the deduction therefrom and payment to Borrower, OperatingLessee and Lender, respectively, of any and all reasonable expenses incurred by Borrower, OperatingLessee and Lender in the recovery thereof, including all attorneys’ fees and disbursements, thefees of insurance experts and adjusters and the costs incurred in any litigation or arbitrationwith 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 anOperating Lease) which (i) is expected to contribute more than 5% of the Revenue from any Propertyduring any 12-month period (after adjustment to eliminate the effect of free rent periods) or tocover more than 20,000 rentable square feet, (ii) contains an option or preferential
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right to purchase all or any portion of such Property, (iii) is with an Affiliate of Borroweras Tenant, or (iv) is entered into during the continuance of an Event of Default.          “Material Adverse Effect” means with respect to a Property, a material adverse effectupon (i) the ability of Borrower to perform its material obligations under the Loan Documents towhich it is a party, (ii) the enforceability of any material provision of any Loan Document (otherthan as a result of Lender’s or Servicer’s bad faith, gross negligence or willful misconduct), or(iii) the value, Net Operating Income or use of such Property or the operation thereof.          “Material Agreements” means each contract and agreement (other than Leases and anyApproved Management Agreement) relating to the ownership, management, development, use, operation,maintenance, repair or improvement of any of the Properties, and/or otherwise imposing obligationson Borrower or Operating Lessee, (i) under which Borrower or Operating Lessee would have theobligation to pay more than $1,000,000 per annum, (ii) which is required for a Property to be incompliance with Legal Requirements, including any local land-use or zoning ordinances, (iii) whichis with an Affiliate of Borrower or Operating Lessee, or (iv) which provides for the use of anoff-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 Borrowerat any of the Properties which (a) is reasonably likely to have a Material Adverse Effect, or (b)is reasonably expected to cost (other than the replacement of FF&E to the extent performed in theordinary course of business, Tenant Improvements under any Lease entered into in accordance withthis Agreement and any work required by Legal Requirements) in excess of 5% of the AggregateAllocated Loan Amount of the applicable Property, as determined by an independent architectselected by Borrower and reasonably acceptable to Lender.          “Maturity Date” means the maturity date of the Loan as set forth in Section1.2.          “Mezzanine A Borrower” means, individually or collectively as the context may require,W2007 ACEP First Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007 ACEP FirstMezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine A Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any successor or assign thereof as “Lender” under and as defined in the Mezzanine ALoan Agreement identified to Lender in writing.          “Mezzanine A Loan” means that certain mezzanine loan made on the date hereof byMezzanine A Lender to Mezzanine A Borrower.          “Mezzanine A Loan Agreement” means that certain Mezzanine A Loan Agreement, dated asof the date hereof, by and between Mezzanine A Lender and Mezzanine A Borrower, pursuant to whichthe Mezzanine A Loan was made.          “Mezzanine A Loan Amount” means $10.00.
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          “Mezzanine A Loan Documents” means the “Loan Documents” as defined in the Mezzanine ALoan Agreement.          “Mezzanine A Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine A Loan Agreement.          “Mezzanine A Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine A Loan Agreement.          “Mezzanine B Borrower” means , individually or collectively as the context mayrequire, W2007 ACEP Second Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Second Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine B Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any successor or assign thereof as “Lender” under and as defined in the Mezzanine BLoan Agreement identified to Borrower in writing.          “Mezzanine B Loan” means that certain mezzanine loan made on the date hereof byMezzanine B Lender to Mezzanine B Borrower.          “Mezzanine B Loan Agreement” means that certain Mezzanine B Loan Agreement, dated asof the date hereof, by and between Mezzanine B Lender and Mezzanine B Borrower, pursuant to whichthe Mezzanine B Loan was made.          “Mezzanine B Loan Amount” means $10.00.          “Mezzanine B Loan Documents” means the “Loan Documents” as defined in the Mezzanine BLoan Agreement.          “Mezzanine B Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine B Loan Agreement.          “Mezzanine B Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine B Loan Agreement.          “Mezzanine Borrower” means, individually or collectively, as the context requires, theMezzanine A Borrower, the Mezzanine B Borrower, the Mezzanine C Borrower, the Mezzanine D Borrower,the Mezzanine E Borrower, the Mezzanine F Borrower, the Mezzanine G Borrower, the Mezzanine HBorrower and the Mezzanine I Borrower.          “Mezzanine C Borrower” means , individually or collectively, as the context mayrequire, W2007 ACEP Third Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Third Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine C Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any successor or assign thereof as “Lender” under and as defined in the Mezzanine CLoan Agreement identified to Borrower in writing.
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          “Mezzanine C Loan” means that certain mezzanine loan made on the date hereof byMezzanine C Lender to Mezzanine C Borrower.          “Mezzanine C Loan Agreement” means that certain Mezzanine C Loan Agreement, dated asof the date hereof, by and between Mezzanine C Lender and Mezzanine C Borrower, pursuant to whichthe Mezzanine C Loan was made.          “Mezzanine C Loan Amount” means $10.00.          “Mezzanine C Loan Documents” means the “Loan Documents” as defined in the Mezzanine CLoan Agreement.          “Mezzanine C Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine C Loan Agreement.          “Mezzanine C Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine C Loan Agreement.          “Mezzanine D Borrower” means, individually or collectively, as the context mayrequire, W2007 ACEP Fourth Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Fourth Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine D Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineD Loan Agreement identified to Borrower in writing.          “Mezzanine D Loan” means that certain mezzanine loan made on the date hereof byMezzanine D Lender to Mezzanine D Borrower.          “Mezzanine D Loan Agreement” means that certain Mezzanine D Loan Agreement, dated asof the date hereof, by and between Mezzanine D Lender and Mezzanine D Borrower, pursuant to whichthe Mezzanine D Loan was made.          “Mezzanine D Loan Amount” means $10.00.          “Mezzanine D Loan Documents” means the “Loan Documents” as defined in the Mezzanine DLoan Agreement.          “Mezzanine D Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine D Loan Agreement.          “Mezzanine D Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine D Loan Agreement.          “Mezzanine E Borrower” means , individually or collectively, as the context mayrequire, W2007 ACEP Fifth Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Fifth Mezzanine B Borrower, L.P., a Delaware limited partnership.
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          “Mezzanine E Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineE Loan Agreement identified to Borrower in writing.          “Mezzanine E Loan” means that certain mezzanine loan made on the date hereof byMezzanine E Lender to Mezzanine E Borrower.          “Mezzanine E Loan Agreement” means that certain Mezzanine E Loan Agreement, dated asof the date hereof, by and between Mezzanine E Lender and Mezzanine E Borrower, pursuant to whichthe Mezzanine E Loan was made.          “Mezzanine E Loan Amount” means $10.00.          “Mezzanine E Loan Documents” means the “Loan Documents” as defined in the Mezzanine ELoan Agreement.          “Mezzanine E Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine E Loan Agreement.          “Mezzanine E Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine E Loan Agreement.          “Mezzanine F Borrower” means, individually or collectively, as the context mayrequire, W2007 ACEP Sixth Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Sixth Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine F Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineF Loan Agreement identified to Borrower in writing.          “Mezzanine F Loan” means that certain mezzanine loan made on the date hereof byMezzanine F Lender to Mezzanine F Borrower.          “Mezzanine F Loan Agreement” means that certain Mezzanine F Loan Agreement, dated asof the date hereof, by and between Mezzanine F Lender and Mezzanine F Borrower, pursuant to whichthe Mezzanine F Loan was made.          “Mezzanine F Loan Amount” means $10.00.          “Mezzanine F Loan Documents” means the “Loan Documents” as defined in the Mezzanine FLoan Agreement.          “Mezzanine F Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine F Loan Agreement.          “Mezzanine F Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine F Loan Agreement.
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          “Mezzanine G Borrower” means, individually or collectively, as the context mayrequire, W2007 ACEP Seventh Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Seventh Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine G Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineG Loan Agreement identified to Borrower in writing.          “Mezzanine G Loan” means that certain mezzanine loan made on the date hereof byMezzanine G Lender to Mezzanine G Borrower.          “Mezzanine G Loan Agreement” means that certain Mezzanine G Loan Agreement, dated asof the date hereof, by and between Mezzanine G Lender and Mezzanine G Borrower, pursuant to whichthe Mezzanine G Loan was made.          “Mezzanine G Loan Amount” means $10.00.          “Mezzanine G Loan Documents” means the “Loan Documents” as defined in the Mezzanine GLoan Agreement.          “Mezzanine G Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine G Loan Agreement.          “Mezzanine G Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine G Loan Agreement.          “Mezzanine H Borrower” means, individually or collectively, as the context mayrequire, W2007 ACEP Eighth Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Eighth Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine H Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineH Loan Agreement identified to Borrower in writing.          “Mezzanine H Loan” means that certain mezzanine loan made on the date hereof byMezzanine H Lender to Mezzanine H Borrower.          “Mezzanine H Loan Agreement” means that certain Mezzanine H Loan Agreement, dated asof the date hereof, by and between Mezzanine H Lender and Mezzanine H Borrower, pursuant to whichthe Mezzanine H Loan was made.          “Mezzanine H Loan Amount” means $10.00.          “Mezzanine H Loan Documents” means the “Loan Documents” as defined in the Mezzanine HLoan Agreement.          “Mezzanine H Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine H Loan Agreement.
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          “Mezzanine H Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine H Loan Agreement.          “Mezzanine I Borrower” means, individually or collectively, as the context mayrequire, W2007 ACEP Ninth Mezzanine A Borrower, L.P., a Delaware limited partnership, and W2007ACEP Ninth Mezzanine B Borrower, L.P., a Delaware limited partnership.          “Mezzanine I Lender” means Goldman Sachs Mortgage Company, a New York limitedpartnership, or any of its successors or assigns as “Lender” under and as defined in the MezzanineI Loan Agreement identified to Borrower in writing.          “Mezzanine I Loan” means that certain mezzanine loan made on the date hereof byMezzanine I Lender to Mezzanine I Borrower.          “Mezzanine I Loan Agreement” means that certain Mezzanine I Loan Agreement, dated asof the date hereof, by and between Mezzanine I Lender and Mezzanine I Borrower, pursuant to whichthe Mezzanine I Loan was made.          “Mezzanine I Loan Amount” means $10.00.          “Mezzanine I Loan Documents” means the “Loan Documents” as defined in the Mezzanine ILoan Agreement.          “Mezzanine I Loan Event of Default” means an “Event of Default” under and as definedin the Mezzanine I Loan Agreement.          “Mezzanine I Loan Principal Indebtedness” means the “Principal Indebtedness” asdefined in the Mezzanine I Loan Agreement.          “Mezzanine Lender” means, individually or collectively, as the context requires, theMezzanine A Lender, the Mezzanine B Lender, Mezzanine C Lender, Mezzanine D Lender, Mezzanine ELender, Mezzanine F Lender, the Mezzanine G Lender, the Mezzanine H Lender and the Mezzanine ILender.          “Mezzanine Loan” means, individually or collectively, as the context requires, theMezzanine A Loan, the Mezzanine B Loan, the Mezzanine C Loan, the Mezzanine D Loan, the Mezzanine ELoan, the Mezzanine F Loan, the Mezzanine G Loan, the Mezzanine H Loan and the Mezzanine I Loan.          “Mezzanine Loan Agreement” means, individually or collectively, as the contextrequires, the Mezzanine A Loan Agreement, the Mezzanine B Loan Agreement, the Mezzanine C LoanAgreement, the Mezzanine D Loan Agreement, the Mezzanine E Loan Agreement, the Mezzanine F LoanAgreement, the Mezzanine G Loan Agreement, the Mezzanine H Loan Agreement and the Mezzanine I LoanAgreement.          “Mezzanine Loan Amount” means the sum of (a) the Mezzanine A Loan Amount, (b) theMezzanine B Loan Amount, (c) the Mezzanine C Loan Amount, (d) the Mezzanine D Loan Amount, (e) theMezzanine E Loan Amount, (f) the Mezzanine F Loan Amount, (g) the
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Mezzanine G Loan Amount, (h) the Mezzanine H Loan Amount and (i) the Mezzanine I Loan Amount.          “Mezzanine Loan Documents” means, collectively, the Mezzanine A Loan Documents, theMezzanine B Loan Documents, Mezzanine C Loan Documents, the Mezzanine D Loan Documents, theMezzanine E Loan Documents, the Mezzanine F Loan Documents, the Mezzanine G Loan Documents, theMezzanine H Loan Documents and the Mezzanine I Loan Documents.          “Mezzanine Loan Event of Default” means the occurrence of any one or more events thatwould constitute an “Event of Default” under and as defined in any of the Mezzanine Loan Documents,with respect to which Lender shall have received written notice from Borrower or the applicableMezzanine Lender.          “Mezzanine Loan Principal Indebtedness” means the sum of the Mezzanine A PrincipalIndebtedness, plus the Mezzanine B Loan Principal Indebtedness, plus the MezzanineC Loan Principal Indebtedness, plus the Mezzanine D Loan Principal Indebtedness,plus the Mezzanine E Loan Principal Indebtedness, plus the Mezzanine F LoanPrincipal Indebtedness plus the Mezzanine G Loan Principal Indebtedness, plus theMezzanine H Principal Indebtedness, plus the Mezzanine I Principal Indebtedness.          “Monthly FF&E Reserve Amount” means, with respect to each Payment Date, an amountequal to (x) 1/12 times (y) 3.0% times (z) the aggregate Operating Income of theProperties during the immediately preceding 12-month period, excluding Operating Income of anyProperties that have theretofore been released from the Liens of the Loan Documents in accordanceherewith.          “Moody’s” means Moody’s Investors Service, Inc. and its successors.          “Mortgage” means that certain fee and leasehold deed of trust, assignment of rents andleases, security agreement and fixture filing encumbering the Properties executed by Borrower as ofthe Closing Date, as the same may from time to time be modified or replaced in accordance herewith.          “Mortgage Loan Percentage” means a fraction, the numerator of which is the Loan Amountand the denominator of which is the sum of (i) the Loan Amount and (ii) the Mezzanine Loan Amount.          “Net Operating Income” means, with respect to any specified period, the excess of (i)Operating Income for such period, minus (ii) Operating Expenses for such period.          “Net Proceeds” means, in connection with the sale or disposition of a Property, 100%of the proceeds of such sale or disposition, net of reasonable and customary transaction costspayable to unaffiliated third parties (or, in the case of a release of a Property pursuant toSection 7.1(l), the appraised value of the Property pursuant to a then-current Appraisalreasonably acceptable to Lender).
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          “Nonconsolidation Opinion” means the opinion letter, dated as of the date hereof,delivered by Borrower’s counsel to Lender and addressing issues relating to substantiveconsolidation in bankruptcy.          “Note(s)” means that certain Promissory Note, dated as of the Closing Date, made byBorrower to the order of Lender to evidence the Loan, as such note may be replaced by multipleNotes or divided into multiple Note Components in accordance with Section 1.3(c) and asotherwise modified, assigned (in whole or in part) and/or replaced from time to time in accordanceherewith.          “Note Component” has the meaning set forth in Section 1.3(c).          “OFAC List” means the list of specially designated nationals and blocked personssubject to financial sanctions that is maintained by the U.S. Treasury Department, Office ofForeign 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 byExecutive Order of the President of the United States. The OFAC List currently is accessiblethrough the internet website at http://www.treas.gov/ofac/t11sdn.pdf.          “Officer’s Certificate” means a certificate delivered to Lender which is signed by anauthorized officer of Borrower (or of a Person that is authorized to act on its behalf, such asBorrower’s general partner) and certifies the information therein to such officer’s knowledge.          “Operating Expenses” means, for any period, all operating, renting, administrative,management, legal and other ordinary expenses of Operating Lessee and, without duplication,Borrower during such period, determined in accordance with GAAP, and, without duplication, allexpenses in respect of FF&E, determined on a pro forma basis based on the amount deposited into theFF&E Reserve Account in accordance herewith; provided, however, that such expensesshall not include (i) depreciation, amortization or other noncash items (other than expenses thatare due and payable but not yet paid), (ii) interest, principal or any other sums due and owingwith respect to the Loan, (iii) income taxes or other taxes in the nature of income taxes as wellas the taxes described in clause (v) of the definition of “Operating Income,” (iv) CapitalExpenditures (other than expenses in respect of FF&E as set forth above), (v) equity distributions,(vi) any expenses incurred in connection with the making of the Loan and (vii) Tenant Improvements.          “Operating Income” means, for any period, the aggregate operating income of OperatingLessee and, without duplication, Borrower, from the Properties during such period, determined inaccordance with GAAP (but without straight-lining of rents), other than (i) Loss Proceeds (butOperating Income will include rental loss insurance proceeds to the extent allocable to suchperiod), (ii) any interest income from any source, (iii) any repayments received from any thirdparty of principal loaned or advanced to such third party by Borrower or Operating Lessee, (iv) anyproceeds resulting from the Transfer of all or any portion of any Property, (v) sales, use andoccupancy or other taxes on receipts required to be accounted for by
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Borrower to any government or governmental agency, and (vi) any other extraordinary ornon-recurring items.          “Operating Lease” means, individually or collectively as the context requires, eachHotel Operating Lease and Casino Operating Lease.          “Operating Lessee” means, individually or collectively as the context requires, eachHotel Operating Lessee and Casinos Operating Lessee.          “Overlapping Release Parcels” means those parcels identified as “12” and “48” onSchedule E-2.          “Participation” has the meaning set forth in Section 9.7(b).          “Payment Date” means the Initial Payment Date and, thereafter, the first day of eachmonth (or, if such first 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 lastBusiness Day of the Interest Accrual Period in which such Maturity Date falls.          “Peg Balance” has the meaning set forth in Section 3.2(a).          “Permits” means all licenses, permits, variances and certificates used in connectionwith the ownership, operation, use or occupancy of each of the Properties (including certificatesof 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 concerningownership, operation, use or occupancy of such Property).          “Permitted Debt” means: (a) with respect to the Borrower,  (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 within60 days of incurrence and in fact not more than 60 days outstanding, which are incurred inthe ordinary course of Borrower’s ownership of the Properties, in amounts that in theaggregate, when aggregated with the amounts described in clause (b)(ii) of this definition,do not exceed 5.0% of the sum of the Loan Amount and the Mezzanine Loan Amount in theaggregate;     (iii) obligations contained in a customary owner’s affidavit to a title policy asreasonably approved by Lender;     (iv) cash deposits from amounts otherwise not constituting Collateral and securing orin lieu of surety, appeal or customs bonds in proceedings to which Borrower is a party;
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     (v) indebtedness secured by a Lien permitted under clause (iv) of thedefinition of “Permitted Encumbrances”;     (vi) obligations to return or repay tenant security deposits;     (vii) post-closing adjustments in respect of the Properties (and not any otherproperties) under and pursuant to the Acquisition Documents (e.g., corrections toclosing-date prorations for utilities, taxes and other prorated items); and     (viii) contractual indemnity obligations entered into in the ordinary course ofbusiness in connection with the normal course of operation of the Properties, such ascustomary indemnities contained in Leases and the Approved Management Agreements; (b) with respect to each Operating Lessee,  (i) the Operating Lease;     (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 Operating Lesseewithin 60 days of incurrence and in fact not more than 60 days outstanding, which areincurred in the ordinary course of Operating Lessee’s operation of the Properties that inthe aggregate, when aggregated with the amounts described in clause (a)(ii) of thisdefinition, do not exceed 5.0% of the sum of the Loan Amount and the Mezzanine Loan Amount;     (iii) cash deposits from amounts otherwise not constituting Collateral and securing orin lieu of surety, appeal or customs bonds in proceedings to which Operating Lessee is aparty; and     (iv) contractual indemnity obligations entered into in the ordinary course of businessin connection with the normal course of operation of the Properties, such as customaryindemnities contained in Leases.     “Permitted Encumbrances” means:     (i) the Liens created by the Loan Documents and the Operating Lease;     (ii) all Liens and other matters specifically disclosed on Schedule B of the QualifiedTitle Insurance Policies;     (iii) Liens, if any, for Taxes not yet delinquent, the nonpayment of which is permittedby the terms of this Agreement, or are being contested in good faith and by appropriateproceedings in accordance herewith, provided that no such Lien is in imminent dangerof foreclosure;     (iv) workers’, mechanics’, materialmen’s or similar Liens, if any, and Liens fordelinquent taxes or impositions, in each case only if being contested in good faith and byappropriate proceedings, provided that no such Lien is in imminent danger of
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foreclosure and providedfurther, with respect to any individual Liengreater 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 LoanAmounts 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 ordischarged of record or fully insured over by the title insurance company issuing theQualified Title Insurance Policy within 30 days of its creation, or (b) Borrower depositswith Lender, by the expiration of such 30-day period, an amount equal to 125% of the dollaramount of such Lien or a bond in the aforementioned amount from such surety, and upon suchterms and conditions, as is reasonably satisfactory to Lender, as security for the paymentor 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 thisAgreement;     (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 stayedpending appeal, or shall have been discharged within 60 days after the expiration of anysuch 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 outof work performed by or materials furnished to or on behalf of tenants for which neitherBorrower nor Operating Lessee is indebted, provided that no such Lien is in imminentdanger of foreclosure and Borrower is actively enforcing its rights under the applicableLeases to release or discharge, or cause to be released or discharged, such Lien of record;     (viii) easements, rights-of-way, restrictions (including zoning restrictions), defectsor 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 leasesor financings to the extent such Liens constitute Permitted Debt.     “Permitted Investments” means the following, subject to qualificationshereinafter set forth:     (i) obligations of, or obligations guaranteed as to principal and interest by, the U.S.government or any agency or instrumentality thereof, when such obligations are backed by thefull faith and credit of the United States of America;     (ii) federal funds, unsecured certificates of deposit, time deposits, banker’sacceptances, and repurchase agreements having maturities of not more than 365 days of anybank, the short-term debt obligations of which are rated A-1+ (or the equivalent) by each ofthe Rating Agencies and, if it has a term in excess of three months, the long-term debtobligations of which are rated AAA (or the equivalent) by each of the Rating Agencies;
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     (iii) deposits that are fully insured by the Federal Deposit Insurance Corp. (FDIC);     (iv) debt obligations that are rated AAA or higher (or the equivalent) by each of theRating Agencies;     (v)commercial paper rated A–1+ (or the equivalent) by each of the Rating Agencies;     (vi)investment in money market funds rated AAAm or AAAm–G (or the equivalent) by eachof the Rating Agencies; and     (vii) such other investments as to which Lender shall have received RatingConfirmation.Notwithstanding the foregoing, “Permitted Investments” (i) shall exclude any security with theStandard & Poor’s “r” symbol (or any other Rating Agency’s corresponding symbol) attached to therating (indicating high volatility or dramatic fluctuations in their expected returns because ofmarket risk), as well as any mortgage-backed securities and any security of the type commonly knownas “strips”; (ii) shall not have maturities in excess of one year; (iii) shall be limited to thoseinstruments that have a predetermined fixed dollar of principal due at maturity that cannot vary orchange; and (iv) shall exclude any investment where the right to receive principal and interestderived from the underlying investment provides a yield to maturity in excess of 120% of the yieldto maturity at par of such underlying investment. Interest may either be fixed or variable, andany variable interest must be tied to a single interest rate index plus a single fixed spread (ifany), and move proportionately with that index. No investment shall be made which requires apayment above par for an obligation if the obligation may be prepaid at the option of the issuerthereof prior to its maturity. All investments shall mature or be redeemable upon the option ofthe holder thereof on or prior to the earlier of (x) three months from the date of their purchaseor (y) the Business Day preceding the day before the date such amounts are required to be appliedhereunder.          “Person” means any individual, corporation, limited liability company, partnership,joint venture, estate, trust, unincorporated association or Governmental Authority and anyfiduciary acting in such capacity on behalf of any of the foregoing.          “Plan Assets” means assets of any (i) employee benefit plan (as defined in Section3(3) of ERISA) subject to Title I of ERISA, (ii) plan (as defined in Section 4975(e)(1) of theCode) 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 toTitle I of ERISA or Section 4975 of the Code.          “Pledge of Gaming Equipment Facility Agreements” means each Collateral Assignment ofRights, dated as of the date hereof, by each Borrower in favor of Lender, as the same may hereafterbe amended, supplemented, or otherwise modified from time to time.          “Policies” has the meaning set forth in Section 5.15(b).
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          “Portfolio Material Adverse Effect” means a material adverse effect upon (i) theability of Borrower to perform its material obligations under the Loan Documents to which it is aparty, (ii) the enforceability of the material provisions of the Loan Documents (other than as aresult of Lender’s or Servicer’s bad faith, gross negligence or willful misconduct), or (iii) theaggregate value, Net Operating Income or use of the Properties, or the operation thereof, in eachcase taken as a whole.          “Pre-Closing Paid Capital Improvements” has the meaning set forth in Section3.8(i).          “Prepayment Notice” has the meaning set forth in Section 2.1(b).          “Prime Rate” means the “prime rate” published in the “Money Rates” section of TheWall Street Journal. If The Wall Street Journal ceases to publish the “prime rate,”then Lender 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 oradministered by a governmental or quasi-governmental body, then Lender and Borrower shallreasonably select a comparable interest rate index.          “Principal Indebtedness” means the principal balance of the Loan outstanding from timeto time.          “Properties” means the real property described on Schedules A-1, A-2, A-3, A-4 and A-5together with all buildings and improvements thereon.          “Property Agreements” means, collectively, the “Property Agreements” as defined in theMortgage.          “Qualified Equityholder” means (i) Sponsor, Whitehall Parallel Global Real EstateLimited Partnership 2007, and W2007 Finance Sub, LLC, (ii) a Mezzanine Lender that acquires adirect or indirect equity interest in Borrower through foreclosure or a transfer in lieu offoreclosure, in each case in accordance with the intercreditor agreement between Lender and theMezzanine Lenders, (iii) 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 institutionsubstantially similar to any of the foregoing, provided in each case under this clause (iii) thatsuch Person (x) has total assets (in name or under management) in excess of $2 billion and (exceptwith respect to a pension advisory firm or similar fiduciary) capital/statutory surplus orshareholder’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 theProperties, (iv) Station Casinos, Inc., provided that there is no material deterioration in thequality of its credit compared to the quality thereof as of the Closing Date or (v) any otherPerson with respect to which Rating Confirmation is received.          “Qualified Letter of Credit” means a clean, irrevocable, unconditional, transferableletter of credit in form reasonably satisfactory to Lender with respect to which Borrower has noreimbursement obligation, payable on sight draft only, in favor of Lender and entitling Lender todraw thereon in New York, New York or anywhere inside or outside of New
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York, New York if it is capable of being drawn upon by facsimile presentation, issued by adomestic 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) fromeach 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 creditshall cease to be a Qualified Letter of Credit if at any time the long-term unsecured debt ratingof the issuing bank from any of the Rating Agencies shall fall below A- (or the equivalent) or theshort-term unsecured debt rating of the issuing bank from any of the Rating Agencies shall fallbelow A-1 (or the equivalent). The following terms and conditions shall apply to each QualifiedLetter of Credit:     (i) Each such Qualified Letter of Credit shall expressly provide that partial draws arepermitted thereunder.     (ii) Each such Qualified Letter of Credit shall expressly provide that it is freelytransferable 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 immediatelyand without further notice (a) upon the occurrence and during the continuance of any Eventof Default, (b) if Borrower shall not have delivered to Lender, no less than 30 days priorto the expiration date of such Qualified Letter of Credit (including any renewal orextension thereof), a renewal or extension of such Qualified Letter of Credit or areplacement Qualified Letter of Credit for a term of not less than one year (or through thedate that is 30 days beyond the Maturity Date, whichever is earlier), or (c) if the creditrating or financial condition of the issuing bank falls below the ratings set forth above inthis definition and Borrower fails to satisfy its obligations under Section 3.8(d).     (iv) As a condition to Borrower’s delivery, and Lender’s acceptance, of any QualifiedLetter of Credit, for so long as the Sponsor Guaranty Effectiveness Period shall continue,Borrower shall first deliver to Lender a new Nonconsolidation Opinion in form and substancereasonably satisfactory to Lender to the effect that the existence of the Sponsor Guarantyand such Qualified Letter of Credit, together with other applicable facts, will not resultin Substantive Consolidation (as defined in such Nonconsolidation Opinion).          “Qualified Pledgee” means an entity that satisfies the requirements set forth inclause (iii) of the definition of “Qualified Equityholder” and that is regularly engaged in thebusiness of owning real estate or making or owning commercial real estate loans.          “Qualified Successor Operating Lessee” means a Single-Purpose Entity that isControlled by the same Qualified Equityholders that Control Borrower and is a successor to anOperating Lessee under an Operating Lease.          “Qualified Successor Borrower” means a Single-Purpose Entity that is Controlled by oneor more Qualified Equityholders.
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          “Qualified Survey” means, with respect to each of the Properties, current titlesurveys of such Property, certified to Borrower, the title company issuing the Qualified TitleInsurance Policy and Lender and their respective successors and assigns.          “Qualified Title Insurance Policy” means an ALTA extended coverage mortgagee’s titleinsurance policy.          “Rating Agency” means (i) until a Securitization or series of Securitizations hasoccurred, which, in the aggregate shall have securitized the entire Loan, S&P, Moody’s and Fitch,and (ii) from and after the occurrence of a Securitization or series of Securitizations which, inthe aggregate, shall have securitized the entire Loan, those of S&P, Moody’s and Fitch that ratethe Certificates issued in such Securitization or series of Securitizations.          “Rating Confirmation” means, with respect to any proposed action, confirmation inwriting from each of the Rating Agencies that such action shall not result, in and of itself, in adowngrade, 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 Securitizationrated by the Rating Agencies, then “Rating Confirmation” shall instead mean that the matter inquestion is subject to the prior written approval of both (x) the applicable Rating Agencies (ifand to the extent that any portion of the Loan has been securitized pursuant to a Securitization orseries of Securitizations rated by such Rating Agencies), and (y) with respect to the portion ofthe Loan that has not been securitized, Lender in its sole discretion. No Rating Confirmationshall be regarded as having been received unless and until any conditions imposed on itseffectiveness by any Rating Agency shall have been satisfied.          “REA” means, with respect to each of the Properties, each instrument described in theapplicable Qualified Title Insurance Policy which (i) contains a material agreement for reciprocalobligations between Borrower and any other parties thereto, or (ii) grants to Borrower a materialright necessary for the operation and use of any of the Properties in compliance with applicableland-use laws and/or zoning ordinances (including, by way of example only, any agreement forparking spaces required for the operation and use of a Property in compliance with applicableland-use laws and/or zoning ordinances), as each may be amended, modified or replaced from time totime in accordance herewith.          “Recourse Guaranty” means the guaranty of recourse obligations, dated as of theClosing Date, made in favor of Lender by Sponsor.          “Reference Banks” means four major banks in the London interbank market selected byLender.          “Regulatory Change” means any change after the Closing Date in federal, state orforeign 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, includingLender, of or under any federal, state or foreign laws or regulations (whether or not having theforce of law) by any court or governmental or monetary authority charged with the interpretation oradministration thereof.
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          “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 oroutdoor 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 ScheduleE-2 (which parcels are more particularly described on Schedule A-5).          “Release Price” means,     (i) with respect to the Stratosphere, the product of (x) 120% times (y) theAllocated Loan Amount applicable to the Stratosphere;     (ii) with respect to the release of the Stratosphere Excess Land or any Release Parcelto an unaffiliated third party (or to an Affiliate in connection with the contemporaneousrelease of the Stratosphere), the greater of (a) the product of (x) 120% times (y)the Allocated Loan Amount applicable to the Stratosphere Excess Land or such Release Parcel,and (b) the product of (1) the Net Proceeds from the sale of the Stratosphere Excess Landor such Release Parcel times (2) the Mortgage Loan Percentage;     (iii) with respect to the release of the Stratosphere Excess Land or any Release Parcelto an Affiliate of Borrower (except in connection with the contemporaneous release of theStratosphere), the greater of (a) the product of (x) 130% times (y) the AllocatedLoan Amount applicable to the Stratosphere Excess Land or such Release Parcel, and (b) theproduct of (1) the Net Proceeds from the sale of the Stratosphere Excess Land or suchRelease Parcel times (2) the Mortgage Loan Percentage; and     (iv) with respect to any Property other than the Stratosphere or the StratosphereExcess Land, the product of (x) 115% times (y) the Allocated Loan Amount applicableto such Property.          “Remaining Property” means, as of the date of determination, that portion of theStratosphere Excess Land that has not been released pursuant to Section 2.4.          “Reserve Excess” means, in connection with the release of a particular Propertypursuant to Section 2.2, Section 2.4 or Section 7.1, the excess amounts (ifany) contained in the Capital Expenditure Reserve Account and/or the Deferred Maintenance andEnvironmental Reserve Account , in each case, solely to the extent such amounts are attributable tothe Property so released.          “Restoration Threshold” has the meaning set forth in Section 5.16(a).          “Revenues” means all rents, rent equivalents, moneys payable as damages pursuant to aLease or in lieu of rent or rent equivalents, royalties (including all oil and gas or
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other mineral royalties and bonuses), income, receivables, receipts, revenues, deposits(including security, utility and other deposits), accounts, cash, issues, profits, charges forservices rendered, and other consideration of whatever form or nature received by or paid to or forthe account of or benefit of Borrower or Operating Lessee from any and all sources including anyobligations 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 ofservices by Borrower and proceeds, if any, from business interruption or other loss of incomeinsurance.          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-HillCompanies, Inc., and its successors.          “Securitization” means a transaction in which all or any portion of the Loan isdeposited into one or more trusts which issue Certificates to investors, or a similar transaction.          “SEL Excess Transfer Proceeds” has the meaning set forth in Section2.2(a)(iv).          “Service” means the Internal Revenue Service or any successor agency thereto.          “Servicer” means the entity or entities appointed by Lender from time to time to serveas servicer and/or special servicer of the Loan, which entity shall act on behalf of each holder ofall or any portion of the Notes pursuant to any intercreditor arrangement between such parties. Ifat any time no entity is so appointed, the term “Servicer” shall be deemed to refer to Lender.          “Shared Intellectual Period” has the meaning set forth in Section 1.8.          “Single Member LLC” means a limited liability company which either (x) has only oneeconomic 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) wasformed under the laws of the State of Delaware or, in the case of the Operating Lessees, existsunder the laws of the State of Nevada solely for the purpose of acquiring, holding, developing,owning, selling, leasing, transferring, exchanging, managing, maintaining and operating (i) theProperties, entering into the Loan Documents, refinancing the Properties in connection with apermitted repayment of the Loan in accordance herewith, and transacting any and all lawful businessthat is incident, necessary and appropriate to accomplish the foregoing, or (ii) in the case of aSingle-Purpose Equityholder, an ownership interest in Borrower, (b) does not engage in any businessunrelated to (i) such Properties, or (ii) in the case of a Single-Purpose Equityholder, itsownership interest in Borrower, (c) does not have any assets other than those related to (i) itsinterest in such Properties, or (ii) in the case of a Single-Purpose Equityholder, its ownershipinterest and general partner or managing member, as the case may be, role in Borrower, (d) does nothave any Debt, other than, in the case of Borrower and Operating Lessee, Permitted Debt or, in thecase of a Single-Purpose Equityholder, unsecured trade and operational debt incurred in the routineadministration of Borrower, (e) maintains books, accounts, records, financial statements,stationery, invoices and checks which are separate and apart from those of any other Person (exceptthat such Person’s financial position, assets, results of operations and cash flows may be includedin the consolidated financial statements and tax returns of an
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Affiliate of such Person in accordance with GAAP, provided that any such consolidatedfinancial statements shall contain a note indicating that such Person and its Affiliates areseparate legal entities and maintain records, books of account separate and apart from any otherPerson), (f) is subject to and complies with all of the limitations on powers and separatenessrequirements 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 asa division or part of another Person, (h) conducts its business in its own name (except forservices rendered by a manager under a management agreement with an Affiliate, so long as suchmanager, or equivalent thereof, under such management agreement holds itself out as an agent ofsuch Person), (i) exercises reasonable efforts to correct any known misunderstanding actually knownto it regarding its separate identity, and maintains an arm’s-length relationship with itsAffiliates, (j) except as contemplated under the Loan Documents, pays its own liabilities out ofits own funds (including the salaries of its own employees) and reasonably allocates any overheadthat is shared with an affiliate, including paying for shared office space and services performedby any officer or employee of an Affiliate, (k) maintains a sufficient number of employees in lightof its contemplated business operations, (l) conducts its business so that the assumptions madewith respect to it which are contained in the Nonconsolidation Opinion shall at all times be trueand correct in all material respects, (m) in the case of (i) a corporation, observes all applicablecorporate formalities in all material respects, (ii) a limited liability company, observes allapplicable limited liability company formalities in all material respects, and (iii) a limitedpartnership, observes all applicable limited partnership formalities in all material respects, (n)except as contemplated under the Loan Documents, does not commingle its assets with those of anyother Person and holds such assets in its own name, (o) 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 holdout its credit as being available to satisfy the obligations or securities of others, (p) does notacquire obligations or securities of its shareholders, members or partners (other than the GamingEquipment Facility Agreements), (q) except as set forth in the Loan Documents, does not pledge itsassets 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), (r) currently (i.e., as of the date of thisAgreement) maintains, and intends to maintain adequate capital in light of its contemplatedbusiness operations, (s) except in the case of any Operating Lessee, has two Independent Directors,or, in the case of limited partnership, has a Single-Purpose Equityholder with two IndependentDirectors, (t) except in the case of any Operating Lessee, has by-laws or an operating agreement,or, in the case of a limited partnership, has a Single-Purpose Equityholder with by-laws or anoperating agreement, which provides that, for so long as the Loan is outstanding, such Person shallnot take or consent to any of the following actions except to the extent expressly permitted inthis Agreement and the other Loan Documents:     (i) the dissolution, liquidation, consolidation, merger or sale of all or substantiallyall of its assets (and, in the case of Single-Purpose Equityholder, the assets of Borrower);     (ii) the engagement by such Person (and, in the case of Single-Purpose Equityholder,the engagement by Borrower) in any business other than the acquisition, financing,refinancing, holding, development, management, selling, leasing, transferring, exchanging,ownership, maintenance and operation of the Properties, and activities incidental thereto(and, in the case of a Single-Purpose Equityholder, activities incidental
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to its role as the sole general partner or managing member, as the case may be, ofBorrower);     (iii) the filing, or consent to the filing, of a bankruptcy or insolvency petition, anygeneral assignment for the benefit of creditors or the institution of any other insolvencyproceeding, or the seeking or consenting to the appointment of a receiver, liquidator,assignee, trustee, sequestrator, custodian or any similar official in respect of such Personwithout the affirmative vote of both of its Independent Directors (and, in the case of aSingle-Purpose Equityholder, in respect of Borrower without the affirmative vote of both ofsuch Single-Purpose Equityholder’s Independent Directors); and     (iv) any amendment or modification of any provision of its (and, in the case of aSingle-Purpose Equityholder, Borrower’s) organizational documents relating to qualificationas a “Single-Purpose Entity”,and (u) except in the case of any Operating Lessee, if such entity is a Single Member LLC, hasorganizational documents which provide that upon the occurrence of any event (other than apermitted equity transfer) that causes its sole member to cease to be a member while the Loan isoutstanding, to the fullest extent permitted by law, the personal representative of such membershall be authorized to, and shall, within 90 days after the occurrence of the event that terminatedthe continuing membership of such member in the Single Member LLC, agree in writing (i) to continuethe existence of the Single Member LLC without dissolution and (ii) to the admission of thepersonal representative or its nominee or designee, as the case may be, as a substitute member ofthe Single Member LLC.          “Single-Purpose Equityholder” means an entity that both (i) is a Single-Purpose Entitythat is a limited liability company or corporation formed under the laws of the State of Delawareor the State of Nevada and (ii) serves as the general partner or managing member of Borrower.          “Sponsor” means Whitehall Street Global Real Estate Limited Partnership 2007, aDelaware limited partnership.          “Sponsor Guaranty” means that certain Payment Guaranty, dated as of the date hereof,by Sponsor for the benefit of Lender.          “Sponsor Guaranty Effectiveness Period” means the period beginning on the Closing Dateand continuing until the date that the Sponsor Guaranty is no longer effective pursuant to theterms thereof.          “Spread” means (i) from and after the Closing Date to and including the initialMaturity Date (as set forth in Section 1.2(a)), the Initial Spread, and (ii) thereafter, tothe extent that the Maturity Date has been extended pursuant to Section 1.2(b), theExtension Spread.          “Spread Maintenance Amount” means, with respect to each repayment of the Loan duringthe Spread Maintenance Period, the product of (1) 1/360, times (2) the Spread,times (3) the number of days from and including the date of prepayment through andincluding the last day of the Spread Maintenance Period, times (4) the amount repaid.
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          “Spread Maintenance Period” means the period from the Closing Date to but excludingthe first Payment Date following the 12-month anniversary of the Closing Date.          “Stratosphere” means the Property described on Schedule A-1, together with allbuildings and improvements thereon.          “Stratosphere Excess Land” means, collectively, all of the Release Parcels togetherwith all buildings and improvements thereon.          “Subordination of Operating Lease Agreement” means those certain Subordination ofOperating Lease Agreements, dated as of the date hereof, by each Operating Lessee for the benefitof Lender.          “Subordination of Property Management Agreement” means those certain consents andagreements of manager and subordinations of management agreements that may be executed by anApproved Property Manager from time to time, if any, as the same may from time to time be modifiedor replaced in accordance herewith substantially in the form attached hereto as Exhibit D.          “Tax and Insurance Reserve Account” has the meaning set forth in Section3.4(a).          “Taxes” means all real estate and personal property taxes, assessments, fees, taxes onrents or rentals, water rates or sewer rents, facilities and other governmental, municipal andutility district charges or other similar taxes or assessments now or hereafter levied or assessedor imposed against the Properties, Borrower or Operating Lessee with respect to the Properties orrents therefrom or which may become Liens upon any of the Properties, without deduction for anyamounts reimbursable to Borrower by third parties.          “Tenant” means any Person liable by contract or otherwise to pay monies (including apercentage of gross income, revenue or profits) pursuant to a Lease.          “Tenant Improvements” means, collectively, (i) tenant improvements to be undertakenfor any Tenant which are required to be completed by or on behalf of Borrower pursuant to the termsof such Tenant’s Lease, and (ii) tenant improvements paid or reimbursed through allowances to aTenant 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 orOperating Lessee for or in respect of the operation of the Properties in the ordinary course andwhich 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 theProperties, Borrower or Operating Lessee and the capitalized amount of any ordinary-coursefinancing leases.          “Transaction” means, collectively, the transactions contemplated by the LoanDocuments.
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          “Transaction Costs” means the costs and expenses described in Section 9.17.          “Transfer” means the sale or other whole or partial conveyance of all or any portionof any of the Properties or any direct or indirect interest therein to a third party, includinggranting of any purchase options, rights of first refusal, rights of first offer or similar rightsin respect of any portion of such Property or the subjecting of any portion of such Property torestrictions on transfer; except that the conveyance of a space lease at such Property inaccordance herewith shall not constitute a Transfer. For the avoidance of doubt, equity transfersnot constituting a Change of Control and equity pledges which are not prohibited under Section7.1(f) shall not constitute a “Transfer” hereunder.          “Unspent Allocated Capital Expenditure Amount” means, with respect to each Property oritem of Capital Expenditure for a Property, an amount (not less than zero) equal to the AllocatedCapital Expenditure Amount for such Property or item of Capital Expenditure for a Property less theaggregate cost of Capital Expenditures spent on such Property or item of Capital Expenditure for aProperty pursuant to Section 3.8(c) from the date of this Agreement to and including thedate of determination.          “Unspent Allocated Deferred Maintenance Amount” means, with respect to each Property,an amount (not less than zero) equal to the Allocated Deferred Maintenance Amount for such Propertyless the aggregate amount applied toward Deferred Maintenance Conditions at such Property inaccordance with Section 3.7(c) from the date of this Agreement to and including the date ofdetermination.          “Use” means, with respect to any Hazardous Substance, the generation, manufacture,processing, distribution, handling, use, treatment, recycling or storage of such HazardousSubstance 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 imposedby or on behalf of the United States of America or any taxing authority thereof that is not anExcluded Tax.          (b) Rules of Construction. All references to sections, schedules and exhibits are tosections, schedules and exhibits in or to this Agreement unless otherwise specified. Unlessotherwise specified: (i) all meanings attributed to defined terms in this Agreement shall beequally 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 tosecure debt or similar instrument, as applicable, and “mortgagee” means the secured party under amortgage, deed of trust, deed to secure debt or similar instrument, and (iv) references to PaymentDates that fall in specified months ignore the preceding Business Day convention. All accountingterms not specifically defined in this Agreement shall be construed in accordance with GAAP, assame may be modified in this Agreement. Each covenant of Borrower contained herein with respect tothe operation and maintenance of or otherwise relating to the Property shall be construed to meanthat Borrower shall comply or cause the Operating Lessee to comply
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with such covenant; and any failure by the Operating Lessee to comply therewith shallconstitute a Default hereunder even though Operating Lessee is not a party to this Agreement and isnot controlled by Borrower.ARTICLE IGENERAL TERMS          1.1. The Loan. On the Closing Date, subject to the terms and conditions of thisAgreement, Lender shall make a loan to Borrower (the “Loan”) in an amount equal to the LoanAmount. The Loan shall initially be represented by a single Note which shall bear interest asdescribed in this Agreement at a per annum rate as provided in Section 1.3(a). The Loanshall be secured by the Collateral.          1.2. The Term.          (a) The Maturity Date of the Loan shall be the Payment Date in March 2010, as such date may beextended pursuant to Section 1.2(b), or such earlier date as may result from accelerationin accordance with this Agreement.          (b) Borrower shall have two successive options to extend the scheduled Maturity Date of theLoan to the Payment Date in March 2011 and March 2012, respectively (the period of each suchextension, an “Extension Term”), provided that (i) Borrower shall deliver to Lenderwritten notice of such extension at least 10 and not more than 60 days prior to the Maturity Dateas theretofore in effect; (ii) no Event of Default shall be continuing on either the date of suchnotice or the Maturity Date as theretofore in effect; (iii) Borrower shall have obtained anExtension Interest Rate Cap Agreement for the applicable Extension Term and collaterally assignedsuch Extension Interest Rate Cap Agreement to Lender pursuant to an Assignment of Interest Rate CapAgreement; (iv) with respect to the first Extension Term only, Borrower shall have completed thework related to the Capital Expenditures at each Property contemplated in connection with suchProperty’s Allocated Capital Expenditure Amount, if any; provided, however, ifBorrower shall have not satisfied the foregoing condition, such condition shall not be applicableso long as the cost of any such work that has not yet been completed is not in excess of$5,000,000, (v) with respect to the second Extension Term, Borrower shall have completed the workrelated to the Capital Expenditures at each Property contemplated in connection with suchProperty’s Allocated Capital Expenditure Amount, if any, and (vi) Borrower shall have paid allreasonable out-of-pocket expenses incurred by Lender in connection with such extension. IfBorrower fails to exercise any extension option in accordance with the provisions of thisAgreement, such extension option, and any subsequent extension option hereunder, will automaticallycease and terminate.          1.3. Interest and Principal.          (a) Commencing with the Initial Payment Date and on each and every Payment Date thereafter,Borrower shall pay interest on the Principal Indebtedness for the Interest Accrual Period in whichsuch Payment Date falls at a rate per annum equal to the sum of LIBOR, determined as of theapplicable Interest Determination Date, plus the applicable Spread
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(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 thecontinuance of an Event of Default). Interest payable hereunder shall be computed on the basis ofa 360-day year and the actual number of days elapsed.          (b) No prepayments of the Loan shall be permitted except as provided in Sections 2.1,2.2 and 5.16(e). The entire outstanding Principal Indebtedness, together with allinterest thereon through the end of the Interest Accrual Period in which the applicable MaturityDate falls (calculated as if such Principal Indebtedness were outstanding for the entire InterestAccrual Period) and all other amounts then due under the Loan Documents shall be due and payable byBorrower to Lender on the applicable Maturity Date.          (c) Upon written notice from any Lender to Borrower (the “Componentization Notice”),the Note will be deemed to have been subdivided (retroactively as of the Closing) into multiplecomponents (“Note Components”). Each Note Component shall have such notional balance (a“Component Balance”) as Lender shall specify in the Componentization Notice and an interestrate equal to the sum of LIBOR plus such amount as Lender shall specify in the ComponentizationNotice (each such amount, a “Component Spread”); provided that (i) the sum of theComponent Balances of all Note Components relating to the Note so subdivided shall equal thethen-outstanding principal amount of such Note, (ii) the initial weighted average of the ComponentSpreads of all Note Components relating to the Note, weighted on the basis of their respectiveComponent Balances, shall equal the percentage set forth in clause (i) of the definition of“Spread”, and (iii) the Componentization Notice shall not contain terms, provisions and clausesthat are less favorable to Borrower or its applicable Affiliate than those contained in the LoanDocuments as of the date hereof or which increase the obligations, or decrease the rights, ofBorrower or its Affiliates hereunder or under any of the other Loan Documents (in each case otherthan the effects of an increase in the weighted average spread of the Component Spreads that mayresult from the sequential application of a prepayment (x) during the continuance of an Event ofDefault or (y) on account of Loss Proceeds, to the extent applied to prepay a portion of the Loanin accordance with Section 5.16). If requested by the Lender, each Note Component shall berepresented by a separate physical Note. Borrower shall have three Business Days from receipt of aComponentization Notice to object to same, it being understood that the sole basis on whichBorrower may so object shall be that the requirements set forth in this subparagraph (c)have not been satisfied. Borrower shall execute and return to Lender replacement Notes reflectingsuch componentization within five Business Days after Borrower’s receipt of execution copiesthereof.          (d) Other than in the case of payments in respect of principal due on the Maturity Date orupon acceleration of the Loan hereunder, any payments of interest not paid when due hereunder shallbear interest at the applicable Default Rate and, when paid, shall be accompanied by a late fee inan amount equal to 2% times the amount of such late payment. Borrower acknowledges that (i) adelinquent payment will cause damage to Lender; (ii) the late fee is intended to compensate Lenderfor the loss of use of the delinquent payment and the expense incurred and time and effortassociated with recovering the delinquent payment; (iii) it will be extremely difficult andimpractical to ascertain the extent of Lender’s damages caused by the delinquency; and (iv) thelate fee represents Lender’s and Borrower’s reasonable estimate of Lender’s damages from thedelinquency and is not a penalty.
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          1.4. Interest Rate Cap Agreements.          (a) On or prior to the date hereof, Borrower shall obtain, and thereafter maintain in effect(unless replaced pursuant to Section 1.4(e) below), an Initial Interest Rate Cap Agreement,which shall be coterminous with the initial term of the Loan and have a notional amount that is notless than the Principal Indebtedness. Any Initial Interest Rate Cap Agreement shall have a LIBORstrike rate equal to or less than the LIBOR Strike Rate.          (b) If Borrower exercises any of its options to extend the term of the Loan pursuant toSection 1.2(b), then on or prior to the commencement of the applicable Extension Term,Borrower shall obtain, and thereafter maintain in effect (unless replaced pursuant to Section1.4(e) below), an Extension Interest Rate Cap Agreement having a term coterminous with suchExtension Term, a notional amount that is not less than the Principal Indebtedness as of thecommencement of the relevant Extension Term, and a LIBOR strike rate equal to or less than theLIBOR Strike Rate.          (c) Borrower shall collaterally assign to Lender pursuant to an Assignment of Interest RateCap Agreement all of its right, title and interest in any and all payments under each Interest RateCap Agreement and shall deliver to Lender an executed counterpart of such Interest Rate CapAgreement and obtain the consent of the Acceptable Counterparty to such collateral assignment (asevidenced by the Acceptable Counterparty’s execution of such Collateral Assignment of Interest RateCap Agreement).          (d) Borrower shall comply with all of its obligations under the terms and provisions of eachInterest Rate Cap Agreement. All amounts paid under an Interest Rate Cap Agreement shall bedeposited directly into the Cash Management Account. Borrower shall take all actions reasonablyrequested by Lender to enforce Lender’s rights under the Interest Rate Cap Agreement in the eventof a default by the counterparty thereunder and shall not waive, amend or otherwise modify any ofits material rights thereunder.          (e) If, at any time during the term of the Loan, the counterparty to the Interest Rate CapAgreement then in effect ceases to be an Acceptable Counterparty and thereafter fails to abide bythe 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 therequirements set forth in paragraph (a) or (b) above, as applicable, with a counterparty that is anAcceptable Counterparty, which replacement Interest Rate Cap Agreement shall be collaterallyassigned to lender as set forth in paragraph (c) above.          (f) At Closing and at any time that Borrower obtains a replacement Interest Rate Cap Agreementpursuant to this Section 1.4, Borrower shall cause to be delivered to Lender a legalopinion or opinions from counsel to the applicable Acceptable Counterparty (which counsel may beinternal counsel) in form and substance reasonably satisfactory to Lender.          (g) Borrower may, without Lender’s consent, cause the notional amount of the Interest Rate CapAgreement required pursuant to Sections 1.4(a) and 1.4(b) above to be reduced,dollar-for-dollar, by any actual prepayment of the Loan made in accordance herewith
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and Lender shall, at Borrower’s sole cost and expense, cooperate with Borrower in effectingsuch reduction, provided that the notional amount thereof shall at no time be less than thePrincipal Indebtedness.          1.5. Method and Place of Payment. Except as otherwise specifically provided in thisAgreement, all payments and prepayments under this Agreement and the Notes (including any depositinto the Cash Management Account pursuant to Section 3.2(c) and any reserve depositsrequired hereunder) shall be made to Lender not later than 1:00 p.m., New York City time, on thedate when due and shall be made in lawful money of the United States of America by wire transfer infederal or other immediately available funds to the account specified from time to time in awriting by Lender to Borrower. Any funds received by Lender after such time shall be deemed tohave been paid on the next succeeding Business Day. Lender shall notify Borrower in writing of anychanges in the account to which payments are to be made. If the amount received from the CashManagement Account pursuant to Section 3.2(b) is less than the sum of all amounts then dueand payable or required to be deposited hereunder, such amount shall be applied, at Lender’s solediscretion, either toward the components of the Indebtedness (e.g., interest, principal andother amounts payable hereunder) and the Notes in such sequence as Lender shall elect in its solediscretion (subject, as between the holders of the Notes, to any intercreditor agreement), ortoward the payment of Taxes, Operating Expenses, FF&E and Capital Expenditures.          1.6. 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, orany deposits with, any Lender is imposed, modified or deemed applicable and the result is toincrease the cost to such Lender of making LIBOR-based loans, or to reduce the amount receivable byLender hereunder in respect of any portion of the Loan with respect to LIBOR-based loans by amaterial amount (such increases in cost and reductions in amounts receivable, “IncreasedCosts”), then Borrower agrees that it will pay to Lender upon Lender’s request such additionalamount or amounts (based upon a reasonable allocation thereof by such Lender to the LIBOR-basedloans made by such Lender) as will compensate such Lender for such Increased Costs to the extentthat such Increased Costs are reasonably allocable to the Loan. Lender will notify Borrower inwriting of any event occurring after the Closing Date which will entitle Lender to compensationpursuant to this Section 1.6 as promptly as practicable after it obtains knowledge thereofand determines to request such compensation and will designate a different lending office if suchdesignation will avoid the need for, or reduce the amount of, such compensation and will not, inthe reasonable judgment of such Lender, be otherwise disadvantageous to such Lender. If suchLender shall fail to notify Borrower of any such event within 90 days following the end of themonth during which such event occurred, then Borrower’s liability for any amounts described in thisSection 1.6 incurred by such Lender as a result of such event shall be limited to thoseattributable to the period occurring subsequent to the 90th day prior to the date upon which suchLender 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 incomeor 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 financialinstitutions generally and are not applicable to such lender solely or primarily by reason of such
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lender’s particular conduct or condition. If a Lender requests compensation under thisSection 1.6, Borrower may, by notice to Lender, require that such Lender furnish toBorrower a statement setting forth in reasonable detail the basis for requesting such compensationand the method for determining the amount thereof. This Section 1.6 shall apply only withrespect to any portion of the Loan that is not contained in a Securitization. This Section1.6 shall not apply to a regulatory change with respect to any taxes (including, but notlimited to, U.S. Taxes).          1.7. Taxes.          (a) Borrower agrees to indemnify Lender against any present or future stamp, documentary orother 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 ofthe execution and delivery of the Loan Documents and any consents, waivers, amendments andenforcement of rights under the Loan Documents.          (b) If Borrower is required by law to withhold or deduct any amount from any payment hereunderin respect of any U.S. Tax, Borrower shall withhold or deduct the appropriate amount, remit suchamount to the appropriate Governmental Authority and pay to each Person to whom there has been anAssignment or Participation of a Loan and who is not a U.S. Person such additional amounts as arenecessary in order that the net payment of any amount due to such non-U.S. Person hereunder afterdeduction for or withholding in respect of any U.S. Tax imposed with respect to such payment (or inlieu thereof, payment of such U.S. Tax by such non-U.S. Person), will not be less than the amountstated in this Agreement to be then due and payable; except that the foregoing obligation to paysuch additional amounts shall not apply (i) to the extent that Borrower would be required towithhold or deduct any U.S. Tax if a payment to an assignee would be made on the date of theAssignment or Participation (for the avoidance of doubt, Borrower shall not be required to pay anyadditional amounts under this Section 1.7(b) to the extent that the rate of withholding orpayments to an assignee on any Payment Date is equal to or less than the rate of withholding thatwould apply to payments to such assignee if a payment was made on the date of such Assignment orParticipation), (ii) to any assignee that has not complied with the obligations contained inSection 9.7(c), (iii) to any U.S. Taxes imposed solely by reason of the failure by suchPerson (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 requirementsconcerning the nationality, residence, identity or connections with the United States of America ofsuch Person (or beneficial owner, as the case may be) if such compliance is required by statute orregulation 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 solebeneficial owner of such payment, to any U.S. Tax imposed with respect to payments made under anyNote to a fiduciary or partnership to the extent that the beneficial owner or member of thepartnership would not have been entitled to the additional amounts if such beneficial owner ormember of the partnership had been the holder of the Note. Within 30 days after paying any amountfrom which it is required by law to make any deduction or withholding, and within 30 days after itis required by law to remit such deduction or withholding to any relevant taxing or otherauthority, Borrower shall deliver to such non-U.S. Person satisfactory evidence of such deduction,withholding or payment (as the case may be). This Section 1.7(b) shall apply only withrespect to any portion of the Loan that is not contained in a Securitization.
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          1.8. Release. Upon (i) payment of the Indebtedness in full when permitted or requiredhereunder or (ii) release of any Property pursuant to Section 2.2, Section 2.4 orSection 7.1(l) hereunder, Lender shall execute and deliver to Borrower instrumentsappropriate for filing in the applicable jurisdictions, prepared by Borrower and reasonablysatisfactory to Lender, to, at Borrower’s election: (a) release and discharge the Liens of the LoanDocuments on all Collateral (or the applicable portion thereof in the case of a release of lessthan all of the Properties pursuant to the terms of this Agreement), securing payment of theIndebtedness (or such applicable portion thereof in the case of a release of less than all of theProperties pursuant to the terms of this Agreement) (in each case subject to Borrower’s obligationto pay any associated fees and expenses), including all balances in the Collateral Accounts and thereturn of any Qualified Letters of Credit (or such applicable portion thereof in the case of therelease of less than all of the Properties pursuant to the terms of this Agreement); or (b) (x) inthe case of a prepayment in full of the Indebtedness, assign the Mortgage to a new lenderdesignated by Borrower and endorse the Notes (and any other applicable Loan Documents), to a newlender designated by Borrower or, (y) in the case of a release of less than all of the Propertiespursuant to the terms of this Agreement, assign the Mortgage to a new lender designated by Borrowerand sever the Notes, at Borrower’s sole cost and expense, into multiple Notes, such that a separateNote or Notes shall represent the Allocated Loan Amount of the Property or Properties releasedpursuant to the terms of this Agreement and the other Note or Notes shall represent the PrincipalIndebtedness after giving effect to such release, and assign the Note(s) representing the AllocatedLoan Amount of the Property or Properties released to a new lender designated by Borrower. Inaddition, 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 foregoingsentence on the majority of the Properties for which such Shared Intellectual Property is used, atBorrower’s election, Lender shall execute and deliver to Borrower instruments appropriate forfiling in the applicable jurisdictions, prepared by Borrower and reasonably satisfactory toBorrower and Lender, to release such Shared Intellectual Property from the Liens under the LoanDocuments, provided that prior to such execution and delivery, there is delivered toBorrower a license reasonably satisfactory to Lender, that includes a non-exclusive, perpetual,irrevocable, **w**orldwide (to the extent Borrower has the ability to grant a worldwide license)**,**royalty-free, sublicenseable (to vendors, contractors, or other third parties providing services toBorrower or its Affiliates or otherwise involved in the operation of the business of Borrower orits Affiliates) and non-transferable (except in the event of a foreclosure or an Event of Defaultfor a specific Property, in which case such license shall become freely assignable and transferableto any Person involved in the operation of such Property) right to use such Intellectual Propertyin connection with the operation of the remaining Co-Borrowers’ Properties (including the right todisclose and share such data in connection therewith subject to reasonable confidentialityrestrictions as may be appropriate to protect trade secret status, as applicable), except to theextent the foregoing would violate or breach any legal or contractual restriction unless and untilsuch legal or contractual restriction is rendered ineffective pursuant to Part 4 of Article 9 ofthe Uniform Commercial Code as in effect in any applicable jurisdiction, and such license ispledged to Lender as additional Collateral in a manner reasonably satisfactory to Lender.
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ARTICLE IIVOLUNTARY PREPAYMENT; ASSUMPTION          2.1. Voluntary Prepayment; Mandatory Prepayment.          (a) Borrower may voluntarily prepay the Loan in whole or in part on any Business Day, exceptthat no prepayments shall be permitted during the last two Business Days in any Interest AccrualPeriod unless such prepayment is accompanied by interest in respect of the next succeeding InterestAccrual 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 soprepaid; plus (ii) the amount of interest which would have accrued on the principal amountso prepaid had it remained outstanding through the end of the Interest Accrual Period in which suchprepayment is made (plus, without duplication, in the case of a prepayment during the last twoBusiness Days during an Interest Accrual Period, the amount of interest which would have accrued onthe principal amount so prepaid had it remained outstanding through the end of the Interest AccrualPeriod following the Interest Accrual Period in which such prepayment is made); and for avoidanceof doubt, no interest shall be payable in respect of the amount so prepaid after payment of theamounts set forth herein on the date of such prepayment. In addition, if such prepayment is madeduring the Spread Maintenance Period, such prepayment shall be accompanied by the applicable SpreadMaintenance Amount. Notwithstanding anything to the contrary herein, (x) simultaneously with anyvoluntary prepayment of all or any portion of the principal amount of any Mezzanine Loan, Borrowershall make a prepayment hereunder in the amount necessary so that the respective outstandingprincipal balances of the Loan and each Mezzanine Loan immediately after such prepayments are inthe same proportion as they were immediately prior to such prepayments and (y) Borrower shall notbe permitted to make a voluntary prepayment of the Loan hereunder unless simultaneously therewith aprepayment of each Mezzanine Loan shall also be made in the amount necessary so that the respectiveoutstanding principal balances of the Loan and each Mezzanine Loan immediately after suchprepayment are in the same proportion as they were immediately prior to such prepayments. In theevent that Borrower makes a prepayment of the Loan in accordance with the provisions of thisAgreement on a Business Day that falls from and including the second to last day in an InterestAccrual Period to but excluding the first succeeding Interest Determination Date immediatelyfollowing such Payment Date (each such period, an “Assumed Note Rate Period”), it may beimpossible for Borrower and Lender to calculate with certainty the interest that would have accruedat the applicable interest rate on the amount then prepaid through the end of the Interest AccrualPeriod whose LIBOR is determined on such Interest Determination Date. Accordingly, in the eventthat any portion of the Loan is prepaid during an Assumed Note Rate Period, the interest that wouldhave accrued on such prepaid amount at the applicable Interest Rate through the end of suchInterest Accrual Period shall be estimated based on an interest rate (the “Assumed NoteRate”) equal to 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 thatis two Business Days prior to the date on which such prepayment is made, plus (ii) theapplicable Spread, plus (iii) 1.00% (the amount of interest prepaid based on the foregoingcalculation, the “Assumed Note Rate 
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Payment”). Thereafter, on the Interest Determination Date for the applicable InterestAccrual Period, Lender shall determine LIBOR with respect to such Interest Accrual Period inaccordance with the definition of “LIBOR” herein. If it is determined by Lender that LIBOR as sodetermined for the applicable Interest Accrual Period plus the applicable Spread is lessthan the Assumed Note Rate, Lender shall promptly refund to Borrower, without interest, an amountequal to the difference between (x) the Assumed Note Rate Payment and (y) the amount of interestwhich would have been payable on the prepaid amount based on LIBOR as determined on the InterestDetermination Date. Alternatively, in the event that it is determined that LIBOR as determined onthe Interest Determination Date plus the Spread is greater than the Assumed Note Rate, Borrowersshall pay to Lender, without additional interest or other late charges or penalties on the PaymentDate 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 asdetermined on the Interest Determination Date and (y) the Assumed Note Rate Payment.          (b) As a condition to any voluntary prepayment, Borrower shall give Lender written notice (a“Prepayment Notice”) of its intent to prepay, which notice must be given at least fiveBusiness Days and not more than 60 days prior to the Business Day upon which prepayment is to bemade and must specify the Business Day on which such prepayment is to be made and the amount ofsuch prepayment. If any such notice is given, then, subject to the immediately succeedingsentence, the amount specified in such notice will be due and payable on the date specifiedtherein. Notwithstanding the foregoing, if no Event of Default is then continuing, such PrepaymentNotice may be rescinded or amended by written notice to Lender (for example, to adjourn theprepayment date or the amount of such prepayment) without the need to once again comply with thePrepayment Notice time period requirements set forth in the first sentence of this Section2.1(b); provided, however, no such amendment shall result in Lender havingfewer than two Business Days advance notice of the newly proposed prepayment date, and any suchnewly proposed prepayment date shall not be more than 30 days after the prepayment date specifiedin the original Prepayment Notice, and providedfurther that Borrower shallcompensate Lender for any and all Damages incurred by Lender and/or its agents resulting from suchrescission.          (c) If the Note has been bifurcated into multiple Note Components pursuant to Section1.3(c), all voluntary prepayments of the Loan pursuant to this Section 2.1 shall beapplied to the Note Components on a prorata basis.          (d) If, at any time while any portion of the Indebtedness remains outstanding, Borrower or anyof its Affiliates shall receive any amount in respect of a post-closing adjustment to the purchaseprice of the Properties under the Acquisition Documents (including, without limitation, any amountreceived in respect of an adjustment to Closing Date pro-rations), Borrower shall apply 85% of suchamount to the prepayment of the Loan and the Mezzanine Loans on a pro-rata basis, which prepaymentshall be made in accordance with, and subject to, this Section 2.1.
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          2.2. Property Releases.          (a) So long as no Event of Default is then continuing (other than an Event of Default thatwould be eliminated after giving effect to the release of the Property proposed to be releasedpursuant to Section 7.1(l)), any Co-Borrower may obtain the release of the Property ownedby such Co-Borrower from the Liens of the Loan Documents and the release of such Co-Borrower fromany and all of its obligations under this Agreement and the other Loan Documents and such Propertymay be Transferred (whether directly or indirectly by transferring the ownership interests in theCo-Borrower that owns such Property) to an unaffiliated third party in a bona fide arms-lengthtransaction (except that, if the release is being effectuated pursuant to the provisions ofSection 7.1(l), Borrower may Transfer such Property to an Affiliate of Borrower) uponsatisfaction of the following conditions:     (i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intentto release one or more of the Properties, which notice must be given at least 10 BusinessDays and not more than 60 days prior to the Business Day upon which the release is to bemade and shall specify the Property or Properties that Borrower intends to release.Borrower shall promptly reimburse Lender for any actual out-of-pocket costs and expenses(including the reasonable fees and expenses of legal counsel and the Servicer) incurred byLender 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 prepaya portion of the Loan, in accordance with Section 2.1, in an amount equal to theapplicable Release Price and, in the event that such release occurs at any time during theSpread Maintenance Period, simultaneously pay to Lender any applicable Spread MaintenanceAmount together with the other amounts specified in Section 2.1, to the extentapplicable, and (2) DSCR for the Fiscal Quarter then most recently ended, recalculated toinclude only income and expense attributable to the Properties remaining after the releaseand to exclude the interest expense and principal payments on the aggregate amount to beprepaid, shall be equal to or greater than the applicable DSCR Threshold; provided,however, that, except with respect to a release of a Property pursuant toSection 7.1(l), the DSCR Threshold need not be satisfied if at the time of such saleBorrower (I) prepays the Loan in an amount set forth in clause (1) above, (II) deposits 100%of any remaining Excess Transfer Proceeds, after payment of the amounts required underclause (1) above and the corresponding sections of the Mezzanine Loan Agreements, into theCash Reserve Account as additional collateral for the Loan (for the avoidance of doubt, anyrelease of a Property pursuant to Section 7.1(l) shall be subject to thesatisfaction of the DSCR Threshold, and Borrower shall not be released from such requirementby depositing 100% of the Excess Transfer Proceeds as set forth in clause this (II)), and(III) if a deposit into the Cash Reserve Account is made pursuant to clause (II) aboveduring the Spread Maintenance Period, contemporaneously deposits into such account theapplicable Spread Maintenance Amount payable with respect to the Loan and each MezzanineLoan, as if the Loan and each Mezzanine Loan had been prepaid in such amount on a pro ratabasis pursuant to clause (z) of the following sentence. Following such deposit, Borrowershall, in its sole discretion, have the option to either (y) maintain the Excess TransferProceeds in the Cash Reserve Account as additional collateral for the Loan or (z) cause allor any portion of the Excess Transfer Proceeds to be applied toward
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prepayment of the Loan and the Mezzanine Loans, pro rata in proportion to theirrespective initial principal amounts, together with the applicable Spread MaintenanceAmount, if any, deposited contemporaneously with such Excess Transfer Proceeds pursuant toclause (III) above, which prepayment shall otherwise be made in accordance with Section2.1 hereof and the corresponding sections of the Mezzanine Loan Documents, and therelated Spread Maintenance Amount (if any) previously deposited into the Cash ReserveAccount shall be paid to Lender and Mezzanine Lender in accordance with the Loan Documentsand the Mezzanine Loan Documents, as if such prepayment had been made at the time of theapplicable release.     (iii) Lender shall have received a payoff letter and written confirmation from eachMezzanine Lender that satisfactory escrow arrangements in connection with the release ofsuch Property have been established.     (iv) In the case of a release of the Stratosphere Excess Land, if the Release Priceshall exceed 120% of the Allocated Loan Amount with respect thereto (the total amount of anysuch excess, the “SEL Excess Transfer Proceeds”), Borrower shall deposit 100% ofsuch SEL Excess Transfer Proceeds into the Cash Reserve Account as additional collateral forthe Loan together with the amount of any Spread Maintenance Premium that would be payablethereon and with respect to the Mezzanine Loan if such amount were a prepayment of the Loanpursuant to Section 2.1 hereof and pursuant to Section 2.1 of the Mezzanine LoanAgreements, if any. Following such deposit, Borrower shall, in its sole discretion, havethe option to either (y) maintain the SEL Excess Transfer Proceeds, together with the SpreadMaintenance Premium payable thereon, if any, in the Cash Reserve Account as additionalcollateral for the Loan or (z) cause all or any portion of the SEL Excess Transfer Proceedsto be applied toward prepayment of the Loan and each Mezzanine Loan, prorata in proportion to their respective initial principal amounts, which prepaymentsshall be made in accordance with Section 2.1 hereof and the corresponding sectionsof the Mezzanine Loan Documents, and the related Spread Maintenance Amount (if any)previously deposited into the Cash Reserve Account shall be paid to Lender and MezzanineLender in accordance with the Loan Documents and the Mezzanine Loan Documents, as if suchprepayment had been made at the time of the applicable release; and     (v) In connection with a release of the Stratosphere, either (x) the StratosphereExcess Land shall have theretofore been released or (y) Borrower shall cause theStratosphere Excess Land to be released contemporaneously therewith in accordance with therequirements set forth herein.          (b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2,2.4 or 7.1(l), Lender shall execute and deliver to Borrower such instruments,prepared by Borrower and approved by Lender (which 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 theProperty proposed to be released) shall not be unreasonably withheld, conditioned or delayed), asshall be necessary to release the applicable Co-Borrower, the applicable Property and theapplicable portion of any other Collateral securing the Loan with respect to such Property and suchCo-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to
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such Property and such Co-Borrower) from the Liens of the Loan Documents. Any Property andany Co-Borrower released pursuant to this Section 2.2, Section 2.4 or Section7.1(l) 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’srequest, Lender will promptly assign the portion of the Indebtedness secured by the portion of theCollateral to be released, as well as the applicable Mortgage encumbering such portion of theCollateral, to a third party specified by Borrower without representation or warranty (except that(i) Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion ofthe 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 1.8.          (c) Upon the release of a Property pursuant to this Section 2.2, Section 2.4or Section 7.1(l), Borrower shall have the right to apply the Reserve Excess to theprepayment of the Loan and each Mezzanine Loan, prorata in proportion to theirrespective initial principal amounts, subject to and in accordance with Section 2.1.          2.3. Assumption. The initial Borrower shall have the right to contemporaneouslyTransfer all of the Collateral to a Qualified Successor Borrower that will assume all of theobligations of Borrower hereunder (an “Assumption”), provided no Event of Default is thencontinuing or would result therefrom and the following conditions are met to the reasonablesatisfaction of Lender:     (i) such Qualified Successor Borrower shall have executed and delivered to Lender anassumption agreement, in form and substance reasonably acceptable to Lender, evidencing itsagreement to abide and be bound by the terms of the Loan Documents and containingrepresentations substantially equivalent to those contained in Article IV, and suchother representations (and evidence of the accuracy of such representations) as Lender (orthe Servicer) shall reasonably request;     (ii) the obligations of each Operating Lessee under their respective Operating Leasesshall have been assumed by a Qualified Successor Operating Lessee pursuant to an assumptionagreement, in form and substance reasonably acceptable to Lender, and such QualifiedSuccessor Operating Lessee shall have delivered to Lender all documents reasonably requestedby it relating to the existence of such Qualified Successor Operating Lessee and the dueauthorization of such Qualified Operating Lessee to assume the obligations under therelevant Operating Lease, each in form and substance reasonably satisfactory to Lender,including a certified copy of the applicable resolutions from all appropriate persons,certified copies of the organizational documents of the Qualified Successor OperatingLessee, together with all amendments thereto, and certificates of good standing or existencefor the Qualified Successor Operating Lessee issued as of a recent date by its state oforganization and each other state where such entity, by the nature of its business, isrequired to qualify or register;     (iii) such Qualified Successor Borrower shall execute and deliver such UniformCommercial Code financing statements as may be reasonably requested by Lender;
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     (iv) either (A) such Qualified Successor Borrower shall deliver to Lender a newenvironmental indemnity and guaranty of recourse carveouts, in each case, in form andsubstance satisfactory to Lender, with respect to each Property, and executed by asubstitute indemnitor satisfactory to Lender, which in each case cover indemnified mattersfirst occurring after the date of the Assumption, in which event Sponsor shall have noliability 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 andRecourse Guaranty and shall execute and deliver such documents as Lender shall require toconfirm and evidence the same;     (v) such Qualified Successor Borrower shall have delivered to Lender legal opinions ofcounsel reasonably acceptable to Lender which are reasonably equivalent to the opinionsdelivered to Lender on the date hereof, including new nonconsolidation opinions which arereasonably satisfactory to Lender and satisfactory to each of the Rating Agencies; andBorrower and the Qualified Successor Borrower shall have delivered such other documents andcertificates as Lender shall reasonably request;     (vi) such Qualified Successor Borrower shall have delivered to Lender all documentsreasonably requested by it relating to the existence of such Qualified Successor Borrowerand the due authorization of the Qualified Successor Borrower to assume the Loan and toexecute and deliver the documents described in this Section 2.3, each in form andsubstance reasonably satisfactory to Lender, including a certified copy of the applicableresolutions from all appropriate persons, certified copies of the organizational documentsof the Qualified Successor Borrower, together with all amendments thereto, and certificatesof good standing or existence for the Qualified Successor Borrower issued as of a recentdate by its state of organization and each other state where such entity, by the nature ofits business, is required to qualify or register;     (vii) the Qualified Title Insurance Policies shall have been properly endorsed toreflect the Transfer of the Properties to the Qualified Successor Borrower;     (viii) such Qualified Successor Borrower shall have delivered to Lender evidencereasonably satisfactory to Lender of any required approval or consent of any GovernmentalAuthority, including the Gaming Authorities, that has direct or indirect authority oroversight over Borrower, the Properties, Operating Lessee or the operations conducted at theProperties to the change in ownership and/or operator of the Properties (or any partthereof);     (ix) Rating Confirmation shall have been received with respect to the legal structureof the Qualified Successor Borrower (and, if applicable, each Qualified Successor OperatingLessee), the documentation of the Assumption and the related legal opinions;     (x) unless the Sponsor Guaranty shall have previously terminated in accordance with itsterms, either (A) such Qualified Successor Borrower shall deliver to Lender a replacementguaranty in form and substance substantially similar to the Sponsor Guaranty, or otherwisein a form and substance satisfactory to Lender, executed by a
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substitute guarantor approved by Lender in its sole discretion or (B) Sponsor shallagree to continue to be obligated under the Sponsor Guaranty and shall execute and deliversuch documents as Lender shall require to confirm and evidence the same;     (xi) the prior written consent of Mezzanine Lender pursuant to the Mezzanine LoanDocument shall have been received; and     (xii) with respect to the second Assumption and each subsequent Assumption thereafter,the Servicer shall have received upon request a nonrefundable assumption fee of $1,000,000and shall have received payment of all reasonable out-of-pocket costs and expenses incurredby Lender and Servicer, as applicable, in connection with such assumption (includingreasonable attorneys’ fees and costs, the cost of an endorsement to the Title InsurancePolicy reflecting the conveyance of the Properties to the Qualified Successor Borrower, liensearch and credit investigation expenses and rating agency fees and expenses).Upon an Assumption by a Qualified Successor Borrower in accordance with this Section 2.3,the initial Borrower shall be replaced by such Qualified Successor Borrower as “Borrower” for allpurposes under this Agreement and all other Loan Documents and Lender shall release Borrower fromany liability due to any Indebtedness arising from and after the date of such Assumption.          2.4. Release of Release Parcels. 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 theRelease Parcel proposed to be released pursuant to Section 7.1(l)), Borrower may obtain therelease of a Release Parcel from the Liens of the Loan Documents in connection with the Transfer ofsuch Release Parcel to an Affiliate (on terms no less favorable than would be obtained in acomparable arms-length transaction) or to an unaffiliated third party in a bona fide arms-lengthtransaction upon satisfaction of the following conditions:     (i) Borrower shall deliver to Lender notice of its intent to release one or more of theRelease Parcels, which notice must be given at least 10 Business Days and not more than 60days prior to the Business Day upon which the release is to be made and shall specify theRelease Parcel(s) that Borrower intends to release. Borrower shall promptly reimburseLender for any actual out-of-pocket costs and expenses (including the reasonable fees andexpenses of legal counsel and the Servicer) incurred by Lender in connection with a releasepursuant to this Section 2.4.     (ii) At the time of such release: Borrower shall prepay a portion of the Loan, inaccordance 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 theother amounts specified in Section 2.1; provided, however, that if the Release Pricefor such Release Parcel shall exceed 120% of the Allocated Loan Amount with respect thereto(the total amount of any such excess, the “Release Parcel Excess TransferProceeds”), Borrower shall deposit 100% of such Release Parcel Excess Transfer Proceedsinto the Cash Reserve Account together with any Spread Maintenance Premium
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that would be payable thereon if such amount were a prepayment of the Loan pursuant toSection 2.1 hereof and pursuant to Section 2.1 of the Mezzanine Loan Agreements, ifany, as additional collateral for the Loan. Following such deposit, Borrower shall, in itssole discretion, have the option to either (y) maintain the Release Parcel Excess TransferProceeds, together with the Spread Maintenance Premium payable thereon, if any, in the CashReserve Account as additional collateral for the Loan or (z) cause all or any portion of theRelease Parcel Excess Transfer Proceeds to be applied toward prepayment of the Loan and eachMezzanine Loan, prorata in proportion to their respective initial principalamounts, which prepayments shall be made in accordance with Section 2.1 hereof andthe corresponding sections of the Mezzanine Loan Documents, and the related SpreadMaintenance Amount (if any) previously deposited into the Cash Reserve Account shall be paidto Lender and Mezzanine Lender in accordance with the Loan Documents and the Mezzanine LoanDocuments, as if such prepayment had been made at the time of the applicable release.     (iii) Lender shall have received evidence reasonably satisfactory to it that theMezzanine Borrowers shall have satisfied all of the conditions to the proposed release setforth in and each of the Mezzanine Loan Agreements (including a payoff letter and writtenconfirmation from each Mezzanine Lender that satisfactory escrow arrangements in connectionwith the release of such Property have been established).     (iv) Borrower shall have delivered to Lender satisfactory evidence that (1) theapplicable Release Parcel has been legally subdivided from the Remaining Property, aseparate tax identification number shall have been issued for such Release Parcel and allnecessary variances, if any, shall have been obtained (with the result that, upon thetransfer and release of such Release Parcel, no part of the Remaining Property shall be partof a tax lot which includes any portion of such Release Parcel); (2) after giving effect tosuch transfer, each of the Release Parcel and the Remaining Property conforms to and is incompliance in all material respects with applicable Legal Requirements (including, withoutlimitation, 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 anyzoning, building, land use or parking or other Legal Requirements applicable to it or forthe 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 isnecessary for any such purpose, a reciprocal easement agreement or other agreement has beenexecuted and recorded that would allow the owner of the Remaining Property to continue touse the Release Parcel (at no cost or expense to Borrower) to the extent necessary for suchpurpose, and (4) with respect to the Overlapping Release Parcels, the lots have been demisedto Lender’s satisfaction in its sole discretion;     (v) Borrower shall deliver to Lender an endorsement to the Qualified Title InsurancePolicy insuring the Mortgage (1) extending the effective date of the policy to the effectivedate of the release; (2) confirming no change in the priority of the Mortgage on theRemaining Property (exclusive of the Release Parcel) or in the amount of the
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insurance or the coverage of the Property (exclusive of the Release Parcel) under thepolicy; and (3) insuring the rights and benefits under any new or amended reciprocaleasement agreement or such other agreement required pursuant to clause (v)(3) of thisSection that has been executed and recorded, if any;     (vi) Borrower has complied with any requirements applicable to the release in theLeases, reciprocal easement agreements, operating agreements, parking agreements or othersimilar agreements affecting the Remaining Property and the release does not violate any ofthe provisions of such documents in any respect that would result in a termination (or giveany other party thereto the right to terminate), extinguishment or other loss of materialrights of Borrower or in a material increase in Borrower’s obligations under such documentsand, to the extent necessary to comply with such documents, the transferee of the ReleaseParcel has assumed Borrower’s obligations, if any, relating to the Release Parcel under suchdocuments;     (vii) 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 pedestrianeasements which (1) provide vehicular and pedestrian access to a physically open and fullydedicated public road, (2) are recorded in the chain of title to both the property which isencumbered thereby and the Remaining Property, (3) are irrevocable and non-terminablewithout the consent of the owner of the Remaining Property; and provided further that, iflawfully obtainable, Borrower delivers to Lender an endorsement to the Qualified TitleInsurance Policy, which endorsement shall insure that (A) the benefit of each such easementinures and runs to the benefit of the owner of the Remaining Property, (B) the lien of theMortgage is a first lien on Borrower’s beneficial interest in such easement, subject to noexceptions other than Permitted Encumbrances and those approved by Lender in its reasonablediscretion and (C) no then-existing mortgages, liens, security interests or otherencumbrances (other than Permitted Encumbrances) on the Release Parcel burdened by sucheasement are superior to, or under any circumstances could terminate, impair or limit theterms of such easement;     (viii) Borrower shall have delivered an Officer’s Certificate to the effect that, tosuch officer’s knowledge after diligent inquiry, the conditions in this Section 2.4have occurred or shall occur concurrently with the transfer and release of the applicableRelease Parcel; and     (ix) Borrower shall execute such documents and instruments and obtain such opinions ofcounsel as are typical for similar transactions.
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ARTICLE IIIACCOUNTS          3.1. Cash Management Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank one or more cash management accounts into which income from the Propertieswill be deposited (collectively, the “Cash Management Account”). As a condition precedentto the closing of the Loan, Borrower shall cause the Cash Management Bank to execute and deliver aCash Management Agreement that provides, interalia, that no party other thanLender and Servicer shall have the right to withdraw funds from the Cash Management Account. Thefees and expenses of the Cash Management Bank shall be paid by Borrower.          (b) Borrower shall cause (i) all cash Revenues from the Properties received by or for thebenefit of Borrower or Operating Lessee (other than (w) tenant security deposits required to beheld in reserve accounts, (x) credit card receivables, which shall be remitted in accordance withclause (ii) of this sentence, and (y) amounts retained as a Gaming Operating Reserve) to bedeposited into the Cash Management Account or other Eligible Accounts pledged to Lender hereunder(the “Blocked Accounts”) by the end of the third Business Day following Borrower’s or theOperating Lessee’s receipt thereof, (ii) all credit card receivables and (iii) all Excess TransferProceeds not otherwise deposited into a Collateral Account in accordance herewith to be remitteddirectly into either the Cash Management Account or a Blocked Account. Each bank in which suchBlocked Accounts are maintained shall enter into a blocked account agreement (a “BlockedAccount Agreement”) satisfactory to Lender pursuant to which such bank will remit, at the endof each Business Day, all amounts contained therein to an account specified by Lender (Lenderhereby agreeing to specify the Cash Management Account so long as no Event of Default has occurredand is then continuing).          (c) Lender shall have the right at any time, on thirty days prior notice to Borrower, with orwithout cause, to replace the Cash Management Bank with any other financial institution at whichEligible Accounts may be maintained that is selected by Lender and reasonably approved by Borrower,or at any of the financial institutions listed on Schedule N (without any requirement toreceive Borrower’s consent), which financial institution shall enter into a Cash ManagementAgreement (and Borrower shall cooperate with Lender in connection with such transfer and theexecution and delivery of such Cash Management Agreement); provided that (x) Lender shallonly replace the Cash Management Bank without cause one time following a Securitization of theLoan, (y) such replacement Cash Management Bank shall be one of the financial institutions setforth on Schedule N, or shall be subject to Borrower’s consent, not to be unreasonablywithheld, conditioned or delayed and (z) Lender agrees to reimburse Borrower for its reasonable outof pocket expenses in effecting such transfer, not to exceed $10,000 per transfer. Lender shallhave the right to replace, upon not less than thirty days’ prior written notice, any bank at whicha Blocked Account is maintained with any other
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financial institution reasonably satisfactory to Borrower in which Eligible Accounts may bemaintained, which financial institution shall enter into a Blocked Account Agreement (and Borrowershall cooperate with Lender in connection with such transfer and the execution and delivery of suchBlocked Account Agreement) in the event that (i) at any time the Blocked Account bank ceases to bean Eligible Institution (unless the applicable Collateral Accounts are maintained as segregatedtrust accounts in accordance with clause (ii) of the definition of Eligible Accounts), or (ii) theBlocked Account bank fails to comply with the Blocked Account Agreement.          3.2. Distributions from Cash Management Account.          (a) The Cash Management Agreement shall provide that the Cash Management Bank shall remit toan account specified by Borrower, at the end of each Business Day (or, at Borrower’s election, on aless frequent basis), the amount, if any, by which amounts then contained in the Cash ManagementAccount exceed the aggregate amount required to be paid to or reserved with Lender and theMezzanine Lenders on the next Payment Date pursuant to this Agreement and the Mezzanine LoanAgreements (plus any additional amounts retained in such account by the Cash Management Bank inaccordance with the second following proviso) (the “Peg Balance”); provided,however, that Lender shall terminate such remittances during the continuance of an Event ofDefault or Mezzanine Loan Event of Default (and once again continue such remittances when no Eventof Default or Mezzanine Loan Event of Default exists, provided that the Loan has not theretoforebeen accelerated); and providedfurther, that the Cash Management Bank may retainin the Cash Management Account a nominal amount of funds (not to exceed $5,000) for the purpose ofcovering miscellaneous fees and charges associated with the administration of the Cash ManagementAccount to the extent provided in the Cash Management Agreement. Lender may notify the CashManagement Bank at any time of any change in the Peg Balance. Any amounts so remitted to Borrowerduring the continuance of the Sponsor Guaranty Effectiveness Period shall be applied by Borrower,ACEP and/or Operating Lessee solely in the manner permitted under Section 3.2(b)(xv), andany amount not so applied shall be remitted by Borrower or Operating Lessee into the DividendReserve Account on or prior to such next succeeding Payment Date. On the Closing Date, Borrowershall remit into the Cash Management Account an amount equal to the Peg Balance (estimated based onLIBOR as of the Closing Date) applicable to the April 2008 Payment Date, which the parties agree is$7,702,751.91.          (b) On each Payment Date, provided no Event of Default has occurred and is continuing, Lendershall transfer amounts from the Cash Management Account, to the extent available therein, to makethe following payments in the following order of priority:     (i) to the Tax and Insurance Reserve Account, the amount then required to be depositedtherein pursuant to Section 3.4;     (ii) to Lender, the amount of all scheduled or delinquent interest on the Loan and allother amounts then due and payable under the Loan Documents;
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     (iii) to the FF&E Reserve Account, the amount required to be deposited therein pursuantto Section 3.6;     (iv) during the continuance of a Mezzanine Loan Event of Default, or at the request ofBorrower by written notice delivered no later than five Business Days prior to the relevantPayment Date, or otherwise as required by Lender in its sole discretion, to the Borrower, anamount equal to the Budgeted Operating Expenses for the month in which such Payment Dateoccurs, provided that the amounts disbursed to Borrower pursuant to this clause (iv)shall be used by Borrower and/or Operating Lessee solely to pay Budgeted Operating Expensesfor such month (Borrower agreeing that, in the event that such Budgeted Operating Expensesexceed the actual operating expenses for such month, such excess amounts shall be remittedby Borrower to the Cash Management Account prior to the next succeeding Payment Date); andprovidedfurther that no amounts will be disbursed to Borrower in respect ofthe fees of the Approved Property Manager to the extent such fees exceed those expressly setforth in the Approved Management Agreement;     (v) during the continuance of the Sponsor Guaranty Effectiveness Period or a MezzanineLoan Event of Default, or at the request of Borrower upon written notice delivered no laterthan five Business Days prior to the relevant Payment Date, to Borrower, an amount equal tothe Extraordinary Expenses incurred and outstanding for the month in which such Payment Dateoccurs;     (vi) until Lender shall have received notice from Mezzanine A Lender that the MezzanineA Loan has been repaid in full, to Mezzanine A Lender, all scheduled or delinquent interestpayments then due and payable or past due and payable to Mezzanine A Lender under theMezzanine A Loan Agreement, as specified by Mezzanine A Lender pursuant to Mezzanine ALender’s written instructions to Lender;     (vii) until Lender shall have received notice from Mezzanine B Lender that theMezzanine B Loan has been repaid in full and provided that no Mezzanine A Loan Event ofDefault is then continuing, to Mezzanine B Lender, all scheduled or delinquent interestpayments then due and payable or past due and payable to Mezzanine B Lender under theMezzanine B Loan Agreement, as specified by Mezzanine B Lender pursuant to Mezzanine BLender’s written instructions to Lender;     (viii) until Lender shall have received notice from Mezzanine C Lender that theMezzanine C Loan has been repaid in full and provided that no Mezzanine A Loan Event ofDefault or Mezzanine B Loan Event of Default is then continuing, to Mezzanine C Lender, allscheduled or delinquent interest payments then due and payable or past due and payable toMezzanine C Lender under the Mezzanine C Loan Agreement, as specified by Mezzanine C Lenderpursuant to Mezzanine C Lender’s written instructions to Lender;     (ix) until Lender shall have received notice from Mezzanine D Lender that the MezzanineD Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default,Mezzanine B Loan Event of Default or Mezzanine C Loan Event of Default is
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then continuing, to Mezzanine D Lender, all scheduled or delinquent interest paymentsthen due and payable or past due and payable to Mezzanine D Lender under the Mezzanine DLoan Agreement, as specified by Mezzanine D Lender pursuant to Mezzanine D Lender’s writteninstructions to Lender;     (x) until Lender shall have received notice from Mezzanine E Lender that the MezzanineE Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default,Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default or Mezzanine D LoanEvent of Default is then continuing, to Mezzanine E Lender, all scheduled or delinquentinterest payments then due and payable or past due and payable to Mezzanine E Lender underthe Mezzanine E Loan Agreement, as specified by Mezzanine E Lender pursuant to Mezzanine ELender’s written instructions to Lender;     (xi) until Lender shall have received notice from Mezzanine F Lender that the MezzanineF Loan has been repaid in full and provided that no Mezzanine A Loan Event of Default,Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine D Loan Eventof Default or Mezzanine E Loan Event of Default is then continuing, to Mezzanine F Lender,all scheduled or delinquent interest payments then due and payable or past due and payableto Mezzanine F Lender under the Mezzanine F Loan Agreement, as specified by Mezzanine FLender pursuant to Mezzanine F Lender’s written instructions to Lender;     (xii) until Lender shall have received notice from Mezzanine G Lender that theMezzanine G Loan has been repaid in full and provided that no Mezzanine A Loan Event ofDefault, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine DLoan Event of Default, Mezzanine E Loan Event of Default or Mezzanine F Loan Event ofDefault is then continuing, to Mezzanine G Lender, all scheduled or delinquent interestpayments then due and payable or past due and payable to Mezzanine G Lender under theMezzanine G Loan Agreement, as specified by Mezzanine G Lender pursuant to Mezzanine GLender’s written instructions to Lender;     (xiii) until Lender shall have received notice from Mezzanine H Lender that theMezzanine H Loan has been repaid in full and provided that no Mezzanine A Loan Event ofDefault, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine DLoan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F Loan Event of Defaultor Mezzanine G Loan Event of Default is then continuing, to Mezzanine H Lender, allscheduled or delinquent interest payments then due and payable or past due and payable toMezzanine H Lender under the Mezzanine H Loan Agreement, as specified by Mezzanine H Lenderpursuant to Mezzanine H Lender’s written instructions to Lender;     (xiv) until Lender shall have received notice from Mezzanine I Lender that theMezzanine I Loan has been repaid in full and provided that no Mezzanine A Loan Event ofDefault, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default, Mezzanine DLoan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F Loan Event of Default,Mezzanine G Loan Event of Default or Mezzanine H Loan Event of Default is then continuing,to Mezzanine I Lender, all scheduled or delinquent interest
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payments then due and payable or past due and payable to Mezzanine I Lender under theMezzanine I Loan Agreement, as specified by Mezzanine I Lender pursuant to Mezzanine ILender’s written instructions to Lender;     (xv) during the continuance of the Sponsor Guaranty Effectiveness Period, (x) if aMezzanine Loan Event of Default is then continuing, all remaining amounts to the DividendReserve Account, and (y) if no Mezzanine Loan Event of Default is then continuing, toBorrower for application toward Operating Expenses and Capital Expenditures at theProperties in accordance with this Agreement, ACEP Operating Expenses and or prepayment ofthe Loan and the Mezzanine Loans; provided that the amounts disbursed to Borrowerpursuant to this clause (xv) shall be applied by Borrower, Operating Lessee and/or ACEPsolely to pay such Operating Expenses and Capital Expenditures, ACEP Operating Expensesand/or prepayment of the Loan and the Mezzanine Loans, and Borrower hereby covenants andagrees that any amount remitted to Borrower pursuant to this clause (xv) on any Payment Datethat has not been applied toward Operating Expenses and/or Capital Expenditures at theProperties, ACEP Operating Expenses and/or prepayment of the Loan and the Mezzanine Loansprior to the next succeeding Payment Date shall be remitted by Borrower or Operating Lesseeinto the Dividend Reserve Account on or prior to such next succeeding Payment Date;     (xvi) if a Mezzanine A Loan Event of Default is then continuing, all remaining amountsto Mezzanine A Lender (until the Mezzanine A Loan is repaid in full) pursuant to Mezzanine ALender’s instructions to Lender;     (xvii) if a Mezzanine B Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default is then continuing), all remaining amounts to Mezzanine B Lender(until the Mezzanine B Loan is repaid in full) pursuant to Mezzanine B Lender’s instructionsto Lender;     (xviii) if a Mezzanine C Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default or Mezzanine B Loan Event of Default is then continuing), allremaining amounts to Mezzanine C Lender (until the Mezzanine C Loan is repaid in full)pursuant to Mezzanine C Lender’s instructions to Lender;     (xvii) if a Mezzanine D Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default, Mezzanine B Loan Event of Default or Mezzanine C Loan Event ofDefault is then continuing), all remaining amounts to Mezzanine D Lender (until theMezzanine D Loan is repaid in full) pursuant to Mezzanine D Lender’s instructions to Lender;     (xix) if a Mezzanine E Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Defaultor Mezzanine D Loan Event of Default is then continuing), all remaining amounts to MezzanineE Lender (until the Mezzanine E Loan is repaid in full) pursuant to Mezzanine E Lender’sinstructions to Lender;
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     (xx) if a Mezzanine F Loan Event of Default is then continuing (and no Mezzanine A LoanEvent of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default,Mezzanine D Loan Event of Default or Mezzanine E Loan Event of Default is then continuing),all remaining amounts to Mezzanine F Lender (until the Mezzanine F Loan is repaid in full)pursuant to Mezzanine F Lender’s instructions to Lender;     (xxi) if a Mezzanine G Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default,Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default or Mezzanine F LoanEvent of Default is then continuing), all remaining amounts to Mezzanine G Lender (until theMezzanine G Loan is repaid in full) pursuant to Mezzanine G Lender’s instructions to Lender;     (xxii) if a Mezzanine H Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default,Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F LoanEvent of Default or Mezzanine G Loan Event of Default is then continuing), all remainingamounts to Mezzanine H Lender (until the Mezzanine H Loan is repaid in full) pursuant toMezzanine H Lender’s instructions to Lender;     (xxiii) if a Mezzanine I Loan Event of Default is then continuing (and no Mezzanine ALoan Event of Default, Mezzanine B Loan Event of Default, Mezzanine C Loan Event of Default,Mezzanine D Loan Event of Default, Mezzanine E Loan Event of Default, Mezzanine F LoanEvent of Default, Mezzanine G Loan Event of Default or Mezzanine H Loan Event of Default isthen continuing), all remaining amounts to Mezzanine I Lender (until the Mezzanine I Loan isrepaid in full) pursuant to Mezzanine I Lender’s instructions to Lender; and     (xxiv) if no Mezzanine Loan Event of Default is then continuing, and the SponsorGuaranty Effectiveness Period is no longer continuing, all remaining amounts to suchaccounts as Borrower may direct.          (c) If on any Payment Date the amount in the Cash Management Account shall be insufficient tomake all of the transfers described in Section 3.2(b)(i) through (iii), Borrowershall 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, inaddition to all other rights and remedies provided for under the Loan Documents, Lender maydisburse and apply the amounts in the Collateral Accounts in accordance with Section3.13(c).          (d) Lender may conclusively rely upon any notice received from a Mezzanine Lender with respectto the amount then payable under the applicable Mezzanine Loan Agreement and with respect to theoccurrence, continuance or termination of any Mezzanine Loan Event of Default. Lender shall beunder no duty to inquire into or investigate the validity, accuracy or content of any such notice.
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          (e) All transfers of Borrower’s funds from the Cash Management Account or any other source toor for the benefit of any Mezzanine Lender or any Mezzanine Borrower pursuant to this Agreement,the Cash Management Agreement or any of the other Loan Documents shall constitute distributionsfrom the Borrower to the Mezzanine A Borrower, from the Mezzanine A Borrower to the Mezzanine BBorrower, from the Mezzanine B Borrower to the Mezzanine C Borrower, from the Mezzanine C Borrowerto the Mezzanine D Borrower, from the Mezzanine D Borrower to the Mezzanine E Borrower, from theMezzanine E Borrower to the Mezzanine F Borrower, from the Mezzanine G Borrower to Mezzanine HBorrower and from Mezzanine H Borrower to Mezzanine I Borrower, as applicable. No provision of anyof the Loan Documents shall create a debtor-creditor relationship between the Borrower and anyMezzanine Lender.          3.3. Loss Proceeds Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank an account for the purpose of depositing any Loss Proceeds in accordance withSection 5.16(c) (the “Loss Proceeds Account”).          (b) Provided no Event of Default is continuing, funds in the Loss Proceeds account shall beapplied 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 theCash Management Bank an account for the purpose of reserving amounts payable by Borrower in respectof Taxes and insurance premiums (the “Tax and Insurance Reserve Account”).          (b) On the Closing Date, the Tax and Insurance Reserve Account shall be funded in an amountequal to the sum of (i) an amount sufficient to pay all Taxes by the 30th day prior tothe date they come due, assuming subsequent monthly fundings on Payment Dates of 1/12 of projectedannual Taxes, plus (ii) if a blanket insurance policy is not maintained pursuant toSection 3.4(e), an amount sufficient to pay all insurance premiums by the 30thday prior to the date they come due, assuming subsequent monthly fundings on Payment Dates of 1/12of projected annual insurance premiums.          (c) On each subsequent Payment Date, Borrower shall make an additional deposit therein in anamount equal to the sum of:     (A) 1/12 of the Taxes that Lender reasonably estimates, based on information providedby 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 Lenderreasonably estimates, based on information provided by Borrower, will be payable during thenext ensuing 12 months;
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provided, however, that if at any time Lender reasonably determines that the amountin the Tax and Insurance Reserve Account will not be sufficient to accumulate (upon payment ofsubsequent monthly amounts in accordance with the provisions of this Agreement) the full amount ofall installments of Taxes and, subject to Section 3.4(e), insurance premiums by the date onwhich such amounts come due, then Lender shall notify Borrower of such determination and Borrowershall increase its monthly payments to the Tax and Insurance Reserve Account by the amount thatLender reasonably estimates is sufficient to achieve such accumulation; providedfurther, however, that if any Property is released pursuant to Section 2.2,Section 2.4 or Section 7.1(l), Borrower shall decrease its monthly payments to theTax and Insurance Reserve Account to an amount that Borrower reasonably estimates is sufficient toadequately fund the Tax and Insurance Reserve Account.          (d) Borrower shall provide Lender with copies of all tax and, subject to Section3.4(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 whichsuch amounts are deposited therein and, provided no Event of Default has occurred and iscontinuing, the failure by Borrower to satisfy any payment covenants in respect of Taxes andinsurance premiums (provided, in the case of insurance premiums, that Borrower is then obligated toreserve amounts in respect of insurance premiums in accordance with Section 3.4(e)) underthis Agreement or any of the other Loan Documents shall not be deemed a breach of such covenant andshall not, in itself, result in a Default or Event of Default hereunder or under any of the otherLoan Documents. In connection with the making of any payment from the Tax and Insurance ReserveAccount, Lender may cause such payment to be made according to any bill, statement or estimateprocured from the appropriate public office or insurance carrier, without inquiry into the accuracyof such bill, 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 suchinaccuracy, invalidity or other contest.          (e) Notwithstanding the foregoing, Borrower shall have no obligation to reserve funds in theTax 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 insurancepremiums pursuant to Section 3.4(c) or to provide insurance bills pursuant to Section3.4(d), in each case, so long as Borrower delivers evidence to Lender that the insurancerequired hereunder is maintained under the Whitehall blanket insurance policy and that theapplicable insurance premiums have been paid in advance.          3.5. [Intentionally Omitted].          3.6. FF&E Reserve Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank an account for the purpose of reserving amounts in respect of FF&E (the“FF&E Reserve Account”).
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          (b) On each Payment Date, there shall be deposited into the FF&E Reserve Account an amountequal to the Monthly FF&E Reserve Amount. In the event that any Property is released pursuant toSection 2.2, Section 2.4 or Section 7.1(l) subsequent to a determination ofthe Monthly FF&E Reserve Amount, the Monthly FF&E Reserve Amount shall be appropriately adjusted inaccordance with the definition thereof.          (c) Upon the request of Borrower at any time that no Event of Default is continuing (but notmore often than once per calendar month), Lender shall cause disbursements to Borrower from theFF&E Reserve Account to reimburse Borrower for the cost of FF&E; provided that:     (i) Borrower shall deliver to Lender invoices evidencing that the costs for which suchdisbursements are requested are due and payable;     (ii) Borrower shall deliver to Lender an Officer’s Certificate confirming that all suchcosts have been previously paid by Borrower or will be paid from the proceeds of therequested disbursement; and     (iii) Lender may condition the making of a requested disbursement on reasonableevidence establishing that Borrower has applied any amounts previously received by it inaccordance with this Section for the expenses to which specific draws made hereunder relate.          3.7. Deferred Maintenance and Environmental Reserve Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank an account for the purpose of reserving amounts anticipated to be required tocorrect Deferred Maintenance Conditions (the “Deferred Maintenance and Environmental ReserveAccount”).          (b) On the Closing Date, Borrower shall either (x) deposit into the Deferred Maintenance andEnvironmental Reserve Account, from the proceeds of the Loan, an amount equal to the DeferredMaintenance Amount and/or (y) deliver to Lender a Qualified Letter of Credit in respect of suchamount, provided that the aggregate amounts deposited in the Deferred Maintenance and EnvironmentalReserve Account and any Qualified Letter of Credit delivered to Lender shall at all times equal theDeferred Maintenance Amount. If a Mezzanine Lender acquires direct or indirect equity interests inBorrower through foreclosure or a transfer in lieu of foreclosure and Borrower has delivered toLender a Qualified Letter of Credit in accordance with clause (y) of this Section 3.7(b),then Borrower shall promptly deposit into the Deferred Maintenance and Environmental ReserveAccount the amount necessary to cause the Deferred Maintenance and Environmental Reserve Account tocontain the amount that would be contained therein had Borrower deposited the initial DeferredMaintenance Amount therein on the Closing Date and subsequently withdrawn therefrom all amountsthat would have been permitted to be withdrawn pursuant to Section 3.7(c) (and if Borrowerfails to do so, then Lender shall have the right to draw on the Qualified Letter of Credit anddeposit the proceeds thereof into the Deferred Maintenance and Environmental Reserve Account ).
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          (c) Borrower shall correct the Deferred Maintenance Conditions in a diligent, workmanlikemanner and shall complete the same within the respective time periods set forth in ScheduleF, subject to the right to have Unspent Allocated Deferred Maintenance Amounts released inaccordance with Section 3.7(e). Upon the request of Borrower at any time that no Event ofDefault is continuing (but not more often than once per calendar month), Lender shall causedisbursements to Borrower from the Deferred Maintenance and Environmental Reserve Account toreimburse Borrower (or advance sums necessary to pay) for reasonable costs and expenses incurred inorder to correct Deferred Maintenance Conditions (or, if applicable, shall permit the reduction ofthe 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 Lender invoices evidencing that the costs for which suchdisbursements are requested are due and payable;     (ii) Borrower shall deliver to Lender an Officer’s Certificate confirming that all suchcosts have been previously paid by Borrower or will be paid from the proceeds of therequested disbursement; and     (iii) Lender may condition the making of a requested disbursement on (1) reasonableevidence establishing that Borrower has applied any amounts previously received by it inaccordance with this Section for the expenses to which specific draws made hereunder relate,(2) reasonably satisfactory site inspections, if the cost of the contemplated work exceeds$1,000,000, 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 Lender, on or prior to the following Payment Date, lien releasesand waivers in respect of such amounts if the costs thereof exceed $500,000).          (d) If Borrower satisfies all or any portion of its obligation under Section 3.7(b) byproviding a letter of credit which at any time ceases to be a Qualified Letter of Credit, Borrowershall, within 10 Business Days thereafter, either deliver to Lender a replacement Qualified Letterof Credit or deposit into the Deferred Maintenance and Environmental Reserve Account the amountnecessary to cause the amount on deposit therein to equal the amount that would be containedtherein had Borrower deposited the Deferred Maintenance Amount in the Deferred Maintenance andEnvironmental Reserve Account on the Closing Date and subsequently withdrawn therefrom all amountsthat would have been permitted to be withdrawn therefrom pursuant to Section 3.7(c). Inaddition, if Borrower delivers or causes to be delivered (at any time and from time to time) aQualified Letter of Credit to Lender on account of all or any portion of the amounts required to bereserved and/or delivered in respect of this Section 3.7, then, so long as no Event ofDefault is continuing, Lender shall disburse to Borrower from the Deferred Maintenance andEnvironmental Reserve Account the amount by which the amounts reserved and/or deposited withrespect to this Section 3.7 exceed the amount required to be reserved and/or depositedpursuant to this Section 3.7 (taking into account all disbursements and reductionstheretofore made pursuant to Section 3.7(c).
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          (e) Upon substantial completion (as reasonably determined by Lender) of the portion of theDeferred Maintenance Conditions identified on any line on Schedule F, and provided no Eventof Default is then continuing, the remainder of the portion of the Deferred Maintenance ReserveAccount held for such line item (as shown adjacent to such line item on Schedule F) shallpromptly be remitted to the Cash Management Account (or, if applicable, the amount of any QualifiedLetter of Credit delivered pursuant to this Section 3.7 shall be accordingly reduced).Upon the correcting of all Deferred Maintenance Conditions, provided no Event of Default is thencontinuing, any amounts then remaining in the Deferred Maintenance Reserve Account shall promptlybe remitted to the Cash Management Account and the Deferred Maintenance Account will no longer bemaintained and/or, to the extent applicable, any Qualified Letter of Credit delivered pursuant tothis Section 3.7 shall be returned to Borrower.          (f) Any amount of the Deferred Maintenance and Environmental Reserve Account allocable to aProperty that is released pursuant to Section 2.2, Section 2.4 or Section7.1(l) shall be promptly remitted to the Cash Management Account and/or any Qualified Letter ofCredit 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 theCash Management Bank an account for the purpose of reserving amounts in respect of CapitalExpenditures (the “Capital Expenditure Reserve Account”).          (b) Borrower shall either (x) deposit into the Capital Expenditure Reserve Account an amountequal to the Capital Expenditure Amount and/or (y) deliver to Lender a Qualified Letter of Creditin respect of the Capital Expenditure Amount; provided that the aggregate amounts depositedin the Capital Expenditure Reserve Account and any Qualified Letter of Credit delivered to Lendershall at all times equal the Capital Expenditure Amount. If a Mezzanine Lender acquires direct orindirect equity interests in Borrower through foreclosure or a transfer in lieu of foreclosure andBorrower has delivered to Lender a Qualified Letter of Credit in accordance with clause (y) of thisSection 3.8(b), then Borrower shall promptly deposit into the Capital Expenditure ReserveAccount the then applicable Capital Expenditure Amount (and if Borrower fails to do so, then Lendershall have the right to draw on the Qualified Letter of Credit and deposit the proceeds thereofinto the Capital Expenditure Reserve Account).          (c) Borrower shall apply the applicable Allocated Capital Expenditure Amount toward CapitalExpenditures with respect to the applicable Property, subject to (i) the right to have UnspentAllocated Capital Expenditure Amounts reallocated among items of Capital Expenditure for a Propertypursuant to Section 3.8(f) or Section 5.17 or among Properties pursuant toSection 3.8(g) or Section 5.17, and (ii) the right to have Unspent AllocatedCapital Expenditure Amounts disbursed in accordance with Sections 3.8(h) and (i).Upon the request of Borrower at any time that no Event of Default is continuing (but not more oftenthan once per calendar month), Lender shall cause disbursements to Borrower from the CapitalExpenditure Reserve Account to reimburse Borrower for reasonable costs and expenses incurred inperforming Capital Expenditures (and/or, as applicable, shall permit the reduction of the amount
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of the Qualified Letter of Credit delivered to Lender, by the amount that would have been sodisbursed), provided that     (i) Borrower shall deliver to Lender invoices evidencing that the costs for which suchdisbursements are requested are due and payable;     (ii) Borrower shall deliver to Lender an Officer’s Certificate confirming that all suchcosts have been previously paid by Borrower or will be paid from the proceeds of therequested disbursement; and     (iii) Lender may condition the making of a requested disbursement on (1) reasonableevidence establishing that Borrower has applied any amounts previously received by it inaccordance with this Section for the expenses to which specific draws made hereunder relate,(2) reasonably satisfactory site inspections, if the contemplated work exceeds $1,000,000,and (3) receipt of conditional lien releases and waivers from any contractors,subcontractors and others with respect to such amounts if the costs exceed $500,000(provided that, with respect to any amounts to be paid from the requested disbursement,Borrower shall deliver to Lender, on or prior to the following Payment Date, lien releasesand waivers in respect of such amounts if the costs thereof exceed $500,000).          (d) If Borrower satisfies its obligation under Section 3.8(b) by providing a letter ofcredit which at any time ceases to be a Qualified Letter of Credit, Borrower shall, within 10Business Days thereafter, either (x) deliver to Lender, as applicable, a Qualified Letter of Creditin the amount required to satisfy its obligations under Section 3.8(b) or (y) deposit intothe Capital Expenditure Reserve Account such amount. In addition, Borrower shall have the right atany time to deposit into the Capital Expenditure Reserve Account the amount described in clause(y), whereupon any Qualified Letter theretofore delivered to Lender pursuant to Section3.8(b) shall be returned to Borrower, and Borrower shall thereafter have the right to redelivera Qualified Letter of Credit in such amount, whereupon the corresponding amounts then contained inthe Capital Expenditure Reserve Account shall be remitted to the Cash Management Account.          (e) On a quarterly basis, on or prior to the date on which Borrower delivers to Lender itsquarterly financial statements pursuant to Section 5.13, Borrower shall deliver to Lender areport detailing the status of Capital Expenditures on a Property-by-Property basis which shallinclude the Allocated Capital Expenditure Amount with respect to each Property and the UnspentAllocated Capital Expenditure Amount with respect to each Property.          (f) To the extent that there is an Unspent Allocated Capital Expenditure Amount with respectto an item of Capital Expenditure for a Property upon substantial completion of such item, suchUnspent Allocated Capital Expenditure Amount may, without Lender’s consent or approval, bereallocated by Borrower to other items of Capital Expenditure for such Property such that theAllocated Capital Expenditure Amount with respect to the items of Capital Expenditure for suchProperty to which funds are reallocated are increased for all purposes hereunder.
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          (g) With respect to a Property for which all items of Capital Expenditure set forth in theApproved Annual Capital Expenditure Budget with respect to such Property have been completed, asevidenced by a report delivered to Lender pursuant to Section 3.8(e) together with anaccompanying Officer’s Certificate certifying the same, provided no Event of Default is thencontinuing, Borrower shall have the right, following prior written notice to Lender, to reallocateany Unspent Allocated Capital Expenditure Amount with respect to such Property to one or more otherProperties, provided that such reallocation is reasonably expected to enhance the value ofthe Property or Properties to which such amounts are reallocated. In connection with any suchreallocation, Borrower shall deliver to Lender a revised Approved Annual Capital ExpenditureBudget, which shall be subject to Lender’s reasonable approval and shall thereafter replace andupdate the Allocated Capital Expenditure Amounts theretofore in effect for all purposes under theLoan Documents. A schedule specifying Borrower’s calculation of such revised Allocated CapitalExpenditure Amounts shall be attached to the Officer’s Certificate required under the firstsentence of this Section 3.8(g).          (h) If there is an Unspent Allocated Capital Expenditure Amount following the delivery of thereport to Lender required by Section 3.8(e) above, and such Unspent Allocated CapitalExpenditure Amount is not reallocated to other Capital Expenditures pursuant to Section3.8(f) above or to other Properties to the extent permitted under Section 3.8(g) above,then any such portion of the Unspent Allocated Capital Expenditure Amount that is then contained inthe Capital Expenditure Reserve Account shall, at Borrower’s option, either (x) be applied to theprepayment of the Loan and each Mezzanine Loan, prorata in proportion to theirrespective initial principal amounts, subject to and in accordance with Section 2.1 (and,if such Unspent Allocated Required Capital Expenditure Amount is held in the form of a QualifiedLetter of Credit, then Borrower shall be entitled to a reduction or return of such Qualified Letterof Credit in an amount equal to the amount of such prepayment, and in such event Lender shallreasonably cooperate in effecting such reduction or return) or (y) be retained in such account andshall only be disbursed to Borrower to reimburse Borrower for the reasonable costs and expenses toperform Capital Expenditures and/or for the cost of FF&E with respect to one or more of theProperties (and the amount of any Qualified Letter of Credit delivered to Lender in respect of theUnspent Allocated Capital Expenditure Amount shall only be reduced in connection with such costs),subject, in each case, to satisfaction of the conditions set forth in Sections 3.6(c)(i)through (iii) and Sections 3.8(c)(i) through (iii), as applicable.          (i) Notwithstanding anything to the contrary contained in this Section 3.8, Lendershall release the Capex True-Up Amount to Borrower from the Capital Expenditure Reserve Account,provided that Borrower shall make a written request therefore prior to the date that is 90 daysfrom the Closing Date and that such written request is accompanied by evidence (including paidinvoices) reasonably satisfactory to Lender that capital improvements at the Properties for whichthe amounts on deposit in the Capital Expenditure Reserve Account were to be applied pursuant tothe terms hereof had been completed and paid full prior to the Closing Date (the “Pre-ClosingPaid Capital Improvements”). The term “Capex True-Up Amount” means the lesser of (x)the out-of-pocket paid expenses attributable to the Pre-Closing Paid Capital Improvements (to theextent the evidence of such paid expenses is delivered to Lender inaccordance with the preceding sentence) and (y) the amount attributed to such Pre-Closing PaidImprovements in the Approved Annual Capital Expenditure Budget.
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          3.9. [Intentionally Omitted].          3.10. Demolition Reserve Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank an account for the purpose of reserving costs related to the Demolition (the“Demolition Reserve Account”).          (b) On the Closing Date, Borrower shall deposit into the Demolition Reserve Account, from theproceeds of the Loan, an amount equal to the Demolition Reserve Amount.          (c) Borrower shall cause the Demolition to be completed within 60 days of the date hereof.Upon the request of Borrower at any time that no Event of Default is continuing, Lender shall causedisbursements to Borrower from the Demolition Reserve Account to reimburse Borrower for reasonablecosts and expenses incurred in the performance of the Demolition, provided that     (i) Borrower shall deliver to Lender invoices evidencing that the costs for which suchdisbursements are requested are due and payable;     (ii) Borrower shall deliver to Lender an Officer’s Certificate confirming that all suchcosts have been previously paid by Borrower or will be paid from the proceeds of therequested disbursement; and     (iii) Lender may condition the making of a requested disbursement on (1) reasonableevidence establishing that Borrower has applied any amounts previously received by it inaccordance with this Section for the expenses to which specific draws made hereunder relate,(2) reasonably satisfactory site inspections and, (3) receipt of conditional lien releasesand waivers from any contractors, subcontractors and others with respect to such amounts ifsuch amounts exceed $500,000 (provided that, with respect to any amounts to be paid from therequested disbursement, Borrower shall deliver to Lender, on or prior to the followingPayment Date, lien releases and waivers in respect of such amounts if the costs thereofexceed $500,000).     (d) Upon completion of the Demolition, provided no Event of Default is then continuing,any amounts then remaining in the Demolition Reserve Account shall promptly be remitted toBorrower and the Demolition Reserve Account will no longer be maintained.          3.11. Cash Reserve Account. On or prior to the Closing Date, Borrower shall establishand thereafter maintain with the Cash Management Bank an account for the deposit of amountsrequired to be deposited therein in accordance with Sections 2.2(a)(ii), 2.2(a)(iv)and 2.4(ii) in connection with the release of a Property (the “Cash ReserveAccount”). Borrower shall have the right to direct the application of amounts on deposit inthe Cash Reserve Account to the extent provided in Section 2.2(a)(ii), 2.2(a)(iv),2.4(ii) .
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          3.12. Dividend Reserve Account.          (a) On or prior to the Closing Date, Borrower shall establish and thereafter maintain with theCash Management Bank an account for the purpose of reserving excess cash flow during the SponsorGuaranty Effectiveness Period (the “Dividend Reserve Account”).          (b) On each Payment Date during the Sponsor Guaranty Effectiveness Period, there shall bedeposited into the Dividend Reserve Account the amounts required to be deposited therein inaccordance with Section 3.2(b)(xv).          (c) During the Sponsor Guaranty Effectiveness Period, provided no Event of Default iscontinuing, Lender shall release to Borrower on any Payment Date, on not less than five BusinessDays’ prior written notice, any amount then contained in the Dividend Reserve Account forapplication toward (i) Operating Expenses, Capital Expenditures or other expense related to themaintenance or management of the Property (to the extent permitted hereunder) and/or (ii) providedno Mezzanine Loan Event of Default is continuing, ACEP Operating Expenses, in each case asevidenced by an Officer’s Certificate specifying such expenses (Borrower agreeing that, in theevent that amounts so remitted from the Dividend Reserve Account exceed the expenses for which theywere intended, such excess amounts shall be remitted by Borrower to the Cash Management Accountprior to the next succeeding Payment Date). In addition, provided no Event of Default iscontinuing, Borrower shall have the right to direct that any amount contained in the DividendReserve Account be applied to the prepayment of the Loan and each Mezzanine Loan, prorata in proportion to their respective initial principal amounts, subject to and inaccordance with Section 2.1.          (d) At Borrower’s request, provided that no Event of Default is then continuing, Lender shallrelease to the Cash Management Account all amounts then contained in the Dividend Reserve Accounton the first Payment Date after the termination of the Sponsor Guaranty Effectiveness Period,whereupon the Dividend Reserve Account will no longer be maintained.          3.13. Account Collateral.          (a) Borrower hereby grants a perfected first-priority security interest in favor of Lender inand to the Account Collateral as security for the Indebtedness, together with all rights of asecured party with respect thereto. Each Collateral Account shall be an Eligible Account under thesole dominion and control of Lender and shall be in the name of Borrower, as pledgor, and Lender,as pledgee. 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 Lender in its reasonable discretion mayrequire and shall provide all other evidence reasonably requested by Lender to evidence or perfectits first-priority security interest in the Account Collateral.          (b) The insufficiency of amounts contained in the Collateral Accounts shall not relieveBorrower from its obligation to fulfill all covenants contained in the Loan Documents.
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          (c) During the continuance of an Event of Default, Lender may, in its sole discretion, applyfunds in the Collateral Accounts, and funds resulting from the liquidation of Permitted Investmentsrelated 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 sequenceas Lender shall elect in its sole discretion (subject, however, as between the holders of theNotes, to any intercreditor agreement), and/or toward the payment of Taxes, Operating Expenses andCapital Expenditures.          3.14. Permitted Investments.          (a) Funds in the Collateral Account shall be invested at Lender’s discretion only in PermittedInvestments.          (b) All income and gains from the investment of funds in the Collateral Accounts other thanthe Tax and Insurance Reserve Account shall be retained in the Collateral Accounts (unless anduntil disbursed in accordance with the terms hereof) from which they were derived and shall belongto Borrower, subject to Lender’s Lien thereon. Unless otherwise required by applicable law, allincome and gains from the investment of funds in the Tax and Insurance Reserve Account shall be forthe account of Lender in consideration of its administration of such Collateral Account, and Lendershall have the right at any time 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 fromits obligation to fulfill all covenants contained in the Loan Documents. As between Borrower andLender, Borrower (or Lender with respect to the Tax and Insurance Reserve Account, to the extent ofany income actually received with respect thereto) shall treat all income, gains and losses fromthe investment of amounts in the Collateral Accounts as its income or loss for federal, state andlocal income tax purposes.          (c) After the Loan and all other Indebtedness have been paid in full, the Collateral Accountsshall be closed and the balances therein, if any, shall be paid to Borrower.          3.15. Bankruptcy. Borrower and Lender acknowledge and agree that upon the filing of abankruptcy petition by or against Borrower under the Bankruptcy Code, the Account Collateral andthe Revenues (whether then already in the Collateral Accounts, or then due or becoming duethereafter) shall be deemed not to be property of Borrower’s bankruptcy estate within the meaningof Section 541 of the Bankruptcy Code. If, however, a court of competent jurisdiction determinesthat, notwithstanding the foregoing characterization of the Account Collateral and the Revenues byBorrower and Lender, the Account Collateral and/or the Revenues do constitute property ofBorrower’s bankruptcy estate, then Borrower and Lender further acknowledge and agree that all suchRevenues, whether due and payable before or after the filing of the petition, are and shall be cashcollateral of Lender. Borrower acknowledges that Lender does not consent to Borrower’s use of suchcash 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 inthe immediately preceding sentence, Borrower shall not have the right to use or apply or requirethe use or application of such cash collateral (i) unless Borrower shall have
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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 thebankruptcy court in accordance with the Bankruptcy Code.          3.16 Guaranty Reserves. If a Mezzanine Lender acquires direct or indirect equityinterests in Borrower through foreclosure or a transfer in lieu of foreclosure, and if the SponsorGuaranty has not theretofore terminated in accordance with its terms, then Borrower shall cause theSponsor to promptly deposit into a new Eligible Account maintained with Lender, as additionalCollateral for the Loan, the maximum amount guaranteed by the Sponsor Guaranty at such time(i.e., as such amount may have been reduced pursuant to the terms of the Sponsor Guaranty),and if Borrower fails to do so, then same shall constitute an Event of Default hereunder.ARTICLE IVREPRESENTATIONS          Borrower represents to Lender that, as of the Closing Date, except as set forth in theException Report:          4.1. Organization.          (a) Each Co-Borrower is a limited partnership, duly organized, validly existing and in goodstanding under the laws of the State of Delaware, and is in good standing as a foreign partnershipcompany in each other jurisdiction where ownership of its properties or the conduct of its businessrequires it to be so, and Borrower has all power and authority under such laws and itsorganizational documents and all material governmental licenses, authorizations, consents andapprovals required to carry on its business as now conducted.          (b) The sole general partner of each Co-Borrower (as set forth in the signature page hereto),is a Single-Purpose Equityholder that is a limited liability company and is duly organized, validlyexisting and in good standing under the laws of the State of Delaware, and is in good standing as aforeign limited liability company in each other jurisdiction where ownership of its assets or theconduct of its business requires it to be so, and such general partner has all power and authorityunder such laws and its organizational documents and all material governmental licenses,authorizations, consents and approvals required to carry on its business as now conducted.          (c) Each Operating Lessee is a limited liability company, duly organized, validly existing andin good standing under the laws the State of Nevada, and is in good standing as a foreign limitedliability company in each other jurisdiction where ownership of its assets or the conduct of itsbusiness requires it to be so, and each Operating Lessee has all power and authority under suchlaws and its organizational documents and all material governmental licenses, authorizations,consents and approvals required to carry on its business as now conducted.
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          (d) Borrower does not have any subsidiaries nor does it own any equity interest in any otherPerson. Borrower’s Single-Purpose Equityholder has no subsidiaries and does not own any equityinterest in any other Person (other than Borrower).          (e) The organizational chart contained in Schedule G is true and correct as of thedate hereof.          4.2. Authorization. Borrower has the power and authority to enter into this Agreementand the other Loan Documents, to perform its obligations hereunder and thereunder and to consummatethe transactions contemplated by the Loan Documents and has by proper action duly authorized theexecution and delivery by Borrower of the Loan Documents.          4.3. No Conflicts. Neither the execution and delivery of the Loan Documents, nor theconsummation of the transactions contemplated therein, nor performance of and compliance with theterms and provisions thereof will (i) violate or conflict with any provision of its limitedpartnership agreement, certificate of limited partnership or other governance document, (ii)violate any law, regulation (including Regulation U, Regulation X, Regulation T or any GamingLaws), order, writ, judgment, injunction, decree or permit presently in effect and applicable toit, (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 orSponsor is a party or by which Borrower or Sponsor may be bound, or (iv) result in or require thecreation of any Lien or other charge or encumbrance upon or with respect to the Collateral in favorof any party other than Lender and other than a Permitted Encumbrance.          4.4. Consents. No consent, approval, authorization or order of, or qualificationwith, any court or Governmental Authority or any parties to an REA other than Borrower, is requiredin connection with the execution, delivery or performance by Borrower of this Agreement or theother Loan Documents, except for any of the foregoing which have already been obtained and exceptas provided in Regulation 8.130 of the Regulations of the Nevada Gaming Commission and State GamingControl Board with respect to renewals, changes or modifications to the Loan Documents subsequentto the Closing Date.          4.5. Enforceable Obligations. As of the Closing Date, this Agreement and the otherLoan 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 tobankruptcy, insolvency and similar laws of general applicability relating to or affectingcreditors’ rights and to general equity principles. As of the Closing Date, the Loan Documents arenot subject to any right of rescission, set-off, counterclaim or defense by Borrower, including thedefense of usury.          4.6. No Default. As of the Closing Date, no Default or Event of Default exists.
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          4.7. Payment of Taxes. Each of Borrower and each Operating Lessee has filed (or haveobtained extensions for filing), or has caused to be filed, all tax returns (federal, state, localand 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 paidall other taxes, fees, assessments and other governmental charges (including mortgage recordingtaxes, documentary stamp taxes and intangible taxes) owing by it necessary to preserve the Liens infavor of Lender.          4.8. Compliance with Law. Except as set forth in the Engineering Report, Borrower,each Operating Lessee, the Properties and the use thereof comply in all material respects with allapplicable Insurance Requirements and Legal Requirements, including building and zoning ordinancesand codes, except to the extent that non-compliance therewith would not reasonably be likely tohave a Material Adverse Effect. To the extent reasonably necessary to avoid a Material AdverseEffect, each of the Properties conforms to current zoning requirements (including requirementsrelating to parking) and is neither an illegal nor a legal nonconforming use. Except as set forthin the Engineering Report, neither Borrower nor any Operating Lessee is in default or in violationof any order, writ, injunction, decree or demand of any Governmental Authority the default orviolation of which could adversely affect the Properties or the condition (financial or otherwise)or business of Borrower or such Operating Lessee, which default or violation is reasonably likelyto have a Material Adverse Effect or a Portfolio Material Adverse Effect. There has not beencommitted by or on behalf of Borrower or, to the best of Borrower’s knowledge, any other person inoccupancy of or involved with the operation or use of the Properties, any act or omission affordingany federal Governmental Authority or any state or local Governmental Authority the right offorfeiture as against the Properties or any portion thereof or any monies paid in performance ofits obligations under any of the Loan Documents. To Borrower’s knowledge, Borrower has notpurchased any portion of the Properties with proceeds of any illegal activity.          4.9. ERISA. Neither Borrower nor any ERISA Affiliate of Borrower has incurred orcould be subjected to any liability under Title IV or Section 302 of ERISA or Section 412 of theCode or maintains or contributes to, or is or has been required to maintain or contribute to, anyemployee benefit plan (as defined in Section 3(3) of ERISA) subject to Title IV or Section 302 ofERISA or Section 412 of the Code. The consummation of the transactions contemplated by thisAgreement will not constitute or result in any non-exempt prohibited transaction by Borrower or anyof its subsidiaries or Lender under Section 406 of ERISA, Section 4975 of the Code or substantiallysimilar 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 thePublic Utility Holding Company Act of 1935, as amended.
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          4.11. No Bankruptcy Filing. Neither Borrower nor any Operating Lessee iscontemplating either the filing of a petition by it under any state or federal bankruptcy orinsolvency laws or the liquidation of all or a major portion of its assets or property. NeitherBorrower nor any Operating Lessee has knowledge of any Person contemplating the filing of any suchpetition against it.          4.12. Other Debt. Neither Borrower nor any Operating Lessee has outstanding any Debtother than Permitted Debt.          4.13. Litigation. To the extent disclosed to Borrower or any of its Affiliates by thesellers of the Property under the Acquisition Documents or any diligence materials provided toBorrower by such sellers, and otherwise to Borrower’s actual knowledge, there are no actions,suits, proceedings, arbitrations or governmental investigations by or before any GovernmentalAuthority or other agency now pending, and to the best of Borrower’s knowledge there are no suchactions, suits, proceedings, arbitrations or governmental investigations threatened against oraffecting Borrower, any Operating Lessee or the Properties, in each case, except as listed in theException Report (and there are no actions, suits, proceedings, arbitrations or governmentalinvestigations by or before any Governmental Authority or other agency now pending, and to the bestof Borrower’s knowledge there are no such actions, suits, proceedings, arbitrations or governmentalinvestigations threatened against or affecting Borrower, any Operating Lessee or the Properties, ineach case, whether or not listed in the Exception Report, which alone or in the aggregate, ifdetermined against Borrower, such Operating Lessee or the Properties, is likely to result in aMaterial Adverse Effect or a Portfolio Material Adverse Effect).          4.14. Major Leases; Material Agreements.          (a) To the extent disclosed to Borrower or any of its Affiliates by the sellers of theProperty under the Acquisition Documents or any diligence materials provided to Borrower by suchsellers, and otherwise to Borrower’s actual knowledge (except as set forth in the ExceptionReport), there are no Major Leases as of the date hereof other than the Operating Leases. Exceptas set forth in the Exception Report, (i) no Person has any possessory interest in the Propertiesor right to occupy the same except under and pursuant to the provisions of the Leases or anysublease or any other occupancy agreement granted by a Tenant under a Lease, (ii) no securitydeposits are being held by Borrower or any Operating Lessee, (iii) no Tenant or other party has anyoption, right of first refusal or similar preferential right to purchase or lease all or anyportion of the Properties, (iv) no fixed rent has been paid more than 30 days in advance of its duedate 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 noLeases the existence or termination of which is reasonably likely to have a Material AdverseEffect.          (b) To the extent disclosed to Borrower or any of its Affiliates by the sellers of theProperty under the Acquisition Documents or any diligence materials provided to Borrower by suchsellers, and otherwise to Borrower’s actual knowledge, and except as indicated in ScheduleF, all work to be performed by the landlord under the Major Leases has been
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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 theright to require Borrower or any Operating Lessee to perform or finance Tenant Improvements orMaterial Alterations and no Leasing Commissions are owed or would be owed upon the exercise of anysuch Tenant’s existing renewal or expansion options.          (c) To the extent disclosed to Borrower or any of its Affiliates by the sellers of theProperty under the Acquisition Documents or any diligence materials provided toBorrower by such sellers, and otherwise to Borrower’s actual knowledge,(i) there are noMaterial Agreements except as described in Schedule D, (ii) Borrower has made available toLender true and complete copies of all Material Agreements and (iii) each Material Agreement hasbeen entered into at arm’s length in the ordinary course of business by or on behalf of Borrower oran Operating Lessee.          (d) To Borrower’s knowledge, the Major Leases and the Material Agreements are in full forceand effect and there are no material defaults thereunder by Borrower, any Operating Lessee or, toBorrower’s best knowledge, any other party thereto. Neither Borrower nor any Operating Lessee isin default in any material respect in the performance, observance or fulfillment of any of theobligations, covenants or conditions contained in any Permitted Encumbrance or any other materialagreement 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 Operating Lessees and not financings.          4.15. Full and Accurate Disclosure. To Borrower’s knowledge, no statement of factheretofore delivered by Borrower, any Operating Lessee or their respective affiliates to Lender inwriting in respect of the Properties, Borrower or any Operating Lessee, when considered together,contains any untrue statement of a material fact or omits to state any material fact necessary tomake statements contained therein not misleading unless subsequently corrected. There is no factpresently actually known to Borrower or any Operating Lessee which has not been disclosed to Lenderwhich is reasonably likely to result in a Portfolio Material Adverse Effect.          4.16. Financial Condition. All financial data concerning Borrower, the OperatingLessees and the Properties heretofore provided to Lender, taken as a whole, fairly presents inaccordance with GAAP the financial position of Borrower and the Operating Lessees in all materialrespects, as of the date on which it was made, and does not omit to state any material factnecessary to make statements contained herein or therein not misleading. Since the delivery ofsuch data, except as otherwise disclosed in writing to Lender, there have occurred no changes orcircumstances presently known to Borrower or any Operating Lessee and relating to Borrower, anyOperating Lessee or the Property which have had or are reasonably likely to result in a PortfolioMaterial Adverse Effect.          4.17. Single-Purpose Requirements. Each of Borrower and its Single-PurposeEquityholder is now, and
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has always been since its formation, a Single-Purpose Entity. OperatingLessee is now a Single-Purpose Entity.          4.18. Location of Chief Executive Offices. The location of Borrower’s principal placeof 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 ofSection 1445(f)(3) of the Code.          4.20. Labor Matters. Except as set forth in the Exception Report, neither Borrowernor any Operating Lessee is a party to any collective bargaining agreements.          4.21. Title. Borrower owns good, marketable and insurable title in fee or leaseholdtitle, as applicable, to the Properties and owns good and marketable title to the related personalproperty (to the extent not owned by an Operating Lessee, the tenants, guests or employees at theProperties), to the Collateral Accounts and to any other Collateral, in each case free and clear ofall Liens whatsoever except the Permitted Encumbrances. The Mortgage, when properly recorded inthe appropriate records, together with any Uniform Commercial Code financing statements required tobe filed in connection therewith, will create (i) valid, perfected first priority Liens on theProperties and/or Borrower’s leasehold interest in the Properties, as applicable, and the rentstherefrom, enforceable as such against creditors of and purchasers from Borrower and subject onlyto Permitted Encumbrances, and (ii) perfected Liens (pursuant to the Uniform Commercial Code of theState of Delaware) in and to all Collateral that is personalty owned by Borrower, all in accordancewith the terms thereof, in each case subject only to any applicable Permitted Encumbrances. ToBorrower’s knowledge, the Permitted Encumbrances do not and will not affect or interfere with thevalue, or current use or operation, of the Properties, or the security intended to be provided bythe Mortgage or Borrower’s ability to repay the Indebtedness in accordance with the terms of theLoan 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 forwork, labor or materials affecting the Properties which are or may become a Lien prior to, or ofequal priority with, the Liens created by the Loan Documents. No creditor of Borrower other thanLender 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 theimprovements on the Properties that were included in determining the appraised value of theProperties lie wholly within the boundaries and building restriction lines of the Properties, andno improvements on adjoining property encroach upon the Properties, and no easements or otherencumbrances upon the Properties encroach upon any of the improvements, so as, in either case, tohave a Material Adverse Effect except those which are indicated on a Qualified Title InsurancePolicy.
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          4.23. Physical Condition.          (a) To Borrower’s knowledge, except for items set forth on Schedule F and in theEngineering Reports, the Properties (including sidewalks, storm drainage system, roof, plumbingsystem, HVAC system, fire protection system, electrical system, equipment, elevators, exteriorsidings and doors, irrigation system and all structural components) are in good condition, orderand repair in all respects material to its use, operation or value.          (b) Borrower is not aware of any material structural defect or damages in the Properties,whether latent or otherwise, except for items set forth on Schedule F and in theEngineering Reports.          (c) Borrower has not received and is not aware of any other party’s receipt of notice from anyinsurance 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 orcause the imposition of extraordinary premiums or charges thereon or of any termination orthreatened termination of any policy of insurance or bond.          (d) Except as set forth in the Exception Report, each Property has available to it adequateparking to permit the operation of such Property as currently operated and in compliance with thestandards set forth in the applicable Approved Management Agreement, in each case, in all materialrespects.          (e) All of the rooms at each Property are in service in all material respects, except forrooms that are temporarily out of service for remodeling in the ordinary course of business orroutine maintenance and repair.          4.24. Fraudulent Conveyance. Borrower has not entered into the Transaction or any ofthe Loan Documents with the actual intent to hinder, delay or defraud any creditor. Borrower hasreceived 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 useand disbursement of the proceeds thereof will not, constitute unreasonably small capital to carryout its business as conducted or as proposed to be conducted. Borrower does not intend to, anddoes not believe that it will, incur debts and liabilities (including Contingent Obligations andother commitments) beyond its ability to pay such debts as they mature (taking into account thetiming and amounts reasonably expected to be payable on or in respect of obligations of Borrower).          4.25. Management. Except for any Approved Management Agreement, neither Borrower norany Operating Lessee is a party to any property management agreement that is in effect with respectto the Properties. Except as set forth in the Exception Report, no party to any ApprovedManagement Agreement (other than Borrower or an Operating Lessee) has any possessory interest in,or right to occupy, or any option, right of first refusal or similar preferential right to purchaseor 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
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to all or any material portion of the Properties or for the relocationof roadways providing access to the Properties.          4.27. Utilities and Public Access. The following statements are accurate in allmaterial respects:     (i) The Properties have adequate rights of access to dedicated public ways (and makesno material use of any means of access or egress that is not pursuant to such dedicatedpublic ways or recorded, irrevocable rights-of-way or easements) and is adequately served byall public utilities necessary to the continued use and enjoyment of the Properties aspresently used and enjoyed.     (ii) All such utilities are located in the public rights-of-way abutting the premisesor in areas (“Easement Areas”) that are the subject of recorded irrevocable easementagreements which benefit the Properties and which are listed in Schedule A of the applicableQualified 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 passingover other property other than Easement Areas.     (iv) All roads necessary for the full utilization of each of the Properties for theircurrent purposes have been completed and are either part of the relevant Properties (by wayof deed, easement or ground lease) or dedicated to public use and accepted by allGovernmental Authorities.          4.28. Environmental Matters. Except as disclosed in the Environmental Reports:     (i) The Properties are in compliance in all material respects with all EnvironmentalLaws applicable to the Properties (which compliance includes, but is not limited to, thepossession of, and compliance with, all environmental, health and safety permits, approvals,licenses, registrations and other governmental authorizations required in connection withthe ownership and operation of the Properties under all Environmental Laws).     (ii) No Environmental Claim is pending with respect to any of the Properties, nor, toBorrower’s knowledge, is any threatened, nor are there any consent decrees or other decrees,consent orders, administrative orders or other orders, or similar administrative enforcementor judicial requirements outstanding under any Environmental Law with respect to Borrower orthe Properties.     (iii) Without limiting the generality of the foregoing, other than in compliance withapplicable Environmental Laws there is not present at, on, in or under any Property, anyHazardous Substances, PCB-containing equipment, asbestos or asbestos containing materials,underground storage tanks or surface impoundments for any Hazardous Substance, lead indrinking water (except in concentrations that comply with all Environmental Laws), orlead-based paint.
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     (iv) To Borrower’s knowledge, there have not been and are no past, present orthreatened Releases of any Hazardous Substance from or at any of the Properties that arereasonably likely to form the basis of any Environmental Claim, and, to Borrower’sknowledge, there is no threat of any Release of any Hazardous Substance migrating to any ofthe Properties that could reasonably be expected to result in liability to Borrower or anyOperating Lessee or otherwise have a Material Adverse Effect.     (v) No Liens are presently recorded with the appropriate land records under or pursuantto any Environmental Law with respect to any of the Properties and, to Borrower’s bestknowledge, no Governmental Authority has been taking any action to subject any of theProperties to Liens under any Environmental Law.     (vi) There have been no material environmental investigations, studies, audits, reviewsor other analyses conducted by or that are in the possession of Borrower or any OperatingLessee 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 specialor other assessments for public improvements or otherwise affecting any of the Properties, nor, toBorrower’s knowledge, are there any contemplated improvements to any ofthe Properties that may result in such special or other assessments. No extension of time forassessment or payment by Borrower of any federal, state or local tax is in effect. All amountsowed to date by Borrower as owner of the Properties in the nature of common area maintenanceexpenses, parking fees, common association dues, assessments and similar charges have been paid infull.          4.30. No Joint Assessment. Borrower has not suffered, permitted or initiated thejoint assessment of the Properties (i) with any other real property constituting a separate taxlot, or (ii) with any personal property, or any other procedure whereby the Lien of any Taxes whichmay be levied against such other real property or personal property shall be assessed or levied orcharged to the Properties as a single Lien.          4.31. Separate Lots. No portion of any of the Properties is part of a tax lot thatalso includes any real property that is not Collateral.          4.32. Permits; Certificate of Occupancy.     (i) Each of Borrower, each Operating Lessee and/or each Approved Property Manager hasobtained all Permits necessary for the present and contemplated use and operation of theProperties except for Permits the absence of which would not reasonably be likely to have aMaterial Adverse Effect. The uses being made of the Properties are in conformity in allmaterial respects with the certificate of occupancy and/or Permits for such Properties.
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     (ii) Schedule C sets forth the owner of the Liquor Licenses required for theprovision of alcoholic beverages at each of the Properties.          4.33. Flood Zone. Except as shown in a Qualified Survey, none of the Improvements onthe Properties are located in areas identified by the Federal Emergency Management Agency or theFederal 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 theProperties are located in such an area, the applicable Properties are covered by flood insurancemeeting the requirements set forth in Section 5.15(a)(ii).          4.34. Security Deposits. To Borrower’s knowledge, Borrower and each Operating Lesseeare in compliance in all material respects with all Legal Requirements relating to securitydeposits.          4.35. Acquisition Documents. Borrower has delivered to Lender true and completecopies of all material agreements and instruments, including, without limitation, the AcquisitionDocuments, under which Borrower or any of its Affiliates or the seller of any of the Propertieshave remaining rights or obligations in respect of Borrower’s or Borrower’s Affiliates’ acquisitionof the Properties.          4.36. Insurance. Borrower or an Operating Lessee, as applicable, has obtained orcaused to be obtained insurance policies reflecting the insurance coverages, amounts and otherrequirements set forth in this Agreement. All premiums on such insurance policies required to bepaid as of the Closing Date have been paid for the current policy period. To Borrower’sknowledge, no Person, including Borrower and any Operating Lessee, has done, by act oromission, 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 forthe Properties, and the holder thereof, and each is in full force and effect and has not beenamended or otherwise modified, rescinded, revoked or assigned.          (b) Borrower, each Casino Operating Lessee and each of their respective Affiliates are incompliance in all material respects with all such Gaming Licenses to the extent the same isapplicable thereto.          (c) No event (including, without limitation, any violation of any Gaming Law) has occurredwhich would be reasonably likely to lead to the revocation or termination of any such GamingLicense or the imposition of any material restriction thereon.          (d) Borrower has no reason to believe that any of the Casino Operating Lessees will not beable to maintain in effect all Gaming Licenses necessary for the lawful conduct of its business oroperations wherever now conducted and as planned to be conducted, including the operation of theCasino Components, pursuant to all applicable Legal Requirements.
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          (e) Each Casino Operating Lessee possesses all Gaming Licenses which are material to theconduct of its business and the use, occupation and operation of the Property.          (f) Each Casino Operating Lessee and each of its Affiliates, their respective directors,members, managers, officers, key personnel and all Persons holding a five percent (5%) or greaterequity or economic interest directly or indirectly in each Casino Operating Lessee is in compliancein all material respects with all such Gaming Licenses.          (h) Neither the execution, delivery or performance of any of the Loan Documents (nor theSecuritization or any participations in the Loan, or the creation or sale of any of the MezzanineLoans) will, except as provided in Regulation 8.130 of the Regulations of the Nevada GamingCommission and State Gaming Control Board with respect to renewals, changes or modifications to theLoan Documents subsequent to the Closing Date: (i) require the consent of any Gaming Authority notheretofore obtained or (ii) allow or result in the imposition of any material penalty under, or therevocation or termination of, any Gaming License or any material impairment of the rights of theholder of any Gaming License.          4.38 Trade Name; Other Intellectual Property. Each of Borrower and each OperatingLessee owns or licenses (as the case may be) all such patents, patent rights, trademarks, trademarkrights, trade names, trade name rights, service marks, service mark rights, domain names,copyrights, trade secrets and other proprietary information, including customer data (collectively,the “Intellectual Property”), as Borrower and Operating Lessees consider necessary for theconduct of their respective businesses as now conducted (including such registered trademarks,service marks, domain names, patents and copyrights, and applications therefore, owned by Borrowerand each Operating Lessee described on Schedule M), withoutindividually or in the aggregate, infringement upon intellectual property rights of otherPersons, 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) impairBorrower’s and each Operating Lessee’s ability to pay their respective obligations (under the LoanDocuments or the Operating Leases) in a timely manner. With respect to the Intellectual Propertyowned by Borrower, Operating Lessee or their Affiliates, as among such parties, Borrower owns allIntellectual Property necessary for the business of Borrower or the Operating Lessee, except forsuch Intellectual Property that may be owned by Operating Lessee or an Affiliate and is subject tolegal or contractual restrictions that restrict its assignment to Borrower (or, in the case ofIntellectual Property such as intent-to-use trademark applications, would be materially impaired bysuch assignment) in which case, subject to legal or contractual restrictions that restrict itslicensing to Borrower, Borrower has a license to such Intellectual Property which license ispledged to Lender pursuant to the Mortgage.          4.39 Embargoed Person. (a) None of the funds or other assets of any of Borrower, anySingle-Purpose Equityholder or Sponsor constitute property of, or are beneficially owned, directlyor 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. §§ 1701et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. , and anyexecutive orders or regulations promulgated thereunder, with the result that (i) the investment inany of Borrower, any Single-Purpose
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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) theinvestment in any of Borrower, any Single-Purpose Equityholder or Sponsor, as applicable (whetherdirectly 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, asapplicable, have been derived from any unlawful activity with the result that (i) theinvestment 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, isin material default under any REA. Borrower has obtained all necessary approvals and consents fromall other parties to each REA to the extent such approval or consent is necessary to encumber theProperties.          4.41 Survival. Borrower agrees that all of the representations of Borrower set forthin this Agreement and in the other Loan Documents shall survive for so long as any portion of theIndebtedness is outstanding. All representations, covenants and agreements made by Borrower inthis Agreement or in the other Loan Documents shall be deemed to have been relied upon by Lendernotwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.          4.42 Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money LaunderingLaws. Borrower, and to the best of Borrower’s knowledge after due inquiry, (a) each Personowning an interest in any of Borrower, any Single-Purpose Equityholder or Sponsor, (b) eachSingle-Purpose Equityholder, if any, and (c) Sponsor (i) is not currently identified on the OFACList and (ii) is not a Person with whom a citizen of the United States is prohibited to engage intransactions by any trade embargo, economic sanction, or other prohibition of any LegalRequirement.ARTICLE VAFFIRMATIVE COVENANTS          5.1. Existence. Borrower, Operating Lessee and, if applicable, its Single-PurposeEquityholder shall do or cause to be done all things necessary to preserve, renew and keep in fullforce and effect its existence and all rights, licenses, Permits, franchises and other agreementsnecessary for the continued use and operation of its business. Borrower, each Operating Lesseeand, if applicable, each Single-Purpose Equityholder shall deliver to Lender a copy of eachamendment or other modification to any of its organizational documents promptly after the executionthereof.
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          5.2. Maintenance of Properties.          (a) Borrower will keep the Properties in good working order and repair, reasonable wear andtear excepted. Subject to Section 6.13, Borrower shall from time to time make, or cause tobe made, all reasonably necessary repairs, renewals, replacements, betterments and improvements tosuch properties.          (b) Borrower shall diligently perform to completion all work as and to the extent requiredunder any “Property Improvement Plans,” “Restoration Scope” plans, or similar capital improvementor expenditure obligations provided for in any Approved Management Agreement and any other capitalimprovement or expenditure obligation which Borrower is obligated to perform or undertake,including any such obligations assumed by Borrower pursuant to the Acquisition Documents (as anysuch 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, repairedand improved in compliance with, all Legal Requirements (including Gaming Laws), InsuranceRequirements and all material contractual obligations by which Borrower is legally bound.Notwithstanding the foregoing, but without limiting the requirements of any other provision of thisAgreement permitting such proceedings (including clauses (iv) and (vi) of thedefinition of “Permitted Encumbrances”) Borrower may contest by appropriate legal proceedings,initiated and conducted in good faith and with reasonable diligence, the validity, amount orapplication of any Legal Requirement, provided that and so long as: (i) such proceeding shall bepermitted under and be conducted in accordance with the applicable provisions of any otherinstrument governing the contest of such Legal Requirements to which Borrower or any such Propertyis subject and shall not constitute a default thereunder; (ii) no part of or interest in anyProperty (or Borrower’s interest therein) will be reasonably expected to be in danger of beingsold, forfeited, terminated, canceled or lost during the pendency of the proceeding; (iii) suchproceeding shall not reasonably be expected to subject Borrower or the Lender to criminalliability; (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 PortfolioMaterial 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 timewhen 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 definitionof Permitted Encumbrances; provided, however, that Borrower’s obligation to directly pay taxesshall be suspended for so long as Borrower complies with the terms and provisions of Section3.4 of this Agreement. Borrower shall file all federal, state and local tax returns and otherreports that it is required by law to file. If any law or regulation applicable to Lender, anyNote, the Properties or the Mortgage is enacted that deducts from the value of property for thepurpose of taxation any Lien thereon, or imposes upon Lender the payment of the whole or anyportion of the taxes or
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assessments or charges or Liens required by this Agreement to be paid byBorrower, or changes in any way the laws or regulations relating to the taxation of mortgages orsecurity agreements or debts secured by mortgages or security agreements or the interest of themortgagee or secured party in the property covered thereby, or the manner of collection ofsuch taxes, so as to affect the Mortgage, the Indebtedness or Lender, then Borrower, upon demand byLender, shall pay such taxes, assessments, charges or Liens, or reimburse Lender for any amountspaid by Lender.          5.5. Access to Properties. Borrower shall permit agents, representatives andemployees of Lender and the Servicer (at Lender’s sole cost and expense unless an Event of Defaultshall have occurred and is then continuing), who shall be accompanied by a representative ofBorrower, to inspect the Properties or any portion thereof, and/or the books and records ofBorrower, at such reasonable times on Business Days as may be requested by Lender upon reasonableadvance notice, subject to the terms of the Leases, and provided such entry and inspection shallnot unreasonably interfere with the usual operation and conduct of business at the Properties orthe 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 Borroweragainst Lender and any claim brought by Lender against Borrower, Borrower shall cooperate fullywith Lender with respect to any proceedings before any Governmental Authority which may in any wayaffect the rights of Lender hereunder or under any of the Loan Documents and, in connectiontherewith, Lender may, at its election and expense, participate or designate a representative toparticipate in any such proceedings.          5.7. Leases.          (a) Borrower shall furnish Lender with executed copies of all Major Leases, together with adetailed breakdown of income and cost associated therewith. All Leases executed after the datehereof and renewals or amendments of Leases after the date hereof must be entered into on anarms-length basis with Tenants whose identity and creditworthiness is appropriate for tenancy in aproperty of comparable quality and nature to the applicable Property, must provide for rental ratesand other economic terms which, taken as a whole, are at least equivalent to then-existing marketrates, based on the applicable market, and must contain terms and conditions that are commerciallyreasonable (in each case, unless Lender consents to such Lease in its sole discretion, unless withrespect to any renewal or amendment, Borrower is obligated to execute and deliver the same pursuantto a Lease in effect as of the date hereof or entered into subsequent to the date hereof and inaccordance with the terms hereof). All new Leases must provide that they are subject andsubordinate to any current or future mortgage financing on the Properties and that the Tenantsagree to attorn to any foreclosing mortgagee at such mortgagee’s request. Upon Borrower’s request,Lender shall reasonably promptly (but in no event later than 10 Business Days following Borrower’srequest therefor) execute and deliver a Subordination, Non-Disturbance and Attornment Agreement tothe Tenant of any future Lease, in substantially the form attached hereto as Exhibit C andwith such changes as may be reasonably requested by Tenant from time to time.
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          (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 asrequired pursuant to any Major Lease) and material amendments of Major Leases (other than asrequired pursuant to any Major Lease), and any surrender of landlord’s materialrights under any Major Lease, shall be subject to the prior written consent of Lender, whichconsent, 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 Lender in anenvelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with acopy of the proposed Lease, a summary of the material economic terms thereof and any terminationand other material options contained therein, and copies of all written materials obtained byBorrower in connection with its evaluation of the creditworthiness of the proposed Tenant or, withrespect to a proposed termination, a description of the reason therefor, shall be deemed approvedif Lender shall not have notified the Borrower in writing of its disapproval within 10 BusinessDays after receipt of such submission. Notwithstanding the foregoing, the deemed approvalprovision of the immediately preceding sentence shall not apply to any Operating Lease or anyamendment thereof.          (c) Borrower shall (i) observe and perform in a commercially reasonable manner all thematerial obligations imposed upon the lessor under the Leases; (ii) enforce in a commerciallyreasonable manner all of the material terms, covenants and conditions contained in the Leases onthe part of the lessee thereunder to be observed or performed, short of termination thereof, exceptthat Borrower may terminate any Lease following a material default thereunder by the respectiveTenant or, in the case of Leases which are not Material Leases, if such termination would not havea Material Adverse Effect; (iii) not collect any of the rents thereunder more than one month inadvance of its due date (other than security deposits held in accordance with the terms of thisAgreement); (iv) not execute any assignment of lessor’s interest in the Leases or associated rentsother than the assignments of rents and leases under the Mortgage; and (v) not cancel or terminateany guarantee of any of the Major Leases without the prior written consent of Lender, whichconsent, in the absence of a continuing Event of Default, shall not be unreasonably withheld,delayed or conditioned. Any request for Lender’s consent pursuant to this Section5.7(c)(v) shall be submitted to Lender in an envelope marked “URGENT – LENDER’S ATTENTIONREQUIRED WITHIN 10 BUSINESS DAYS”, together with a detailed description of the request for whichLender’s consent is sought and any documentation needed for Lender to evaluate such request, andshall be deemed approved if Lender shall not have notified Borrower in writing of its disapprovalthereof and the reasons for such disapproval within five Business Days after Borrower shall havegiven Lender written notice confirming that at least ten Business Days have elapsed since suchsubmission, which written notice shall be submitted to Lender 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 byBorrower at such commercial or savings bank or banks as may be reasonably satisfactory to Lenderand Borrower’s rights thereto pledged to Lender. Any bond or other instrument which Borrower ispermitted to hold in lieu of cash security deposits under any applicable Legal Requirements shallbe maintained in full force and effect unless replaced by cash deposits as described above, shallbe issued by an institution reasonably satisfactory to
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Lender, shall (if not prohibited by anyLegal Requirements) name Lender as payee or mortgagee thereunder (or be fully assignable to Lender)or may name Borrower as payee thereunder so long as such bond or other instrument is pledged toLender as security for the Indebtedness and shall, in all respects, comply with any applicableLegal Requirements and otherwise be reasonablysatisfactory to Lender. Borrower shall, upon Lender’s request, provide Lender with evidencereasonably satisfactory to Lender of Borrower’s compliance with the foregoing. During thecontinuance of any Event of Default, Borrower shall, upon Lender’s request, deposit with Lender ina segregated Eligible Account pledged to Lender an amount equal to the aggregate security depositsof the Tenants (and any interest theretofore earned on such security deposits and actually receivedby Borrower) which Borrower had not returned to the applicable Tenants or applied in accordancewith the terms of the applicable Lease, and Lender shall hold such security deposits in asegregated account in accordance with the applicable Lease.          5.8. Plan Assets, etc. Borrower will do, or cause to be done, all things necessary toensure 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, fromtime to time as reasonably requested by Lender, execute, acknowledge, record, register, file and/ordeliver to Lender such other instruments, agreements, certificates and documents (including UniformCommercial Code financing statements and amended or replacement mortgages) as Lender may reasonablyrequest to evidence, confirm, perfect and maintain the Liens securing or intended to secure theobligations of Borrower under the Loan Documents or to facilitate a replacement of the CashManagement Bank pursuant to Section 3.1(c) or a bifurcation of the Note pursuant to, andsubject to any conditions, terms and limitations specified in, Sections 1.3(c) and/or9.7(a) (including, without limitation, the party bearing the cost thereof), in each case ifreasonably requested by Lender, 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 thisAgreement and the other Loan Documents as Lender shall reasonably request from time to time.          5.10. Management of Collateral.          (a) The Property shall at all times be either self-managed or managed by an Approved PropertyManager pursuant to an Approved Management Agreement. Pursuant to a Subordination of PropertyManagement Agreement, each Approved Property Manager shall agree that its Approved ManagementAgreement, and all fees (including any incentive fees and base fees) thereunder, are subject andsubordinate to the Indebtedness and that no fees payable thereunder shall accrue as between suchApproved Property Manager and Lender as a result of Borrower’s failure to pay any amounts (withoutin any way implying any obligation on the part of Lender to pay any fees payable by Borrower to anyApproved Property Manager); provided that in the case of any Approved Property Manager thatis not an Affiliate of Borrower, base fees shall be subordinate to the Loan only if and to theextent such base fees exceed 2% of gross revenues per annum (i.e., only the portion of the base feethat exceeds 2% of gross revenues shall be subordinate). Borrower may from time to time appointone or more new or successor managers with respect to any one or more Properties, which new orsuccessor managers shall be
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Approved Property Managers, to manage Properties pursuant to one ormore Approved Management Agreements, and such successor managers shall execute for Lender’s benefitSubordinations of Property Management Agreement in form and substance reasonably satisfactory toLender. Borrower may from time to time enter into, modify or replace an Approved ManagementAgreement, but any entering, material modification or replacement of any such Approved ManagementAgreement shall be subject to Lender’s prior written consent(which consent shall not, in the absence of a continuing Event of Default, be unreasonablywithheld, delayed or conditioned).          (b) Borrower shall cause each Approved Property Manager (including any successor ApprovedProperty Manager) to maintain at all times worker’s compensation insurance as required byGovernmental Authorities.          (c) Borrower shall notify Lender in writing of any material default of Borrower or an ApprovedProperty Manager under any of the Approved Management Agreements, after the expiration of anyapplicable cure periods, of which Borrower has actual knowledge. Lender shall have the right,after reasonable notice to Borrower and in accordance with the applicable Subordination ofManagement Agreement, to cure defaults of Borrower under such Approved Management Agreement. Anyreasonable out-of-pocket expenses incurred by Lender to cure any such default in accordance withsuch Subordination of Management Agreement shall constitute a part of the Indebtedness and shall bedue from Borrower upon demand by Lender. Notwithstanding anything to the contrary, in the case ofa material default by Borrower under any Approved Management Agreement relating to a failure toprovide 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 theapplicable Approved Property Manager and in any event by no later than 5 Business Days prior to theexpiration of any applicable cure periods provided under the applicable Approved ManagementAgreement.          (d) Upon the occurrence and during the continuance of an Event of Default, Lender may, in itssole 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 Lender to serve asreplacement Approved Property Managers pursuant to Approved Management Agreements, subject,however, to the acquisition by such Approved Property Manager(s) of all necessary Gaming Licensesto the extent required under applicable law.          (e) Upon the filing of a bankruptcy petition or the occurrence of a similar event with respectto an Approved Property Manager, or upon the occurrence and during the continuance of a materialdefault by an Approved Property Manager under an Approved Management Agreement such that theApproved 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 requiredunder applicable law,     (i) if the applicable Approved Property Manager is an Affiliate of Borrower, Lendermay, in its sole discretion, require Borrower to terminate the applicable ApprovedManagement Agreement and cause Borrower to engage one or more replacement Approved PropertyManagers pursuant to Approved Management Agreements; and
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     (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, withoutLender’s consent, to terminate the applicable Approved Property Manager and to engage areplacement Approved Property Manager pursuant to an Approved Management Agreement.          5.11. Certain Notices and Reports.          (a) Borrower shall give Lender prompt notice (containing reasonable detail) of (i) anyMaterial Adverse Effect or any Portfolio Material Adverse Effect, in either case, as reasonablydetermined by Borrower, including the termination or cancellation of terrorism or other insurancerequired by this Agreement, (ii) the termination of any Major Lease or material license, includingany Gaming License, (iii) any Mezzanine Loan Event of Default, and (iv) any litigation orgovernmental proceedings pending or threatened in writing against Borrower which is reasonablylikely to have a Material Adverse Effect or a Portfolio Material Adverse Effect.          (b) Borrower shall deliver to Lender copies of the periodic reports delivered to Borrower bythe Approved Property Managers pursuant to the respective Approved Management Agreements.          5.12. Annual Financial Statements. As soon as available, and in any event within 90days after the close of each Fiscal Year, Borrower shall furnish to Lender, on a Property byProperty basis, balance sheets of Borrower and each Operating Lessee as of the end of such year,together with related statements of income and equityholders’ capital for such Fiscal Year, auditedby a “Big Four” accounting firm (or another independent accounting firm of national reputereasonably approved by Lender) whose opinion shall be to the effect that such financial statementshave been prepared in accordance with GAAP applied on a consistent basis and shall not be qualifiedas to the scope of the audit or as to the status of Borrower or such Operating Lessee as a goingconcern. Together with Borrower’s aforementioned annual financial statements, Borrower shallfurnish to Lender:     (i) a statement of cash flows;     (ii) an annual report for the most recently completed fiscal year, describing CapitalExpenditures (stated separately with respect to any project costing in excess of $500,000),Tenant Improvements and Leasing Commissions; and     (iii) such other information as Lender shall reasonably request.          5.13. Quarterly Financial Statements. As soon as available, and in any event within45 days after the end of each Fiscal Quarter (including year-end), Borrower shall furnish toLender, on a Property by Property basis, quarterly and year-to-date unaudited financial statementsprepared for such fiscal quarter with respect to Borrower and each Operating Lessee, including abalance sheet and operating statement as of the end of such Fiscal Quarter, together with relatedstatements of income, equityholders’ capital and cash flows for such Fiscal Quarter and for theportion of the
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Fiscal Year ending with such Fiscal Quarter, which statements shall be accompaniedby an Officer’s Certificate certifying that the same are true and correct and were prepared inaccordance with GAAP applied on a consistent basis, subject to changes resulting from audit andnormal year-end audit adjustments. Each such quarterly report shall be accompanied by thefollowing:     (i) copies of each of the Major Leases signed during such quarter, together with asummary thereof which shall include the Tenant’s name, leaseterm, base rent, Tenant Improvements, leasing commissions paid, free rent and other material tenantconcessions;     (ii) then current franchise reports (if any), average daily room rates and occupancyreports;     (iii) then current rent roll with respect to each of the Properties;     (iv) an updated business plan for the Properties including a narrative in the form ofExhibit F hereto; and     (v) such other information as Lender shall reasonably request.          5.14. Monthly Financial Statements. Until the occurrence of a Securitization andduring the continuance of an Event of Default (or, in the case of item (iv) below, at all times),Borrower shall furnish within 30 days after the end of each calendar month (other than the calendarmonth immediately following the final calendar month of any Fiscal Year or Fiscal Quarter), monthlyand year-to-date unaudited financial statements prepared on a Property by Property basis for theapplicable month with respect to Borrower and each Operating Lessee, including a balance sheet andoperating 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 endingwith such month, which statements shall be accompanied by an Officer’s Certificate certifying thatthe same are true and correct and were prepared in accordance with GAAP applied on a consistentbasis, subject to changes resulting from audit and normal year-end audit adjustments. Each suchmonthly report shall be accompanied by the following:     (i) a summary of Major Leases signed during such month, which summary shall include theTenant’s name, lease term, base rent, escalations, Tenant Improvements, leasing commissionspaid, free rent and other concessions;     (ii) then current franchise reports (if any), average daily room rates and occupancyreports;     (iii) then current rent roll with respect to each of the Properties;     (iv) a cash flow analysis in the form attached hereto as Exhibit H;     (v) a report detailing material variations from the Approved Annual Budget;
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     (vi) updates to the business plan for the Properties containing the narrative in theform of Exhibit G hereto; and     (vii) such other information as Lender shall reasonably request.     5.15. Insurance.          (a) Borrower shall obtain and maintain or cause to be obtained and maintained with respect tothe Properties, for the mutual benefit of Borrower and Lender at all times, the following policiesof insurance:     (i) insurance against loss or damage by standard perils included within theclassification “All Risks Special Form Cause of Loss” (including coverage for damage causedby windstorm and hail). Such insurance shall (A) be in an aggregate amount equal to thefull replacement cost (exclusive of costs of excavations, foundations, underground utilitiesand footings) of the Properties and fixtures (without deduction for physical depreciation);(B) have deductibles acceptable to Lender (but in any event not in excess of $250,000(except as otherwise provided in this Section 5.15 with respect to particular typesof insurance coverage)); (C) contain a “Replacement Cost Endorsement”, or an “Agreed AmountEndorsement”, providing a waiver of co-insurance; (D) include an ordinance or law coverageendorsement containing Coverage A: “Loss Due to Operation of Law”, Coverage B: “DemolitionCost” and Coverage C: “Increased Cost of Construction” coverages with limits as Lender mayreasonably require; and (E) permit that the improvements and other property covered by suchinsurance be rebuilt at another location in the event that such improvements and otherproperty 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 “specialhazard area” (including Zones A and V Areas) in an amount equal to the maximum amount ofsuch insurance available from FEMA/FIA, plus such excess limits as reasonably requested byLender (up to $50,000,000), and having a deductible reasonably satisfactory to Lender (butin any event not in excess of 50% of the insurable value of such Property;     (iii) commercial general liability insurance, including broad form coverage of propertydamage, blanket contractual liability and personal injury (including death resultingtherefrom), containing minimum limits per occurrence of not less than $1,000,000 with notless 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 $100,000,000excess and/or umbrella liability insurance shall be obtained and maintained for any and allclaims, including all legal liability imposed upon Borrower and all related court costs andattorneys’ fees and disbursements;     (iv) rental loss and/or business interruption insurance for the actual period ofrestoration on an actual loss sustained basis commencing on the date of any Casualty orCondemnation, and containing an extended period of indemnity endorsement covering
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the 12month 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, machineryand equipment, pressure vessels or similar apparatus now or hereafter installedin any of the Improvements (without exclusion for explosions) and insurance againstloss of occupancy or use arising from any breakdown, in such amounts as are generallyavailable and are generally required by institutional lenders for properties comparable tothe Properties;          (vi) worker’s compensation insurance with respect to all employees of Borrower as andto the extent required by any Governmental Authority or Legal Requirement and employer’sliability coverage of at least $5,000,000, crime coverage of at least $5,000,000 andemployment practices liability and directors and officer’s liability with a combined limitof no less than $10,000,000;          (vii) at all times during which structural construction, repairs or alterations arebeing made with respect to the Improvements, and only if the property coverage form does nototherwise apply, in form and substance acceptable to Lender (A) owner’s contingent orprotective liability insurance covering claims not covered by or under the terms orprovisions of the above mentioned commercial general liability insurance policy; and (B) theinsurance provided for in clauses (i), (ii), (iv), (v), (ix) and (x) of this Section5.15(a) (including fire and extended coverage and collapse of the Improvements to agreedlimits) written in a so-called Builder’s Risk Completed Value form (1) on a non-reportingbasis, (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 endorsementwaiving co-insurance provisions;          (viii) [Intentionally Omitted]          (ix) if required by Lender, earthquake insurance (A) in an amount equal to 1.0 timesthe probable maximum loss of each Property, including business income, with the equivalentprobable maximum loss greater than 20%, (B) having a deductible reasonably approved byLender and subject to Rating Confirmation (but in any event earthquake insurance for each ofthe 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 Lender;          (x) so long as the Terrorism Risk Insurance Act of 2002 (“TRIA”) or a similarstatute is in effect, terrorism insurance for Certified and Non-Certified acts (as suchterms are defined in TRIA) in an amount equal to (A) full replacement cost of the Propertiesfor Certified acts and (B) $500,000,000 for Non-Certified acts (in each case, plus twelvemonths of business interruption coverage); and if the current terrorism limit is reduced dueto any claim, Borrower shall reinstate the full limit. If TRIA or a similar statute is
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notin effect, then provided that terrorism insurance is commercially available, Borrower shallbe required to carry terrorism insurance throughout the term of the Loan as required by thepreceding sentence, but in such event Borrower shall not be required to spend on terrorisminsurance coverage more than two times the amount of the insurance premium that is payableat 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 greateramount as may be required by applicable Legal Requirements against claims or liabilityarising directly or indirectly to persons or property on account of the sale or dispensingof alcoholic beverages at the Properties; and     (xii) such other insurance as may from time to time be reasonably requested by Lender.          (b) All policies of insurance (the “Policies”) required pursuant to this Section5.15 shall be issued by one or more primary insurers having a claims-paying ability of at least“A-” or “A3” by each of the Rating Agencies, or by a syndicate of insurers through which at least75% of the coverage (if there are 4 or fewer members of the syndicate) or at least 60% of thecoverage (if there are 5 or more members of the syndicate) is with carriers having suchclaims-paying ability ratings (provided that the first layers of coverage are from carriers ratedat least “A-” or “A3” and all such carriers shall have claims-paying ability ratings of not lessthan “BBB+” or “Baa1”). Notwithstanding anything to the contrary herein, for purposes ofdetermining whether the insurer ratings requirements set forth above have been satisfied, (1) anyinsurer that is not rated by Fitch will be regarded as having a Fitch rating that is the equivalentof the rating given to such insurer by any of Moody’s and S&P that does rate such insurer (or, ifboth such rating agencies rate such insurer, the lower of the two ratings), and (2) any insurerthat is not rated by Moody’s will be regarded as having a Moody’s rating of “Baa1” or better if itis rated “A-” or better by S&P and will be regarded as having a Moody’s rating of “A3” or betterif it is rated “A” or better by S&P.     (c) All Policies required pursuant to this Section 5.15:     (i)  shall be maintained throughout the term of the Loan without cost to Lender;     (ii) with respect to casualty policies, shall contain a standard noncontributorymortgagee clause naming Lender and its successors and assigns as first mortgagee and losspayee;     (iii) with respect to liability policies, shall name Lender and its successors andassigns as additional insureds;     (iv) with respect to rental or business interruption insurance policies, shall nameLender and its successors and/or assigns as loss payee;     (v) shall contain an endorsement providing that neither Borrower nor Lender nor anyother party shall be a co-insurer under said Policies;
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     (vi) shall contain an endorsement providing that Lender shall receive at least 30Business Days’ prior written notice of any modification, reduction or cancellation thereofand 10 Business Days’ prior written notice of nonpayment of premiums;     (vii) shall contain an endorsement providing that no act or negligence of Borrower orof a Tenant or other occupant shall affect the validity or enforceability of the insuranceinsofar 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 otherrequirements expressly set forth in Section 5.15(a), are acceptable to Lender andare no larger than is customary for similar policies covering similar properties in thegeographic market in which the applicable Property is located and in any event no largerthan $250,000, except (A) as provided in Section 5.15(a)(ii) and (ix), and(B) to the extent approved by Lender in writing, the deductible for windstorm coverage mayexceed $250,000 (but in any event, such deductible shall not be in excess of 5% of theinsurable value of the relevant Property);     (x) may be in the form of a blanket policy, provided that Borrower shallprovide evidence satisfactory to Lender that the insurance premiums for the Properties areseparately allocated under such Policy to the Properties and that (i) payment of suchallocated amount shall maintain the effectiveness of such Policy as to the Propertiesnotwithstanding the failure of payment of any other portion of premiums, and (ii) overallinsurance limits will under no circumstance limit the amount that will be paid in respect ofthe Properties, and provided further that any such blanket policy shall contain anamendment setting forth that (A) the aggregate limit under such policy shall applyseparately to each property covered thereunder, and (B) unless otherwise agreed to byLender, the limit of such policy shall be a “true blanket limit” and not limited by aschedule of values for the properties covered thereby.          Any policies of insurance maintained by Borrower but not required hereunder shall comply withclauses (ii), (iii), (v), (vii) and (viii) above.          (d) Borrower shall pay or cause to be paid the premiums for all Policies as the same becomedue and payable; provided, however, that Borrower shall not be deemed to havebreached this covenant to the extent sufficient funds to pay such premiums are available in theTaxes and Insurance Reserve Account, to the extent that funds for payment of insurance premiums arethen being reserved therein in pursuant to Section 3.4. Not later than 10 Business Daysprior to the expiration date of each Policy, Borrower shall deliver to Lender evidence, reasonablysatisfactory to Lender, of its renewal.          (e) If at any time Lender is not in receipt of written evidence that all insurance requiredhereunder is in full force and effect, Lender shall have the right, upon 2 Business Days priorwritten notice to Borrower, if during such 2 Business Days such written evidence is not provided toLender, to take such action as Lender deems reasonably necessary to protect its interest in anyapplicable Property, including, without limitation, obtaining such insurance
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coverage as Lenderreasonably deems appropriate (but limited to the coverages required under Section 5.15(a))and all premiums incurred by Lender in connection with such action or in obtaining such insuranceand keeping it in effect shall be paid by Borrower to Lender upondemand and, until paid, shall be secured by the Mortgages and shall bear interest at theDefault Rate until such time as Borrower delivers to Lender such written evidence.          5.16. Casualty and Condemnation.          (a) Borrower shall give prompt notice to Lender of any Casualty or Condemnation. Lender may(x) jointly with Borrower settle and adjust any claims, (y) during the continuance of an Event ofDefault, settle and adjust any claims without the consent or cooperation of Borrower, or (z) allowBorrower to settle and adjust any claims; except that if no Event of Default has occurred and iscontinuing, Borrower may settle and adjust claims without Lender consent aggregating not in excessof $10,000,000 per incident (the “Restoration Threshold”) if such settlement or adjustmentis carried out in a commercially reasonable and timely manner; and provided further that ifLender’s consent is required pursuant to this Section 5.16(a) for Borrower to settle andadjust a claim, such consent shall not be unreasonably withheld, conditioned or delayed. Thereasonable out-of-pocket expenses incurred by Lender in the adjustment and collection of LossProceeds shall become part of the Indebtedness and shall be reimbursed by Borrower to Lender upondemand therefor.          (b) All Loss Proceeds from any Casualty or Condemnation which do not exceed the RestorationThreshold will be promptly disbursed by Lender to Borrower and Borrower shall apply such sumstoward the restoration and repair of the applicable Property (with any excess amounts remitted intothe Cash Management Account). Promptly after receipt of the Loss Proceeds, Borrower shall commenceand satisfactorily complete with due diligence the restoration, repair, replacing or rebuilding ofthe 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 ofsuch 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 asprior to the Casualty or Condemnation.          (c) All Loss Proceeds from any Casualty or Condemnation which exceed the Restoration Thresholdshall be immediately deposited into the Loss Proceeds Account (monthly rental loss/businessinterruption proceeds to be initially deposited into the Loss Proceeds Account and subsequentlydeposited into the Cash Management Account in installments as and when the lost rental incomecovered by such proceeds would have been payable). If any Condemnation or Casualty from which theLoss Proceeds exceed the Restoration Threshold occurs as to which, in the reasonable judgment ofLender:     (i) in the case of a Casualty of any of the Properties, the cost of restoration wouldnot exceed 25% of the Allocated Loan Amount and the Casualty does not render untenantablemore than 25% of the guest rooms of such Property;
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     (ii) in the case of a Condemnation of any of the Properties, the Condemnation does notrender untenantable more than 15% of the guest rooms of such Properties or materially impairor disrupt the operation of the Property (including the Casino Component); and     (iii) restoration of any of the Properties is reasonably expected to be completed inaccordance herewith prior to the expiration of rental interruption insurance and at least180 days prior to the Maturity Date, unless on or prior to such date the Borrower (x) shalldeliver to the Lender and there shall remain in effect a binding written offer, subject onlyto customary conditions, of an Eligible Institution or such other financial institution orinvestment bank reasonably satisfactory to Lender duly authorized to originate loans securedby real property located in the State of Nevada for a loan from such Eligible Institution orsuch other financial institution or investment bank to the Borrower in a principal amount ofnot less than the then Principal Indebtedness and which shall, in the Lender’s reasonablejudgment, enable the Borrower to refinance the Loan prior to the Maturity Date and (y) if aSecuritization shall have occurred, shall obtain a Rating Confirmation;or if Lender otherwise elects to allow Borrower to restore any of the Properties, then the LossProceeds after receipt thereof by Lender and reimbursement of any reasonable expenses incurred byLender in connection therewith shall be applied to the cost of restoring, repairing, replacing orrebuilding each of such Properties or part thereof subject to the Casualty or Condemnation, in themanner set forth below (and Borrower shall commence as promptly and diligently as practicable toprosecute such restoring, repairing, replacing or rebuilding of such Properties in a workmanlikefashion and in accordance with applicable law to a status at least equivalent to the quality andcharacter of such Properties immediately prior to the Condemnation or Casualty, it beingunderstood, however, that Borrower shall not be obligated to restore such Property to the precisecondition of such Property prior to such Casualty or Condemnation provided the Property isrestored, to the extent practicable, to be of at least equal value and of substantially the samecharacter as prior to the Casualty or Condemnation). Provided that no Event of Default shall haveoccurred and be then continuing, Lender shall disburse such Loss Proceeds to Borrower upon Lender’sbeing furnished with (i) evidence reasonably satisfactory to it of the estimated cost of completionof the restoration, (ii) funds, or assurances reasonably satisfactory to Lender that such funds areavailable and sufficient in addition to any remaining Loss Proceeds, to complete the proposedrestoration, and (iii) to the extent the restoration work exceeds $500,000, such architect’scertificates, waivers of lien, contractor’s sworn statements, bonds, plats of survey and such otherevidences of cost, payment and performance as Lender may reasonably request; and Lender may, in anyevent, require that all plans and specifications for restoration reasonably estimated by Lender toexceed the Restoration Threshold be submitted to and approved by Lender prior to commencement ofwork (which approval shall not be unreasonably withheld, conditioned or delayed). If Lenderreasonably estimates that the cost to restore will exceed the Restoration Threshold, Lender mayretain a local construction consultant to inspect such work and review Borrower’s request forpayments and Borrower shall, on demand by Lender, reimburse Lender for the reasonable fees andexpenses of such consultant (which fees and expenses shall constitute Indebtedness). No payment inrespect of any contract shall exceed 90% of the value of the work performed from time to timethereunder until such time as 50% of the restoration (calculated based on the anticipated aggregatecost of the work) has been
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completed, and amounts retained prior to completion of 50% of therestoration shall not be paid prior to the final completion of the restoration. Funds other thanLoss Proceeds shall be disbursed prior to disbursement of such Loss Proceeds, and at all times theundisbursed balance of such proceeds remaining in the Loss Proceeds Account, together with anyadditional funds irrevocably and unconditionally deposited therein or irrevocably andunconditionally committedfor that purpose, shall be at least sufficient in the reasonable judgment of Lender to pay for thecost of completion of the restoration free and clear of all Liens or claims for Lien.          (d) Borrower shall cooperate with Lender in obtaining for Lender the benefits of any LossProceeds lawfully or equitably payable to Lender in connection with the Properties. Lender shallbe reimbursed for any expenses reasonably incurred in connection therewith (including reasonableattorneys’ fees and disbursements, and, if reasonably necessary to collect such proceeds, theexpense of an Appraisal on behalf of Lender) out of such Loss Proceeds or, if insufficient for suchpurpose, by Borrower.          (e) If Borrower is not entitled to apply Loss Proceeds toward the restoration of one ofProperties pursuant to Section 5.16(b) or (c) and Lender elects not to permit suchLoss Proceeds to be so applied, such Loss Proceeds, together with such additional amounts asBorrower shall pay to Lender, shall be applied on the first Payment Date following such election tothe prepayment of the Loan and shall be accompanied by interest through the end of the applicableInterest Accrual Period (calculated as if the amount prepaid were outstanding for the entireInterest Accrual Period). If the Note has been bifurcated into multiple Note Components pursuantto Section 1.3(c), all prepayments of the Loan made by Borrower in accordance with thisSection 5.16(e) shall be applied to the Note Components in ascending order of interest rate(i.e., first to the Note Component with the lowest Component Spread until its outstandingprincipal balance has been reduced to zero, then to the Note Component with the second lowestComponent Spread until its outstanding principal balance has been reduced to zero, and so on).          (f) If Borrower is entitled to apply Loss Proceeds toward the restoration of the Propertypursuant to Section 5.16(b) or (c), then, after the completion of such restorationin accordance herewith, including, without limitation, delivery of all temporary certificates ofoccupancy, lien waivers and other evidence Lender may reasonably require to evidence the lien freecompletion of such restoration in compliance with all Legal Requirements, as long as no Event ofDefault has occurred and is continuing, Lender shall deposit in the Cash Management Account anyundisbursed portion of the Loss Proceeds.          5.17. Annual Budget. Borrower has previously delivered to Lender the Annual Budget(covering both Operating Expenses and Capital Expenditures) for the Properties for the 2008 FiscalYear. At least 15 days prior to the commencement of each subsequent Fiscal Year during the term ofthe Loan, Borrower shall deliver to Lender for informational purposes only an Annual Budget for theProperties prepared by Operating Lessee in good faith for the ensuing Fiscal Year (covering bothOperating Expenses and Capital Expenditures) and, promptly after preparation thereof, anysubsequent revisions thereto. The Operating Expense budget contained in such Annual Budget, andany revisions thereto, shall be subject to Lender’s approval during the continuance of an Event ofDefault (such Operating Expense budget, in the absence of an Event of Default, as so delivered, andduring the continuance of an Event of Default, as so approved or deemed
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approved, is referred to herein as the “Approved Annual Operating Expense Budget”).The Capital Expenditure budget contained in such Annual Budget, and any revisions thereto, shall besubject to Lender’s approval during the continuance of an Event of Default, (such CapitalExpenditure Budget, in the absence of an Event of Default, as so delivered, and during thecontinuance of an Event of Default, as so approved or deemed approved, is referred to herein as the“Approved Annual Capital Expenditure Budget” and, together with the Approved AnnualOperating Expense Budget, the “Approved Annual Budget”). Notwithstanding the foregoing,but subject to Section 3.8, any revision of the Annual Budget or Approved Annual Budgetrelating to the application of the Capital Expenditure Amount shall be subject to Lender’sreasonable approval at all times, provided, however, that if, at least 20 daysprior to the effectiveness of any such revision, Borrower shall deliver to Lender an Officer’sCertificate setting forth the details of such revision and certifying that net projected cash flowsof the relevant Property for the term of the Loan are expected to be greater after giving effect tosuch revision than the net projected cash flows of the relevant Property for the term of the Loanbefore giving effect thereto (which Officer’s Certificate shall contain a reasonably detailed cashflow analysis in support thereof and shall be delivered to Lender in an envelope marked URGENT –LENDER’S ATTENTION REQUIRED WITHIN 20 DAYS), then Lender’s consent to such revision shall be deemedgranted to the extent that Lender does not object to the accuracy of such cash flow analysis, orrequest additional supporting material with respect thereto, within 20 days of Lender’s receiptthereof.          5.18 Operating Lease.          (a) Borrower shall cause each Operating Lessee to comply with the affirmative and negativecovenants contained in this Loan Agreement as if Operating Lessee were the Borrower hereunder.          (b) Notwithstanding anything to the contrary herein or in any other Loan Documents or in anyOperating Lease, upon the foreclosure or deed-in-lieu of foreclosure of the Property, Lender may,in its sole discretion, terminate the Operating Lease without payment of any termination fee,penalty or other amount.          5.19. General Indemnity. Borrower shall indemnify, reimburse, defend and holdharmless Lender and its officers, directors, employees and agents (collectively, the“Indemnified Parties”) for, from and against any and all Damages of any kind or naturewhatsoever which may be imposed on, incurred by, or asserted against the Indemnified Parties, inany way relating to or arising out of the making or holding or enforcement of the Loan by Lender orthe administration of the Transaction to the extent resulting, directly or indirectly, from anyclaim (including 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 noIndemnified Party shall have the right to be indemnified hereunder for its own fraud, bad faith,gross negligence or willful misconduct. The provisions of and undertakings and indemnification setforth in this Section 5.19 shall survive the satisfaction and payment in full of theIndebtedness and termination of this Agreement.          5.20 Compliance with Gaming Laws.
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          (a) Borrower shall cause each Casino Operating Lessee to maintain the Gaming Licenses in fullforce and effect with respect to each of the Properties at all times.          (b) Borrower shall cause each Casino Operating Lessee to post all required bonds, if any, withany Gaming Authority as and in the amounts required under all applicable Legal Requirements (andshall, if Lender makes a request therefor, promptly provide Lender with copies of all such bonds).          (c) Borrower shall not, without Lender’s prior written consent (not to be unreasonablywithheld, conditioned or delayed), permit any Casino Operating Lessee to assign or transfer, andeach Casino Operating Lessee shall not, without Lender’s prior written consent (not to beunreasonably withheld, conditioned or delayed), assign or transfer, or delegate anyresponsibilities with respect to, any Gaming License.          (d) Borrower shall cause each Casino Operating Lessee to make all filings required under theGaming Laws, or in connection with any Gaming Licenses, including in connection with theorigination of the Loan and the Mezzanine Loan, and shall deliver copies of such filings as Lendershall reasonably request to Lender, promptly following request therefor. Borrower will timely payall fees, investigative fees and costs required by the Gaming Authorities with respect to any suchapprovals and licenses. Borrower will diligently and comprehensively respond to any inquiries andrequests from the Gaming Authorities and promptly file or cause to be filed any additionalinformation required in connection with any required filings as soon as practicable after receiptof requests therefor.          (e) Upon request of Lender, Borrower shall deliver to Lender (or cause each Casino OperatingLessee to deliver to Lender) such evidence of compliance (by Borrower, each Casino Operating Lesseeand each Property) with all Legal Requirements as shall be reasonably requested by Lender.Borrower shall immediately deliver to Lender (and shall cause each Casino Operating Lessee todeliver to Lender) any notice of material non-compliance or material violation of any LegalRequirement, or of any material inquiry or investigation commenced by the Gaming Authorities inconnection with any of the Properties. Borrower shall immediately notify Lender if it or anyCasino Operating Lessee believe that any material license, including any Gaming License, is beingor could be revoked or suspended, or that any action is pending, being considered or being, orcould be, taken to revoke any of the Gaming Licenses, or to fine, penalize or impose remedies uponBorrower or any Casino Operating Lessee, 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 orcoming due to Borrower or any Casino Operating Lessee, in each case if same might reasonably beexpected to have a Material Adverse Effect.          (f) In the event that any Casino Operating Lease expires or is terminated (without limitingany obligation of Borrower to obtain Lender’s consent to any termination or modification of any ofthe Casino Operating Leases in accordance with the terms and provisions of this Agreement),Borrower shall promptly enter into a replacement Casino Operating Lease(in form and substance reasonably satisfactory to Lender) with the applicable Casino OperatingLessee or another operating company reasonably satisfactory to Lender.
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          (g) The consent of Gaming Authorities is not required in connection with any Assignment,Participation or other transfer of the Loan by Lender.          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 ofthe REAs;     (ii) Borrower shall promptly deliver to Lender a true and complete copy of each andevery notice of default received by Borrower with respect to any obligation of Borrowerunder the provisions of any of the REAs;     (iii) Borrower shall deliver to Lender copies of any written notices of default orevent 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 asthe Loan is outstanding, Borrower shall not grant or withhold any consent, approval orwaiver under any of the REAs without the prior written consent of Lender; providedthat, with respect to matters for which any REA expressly requires the consent of amortgagee, Borrower shall at all times, whether or not an Event of Default has occurred,obtain the prior written consent of Lender as and to the extent provided for in theapplicable REA; and     (v) Borrower shall deliver to each other party to an REA written notice of the identityof Lender on the date hereof and each assignee of Lender of which Borrower is given noticein accordance with Section 9.4 if the terms of such REA provide that such otherparty(ies) to the REA shall give notices of default thereunder to a lender of which suchother party(ies) have notice.          (b) Borrower shall pay all fees, assessments and charges payable by Borrower pursuant to eachof 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 Propertiesare required to be deposited into an account pursuant to the relevant REA, Borrower, to the fullestextent permitted under the applicable REA, shall cause such amounts to be deposited into anEligible Account, and any amounts released therefrom to Borrower shall be deposited into the LossProceeds 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
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and shall suffer or permit nodelinquency on its part to exist thereunder if such delinquency would have a Portfolio MaterialAdverse Effect.          (b) Borrower shall exercise all reasonable efforts to enforce or secure the performance ofeach 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 failureto so enforce or secure such performance would have a Material Adverse Effect.ARTICLE VINEGATIVE COVENANTS          6.1. Liens on the Properties. Neither Borrower nor, if applicable, any Single-PurposeEquityholder shall permit or suffer the existence of any Lien on any of its assets, other thanPermitted Encumbrances.          6.2. Ownership. Borrower shall not own any assets other than the Properties, therelated personal property, FF&E, intangibles, rights, intellectual property and any other propertylocated therein, used in connection therewith or necessary or incidental to the operation of theProperties, or any proceeds of the foregoing.          6.3. Transfer. Borrower shall not Transfer any Collateral other than in compliancewith Article II or Section 7.1(l) and other than the replacement or otherdisposition of obsolete or non-useful personal property and fixtures in the ordinary course ofbusiness, and other than any ground lease of a Release Parcel to an affiliated or unaffiliatedthird party that is approved by Lender in its sole and absolute discretion. Borrower shall nothereafter file a declaration of condominium with respect to the Properties. Notwithstandinganything to the contrary contained in this Agreement, Borrower may, without the consent of Lender,grant easements, restrictions, covenants, reservations and rights of way in the ordinary course ofbusiness for access, water and sewer lines, cable, telephone and telegraph lines, electric lines orother utilities or for other similar purposes, provided that no such Transfer, conveyance orencumbrance shall materially impair the utility and operation of the affected Property, materiallyreduce the value of such Property or have a Material Adverse Effect. In connection with anyTransfer permitted pursuant to this Section 6.3, Lender shall execute and deliver anyinstrument reasonably necessary or appropriate, in the case of the Transfers referred to in clause(i) above, to release the portion of the Property affected by such taking or such Transfer from theLien of the Mortgage or, in the case of clause (ii) above, to subordinate the Lien of the Mortgageto such easements, restrictions, covenants, reservations and rights of way or other similar grantsupon receipt by Lender of:          (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, ifany, being paid for the Transfer and (y) that such Transfer does not materially
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impair the utilityand operation of the affected Property, materially reduce the value of such Property or have aPortfolio Material Adverse Effect; and          (d) reimbursement of all of Lender’s reasonable costs and expenses (including, reasonableattorneys’ fees) incurred in connection with such Transfer.Notwithstanding anything to the contrary contained herein, each of Borrower and each OperatingLessee may let lapse, let expire, abandon or cancel any intellectual property that in thereasonable business judgment of either Borrower or any Operating Lessee is no longer material tothe business, provided that such lapse, expiration, abandonment or cancellation does not have aMaterial Adverse Effect.          6.4. Debt. Borrower shall not have any Debt, other than Permitted Debt and Debtincurred in connection with, and substantially simultaneously with, the repayment in full of theLoan. No direct or indirect equityholder of any Co-Borrower, except for any QualifiedEquityholder and any direct or indirect equityholders of any Qualified Equityholder, shall have anyindebtedness for borrowed money (or any preferred equity having the characteristics of indebtednessfor borrowed money, including a mandatory redemption date and a current pay preferred return)other than, as applicable, the Loan, the Mezzanine Loans, the Permitted Indebtedness, the“Permitted Indebtedness” under and as defined in the Mezzanine Loan Agreements, and in the case ofAmerican Casino & Entertainment Properties LLC, unsecured trade payables, not evidenced by a note,incurred in the ordinary course of business and customarily paid within 90 days after the dateincurred. The foregoing shall not (i) restrict the making of unsecured loans by the members ofW2007/ACEP Holdings, LLC (the “WH/HG JV”) to each other or to the WH/HG JV in accordancewith 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 lessthan 10% of the direct or indirect equity interests in Borrower, (y) Persons for whom direct andindirect 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 bya pledge of the direct or indirect equity interests in Borrower in violation of the terms ofSection 7.1(f) hereof.          6.5. Dissolution; Merger or Consolidation. Neither Borrower nor, if applicable, anySingle-Purpose Equityholder shall dissolve, terminate, liquidate, merge with or consolidate intoanother Person without first causing the Loan to be assumed by a Qualified Successor Borrowerpursuant to Section 2.3.          6.6 Change in Business. Borrower shall not make any material change in the scope ornature of its business objectives, purposes or operations or undertake or participate in activitiesother than the continuance of its business.          6.7. Debt Cancellation. Borrower shall not cancel or otherwise forgive or release anymaterial claim or Debt owed to it by any Person, except for adequate consideration or in theordinary course of its business.
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          6.8. Affiliate Transactions. Borrower shall not enter into, or be a party to, anytransaction with any Affiliate of Borrower, except on terms which are no less favorable to Borrowerthan would be obtained in a comparable arm’s length transaction with an unrelated third party, andexcept for the Transfer of a Property pursuant to Section 7.1(l).          6.9. Misapplication of Funds. Borrower shall not (a) knowingly distribute anyRevenues or Loss Proceeds in violation of the provisions of this Agreement (and shall promptlycause 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 itsprincipal place of business without giving Lender at least 30 days’ prior written notice thereofand promptly providing Lender such information as Lender may reasonably request in connectiontherewith.          6.11. Modifications and Waivers. Unless otherwise consented to in writing by Lender,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 rightsor remedies under, or materially default under, any Major Lease, or enter into any MajorLease, except in compliance with Section 5.7;     (ii) Neither Borrower nor, if applicable, any Single-Purpose Equityholder shallterminate, amend or modify any provision in its organizational documents (including, withoutlimitation, any operating agreement, limited partnership agreement, by-laws, certificate offormation, certificate of limited partnership or certificate of incorporation) in a mannerthat would violate the definition of a “Single-Purpose Entity” contained in this Agreement;     (iii) Borrower shall not amend, modify, terminate, renew, surrender any rights orremedies under, or materially default under, or enter into, any Approved ManagementAgreement except in compliance with Section 5.10;     (iv) [Reserved];     (v) 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;     (vi) Borrower shall not (x) sell, assign, transfer, mortgage or pledge any PropertyAgreement or any such right or interest under any Property Agreement, or (y) subject toSection 5.10 with respect to Approved Management Agreements, cancel, terminate,amend, supplement or modify any Property Agreement, in either case, if such
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action wouldhave a Material Adverse Effect or is otherwise prohibited under this Agreement; and     (vii) 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 enterinto, any Material Agreement.          6.12. ERISA.          (a) Borrower shall not maintain or contribute to, or agree to maintain or contribute to, orpermit any ERISA Affiliate of Borrower to maintain or contribute to or agree to maintain orcontribute to, any employee benefit plan (as defined in Section 3(3) of ERISA) subject to Title IVor Section 302 of ERISA or Section 412 of the Code. Borrower shall not incur or be subject to, andshall not permit any of its respective ERISA Affiliates to incur or be subject to, any liabilityunder 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 ofERISA, Section 4975 of the Code, or substantially similar provisions under federal, state or locallaws, rules or regulations or in any transaction that would cause any obligation or action taken orto be taken hereunder (or the exercise by Lender of any of its rights under the Notes, thisAgreement, the Mortgage or any other Loan Document) to be a non-exempt prohibited transaction undersuch provisions, in either case, which could subject Borrower or Lender to a tax or penalty imposedby either Section 4975 of the Code or Section 502(i) of ERISA, and/or litigation risk, in an amountthat would be material.          6.13. Alterations and Expansions. During the continuance of an Event of Default,Borrower shall not perform or contract to perform any Capital Expenditures that are not consistentwith the Approved Annual Capital Expenditure Budget. Borrower shall not perform or contract toperform any Material Alteration without the prior written consent of Lender, which consent (in theabsence of an Event of Default) shall not be unreasonably withheld, delayed or conditioned. Anyrequest for Lender’s consent pursuant to this Section 6.13 shall be submitted to Lender inan envelope marked “URGENT – LENDER’S ATTENTION REQUIRED WITHIN 10 BUSINESS DAYS”, together with adetailed description of the request for which Lender’s consent is sought and any documentationneeded for Lender to evaluate such request, and shall be deemed approved if Lender shall not havenotified Borrower in writing of its disapproval thereof and the reasons for such disapproval withinfive Business Days after Borrower shall have given Lender written notice confirming that at leastten Business Days have elapsed since such submission, which written notice shall be submitted toLender in an envelope marked “URGENT – SECOND AND FINAL NOTICE – LENDER’S ATTENTION REQUIRED BY[DATE]”).          If Lender’s consent is requested hereunder with respect to a Material Alteration, Lender mayretain a construction consultant reasonably acceptable to Borrower to review such request and, ifsuch request is granted, Lender may retain a construction consultant reasonably acceptable toBorrower to inspect the work from time to time. Borrower shall, on demand by Lender, reimburseLender for the reasonable fees and disbursements of such consultant.
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          6.14. Advances and Investments. Borrower shall not lend money or make advances to anyPerson, 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. Neither Borrower nor Operating Lessee shall cease to bea Single-Purpose Entity.          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 theProperties (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, rulesor 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 suchProperty becoming a nonconforming use under applicable land-use restrictions or zoningordinances or that would violate the terms of any Major Lease, Legal Requirement orPermitted 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 anyPermitted Encumbrance in a manner that would have a Material Adverse Effect, or materiallydefault in any of its material obligations under a Permitted Encumbrance;     (iii) impose or consent to the imposition of any restrictive covenants, easements orencumbrances 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, orpermit the institution of, proceedings to alter any tax lot comprising the Properties, ifsame would have a Material Adverse Effect; or     (v) permit or consent to any of the Properties being used by the public or any Personin such manner as might make possible a claim of adverse usage or possession or of anyimplied dedication or easement.          6.17. Waste. Borrower shall not commit or permit any waste on the Properties so as toresult in a Material Adverse Effect, nor take any actions that might invalidate any insurancecarried on the Properties (and Borrower shall promptly correct any such actions of which Borrowerbecomes aware).          6.18 Operating Lessee. With respect to Operating Lessee’s operation of theProperties, Borrower shall cause each Operating Lessee to comply with all of the negative covenantsset forth in this Agreement, and no default hereunder shall be excused by virtue of the fact thatsuch default was caused by an Operating Lessee (by way of example, if any Operating Lesseeinitiated a zoning change not permitted hereunder, the same shall constitute a violation ofSection 6.16).
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          6.19 Distributions. No Borrower shall make any distributions to any partner, member,equityholder or Affiliate of Borrower during the Sponsor Guaranty Effectiveness Period, except (i)as expressly permitted under Section 3.2 in respect of the payment of interest on and anyother amounts due and payable under the Mezzanine Loans, (ii) to make prepayments of the MezzanineLoans (on a pro rata basis with prepayments hereunder), and (iii) for the purpose of payment ofOperating Expenses and/or Capital Expenditures by Borrower or Operating Lessee, in each case, inaccordance herewith and in accordance with the Mezzanine Loan Agreements. In addition, provided noEvent of Default or Mezzanine Loan Event of Default is continuing, distributions shall be permittedfrom excess cash flow (after payment of all amounts then due and payable under the Loan and theMezzanine Loans) for the purpose of (x) distributing to W2007/ACEP Holdings, LLC an amount equal to0.2% per annum of the Maximum Amount, as defined in the Sponsor Guaranty, (y) distributing toAmerican Casino & Entertainment Properties LLC, a Delaware limited liability company(“ACEP”), for purposes of the payment of any expenses incurred by ACEP (including thepayment of management and employees of ACEP) in connection with the operation of the business ofBorrower and Operating Lessees that are consistent with the Approved Annual Budget other than anypayments to Highgate Hotels L.P. or any of its Affiliates or to Sponsor or any of its Affiliates,and/or (z) payments to Highgate Hotels L.P. in respect of asset management fees, to the extent suchpayments do not to exceed $1,000,000 in the aggregate per annum (such expenses under clauses (x),(y) and (z), “ACEP Operating Expenses”).ARTICLE VIIDEFAULTS          7.1. Event of Default. The occurrence of any one or more of the following eventsshall be, and shall constitute the commencement of, an “Event of Default” hereunder (anyEvent of Default which has occurred shall continue unless and until waived by Lender in its solediscretion):     (a) Payment.     (i) Borrower shall default in the payment when due of any principal or interest owinghereunder 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 whendue if there are sufficient sums on deposit in the Cash Management Account for payment ofsuch amounts and Lender’s access to such funds has not been inhibited or prevented in anymanner whatsoever due to circumstances or events which are directly related to Borrower; or     (ii) Borrower shall default, and such default shall continue for at least five BusinessDays 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 LoanDocuments (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 whendue if there are sufficient sums on deposit in the Cash Management Account
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for payment ofsuch amounts as well as all principal and interest then due and payable, and Lender’s accessto such funds has not been inhibited or prevented in any manner whatsoever due tocircumstances or events which are directly caused by Borrower.          (b) Representations. Any representation made by Borrower, Sponsor or any OperatingLessee in any of the Loan Documents, or in any material report, certificate, financial statement orother instrument, agreement or document furnished to Lender shall have been false or misleading inany material respect (or, with respect to any representation which itself contains a materialityqualifier, in any respect) as of the date such representation was made; provided that, withrespect to any such breach which is capable of being cured, such breach shall not constitute anEvent of Default unless and until it shall remain uncured for 30 days after Borrower receiveswritten notice thereof from Lender; provided, further, that, with respect to anysuch breach which cannot be cured by the payment of money but is susceptible of being cured andcannot reasonably be cured within such 30-day period, if Borrower commences to cure such breachwithin 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 noevent in excess of 120 days from the original notice from Lender.          (c) Other Loan Documents. Any Loan Document shall fail to be in full force and effectin all material respects or to convey the material Liens, rights, powers and privileges purportedto be created thereby; or a default by Borrower shall occur under any of the other Loan Documentsor any of the Approved Management Agreements, or REAs, in each case, beyond the expiration of anyapplicable cure period; or a default by either party shall occur under any of the Operating Leasesbeyond the expiration of any applicable cure period.          (d) Bankruptcy, etc.     (i) Borrower or, if applicable, any Single-Purpose Equityholder shall commence avoluntary 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, any Operating Lessee or, if applicable, any Single-Purpose Equityholdershall commence any other proceeding under any reorganization, arrangement, adjustment ofdebt, relief of creditors, dissolution, insolvency or similar law of any jurisdictionwhether now or hereafter in effect relating to Borrower, such Operating Lessee or suchSingle-Purpose Equityholder, or (except as permitted under Section 6.5 of thisAgreement) shall dissolve or otherwise cease to exist;     (iii) there is commenced against Borrower, any Operating Lessee or, if applicable, anySingle-Purpose Equityholder an involuntary case under the BankruptcyCode, or any such other proceeding, which is not discharged, stayed or dismissed withina period of 90 days after commencement;     (iv) Borrower, any Operating Lessee or, if applicable, any Single-Purpose Equityholderis adjudicated insolvent or bankrupt;     (v) Borrower, any Operating Lessee or, if applicable, any Single-Purpose Equityholdersuffers appointment of any custodian or the like for it or for any substantial
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portion ofits property and such appointment continues unchanged or unstayed for a period of 60 daysafter commencement of such appointment;     (vi) Borrower, any Operating Lessee or, if applicable, any Single-Purpose Equityholdermakes a general assignment for the benefit of creditors; or     (vii) any action is taken by Borrower, any Operating Lessee or, if applicable, anySingle-Purpose Equityholder for the purpose of effecting any of the foregoing.     (e) Change of Control.     (i) A Change of Control shall occur; or     (ii) any party not owning 49% or more of the direct or indirect equity interest inBorrower as of the date hereof shall acquire more than 49% of the direct or indirect equityinterest in Borrower, the Operating Lessees or a Single-Purpose Equityholder (even if notconstituting a Change of Control) other than a direct or indirect interest in a QualifiedEquityholder and Borrower shall fail to deliver to Lender with respect to such newequityholder a new non-consolidation opinion satisfactory to (A) prior to the occurrence ofany Securitization of the Loan, Lender (Lender’s approval of any such non-consolidationopinion which is in substantially the form of the Nonconsolidation Opinion not to beunreasonably withheld, conditioned or delayed), and (B) at any time following anySecuritization or series of Securitizations of the Loan, each of the Rating Agencies ratingsuch Securitization or Securitizations;provided, however, that solely for the purposes of this Section7.1(e), the fact that W2007/ACEP Managers Voteco, LLC possesses the power to direct orcause the direction of the management or policies of Borrower, any Single-PurposeEquityholder or any Operating Lessee shall not constitute a Change of Control, so long asthe equityholders of W2007/ACEP Managers Voteco, LLC are officers of the general partner ofSponsor.          (f) Equity Pledge; Preferred Equity. Any direct or indirect equity interest in orright to distributions from Borrower or any Operating Lessee shall be subject to a Lien in favor ofany Person, or Borrower or any holder of a direct or indirect interest in Borrower shall issuepreferred equity (or debt granting the holder thereof rights substantially similar to thosegenerally associated with preferred equity); except that the following shall be permitted and shallnot constitute a Default or Event of Default:     (i) any pledge of direct or indirect equity interests in and rights to distributionsfrom a Qualified Equityholder;     (ii) the issuance of preferred equity interests in a Qualified Equityholder or anyPerson holding a direct or indirect interest therein;     (iii) the pledges of direct and indirect equity interests in Borrower securing theMezzanine Loans; or
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     (iv) a pledge of an indirect interest in any Operating Lessee by Sponsor, WhitehallParallel Global Real Estate Limited Partnership or W2007 Finance Sub, LLC to a QualifiedPledgee to secure a loan that is fully recourse to Sponsor or W2007 Finance Sub, LLC or thatis secured by a substantial portion of the assets of Sponsor or W2007 Finance Sub, LLC.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 any Qualified Equityholderor any Person holding a direct or indirect interest therein shall be permitted and shall not bedeemed a Default or an Event of Default under this Agreement.          (g) Insurance. Borrower shall fail to maintain in full force and effect all Policiesrequired hereunder unless the sole reason therefor is Lender’s failure to disburse funds from theTax and Insurance Reserve Account.          (h) ERISA; Negative Covenants. A default shall occur in the due performance orobservance by Borrower of any term, covenant or agreement contained in Section 5.8 or inArticle VI.          (i) Qualified Letters of Credit.     (i) With respect to any Qualified Letter of Credit delivered pursuant to the LoanDocuments, Borrower shall fail to deliver a renewal, extension or replacement thereof inaccordance herewith no less than 30 days prior to the expiration date thereof, unlessBorrower deposits the cash equivalent thereof into the applicable Collateral Account towhich such Qualified Letter of Credit relates no less than 30 days.     (ii) With respect to any Qualified Letter of Credit delivered pursuant to the LoanDocuments which ceases to be a Qualified Letter of Credit, Borrower shall fail to eitherdeliver a replacement Qualified Letter of Credit in accordance herewith or deposit the cashequivalent thereof into the applicable Collateral Account to which such Qualified Letter ofCredit relates within 10 Business Days thereafter.          (j) Gaming Licenses. Any Gaming License shall be refused, suspended, revoked orcanceled or allowed to lapse or any proceeding is commenced by any Governmental Authority for thepurpose of suspending, revoking or canceling any Gaming License, or any Governmental Authorityshall have appointed a conservator, supervisor or trustee to or for any of the Casino Componentsand, in each of the foregoing cases, such action could reasonably be expected to (A) have aMaterial Adverse Effect, (B) materially and adversely affect thecontinued operation of the Casino Components in the usual course of business and insubstantially the same manner and to at least the same standard as was maintained prior to suchaction or (C) result in any material decrease in the then expected cash flow and revenues to bederived from the Casino Components; provided, however, that, notwithstandinganything to the contrary contained in this Section 7.1(j), the commencement by aGovernmental Authority of a proceeding for the purpose of suspending, revoking, conditioning, orcanceling any Gaming License or imposing a fine shall not constitute an Event of Default unless anduntil (i) Borrower or the other party that owns the applicable Gaming License or any of theirAffiliates has had
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such additional time as is reasonably necessary to defend itself in suchproceeding and for so long as such party continues to defend itself in such proceeding in areasonable and timely manner, and, (ii) after such time, such proceeding has not been suspended ordismissed with the result that the applicable Gaming License has not been suspended, revoked orcancelled.          (k) Other Covenants. A default shall occur in the due performance or observance byBorrower of any term, covenant or agreement (other than those referred to in subsections(a) through (j), inclusive, of this Section 7.1) contained in this Agreement orin any of the other Loan Documents, except that if such default referred to in this subsection(k) is susceptible of being cured, such default shall not constitute an Event of Default unlessand until it shall remain uncured for 30 days after Borrower receives written notice thereof fromLender; and if a default cannot be cured by the payment of money but is susceptible of being curedand cannot reasonably be cured within such 30-day period, and Borrower commences to cure suchdefault within such 30-day period and thereafter diligently and expeditiously proceeds to cure thesame, Borrower shall have such additional time as is reasonably necessary to effect such cure, butin no event in excess of 120 days from the original notice from Lender.          (l) Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, ifa Default or Event of Default shall occur under this Agreement or under another Loan Documentbecause a representation, warranty, affirmative covenant, negative covenant or other provisionhereunder or thereunder shall be breached or violated as it affects a particular Property (otherthan any misappropriation of funds collected in respect thereof), (x) such Default or Event ofDefault 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 towhich an Indemnified Party may be entitled hereunder, shall cease to apply upon Borrower causing tooccur a Transfer of the applicable Property to an affiliated or an unaffiliated Person and thesatisfaction of the requirements set forth in Section 2.2 or Section 2.4, asapplicable, including payment of the applicable Release Price together with (i) the amount ofinterest 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 itremained outstanding through the end of the Interest Accrual Period in which such prepayment ismade (or in the case of a prepayment during any Assumed Rate Period, the amount of interest whichwould have accrued on the principal amount so prepaid had it remained outstanding through the endof the Interest Accrual Period following the Interest Accrual Period in which such prepayment ismade, as determined in accordance with Section 2.1(a)); plus (iii) any SpreadMaintenance Amount, if applicable; provided that such payment must be made not later than20 calendar days after any acceleration of the Loan. In the event of such payment, so long as noother Event of Default shall have occurred and be continuing hereunder (other than one that issimultaneously being cured pursuant to this Section 7.1(l)), Lender shall release all Lienson suchProperty and the Collateral related thereto created under this Agreement or under the otherLoan Documents.          7.2. Remedies.          (a) During the continuance of an Event of Default, Lender may by written notice to Borrower,in addition to any other rights or remedies available pursuant to this Agreement, the Notes, theMortgage and the other Loan Documents, at law or in equity, declare
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by written notice to Borrowerall or any portion of the Indebtedness to be immediately due and payable, whereupon all or suchportion of the Indebtedness shall so become due and payable, and Lender may enforce or avail itselfof any or all rights or remedies provided in the Loan Documents against Borrower and the Properties(including all rights or remedies available at law or in equity); provided,however, that, notwithstanding the foregoing, if an Event of Default specified in paragraph7.1(d) shall occur, then the Indebtedness shall immediately become due and payable withoutthe giving of any notice or other action by Lender. Any actions taken by Lender shall becumulative and concurrent and may be pursued independently, singly, successively, together orotherwise, at such time and in such order as Lender may determine in its sole discretion, to thefullest extent permitted by law, without impairing or otherwise affecting the other rights andremedies of Lender permitted by law, equity or contract or as set forth in this Agreement or in theother Loan Documents.          (b) If Lender forecloses on the Properties, Lender shall apply all net proceeds of suchforeclosure to repay the Indebtedness, the Indebtedness shall be reduced to the extent of such netproceeds and the remaining portion of the Indebtedness shall remain outstanding and secured by theProperties and the other Loan Documents, it being understood and agreed by Borrower that Borroweris liable for the repayment of all the Indebtedness; provided, however, that at theelection of Lender, the Notes shall be deemed to have been accelerated only to the extent of thenet proceeds actually received by Lender with respect to the Properties and applied in reduction ofthe Indebtedness.          (c) During the continuance of any Event of Default, Lender may, but without any obligation todo so and without notice to or demand on Borrower and without releasing Borrower from anyobligation hereunder, take any action to cure such Event of Default. Subject to compliance withall Gaming Laws, Lender may enter upon any or all of the Properties upon reasonable notice toBorrower (during business hours on Business Days) for such purposes (subject to the terms of theLeases, and provided such entry and inspection shall not unreasonably interfere with the usualoperation and conduct of business at the Properties or the use and enjoyment of the Properties byBorrower or its tenants, customers and guests) or appear in, defend, or bring any action orproceeding to protect its interest in the Properties or to foreclose the Mortgage or collect theIndebtedness. The costs and expenses incurred by Lender in exercising rights under this paragraph(including reasonable attorneys’ fees), with interest at the Default Rate for the period afternotice from Lender that such costs or expenses were incurred to the date of payment to Lender,shall constitute a portion of the Indebtedness, shall be secured by the Mortgage and other LoanDocuments and shall be due and payable to Lender upon demand therefor.          (d) Interest shall accrue on any judgment obtained by Lender in connection with itsenforcement 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 accruingupon an Event of Default shall impair any such remedy, right or power or shall be construed as awaiver thereof, but any such remedy, right or power may be exercised from time to time and as oftenas may be deemed by Lender to be expedient. A waiver of any Default or Event of Default shall notbe construed to be a waiver
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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 tothe contrary contained herein, during the continuance of an Event of Default, all amounts receivedby Lender in respect of the Loan shall be applied at Lender’s sole discretion either toward thecomponents of the Indebtedness (e.g., Lender’s expenses in enforcing the Loan, interest,principal and other amounts payable hereunder), and the Note Components in such sequence as Lendershall elect in its sole discretion (subject, as between the holders of the Notes, to anyintercreditor agreement), or toward the payment of Taxes, Operating Expenses and CapitalExpenditures.ARTICLE VIIICONDITIONS PRECEDENT          8.1. Conditions Precedent to Closing. This Agreement shall become effective on thedate that all of the following conditions shall have been satisfied (or waived in accordance withSection 9.3); provided, however, that if Lender shall fund the Loan, all conditionsin this Article VIII shall be deemed satisfied (other than as may be provided for in anypost-closing requirements letter):          (a) Loan Documents. Lender shall have received a duly executed copy of this Agreementand the other Loan Documents.          (b) Opinions of Counsel. Lender shall have received such opinions in form andsubstance satisfactory to Lender, including (i) a New York legal opinion, (ii) a legal opinion withrespect to the laws of the state in which the Borrower is formed, (iii) a legal opinion withrespect to the laws of each state in which one of the Properties is located, (iv) a bankruptcynonconsolidation opinion with respect to each Person owning at least a 49% direct or indirectequity interest in Borrower, if applicable, any Single-Purpose Equityholder and any affiliatedproperty manager, (v) a “true lease” opinion with respect to each Operating Lease, (vi) an opinionof Nevada counsel regarding gaming matters and (vii) an opinion to the effect that neither the Loannor any Mezzanine Loan, nor any transfers thereof, shall require any governmental approvals thathave not been obtained.          (c) Organizational Documents. Lender shall have received all documents reasonablyrequested by Lender relating to the existence of Sponsor, Borrower, each Operating Lessee, thevalidity of this Agreement and the other Loan Documents and other matters relating thereto, in formand substance satisfactory to Lender, including:     (i) Authorizing Resolutions. A certified copy of the resolutions of the boardof managers or directors of its Single-Purpose Equityholder and Sponsor approving andadopting the Loan Documents to be executed by Borrower and Sponsor, as applicable, andauthorizing the execution and delivery thereof.
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     (ii) Organizational Documents. Certified copies of the organizationaldocuments of Sponsor, Borrower and, if applicable, any Single-Purpose Equityholder(including any certificate of formation, certificate of limited partnership, certificate ofincorporation, operating agreement, limited partnership agreement or by-laws), in each casetogether with all amendments thereto.     (iii) Certificates of Good Standing or Existence. Certificates of goodstanding or existence for Sponsor, Borrower and, if applicable, any Single-PurposeEquityholder 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. Lender shall have received copies of allconsents, licenses, approvals, if any, required in connection with the execution delivery andperformance by Borrower and each Operating Lessee, and the validity and enforceability of the LoanDocuments, and the operation of the Properties as casinos (including, without limitation, allapplicable Gaming Licenses), and such consents, licenses and approvals shall be in full force andeffect.          (e) Operating Lease. Lender shall have received a true and correct copy of eachOperating Lease in a form and substance satisfactory to Lender.          (f) Additional Matters. Lender shall have received such other certificates, opinions,documents and instruments relating to the Loan as may have been reasonably requested by Lender.All corporate and other proceedings, all other documents (including all documents referred to inthis Agreement and not appearing as exhibits to this Agreement) and all legal matters in connectionwith the Loan shall be reasonably satisfactory in form and substance to Lender.ARTICLE IXMISCELLANEOUS          9.1. Successors. Except as otherwise provided in this Agreement, whenever in thisAgreement any of the parties to this Agreement is referred to, such reference shall be deemed toinclude the successors and permitted assigns of such party. All covenants, promises and agreementsin this Agreement by or on behalf of Borrower shall inure to the benefit of Lender and itssuccessors and assigns. All covenants, promises and agreements in this Agreement by or on behalfof 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 THESTATE OF NEW YORK.          (B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATINGTO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (OTHER THAN ANY ACTION IN RESPECT OF THE
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CREATION, PERFECTION OR ENFORCEMENT OF A LIEN OR SECURITY INTEREST CREATED PURSUANT TO ANYLOAN DOCUMENTS NOT GOVERNED BY THE LAWS OF THE STATE OF NEW YORK) MAY BE INSTITUTED IN ANY FEDERALOR STATE COURT IN NEW YORK, NEW YORK. LENDER AND BORROWER HEREBY (i) IRREVOCABLY WAIVE, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TOTHE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIMTHAT 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 ORPROCEEDING.          9.3. Modification, Waiver in Writing. Neither this Agreement nor any other LoanDocument nor any of the terms hereof or thereof may be amended, changed or modified, unless suchamendment, change or modification is in a writing signed by Lender and Borrower. Neither thisAgreement nor any other Loan Document nor any of the terms hereof or thereof may be waived,discharged or terminated, nor shall any consent or approval of Lender be granted hereunder, unlesssuch consent or approval is deemed granted hereunder or unless such waiver, discharge, termination,consent or approval is in a writing signed by Lender. To the extent required by any Gaming Law,Borrower shall notify all relevant Gaming Authorities of any amendment to this Agreement or anyLoan Document.          9.4. Notices. All notices, consents, approvals and requests required or permittedhereunder or under any other Loan Document shall be given in writing by facsimile (with answer backacknowledged and followed immediately by another method of notice permitted under this Section9.4), or by expedited prepaid delivery service, either commercial or United States PostalService or international courier, with proof of delivery or attempted delivery, addressed asfollows (or at such other address and person as shall be designated from time to time by any partyto this Agreement, as the case may be, in a written notice to the other parties to this Agreementin 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 acceptdelivery, or (b) in the case of facsimile, on the date of transmittal if sent during business hourson a Business Day (otherwise on the next Business Day), provided that such facsimile has beenfollowed by another method of notice permitted under this Section 9.4 on the same day asthe transmittal of such facsimile, in each case addressed to the parties as follows:If to Lender:Goldman Sachs Commercial Mortgage Capital, L.P.