EX-10.03







	 	 	 	 	 


Exhibit
10.3



ECONOMIC PARTICIPATION AGREEMENT




          THIS ECONOMIC PARTICIPATION AGREEMENT (this “Agreement”), dated as of 23th
day of October, 2008, but effective as of February 20, 2008 (the “Effective Date”), is
entered into by and among W2007 Finance Sub, LLC, a Delaware limited liability company
(“Whitehall Finance”), Whitehall Parallel Global Real Estate Limited Partnership 2007, a
Delaware limited partnership (“Whitehall Parallel”, and together with Whitehall Finance,
“Whitehall”), and Arthur Keith, a natural person residing at Las Vegas, NV.
(“Participant”).




WITNESSETH:




          WHEREAS, Whitehall Finance, Whitehall Parallel and Strat Hotel Investor, L.P., a Delaware
limited partnership, are party to that certain Amended and Restated Limited Liability Company
Agreement of W2007/ACEP Holdings, LLC (the “Company”), dated as of February 20, 2008 (the
“Company LLC Agreement”);




          WHEREAS, pursuant to the Company LLC Agreement, Whitehall is entitled to receive certain
Proceeds (as defined below) in respect of its membership interests in the Company; and




          WHEREAS, Whitehall wishes to grant to Participant and Participant wishes to accept from
Whitehall, a participation in the membership interests in the Company held by Whitehall, subject
to, and in accordance with, the terms and conditions of this Agreement.




          NOW, THEREFORE, the undersigned in consideration of the promises, covenants and agreement
contained herein, do hereby agree as follows:





     1. Definitions. As used in this Agreement, the following terms shall have the meanings set
forth below:



          “1/4 Vesting Milestone” means the first anniversary of the Effective Date.




          “3/4 Vesting Milestone” means the third anniversary of the Effective Date




          “1/2 Vesting Milestone” means the second anniversary of the Effective Date.




          “Additional Cash Investment” has the meaning set forth in Section 3(a).




          “Additional Investment” has the meaning set forth in Section 3(a).




          “Additional Participating Investment” has the meaning set forth in Section 3(a).




          “Agreement” has the meaning set forth in the introductory paragraph hereof.




          “Capital Event Proceeds” means (i) any proceeds received by the Company from the sale
or other disposition of any property or asset held, directly or indirectly, by the



 









 






Company or (ii) financing proceeds received by the Company from a loan or similar financing transaction under which
the repayment obligations are secured by a pledge, directly or indirectly, of Whitehall’s interest
in the Company or any of its subsidiaries, the Company’s direct or indirect interest in any of its
subsidiaries, or any of the properties or other assets of the Company or its subsidiaries, in the
case of each of (i) and (ii) net of all out-of-pocket transaction costs (as determined by
Whitehall), which, for certainty, shall include any such costs payable to affiliates of Whitehall.
Notwithstanding the forgoing, in no event shall the definition of “Capital Event Proceeds”
hereunder include any proceeds that are borrowed pursuant to the Initial Financing or pursuant to a
loan that is (x) fully recourse to any of Whitehall Finance, Whitehall Parallel or Whitehall
Street Global Real Estate Limited Partnership 2007 (“Whitehall Street”) or (y) is secured
by a significant portion of the assets of Whitehall Finance, Whitehall Parallel or Whitehall Street
(which significant portion, for certainty, shall not be comprised only of Whitehall’s interest in
the Company).




          “Cash Interest Entitlement” is equal to the Cash Percentage Interest
multiplied by the applicable Proceeds.




          “Cash Percentage Interest” has the meaning set forth in Section 3(b).




          “Cause” means Employees (i) failure to perform the duties assigned to him; (ii)
chronic impairment due to alcohol or substance abuse; (iii) conviction of a Serious Crime or being
charged with a felony (for purposes of this Agreement a “Serious Crime” is a crime that the
Company believes could prohibit the Employee from obtaining or maintaining any work card, license,
or finding of compliance suitability necessary for Employee to maintain employment with Company) ;
(iv) violation of a federal or state securities law or regulation; (v) negligent conduct, error or
omission in the carrying out of his duties under this Agreement; (vi) conduct that causes damage
to the reputation of the Company(vii) breach of the Exclusivity Obligation or any of the
obligations set forth in Section 6 or Section 7 below; (viii) any revocation or suspension by any
state or local authority of Employee’s required license(s) to serve in his position(s) with the
Company; or (ix) any act or failure to act by Employee which causes any gaming or other regulatory
authority having jurisdiction over the Company, the Designated Affiliates or any of their
affiliates to seek any redress or remedy against Employee, the Company, any Designated Affiliate or
any of their affiliates.




          “Cause Termination” mean the circumstance wherein Participant is no longer an employee
of the Company or any subsidiary thereof for reason of removal or termination from such employment
for Cause.




          “Company” has the meaning set forth in the recitals hereof.




          “Company LLC Agreement” has the meaning set forth in the recitals hereof.




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          “Current Portion” is equal to the vesting percentage as of such date (as determined in
accordance with the vesting provisions set forth in Section 4 hereof) multiplied by the
Participating Investment Entitlement.




          “Effective Date” has the meaning set forth in the introductory paragraph hereof.




          “Employment Agreement” means that certain Employee Agreement between Participant and
American Casino & Entertainment Properties, LLC, dated as of October 23, 2008.




          “Full Vesting Milestone” mean the earlier of (i) the fourth (4th)
anniversary of the Effective Date and (ii) the date on which Whitehall no longer owns any direct or
indirect interest in the Company.




          “Funding Portion” has the meaning set forth in Section 5(a) or 5(b), as applicable.




          “Incentive Distributions” has the meaning set forth in Section 6.




          “Initial Financing” means the first, and only the first, financing entered into by one
or more of the Company’s subsidiaries and secured by a pledge of such subsidiaries’ assets.




          “Initial Investment” has the meaning set forth in Section 2(b).




          “Initial Participating Investment” has the meaning set forth in Section 2(b).




          “Internal Rate of Return” means, with respect to any investment, a return of all
capital invested in such investment plus a cumulative, quarterly compounded, return on such
invested capital at a rate per annum equal to the applicable percentage specified herein. An
investment shall be deemed to have produced a specified Internal Rate of Return when the total cash
in-flows invested from time to time in such investment produces cash out-flows in amount sufficient
to cover the cash in-flows together with an annual return equal to such specified percentage
calculated commencing on the date such cash in-flows are funded and compounded quarterly to the
extent not paid on a current basis, and all previous cash out-flows produced by such investment.
For purposes of computing such Internal Rate of Return, any cash in-flows invested in such
investment, any forfeiture of any capital invested and any cash out-flows from such investment at
any time during a month shall be deemed to be invested, forfeited or produced on the first day of
such month.




          “Investment” has the meaning set forth in Section 3(a).




          “Operating Proceeds” means proceeds received by the Company and from the operation of
property and assets held, directly or indirectly, by the Company, net of interest and other finance
charges paid by Whitehall under any financing(s).




          “Participant” has the meaning set forth in the introductory paragraph hereof.




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          “Participating Investment” means, as of any date, the Initial Participating Investment
plus the aggregate of all Additional Participating Investments.




          “Participating Investment Entitlement”:




          (X) with respect to Operating Proceeds is equal to (i) (A) Participant’s Participating
Percentage Interest multiplied by the applicable Proceeds minus (B) the Unfunded
Carry multiplied by (ii) if the Unfunded Participating Investment is greater than
zero, 75%; and





(Y) with respect to Capital Event Proceeds is equal to (i) (A) Participant’s
Participating Percentage Interest multiplied by the applicable Proceeds minus (B)
the Unfunded Carry.



          “Participating Percentage Interest” has the meaning set forth in Section 3(b).




          “Percentage Interest” has the meaning set forth in Section 3(b).




          “Proceeds” means, collectively, Capital Event Proceeds and Operating Proceeds.




          “Qualifying Circumstance” means the circumstance wherein Participant is no longer an
employee of the Company or any subsidiary thereof for any reason whatsoever except for a Cause
Termination, including, without limitation, any removal from such employment without Cause, any
resignation by Participant or Participant’s ceasing to be an employee due to Participant’s death or
disability.




          “Redemption Price” means a cash amount (determined as of the date of redemption) equal
to the Participant’s Initial Cash Investment less the amount of any Cash Distributions received by
the Participant.




          “Redemption Right” has the meaning set forth in Section 7.




          “Tax Shortfall Amount” has the meaning set forth in Section 8.




          “Total Whitehall Contribution” means, as of any date, the total amount Whitehall has
contributed to the Company’s common equity, net of the financing proceeds, if any, received by
Whitehall prior to such date pursuant to the Initial Financing.




          “Unfunded Carry” as of any date means an amount, when added to all other amounts
attributed to Unfunded Carry, is sufficient to cover a return of 7% p.a. on the Unfunded
Participating Investment calculated commencing on the date such
Unfunded Participating Investment is funded and compounded quarterly to the extent not paid on
a current basis.




          “Unfunded Participating Investment” as of any date means an amount (which shall not be
less than zero) equal to the Initial Participating Investment plus all Additional



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Participating Investment minus the cumulative amounts of all Funding Portions previously credited pursuant to
Section 5(a) and 5(b).




          “Vesting Milestone” means each of the 1/4 Vesting Milestone, the 1/2 Vesting
Milestone, the 3/4 Vesting Milestone and the Full Vesting Milestone.




          “Whitehall” has the meaning set forth in the introductory paragraph hereof.




          “Whitehall Finance” has the meaning set forth in the introductory paragraph hereof.




          “Whitehall Parallel” has the meaning set forth in the introductory paragraph hereof.




     2. Initial Investment.



          (a) Within five business days of the date of this Agreement, Participant shall make a payment
in cash to Whitehall in the amount of $0.00 (no Cash Investment to be made) (the “Cash
Investment”). For all purpose herein, Participant will be treated as having made the Cash
Investment as of the Effective Date.




          (b) Upon receipt of the Cash Investment, subject to the vesting provisions set forth in
Section 4, Participant shall be credited with an additional investment in the amount of 200% of the
Cash Investment (such additional investment, the “Initial Participating Investment”, and
the Cash Investment together with the Initial Participating Investment, the “Initial
Investment”). For example, if Participant’s Cash Investment is $50,000, his or her Initial
Participating Investment would be $100,000 and his or her Initial Investment would be $150,000.




     3. Additional Investments; Percentage Interests.



          (a) If and when Whitehall contributes additional common equity capital to the Company, so long
as no Qualifying Circumstance or Cause Termination has occurred, Participant will have the right to
elect to make an additional investment (such additional investment, together with the Additional
Participating Investment (defined below) in respect of such additional investment, an
“Additional Investment”) in the amount required to maintain Participant’s then-current
Percentage Interest (as defined below), it being understood that Participant may only exercise this
option with respect to the full amount contemplated herein and Participant will not be entitled to
make a partial election. Whitehall shall give Participant written notice of an upcoming
contribution to the Company’s common equity and Participant shall have five business days from the
date of that notice to advise Whitehall in writing whether or not Participant will make the
Additional Investment (and failure to respond within that time period will be deemed to be an
election to not make the Additional Investment). If Participant timely elects to make an
Additional Investment, Participant shall, within five business days of the date on which he or she
notified Whitehall of his or her election, make a payment in cash to Whitehall in an amount equal
to one-third of the Additional Investment (an “Additional Cash



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Investment”). Upon receipt of the Additional Cash Investment, subject to the vesting provisions set forth in Section 4,
Participant shall be credited with an additional investment in the amount of 200% of the Additional
Cash Investment (such additional investment, the “Additional Participating Investment”).
If Participant does not timely elect to make an Additional Investment or does not have the right to
make such Additional Investment due to the occurrence of a Qualifying Circumstance or Cause
Termination, Participant recognizes that his or her Percentage Interest will be diluted as a result
of the additional investment made by Whitehall to fund the capital call. The “Investment”
means the Initial Investment together with any Additional Investment(s).




          (b) Participant’s “Percentage Interest” means, as of any date of determination, the
percentage obtained by dividing Participant’s aggregate Investment as of such date by the Total
Whitehall Contribution. Participant’s “Cash Percentage Interest” means, as of any date of
determination, the percentage obtained by dividing Participant’s aggregate Cash Investment as of
such date by the Total Whitehall Contribution. Participant’s “Participating Percentage
Interest” means, as of any date of determination, the percentage obtained by dividing
Participant’s Participating Investment as of such date by the Total Whitehall Contribution. As of
the date hereof, the Total Whitehall Contribution is $___ and Participant’s initial
Percentage Interest, Cash Percentage Interest and Participating Percentage Interest are,
respectively, 0.___%, 0.___% and 0.___%.




4. Vesting.



          (a) Participant’s rights hereunder with respect to the Cash Investment are fully vested as of
the Effective Date. Provided that no Qualifying Circumstance or Cause Termination has occurred on
or prior to the applicable Vesting Date, Participant’s rights hereunder with respect to the
Participating Investment and the Incentive Distributions shall vest in accordance with the
following schedule:




          (i) between the Effective Date and the 1/4 Vesting Milestone, Participant’s vesting
percentage shall be 0%;




          (ii) from and after the 1/4 Vesting Milestone up to the 1/2 Vesting Milestone,
Participant’s vesting percentage shall be 25%;




          (iii) from and after the 1/2 Vesting Milestone up to the 3/4 Vesting Milestone,
Participant’s vesting percentage shall be 50%;




          (iv) from after the 3/4 Vesting Milestone up to the Full Vesting Milestone,
Participant’s vesting percentage shall 75% and




          (v) from and after the Full Vesting Milestone, Participant’s vesting percentage shall
be 100%.




          (b) Notwithstanding Section 4(a) above, if a Qualifying Circumstance occurs, Participant shall
be entitled to retain the vesting percentage with respect to the



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Participating Investment and the
Incentive Distributions that vested prior to the occurrence of such Qualifying Circumstance, but
such vesting percentage shall not thereafter increase. For example, if a Qualifying Circumstance
should occur after the 1/2 Vesting Milestone but prior to the 3/4 Vesting Milestone, Participant’s
vesting percentage with respect to the Participating Investment and the Incentive Distributions
shall be 50% (but shall in no event increase to 75% or 100% thereafter). Notwithstanding Section
4(a) above, if a Cause Termination occurs, effective as of the date of such Cause Termination,
Participant’s Vesting Percentage with respect to the Participating Investment and the Incentive
Distributions shall be reduced to 0%.




          (c) Provided that no Cause Termination has occurred on or prior to the applicable Vesting
Date: (i) on the 1/4 Vesting Milestone, 25% of any amounts which Participant is entitled to receive
under Sections 5 or 6 and which are then held in escrow shall be payable to the Participant in cash
(as a Cash Distribution); (ii) on the 1/2 Vesting Milestone, 50% of any amounts which Participant
is entitled to receive under Sections 5 or 6 and which are then held in escrow shall be payable to
the Participant in cash (as a Cash Distribution); (iii) on the 3/4 Vesting Milestone, 75% of any
amounts which Participant is entitled to receive under Sections 5 or 6 and which are then held in
escrow shall be payable to the Participant in cash (as a Cash Distribution) and (iv) on the Full
Vesting Milestone, 100% of any amounts which Participant is entitled to receive under Sections 5 or
6 and which are then held in escrow shall be payable to the Participant in cash (as a Cash
Distribution). If a Cause Termination occurs, Participant shall immediately forfeit all rights to
all amounts which Participant would otherwise have been entitled to receive under Sections 5 or 6
and which are then held in escrow, and all such escrowed amounts shall promptly be returned to
Whitehall.




     5. Participation in Proceeds.



          (a) Operating Proceeds. As and when Whitehall receives Operating Proceeds,
Participant shall be entitled to receive an amount equal to (i) the Cash Interest Entitlement plus
(ii) the Participating Investment Entitlement. The Cash Interest Entitlement and the Current
Portion of the Participating Investment Entitlement will be payable to the Participant in cash
within five business days of Whitehall’s receipt of such Operating Proceeds (as a Cash
Distribution) and the remainder of the Participating Investment Entitlement will be escrowed and
distributed to Participant in accordance with the vesting provisions set forth in Section 4 hereof.
In addition, as of such date, to the extent there is then an Unfunded Participating Investment,
Participant will be credited with a reduction of the Unfunded Participating Investment in an amount
of the Funding Portion with respect to such Operating Proceeds. If the Unfunded Participating
Investment is greater than zero, the “Funding Portion” under this Section 5(a) shall be equal to
25% multiplied by (A) Participant’s Participating Percentage Interest multiplied
by such Operating Proceeds minus (B) the Unfunded Carry and, if the Unfunded Participating
Investment is zero, the “Funding Portion” shall be zero.




          (b) Capital Event Proceeds. As and when Whitehall receives Capital Event Proceeds,
Participant shall be entitled to receive an amount equal to (i) the Cash Interest Entitlement plus
(ii) if the Unfunded Participating Investment is zero, the Participating Investment Entitlement.
The Cash Interest Entitlement and the Current Portion of any



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Participating Investment Entitlement
that Participant is entitled to receive pursuant to clause (ii) above will be payable to the
Participant in cash within five business days of Whitehall’s receipt of such Capital Event Proceeds
(as a Cash Distribution) and the remainder of such Participating Investment Entitlement will be
escrowed and distributed to Participant in accordance with the vesting provisions set forth in
Section 4 hereof. In addition, as of such date, to the extent there is then an Unfunded
Participating Investment, Participant will be credited with a reduction of the Unfunded
Participating Investment in an amount of the Funding Portion with respect to such Capital Event
Proceeds. If the Unfunded Participating Investment is greater than zero, the “Funding Portion”
under this Section 5(b) shall be equal to (A) Participant’s Participating Percentage Interest
multiplied by such Capital Event Proceeds minus (B) the Unfunded Carry and, if the Unfunded
Participating Investment is zero, the “Funding Portion” shall be zero.




          (c) The parties agree that the provisions of Sections 5(a) and 5(b) are intended to achieve
the same economics as if Participant had borrowed an amount equal to the Participating Investment
from Whitehall on the Effective Date (or such applicable later date with respect to an Additional
Participating Investment) and paid interest to Whitehall on such amount at a rate of 7% p.a. until
such amount was repaid in full.




6. Incentive Distributions.




(a)When and if Whitehall has achieved a 15% Internal Rate of Return with respect to its
investments in the Company, then Participant shall be entitled to a cash payment in the
amount of $750,000 to be paid to Participant within five business days of notice from
Whitehall.




(b) In addition to the foregoing, when and if Whitehall has achieved a 20% Internal
Rate of Return with respect to its investments in the Company, then Participant shall be
entitled to (b) a cash payment in the amount of $750,000 to be paid to Participant within
five business days of notice from Whitehall (the cash payments in the foregoing clauses
6(a) and 6(b) shall be known as “Incentive Distributions”).



     7. Redemption Rights. Each of Participant and Whitehall acknowledge and agree that if a Cause
Termination occurs, Whitehall shall have the right (but not the obligation), at Whitehall’s
election at any time after the occurrence of such Cause Termination, to redeem the Initial Cash
Investment at the Redemption Price (such right shall be known as the “Redemption Right”).
Whitehall shall pay Participant the
Redemption Price within 90 days of the date on which Whitehall notifies Participant in writing
of its intention to exercise its Redemption Right.



     8. Tax Distributions. If the amount of Cash Distributions received by Participant pursuant to
Section 5 in any fiscal year is not sufficient to cover Participant’s tax liabilities in respect to
the amount Participant is entitled to receive under Section 5 in such fiscal year (such difference,
the “Tax Shortfall Amount”), then Whitehall shall, subject to Participant’s execution and
delivery of a promissory note in the form of Exhibit A in favor of Whitehall in the amount
of the Tax Shortfall Amount, within 60 days after the close of the fiscal year, lend an amount of
cash to Participant equal to the Tax Shortfall Amount.



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     9. No Admission; No Fiduciary or other Relationship. It is agreed and understood by the
parties hereto that Whitehall shall continue to hold its membership interests in the Company, and
that it is not the intention of the parties to admit Participant as a substituted member or to
otherwise admit Participant as a member of the Company. Each of Whitehall and Participant
confirms and agrees that the relationship between Whitehall, on the one hand, and Participant, on
the other hand, is strictly limited to the contractual arrangement set out in this Agreement, that
the relationship is one of arm’s-length contracting parties and is not one of employer and employee
or of any other similar arrangement, and further that that neither of the parties is, or should for
any purpose be construed as being, a partner or affiliate of the other or has, or should for any
purpose be construed as having, any duty (fiduciary or otherwise) to the other or has, or should be
construed as having, any other responsibility to the other except to the extent specifically set
forth in the terms of this Agreement.



     10. Representations and Warranties. Participant represents, warrants and acknowledges, as a
material inducement to Whitehall entering into this Agreement, as follows:



          (a) Participant is acquiring his or her Investment for his or her own account for investment
purposes only and not with a view to the distribution or resale thereof, in whole or in part, and
agrees that he or she will not transfer, sell, pledge, hypothecate, encumber, assign or consent to
any transfer, sale, pledge, hypothecation, encumbrance, assignment, or solicit offers to buy from
or otherwise approach or negotiate in respect thereof with any person or persons whomsoever, all or
any portion of his or her Investment in any manner that would violate or cause the Company to
violate any applicable federal or state securities laws;




          (b) Participant is financially able to bear the economic risk of his or her investment in the
Investment, including the total loss thereof;




          (c) No Person has at any time expressly or impliedly represented, guaranteed, or warranted to
Participant that a percentage of profit and/or amount or type of consideration will be realized as
a result of his or her Investment, that past performance or experience of the Company or its
subsidiaries or assets in any way indicates the future results of the ownership of his or her
Investment or of the Company
business, that any cash distributions from Company operations or otherwise will be made by any
specific date or will be made at all, or that any specific tax benefits will accrue as a result of
the Investment;




          (d) The Investment is an illiquid investment with an indeterminate length, and no Person has
at any time expressly or impliedly represented, guaranteed, or warranted that the Investment will
be realized, redeemed or redeemable within a specific period of time;




          (e) Participant’s execution and delivery of this Agreement and the performance of his or her
obligations hereunder will not conflict with, result in a breach of or constitute a default (or any
event that, with notice or lapse of time, or both, would constitute a default) or result in the
acceleration of any obligation under any of the terms, conditions or provisions of any other
agreement or instrument to which Participant is a party or by which Participant is bound or to
which any of Participant’s property or assets are subject, or violate any statute or any order,
rule or regulation of any court or governmental or regulatory agency,



9









 






body or official, that would
materially and adversely affect the performance of his or her duties hereunder; and Participant has
obtained any consent, approval, authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by Participant of his or her obligations
hereunder;




          (f) There is no action, suit or proceeding pending against Participant or, to Participant’s
knowledge, threatened in any court or by or before any other governmental agency or instrumentality
which would prohibit Participant from entering into or performing his or her obligations under this
Agreement;




          (g) Neither Participant nor any of Participant’s affiliates has employed any broker or finder,
or incurred any liability therefor, in connection with this Agreement or the transactions
contemplated hereby;




          (h) This Agreement is a binding agreement on the part of Participant enforceable in accordance
with its terms against Participant;




          (i) Participant acknowledges and agrees that Sullivan & Cromwell LLP serves as counsel to
Whitehall, and that Sullivan & Cromwell LLP does not serve as counsel to any other Party.
Participant acknowledges and agrees that he or she does not have an attorney-client relationship
with Sullivan & Cromwell LLP, and that no such relationship will arise in the course of the
Company’s existence or dissolution by any means. Participant represents and warrants that, in the
event of litigation or arbitration between Whitehall and Participant, Participant will not seek the
removal of Sullivan & Cromwell LLP as counsel to Whitehall for any purported conflict of interest
or attorney-client relationship allegedly existing between Sullivan & Cromwell LLP and Participant.
Participant has been advised to and has engaged his or her own counsel and any other advisers
Participant deems necessary and appropriate. By reason of Participant’s business or financial
experience, or by reason of the business or financial experience of Participant’s own attorneys,
accountants and financial advisors, Participant is capable of
evaluating the risks and merits of the Investment and of protecting his or her own interests
in connection with Investment; and




          (j) Participant has consulted with his or her own accountants and financial advisors regarding
all tax and financial matters concerning the Investment and the tax consequences of the Investment.
Participant acknowledges that the tax consequences of the Investment will depend on Participant’s
particular circumstances, and neither the Company, Whitehall, nor the partners, shareholders,
members, managers, fiduciaries, agents, officers, directors, employees, affiliates, or consultants
of any of them will be responsible or liable for the legal, tax, or financial consequences to
Participant of the Investment. Participant will solely look to, and rely upon, his or her own
advisers with respect to the legal, tax, and financial consequences of the Investment.




     11. Tax Treatment. Whitehall and Participant agree that (a) Participant’s Investment pursuant
to this Agreement shall be treated for U.S. federal income tax purposes as (i) a sale of a portion
of the membership interests in the Company equal to Participant’s Cash Percentage Interest to
Participant and (ii) a grant of a profits interest in the Company equal to Participant’s



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Participating Percentage and Incentive Distributions, with Whitehall holding such membership and
profits interests as a nominee on behalf of Participant, (b) Participant shall be treated for U.S.
federal income tax purposes in the same manner as if he or she (i) had purchased and is holding a
common equity membership interest in the Company equal to Participant’s Percentage Interest, and
(ii) is holding a profits interest in the Company equal to Participant’s Participating Percentage
and Incentive Distributions, (c) Whitehall shall timely deliver to the Company the statement
described in Treas. Regs. Section 1.6031(c)-1T(a)(1)(ii) with respect to the portion of the
membership interests in the Company that is treated as purchased by Participant pursuant to this
Agreement, (d) Participant shall provide Whitehall with a properly completed IRS Form W-9 or W-8,
as applicable, and any other information, forms or documents as may be reasonably requested by
Whitehall acting in its role as nominee and (e) Participant shall make a Section 83(b) election in
respect of his or her Investment.



     12. Confidentiality. Participant agrees to hold the terms of this Agreement and any
information relating to the Company or Whitehall that Participant obtains during the term of this
Agreement strictly confidential and not to disclose the same to any third party, provided,
however, that Participant may disclose such information only (a) as required by applicable
law and then only to the extent required by such law, (b) at the express direction of any court or
other governmental authority with jurisdiction over Participant or (c) pursuant to subpoena or
other process of a court or other governmental authority having jurisdiction over Participant.



     13. Future Cooperation. Each of the parties hereto agrees to cooperate at all times from and
after the date hereof with respect to all of the matters described herein, and to execute such
further assignments, releases, assumptions, notifications and other documents as may be reasonably
requested for the purpose of giving effect to, or evidencing or giving notice of, the transaction
contemplated by this Agreement.



     14. Termination. Participant’s rights under this Agreement automatically shall terminate and
expire upon the sooner of (i) the closing of the exercise of Whitehall’s Redemption Rights as
provided in Section 7 above and (ii) the date that Whitehall no longer owns any direct or indirect
interest in the Company.



     15. Notice. Unless otherwise expressly agreed in writing, any notice, consent or other
document required to be sent pursuant to this Agreement shall be in writing and shall be deemed to
be validly given by the delivery thereof to its recipient, either personally with a receipt, by
registered mail, via reputable overnight courier, or via facsimile transmission if such facsimile
provides confirmation of sending followed by a reputable overnight courier that provides
confirmation of delivery to the sender. Notices shall be sent as follows:



     If to the Company, then to:





W2007/ACEP Holdings, LLC

c/o Goldman, Sachs & Co.

85 Broad St.

New York, NY 10004



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Attention: Whitehall Chief Financial Officer & Whitehall General Counsel



with a copy to:



Whitehall Street Global Real Estate Limited Partnership 2007

c/o Goldman, Sachs & Co.

85 Broad St.

New York, NY 10004

Attention: Whitehall Chief Financial Officer & Whitehall General Counsel



and a copy to:



Sullivan & Cromwell, LLP

125 Broad Street

New York, NY 100004

Attention: Anthony J. Colletta, Esq.




     If to Participant, then to:


Arthur Keith

2000 Las Vegas Blvd, South

Las Vegas, NV 89104





Any written notice is deemed to have been received: (a) if sent by personal delivery,
registered mail or prepaid overnight courier, at the time of its delivery; (b) if sent by
prepaid mail, on the fifth (5th) business day following its sending; or (c) if transmitted by
facsimile transmission or other electronic means as may be permitted by this Agreement or
otherwise mutually agreed, on the first business day following its sending.



     16. Rights Personal to Participant. The rights and privileges described in this Agreement are
personal to Participant and may not be sold, assigned, pledged or otherwise transferred or
encumbered (other than testamentary transfers to Participant’s spouse or heirs), directly or
indirectly, by Participant without Whitehall’s prior written consent, which consent Whitehall may
grant or withhold in Whitehall’s sole and absolute discretion. Any pledge or other transfer of all
or any portion of Participant’s rights under this Agreement without Whitehall’s prior written
consent shall be void ab initio, and if Participant attempts to effect any such transfer then at
any time following such attempt Whitehall shall have the right to redeem Participant’s interest at
a redemption price equivalent to the Redemption Price provided for in Section 7 above.



     17. Binding Effect. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and assigns.



     18. Execution in Counterparts. This Agreement may be (a) executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one



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and the same instrument and (b) transmitted by telecopy or other facsimile signature (which shall be deemed an original for
all purposes).



     19. Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, and all rights and remedies hereunder shall be governed by such laws
without regard to principles of conflict of law.



[signature page follows]




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          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.




	 	 	 	 	 
	 	 	 
	 	By:  	                                            /s/ ARTHUR KEITH
 	 
	 	 	Arthur Keith 	 
	 
	 	 	WHITEHALL PARALLEL GLOBAL REAL ESTATE LIMITED PARTNERSHIP 2007, a
Delaware limited partnership



By:  WH PARALLEL ADVISORS, L.L.C. 2007, 

        its General Partner

 	 
	 	 	 
	 	By:  	          /s/ Jonathan A Langer
 	 
	 	 	Name:  	Jonathan A Langer 	 
	 	 	Title:  	Manager 	 
	 
	 	W2007 FINANCE SUB, LLC, a Delaware limited 

liability company



By:  WHITEHALL STREET GLOBAL REAL         ESTATE LIMITED PARTNERSHIP

        2007, its Managing Member

 	 
	 	By:  	WH ADVISORS, L.L.C. 2007, its General Partner
 	 
	 	 	 
	 	By:  	                     Jonathan A Langer
 	 
	 	 	Name:  	Jonathan A Langer 	 
	 	 	Title:  	Manager 	 
	 




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